The question in this case is whether Act No. 3 of the Fourth Extraordinary Session of the Legislature of 1935, which rearranged the Thirteenth and the Fifteenth judicial district, is unconstitutional, particularly in that it removed R. Lee Garland from the office of district attorney for the old Thirteenth judicial district.
Before this statute was enacted the Thirteenth judicial district was composed of two parishes, namely, St. Landry and Evangeline. B.H. Pavy was the district *Page 363 Judge and R. Lee Garland was the district attorney in that district. They both resided in the parish of St. Landry, and had been elected by the voters of the district, for terms of six years, which would not have expired until the end of 1936.
The Fifteenth judicial district was then composed of three parishes, namely, Acadia, Lafayette and Vermilion. That district had two judges and, of course, a district attorney.
By the first section of Act No. 3 of the Fourth Extraordinary Session of 1935, the Legislature detached the parish of St. Landry from the Thirteenth district and attached it to the Fifteenth district, thus leaving only the parish of Evangeline in the Thirteenth district, and adding St. Landry to the three other parishes, Acadia, Lafayette and Vermilion, in the Fifteenth district. The effect of this was to shift the residence of Judge Pavy and Mr. Garland from the Thirteenth into the Fifteenth district, or rather to shift the Thirteenth district away from their place of residence, and thereby to render them ineligible to hold office in that district. It is declared in the new statute that the Fifteenth district shall have three judges until the expiration of their present terms of office, meaning until the end of 1936, and thereafter shall have only two judges. That makes Judge Pavy one of the three judges of the Fifteenth district, until the end of 1936, at which time either he or another of the three judges now in that district must go out of office, if the statute is not violative of the Constitution. *Page 364
In the second section of the statute it is declared that all suits pending in the Thirteenth judicial district court for the parish of St. Landry are transferred to the Fifteenth judicial district court for the parish of St. Landry. All of which means merely that the name of the district court in St. Landry parish is changed from "Thirteenth Judicial District Court for the Parish of St. Landry" to "Fifteenth Judicial District Court for the Parish of St. Landry," and that the other area now in that district, instead of being the parish of Evangeline, is composed of Acadia, Lafayette and Vermilion.
By the third section of the statute the Governor was authorized to appoint a judge and a district attorney for the Thirteenth judicial district, comprising only the parish of Evangeline, to serve until their successors are elected. It is declared also that their successors, as well as the successors of two of the judges and the district attorney for the Fifteenth judicial district, shall be elected at the congressional election in November, 1936, and every six years thereafter. It was declared also in this section of the statute that the incumbent district attorney for the old Thirteenth judicial district, meaning R. Lee Garland, should be appointed as an additional assistant district attorney for the Fifteenth judicial district, to serve until the end of 1936, and that he should receive as compensation for his services in his new office, and in addition to the annual salary ($750) paid by the state, under section 62 of article VII of the *Page 365 Constitution, an additional salary of $3,200 per annum, payable monthly, by the four parishes now in that district, "their pro rata to be determined by the assessed valuation of each preceding year." It is declared also in this section of the statute: "No successor shall be appointed to said additional assistant." That also means R. Lee Garland.
The fourth section, which is the last section, of the act declares "That all laws or parts of law in conflict herewith be and they are hereby repealed."
On the 3d day of October, 1935, which was the second day after the statute went into effect, the Governor appointed J. Cleveland Fruge as judge and E. Herman Guillory as district attorney for the Thirteenth judicial district, comprising only the parish of Evangeline.
Garland was not satisfied with being demoted, so to speak, or being transferred from the office of district attorney in and for the old Thirteenth judicial district to the temporary office of an additional assistant district attorney in and for the newly enlarged Fifteenth judicial district, during the term of office for which he, Garland, had been duly elected by the voters of the old Thirteenth judicial district. He therefore brought this suit, being an intrusion-into-office suit, against E. Herman Guillory.
Garland contends that Act No. 3 of the Fourth Extraordinary Session of the Legislature of 1935, which has the effect of removing him from office before the expiration of the term for which he was *Page 366 duly elected, is unconstitutional, for several reasons. The principal reason for which Mr. Garland contends that his term of office, for which he was duly elected, cannot be cut off by a mere act of the Legislature, or without an amendment of the Constitution, is that the term of office is fixed in the Constitution, in sections 33 and 58 of article 7, and will not expire until the end of the year 1936. That complaint would have been obviated if the Legislature had provided in this new statute that it should not go into effect until the expiration of the terms of office of the incumbent judges and district attorneys in the two districts, all of whose terms will expire at the end of 1936.
The defendant, E. Herman Guillory, pleaded that Garland had no cause or right of action because, as Guillory contends, the new statute does not violate any provision in the Constitution.
