Counsel for plaintiff has made a correct statement of the case and we adopt it:
Plaintiffs contend that the trial court erred in three particulars, namely; (1) in sustaining the exception of prematurity,
By Act 340 of 1962, which amended the Louisiana Orderly Milk Marketing Law (R.S. 40:940.1 et seq.), the legislature created the Louisiana Milk Commission. R.S. 40:940.16 spells out the membership and their qualifications. The Commissioner of Agriculture is made an ex-officio member and the governor appoints the other six members. Four of the six appointive members are required to have specific qualifications. Three members are required to be handlers (milk processors) and one member is required to be a milk producer (dairy farmer).
Plaintiffs J. Bert Davis, E. Leroy Miller and Lawrence D. Custer are the handlers of the commission and plaintiff W. Deloy Smith is the milk producer member.
The law provides that five members are required to constitute a quorum to conduct regular business, except however, that three members may conduct hearings on any matter where a transcript of the record is prepared before a decision is reached.
The trial court sustained the exception of prematurity as to the four members of the Milk Commission upon the ground that they must "first exhaust their administrative remedies before proceeding to enlist judicial assistance in the form of injunctive relief".
The Ethics Commission issued its Opinion No. 20, dated December 28, 1973, directing the Milk Commission to notify the Ethics Commission within 15 days of the receipt of the opinion "as to whether or not those members of the Milk Commission who are either handlers, producers, or retailers have either resigned their position as Commissioners on the Louisiana Milk Commission or, otherwise, have irrevocably divested themselves of any interest in the business generally regulated by the Louisiant Milk Commission".
The Milk Commission requested a stay of Opinion No. 20 until such time as the case of State of La. ex rel. William J. Guste et al. v. Louisiana Milk Commission et al., No. 9857 on the docket of the Court of Appeal, First Circuit, 297 So.2d 750, has been resolved. The Ethics Commission refused this request and stated that the 15-day limitation contained in its Opinion No. 20 continued to be operative.
Upon the refusal of the Ethics Commission to stay its proceedings pending the termination of the Guste case, supra, this suit was instituted on February 4, 1974. On February 5, 1974, the Ethics Commission called a public hearing and issued notices to the Milk Commission and the four Commissioners, who were industry representatives, that they had violated the Code of Ethics by serving on the Milk Commission while owning an economic interest in the dairy industry.
It is contended by the Ethics Commission that one of the fundamental precepts of the law is that one must exhaust his administrative remedy prior to seeking judicial review. O'Meara v. Union Oil Company of Louisiana, 212 La. 745, 33 So.2d 506 (1948); State of Louisiana ex rel. Bert Leasing Corporation v. Donelon, 173 So.2d 24 (La.App. 4th Cir. 1965).
Plaintiffs contend that the Ethics Commission is about to perform ultra vires acts, i. e., taking action concerning the structure and organization of the Louisiana Milk Commission, qualifications of its members and ordering those members of the milk industry to either resign from the Milk Commission or divest themselves from any economic interest in the milk industry. Plaintiffs further contend that they have not sought and do not seek to hamper the activities of the Ethics Commission in any matters over which it has jurisdiction.
"Law" is defined as "a solemn expression of legislative will". La.C.C. art. 1. The Ethics Commission and the Milk Commission are agencies created by the legislature of Louisiana, and thus are "solemn expressions of legislative will".
In Mitchell v. Louisiana State Board of Optometry Examiners, 128 So.2d 825 (La. App. 3rd Cir. 1961), Judge (now Justice) Tate, speaking for the court stated:
The Ethics Commission contends that no order has been rendered, there has been no adjudication and there has been no decision or final decision. Therefore no action had yet been taken by the Ethics Commission about which plaintiffs can complain.
There are no facts in dispute. A public hearing will not serve any useful purpose. The Ethics Commission has determined that the members of the Milk Commission must either resign or divest themselves of any economic interest in the dairy industry. It would be a vain and useless thing to require the industry members to undergo a public hearing when that public hearing will not settle an irreconcilable conflict between legislative expressions.
