Certiorari was directed to the Court of Appeal, First Circuit, for review of its judgment which affirmed in part the trial court's judgment—denial of prayer for injunctive relief and the issuance of a writ of mandamus—and reversed the judgment in part by declaring portions of Sections 2 and 3 of Act 216 of 1970 unconstitutional. Art. VII, Sec. 11, La.Const. of 1921; La.App., 239 So.2d 656; 256 La. 895, 240 So.2d 232.
The Legislature of 1970 passed Act 216, enacted into law on July 3, 1970, when signed by the Governor; it recites, in part:
"A. The nineteenth judicial district court shall have ten judges. * * *
In substance, the above act provides that three new judges will be elected at a special election to be called by the Governor to be held on a specified date; it also provides that the judgeships will be
On July 21, 1970, O. Romaine Russell, James C. Dixon and Gloria Gelpi (plaintiffs herein), appearing individually and as representatives of all of the duly qualified voters of the Parish of East Baton Rouge, brought this suit, in which they sought:
On July 30, 1970, the Governor issued a proclamation ordering a special election to be held on Tuesday, November 7, 1972, throughout the Nineteenth Judicial District, composed of the Parish of East Baton Rouge, for the election of the additional judges of said district.
Also on July 30, 1970, the Governor directed the Secretary of State to issue commissions as follows:
"Richard E. Burton, Baton Rouge, as Judge, Division H,
"Eugene W. McGehee, Baton Rouge, as Judge, Division I,
"Louis S. Quinn, Baton Rouge, as Judge, Division J,
"Nineteenth Judicial District
"(additional Judges created by Act 216 of 1970)"
On July 31, 1970, the trial court rendered judgment in which it declared Act 216 of 1970 constitutional and the appointments made pursuant thereto valid. The court overruled the dilatory exception of unauthorized use of summary proceeding, decreed that the alternative writ of mandamus issued July 24, 1970, be recalled and vacated, and ordered that the rule nisi issued July 24, 1970, ordering the defendant to show cause why a preliminary writ of injunction should not issue, be recalled and vacated.
Plaintiffs appealed, and in the Court of Appeal defendant waived his rights under the dilatory exception filed in the trial court; neither party questioned the mootness of the prayer for injunctive relief. The Court stated that the major question it had to meet was whether or not the Legislature had the constitutional authority to designate the manner in which the new judgeships are to be filled. It rendered a negative judgment, supra, and stated:
On certiorari in this Court, defendant assigns the following errors to the judgment of the Court of Appeal:
In an amicus curiae brief filed herein, the Assistant District Attorney, Second Judicial District, alleges:
(2) The Governor may appoint interim judges.
The Louisiana AFL-CIO, in an amicus curiae brief filed herein in support of defendant, alleges an additional error to those alleged by the defendant, supra; it recites:
Plaintiffs urge that the unanimous judgment of the Court of Appeal should be affirmed and defendant cast for all costs. Honorable Ford E. Stinson filed an amicus curiae brief in this Court in support of plaintiffs' contentions.
In arguing that the additional judgeships created by Act 216 of 1970 are "offices" created by the Legislature within the meaning of Section 11 of Article V of the Constitution, and that the Governor may make appointments to such offices, defendant relies on the case of State ex rel. Garland v. Guillory, 184 La. 329, 166 So. 94, Dec. 13, 1935, rehearing denied, January 6, 1936.
At the time the Guillory decision was rendered, Section 11 of Article V provided:
Section 33 of Article VII provided:
Section 34 of Article VII provided:
Act No. 3 of the Fourth Extra Session of the Legislature of 1935, effective October 1, 1935, rearranged the old Thirteenth and Fifteenth Judicial Districts. In Section 3 of the Act, it was provided that, "The Governor shall appoint a Judge and a District Attorney for the re-arranged Thirteenth District, to serve until their successors are elected. * * *"
The constitutionality of Act No. 3 of the Fourth Extra Session of 1935 was attacked in State ex rel. Garland v. Guillory, supra. The trial court held that Section 3 of the act was unconstitutional insofar as it provided for the appointment by the Governor of a judge in the rearranged Thirteenth Judicial District, instead of by election as provided by Section 33 of Article VII of the Constitution.
