Blaize v. Hayes

• Decision Date: 13 July 1943
• Docket Number: 37190.
• Citation: 204 La. 263,15 So.2d 217
• Parties: BLAIZE v. HAYES, Sup'r of Publlo Funds, et al. In re HAYES et al.
• Court: Louisiana Supreme Court

15 So.2d 217

204 La. 263

BLAIZE v. HAYES, Sup'r of Publlo Funds, et al.

In re HAYES et al.

No. 37190.

Supreme Court of Louisiana

July 13, 1943

Fred J. Heintz, of Convington, and John B. Smullin of Baton Rouge, for relator.

R A. Dowling, of New Orleans, and George M. Wallace, of Baton Rouge, for respondents.

O'NIELL Chief Justice.

This being a case of public importance should be disposed of promptly, by a final decree of this court, as we have disposed of other contests over an appointment to fill a vacancy in a public office,--such as State ex rel. Palfrey v Judges of Criminal Dist. Court of Parish of Orleans, 199 La 232, 5 So.2d 756, and State ex rel. Livaudais v. Himel, 201 La. 168, 9 So.2d 509.

There is no doubt that the Governor had authority to appoint the plaintiff, Walter J. Blaize, to the office of sheriff, to fill the vacancy caused by the death of Sheriff Dauterive on June 1, 1943, because, at that time the unexpired portion of the term of office was less than a year. According to Section 69 of Article VII of the Constitution, vacancies occasioned by death, resignation, or otherwise, in the office of sheriff (or in the office of district judge or district attorney or clerk of court), shall be filled by appointment by the Governor if the unexpired portion of the term is less than a year. And by Section 12 of Article V of the Constitution the Governor is authorized to fill vacancies that occur during a recess of the Senate, in cases not otherwise provided for in the Constitution, by granting commissions which shall expire at the end of the next session of the Senate.

A successor to the late Sheriff Dauterive, for the full term of four years, will be elected in the next general state election, which, according to Section 2 of Act No. 224 of 1940, will be held on Tuesday the next day after the third Monday in April 1944. The third Monday in April 1944 will be the 17th day of April; hence the election will be held on Tuesday, the 18th day of April, 1944. According to Section 25 of Act No. 224 of 1940, it will be the duty of the Governor to issue a commission to the newly-elected sheriff at the expiration of thirty days after the date of his election, and the new sheriff may then qualify immediately. Accordingly, the successor to Sheriff Dauterive, for the full term of four years, may qualify and take possession of the office on May 19, 1944; which date will be less than a year after the date of the death of Sheriff Dauterive, June 1, 1943.

Sheriff Dauterive took his oath of office as sheriff on May 25, 1940, and the oath was filed and recorded in the office of the Clerk of Court in the Parish of Plaquemines on May 28, 1940, but the oath was not recorded or filed in the office of the Secretary of State until June 14, 1940. Because of that delay in the filing of the oath of office with the Secretary of State, it is contended that the four-year term of office of Sheriff Dauterive will not expire until June 14, 1944. The question whether Sheriff Dauterive, if he had lived, might object to his successor's taking possession of the office until June 14, 1944, is a question which does not arise in this case. In that respect the facts of the case are the same as were the facts in the case where Judge R. Emmett Hingle died and Judge Leander H. Perez was appointed by Governor Pleasant to fill the unexpired portion of the term of office of Judge Hingle. The appointment of Judge Perez by the Governor was contested on the ground that the unexpired portion of the term of Judge Hingle was more than a year at the time of his death. Judge Hingle took the oath of office and commenced his four- year term on December 9, 1916. He died on December 4, 1919. Hence it was argued, in opposition to the authority of the Governor to appoint Judge Perez, that the unexpired portion of the term of Judge Hingle was more than a year at the time of his death. But it was pointed out on behalf of Judge Perez that the successor to Judge Hingle for the full term of four years would be elected on Tuesday the next day after the first Monday in November, 1920, and that, as the first day of November would fall on Monday in 1920, the election of the successor to Judge Hingle would be held on Tuesday, November 2, 1920, and that the successor might qualify thirty days after being elected, or say on December 2 or 3, 1920, which was less than a year after Judge Hingle's death. Accordingly, this court held in the case entitled In re Perez, 146 La. 373, 83 So. 657, 660, on January 12, 1920, that the unexpired portion of the term of office of Judge Hingle was less than a year at the time of his death, and therefore that the commission which the Governor had issued to Judge Perez to fill the unexpired portion of the term of Judge Hingle was valid, and that Judge Perez was entitled to take possession of the office. In the course of the opinion this court said: 'The misfortune that put an end to the term or tenure of office of Judge Hingle has put aside the question whether he might have held office until the 9th of December, 1920, even though his successor might have qualified sooner. The question before the Governor was: When might a successor qualify for the full term of four years? The Governor's answer was: December 2, 1920; that is, less than a year from the date of Judge Hingle's death. The election must be held on Tuesday the next day after the first Monday in November, 1920. It so happens that the 1st day of November will be Monday. Therefore the election will be held on the 2d day of November. The judge then elected may qualify 30 days after his election; say on the 2d or 3d day of December, 1920. The unexpired part of the term of the office made vacant by the death of Judge Hingle was, according to that calculation, less than a year; and, under the law, the Governor had reason to assume that he had authority to appoint a judge for the unexpired term.'

