Williams v. Guerre

• Decision Date: 07 June 1935
• Docket Number: 33409
• Citation: 162 So. 609,182 La. 745
• Court: Louisiana Supreme Court
• Parties: WILLIAMS, Criminal Sheriff, v. GUERRE, Superintendent of State Bureau of Criminal Identification and Investigation

162 So. 609

182 La. 745

WILLIAMS, Criminal Sheriff, v. GUERRE, Superintendent of State Bureau of Criminal Identification and Investigation

No. 33409

Supreme Court of Louisiana

June 7, 1935

Rehearing Denied July 1, 1935

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

Suit by George E. Williams, Criminal Sheriff for the Parish of Orleans, against Louis F. Guerre, Superintendent of the State Bureau of Criminal Identification and Investigation. From a judgment dismissing plaintiff's suit, plaintiff appeals.

Affirmed.

Warren Doyle and Edward Rightor, both of New Orleans, for appellant.

Gaston L. Porterie, Atty. Gen., and Geo. M. Wallace and James O'Connor, Asst. Attys. Gen., for appellee.

BRUNOT Justice. O'NIELL, C. J., and ROGERS, J., concur in the decree.

OPINION

BRUNOT, Justice.

This is a suit to enjoin the defendant from exercising the powers conferred upon him by Act No. 27 of the Third Extra Session of the Legislature of 1934.

The pleadings consist of an original and a supplemental and amended petition, to which the defendant filed exceptions of no right and no cause of action, and, with reservation of his rights thereunder, he categorically answered each article of the petitions. The court reserved its ruling on the exceptions, and every issue presented by the pleadings was argued and submitted to the court for decision. The court overruled the defendant's exceptions; it maintained the constitutionality of Act No. 27 of the Third Extra Session of 1934; it denied the injunction prayed for by the plaintiff; and it dismissed the suit at his cost. The case is before us on an appeal by the plaintiff from that judgment.

The petitions allege the act to be unconstitutional for the following reasons:

First. That the act purports to amend a section of the Revised Statutes that was superseded by article 142 of the Constitutions of 1898 and 1913.

With reference to this contention the court held that the section referred to was superseded by article 764 of the Code of Practice of 1870.

Second. That the act merely seeks to amend a repealed section of the Revised Statutes. The court held that the act fully complies with legal requirements, for it revives, amends, and re-enacts the repealed section of the Statutes.

Third. That the act violates section 22 of article 14 of the Constitutionof 1921. The court correctly held that the provision of the Constitution which the plaintiff relies upon does not apply to state officers.

Fourth. That the act is in violation of section 16 of article 3 of the Constitution of 1921. The court found that the act has but one object, and that the object is actually expressed in the title.

Fifth. That the act violates section 17 of article 3 of the Constitution of 1921. The court held that this ground of attack was considered and found to be without merit in its reasons for holding that Act No. 27 of the Third Extra Session of 1934 not only amended, but it revived and re-enacted, section 3542 of the Revised Statutes.

Sixth. That the act is in violation of article 3 of the Constitution of 1921. The court found that article 3 of the present Constitution contains 37 sections, and, as no particular section was indicated by the plaintiff, the court needlessly considered the 37 sections and reached the conclusion that the act was not violative of any provision of the article.

Seventh. That the act violates section 6 of article 4 of the Constitution of 1921. This article has reference to special or local laws. The court held that Act No. 27 of the Third Extra Session of 1934 was a general law and applied to deputy sheriffs throughout the state.

The learned judge of the district court has written such a carefully prepared, exhaustive, and accurate opinion that we feel justified in adopting it, in its entirety, as the opinion of this court. The judge says:

"The Legislature of Louisiana at the Third Extraordinary Session held in December, 1934, adopted Act No. 27, reading as follows:

"'An Act to amend and re-enact Section 3542 of the Revised Statutes of Louisiana of 1870, relative to deputy sheriffs, to repeal all laws or parts of law in conflict herewith; and to provide penalties for the violation of this Act.