On appeal in the Guillory Case, this Court held (184 La., at p. 350, 166 So., at p. 100) that, "The Legislature having the specific constitutional authority conferred upon it by section 34 of article 7 of the Constitution to `increase,' or create new judges, in the rearrangement of the old Thirteenth and Fifteenth judicial districts, necessarily had plenary power to create a new judge for the rearranged Thirteenth judicial district, as well as a new judge for the rearranged Fifteenth judicial district, and to require that these judges be appointed by the Governor under the authority of section 11 of article 5, conferring upon the Legislature the constitutional right to `provide the mode of filling all offices created by it.'" The then Supreme Court further held (184 La., at 347, 166 So., at 99) that, "Section 34 of article 7 of the Constitution, as well as section 11 of article 5 of the Constitution, are express and special provisions or laws." It said:
In the body of the Guillory decision (184 La., at 338, 166 So., at 97) this Court stated, "In other words, under the present Constitution, a judge is the only public officer whose term of office or salary cannot be curtailed or affected by an act of the Legislature during the term or period for which he was elected, `except as otherwise provided in this Constitution,' which means, of course, that a judge may also be removed from office, during his term, by impeachment, or by address out of office, or by suit to remove from office
Within a few months after the Guillory decision, the Legislature of 1936 passed Act 67 which amended Section 33 of Article VII of the Constitution. The amendment gave appointive powers to the Governor when a new judgeship was created during the existing term of other judges of the district. The Constitutional Amendment, adopted November 3, 1936, recited:
"* * *
"* * *"
In 1954, the Legislature again amended Section 33 of Article VII, Act 754 of 1954, adopted November 2, 1954. The amendment changed the mode of filling newly created judgeships from appointment by the Governor to an election by the people at a special election called by the Governor.
A determination must be made as to whether the amended Section 33 of Article VII of the Constitution prevails and can be read together with Section 11 of Article V, supra, which has not been amended. A determination must also be made as to whether, despite the amendment of Section 33 of Article VII, the Governor can appoint temporarily new judges, as provided in Act 216 of 1970, by virtue of the power granted to him in Section 11 of Article V to appoint officers whose offices are established by the Constitution and whose appointment is not otherwise provided for in the Constitution.
"In construing a constitutional provision, it is the duty of the court to have recourse to the whole instrument, if necessary, to ascertain the true intent and meaning of any particular provision, and if there is an apparent repugnancy between different provisions, the court should harmonize them if possible. The rules of construction of constitutional law require that two sections be so construed, if possible, as not to create a repugnancy, but that both be allowed to stand, and that effect be given to each. 11 Am.Jur., Constitutional Law, § 53, pp. 661, 662." Meyers v. Flournoy, 209 La. 812, 25 So.2d 601. See, Central La. Elec. Co. v. Louisiana Pub. Serv. Comm'n, 251 La. 532, 205 So.2d 389. "The safest rule of interpretation is to look to the nature and object of the particular powers, duties and rights with all the lights and aid of contemporaneous history, and to give to the words such operation and force consistent with their legitimate purposes as may fairly secure and attain the ends proposed." State v. Roberson, 225 La. 74, 72 So.2d 265.
We find that the above constitutional provisions when read together are not repugnant to each other and can be enforced without material and substantial conflict. Meyers v. Flournoy, 209 La. 812, 25 So.2d 601.