The ruling of the trial court sustaining the exception of prematurity is overruled.
The trial court held that the peremptory exception of no cause of action as it relates to the individual members of the Milk Commission plea for injunctive relief was moot since the court sustained the exception of prematurity and considered the exception only insofar as it relates to the Milk Commission's request for injunctive relief. The Ethics Commission contends that the plaintiffs are seeking the issuance of a preliminary injunction and yet have failed to allege specific facts supporting the conclusion that irreparable loss or injury will occur if an injunction does not issue. LSA-C.C.P. art. 3601. This exception was directed only to the plea for injunctive relief and is not directed towards the plaintiffs' request for a declaratory judgment.
All allegations of fact made in and documents attached to a petition must be taken as true in the determination of an exception of no cause of action. American Creosote Co. v. Springer, 257 La. 116, 241 So.2d 510 (1970); American Bank & Trust Company v. French, 226 So.2d 580 (La. App. 1st Cir. 1969).
Plaintiffs' petition alleges that the Ethics Commission has announced (through Opinion No. 20) that the four
Paragraph 23 of plaintiffs' petition alleges that if the four industry members of the Milk Commission resign, the Governor is prohibited by law from filling the vacancies except by other persons who have the same qualifications. Additional allegations state that the Ethics Commission has prejudged this matter and cannot conduct a fair and impartial public hearing and further that a public hearing would be an empty administrative procedure since the Ethics Commission has already determined that no milk handler or producer may serve on the Milk Commission.
The plaintiffs have alleged sufficient facts to state a cause of action.
Plaintiffs contend that the trial court erred when it refused to issue a preliminary injunction enjoining the Ethics Commission from holding a public hearing.
Plaintiffs contend that they are entitled to injunctive relief only to the extent that the threatened acts of the Ethics Commission are ultra vires. They contend that the Ethics Commission has no authority to order the industry members of the Milk Commission removed from office upon the grounds that each owns an economic interest in the dairy industry, particularly since the Legislature, which created both agencies, has already made it mandatory that each own a particular and specific economic interest in the dairy industry, and the Legislature has made it mandatory that persons owning such economic interest participate in the performance of the Milk Commission duties.
In the case of Waters v. Karst, 235 So.2d 222 (La.App. 3rd Cir. 1970), the court stated:
To subject the industry members of the Milk Commission to a public hearing before the Ethics Commission solely upon the grounds that each of them possesses the statutory qualifications for office would cause irreparable injury and they are therefore entitled to injunctive relief.
The record in this case is complete insofar as the issues before this Court are concerned. This Court has the authority to
For the foregoing reasons, the judgment of the trial court sustaining the exceptions of prematurity and no cause of action and denying the preliminary injunction are reversed and judgment is further rendered herein, enjoining and prohibiting the Ethics Commission, its members, agents, employees and all other persons acting or claiming to act on its behalf from initiating or holding any public or private hearing or investigation involving the structure or organization of the Louisiana Milk Commission or any of its members insofar as such hearing or investigation may relate to the qualifications for office which have been prescribed by the Legislature for membership and further restraining and enjoining it from issuing any order or directive requiring removal of plaintiffs J. Bert Davis, E. Leroy Miller, Lawrence D. Custer and W. Deloy Smith or any of them as a member of the Milk Commission upon the grounds that they own an economic interest in the dairy industry.
All other matters to await the final disposition of the trial court on the action for a declaratory judgment.
Defendant to pay all costs of this appeal, as provided by law.
SARTAIN, J., concurs and assigns reasons.
SARTAIN, Judge (concurring).
I fully concur in the opinion and feel compelled to add the following observation:
It is my belief that the principal reason why the Legislature decreed that three members of the Commission are required to be milk processors and one member a milk producer is that the Legislature deemed that these appointees would be possessed of certain expertise in the handling and production of milk. This does not, per se, create a conflict of interest. Whether or not there should be lay members added to the Commission is a matter that addresses itself to the wisdom of the Legislature and such changes as are deemed to be in the best interest of the public can and should be made by the Legislature, not the court nor the Louisiana Commission on Governmental Ethics.