43 So. 2d 237 | La. | 1949
[1] The City of New Orleans, availing itself of the provisions of Louisiana's Uniform Declaratory Judgments Act, Act No.
[2] For cause of action the city alleges, briefly and substantially, that Act No.
[3] In response to the rule to show cause why the preliminary injunction should not issue, the board and its individual members filed numerous exceptions, all of which were overruled by the trial judge, and the application for a preliminary injunction was referred to the merits. The defendants were then given ten days in which to answer.
[4] Reserving their rights under their exceptions, all of which were reurged, they answered, contending the plaintiff, not an elector of the city and without right to participate in choosing its own public officers, could not be affected by the constitutionality vel non of Act No.
[5] After trial on the merits the trial judge, in a lengthy written opinion, considered all of the attacks the plaintiff levelled at the constitutionality of Act No.
[6] The defendant board, and its component members, having been refused a suspensive appeal from this judgment, were granted an appeal by us under our supervisory jurisdiction. No. 39,523 on the docket of this court. In answer to this appeal the city reurges all of its attacks upon the constitutionality of Act No.
[7] Although the appellants are also re-urging most vigorously all of their exceptions to the rule issued against them to show cause why the injunction should not have been issued in this case, we have concluded to pretermit these exceptions and pass to the merits since this case involves issues that must be disposed of as expeditiously as possible in order that the primaries nominating those who will seek election as the city's officials may be timely and orderly held prior to the general election in April of 1950.
[8] We will treat first of the trial judge's conclusion that the act is unconstitutional because, in providing for the election of seven commissioners by the electors of the respective municipal districts they will represent, all of the people of New Orleans are deprived of the right to elect all of their public officials, in contravention of the home-rule clause of the constitution to be found in Section 22 of Article XIV, the pertinent part of which declares: "The electors of the City of New Orleans and of any political corporation which may be established within the territory now, or which may hereafter be embraced within the corporate limits of said city, shall have the right to choose their public officers."
[9] It is well to mention at the outset that as a general principle "municipal corporations hold and exercise their powers subject to legislative control, and it has been laid down as a broad rule that the legislative authority over the civil, political, and governmental powers of municipal corporations is supreme except as limited by the state and Federal Constitutions." 37 Am.Jur. 689, Section 76. See, also, 1 McQuillin 509, Section 3.02; 19 R.C.L. 700, Section 11; 43 C.J. 77, Section 17; 62 C.J. S., Municipal Corporations, § 6; State ex rel. Davis v. Stuart,
[10] It is to be observed from a study of the several constitutions of this state since its admission into the Union in 1812 that they all contain a so-called home-rule clause or provision for the City of New Orleans which, for the purpose of this decision, is similar to the one in the Constitution of 1921. Yet, with the exception of the period from 1870 to 1882, when the city was operated under a form of government that closely resembled a commission form of government although the officials were called "administrators," the city was under an aldermanic form of government from the time of its original incorporation until the adoption of Act No.
[11] New Orleans was first incorporated by the Legislative Council of the Territory of Orleans in 1805, Chapter 12, prior to Louisiana's admission into the Union. Under this act the administrative and executive functions of the city government were placed in the hands of a mayor and a recorder appointed by the then governor of the territory while the legislative functions were performed by a City Council composed of 14 aldermen, 2 elected from each of the 7 wards then composing the city. The recorder was the ex-officio president of this council but he had no power to vote, and although the mayor was given the right to express his approval or disapproval of the enactments of the Council, its by-laws and ordinances could be given the force of law by the Council despite the mayor's objection.
[12] The city continued to operate under this same form of government with but slight change, Act No.
[13] This form of charter remained in existence until 1852 when the General Assembly of that year by its Act No. 71 united these three municipalities into one whole and divided the city into 9 wards. This time the legislative powers were vested in a board of 11 aldermen and a board of 23 assistant aldermen. Together these formed what was known as the Common Council, each ward being entitled to a specified number of aldermen and assistant aldermen, all of whom were elected by the voters of their respective wards. The executive power of the city was vested in a mayor, three recorders, a treasurer, a comptroller, a surveyor, a street commissioner, and such other subordinate officers as the Common Council deemed necessary, all of which officials were elected. The changes made to the form of government set up under this charter were slight.
