32 La. Ann. 1200 | La. | 1880
The opinion of the Court was delivered by
The question submitted for solution in the above consolidated cases simply is :
If it was, then the relators have been duly elected and must be inducted into office.
If it was not, then the defendants, as actual incumbents, are entitled to hold over until they be otherwise superseded in their functions.
It is rudimentary that the existence of a law, providing for the time and manner of holding such an election, is essentially necessary for its validity.
Hence, two questions present themselves :
1st. Was there any law in force when the Constitution of 1879 went into operation fixing a day for the holding of municipal elections in New Orleans ? If there was such law, what was that day ?
2d. Was that law abrogated, or that day changed by that Constitution ?
If there was such law, and it fixed the 2d of November, 1880, and if it was not annulled or amended by the Constitution, then it was continued in existence, at least up to that time, and the election which took place on that day is not a nullity but is legal and valid.
If there was no such law, or if there being one, it fixed another day, or if the Constitution itself designated a different time from that on which the election was held, then that election is a nullity, is illegal and invalid.
A close scrutiny of the legislation on the subject now becomes necessary.
In 1870, the City of New Orleans, created in 1805, was reorganized. Under the provisions of Act 7 of that year (the present charter) the first mayor and administrators of the corporation were (sec. 4,) to be .appointed by the executive and to continue in office until the first Monday in November, 1870, or until their successors were elected and qualified. On the same first Monday in November there was to be an election for mayor and three designated administrators, whose successors were to be elected every two years thereafter.
On the first Monday of November, 1871, there was to be an election for the remaining four designated administrators, whose successors were likewise to be elected every two years thereafter.
In 1871 this section 4 was amended by Act No. 48, the second section of which provides : That elections for mayor and the several administrators of the City of New Orleans shall be held biennially, “at the time of the election for members of the General Assembly.”
This meant, under article 17 of the Constitution of 1868, which was
The amendment of section 4 of act 7 of 1870, by section 2d of act 48 of 1871, coupled with article 17 of the Constitution of 1868, which became a component part of it, then read substantially:
The election for mayor and administrators of the City of New Orleans shall be held biennially from 1870 on the first Monday of November.
In 1874 the Constitution of 1868 was amended, and the words, “first Monday,” found in article 17, were stricken out, and the words, “first Tuesday after the first Monday,” were substituted thereto, and became part of the article.
In 1877 (no doubt with a view to make the constitutional amendment more explicit and more extensively known), the Legislature passed Act No. 58, the second section of which provides that elections for representatives in the General Assembly shall be held on “the first Tuesday after the first Monday in November, 1878, and every two years thereafter.”
So that it is patent that there was a law in being on the first of January, 1880, when the present Constitution was promulgated, providing for a day for the holding of the election of mayor and administrators of the City of New Orleans, and that day was theytrsf Tuesday after the first Monday of Novembe 1 — that is, for the year 1880, the 2d of November, the day on which the election assailed was actually held, and on which the relators were actually elected.
There was passed since the 1st of January, 1880, no statute whatever on the subject.
It is, therefore, clear that, unless the law as it stood on the 1st of January, 1880, was abrogated or modified by the Constitution of 1879, it is still in force ; and, consequently, that the municipal election held on ¡the 2d day of November, 1880, is legal and valid.
The State and the relators claim that the law was not affected, while the defendants insist that if the law existed, which is denied, it was annulled by the Constitution of 1879.
The existence of the law once established, the burden was upon the defendants to show its abrogation or change.
The Executive of the State having issued a proclamation under that law for the holding of a municipal election, the officers designated by law having held that election, the qualified citizens having voted at that election, and the returns being in favor of the relators, they, having been commissioned and have qualified as mayor and administrators of said ■city, would have at once entered upon the discharge of their respective
The contention is that articles 191 and 192 are obnoxious to the ex- - istence of all legislation (if any) in force at the adoption of the Constitution of 1879, fixing, for the holding of a municipal election in New Orleans, a day different from that appointed by the first article; that the-Constitution having provided that the general election shall take place on “the Tuesday next following the third Monday in April,” and the act of 1871, as subsequently amended (if it exist), providing that municipal elections in New Orleans shall take place on the same day on which the-State election was to be held, the election which took place on the second of November, 1880, not having been held on the day appointed for a general election, is a nullity, and is productive of no effect.