There is nothing in the decision which this court rendered in the case of State ex rel. Palfrey v. Judges of Criminal District Court of Parish of Orleans, on January 5, 1942, 199 La. 232, 5 So.2d 756, that conflicts with the decision just cited, in the matter entitled In re Perez, 146 La. 373, 83 So. 657. The reason why the Governor did not have authority to appoint Campbell Palfrey Sheriff of the Criminal District Court for the Parish of Orleans, to fill the vacancy caused by the death of Sheriff George E. Williams, which occurred during the recess of the Senate, was that the filling of a vacancy in the office of Criminal Sheriff for the Parish of Orleans was otherwise provided for in Section 93 of Article VII of the Constitution, giving the Judges of the Criminal District Court the authority to fill the vacancy. Section 12 of Article V of the Constitution would have given the Governor authority to fill the vacancy in that case by the appointment of Palfrey, if the filling of the vacancy had not been otherwise provided for in the Constitution. But Section 12 of Article V is qualified by the declaration that the Governor shall have the power to fill vacancies occurring during a recess of the Senate only in cases not otherwise provided for in the Constitution. And Section 93 of Article VII of the Constitution, which was applicable to Palfrey's case, makes provision for filling vacancies only in the office of civil sheriff, clerk of the civil district court, recorder of mortgages, and register of conveyances, in which offices vacancies shall be filled temporarily by the judges of the civil district court, and the vacancies in the office of criminal sheriff, clerk of the criminal district court, clerk and constable of the city courts, in which offices vacancies shall be filled temporarily by the judges of the courts to which they are attached. That section of Article VII of the Constitution has no reference whatsoever to any other office except the offices just named. Hence the decision in the Palfrey case is not a precedent for this case, or for any case where a vacancy is to be filled in any public office, other than the office of civil sheriff, clerk of the civil district court, recorder of mortgages, register of conveyances, criminal sheriff, clerk of the criminal district court, or clerk or constable of a city court, in the Parish of Orleans.

All of this was explained fully in the opinion rendered in the Palfrey case, 199 La. pages 237 and 238, and 5 So.2d 757 and 758, thus:

'But the only authority conferred upon the Governor to fill vacancies by making appointments during a recess of the Senate is that which is conferred by Section 12 of Article V of the Constitution, and is limited to cases where the filling of the vacancy is not otherwise provided for in the Constitution,--thus:

"The Governor shall have the power to fill vacancies that may occur during the recess of the Senate, in cases not otherwise provided for in this Constitution, by granting commissions which shall expire at the end of the next session;' et cetera.

'That section in the Constitution does not give the Governor authority to fill the vacancy in this instance [In the Palfrey case] by making a recess appointment, without the advice and consent of the Senate, or without confirmation by the Senate, because the filling of the vacancy in this instance is otherwise provided for in the Constitution,--in Section 93 of Article VII, giving the Judges of the Criminal District Court the authority to fill the vacancy temporarily or until it is 'filled by election or appointment, as provided by law.' There is no reason why the writers of the Constitution should have provided for two temporary fillings of the vacancy in a case like this [Palfrey case],--one temporary filling of the vacancy by the judges of the court whose orders and...