Barnett v. Develle, 53654

• Decision Date: 21 January 1974
• Docket Number: No. 53654,53654
• Citation: 289 So.2d 129
• Parties: William M. BARNETT et al. v. Robert E. DEVELLE et al.
• Court: Louisiana Supreme Court

Page 129

289 So.2d 129

William M. BARNETT et al. v. Robert E. DEVELLE et al.

No. 53654.

Supreme Court of Louisiana.

Jan. 21, 1974.

Rehearing Denied Feb. 15, 1974.

Ralph D. Dwyer, Jr., Many, Hartman, LoCoco & Dwyer, New Orleans, Blake Arata, City Atty., Gerald Stewart, Asst. City Atty., for plaintiffs-applicants.

William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., Louis A. Gerdes, Jr., Dale C. Wilks, Special Counsel to Atty. Gen., Maurice S. Cazaubon, Jr., C. Paul Barker, Dodd, Hirsch, Barker, Meunier, Boudreaux & Lamy, New Orleans, for defendants-respondents.

PAUL B. LANDRY, Jr., Justice ad hoc.

On application of plaintiffs, members of the Civil Service Commission of the City of New Orleans (Commission), writs were granted herein to review the judgment of the Court of Appeal, Fourth Circuit, 282 So.2d 528, affirming a judgment of the District Court, Orleans Parish, dismissing the Commission's action for declaratory judgment pronouncing the unconstitutionality of Acts 55 and 57 of the Extra Session of 1968, and enjoining defendants, the City Council of the City of New Orleans (Council) from implementing or enforcing said statutes. Two fundamental issues are presented for review: (1) Are Acts 55 and 57, which respectively fix the salaries and annual vacation time of firemen in cities of 12,000 or more population, constitutional as applied to the City of New Orleans which has a City Civil Service Commission provided for cities having a population in excess of 250,000 population, pursuant to La.Const. Art. XIV, Section 15(A)(1), and (2) if said statutes are unconstitutional, is the Commission entitled to the requested injunctive relief?

We reverse, and declare the statutes unconstitutional. We find the Commission to be entitled to limited injunctive relief.

The Commission names as defendants the members of the Council, Robert E. Develle (succeeded by Henry Simmons), Director of the City Department of Finance, and Richard J. Kernion, Chief Administrative Officer of the City. C. J. Perez intervened in the action individually, as a member of the Fire Department of the City of New Orleans (City), on behalf of all other members of the City Fire Department and the New Orleans Firefighters Association Local 632, AFL-CIO (Firefighters), as President of the Union. Numerous other individual members of the City Fire Department intervened. The State of Louisiana, through the Attorney General, Honorable William J. Guste, Jr., also intervened inasmuch as the validity of two state statutes was attacked. All Intervenors save the Attorney General are sometimes hereinafter collectively referred to as 'Firemen'.

The Council filed no exceptions. The Council did, however, answer the Commission's petition generally agreeing with the allegations thereof, and concurring in the Commission's contentions that Acts 55 and 57 are unconstitutional. All Intervenors filed exceptions of no right and no cause of action based essentially on the ground that the matter is res judicata in that prior litigation between the parties at bar (or their alleged privies) has established the validity of the statutes in question. In affirming the judgment of the trial court, the Court of Appeal held that the trial court correctly sustained Intervenors' exceptions of no right and no cause of action on the finding that all issues regarding validity of the statutes had been previously determined between the parties. All Intervenors, the Attorney General excepted, filed exceptions of laches, estoppel and res judicata which were not passed upon by the trial court or Court of Appeal, but which exceptions are reurged here.

Although the members of the Commission initially sued in their individual names, the pleadings have been amended in this court, with Intervenors' consent, naming the Commission as party plaintiff in its official capacity.

A clear understanding of the Commission's charge of unconstitutionality and Intervenors' exceptions requires narration in some details of the pleadings herein, and a preliminary discussion of prior litigation between Firefighters and the City Council regarding the validity of Acts 55 and 57 and certain other legislation.

