MacOn v. CostaMacOn v. Costa
Eugene MACON
v.
Louis COSTA.
Supreme Court of Louisiana.
*807 Mack E. Barham, David A. Marcello, Barham & Churchill, New Orleans, for applicants.
Thomas W. Tucker, New Orleans, for respondents.
CALOGERO, Justice.
In December of 1979, the former Governor of the State of Louisiana appointed plaintiff, Eugene Macon, to a position as a member of the Board of Commissioners of the Orleans Levee Board. In October of 1980, the present Governor, who assumed office on March 10, 1980, appointed defendant Louis Costa to the same levee board position. After taking his oath, Costa attempted to replace Macon, who thereupon filed this injunction suit. From a judgment *808 granting a preliminary injunction in plaintiff Macon's favor, defendant Costa appealed. The Court of Appeal,
The issue before us is whether Macon's December, 1979, appointment and term of office are controlled by the general provisions of
Plaintiff contends that
For the reasons which follow we determine that
A review of the two statutes (
Section 2.... the Governor shall immediately upon the passage of this act, appoint five persons, possessing all the requisites of a qualified elector in said parish [Orleans] to serve as commissioners of said district [Orleans Levee District], who shall hold said office for a term of four years and until their successors are appointed and qualified; and in case of vacancy by death, resignation or inability to act, such vacancy shall be filled by appointment by the Governor. The other Commissioners shall be ex-Officio the Mayor and one other member of the Commission Council of New Orleans, designated by said Commission Council, forming thus a board of seven members.[2]*809La.R.S. 38:1233 was thereafter amended and reenacted in 1979. The text of that Act, No. 523 of 1979, is found later in this opinion along with a discussion of its effect.
The origin of
Section 1. A. A levee system, as now organized or as hereafter created, shall be maintained.
B. Notwithstanding any other provision in this Constitution or of any law to the contrary, every vacancy, whether for death, resignation, expiration of term or for any other cause, occurring on any present or future board of commissioners of any levee district now or hereafter created in this state shall be filled in the manner hereinafter provided.
Vacancies occurring for any cause including the expiration of the term, shall be filled by appointment by the Governor from panels submitted as follows; each member of the House of Representatives representing a parish or part of parish lying within a levee district shall submit one name for each vacancy to be filled from the parish which he represents in the Legislature; each member of the Senate shall submit one name for each vacancy to be filled from the parish or parishes within the district which he represents in the Legislature. In making appointments, the Governor shall not appoint any individual to a seat on the board of commissioners to represent a specific parish who was not recommended by one or more of the legislators who represent that specific parish in the Legislature.
The terms of any and all members now serving on levee boards shall expire on January 1, 1967, and new commissioners shall be appointed to fill any and all vacancies created by the expiration of their terms in the manner hereinabove provided. All members of the boards of commissioners of levee districts shall have terms concurrent with that of the Governor appointing them.
C. The provisions of this Section shall apply to all boards of commissioners of all levee boards whether created or provided for by this Constitution or by the Legislature.
D. The provisions of this Section shall be self-operative and shall require no further or other legislation. (Emphasis provided.)
This provision of the 1921 Constitution, as amended in 1966, thus declared that all members of boards of commissioners of levee boards would have terms concurrent with that of the governor appointing them. Subsection C also stated that these provisions would apply to "all boards of commissioners of all levee boards ...." There was no Orleans Parish or other exception in the constitutional provision. The article established the terms of all the members of levee boards throughout the state "(n)otwithstanding any ... law to the contrary...." (Subsection B), and the provisions of this Section were declared to be self-operative requiring no further or other legislation (Subsection D).
