Bates v. Edwards

• Decision Date: 03 April 1974
• Docket Number: No. 54601,54601
• Citation: 294 So.2d 532
• Parties: Eddie W. BATES et al. v. Honorable Edwin W. EDWARDS, Governor, State of Louisiana, et al.
• Court: Louisiana Supreme Court

Page 532

294 So.2d 532

Eddie W. BATES et al. v. Honorable Edwin W. EDWARDS, Governor, State of Louisiana, et al.

No. 54601.

Supreme Court of Louisiana.

April 3, 1974.

Supplemental Opinion April 5, 1974.

William J. Guste, Jr., Atty. Gen., Kenneth C. DeJean, Asst. Atty. Gen., Camille F. Gravel, Jr., Robert G. Pugh, Special Asst. Attys. Gen., for defendants-relators.

Richard C. Cadwallader, Baton Rouge, for plaintiffs-respondents.

Jerry L. Finley, Monroe, for Aubrey S. Phillips, amicus curiae.

DIXON, Justice.

On March 22, 1974 plaintiffs brought an action to enjoin the April 20, 1974 election on the proposed new constitution for the State of Louisiana, and to have declared null and void Act 2 of 1972, which provided for the Constitutional Convention which was held, beginning in 1973.

When issue was joined in the district court, defendants applied to this court for a final determination of the case. Under the authority of Article 7, § 10, Louisiana Constitution of 1921 we granted writs and ordered the record up. See Seegers v. Parker, 256 La. 1039, 241 So.2d 213 (1970). Because an election is pending and because of the importance to the State as a whole, this memorandum opinion and decree is issued, to be followed by an expanded opinion containing written reasons and discussions of applicable authorities.

Plaintiffs attack the validity of the proceedings leading to the formation of a new constitution which is scheduled for submission to a vote of the people for two principal reasons:

1. Plaintiffs contend that the legislative determination to call a constitutional convention must be submitted to the people and ratified by them before a new constitution can be legally adopted;

2. Plaintiffs contend that the existence of twenty-seven appointed delegates out of a total of one hundred thirty-two violates (a) the equal protection and due process clauses of the Fourteenth Amendment to the Constitution of the United States (the 'one man, one vote' rule) and (b) the act of Congress of February 20, 1811, c. 21, 2 U.S.Stat. 641 (the Enabling Act providing for the formation of a state government, following which Louisiana was admitted to the union).

We find no merit in the arguments of plaintiffs. There is no requirement in Louisiana that the legislative call for a constitutional convention must be submitted to the people for ratification, where the final product of the constitutional convention itself, the proposed new constitution, must be submitted to the people and approved by them before it becomes a part of the law. Nor is there a uniform body of law in other jurisdictions enforcing a requirement that the convention call be ratified by the people.

Plaintiffs argue that the Enabling Act requires that all constitutional convention delegates be elected. The Enabling Act made provisions for the formation of the first constitution of the State of Louisiana. It did not pretend to provide for all future constitutions or their amendments or changes. The Enabling Act required that the product of the constitutional convention be submitted to Congress for approval, after which, under the provisions of the act of Congress of April 8, 1812, c. 50, 2 U.S.Stat. 701, the State of Louisiana was admitted to the union 'on an equal footing with the original states . . .' The United States Supreme Court decided in Permoli v. Municipality No. 1 of the City of New Orleans, 3 How. (44 U.S.) 589, 11 L.Ed. 739 (1845) that the constitution of the State of Louisiana, when formed pursuant to the Enabling Act and accepted by Congress, superseded the Enabling Act. Spooner v. McConnell, 1 McLean's C.C.Rep. 337 (1838) is not applicable.

The one man one vote rule (Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963)) is not applicable to a constitutional convention, which neither legislates nor governs. Pender v. Gray, 149 La. 184, 88 So. 786 (1921); State ex rel. Hoffman v. Judge, 149 La. 363, 89 So. 215 (1921). The constitutional convention under these circumstances is not the type of legislative or executive creature whose members must be elected under the one man one vote rule. Livingston v. Ogilvie, 43 Ill.2d 9, 250 N.E.2d 138 (1969); West v. Carr, 212 Tenn. 367, 370 S.W.2d 469 (1963); see Sailors v. Board of Education, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967).

For these reasons, the demands of the plaintiffs are rejected, at their cost.

SUPPLEMENTAL OPINION

The issues were stated in the memorandum opinion and decree rendered April 3, 1974.

Validity of the Convention Call

Act 2 of 1972 provided for a constitutional convention to meet on January 5, 1973 to frame a new constitution for Louisiana. One hundred five of the one hundred thirty-two delegates were to be elected, and twenty-seven appointed by the Governor. The finished draft was to be submitted to the electorate for their adoption or rejection. There was no requirement in Act 2 of 1972 that the convention call be submitted to the electorate for approval; nor is there any provision in the Louisiana Constitution of 1921 concerning the method of adopting a new constitution.

