Bonnette v. Karst

• Decision Date: 08 November 1971
• Docket Number: No. 51467,51467
• Parties: Pearly J. BONNETTE et al. v. Honorable C. Edward KARST, Mayor, et al.
• Court: Louisiana Supreme Court

Page 589

261 So.2d 589

261 La. 850

Pearly J. BONNETTE et al. v. Honorable C. Edward KARST, Mayor, et al.

No. 51467.

Supreme Court of Louisiana.

Nov. 8, 1971.

Dissenting Opinion Nov. 18, 1971.

On Rehearing March 27, 1972.

Rehearing Denied May 1, 1972.

Gist, Methvin & Trimble, Howard B. Gist, Jr., Alexandria, for defendants-appellants.

Gravel, Roy & Burnes, Chris J. Roy, Camille F. Gravel, Jr., Alexandria, for plaintiffs-appellees.

Neblett, Fuhrer & Hunter, Robert B. Neblett, Jr., Alexandria, for intervenors.

Peters, Ward & Phillips, S. Patrick Phillips, Shreveport, amici curiae.

HAMLIN, Justice.

Defendants, the City of Alexandria; its Mayor and Commissioner of Public Health and Safety, Honorable C. Edward Karst its Commissioner of Finance and Public Utilities, Honorable Carroll E. Lanier; and its Commissioner of Streets and Parks, Honorable O'Hearn L. Mathews; and intervenors, Local 540, Alexandria Fire Fighters Association, AFL-CIO, Board of Trustees of the Firemen's Pension and Relief Fund and Willis L. West, appeal from a judgment of the trial court, sitting en banc as a three judge court, which (1) ordered that a permanent injunction issue, directed to the defendants, restraining, enjoining and prohibiting each of them from taking any action under the provisions of LSA- R.S. 42:691 looking toward the separation or retirement of Pearly J. Bonnette, Lionel C. Bergeron, Sam Domico, Jr., and John Fertitto from their positions as permanent classified officers and employees in the Fire Department of the City of Alexandria, Louisiana; and, (2) decreed that 'R.S. 42:691 is hereby declared to be unconstitutional in its application, insofar as any effort has been or may be made to make that statute applicable to the plaintiffs in this proceeding in connection with their employment with the City of Alexandria, Fire Department.'

After being notified by letter of April 2, 1971, written by C. Edward Karst, appointing authority and Mayor of the City of Alexandria, that they were being placed on retirement pursuant to the provisions of LSA-R.S. 42:691, ¹ Pearly J. Bonnette, Lionel C. Bergeron, Sam Domico, Jr., and John Fertitto ² instituted, April 28, 1971, the present declaratory judgment and injunctive proceedings against the defendants; they prayed for the judgment decreed, supra, by the trial court.

Local 540, Alexandria Fire Fighters Association, AFL-CIO, Board of Trustees of the Firemen's Pension and Relief Fund, and Willis L. West intervened in the matter and prayed that plaintiffs' suit be dismissed.

In answer to plaintiffs' petition, defendants prayed that the trial court hold that the provisions of LSA-R.S. 42:691 are applicable to the Alexandria Fire Department and that plaintiffs' suit be dismissed.

Honorable Jack P. F. Gremillion, Attorney General of the State of Louisiana, appeared and submitted to the trial court the matter of the constitutionality of the involved statute and the relief sought.

Defendants and intervenors filed a declinatory exception in which they averred that the trial court was without jurisdiction over the subject matter involved because Art. XIV, Sec. 15.1(31), of the Louisiana Constitution granted the district courts limited jurisdiction only to review a prior decision made by the Alexandria Fire and Police Municipal Civil Service Board; that plaintiffs had made no application to the Board to review their discharge, and that consequently, the Board had rendered no decision reviewable by the court. They further averred that the trial court had neither original jurisdiction nor appellate jurisdiction over the subject matter. Defendants and intervenors also filed peremptory exceptions of prescription and no cause of action.

The trial court overruled all of the exceptions, and its decision with respect to jurisdiction stated:

'It is the opinion of this Court that these letters written to these parties are not discharges or contemplated discharges as envisioned or contemplated by the Constitution, Article 14, Section 15.1, subparagraph 31. But that mandatory retirement is a change of status other than discharge and certainly corrective or disciplinary action. And that being the case, then this Court does have jurisdiction to hear this matter. It is the position of this Court that the word discharge carries some connotation other than a mandatory retirement. A discharge is a complete severance of that employee with prejudice and that retirement, of course, is not of that nature. So the exception to jurisdiction is overruled.'