The argument underlying that theory is that, if the act of 1871 prescribed a day different from that designated in article 191, it was thereby abrogated, and that if it appointed the same day it was disregarded, and that, in either case, the election held on the 2d of November, 1880, is a nullity.
The fallacy of the proposition consists in the assumption that articles 191 and 192 became at once operative upon the adoption of the Constitution of 1879, which superseded instantly not only the Constitution of 1868, which it was intended to destroy and replace, but also all laws in conflict with its own provisions.
If it be true that these articles are the only ones in the Constitution on the subject of municipal elections in New Orleans, and that they, went into immediate operation, at the adoption of the Constitution, the pretensions of the defendant would offer great plausibility; but, is it true that these are the only articles on the subject, and that they became instantly operative ?
They read as follows :
Article 191: “ Until otherwise provided by law, the general State election shall be held once in every four years, on the Tuesday next following the the third Monday in April.”
Article 192 : “ Parochial and the municipal elections in the Cities of' New Orleans and Shreveport shall be held on the same day as the general State elections, and not oftener than once in four years.”
We will now proceed to inquire into the object and meaning of the articles invoked, contrasted with others, in pari materia, and that being done, we will construe and expound them.
When the articles of a constitution are subjected to judicial analysis, and criticism for exposition, courts of justice are to be guided by the rules which the wisdom of men has prudently established and cautiously applied in the interpretation of all instruments, whether of a
The most important and salutary of these rules is, that the whole instrument must first be attentively surveyed, and that the purpose and intention of its authors must next be diligently searched, gathered and deduced from the entire context, so as to make all the parts appear and prove rational, harmonious, efficacious and uniformly conducive towards the practical accomplishment of the objects in view.
A general spirit necessarily pervades and animates the instrument. All matters pertaining to that spirit tenaciously adhere to it and should not be severed from it. All matters not strictly germane, but concordant, should be dealt with as auxiliary and subordinate to it. It 'matters little, or not at all, how irregularly its clauses may follow or precede one another. The important matter is that they be all well' understood and, when comprehended, that they be harmoniously construed, and, if possible, made to co-operate consistently, uniformly and1 prospectively towards a common end. Seeming differences or contrarities should be reconciled ; vitality, power and effect should given to every clause, every article, every phrase, every, word, every iota, which each and all have a particular, significant, determined import and object, so as, in preference, to maintain and enforce rather than nullify, paralyze and destroy. “ To know the law is not to grasp its words, but its force and power.” 9 A. 166 ; 13 A. 345 ; 4 R. 72 ; 3 M. 672 ; 31 A. 440 ; 32 A. 597 ; and authorities there cited. H. D. 264, 783.
There is no higher law, whether in the Constitution of the United States, which is intended, by delegated authority, to bind and protect all alike, or elsewhere, which requires that a State constitution shall be framed in an exceptional manner or form, or that the articles composing it shall be inserted or arranged in a special order. As long as such constitution upholds and promotes the ends of a republican government, and does not clash with the paramount law of the land, each and all the articles which it embodies are, and must be, as effective as if the State which it rules were a solitary, independent and recognized sovereignty.
When the members of the Convention assembled they had before them the lamentable condition of public affairs, as well of the State as of the parishes and municipal corporations within its limits.
The principal object which they contemplated, the main spirit which animated them, the controlling intention which impelled them, was the welfare of the people, and this they proposed to accomplish by a rupture, a divorce from the past whenever practicable, and the formation of an alliance with the future, fruitful of a new government, in the-
Indeed, they had specially before them the deplorable state of things in the city of New Orleans, which is the most important State functionary. They had before them the sacred rights and the legal obligations of the citizens, the appalling figure of the municipal debts and liabilities, the alarming depletion of a dilapidated treasury, the crushing depreciation of taxable property, a shameful extravagance of expenditures of public moneys, a scandalous exorbitance of salaries, and, in presence of these calamities, they resolved to create and apply, as far as practicable, effectual relief and adequate remedies.
Hence it is, that by article 253 the Constitution has guarded against an unjust legislative invasion and suppression of the rights of the citizens to a choice of the officers designated ; that by article 254 it directed the General Assembly at its next session, after the adoption of the Constitution, to enact proper legislation to liquidate the city indebtedness and apply the corporate assets to the satisfaction thereof, delegating authority to cancel the charter of the city, and remit its inhabitants to another form of government, if necessary; no salary then to exceed $3500 ; that by article 203 taxation was to continue equal and uniform, and by article 209 was to be limited ; that by article 268 the General Assembly was required to provide for a municipal election in 1880 in the city of New Orleans, or such municipal corporations as may be created within the territorial limits of the parish of Orleans during that year, provision being made thereby, at the same time, for a municipal election in the city of Shreveport, eventually, before April, 1884.
