City of Natchitoches v. State

• Decision Date: 08 April 1969
• Docket Number: No. 2704,2704
• Citation: 221 So.2d 534
• Parties: CITY OF NATCHITOCHES et al., Palintiffs-Appellants, v. STATE of Louisiana et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 534

221 So.2d 534

CITY OF NATCHITOCHES et al., Palintiffs-Appellants, v. STATE of Louisiana et al., Defendants-Appellees.

No. 2704.

Court of Appeal of Louisiana, Third Circuit.

April 8, 1969.

Rehearing Denied May 7, 1969.

Watson, Brittain & Murchison, by Arthur C. Watson, Natchitoches, for plaintiffs-appellants.

Sanders, Miller, Downing & Kean, by R. Gordon Kean, Jr., Baton Rouge, John R. Hunter, Jr., Alexandria, Peters, Ward, Johnson & Phillips, by Patrick Phillips, Shreveport, for defendant-appellee.

En Banc.

PER CURIAM.

This is a suit for declaratory judgment and for an injunction. For the reasons to be stated below:

(1) We reject attacks on the constitutionality of Louisiana Acts 55 and 57 of the Extraordinary Session of 1968, increasing the minimum pay and vacations of local firemen.

(2) We hold that LSA-R.S. 33:1997, as amended in 1962 (providing criminal penalties against local officers who permit violations of the firemen's minimum-pay statutes), is unconstitutional, null and void, in that it fails to satisfy the requirement of due process of law as provided in Article 1, Section 2, of the Louisiana Constitution, and the fith and fourteenth amendments of the United States Constitution.

(3) We remand to permit issuance of an injunction prohibiting criminal prosecution of these municipal officers under LSA-R.S. 33:1997.

Introductory Statement

The plaintiffs are the City of Natchitoches and its Mayor and City Commissioners. The essential prayer of their petition is for a declaration that Louisiana Acts 55 and 57 of the Extraordinary Session of 1968 are unconstitutional. The plaintiffs also pray that a section of the revised statutes last amended in 1962 be declared invalid insofar as interpreted to provide criminal penalties for loca officers if they permit local firemen to be paid less than required by the 1968 state laws. Additionally, the petition prays for injunction against threatened enforcement of the criminal sanctions against the plaintiff municipal officers for noncompliance with the 1968 statutes.

Made defendants are the State of Louisiana and several local officials charged with enforcement of the State's criminal laws. Other parties intervened, as will be set forth below. Exceptions were filed by some of the interveners, and also by the State of Louisiana, defendant.

The trial court dismissed the suit. It sustained a plea filed by the State of Louisiana that the courts are without jurisdiction to hear the suit in the absence of an allegation that the state legislature has waived the state's immunity from suit. The plaintiffs appeal.

Motion to Dismiss Appeal

The State has filed a motion to dismiss this appeal. The State contends the appeal is moot because, after the trial court judgment, the City Commission met and increased the water and sewerage rates in order to provide the additional revenues necessary to raise the firemen's minimum wages as well as to raise comparably the pay of all city employees.

However, the ordinance itself shows only that rates were increased . The ordinance does not show that these rates produced sufficient funds for the purpose sought. Assuming that we are permitted to consider the passage of the ordinance for purposes of determining mootness, we may likewise consider the subsequent written complaints of the local firemen (introduced over objection at the appellate hearing) to show that they still have not received the statutory minimum wages.

The appellant individuals are faced with criminal penalties for each day in the past that the minimum wages have not been paid. See LSA-R.S. 33:1997, below-discussed. Further, although to avoid criminal prosecution the plaintiffs may have temporarily complied with the new wagescale, their suit demands a declaration of invalidity of the statutes; should they prevail in their contentions on appeal, the coercive offect of the statute would no longer control the municipal wage-scales. Their appeal is not moot. Archer v. City of Shreveport, 226 La. 867, 77 So.2d 517.

The motion to dismiss the appeal is overruled.

Legal Issues of the Appeal

Without considering other pleadings, the trial court sustained the City's plea of sovereign immunity and dismissed the suit.

(1) The primary issue raised by the appellants' appeal is thus whether the trial court's ruling was correct.

Additionally, however, by timely answer to the appeal certain interveners on behalf of the defendants re-urge an exception of no cause of action filed below. They pray that the affirmance of the suit be dismissed, but upon the different grounds advanced by their exception of no cause of action.

