Fakier v. Picou

• Decision Date: 01 July 1964
• Docket Number: No. 47067,47067
• Parties: William N. FAKIER v. Conrad PICOU, Mayor, et al.
• Court: Louisiana Supreme Court

Page 257

166 So.2d 257

246 La. 639

William N. FAKIER v. Conrad PICOU, Mayor, et al.

No. 47067.

Supreme Court of Louisiana.

July 1, 1964.

Borowski & McMahon, by Ted J. Borowski, Houma, for defendants-appellants.

H. Minor Pipes, Ralph D. Dwyer, Jr., New Orleans, for plaintiff-appellee.

HAMITER, Justice.

In this mandamus proceeding, instituted against Mayor Conrad Picou and the Board of Aldermen of the City of Houma, William N. Fakier seeks reinstatement as Chief of Police for the named city. From such position the defendants purportedly removed him by a letter of dismissal of date July 17, 1962.

The district court ruled that the office of plaintiff was within the classified service of Houma's Municipal Fire and Police Civil Service System and that, therefore, he could not be summarily dismissed. Accordingly, it decreed his reinstatement to such office and that he be restored to the rights, privileges and emoluments thereof from the date of the dismissal.

On an appeal to the Court of Appeal, First Circuit, the judgment was affirmed. 158 So.2d 285.

At the instance of defendants we granted certiorari; however, our review was limited to a consideration of the question of whether the plaintiff, as Houma's Chief of Police, is a classified civil service employee. 245 La. 636, 160 So.2d 227. (While the case was pending in this court Mayor Picou died; and, pursuant to a joint motion of the parties litigant, his successor, Leslie J. Broussard, was substituted in his stead).

The City of Houma was incorporated under the Lawrason Act, being Act No. 136 of 1898. That statute is now LRS 33:321--481, and the provisions thereof pertinent here read: Section 381--'The officers of every municipality shall be a mayor, aldermen, a marshal, a tax collector, a clerk and a street commissioner. * * * The mayor, aldermen, and marshall shall be elected by the people, * * *.' Section 423--'The marshal shall be ex-officio a constable. He shall be the chief of police and shall perform all other duties required of him by ordinance.'

The record shows that the plaintiff became Houma's Chief of Police on August 1, 1957, and he performed all of the duties of that office continuously until the issuance of the letter of dismissal dated July 17, 1962. Upon the promulgation of the federal census of 1960, which disclosed that the City of Houma then had a population in excess of 13,000, the Municipal Fire and Police Civil Service Law, being LRS 33:2471--2508 (originally Act No. 102 of 1944), automatically became operative in such city. Section 2481 of that law provides, among other things, as follows: 'A. The classified service shall comprise every position, except those included in the unclassified service, to which the right of employee selection, appointment, supervision, and discharge is vested in the municipal government or with an officer or employee thereof, and which has as its primary duty and responsibility one of the following:

'(Fire)

'(Police)

'(1) The chief and assistant chiefs; * * *.'

( Article 14, Section 15.1 of the Constitution of Louisiana, adopted as an amendment in 1952, virtually tracked the language of such legislative enactment, and gave constitutional status to the Municipal Fire and Police Civil Service System, except that it omitted a list of the classifications of the police personnel. However, considering the language of the 1952 amendment in its entirety, and the particular recognition in its Section 4 of the above mentioned statutory provisions, it is abundantly clear that the omission was a clerical oversight and wholly unintentional. Nevertheless, the effect of the omission gave rise to some of the divergent views of the opposing litigant herein. Thus, reference to the opinion of the Court of Appeal will show that a part of the defendants' case is based on the lack of the list of police personnel in the constitutional amendment. But such court, in answering the contention, treated the matter as if the missing classifications had been actually contained therein. In this connection, in their application to this court, the defendants assigned as error this allegedly unwarranted usurpation by the judiciary of a legislative function; and the assigning was largely responsible for our issuing the writ of certiorari. But, after further study of the issue, we are satisfied that in view of the civil service statute the result reached by the Court of Appeal (as well as that by the district court) was correct. Accordingly, we rest our decision on the pertinent statutory provisions, rather than on the discussed constitutional amendment. Incidentally, we think it appropriate to respectfully observe that the Legislature should, without undue delay, take steps to remedy the above mentioned clerical oversight and defect.)

On August 9, 1961 the governing authority of Houma, pursuant to LRS 33:2476 and with recognition of the automatic operation of the Civil Service Law, enacted Ordinance Number 2445 which created the Houma Fire and Police Civil Service Board, provided for the appointment of the members thereof, and authorized such Board to adopt and maintain classification plans for both the fire and police services of the city. In due course the Civil Service Board, on June 20, 1962, certified the plaintiff as the holder of the classified position of Houma's Chief of Police. His attempted dismissal, as above noted, occurred thereafter on July 17, 1962. Later, he appealed to the Houma Fire and Police Civil Service Board which ordered his reinstatement with back pay. When the defendants refused to abide by the order this mandamus suit followed.

As we have seen, Houma's Chief of Police in 1957 (when the plaintiff assumed the office) was not an appointive position; it was one to which the holder thereof was elected by popular vote. However, in 1958 the Legislature enacted Act No. 145, it relating to the City of Houma only and providing: 'Section 1. That the Board of Aldermen of the City of Houma shall have power to elect a Marshal, with such duties and salary as shall be fixed by the Board of Aldermen of the City of Houma. He shall serve at the pleasure of the Board of Aldermen.

'Section 2. That the Marshal of the City of Houma presently elected by the people of the City of Houma shall serve out his term but upon any vacancy hereafter arising in said office either by resignation, expiration of the term, or otherwise, the said office shall be hereafter filled by election of the Board...