New Orleans Firefighters Ass'n Local 632 v. City of New Orleans

• Decision Date: 12 January 1970
• Docket Number: Nos. 3911--3913,s. 3911--3913
• Citation: 230 So.2d 326
• Parties: NEW ORLEANS FIREFIGHTERS ASSOCIATION LOCAL 632, Joseph A. Sanchez and Robert Treadaway v. CITY OF NEW ORLEANS, the Council of the City of New Orleans, John J. Petre, Maurice A. Landrieu, Henry B. Curtis, Eddie L. Sapir, Clarence O. Dupuy, James A. Moreau and Philip C. Ciaccio (two cases) . NEW ORLEANS FIREFIGHTERS ASSOCIATION LOCAL 632, Joseph A. Sanchez, Joseph Elton Viola, Louis Truxillo, Charles Sauter, Thomas Kennedy and Maurice S. Cazaubon, Sr. v. CITY OF NEW ORLEANS, the Council of the City of New Orleans, John J. Petre, Maurice A. Landrieu, Henry B. Curtis, Eddie L. Sapir, Clarence O. Dupuy, James A. Moreau and Philip C. Ciaccio.
• Court: Court of Appeal of Louisiana — District of US

Page 326

230 So.2d 326

NEW ORLEANS FIREFIGHTERS ASSOCIATION LOCAL 632, Joseph A.

Sanchez and Robert Treadaway v. CITY OF NEW ORLEANS, the Council of the City of New Orleans, John J. Petre, Maurice A. Landrieu, Henry B. Curtis, Eddie

L. Sapir, Clarence O. Dupuy, James A. Moreau and Philip C.

Ciaccio (two cases) .

NEW ORLEANS FIREFIGHTERS ASSOCIATION LOCAL 632, Joseph A.

Sanchez, Joseph Elton Viola, Louis Truxillo, Charles Sauter, Thomas Kennedy and Maurice S. Cazaubon, Sr. v. CITY OF NEW ORLEANS, the Council of the City of New Orleans, John J. Petre, Maurice A. Landrieu, Henry B.

Curtis, Eddie L. Sapir, Clarence O.

Dupuy, James A. Moreau and

Philip C. Ciaccio.

Nos. 3911--3913.

Court of Appeal of Louisiana, Fourth Circuit.

Jan. 12, 1970.

Rehearing Denied Feb. 2, 1970.

Writ Refused March 12, 1970.

Dodd, Hirsch, Barker, Meunier, Boudreaux & Lamy, C. Paul Barker, Maurice S. Cazaubon, Jr., New Orleans, for plaintiffs-appellees.

Alvin J. Liska, Beuker F. Amann, Jackson P. McNeely, New Orleans, for defendants-appellants.

Ralph D. Dwyer, Jr., New Orleans, for Louisiana Civil Service League as amicus curiae.

Before CHASEZ, HALL and BARNETTE, JJ.

BARNETTE, Judge.

These three suits are companion cases and bear consecutive numbers on the docket of the Civil District Court for the Parish of Orleans and consecutive numbers on the docket of this court. They were consolidated for trial in the district court and are consolidated in this court on appeal. The issues are substantially the same in all three cases.

The plaintiffs are New Orleans Firefighters Association Local 632 in each case and certain named individuals respectively in each of the three cases. In addition to the specifically named plaintiffs the suits are brought as class actions on behalf of all persons similarly situated and having a common interest in the subject matter in litigation.

We will state the object of each suit in the order of its number on the court's docket. The first suit seeks the issuance of a writ of mandamus to compel the City Council of the City of New Orleans to appropriate the necessary funds to implement Act 57 of the Extra Session of 1968 which amends LSA-R.S. 33:1996 to provide increased vacation periods for firemen with pay.

The second suit seeks a writ of mandamus to compel the City Council to appropriate sufficient funds to implement Act 55 of the Extra Session of 1968 amending LSA-R.S. 33:1992 relative to minimum salaries of firemen, and particularly that portion of the act which reads as follows:

'From and after the first day of August, 1962, each member of the fire department who has had three years continuous service shall receive an increase in salary of two percent and shall thereafter receive an increase in salary of two percent for each year of additional service up to and including twenty years. Both the base pay and accrued longevity shall be used in computing such longevity pay.' (Emphasis added.)

The foregoing last sentence which we have italicized for emphasis was added by the amending Act 55 of the Extra Session of 1968.

The third suit seeks a writ of mandamus to compel the implementation of that portion of Act 55 which increases the minimum salary schedule for firemen, particularly as it provides for certain named classifications of employees within the New Orleans Fire Department.

After a hearing in which all essetial facts were either stipulated or not contested, a judgment was rendered in each case as prayed for by the plaintiffs. The City of New Orleans, acting through the City Council, and the individually named members thereof, appealed.

After argument and submission of the case on appeal, we granted leave to the Louisiana Civil Service League to file brief as amicus curiae.

