Salvador J. Lentini, Marshal of Kenner, Louisiana, instituted proceedings against the City of Kenner, its Mayor and Board of Aldermen
The City of Kenner has a Mayor-Board of Aldermen form of government provided by the Lawrason Act, LSA-R.S. 33:321 et seq. The Mayor, Aldermen, and Marshal are elected officials. The Mayor and the Board of Aldermen exercise the governmental powers of the municipality, LSA-R.S. 33:362, and are ultimately responsible for policing the City, LSA-R.S. 33:401 subd. A(6), 402(4), and 404. In addition, LSA-R.S. 33:401, subd. A(30), gives the Mayor and Aldermen authority to prescribe duties and fix compensation of all officers and employees, "subject to any applicable civil service law."
The Legislature, in LSA-R.S. 33:423, specifically provided: "The marshal shall be ex-officio a constable. He shall be the chief of police and shall perform all other duties required of him by ordinance." The duties and powers of the chief of police are defined neither by statute or jurisprudence. Because of the nature of his office, however, he is the chief law enforcement officer of the City and, as such, has supervision of the police department.
On November 14, 1966, the Board of Aldermen adopted Ordinance 936. Contested Sections IV and V provide:
"SECTION IV. Duties of Marshal and Chief of Police.
(a) The central complaint desk and of dispatching of police records.
SECTION V. Duties of the Police Captain (Senior in length of service under Civil Service Laws).
Plaintiff contends Section IV of the ordinance curtails his inherent powers, because it restricts his duties to those enumerated in the section. In requiring that he personally investigate all felonies, the section precludes the assignment of other personnel to make such investigations. A further divestiture of authority, he contends, occurs in Section V, which gives the Police Captain the duties of making all personnel assignments and of having charge of all city police property.
The defendants, on the other hand, contend that Section IV assigns only additional duties to the Marshal, which the Aldermen are authorized to do under the provisions of LSA-R.S. 33:423. They further assert Section V does not reduce the Marshal's supervisory power over the police department.
Holding the ordinance stripped the Marshal of his inherent powers as Chief of Police, the district court said:
In reversing the district court, the Court of Appeal conceded the inherent powers of the Chief of Police could not be divested by Ordinance, but stated:
We agree with the district court.
Section IV of the ordinance enumerates nine specific duties of the Marshal, including the duty of personally investigating all felonies. Nowhere in the ordinance do we find language indicating these prescribed duties are nonexclusive or additional. Hence, as we construe it, the section is restrictive.
Section V specifically vests the power of making personnel and division assignments in the Police Captain. It also gives the Police Captain charge of all city police property. Although defendants contend the Police Captain will perform these duties under the supervision of the Chief of Police, we find no language in the ordinance reserving this supervisory authority. The language of the ordinance, by which we are bound in our consideration of this case, deprives the Chief of Police of his authority to control the property and assign personnel in the police department.
We conclude, as did the district court, these sections of the ordinance divest the power and authority of the Marshal as Chief of Police.
Municipalities derive their powers from the State. Being creatures of this higher authority, they cannot legislate beyond the bounds fixed by the State Constitution and general laws. Randolph v. Village of Turkey Creek, 240 La. 996, 126 So.2d 341. We have found no state statute authorizing the Board of Aldermen to revoke the inherent powers of the Marshal. Hence, the contested sections are ultra vires acts of the Board of Aldermen and, as such, are null and void.
Defendants contend, however, that an injunction should not issue, because they have performed no overt act to enforce or execute the ordinance. LSA-C.C.P. Article 3601 provides that an injunction shall issue when irreparable injury, loss, or damage may otherwise result to the applicant. Without injunctive relief, the plaintiff would be in the dilemma of violating the ordinance or abandoning the powers of an office to which he has been duly elected. The enactment of the ordinance, in our opinion, is sufficient to justify injunctive relief. See Connell v. Commission Council of City of Baton Rouge, 153 La. 788, 96 So. 657; Adams v. Forsyth, 44 La.Ann. 130, 10 So. 622; and State ex rel. Forsyth v. Ellis, 42 La.Ann. 1104, 8 So. 305.
For the reasons assigned, the judgment of the Court of Appeal is reversed, and the judgment of the district court is reinstated and made the judgment of this Court.