City of New Orleans v. Board of Fire Commissioners

• Decision Date: 20 June 1898
• Docket Number: 12,767
• Citation: 23 So. 906,50 La.Ann. 1000
• Court: Louisiana Supreme Court
• Parties: CITY OF NEW ORLEANS, MAYOR AND BOARD OF CIVIL SERVICE COMMISSIONERS v. BOARD OF FIRE COMMISSIONERS

23 So. 906

50 La.Ann. 1000

CITY OF NEW ORLEANS, MAYOR AND BOARD OF CIVIL SERVICE COMMISSIONERS v. BOARD OF FIRE COMMISSIONERS

No. 12,767

Supreme Court of Louisiana

June 20, 1898

Argued April 20, 1898.

APPEAL from the Civil District Court for the Parish of Orleans Rightor, J.

Samuel L. Gilmore, City Attorney, (Howe, Spencer & Cocke of Council), for Plaintiffs, Appellants.

E. A O'Sullivan, for Defendants, Appellees.

Farrar Jonas, Kruttschnitt & Gurley for Moulin, also Defendant and Appellee.

OPINION

BLANCHARD, J.

This is a contest between the Board of Civil Service Commissioners, on the one side, and the Board of Fire Commissioners, on the other side, of the city of New Orleans, over the validity of the appointment of Thomas J. Moulin to the office of Secretary-Treasurer of the Board of Fire Commissioners. See 49 An. 1323.

The question presented is whether Moulin, who is made a party defendant, was legally chosen on the 22d of March, 1897, to the position mentioned.

There is no disputed issue of fact in the case. On the 19th of March, 1897, the then existing Secretary-Treasurer of the Board of Fire Commissioners resigned, and at a regular meeting of the board held on March 22nd Moulin was elected to fill the vacancy. He entered upon the discharge of the duties of the office and still continues to discharge the same.

In May, 1897, the Board of Civil Service Commissioners brought this action, the object of which is to have the election of the said Moulin declared illegal and void as being in contravention of the Civil Service law enacted for the city of New Orleans and made part of the charter of the city adopted in 1896. See Secs. 39 to 67, inclusive, of Act No. 45 of the acts of 1896.

The three members of the Board of Civil Service Commissioners, provided for by the act, who had been appointed by the mayor and confirmed by the council, qualified by taking the oath on the 29th of January, 1897, and partially organized on that day by choosing one of their number President of the Board.

On March 19th -- the day the vacancy occurred in the office now in dispute -- the Board met and completed its organization by the provisional appointment of a secretary, assistant examiner, stenographer and porter. A motion was then adopted that all positions in the police force, except that of superintendent and "all positions under the Board of Fire Commissioners in the fire force, except that of Chief Engineer * * * are hereby classified and included in the provisions establishing the civil service."

It was next ordered that a communication, which had been prepared, addressed to the Board of Fire Commissioners, relative to the office of secretary-treasurer of said Board, be sent to the latter.

This communication, which bears the date of March 19, 1897, in substance, apprised the Board of Fire Commissioners that the Civil Service Board had organized, had proceeded with the classification of the offices and places of employment in the city, that rules for examinations, appointments and removals, in conformity with the charter, would be forthwith published, and that the Board of Civil Service Commissioners would be ready within fifteen days to examine all applicants for the position of Secretary-Treasurer of the Fire Board just made vacant by the resignation of the incumbent. It further announced that the position named was subject to classification under the Civil Service law, and could be filled only through that medium and pursuant to the rules and regulations prescribed by the Civil Service Commissioners. In support of its contention that this office was covered by the Civil Service, Sec. 57 of the Charter was cited.

The communication then suggested that if a temporary appointment to fill the vacancy was made necessary by the exigencies of the public business, such temporary appointment could be made by the President of the Board of Fire Commissioners, with the approval of the Board of Civil Service Commissioners, under Sec. 46 of the Charter, such designation, however, to remain in force not exceeding sixty days and only until a regular appointment under Civil Service rules could be made.

The Board of Fire Commissioners, advised that the position of its Secretary-Treasurer was not covered by the terms of the Civil Service statute, proceeded to the election of Mr. Moulin as heretofore stated.

Notwithstanding this the Board of Civil Service Commissioners proceeded on March 31st to give notice of competitive examination for the position of secretary-treasurer of the Fire Board, which notice was duly published, and the examination was held on April 22nd, resulting in the selection of Philo A. Tucker, who was, on May 4th, certified to the Fire Board for permanent appointment as its secretary-treasurer.

The Fire Board replied, reiterating its position that its secretary-treasuryship was not subject to the civil service provisions of the city charter, and that no vacancy existed in said office, Mr. Moulin having been elected two months previously.

This was followed by the present suit.

As a matter of fact, the evidence discloses that the date when the rules and regulations for the government of the Civil Service Commission, in respect to examinations, appointments and removals, were approved was March 24th, that the same were adopted as a whole on March 29th, and published first on April 1st, to take effect, under the law, on April 12th.

The secretary of the Civil Service Board stated as a fact, on the stand, that between the 22d of March (the date of the election of Moulin) to the 12th of April there were no rules governing examinations, appointments and removals.

The grounds of defence urged against plaintiffs' demand are:

1. The unconstitutionality of those sections of Act 45 of 1890 (city charter), establishing the Board of Civil Service Commissioners, and providing for civil service in the city of New Orleans, in so far as the same purport or assume to regulate, change, alter or amend the constitution, powers and duties of the Board of Fire Commissioners, created by Act No. 83 of 1894, for this, to-wit: That in the particulars aforesaid the said act fails to express its object in its title, and is, therefore, violative of Art. 29 of the Constitution of 1879.

2. That the Board of Civil Service Commissioners was not organized and ready with its list of eligibles when the vacancy to which Moulin was elected occurred; no rules and regulations had been formulated; no classification of the various offices for civil service purposes had been...