A subsequent general statute dealing specifically with a particular subject supersedes and repeals inconsistent and conflicting provisions in an earlier statute.[3]*810 Even more pertinent to this case, constitutional provisions by their superior nature need not specifically "repeal" extant conflicting statutes. As the Second Circuit Court of Appeal expressed in Fullilove v. U.S. Casualty Company of New York,
Contrary to the conclusion reached by the Court of Appeal, this constitutional amendment did indeed nullify or effectively repeal any and all conflicting statutory provisions then in existence. Those provisions of
In 1966 when Article XVI, § 1 of the 1921 Constitution was amended, January 1, 1967, was fixed as the concluding date for the terms of the Orleans Parish Levee Board members then serving, as well as for the terms of all other levee board members then serving throughout the state of Louisiana. Members of all levee boards were thereafter to be appointed by the governor to terms to run concurrently with that of the governor appointing them. While there may have been some confusion about the Orleans Levee Board composition and terms of office following the 1966 constitutional amendment in the minds of some,[5] there were also those who understood the clear effect of the constitutional change.[6]
Since the 1966 constitutional amendment did not specifically repeal
When Article XVI, § 1 of the 1921 Constitution as amended in 1966 was continued as a statute by Article XIV, § 16 of the Constitution of 1974, and placed in statutory form by Act 99 of 1975, and later statutorily amended, the Orleans Levee Board's size (seven members), its composition (all seven gubernatorial appointees) and terms of office ("concurrent with that of the Governor appointing them," and later "at the pleasure of the Governor") were continued.[8]
The Orleans Levee Board thus consisted of seven members (
Act 256 of 1977 amended and changed
In 1979, both of the conflicting statutes were amended. Act 676, relating to
AN ACT
To amend and reenact Section 1233 of Title 38 of the Louisiana Revised Statutes of 1950, relative to the appointment and term of commissioners of the Orleans Levee District, vacancies, and ex officio commissioners, and otherwise to provide with respect thereto.
Be it enacted by the Legislature of Louisiana:
Section 1. Section 1233 of Title 38 of the Louisiana Revised Statutes of 1950 is hereby amended and reenacted to read as follows:
§ 1233. Appointment and term of commissioners; vacancies; ex officio commissioners:
The governor shall appoint five persons possessing all the requisites of a qualified elector in the parish, to serve as commissioners of the district, who shall hold the office for a term of four years and until their successors are appointed and qualified. In case of vacancy by death, resignation, or inability to act, the vacancy shall be filled by appointment by the governor. The other commissioners shall be ex officio the mayor or an executive employee of the mayor's office, and one other member of the City Council of New Orleans, designated by the council, forming a board of seven members.
Section 2. If any provision or item of this Act or the application thereof is held invalid, such invalidity shall not affect other provisions, items, or applications of this Act which can be given effect without the invalid provisions, items, or applications, and to this end the provisions of this Act are hereby declared severable.
Section 3. All laws or parts of laws in conflict herewith are hereby repealed. (Emphasis provided.)
Since Act 523 of 1979 (amending and reenacting
Of course, since the two statutes are laws in pari materia, they should be reasonably construed together, if possible. La.C.C. art. 17. However, where there is an irreconcilable conflict, one statute must prevail. Upon passage of Act 523 in 1979,
We therefore conclude that
Because Macon was appointed in December, 1979 to a four year term fixed by law (four years and until his successor should be appointed and qualified) he was not subject to removal by the Governor who took office in March of 1980, because of the prohibition in Article IV, § 5(I) of the 1974 Louisiana *814 Constitution (see footnote 1 hereinabove).[16] The trial court judgment granting a preliminary injunction in Macon's favor was correct.
Decree
For the foregoing reasons the judgment of the Court of Appeal is reversed and the judgment of the trial court reinstated.
REVERSED; TRIAL COURT JUDGMENT REINSTATED.
LEMMON, J., dissents.
BLANCHE and MARCUS, JJ., dissent and assign reasons.
BLANCHE, Justice (dissenting).
The decision in this case rests upon the reconciliation of two statutes which seem to conflict with one another.
R.S. 38:281(D), in pertinent part provides, as it did in 1979, that "All members of the boards of commissioners of levee districts shall serve at the pleasure of the governor."
R.S. 38:1233, governing the Orleans Levee District, as amended and re-enacted in 1979 provides:
The Governor shall appoint five persons possessing all the requisites of a qualified elector in the parish, to serve as commissioners of the district, who shall hold the office for a term of four years and until their successors are appointed and qualified. In case of vacancy by death, resignation, or inability to act, the vacancy shall be filled by appointment by the governor. The other commissioners shall be ex officio the mayor or an executive employee of the mayor's office, and one other member of the City Council of New Orleans, designated by the council, forming a board of seven members. (emphasis added.)
According to the official comments to the Louisiana Revised Statutes, the 1979 amendment added the words "or an executive employee of the mayor's office"; the amendment did not make any other change. Moreover, the record indicates that the Senator who introduced this amendment in the legislature testified that the only reason the legislature amended the statute was in order to allow the mayor of New Orleans to appoint a delegate to attend the levee board meetings. Keeping this legislative intent in mind, it is important to review the history of the two statutes in question.