Judge Fruge, being personally interested in the outcome of the case, recused himself; and he called in Judge Pickerel, of the Fourteenth judicial district, to hear and decide the case.
Judge Pickerel, after hearing the case, decided that the statute was unconstitutional in many respects, but that it was valid in so far as it made Mr. Garland a nonresident of the Thirteenth judicial district, and made him therefore ineligible to hold the office of district attorney for that district. Judge Pickerel, therefore, dismissed Garland's suit, on the ground that he had no right or cause of action. *Page 367
Garland appealed from the judgment of Judge Pickerel, to the Supreme Court. Guillory, answering the appeal, asked that the judgment of Judge Pickerel should be reversed or amended in those respects in which the judge said that Act No. 3 of the Fourth Extraordinary Session of 1935 was unconstitutional, and asked that the judgment should be otherwise affirmed.
The majority opinion of this court maintains that Act No. 3 of the Fourth Extraordinary Session of 1935 is constitutional and valid in every respect, except in so far as it provides: "The District Attorney of the present Thirteenth District [meaning Mr. Garland] shall be appointed as an additional assistant District Attorney of the Fifteenth District, to serve until December 31, 1936," etc. It is held that this provision of the statute is unconstitutional and of no effect, but that the unconstitutionality and invalidity of this provision does not affect any other of the provisions of the statute. The result is that Mr. Garland loses the office of district attorney for the old Thirteenth judicial district, by virtue of the statute, and loses the temporary office of additional assistant district attorney for the Fifteenth judicial district, in spite of the statute.
My opinion is that Act No. 3 of the Fourth Extraordinary Session of 1935 is entirely unconstitutional.
I agree with Judge Pickerel that the statute is unconstitutional in its attempt to authorize the Governor to appoint a judge for the Thirteenth judicial district, comprising only the parish of Evangeline. *Page 368 That part of the statute violates section 33 of article 7 of the Constitution, which requires that the district judges shall be elected by the voters of their districts. I agree with Judge Pickerel also in his holding that this statute is unconstitutional in so far as it attempted to authorize the Governor to appoint a new district attorney for the Thirteenth judicial district, comprising only the parish of Evangeline. This part of the statute violates section 58 of article 7 of the Constitution, which requires that the district attorneys shall be elected by the voters of their districts. These provisions in the statute violate also section 69 of article 7 of the Constitution, which permits the Governor to fill a vacancy in the office of a district judge or district attorney, when the unexpired portion of the term is less than one year, but requires a special election, by the voters of the district, to fill a vacancy when the unexpired portion of the term is a year or more. The unexpired portion of the term of office of Judge Pavy, as judge of the Thirteenth judicial district court for the parish of Evangeline, and the unexpired portion of the term of office of R. Lee Garland, as district attorney for the Thirteenth judicial district, was a year and three months, when this statute went into effect, removing them from their offices. The Governor, therefore, was, by the very terms of section 69 of Article 7 of the Constitution, denied the right to appoint a successor to B.H. Pavy, as judge, or a successor to R. Lee Garland, as district attorney, for the Thirteenth judicial district, to fill the vacancies caused by their removal from the *Page 369 offices to which they had been elected, respectively.
Act No. 3 of the Fourth Extraordinary Session of 1935 is unconstitutional also in that it removes Mr. Garland from office before the expiration of his term of office, which is fixed in the Constitution, and which is therefore not subject to curtailment by a mere act of the Legislature, or without an amendment of the Constitution. Section 33 of article 7 of the Constitution fixes the term of office of the district judges at six years, and provides that they shall be elected at the congressional election every six years, commencing in November, 1924. And section 58 of the same article declares that a district attorney for every judicial district shall be elected "at the same time and for the same term as is provided herein for district judges." Mr. Garland was elected in November, 1924, for the term of six years, and again in November, 1930, for another term of six years. As the term of office of Mr. Garland, as district attorney for the Thirteenth judicial district, was fixed in the Constitution, it was not subject to curtailment by a mere act of the Legislature, or without an amendment of the Constitution in that respect. Mr. Garland was not subject to removal from office, during the term for which he was elected, except by the process of impeachment for one of the causes enumerated in section 1 of article 9 of the Constitution, or by being addressed out of office by a vote of two-thirds of the members of each House of the Legislature, as provided in section 3 of the same article, or by a *Page 370 suit for removal from office, as prescribed in section 6, for one of the causes enumerated in section 1, of the same article of the Constitution. It is not even contended that Mr. Garland was subject to removal from office for any of the causes mentioned in article 9 of the Constitution. The majority opinion in this case is merely that the term of office for which Mr. Garland was elected was subject to abridgment, as an incident of an act of the Legislature rearranging judicial districts, under the authority of section 34 of article 7 of the Constitution, which authorizes the Legislature to rearrange the judicial districts. The answer to that, of course, is that the Legislature may exercise its authority to "rearrange the judicial districts" without violating any provision of the Constitution, by simply enacting a statute which shall go into effect at the expiration of the terms of office of the incumbent judges and district attorneys of the rearranged districts. If section 34 of article 7 of the Constitution is construed and acted upon in that way, it will not conflict with any other provision in the Constitution. If construed as it is construed in the majority opinion in this case, it will conflict with many provisions in the Constitution.
