Dore v. Tugwell, Nos. 42426

CourtSupreme Court of Louisiana
Writing for the CourtMcCALEB; Hugo Dore; Hal A. Burgess
Citation84 So.2d 199,228 La. 807
Decision Date07 November 1955
Docket Number42427,Nos. 42426
PartiesMrs. Emma Lou Joffrion DORE v. A. P. TUGWELL, Treasurer of the State of Louisiana et al. Mrs. Lettie Horn BURGESS v. Allison R. KOLB, Auditor of the State of Louisiana et al.

Page 199

84 So.2d 199
228 La. 807
Mrs. Emma Lou Joffrion DORE
v.
A. P. TUGWELL, Treasurer of the State of Louisiana et al.
Mrs. Lettie Horn BURGESS
v.
Allison R. KOLB, Auditor of the State of Louisiana et al.
Nos. 42426, 42427.
Supreme Court of Louisiana.
Nov. 7, 1955.
Rehearing Denied Dec. 12, 1955.

[228 La. 810]

Page 200

Fred S. LeBlanc, Atty. Gen., W. C. Perrault, First Asst. Atty. Gen., Carroll Buck, Second Asst. Atty. Gen., Percy J. Landry, Jr., Sp. Asst. Atty. Gen., for defendants-appellants.

Frank S. Craig, Jr., White & May, Benton & Moseley, Baton Rouge, for plaintiffs-appellees.

McCALEB, Justice.

The widows of two judges are seeking in these proceedings the issuance of writs of mandamus ordering the State Auditor and State Treasurer to approve their applications for, and to pay to each of them, a widow's pension to which they assert they are entitled under the provisions of Act 697 of 1954, R.S. 13:5.

[228 La. 811] Judge Hugo Dore died on April 28, 1953, at the age of 63. At that time, he was Senior Judge of the Court of Appeal, First Circuit, having served continuously as a member of that court since 1935. The term he was serving at the time of his death does not expire until 1962 and, if he had lived, he would have been eligible in 1955 for retirement under the provisions of Section 8 of Article VII of the Constitution, as he would have reached the age of 65 and would have completed more than 20 years of service as a Judge of a court of record. Judge Dore's widow was married to her late husband in 1914 and resided with him continuously until his death.

Judge Hal A. Burgess died on January 19, 1947, while serving as a Judge of the Eleventh Judicial District Court. He had been elected to that office in 1924 and served continuously until the time of his death. Had he lived to the end of the term for which he was elected in 1942, he would have been eligible for retirement under Section 8 of Article VII of the Constitution since he would have then completed more than 23 years of continuous service as a Judge of a court of record. Mrs. Burgess married her late husband in 1914 and lived with him continuously until his death.

Page 201

Following the enactment of Act 697 of 1954, which provides for the payment of a pension to the spouses of deceased judges possessing certain qualifications for eligibility, petitioners filed applications with the proper state officials for the benefits therein [228 La. 812] provided. The applications were refused on the ground that petitioners were ineligible under the terms of the Act. Hence these suits.

The respondents concede the facts, as above state, but assert that they should not be required to recognize the claim of petitioners for two reasons: (1) that Act 697 of 1954 is unconstitutional, being violative of Sections 3 and 12 of Article IV and Section 8 of Article VII of the State Constitution, as amended, and (2), alternatively, should it be held otherwise, petitioners are ineligible under the provisions of the Act for the benefits therein granted.

After a hearing in the district court, where the cases were consolidated for purposes of trial, the alternative writs of mandamus theretofore issued were made peremptory and respondents were ordered to comply with petitioners' demands. Respondents have appealed from the adverse judgments, reasserting in this court the contentions made below.

Before scrutinizing respondents' plea of unconstitutionality, we must initially determine whether these State Officers, charged merely with the performance of ministerial duties in relation to the statute, have any interest or right to challenge its validity. Petitioners objected in the district court to the consideration of the plea of unconstitutionality, citing State ex rel. New Orleans Canal & Banking Co. v. Heard, 47 La.Ann. 1679, 18 So. 746, 47 L.R.A. 512, as authority for their position. The [228 La. 813] Judge thought the point well taken but, nevertheless, as a matter of precaution, examined respondents' contentions and held the statute constitutional.

The Heard case, which represents the majority view in this country, enunciates the general rule 1 that a public officer, charged with statutory duties of a ministerial character, is without interest or right to question the constitutionality of the statute affecting or prescribing such duties as a defense to a mandamus proceeding to compel their performance. See Annotation 129 A.L.R. 941, supplementing 30 A.L.R. 378, and cases there cited. This doctrine is founded in the basic tenet that, forasmuch as legislative acts are entitled to great respect and are presumptively constitutional, it would be inimical to public policy to allow a party without interest in a statute, and who is not injuriously affected by its enforcement, to assail its validity. City of New Orleans v. Dameron, 149 La. 535, 89 So. 685.

The respondents profess that the holding in the Heard case was prompted by the peculiar facts therein under consideration and, hence, is inapplicable here. Furthermore, they declare that that decision has not been approved in the later jurisprudence on the subject, the case of State ex rel. Huggett v. Montgomery, La.App., 167 So. 147, being cited in support of this proposition.

