Guillory v. Jones

• Decision Date: 03 March 1941
• Docket Number: 36093.
• Citation: 1 So.2d 65,197 La. 165
• Court: Louisiana Supreme Court
• Parties: GUILLORY v. JONES, Governor, et al.

1 So.2d 65

197 La. 165

GUILLORY v. JONES, Governor, et al.

No. 36093.

Supreme Court of Louisiana

March 3, 1941

Eugene Stanley, Atty. Gen., A. M. Suthon, Sp. Asst Atty. Gen., and A. V. Pavy, Seth Lewis, C. F. Boagni, Jr. and Lawrence B. Sandoz, all of Opelousas, for applicant.

Wallace & Martin, of Baton Rouge, for respondents.

O'NIELL Chief Justice.

Under the provisions of Section 31 of Article VII of the Constitution of 1921, up to November 1936, the State was divided into twenty-six judicial districts. The thirteenth district was composed of the parishes of St. Landry and Evangeline, and the fifteenth district was composed of the parishes of Acadia, Lafayette and Vermilion. By Act No. 3 of the Fourth Extra Session of the Legislature of 1935, the parish of St Landry was transferred to the fifteenth district. And by a constitutional amendment adopted at the November election in 1936, according to a joint resolution known as Act No. 62 of the regular session of the Legislature of that year, Section 31 of Article VII of the Constitution was amended so as to increase the number of judicial districts to twenty-seven, by taking the parish of St. Landry out of the fifteenth district and making that parish the twenty-seventh district. It was provided in this amendment that the Governor should appoint a district judge and a district attorney for the twenty-seventh judicial district to serve until the expiration of the terms of office of the district judges elected throughout the state in the November election of that year. Their terms will expire on December 31, 1942. On December 3, 1936, the Governor appointed Isom J. Guillory judge of the district court and at the same time appointed a district attorney for the twenty-seventh judicial district for the term which would expire on December 31, 1942. Judge Guillory and the newly appointed district attorney each promptly took his oath of office and entered upon his official duties. Judge Guillory has remained in office to this day, and is the plaintiff in this suit.

The district judges and district attorneys throughout the state are elected at the November election every six years, the six-year terms having commenced in 1924. It is so provided in the Constitution, in Article VII, in Section 33 as to district judges and in Section 58 as to district attorneys. The authority of the Governor to fill vacancies occurring in the office of district judge or district attorney, by appointment for the unexpired portion of the term, is limited by Section 69 of Article VII of the Constitution to cases where the unexpired portion of the term is less than a year. If it is a year or more the Governor must call a special election to fill the vacancy.

At the time when Judge Guillory was appointed, and until the Constitution was amended at the November election in 1940, all judges of the state courts, whether elected or appointed, were protected in their tenure of office, against any act of the Legislature--other than a constitutional amendment--by Section 40 of Article VII of the Constitution, thus: 'No judge of any court of the State, except as otherwise provided in this Constitution, shall be affected in his term of office, salary, or jurisdiction as to amount, during the term. or period for which he was elected or appointed; and any legislation so affecting any judge or court shall take effect only at the end of the term of office of the judge or judges, incumbents of the court, or courts, to which such legislation may apply at the time of its enactment.'

At the November election in 1940 this section--Section 40 of Article VII--of the Constitution was amended according to a joint resolution known as Act No. 386 of the regular session of the Legislature of that year, so as to make this section applicable only to elected judges and to judges appointed to fill a vacancy where the unexpired portion of the term is less than a year,--and so as to read as follows: 'No elected judge of any court of the State, except as otherwise provided in this Constitution, shall be affected in his term of office, salary, or jurisdiction as to amount, during the term or period for which he was elected; and any legislation so affecting any such judge or court shall take effect only at the end of the term of office of such judge or judges, incumbents of the court, or courts, to which such legislation may apply at the time of its enactment; provided however that nothing in this amendment shall affect the present provisions of this Constitution with respect to judges appointed to fill an unexpired term of less than one year under the provisions of this Constitution. The term of office, salary, or jurisdiction as to amount, during the term or period for which such judges were appointed shall in no way be changed by this amendment.'