The majority opinion in this case, as I understand it, is that the Legislature may put into effect at any time a statute rearranging two or more judicial districts, even though the putting into effect of the statute before the expiration of the current six-year term of the district judges and district attorneys throughout the *Page 371 state, as fixed in the Constitution, will be contrary to several provisions of the Constitution, by putting men out of office before the expiration of their terms, and by creating vacancies for the Governor to fill by appointment, even where the unexpired portion of the term is a year or more. If that is a correct interpretation of the authority of the Legislature to "rearrange the judicial districts," the Legislature has the authority, immediately after the election of all of the district judges and district attorneys throughout the state, to put every district attorney out of office, and to authorize the Governor to appoint their successors for the unexpired portion of the six-year term, and to transfer every district judge into a district in which he was not elected by a majority of the voters thereof. I respectfully submit that that is an unreasonable and illogical interpretation of section 34 of article 7, which merely declares: "The Legislature may rearrange the judicial districts, and by a two-thirds vote of the membership of each house, may increase or decrease the number of judges in any district." It does not follow, from that language, that the Legislature may make a rearrangement of the judicial districts in mid-term, or at a time which will necessitate a violation of other provisions of the Constitution. A cardinal rule of interpretation, of the Constitution or of a statute, is to so construe each provision that all of the provisions will harmonize, and so that one provision will not conflict with another, if the provisions of the Constitution or statute are susceptible of such a construction or interpretation. *Page 372 Section 34 of article 7 is susceptible of the interpretation, which is the only logical interpretation, that any rearrangement which the Legislature may make of the judicial districts throughout the state must be made effective only at the expiration of the term of office of the district judges and district attorneys throughout the state, as fixed in the Constitution.
In the majority opinion in this case, in support of the proposition that the term of office of a district attorney, whose term is fixed in the Constitution, may be cut off by an act of the Legislature, and without a constitutional amendment on the subject, the case of State v. Dowling, 167 La. 907, 120 So. 593,597, is cited. But the majority of the members of the court seem to overlook the fact, or make no distinction because of the fact, that Dr. Dowling's term of office, as president of the state board of health, was not fixed in the Constitution; whereas, R. Lee Garland's term of office, as district attorney, is fixed in the Constitution. It was because of that distinction that this court held, in the case of State v. Dowling, that the statute (Act No. 126 of 1928) which shortened the term of office which Dr. Dowling held, as president of the state board of health, did not violate any provision in the Constitution. That was the reason for the decision in Dr. Dowling's Case; and it would so appear from a reading of the majority opinion in the present case if the author of the opinion had quoted all that was said on this subject in Dr. Dowling's Case, instead of quoting only the last part of the paragraph *Page 373 on this subject. Here is what was said on this subject in Dr. Dowling's Case, viz.:
"It is argued that the office of president of the state board of health is a constitutional office, and, therefore, that the term of the office cannot be shortened by an act of the Legislature, to the prejudice of an incumbent in office at the time of the passage of the act. The office of president of the state board of health is a constitutional office in the sense only that the Constitution commands the Legislature to create the office; but, inasmuch as the Constitution did not fix the term of office, and impliedly left that authority with the Legislature, the term of office is subject to change at any session of the Legislature." [That part of what was said in Dr. Dowling's Case is not quoted in the majority opinion in the present case, but only what follows immediately is quoted, thus:] "There is a provision in the Constitution, section 40 of article 7, which forbids the Legislature to curtail the term of office or salary of any judge in office, and declares that any legislation so affecting a judicial office shall have effect only at the end of the term of the incumbent in office at the time of the passage of the act. If the writers of the Constitution had intended to impose the same restriction upon legislation affecting the terms of office or salaries of other officers, they would not have confined the restriction to legislation affecting the terms of office and salaries of judges. In fact, no such restraint would have been imposed upon legislation affecting the *Page 374 terms of office or salaries of judges, if the restraint went without saying as to public officers generally."