[14] Act No.
[15] This change was rather short-lived. By Act No.
[16] The next marked change in the structure of the city government occurred in 1912, when Act No. 159 vested all of the executive, administrative, and legislative powers and duties in a mayor and four commission councilmen, who were elected at large. The legislative powers were to be exercised by these 5 men when acting as a body termed a Commission Council while the executive and administrative powers were distributed among the commissioners heading the 5 departments of the city government set up in the act, i. e., the departments of public affairs, public finances, public safety, public utilities, and public property. The powers and duties embraced in each of these departments, except as otherwise provided in the act, were to be determined by the council itself at its first meeting after election. In this same charter, however, the legislature kept intact the Public Belt Railroad Commission as it then existed under previous legislation, and, in addition, created a number of other boards that were to have control respectively of the police, fire, health, and civil service. It also created a recorder's court to handle the city's judicial functions.
[17] We think, therefore, that the socalled home-rule provision to be found in Section 22 of Article XIV of the Constitution of 1921, when considered in the light of the history of the government of the city under the several acts of the legislature adopted pursuant to the provisions of the several constitutions that have been drafted since Louisiana's admission into the Union in 1812, in all of which similar provisions are to be found, clearly shows the drafters of this constitution simply intended the officers controlling the ordinary governmental functions of the City of New Orleans (with those exceptions noted in the same section that have no application here) should be chosen or elected by the electors of the city rather than be appointed by the governor or entitled to hold office in some other manner that might be prescribed by the legislature under its plenary powers. This home-rule provision was never intended as a restraint upon the legislature's unquestioned right to designate the system of government under which New Orleans as a municipality is to function, nor to prohibit the legislature from designating the number of officers that are to administer its government and the manner or mode by which these offices are to be filled, so long as the electors of the city are not deprived of their right to choose them.
[18] The authorities from other jurisdictions relied on by the trial judge as the basis for his conclusion, and those relied on by the attorneys for the city, are neither pertinent nor applicable here from a factual or legal standpoint and to discuss them would serve no useful purpose.
[19] Turning now to the trial judge's conclusion that Act No.
[20] A provision similar to this "Every law enacted by the legislature shall embrace but one object, and that shall be expressed in the title" first appeared in the Constitution of 1845 as Article 118. The Supreme Court of the United States, commenting upon the reason for its enactment in the case of State of Louisiana v. Pilsbury,
[21] In Succession of Pipitone,
[22] So, where the object of an act is fairly expressed in its title, this requirement of the constitution is fully satisfied.
[23] There is no question but that the title of Act No.
[24] The learned trial judge, while recognizing our basic law with respect to this constitutional provision is as above set out, concludes, nevertheless, that the act is unconstitutional because its title not only fails to indicate its object, but is actually deceptive, in that its title declares its object is to continue the commission form of government for the city, as provided for in Act no. 159 of 1912, while the body of the act actually establishes an aldermanic form of government.
[25] In order to properly dispose of this issue, it is necessary to show the characteristic features that distinguish these two forms of municipal government.
[26] Under the aldermanic form of government, the executive and administrative affairs of the city are generally in the hands of an executive officer, usually a mayor, and the legislative power is vested in a separate and distinct body, commonly referred to as a board of aldermen or councilmen, while the characteristic feature of the commission form of government is the delegation ofall of these powers and authority to a single board consisting of a mayor and a limited number of other officers. Or, as succinctly stated in the annotation to be found at 67 A. L. R. 737, the distinctive feature of the commission form of government "so far at least as constitutional questions are concerned, is the combining in one body of executive and legislative functions, in place of the separation and consequent division of responsibility formerly existing under the old form of mayor and aldermen, or councilmen."