The purpose and effect of this amendment of Section 40 of Article VII of the Constitution was to clear the way for an amendment of Section 31, which amendment was adopted at the same time, and which otherwise would be not consistent with Section 40 so far as it protected Judge Guillory in his term of office. We refer now to the amendment of Section 31, which amendment was adopted at the November election in 1940, pursuant to the joint resolution known as Act No. 387 of the regular session of the Legislature of that year, and which had the effect of removing from office Judge Guillory and the district attorney who had been appointed for the twenty-seventh judicial district, thus: 'The offices of Judge and District Attorney in the Twenty-Seventh District are declared vacant and within thirty days after the adoption of this amendment the Governor shall call an election in said district for the purpose of electing a Judge and District Attorney for said Twenty-Seventh District as in the case of vacancies in such offices, and said offices shall be filled thereafter as provided by existing law. The present occupants of said offices shall serve until those elected at said election have qualified.'

The date of the election at which these constitutional amendments were adopted was November 5, 1940. On November 16 the Governor signed and on November 20 published his proclamation, declaring that the amendments were adopted, and giving the number of votes cast for and against each amendment. And, on November 16, the Governor issued his proclamation calling a special election to be held in the twenty-seventh judicial district on December 31, 1940, to fill the vacancy in the office of district judge and in the office of district attorney for that district, according to the provisions of Act No. 387 of 1940, as ratified at the November election.

Kenneth Boagni was the only candidate for the office of district judge and Seth Lewis was the only candidate for the office of district attorney in the election that was to be held on December 31, 1940. They were the nominees of the Democratic party. On the 26th day of December, 1940, after the time allowed by law for the qualifying of independent candidates had expired, the Lieutenant Governor, acting Governor in the absence of the Governor from the State, issued a proclamation declaring the fact that Boagni and Lewis were the only qualified candidates, and declaring them to be therefore the choice of the people and the duly elected District Judge and District Attorney, respectively, in and for the Twenty-seventh Judicial District. The authority of the Governor thus to dispense with an election,--other than a general state election or congressional election,--and to proclaim the candidate elected,--when only one candidate has announced and qualified for a particular office,--and when the time allowed by law for the announcing and qualifying of candidates has elapsed,--is given in Section 15 of Article VIII of the Constitution, as amended in November, 1934, according to Act No. 80 of the regular session of the Legislature of that year.

No one contested the title of Seth Lewis to the office of district attorney. But, before the time came for the Governor to issue a commission to Kenneth Boagni as district judge, Judge Guillory filed this injunction suit against the Governor and the Secretary of State and Boagni, and asked for a temporary restraining order and a rule to show cause why a preliminary injunction should not be granted to prevent the Governor from issuing a commission to Boagni, and to prevent the Secretary of State from countersigning or delivering the commission and to prevent Boagni from taking the oath of office or interfering with Judge Guillory's performing the duties of the office, until such time as Judge Guillory's title to the office could be adjudicated in an appropriate proceeding to be brought by Boagni. Judge Guillory pleaded that the constitutional amendment by which his office was declared vacant was itself unconstitutional, because it deprived him of a vested right to the honors and emoluments of the office until the end of the year 1942, and thus violated the State's obligation of the contract which had resulted from his being appointed to the office and his acceptance thereof, and therefore violated the contract clause in Section 15 of Article IV of the Constitution of Louisiana and in Section 10 of Article I of the Constitution of the United States; and that the attempt to take away from him the honors and emoluments of his office before the expiration of the term for which he was appointed was an attempt to deprive him of his property without due process of law, and to deny him the equal protection of the law, all in violation of the Fourteenth Amendment of the Constitution of the United States and Section 2 of Article I of the Constitution of Louisiana. In this connection Judge Guillory pleaded that the constitutional amend...