The City Council, acting for and on behalf of the City of New Orleans, has asserted the defense that the mandates sought to be imposed upon the City pursuant to Acts 55 and 57 of the Extra Session of 1968 are violative of the Constitution of Louisiana and particularly Article 14, section 15, which relates to civil service systems for cities having a population exceeding 250,000, and Article 14, section 22 of the Constitution, commonly called the Home Rule Amendment for the City of New Orleans.

The trial judge overruled certain exceptions which need not be discussed here, and concluded his reasons for judgment as follows:

'Having overruled the exceptions, the Court is unable to do other than to grant the Writs of Mandamus as prayed for by the plaintiffs in the cases.

'The evidence offered by plaintiffs is sufficient to show that the City has not done that which it has been required to do under the provisions of Acts 55 and 57 of the Extraordinary Session of the Louisiana Legislature of 1968, and the defendants have not offered any evidence to refute this fact.

'Hence, that which the defendants, the members of the City Council, are required to do under the provisions of Acts 55 and 57 becomes a ministerial duty which the Court, under the circumstances (and especially in view of the decision in the hereinabove cited Natchitoches case), must compel them by Mandamus to do.

'For the reasons herein stated, there will be Judgment in each of the three cases as prayed for by the plaintiffs.'

In City of Natchitoches v. State, 221 So.2d 534 (La.App.3d Cir. 1969) (writs refused by Supreme Court, 254 La. 464, 223 So.2d 870), the plaintiffs, City of Natchitoches, Mayor and City Commissioners, pleaded the unconstitutionality of Acts 55 and 57 as being in violation of Article 14, section 40 (the home rule section for Natchitoches) and Article 14, section 15.1, the civil service section relating to cities of 13,000 to 250,000. The issues raised in that case, therefore, were identical to the issues here except that they are based upon different sections of Article 14 of the Constitution relating to the same subjects. There is some difference in the wording of the sections, and we must first determine if this is such as to justify a different conclusion.

The pertinent portion of the sections on home rule are as follows:

1. For New Orleans:

'The City of New Orleans, in addition to powers expressly conferred upon it by Act 159 of 1912, as amended through the Regular Legislative Session of 1950, shall have the right and authority to adopt and enforce local police, sanitary and similar regulations and to do and perform all of the acts pertaining to its local affairs, property and government, which are necessary or proper in the legitimate exercise of its corporate powers and municipal functions. The City of New Orleans shall, however, not exercise any power or authority which is inconsistent or in conflict with any general law.' LSA-Const. Art. 14, § 22 at 151.

2. For the City of Natchitoches:

'(d) The provisions of this constitution and of any general laws passed by the legislature shall be paramount and no municipality shall exercise any power or authority which is inconsistent or in conflict therewith. Subject to the foregoing restrictions every municipality shall have, in addition to the powers expressly conferred upon it, the additional right and authority to adopt and enforce local police, sanitary and similar regulations, and to do and perform all other acts pertaining to its local affairs, property and government which are necessary or proper in the legitimate exercise of its corporate powers and municipal functions.' LSA-Const. Art. 14, § 40 at 263.

We agree with the trial judge who found these two sections to have the same meaning. We also agree with our brothers of the Third Circuit who held in the Natchitoches case that Acts 55 and 57 are general laws. See City of Natchitoches v. State, 221 So.2d at p. 542. Since the foregoing constitutional sections relating to home rule expressly limit the municipal authority conferred to the extent that it shall not conflict with general laws enacted by the Legislature, Acts 55 and 57 of the Extra Session of 1968 are not violative of Article 14, section 22, the Home Rule section for the City of New Orleans.

In further attack on the constitutionality of Acts 55 and 57, the appellants contend that they are in conflict with Article 14 section 15 of the Constitution providing a Civil Service System for the City of New Orleans. This issue was pleaded also in the Natchitoches case, but the applicable constitutional provision for the City of Natchitoches is found in Article 14, section 15.1. There is considerable difference between the two sections which we will discuss below. In the Natchitoches case the court discussed the relevant provisions of the applicable section and concluded that the general laws (Acts 55 and 57) were not in conflict therewith. Appellants in this case contend that because of the difference in the constitutional section affecting the City of New Orleans relative to Civil Service the holding of the court in the Natchitoches case is not controlling in this case.

Article 14, section 15 of the Constitution is the source authority for the Civil Service System for all classified employees of the City of New Orleans, and is not limited to firemen or to firemen and policemen. The City of Natchitoches comes under Article 14, section 15.1 which is applicable exclusively to firemen and policemen in municipalities having a population of 13,000 to 250,000. This section is known and cited as 'The Municipal Fire and Police Civil Service Law.' LSA-Const. Art. 14, § 15.1(2).

Appellants contend that the ultimate authority for the adoption of a pay plan, vacation rights and other conditions of employment for civil service employees of the City of New Orleans, which includes its firemen, is vested in the City Council acting on recommendations of the City Civil Service Commission.

LSA-Const. Art. 14 § 15(I) provides in part as follows:

'(I). Rules and regulations; removal of names from lists; delegation of powers. There is vested in the State Civil Service Commission and in the appropriate...