The Convention anticipated and assumed, as an accomplished fact, that the Legislature would carry out their directions and provide for a new government for the city of New Orleans, and for the election of offi•cers receiving reduced salaries. The fact is, however, that the General Assembly, towards the very close of its session, passed a bill intended to further those directions, but that the executive, for considerations which command themselves to the respect of all well-meaning citizens, considering that the measure was not calculated to execute those directions, abstained, in the exercise of a discretion vested by the Constitution, from approving it. The consequence has been that, at the adjournment of the Legislature, there existed no general legislation for the fulfillment of those directions, and, as a necessity, the previous condition of things has continued in operation as effectually as if the Constitution had proved altogether reticent in relation to the citizens, and to the affairs of the city of New Orleans.
We have searched in vain for any direct constitutional provision,
By articles 191 and 192 the Constitution directed that municipal elections in New Orleans must be held not oftener than once in every four years, on the Tuesday next following the third Monday in April, until otherwise provided by law; that being the day fixed for general State elections, and the Constitution so directed, coniingeni upon such general State election actually taking place.
The first general State election was not held on that day owing to article 262, which expressly dispenses with it hac vice, by providing that such election should take place on the first Tuesday in December, 1879, and the first municipal election in New Orleans was not held on this last mentioned day because of the positive prohibition forbidding it and which is contained in article 268.
The contingency of the actuality of both a general and of a municipal election in New Orleans on the same day under the present Constitution has not yet arrived, for the reason that the provisions relative thereto, and which were not intended to go then into effect, had remained and continued in suspense until April, 1884, or such other day as the Legislature may designate under article 191.
The term of service of the State officers chosen in December, 1879, was by article 265 to terminate as if they had been elected in April, 1880. They were thereby subjected to the operation of article 191 providing for an election in April. Article 268 having forbidden a municipal election in New Orleans in December, 1879, articles 191 and 192 did not bring such municipal election within their operation, and necessarily left them within the purview of the law in existence on that subject on the 1st of January, 1880, when the present Constitution was promulgated. The reason for which an election was authorized in 1880 was the expectation that the Legislature would give a charter to the city. As they did not do it, the whole law remained inoperative.
The convention did not intend that articles 191 and 192 should become instantly operative as to the City of New Orleans, as it emphatically provided by article 268 that the municipal election should not take place in December, 1879, but in 1880, on such day as the Legislature would appoint. The convention intended that those articles should control and affect, not the laws in force at the adoption of the Constitution, relative to municipal elections in New Orleans, but only such legislation
It was necessary that the Legislature should by statute have altered the laws in existence to change the day fixed for municipal elections in New Orleans. As the Legislature was not in any manner disturbed by those laws they remained unimpaired and were in full force and vigor when the election was held on the Tuesday after the first Monday in November.
Constitutions, like statutes, are to be construed by the same rules of interpretation.
Sedgwick on Constr. 19, 95, 161; Cooley, Const. Lim. 63 ; 10 Ohio N. S. 588 ; 3 Ind. 251; 21 N. Y. 12 ; Wade on Retroact. 1. 8, 289, 290, 325, 326 ; R. C. C. 1723, 1946 ; D. 1. L. 3 T. 1. 26, 28 ; 10 M. 172, 560 ; 12 M. 697 ; 1 N. S. 161; 2 N. S. 33 ; 3 N. S. 190 ; 5 N. S. 527, 575 ; 6 L. 135 ; 7 L.166; 4 R. 71; 1 A. 54 ; 2 A. 919 ; 3 A. 398 ; 5 A. 121, 395 ; 6 A. 605 ; 12 A. 805, 498.
The clear intention of the convention was that the charter of the city should be canceled or remodeled ; that its affairs should be liquidated and settled; that the government in esse should cease ; that a new city government should be organized and, under all and any circumstances, that there should be a municipal election in New Orleans in 1880, and that the officers to be entrusted with the administration of corporate affairs should be then elected for the purposes of such new government and should thereupon enter into office. It was not before then that these articles were to be operative. Until the happening of those events, those articles were to be and, owing to the non-occurrence of the same, they have remained and have continued to be dormant up to the present time.