The only provisions in the Louisiana Constitution of 1921 for changing the constitution relate to constitutional amendments.

Even if the amending procedure contained in the Louisiana Constitution of 1921 in Article 21, § 1 could be said to restrict the methods available for the formation of a new constitution, the procedure there described and as interpreted by this court could not be employed, for Section C of that Article 21 provides that, 'When more than one amendment is submitted to the same election, each of them shall be so submitted as to enable the electors to vote on each amendment separately . . .' The interpretation placed on this constitutional provision in Graham v. Jones, 198 La. 507, 3 So.2d 761 (1941) would cast grave doubt upon an attempt to form a new constitution except as an article-by-article revision scheme.

At any rate, this court early decided in State v. Favre, 51 La.Ann. 434, 25 So. 93 (1898) that a new constitution regularly framed by a constitutional convention and adopted differs from a constitutional amendment. See 17 La.L.Rev. 123.

Plaintiffs argue that since the Louisiana Constitution of 1921 does not provide for the calling of a constitutional convention, the power to call such a convention 'is vested in the sovereign people of Louisiana,' and such a convention cannot meet unless first approved by the voters. As authority for this proposition, plaintiffs cite Article 1, Sections 1 and 15 of the present constitution. These sections provide:

'Section 1. All government, of right, originates with the people, is founded on their will alone, and is instituted solely for the good of the whole. Its only legitimate end is to secure justice to all, preserve peace and promote the interest and happiness of the people.'

'Section 15. This enumeration of rights shall not be construed to deny or impair other rights of the people not herein expressed.'

These sections of the Bill of Rights article of our present constitution provide guiding principles upon which our legal system is founded. They do not, however, abrogate other specific provisions of our constitution.

Article 3, Section 1 of the present constitution provides:

'The legislative power of the State shall be vested in a Legislature, which shall consist of a Senate and a House of Representatives.'

The 'legislative power' referred to in this article has been interpreted as empowering the legislature to enact any laws it sees fit, limited only by the positive provisions of the state and federal constitutions. Stovall v. City of Monroe, 199 La. 195, 5 So.2d 547 (1941); Ward v. Leche, 189 La. 113, 179 So. 52 (1938); State v. Toon, 172 La. 631, 135 So. 7 (1931). The legislature has all powers of legislation not specifically denied it by the constitution. Russell v. McKeithen, 257 La. 225, 242 So.2d 229 (1970); Ricks v. Department of State Civil Service, 200 La. 341, 8 So.2d 49 (1942); State v. Cusimano, 187 La. 269, 174 So. 352 (1937); State ex rel. Porterie v. Charity Hospital of Louisiana, 182 La. 268, 161 So. 606 (1935); Ascension Red Cypress Co. v. New River Drainage District, 175 La. 300, 143 So. 270 (1932); Walker v. Superior Brass & Copper Foundry Co., 152 La. 626, 94 So. 139 (1922); Mulhaupt v. City of Shreveport, 126 La. 780, 52 So. 1023 (1910); State v. Gutierrez, 28 La. 158, 15 L.Ann. 190 Gutierrez, 28 La. 158, 15 La.Ann. 190 Rob. 411 (1845); LeBreton v. Morgan, 4 La. 48, 4 Mart. (N.S.) 138 (1826).

The right of the legislature to call a constitutional convention is recognized both in our Louisiana jurisprudence and in the authoritative treatises dealing with the subject of constitutional conventions. State v. American Sugar Refining Co., 137 La. 407, 68 So. 742 (1915); Jameson, The Constitutional Convention (Third Ed. 1873), 209; Cooley's Constitutional Limitations (Eighth Ed. 1927), 85.

One case is cited to us by plaintiffs in which a state supreme court declared unconstitutional a convention call be a state legislature which was not ratified by the electorate. In Bennett v. Jackson, 186 Ind. 533, 116 N.E. 921 (1917), the Supreme Court of Indiana held that the General Assembly of that state did not have the authority to call a constitutional convention without submitting the matter to the voters of that state. That opinion noted that the 1917 convention call had been preceded by a convention call which was submitted to the electorate in 1914 and by them soundly defeated.

The Indiana court also noted that its 'Legislature has no inherent rights. Its powers are derived from the Constitution . . .,' and that when the legislative powers are not found in the constitution, then 'a warrant for the same must be found somewhere.' Therefore, the court found that the constitutional call should have been submitted to the people. (116 N.E. 922, 923).

These reasons are not applicable to the State of...