MacOn v. CostaMacOn v. Costa
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
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
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
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
Since the 1966 constitutional amendment did not specifically repeal
When
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.
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
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.
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
In 1975, this constitutional provision was enacted as
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.”
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.
MARCUS, Justice (dissenting).
I do not consider Act 523 of 1979 impliedly repealed
Notes
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.
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, 211 La. 641, 30 So.2d 567 (1947); McManemin v. Bossier Parish Police Jury, 228 So.2d 36 (La.App. 2d Cir.1969), cert. denied 255 La. 240, 230 So.2d 91.
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).
In Gorham v. Mathieson Alkali Works, 210 La. 462, 27 So.2d 299, 304 (1946), this Court stated:
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.
. . . . . .
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.)
Although repeals by implication are not favored, Gulf Oil Corp. v. State Mineral Board, 317 So.2d 576 (La.1975); Liter v. City of Baton Rouge, 258 La. 175, 245 So.2d 398 (1971), the Louisiana jurisprudence states that when there is irreconcilable conflict between two statutes a repeal by implication is effected. Legros v. Conner, 212 So.2d 177 (La.App. 3d Cir.1968). “When a subsequent enactment covering a field of operation coterminous with a prior statute cannot by any reasonable construction be given effect while the prior law remains in operative existence because of irreconcilable conflict between the two acts, the latest legislative expression prevails, and the prior law yields to the extent of the conflict.” 1A Sutherland, § 23.09, supra.
Jurisprudentially a law or statute is impliedly repealed only when its provisions are contrary to, or irreconcilable with the later enactment. Smith v. Trosclair, 321 So.2d 514 (La.1975). See also State v. Jones, 220 La. 381, 56 So.2d 724 (1952).
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. La.R.S. 38:1233, the appointment is valid without Senate confirmation. Incidentally, defendant Costa‘s appointment was not confirmed by the Senate, either.