State ex rel. Tallant v. Board of Com'rs of the Port of New Orleans

• Decision Date: 03 May 1926
• Docket Number: 27509
• Parties: STATE ex rel. TALLANT v. BOARD OF COM'RS OF THE PORT OF NEW ORLEANS
• Court: Louisiana Supreme Court

108 So. 770

161 La. 361

STATE ex rel. TALLANT v. BOARD OF COM'RS OF THE PORT OF NEW ORLEANS

No. 27509

Supreme Court of Louisiana

May 3, 1926

Rehearing Denied May 31, 1926

Appeal from Civil District Court, Parish of Orleans; Hugh C. Cage Judge.

Mandamus by the State of Louisiana, on the relation of Drury J Tallant, against the Board of Commissioners of the Port of New Orleans. Decree for petitioner, and defendant appeals.

Affirmed.

Harold A. Moise, of New Orleans, for appellant.

Merrick & Schwarz and William J. Guste, Trial Atty., all of New Orleans, for appellee.

ST. PAUL, J. O'NIELL, C. J.

OPINION

ST. PAUL, J.

In the preamble to Act 70 of 1896, p. 102, the people of the state of Louisiana, through their representatives in General Assembly convened (quorum pars magna fui), recognized and published the fact that the port of New Orleans had been gradually extended until it had reached beyond the limits and jurisdiction of the city of New Orleans; but that the divided authority of three parishes (Orleans, Jefferson, and St. Bernard) and the multiplicity of officials, with their various fees and charges, were operating to injure the traffic of said port, by imposing a tax on shipping of such proportions as threatened to divert the trade thereof to less expensive shipping points and foster the development of rival ports.

Whereupon they declared (as indeed they hoped) that the supervision and control of "an intelligent board of state commissioners" could consolidate the services of all these various harbor masters, port wardens, wharf superintendents, and wharfingers, into one set of competent employees at reduced expense; could operate the wharves and terminal facilities of said port at reduced cost; could remove the many obstacles that then stood in the way of the port's advancement (principally politics, though not mentioned eo nomine); and could thus "greatly develop and expand its commerce."

And thereupon the General Assembly, by said Act No. 70 of 1896, amended by Act 36 of 1900 and Act 14 of 1915 (Ex. Sess.), took over, for the state, all the facilities of the harbor and port of New Orleans, and gave the regulation, control and management of the commerce of that great port (extending through and into the parishes of Orleans, Jefferson, and St. Bernard) to a state commission (the members thereof to be appointed by the Governor of the state), as a state agency to administer the aforesaid public property. Cf. Duffy v. City of New Orleans, 49 La.Ann. 114, 21 So. 179.

I.

The commission thus created is the "board of Commissioners of the port of New Orleans," the defendant here.

And we make mention of the purpose of its creation, of its status, and of the nature of the property under its administration to the end that it may be observed that defendant is not a corporation but a mere state agency; that the property under its administration is not its own but public property; that the purpose for which defendant was created was to "remove the obstacles" in the way of the advancement and prosperity of the port of New Orleans and lighten the burden on its commerce by reducing expenses and selecting competent employees. So that when the General Assembly of the state (now "the Legislature") deals with the affairs of the board of commissioners of the port of New Orleans, it is as a master speaking to his servant with respect to that which is the master's own. Its commands in such matters transcend, as it were, the domain of ordinary legislation; it then speaks with dual authority, that of sovereign and that of master. Cf. Lacoste v. Department of Conservation, 151 La. 909, 92 So. 381. Which will assist materially to a clearer understanding of the matter before us.

II.

At an Extraordinary Session held in the year 1915, and called for that express purpose , among others (see Const. 1913, art. 75), the General Assembly took such steps as it thought necessary (and hoped would prove effective) to secure in a measure the "competent employees" which the defendant was alone expected to maintain. It passed Act No. 15 of 1915 (Ex. Sess.) p. 37, by which it provided certain civil service regulations for the employment of persons in the warehouses and other structures authorized by article 322 of the Constitution of 1913. A "board of examiners" was created, on whose recommendation only such persons were to be employed, "save and except * * * watchmen, patrolmen, firemen, and unskilled laborers drawing $ 75 per month or less," and excepting also, samplers, weighers, and inspectors of cotton, to be recommended by the New Orleans Cotton Exchange, and (probably) professional persons and other experts employed only for some special service or for a limited time.

And so intent was the General Assembly that the act should be observed in spirit as well as in form, that it denied to the board of port commissioners the right to name the (three) members of the board of examiners; these were to be appointed by the Governor of the state, one on the recommendation of the New Orleans Cotton Exchange, one on the recommendation of the New Orleans Board of Trade, and the third alone on the recommendation of the board of port commissioners.

And in furtherance of the intent to have the board of port commissioners not only secure but also retain "competent employees," the act provided in the very final clause thereof (legislator's last thought) that:

"They (the employees appointed in accordance with the recommendation of the examiners) shall only be removed on charges preferred against them to said Board of Commissioners, and which shall be proven contradictorily against them to the satisfaction of said Board."

It is, however, one thing to command, but quite another to be obeyed willingly. See State ex rel. Sonnenberg v. Board of Comm'rs of Port of New Orleans, 149 La. 1095, 90 So. 417; State ex rel. Hughes v. Board of Comm'rs of Port of New Orleans, 150 La. 1, 90 So. 419; State ex rel. Exnicios v. Board of Comm'rs of Port of New Orleans, 153 La. 705, 96 So. 539; State ex rel. Skelly v. Board of Comm'rs of Port of New Orleans, 159 La. 465, 105 So. 510.

III.

The case now before us is thus stated and disposed of by the district judge, whose opinion accords with the law as set forth above and the jurisprudence as established in the cases last above cited, and we now adopt it as our own, as follows, viz.:

"Opinion of the District Judge.

"Cage District Judge. The relator, who held the position of unit clerk of shed L of the cotton warehouse in this city, owned [by the people of the state of Louisiana] and operated by the respondent, was removed from that position under a so-called indefinite suspension, and was [thereafter]...