Section 281 began as a 1966 Amendment to the Louisiana Constitution of 1921. That amendment provided, in pertinent part, that all levee board members were appointed for terms "concurrent with that of the governor." At that time, § 1233 provided that Orleans levee board members would serve for four year terms. As the majority explains "The Constitutional article prevailed over those portions of the statute in conflict therewith." There is a difference, however, between "prevailing" over something and "excising" it. The majority seems convinced that the provisions of § 1233 which conflicted with the constitutional provision were repealed. This simply did not occur; the conflicting language remained in the statute and remains today. In a question as to which provision would control, a court in 1967 could not have read the language out of § 1233; it would simply *815 have concluded that the constitutional language controlled.
In 1975, this constitutional provision was enacted as R.S. 38:281, pursuant to the adoption of the 1974 Constitution. Although the statute contained no repealer clause, it tracked the pertinent language of the constitutional article. I agree with the majority that the construction of the constitutional provision remained the same when it was thus implemented as a statute. In 1977, § 281 was amended to change the term of levee board officers from concurrent with the governor to "at the governor's pleasure." Nothing else was changed, and it continued to prevail over the contradictory language of § 1233.
In 1979, both of these statutes were amended. The amendments to § 281 were of subsections which are not at issue. The amendment to § 1233 merely added the words allowing the mayor to appoint a delegate in his stead. Act 523 of 1979, which amended and re-enacted § 1233, contained the usual repealer clause, as quoted in the majority opinion. According to the majority, the legislature enacted a statute different from § 281 and, therefore, changed the law pertaining to the Orleans Levee Board. It is this new and "different" statute which they rely upon in reaching the conclusion that Macon was appointed for a legislatively fixed four-year term. The language of Act 523 makes it clear, however, that § 1233 was re-enacted. The language of the statute is identical to that of its predecessor except for the addition provision discussed above. "Law is a solemn expression of legislative will." La.C.C. art. 1. Since that is true, it is incumbent upon this court to give full consideration to the legislative intent in writing the law:
The universal and most effectual way of discovering the true meaning of a law, when its expressions are dubious, is by considering the reason and spirit of it, or the cause which induced the Legislature to enact it. La.C.C. art. 18.
In this case, uncontradicted testimony indicates that the legislature never even considered creating an Orleans levee board different in any sense from what had previously existed, except that the mayor would not have the authority to send a representative in his place. Had the Legislature intended to repeal § 281 as it applied to the Orleans board, it would have expressly done so.
The job of the courts is to give effect to the laws. A law is not to be declared impliedly repealed unless "irreconcilable" with "new" law. La.C.C. art. 23. This being true, I would give effect to both statutes by interpreting them in pari materia: the terms of office of the Orleans levee board are for four years (
MARCUS, Justice (dissenting).
I do not consider Act 523 of 1979 impliedly repealed
NOTES
Notes
[1] Article IV § 5(I) of the 1974 Constitution provides:
Removal Power. The governor may remove from office a person he appoints, except a person appointed for a term fixed by this constitution or by law.
[2] There were prior versions of Act 97 of 1928. The Section originated in Act 93 of 1890 which set up a nine member board: seven were appointed by the governor; four were to serve three year terms; three were to serve six year terms and until their successors were appointed and qualified. The mayor and a commissioner of public works of New Orleans were ex officio members. By Act 137 of 1920, the governor was given authority to appoint seven persons "to serve during the term of the Governor as Commissioners of said District." They were subject to removal by the governor for cause which had to be set forth in writing. Act 234 of 1924 again stated that seven persons would be appointed; four would serve for three years and three would serve for six years and until their successors were appointed and qualified. After declaring in 1920 that the appointees would serve terms concurrent with that of the governor, in 1924 the legislature returned to the language providing a definite term of office. The 1928 amendment retained the language setting up a definite term of office although that term was fixed for all the appointed members at four years.