It hence follows, that inasmuch as the law fixing the first Tuesday after the first Monday in November, as the day for a municipal election in New Orleans, was unimpaired on the second of November, 1880, which was that day, the election then held, took place on the day appointed by law, and is, therefore, legal and valid.
Furthermore: It cannot for an instant be supposed that the framers of the Constitution knew not that there were laws in force while they were deliberating on the spirit and substance, on the letter and ■ form of the organic law, and that those laws were and would continue to be consistent or inconsistent with the result of their labors; that they intended to override or nullify all of them instantly and to provide for a new system of legislation which was to be immediately self-operative upon the adoption of the Constitution, regardless of the state of things in existence or of consequences.
It is to be remarked, that in article 259 the word State is not prefixed to the words, “ government” and “officers,” which appear to have been used in their broadest and' most comprehensive sense, and the ■inference is that the article in that respect was intended to bring within its fold as well the State government, offices and officers, as the parochial and municipal governments, offices and officers, the officers being considered of, because in, the State, and that all restrictive sense was intentionally avoided. This conclusion is the more apparent, when it is considered that the convention intended to provide, and did actu.ally provide, by the Constitution, for the organization of such new government, not only for State but also for parochial and municipal purposes whenever needed and practicable.
The law fixing the first Tuesday after the first Monday of November as the day on which municipal elections were to be held biennially, from November, 1870, in the city of New Orleans, whether consistent or inconsistent with the Constitution, was, therefore, in force on January ’1st, 1880. If it was consistent, there can be no dispute that it continued in existence. If it was inconsistent, it also remained in force, ' because the two events which, under article 259, would have ended its ■life had not arrived :
1st. The city government which the convention expected the General Assembly to organize, in furtherance of the mandate contained in •article 268, was not provided for by legislation ; and
2d. The new officers to be elected for the purposes of such new ..government were not, and could not, have been elected and inducted into office.
If it be true that articles 191 and 192 were intended, under all con-itingencies, to become at once operative, then the law in existence on the 1st of January, 1880, fixing a day for the municipal elections in New •Orleans different from that named in article 191, was abrogated the moment the Constitution went into operation; then, in the absence of the legislation directed by article 253, the following article 254, which .gives to the citizens of New Orleans the right of choosing their officers, has become a dead letter ; then article 268, which provides for a municipal election in that city, is nullified ; then the city charter, with all its
It is manifest that, whether the law in question was consistent or inconsistent with the Constitution it was altered or abrogated neither by the Constitution at its adoption nor by any subsequent legislation ; that it was the law in force, fixing as the day for a municipal election in New Orleans the 2d of November, 1880, on which the election assailed took place, and that said election having been held on the day appointed by law, was legally held, and is therefore unquestionably valid and effective.
The law does not favor repeals by implication. So that it is not correct to say that the convention intended to make articles 191 and 192 at once operative, and that they actually so became.
To sanction the theories advanced by the defense in this case, would be to tear away and absolutely expunge from the Constitution and completely destroy some of its most wholesome and vital provisions, which should be respected and enforced, and incorporate in their place anti-republican, un-American, unjust, oppressive and odious clauses which were avowedly excluded from it; would be to vivify that which was lifeless, to deaden that which was quick in being; would be to transgress and violate every canon of interpretation, to stultify the wise delegates of the people in convention assembled, to arrogate to ourselves the power and might of judicial legislation by substituting irrational utopias to the solemn behests of the convention — consequences before which we stand aghast, and which, in duty bound, we absolutely decline to solemnize and consecrate.
. Construing, as we do, the Constitution of 1879, we make all its provisions under consideration appear rational, logical, concordant, efficacious and conducive to the judicial fulfillment of the important objects which its framers had in contemplation, and we leave the General Assembly unfettered and free under the organic law to legislate whenever, wherever and however they may deem advisable and proper — rspecially
In consequence of the views which we hold and announce, the municipal officers elected on the 2d of November last, are enabled at once to enter upon the execution of their mandate ; a new administration is inaugurated and laws heretofore in existence continue in force until repealed or amended by the Legislature.
The judgment of the lower court was in favor of the relators. It has made a sound exposition and application of the law, and so has done justice.
It is, therefore, ordered, adjudged and decreed that the judgment of the lower court, in the above consolidated cases, be affirmed at the costs of the appellants in both courts.