[27] It is generally conceded that there is no hard and fast rule that can be laid down with reference to defining the commission form of government as it exists throughout the municipalities of this country today, since so many of its features are to be found in these progressive times incorporated in other forms of municipal government that are offshoots of the original commission form of government. Unquestionably, however, if the administrative, executive, and legislative powers are all centered in one compact organization or board, varying in number from three to seven (there are seven in Grand Rapids, Michigan), then the true test of commission form of government has been met. In other words, this group not only legislates, as do the aldermen under the aldermanic form of government, it also carries out its own legislation and it not dependent upon another officer or body of officers to do so. McQuillin, in his work on "Municipal Corporations," says: "Doubtless the commission form is, in some measure, a direct result of the conception that municipal government is merely a business question, and therefore, it should be conducted in substantially the same manner as a large business corporation, that is, the conduct of the affairs of the local government should be assimilated as far as practicable to the most efficiently managed private business." Vol. 2, page 523, Section 9.20. See, also, 19 R.C.L. 745, Section 51; 2 McQuillin 506, Section 9.17.
[28] It is obvious, therefore, that the characteristic feature of the commission form of government is not the election of its commissioners at large, or in any other particular manner, but, instead, that all municipal powers be delegated to a single board, in much the same manner as the power to administer a private corporation is given to its board of directors.
[29] Speaking of the form of government under which New Orleans was administered after the passage of Act No.
[30] "Several outstanding features of the government of New Orleans warrant considerable attention and criticism.
[31] "Commission government was superimposed upon the mayor council plan of government without changing the old structural features and forms prevailing under the latter system.
[32] "Commission government was not really adopted in its entirety. The Commissioners, individually and collectively, exercise only a portion of the municipal powers. The existence of numerous boards, commissions, and ex-officio bodies prevent commission responsibility, individually or collectively, although there is little question that they exercise enormous power in their personal capacities.
[33] "The board and commission system for the performance or supervision of particular functions was retained in its entirety, notwithstanding the fact that commission government is supposed to do away with such bodies and vest full authority and responsibility for the affairs of the city in the commission."
[34] This form of government was not changed by the amendments of 1936, Act No. 338 and 1946, Act No. 301, and the Bureau of Governmental research in making recommendations for the improvement of the city government of New Orleans in 1946 referred to it as "hybrid."
[35] The only change Act No.
[36] The provisions of Act No.
[37] "The commission council shall have and possess and shall exercise all executive, legislative and other powers or duties now had and possessed and exercised by the commission council of the city of New Orleans. The commission council shall have the authority to take over, administer, possess and exercise all executive and legislative powers and duties heretofore had, possessed and exercised by all other legislative and administrative officers handling or vesting with any department or subdivision of government within the city of New Orleans, whether herein specifically enumerated or not, it being the intention that all the powers and duties of government in the city of New Orleans or parish of Orleans and the control of all real public property, and all the powers and duties of boards and commissions other than those provided for by the constitution shall be transferred and vested in the city of New Orleans, but the commission council may subsequent to the effective date of this act reestablish and delegate to such boards and commissions duties, obligations and responsibilities that may be set forth in proper ordinances. * * *."
[38] It is clear, therefore, that Act No.
[39] The case of Pillans v. Hancock,
[40] Actually, prior to the enactment of the amending act the Alabama court was considering in the Pillans case, the City of Mobile functioned under a commission form of government, though its councilmen, termed aldermen, were elected by the votersof the respective wards. Under the amending act the ward representatives, although termed commissioners and selected from the respective wards, were to be elected by the voters of thecity at large. The contention was made that the amending act was unconstitutional because the legislature had actually substituted an aldermanic form of government in cities having a certain population for the commission form of government, without such change being expressed in the title of the act, and the court upheld this contention for the reason that under the amending act "The governmental functions * * * are not consolidated in the entire governing board, the executive functions are given to the mayor, and the legislative functions are given to the so-called commissioners." During the course of the opinion the Supreme Court of Alabama quotes with approval the following comment from the General Statistics of Cities, 1915, issued by the Department of Commerce, Bureau of Census, of the United States: "The term `commission form of government' is ageneric one, and employed in referring to the government ofcities administered by a small number of officials exercisingboth legislative and executive authority." (Italics ours.)