[228 La. 814] There is no substance in the contention that there is a material difference between the instant suits and the Heard case, which was a mandamus proceeding to compel the State Auditor and State Treasurer to warrant and pay certain claims as directed by an Act of the Legislature. The respondents there, as here, assailed the constitutionality of the statute but the court held that they were without interest to do so.

Nor do we find merit in the argument that the doctrine of the Heard case has not been followed in the later jurisprudence as we know of no pronouncement by this Court wherein the soundness of that decision has been questioned.

State ex rel. Huggett v. Montgomery, supra, relied on by respondents, was a mandamus proceeding to compel the tax collector of the City of New Orleans to cancel

Page 202

certain taxes in conformity with Act 161 of 1934, as amended, which entitled relator to a cancellation of all...

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47 practice notes
  • Lockyer v. City and County of San Francisco, No. S122923
    • United States
    • United States State Supreme Court (California)
    • August 12, 2004
    ...Keller (1937) 223 Iowa 1372, 275 N.W. 94, 95-97]; Tincher v. Commonwealth (1925) 208 Ky. 661, 271 S.W. 1066, 1068; Dore v. Tugwell (1955) 228 La. 807, 84 So.2d 199, 201-202 [foll. State v. Heard (La.1895) 18 So. 746, 749-752]; Smyth v. Titcomb (1850) 31 Me. 272, 285; Maryland Classified Emp......
  • Delaune v. Saint Marine Transp. Co., Civ. A. No. 89-3019.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • November 7, 1990
    ...(5th Cir.1988); see Fireside Mutual Life Insurance Co. v. Martin, 223 La. 583, 66 So.2d 511, 512 (1953). 69 See, e.g., Dore v. Tugwell, 228 La. 807, 84 So.2d 199, 204 & n. 6 70 The two 1989 cases upholding awards in direct actions against marine P & I underwriters — Tesvich, 547 So.2d 1106 ......
  • Summerell v. Phillips, No. 50781
    • United States
    • Supreme Court of Louisiana
    • May 4, 1971
    ...the constitutionality of a statute pertaining to his official duties. See Smith v. Flournoy, 238 La. 432, 115 So.2d 809; Dore v. Tugwell, 228 La. 807, 84 So.2d 199; State v. Heard, 41 La.Ann. 1679, 18 So. 4 See also Gautreau v. Board of Electrical Examiners, La.App., 167 So.2d 425, where, i......
  • Free v. Abbott Laboratories, Inc., No. 97-31341
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 19, 1999
    ...be interpreted so that no clause, sentence, or word shall be superfluous, or meaningless, if that result can be avoided." Dore v. Tugwell, 228 La. 807, 84 So.2d 199, 204 n. 6 (La.1955) (internal quotations omitted) (quoting Hibernia Nat'l Bank v. Louisiana Tax Comm'n., 195 La. 43, 196 So. 1......
  • Request a trial to view additional results
47 cases
  • Lockyer v. City and County of San Francisco, No. S122923
    • United States
    • United States State Supreme Court (California)
    • August 12, 2004
    ...Keller (1937) 223 Iowa 1372, 275 N.W. 94, 95-97]; Tincher v. Commonwealth (1925) 208 Ky. 661, 271 S.W. 1066, 1068; Dore v. Tugwell (1955) 228 La. 807, 84 So.2d 199, 201-202 [foll. State v. Heard (La.1895) 18 So. 746, 749-752]; Smyth v. Titcomb (1850) 31 Me. 272, 285; Maryland Classified Emp......
  • Delaune v. Saint Marine Transp. Co., Civ. A. No. 89-3019.
    • United States
    • United States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
    • November 7, 1990
    ...(5th Cir.1988); see Fireside Mutual Life Insurance Co. v. Martin, 223 La. 583, 66 So.2d 511, 512 (1953). 69 See, e.g., Dore v. Tugwell, 228 La. 807, 84 So.2d 199, 204 & n. 6 70 The two 1989 cases upholding awards in direct actions against marine P & I underwriters — Tesvich, 547 So.2d 1106 ......
  • Summerell v. Phillips, No. 50781
    • United States
    • Supreme Court of Louisiana
    • May 4, 1971
    ...the constitutionality of a statute pertaining to his official duties. See Smith v. Flournoy, 238 La. 432, 115 So.2d 809; Dore v. Tugwell, 228 La. 807, 84 So.2d 199; State v. Heard, 41 La.Ann. 1679, 18 So. 4 See also Gautreau v. Board of Electrical Examiners, La.App., 167 So.2d 425, where, i......
  • Free v. Abbott Laboratories, Inc., No. 97-31341
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 19, 1999
    ...be interpreted so that no clause, sentence, or word shall be superfluous, or meaningless, if that result can be avoided." Dore v. Tugwell, 228 La. 807, 84 So.2d 199, 204 n. 6 (La.1955) (internal quotations omitted) (quoting Hibernia Nat'l Bank v. Louisiana Tax Comm'n., 195 La. 43, 196 So. 1......
  • Request a trial to view additional results

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