Ward v. Leche

• Decision Date: 10 January 1938
• Docket Number: 34529
• Citation: 189 La. 113,179 So. 52
• Court: Louisiana Supreme Court
• Parties: WARD et al. v. LECHE, Governor, et al

179 So. 52

189 La. 113

WARD et al. v. LECHE, Governor, et al

No. 34529

Supreme Court of Louisiana

January 10, 1938

Rehearing Denied February 7, 1938

Appeal from Nineteenth Judicial District Court, Parish of East Baton Rouge; James D. Womack, Judge.

Action by John W. Ward, T. Ludlow McNeely, and others against Richard W. Leche, Governor of the State of Louisiana, and others to enjoin the enforcement of certain statutes as unconstitutional. From a judgment denying a preliminary injunction, all plaintiffs, except McNeely, appeal.

Affirmed.

Eugene Stanley, of New Orleans, for appellants.

Gaston L. Porterie, Atty. Gen., George M. Wallace, of Baton Rouge Executive Counsel, Lessley P. Gardiner, Asst. Atty. Gen., and Joseph A. Loret, Sp. Asst. Atty. Gen., for appellees.

FOURNET Justice. HIGGINS, J., absent. ODOM, J., and O'NIELL, C. J., dissent.

OPINION

FOURNET, Justice.

This is an action instituted by certain alleged citizens and taxpayers to enjoin the enforcement of Act No. 22 of the Second Extraordinary Session of 1934, as amended, and also that part of Act No. 5 of 1936 making an appropriation for the enforcement of the act, on the ground that the Act of 1934 is unconstitutional, and, consequently, the appropriation for the enforcement thereof is also unconstitutional.

The alleged grounds of unconstitutionality set forth in )the petition are substantially stated in plaintiffs' brief as follows: "a: It is not a civil service statute at all; b: Its provisions are contrary to the theory, reasoning and intent recognized as fundamental in the enactment of a civil service statute; c: It makes no provision for proper competitive examination on the part of the applicants, nor does it require the Commission to provide for proper competitive examination on the part of the applicants. d: It takes from the particular officer possessing the fundamental constitutional right to make the appointment not only the right to use his discretion in making the appointment, but the right of making the appointment itself, in violation of the Constitution of Louisiana. e: It substitutes the judgment and discretion of the Commission itself for that of the appointing officer. f: It does not establish a merit system of fitness and efficiency as the basis upon which the appointment should be made, but makes the Commission itself the actual appointing power. g: It purports to vest arbitrary discretion in public officers without prescribing a definite rule for their guidance. h: It violates section 16 of article 3 of the Constitution of Louisiana, for the reason that the title of the said act is not indicative of the objects contained in the act, in that while the title of the act expresses the intention to create a State Civil Service Commission, etc., the body of the act itself is not a civil service act in any respect, since it fails to contain any provisions necessary to constitute a valid civil service statute."

In response to the rule to show cause why a preliminary injunction should not issue, the defendants filed a number of dilatory exceptions and a return to the rule setting up, among other defenses, that plaintiffs' petition disclosed no cause or right of action.

For the purpose of the trial of the rule, plaintiffs filed a motion to obtain an order for a subpoena duces tecum to compel the secretary of the State Civil Service Commission to produce a number of books, papers, and documents. The secretary excepted on the ground that the facts which they intended to prove by such evidence were irrelevant and immaterial to the cause. The trial judge sustained the exception.

On the trial of the rule, the trial judge concluded that the attacks made, in plaintiffs' petition, on the constitutionality of Act No. 22 of the Second Extraordinary Session of 1934, as amended, were without merit, and, therefore, plaintiffs' petition disclosed no right or cause of action and rendered judgment refusing the preliminary injunction prayed for. From that judgment, all the plaintiffs, with the exception of T. Ludlow McNeely, have appealed.

The sole basis for this action is the unconstitutionality of the act vel non. The question of the constitutionality of an act of the Legislature presents a question of law only, State v. Capdevielle et al., 104 La. 561, 29 So. 215, and, consequently, any evidence as to the manner of enforcing the law has no bearing on its constitutionality. The trial judge, therefore, properly sustained the exceptions to the motion for a subpoena duces tecum to compel the production of the books, papers, and documents of the Civil Service Commission into court for the purpose of the trial of the rule on the application for a preliminary injunction in this case.

"It is elementary that all laws are presumed to be constitutional until the contrary is made clearly to appear, and that he who urges the unconstitutionality of a law must specially plead its unconstitutionality, and show specifically wherein it is unconstitutional," City of Shreveport v. Pedro, 170 La. 351, 127 So. 865, and "an exception of no cause of action admits the well pleaded facts, but not the conclusions of law contained in the petition," State ex rel. Garland v. Guillory, 184 La. 329, 166 So. 94, 101.

It appears from a reading of plaintiffs' lengthy petition and study of their counsel's voluminous brief that this suit is predicated on the theory that the Legislature is without authority to pass a statute applicable to state and parochial employees without creating a civil service system providing for the recognition and adoption of the merit system in the employment or appointment of applicants and for the discharge of employees for cause only. The answer to this is indicated by counsel's failure to point out any provision in the Constitution, and we know of none, save section 15 of article 14, which affects cities having a population of 100,000 or more only, placing such a limitation on the Legislature of the state, as "it is a recognized principle of constitutional law that except where limitations have been imposed by the federal and state constitution the power of the legislature is unlimited and practically absolute. * * *As a rule, therefore, and speaking generally a legislature may do what the state or federal constitution does not prohibit." Ruling Case Law, Vol. 6, § 152, p. 152. Courts are not at liberty to declare an act void because, in their opinion, it is opposed to the spirit supposed to pervade the Constitution; nor because of the harshness or unreasonableness of the act; nor can they inquire into the justice or injustice of a statutory provision, or the expediency or wisdom thereof, such being the exclusive province of the Legislature, and not of the courts; and "it is now generally recognized that the courts cannot annul or pronounce void any act of the legislature on any other ground than repugnancy to the constitution" (section 104). Ruling Case Law, Vol. 6, §§ 104, 105, 106, 107; and Corpus Juris, Vol. 12, §§ 170, 171, and 173. See, also, Grinage v. Publishing Co., 107 La. 121, 31 So. 682; State v. Rosborough, 152 La. 945, 94 So. 858.

Eliminating all extraneous allegations and conclusions of the pleader in this case, the attack on the constitutionality of the act resolves itself into a simple proposition, i. e., is the act in violation of section 16 of article 3 of the Constitution of 1921, for the reason, as stated in appellants' brief, "that the title of the said Act is not indicative of the objects contained in the act, in that while the title of the act expresses the intention to create a State Civil Service Commission, etc., the body of the act itself is not a civil service act. * * *" In other words, it is the contention of plaintiffs' counsel that the act violates the provision of the Constitution that "every law enacted by the Legislature shall embrace but one object, and shall have a title indicative of such object," article 3, § 16, in that one whose attention might be directed to the title of the act, whether it be legislator or citizen, would be misled into believing that the object of the act, as indicated by the title, was to adopt a classified civil service system or a "civil service reform system."

The term "civil service," in its accepted sense, "includes all functions under the government except military functions. In general it is confined to functions in the great administrative departments of state. In its enlarged sense the term means all service rendered to and paid for by the state, or nation, or by political subdivisions thereof, other than that pertaining to naval or military affairs; all offices and positions of trust or employment in the service of the state or of such civil division or city, except offices and positions in the militia and the military departments." Corpus Juris Vol. 11, p. 815. On the other...