The trial court rendered judgment after hearing, and the present appeal ensued.

Defendants and intervenors assign the following errors to the judgment of the trial court:

'1. The district court erred in taking jurisdiction over the subject matter of the proceeding.

'2. The district court erred in holding that plaintiffs' rights of action had not prescribed.

'3. The district court erred in holding that firemen were granted life tenure under the Louisiana Constitution making any retirement statutes unconstitutional when applied to firemen.'

Amicus Curiae, Professional Firefighters Association of Louisiana, AFL-CIO, urges that the trial court erred in finding the provisions of LSA-R.S. 42:691 to be unconstitutional, insofar as applied to plaintiffs, members of the classified service of the Alexandria Fire Department.

Plaintiffs submit that the judgment of the trial court should be affirmed, and state: 'The long and short of this entire case is that firemen and policemen subject to the provisions of Article 14, Section 15.1, have special and unique constitutional civil service protection, are entitled to tenure during good behavior and are subject to removal from their employment only in the manner and for the reasons set forth in the Constitution. Statutes which provide to the contrary must yield.'

Counsel for defendants and intervenors contend that in a civil service dispute involving policemen and firemen, a state district court does not have original jurisdiction but only a form of limited appellate jurisdiction.

Art. XIV, Sec. 15.1(31), La.Const. of 1921, as amended, provides:

'Any regular employee in the classified service who feels that he has been discharged or subject to any corrective or disciplinary action without just cause, may, within fifteen days after the action, demand in writing, a hearing and investigation by the board to determine the reasonableness of the action. The board shall grant the employee a hearing and investigation within thirty days after receipt of the written request.' See, LSA-R.S. 33:2501.

The letters ordering mandatory retirement of plaintiffs were written on April 2, 1971, and received on April 3, 1971. Plaintiffs did not apply to the Alexandria Fire and Police Municipal Civil Service Board for hearing; they chose not to follow the constitutional article, supra; they instituted, as stated supra, the instant proceedings on April 28, 1971, less than 30 days after receipt of their notice of mandatory retirement.

We agree with the trial court that a district court has jurisdiction of a matter such as the instant one. Herein, an appeal or application to the Civil Service Board would have been a vain and useless gesture. That body is without power to determine vel non the constitutionality of a State statute, and plaintiffs challenged the constitutionality of LSA-R.S. 42:691 and prayed for declaratory and injunctive relief. We find that the district court was the proper and only body which could grant or deny plaintiffs' demands. Having determined that the trial court had jurisdiction of this matter, it follows that the peremptory exceptions are without merit and that the trial court properly overruled them.

Chadwick v. Department of Highways of the State, 238 La. 661, 116 So.2d 286 (1959) is not apposite to this matter. Compulsory retirement was involved in the Chadwick case, but the retired employee saw fit to appeal to the Civil Service Commission and filed his appeal untimely. The Commission, however, found that the order of retirement was void ab initio. This Court sustained the motion to dismiss Chadwick's appeal to the Civil Service Commission on the ground that the appeal was not timely taken pursuant to Rule 13.12 of the Civil Service Commission. We said, however, 'Under our view on the merits of the motion to dismiss it is not necessary for us to discuss what authority if any the Civil Service Commission had to consider Act 54 of 1958 (LSA-R.S. 42:691) unconstitutional or for us to express any view as to its constitutionality.'

We now approach a determination of the constitutionality of LSA-R.S. 42:691 in the light of Art. XIV, Sec. 15.1(30)a, La.Const. of 1921, as amended.

LSA-R.S. 42:691 provides:

'Compulsory retirement at age sixty-five; exceptions; earlier mandatory retirement ages not extended; teachers and college presidents

'A. Effective January 1, 1959, any employee of the state of Louisiana, or any political subdivision thereof, except elected officials and department heads appointed and commissioned by the governor, who is insured under the Federal Social Security Law, or who is a member of any public employees' retirement system, and for whom the state or any political subdivision thereof has made or is liable for contributions toward his retirement, who shall have attained the age of sixty-five years shall be separated from the public service by his appointing authority if such employee is eligible for retirement under either the Social Security Act or the retirement system of which he is a member. If such employee is not eligible for retirement under either the Federal Social Security Act or the retirement system of which he is a member separation shall occur whenever he shall become eligible for retirement under either system or upon attainment of age seventy, whichever event shall first occur. In any case in which the appointing authority certifies that the continuance in...