In substance, the petition alleges the Council proposes to disburse a sum estimated at between $5,000,00 and $7,000,000 to those members of the City Civil Service System classified as Fireman, to the prejudice of members of other classes of the system, some of whom perform functions similar to persons bearing the classification Firemen. Said proposed action is alleged to constitute an unlawful usurpation of the Commission's exclusive constitutional authority in that it is a legislative attempt to prescribe and adopt a classification and pay plan for a limited number of classified employees of the City, namely, members of the Department of Fire, and establish minimum, maximum and intermediate rates of compensation for the single class, in contravention of the classification plans and uniform pay plan previously established for all City Service Employees by the Commission and approved by the City Council, all as provided for and authorized by La.Const. Art. XIV, Sec. 15(I)(c).

The petition also asserts that Acts 55 and 57 are repugnant to and violative of Const. Art. XIV, Sec. 15(i), in that they seek to place in operation a classification and pay plan which: (1) has not been prepared, submitted or recommended to the Commission by the City Personnel Department for the Commission's consideration; (2) has not been established or adopted by the Commission as required by the Constitution and (3) which has not been approved by the City Council.

The petition further alleges that it is the Commission's constitutional duty to adopt and enforce rules having the force and effect of law, regulating, among other things, the rates of pay for all employees of the City Classified Service, and to establish a uniform pay plan for all employees which plan becomes effective upon approval by the City Council. The Commission further avows that, in obedience to its constitutional mandate, the Commission has established a uniform pay plan for all classified city employees which plan has been duly approved and adopted by the City Council, and is presently in full force and effect and applicable to all city civil service employees.

The petition alleges that implementation of Acts 55 and 57 will cause the Commission irreparable harm by compelling the Commission to commit illegal acts violative of and in contradiction of their constitutionally mandated duties.

Finally, the petition recites, that if Acts 55 and 57 are declared valid a sum estimated at between $5,000,000 and $7,000,000 (a figure not disputed by Intervenors) will be distributed to a select class of municipal employees (Firemen), to the prejudice of approximately 9,000 city employees in other classes of municipal employment whose interest and welfare are subject to protection of the Commission. It is alleged that these other employees would suffer irreparable injury, and that the public fisc of the City of New Orleans would be adversely affected.

In 1967, Firefighters entered suit against the City to enjoin the City from implementing a plan calling for a 60 hour work week for firemen, and also requiring firemen to work as many overtime hours as required. Firefighters contended the proposed action of the City violated a contract between the City and Firefighters requiring Firemen to work a 52 hour week, plus four hours overtime at a stipulated rate, and such additional overtime as the Firemen chose. The City defended its action on the basis of an emergency declared pursuant to LSA-R.S. 33:1994. One of the City's numerous defenses was an exception of no cause of action based on the ground that the Commission possessed exclusive authority regarding the establishment and recommendation of work hours of all city classified employees pursuant to La.Const. Art. XIV, Sec. 15(I)(6), and that the action should have been brought against the Commission. The record disclosed that the Commission had not in fact established or recommended hours of work for Firemen. The trial court enjoined the City from implementing the proposed work week and the City appealed. On appeal, the Court of Appeal, Fourth Circuit, affirmed. See New Orleans Firefighters Ass'n Local 632, AFL-CIO v. City of New Orleans, 204 So.2d 690 (Firefighters I). In affirming the trial court, the Court of Appeal quoted language from the lower court's opinion to the effect that La.Const. Art. XIV, Sec. 15(I)(6) requires the City to approve and adopt hours of work schedules recommended by the Commission. The Court of Appeal also held, however, that, in this instance, the Commission had not recommended any hours of work schedule, but since the City had adopted such a schedule without a Commission recommendation, the City would not be permitted to deny the validity of its action. The Commission was not a party to this action. The City did not apply to this court for writs of review, and the decision in Firefighters I became final.

Subsequent to Firefighters I, Firefighters instituted three actions which were consolidated for trial, and which are hereinafter designated as Firefighters II, namely, New Orleans Firefighters Association Local 632 AFL-CIO v. City of New Orleans, 230 So.2d 326. In essence, this action sought to compel the City to: (1) Appropriate funds to implement Act 57 which provides for increased vacation pay for City Firemen; (2) appropriate funds to implement Act 55 relative to minimum salaries of Firemen, and (3) implement Act 55 insofar as it requires a minimum salary schedule for Firemen. At this juncture, it suffices to state that the Court of Appeal found on authority of Firefighters I, and other reasons hereinafter discussed, that Acts 55 and 57 did not violate either La.Const. Art. XIV, Sec. 15(I)(6) or Article XIV, Sec. 22, as contended by the City in...