Thus, in addition to the plea of sovereign immunity (above (1)), other substantial issues of this appeal are:

(2) May the interveners pray for dismissal of this suit upon exception of no cause of action, when the individual defendants themselves did not file pleadings requesting this disposition?

If so, then:

(3) Does the petition state a cause of action in its demand that the minimum-pay and vacation provisions of the 1968 statute be declared unconstitutional.

(4) Does the petition state a cause of action in its prayer for a declaration of invalidity or unconstitutionality of LSA-R.S. 33:1997, the penal provisions of an earlier statute (providing criminal penalties for nonpayment of minimum wages)--or, at least, is the 1962 statute invalid or unconstitutional insofar as interpreted to apply to nonpayment of the higher wages of the 1968 statute?

(5) Are the individual defendants entitled to an injunction against criminal prosecution under the 1962 statute, if invalid or unconstitutional, or when its application against them is threatened for failure to pay the higher firemen's salaries required by the 1968 statute?

We will take up these issues in the order listed.

1. Plea of Sovereign Immunity

The allegations of the suit claim that certain State statutes are invalid and pray for a declaratory judgment so holding. The State was made a party, so that a copy of the proceedings could be served upon the Attorney General, since LSA-CCP Art. 1880 requires the Attorney General to be served with a copy of proceedings when suit is filed for a declaratory judgment that a statute is unconstitutional.

The State excepted. The trial court sustained the State's contention that the courts are without jurisdiction to hear this suit unless the legislature waived the state's immunity from suit and from liability as provided by Art. III, Section 35, La. Constitution of 1921. Our trial brother was in error in so doing (pretermitting whether the plea was properly raised by an exception to the jurisdiction rather than by an exception of no cause of action).

The cited constitutional provision only requires waiver of immunity where the liability sought to be enforced Is historically immune from suit without legislative consent under the judicially-created doctrines recognizing the immunity (which commonly involves torts committed by governmental officers in the performance of purely governmental functions). Hamilton v. City of Shreveport, 247 La. 784, 174 So.2d 529; Toppi v. Arbour, La.App.1st Cir., 119 So.2d 621, certiorari denied. Historically, however, no waiver is required for suits to enjoin enforcement of unconstitutional legislation or for suits against the State or its agencies to enforce rights granted directly by the constitution. West v. Town of Winnsboro, 252 La. 605, 211 So.2d 665; Carso v. Board of Liquidation of State Debt, 205 La. 368, 17 So.2d 358; Westwego Canal and Terminal Co., Inc. v. La. Highway Commission, 200 La. 990, 9 So.2d 389, 392.

No authority is cited in support of the contention that the consent of the legislature must be obtained before the courts can hear a questioning of the constitutionality of a legislative act. If this contention were sustained, judicial review of unconstitutional acts of the legislature could not occur unless the same legislature which enacted unconstitutional acts, also consented to suit questioning them. To so hold, would deprive citizens of the constitutionally protected rights unless the legislature in its discretion desired to permit the aggrieved parties to invoke them. Such a holding in our opinion would be unsound and is contrary to our constitutional scheme, which provides for checks and balances between the three departments of government, with judicial review being a traditional safeguard against unconstitutional legislative action.

We therefore overrule the State's plea of sovereign immunity. Cf. Abelson's Inc. v. New Jersey State Board of Optometrists, 5 N.J. 412, 75 A.2d 867, 22 A.L.R.2d 929 (1950).

2. Right of Interveners to Urge Exception of No Cause of Action.

A petition of intervention was filed, with court approval, by the Professional Fire Fighters Association of Louisiana, by Local Union 1798 of that labor organization, and by the 12 members of the Natchitoches Fire Department comprising that local. These parties intervened to join with the defendant in resisting the claim of the plaintiffs that the statutes questioned were unconstitutional or invalid.

The interveners filed a peremptory exception of no cause of action to the plaintiffs' petition, praying that the demands of the plaintiffs be dismissed. They also filed an exception of no cause of action praying for dismissal of the plaintiffs' rule for preliminary injunction against enforcement of criminal penalties.

Aside from the State of Louisiana, the defendants in this action are the district attorney, the sheriff, and the committing magistrate (the city judge) of the parish and ward in which the City of Natchitoches is situated. These party defendants never filed any pleadings. It is of course apparent that these individual defendants are without official interest favoring the contentions of either party, being in reality neutral officials awaiting the command of the court as to the validity or not of the minimum-pay provisions...