[3] A law is impliedly repealed only "when the new law contains provisions contrary to, or irreconcilable with those of the former law." La.C.C. art. 23. A special law can be repealed or amended by a subsequent general law only when the two laws cannot stand together. See Wenk v. Anisman,
Repeal by implication occurs when an act not purporting to repeal any prior act is wholly or partially inconsistent with a prior statute or covers the subject of a prior act or section and is a substitute act. On the basis that the latest declaration of the legislature prevails, the inconsistent provisions of the prior statute are treated as repealed, (footnotes omitted.) 1A Sutherland, Statutory Construction § 22.22 (3rd ed. 1972).
[4] We find no basis for the Court of Appeal statement that Article XVI, § 1, as amended by Act 545 of 1966, applied only to appointed members of the board and did not affect ex officio memberships.
[5] For instance, Governor McKeithen chose to appoint John D. Lambert, New Orleans City Councilman to the Orleans Levee Board in 1973. He was an office holder who by designation of the New Orleans City Council might also have qualified as an ex officio member. Furthermore, the attorney general issued two opinions, No. 80-19 (January 10, 1980) and No. 80-1050 (August 20, 1980) expressing his view that even after the 1966 constitutional amendment to La. Const., 1921, art. XVI, § 1, the Board was to be composed of the five gubernatorial appointees and two ex officio members, as set out in
[6] For example, in 1971 correspondence, Mr. Dan McGovern, general counsel for the Orleans Parish Levee Board, stated to the Secretary of State that the listing of two ex officio members was incorrect. McGovern stated that Act 545 of 1966 adopted by the public as a constitutional amendment on November 8, 1966, changed the existing law. According to McGovern's letter, all members of the Orleans Levee Board after 1966 had to be appointed by the governor pursuant to Constitution Article XVI, § 1; the ex officio memberships were eliminated; all terms would expire with that of the governor.
[7] In Gorham v. Mathieson Alkali Works,
The general rule is that when later acts do not specifically repeal earlier statutes on the same subject matter, they have the effect of superseding such previous laws only insofar as the provisions of the earlier acts are in conflict with the later expression of the legislative will.
[8]
. . . . . .
C. Notwithstanding any law to the contrary, every vacancy now, or hereafter created, whether by reason of death, resignation, expiration of term, or any other cause, occurring on any levee district now shall be filled by the governor from panels of names submitted as follows: each member of the House of Representatives representing a parish or part of a parish lying within a levee district shall submit one name for each vacancy to be filled from the parish which he represents in the legislature, and each member of the Senate shall submit one name for each vacancy to be filled from the parish or parishes within the district which he represents in the legislature. In making appointments the governor shall not appoint any person to the board of commissioners to represent a specific parish who was not recommended by one or more of the legislators who represent that specific parish in the legislature.
All members of the boards of commissioners of levee districts shall serve terms concurrent with that of the governor appointing them.
The provisions of this Subsection apply to all boards of commissioners of all levee boards. (Emphasis provided.)
[9]
[10] The language of
[11] Defendant argues that the legislative intent was not so sweeping, and he directs our attention to an affidavit of one of the Senators. The understanding of one member of the Legislature is not determinative of legislative intent. Arata v. Louisiana Stadium and Exposition District,
[12] In State v. Bergeron,
[13] Although repeals by implication are not favored, Gulf Oil Corp. v. State Mineral Board,
Jurisprudentially a law or statute is impliedly repealed only when its provisions are contrary to, or irreconcilable with the later enactment. Smith v. Trosclair,
[14] Likewise where a later statute adapted for a particular locality conflicts with a general law of state-wide application, the special or local law will supersede the general enactment. Where, however, the later special or local statute is not irreconcilable with the general statute to the degree that both statutes cannot have a coincident operation, the general statute will not be repealed, but the special or local statute will exist as an exception to its terms. (footnotes omitted.) 1A Sutherland, § 23.16 supra.
[15] The fact that we find this levee board appointment was provided for by statute answers defendant's alternative argument as presented in the lower courts. Defendant contended that if Macon had been validly appointed, his term ended at the end of the legislative session of 1979-1980 since plaintiff's appointment was not confirmed by the Senate. Article IV, § 5(H)(1) of the 1974 Constitution provides:
The governor shall appoint, subject to confirmation by the Senate, the head of each department in the executive branch whose election or appointment is not provided by this constitution and the members of each board and commission in the executive branch whose election or appointment is not provided by this constitution or by law. (Emphasis provided.)
Since Macon's appointment was provided for by law, i.e.
[16] We distinguish Troxler v. Mongrue,