Article VII of the Constitution treats of the Judiciary Department. Section 34 thereof grants the Legislature the power to rearrange judicial districts and to increase or decrease the number of district judges in any district. Section 33, as amended in 1954, provides for the election of district judges; as stated supra, it also provides that when the Legislature exercises the power granted in Section 33 by creating new judges, such judges shall be elected at a special election called by the Governor for the first term. No provision is made in Section 33 for interim appointments; it must be assumed that when the people voted for the amendment, they intended to exclude interim appointments. See, Stokes v. Harrison, 238 La. 343, 115 So.2d 373. We conclude that Sections 33 and 34 of Article VII pertain exclusively to the Judiciary; the election of district judges, Section 33, is provided for in a section of the Constitution other than Section 11 of Article V.
The Governor has many executive powers. Section 11 of Article V, the Executive Department, grants him wide powers of appointment. It does not, however, grant him the power to appoint for interim periods new district judges. As explained supra, their election is provided for elsewhere in the Constitution. Section 33 of Article VII and Section 11 of Article V are both operative and may be read together without conflict.
The Legislature of this State, unlike the Congress of the United States which can do nothing which the Federal Constitution does not authorize, may exercise any power not prohibited by the State Constitution. Bozant v. Campbell, and another, 9 Rob. 411. The Legislature is vested with absolute right of legislation, except when restricted by the organic
In this matter, the Constitution in Section 33 of Article VII, as amended in 1954, provides a method of filling newly created judgeships—election; the Legislature has provided a different method in part of Section 2 of Act 216 of 1970, supra—interim appointments by the Governor until election. The Constitution in Section 33 of Article VII recites that a special election shall be called for the election of new judges; part of Section 3 of Act 216 of 1970 sets a specific date for the election. Sections 2 and 3 of Act 216 of 1970 are therefore partially in conflict with the Constitution.
"Where the Constitution has provided the method of filling offices, the Legislature may not provide for filling them in any other manner." Bloomfield v. Thompson, 136 La. 519, 67 So. 352. Cf. Higginbotham v. City of Baton Rouge, 190 La. 821, 183 So. 168, aff. 306 U.S. 535, 59 S.Ct. 705, 83 L.Ed. 968.
We conclude that those portions of Sections 2 and 3 of Act 216 of 1970, supra, which are in conflict with Section 33 of Article VII can have no effect to alter the Constitution's mandate. Greater Livingston Water Co. v. Louisiana Public Service Comm'n, 246 La. 273, 164 So.2d 325. The Constitutional provision is free of ambiguity and expresses the Legislative intent. We must give it effect. Police Jury of Parish of St. Charles v. St. Charles Par. Waterworks Dist. No. 2, 243 La. 764, 146 So.2d 800.
We find that plaintiffs have borne their burden of demonstrating the partial constitutional infirmity of Sections 2 and 3 of Act 216 of 1970. Reynolds v. Louisiana Board of Alcoholic Bev. Con., 249 La. 127, 185 So.2d 794.
For the reasons assigned, the judgment of the Court of Appeal, First Circuit, is affirmed. All such costs in these proceedings as authorized by law shall be borne by defendant.
BARHAM, J., concurs for the reasons assigned by the Court of Appeals (239 So.2d 656).
"I would like to specifically call to the Court's attention that I was a member of the House of Representatives of the Louisiana State Legislature in the year 1954 and was also co-author of Act No. 754 of 1954 which has been quoted heretofore in this brief. At the time of the passage of this bill in the Legislature, I explained to the members of the House of Representatives that one of the purposes of the proposed Constitutional Amendment was good government, and that hopefully, this would be achieved, especially in view of the fact that it would prevent the Governor from having any control over a member of the judiciary as this Amendment would prevent the Governor from having appointive control for newly created judgeships. To the best of my knowledge and belief, there was no confusion or misunderstanding with any member of the Legislature at this time and Act No. 754 of 1954 was passed by the Legislature and ultimately approved by the people with the obvious intention of prohibiting the Governor from filling newly created judgeships by appointment.
"It is respectfully submitted that the decision of the First Circuit Court of Appeal of Louisiana should be affirmed."