"'Section 1. Be it enacted by the Legislature of Louisiana, That Section 3542 of [182 La. 751] the Revised Statutes of Louisiana of 1870 be and the same is hereby amended and re-enacted so as to read as follows:

"'"Section 3542. When authorized to do so by, and with the approval of, the Superintendent of the Bureau of Criminal Identification and Investigation, the Sheriff of each parish, and the Criminal Sheriff and the Civil Sheriff of the Parish of Orleans, is authorized to appoint as many deputies as may be deemed necessary or as may be authorized by law, who shall be sworn in by any officer vested with the power of administering oaths. Provided except in the parishes of East Baton Rouge and Orleans, that it shall be required of and mandatory on the Bureau of Criminal Identification and Investigation to approve any five deputy sheriffs submitted by each criminal or civil sheriff of any parish immediately on request for the same by said sheriff on due authority.

"'"Any person who performs any act whatsoever while claiming to act as a deputy sheriff, or who claims to act as a deputy sheriff, or who accepts any appointment as a deputy sheriff not made in accordance with this Act, and who has not been appointed deputy sheriff as provided herein, or any sheriff who shall appoint any deputy sheriff except as herein provided, shall be deemed guilty of a misdemeanor and on conviction shall be fined not less than One Hundred ($ 100.00) Dollars nor more than Five Hundred ($ 500.00) Dollars, and imprisoned in the parish jail for not less than one month nor more than six months; and any person who claims to be a deputy sheriff, or who is appointed a deputy sheriff in any manner other than as herein provided, and who carries concealed on or about his person any weapon shall be deemed guilty of carrying concealed weapons, and punished as provided in the laws prohibiting the carrying of concealed weapons."

"'Section 2. That all laws or parts of law in conflict herewith, and especially Act 27 of 1902, Act 260 of 1926, Act 114 of 1932, and Article 764 of the Code of Practice, be and the same are hereby repealed.'

"Plaintiff, as criminal sheriff for the parish of Orleans, has brought a suit to prevent by injunction the superintendent of the state bureau of criminal identification and investigation from enforcing Act No. 27 of 1934 [3rd Ex. Sess.], on the grounds that said act is unconstitutional.

"The defendant filed an exception of no cause and no right of action, and with reservation of his rights thereunder filed an answer. The exception was not argued orally, and the ruling of the court thereon was reserved. No exhibits, affidavits, or evidence were offered by either party, and the matter was submitted on briefs after oral argument.

"Counsel for defendant has failed to urge or refer to the exception in his oral argument or brief, and has apparently abandoned the same. Under the circumstances, the exception is overruled, and the issue will be confined to the constitutionality or unconstitutionality of the act in question.

"Plaintiff in his original and supplemental petition assailed the constitutionality of said Act No. 27 on several grounds which will be considered in the order in which they appear in the petitions.

"The first complaint in that respect is that Act No. 27 purports to amend section 3542 of the Revised Statutes of 1870, and that said act is null, void, and unconstitutional, for the reason that section 3542 had been repealed and superseded by article 142 of the Constitutions of 1898 and 1913.

"Section 3542 of the Revised Statutes of 1870 is very brief and is a verbatim copy of section 6 of Act No. 366 of 1855 and reads as follows:

"'The sheriff is authorized to appoint as many deputies as he may think necessary, to be sworn in by any officer vested with the power of administering oaths.'

"Article 142 of the Constitutions of 1898 and 1913 which are invoked by counsel for plaintiff provided that the criminal sheriff of the parish of Orleans 'shall appoint, with the approval of the judges of the Criminal District Court for the parish of Orleans, as many deputies as in the opinion of said judges are needed for the efficient discharge of the duties of his office.'

"Counsel for plaintiff contends that section 3542 was superseded by the above-quoted article of the Constitutions of 1898 and 1913, but a careful examination discloses that, if section 3542 was repealed or superseded at all, it was done by article 764 of the Code of Practice.

"Referring to article 764 of the Code of Practice of 1825, we find the following:

"'Every sheriff may, with the approbation of the Court in which he exercises his duties, name as many deputies as he thinks fit, but he remains responsible for them, and they must, before entering on their duties, take an oath before the Parish or District Judge to perform faithfully the duties required by law from the sheriffs by whom they are named. This appointment and oath shall be entered on the records of the Court.

"'Nevertheless, such deputies shall be subject to fine and imprisonment, or either, for delinquency of duty, as provided by special laws.'

"When the Code of Practice was revised in 1870, being Act 98 of the General Assembly of that year, article 764 remained intact even as to its number, and had not been amended or superseded previous to the enactment of Act No. 27 of 1934 (3d Ex Sess.) unless it was repealed by article 142 of the Constitutions of 1898 ...