[41] As to the other attacks upon the constitutionality of the act, we find that the trial judge in his written reasons for judgment has disposed of all of them except one, not mentioned in the opinion, adversely to the plaintiff's contention and, we think, correctly so. We therefore adopt his reasons for so ruling, which may be stated to be substantially as follows:
[42] Where an act or a section of an act has been amended a number of times, it is not necessary, in making a subsequent amendment, that the act refer to the intervening amendments in either its title or body. They are considered to be nothing more than surplusage. For this reason, it is unimportant that the body of Act No.
[43] Nor is it necessary that a section be repeated in its entirety when only certain paragraphs or subdivisions thereof are being amended and reenacted. It was not necessary, therefore, that Section 4 be reenacted and published as a whole although only subparagraphs (i) and (k) were being amended. Board of Penitentiary Commissioners v. Spencer,
[44] Since there is no government for the Parish of Orleans, the provision of the constitution to be found in Section 3 of Article XIV to the effect that "The Legislature shall provide optional plans for the organization of parochial government, and any parish may change from one plan, so prescribed, to another, when authorized by a majority of the electors voting at an election held for such purpose", has no application to the case at bar.
[45] The attack levelled at the constitutionality of this act that was not mentioned by the trial judge, i. e., that the provision making the amendments effective at the termination of the present term of the incumbent officials of the city is not indicated in the title of the act, although urged in the city's answer to this appeal, has apparently been abandoned because it was argued neither orally nor in brief by the city. In any event, there is no merit to this attack. See, Ricks v. Department of State Civil Service,
[46] Having concluded that the act is constitutional, we now pass to the city's alternative plea, that is, that Act No.
[47] It is the city's contention that these two acts, although adopted at the same session of the legislature and purportedly amending and re-enacting Sections 4, 9, and 12 of Act No.
[48] "Where it is possible to do so, it is the duty of the courts, in the construction of statutes, to harmonize and reconcile laws, and to adopt that construction of a statutory provision which harmonizes and reconciles it with other statutory provisions. A construction of a statute which creates an inconsistency should be avoided when a reasonable interpretation can be adopted which will not do violence to the plain words of the act and will carry out the intention of (the legislative body) Congress. These rules are particularly applicableto statutes passed at or about the same time, or at thesame session of the legislature, since it is not to be presumedthat the same body of men would pass conflicting and incongruousacts." 50 Am.Jur. 367, Section 363. (Italics and brackets ours.)
[49] In the case of State v. Shushan,
[50] In the first place, it may be noted that even though these acts were passed by the house and senate and signed by the governor at different times, they, nevertheless, under the express constitutional provision to be found in Section 27 of Article III became law at one and the same time, that is, at 12:00 noon on the 20th day after the adjournment of the legislature.
[51] Secondly, we have no difficulty in ascertaining the legislature's motive for adopting both of these acts and in concluding that they in no way conflict one with the other.
[52] The object of Act No. 351 as expressed in its title is to amend and re-enact the designated sections and subparagraphs of Act No.
[53] "Section 12. Distribution of Powers — The Mayor shall be Commissioner of the Department of Public Affairs, and thepresent members of the Commission Council of the City of NewOrleans who were serving on June 15, 1948, as Commissioner of theDepartment of Public Safety, Commissioner of the Department ofPublic Utilities and Commissioner of the Department of PublicProperty are hereby respectively assigned to the Departments ofwhich they were the heads on June 15, 1948, and the assignmentsherein made shall not be changed before the expiration of theterms for which the commissioners in office on June 15,1948, were elected. * * *"
[54] It is perfectly obvious, therefore, that the legislature intended by the enactment of Act No.
[55] Act No. 234, on the other hand, was obviously intended to make the changes in the structure of the municipal government heretofore described, which changes are to take effect only at the time the successors to the commissioners who are frozen in their offices by Act No.
[56] By giving these two acts this interpretation, we not only give full effect to both, but we also give effect to each and every section and subsection of Act No.
[57] To hold as contended by the city would result in ridiculous and absurd consequences. By way of illustration, let us concede for the sake of argument that the provisions of Act No.
[58] For the reasons assigned, the judgment appealed from is annulled and set aside and it is now ordered and adjudged and decreed that the plaintiff's suit be dismissed.