That part of what was said in Dr. Dowling's Case that is quoted in the majority opinion in this case might be misunderstood by one who happens to read it without reading also what immediately precedes it in the opinion rendered in Dr. Dowling's Case. But, even standing alone, it seems plain to me that the quotation taken from the Dowling Case, in the majority opinion in this case, has reference only to officers whose terms of office are not fixed in the Constitution, and hence that it cannot have reference to the office of district attorney. It must be borne in mind that there may be, and in fact are, judges whose offices are provided for in the Constitution but whose terms of office are not fixed in the Constitution. For example, section 52 of article 7 of the Constitution authorizes the Legislature to fix the salaries and tenures of office of the juvenile courts created for the parishes containing cities having 25,000 or more inhabitants. As another example, section 94 of the same article of the Constitution provides that the terms of office of the judges of the recorders' courts in New Orleans shall be fixed by the commission council. The Legislature intended, by section 40 of article 7 of the Constitution, to protect the terms of office of all judges, even where they were not fixed in the Constitution. A judge, therefore, is protected in his term of office, even though it may not be fixed in the Constitution; but no other officer's term of office is protected *Page 375 against being shortened by an act of the Legislature, unless the term of office is fixed in the Constitution. That is what was said in Dr. Dowling's Case, in explanation of our ruling that, inasmuch as Dr. Dowling's term of office, as president of the state board of health, was not fixed in the Constitution, the term of office could be shortened by an act of the Legislature. But Mr. Garland's term of office, as district attorney, is fixed in the Constitution, and therefore cannot be shortened by an act of the Legislature. Anyone will understand this, who reads the quotation from the opinion in the Dowling Case, in the majority opinion in this case, if the reader will bear in mind that what is said in this quotation has reference only to officers whose terms of office are not fixed in the Constitution.
In the Dowling Case, this court quoted, with the unanimous approval of the members of the court, as then constituted, the following expression, from the case of State ex rel. Downes v. Towne, 21 La.Ann. 490, viz.:
"It was not in the power of the Legislature to legislate him [Downes] out of office or to diminish or increase his term of office as fixed in the Constitution."
It is said in the majority opinion in this case that the decision rendered in the case of State ex rel. Downes v. Towne, which was rendered in 1869, "ceases to be of any value as a precedent or authority, because of the difference in the provisions of the Constitution of 1868 and the present Constitution of 1921." But the Dowling Case was decided on November 26, *Page 376 1928, the petition for a rehearing being denied in January, 1929, which was long after the adoption of the Constitution of 1921. I respectfully submit, therefore, that the quotation from the decision rendered in the case of State ex rel. Downes v. Towne is as good authority today as it was when it received the unanimous approval of this court in the Dowling Case.
In support of the majority opinion, that the Legislature may rearrange the judicial districts in mid-term, or at any time, it is said in the majority opinion: "The ever changing state of human affairs imposes upon the Legislature the duty of adopting [perhaps meaning adapting] its legislation to the various phases which the condition of the country and the wants of the community may from time to time assume." Reference is made also to "the growth of the State in the future, the increase of its population and business, a possible increase of litigation," etc.; and, on the other hand, "the changing condition of a retrograding state in the amount of population, or even a decrease of litigation," etc. I respectfully submit that no such changing conditions could possibly make it necessary for the Legislature to suddenly and immediately rearrange the judicial districts, to the prejudice of the incumbents in the offices of judges and district attorneys in the districts affected by any such rearrangement. The Constitution takes care of any change in the volume of business or litigation in any judicial district or districts, by providing, in section 12 of article 7, that the Supreme Court may assign district judges, from one district to another, for any *Page 377 cause, and may provide for the interchange of the judges or the district courts, "to secure the prompt and efficient administration of justice." It is not suggested that there was any such necessity for the immediate rearrangement of the judicial districts which were rearranged by Act No. 3 of the Fourth Extraordinary Session of 1935. A reference to the legend on any official or authentic map of Louisiana will show that the parish of Evangeline, which is all that is left of the Thirteenth judicial district, has a population of only 25,483 inhabitants, and an area of only 681 square miles; whereas the parish of St. Landry, which is now cut off of the Thirteenth district, has a population of 60,074 inhabitants, and an area of 964 square miles. While the Thirteenth district has now a population of only 25,483 inhabitants and an area of only 681 square miles, the Fifteenth district has now a population of 171,911 inhabitants, and an area of 3,103 square miles; and, after the expiration of next year, the man power of judges and district attorneys and assistant district attorneys will be the same in each district as it was before the rearrangement was made.
Mr. Garland alleged in his petition in this suit that Act No. 3 of the Fourth Extraordinary Session of 1935 was not adopted by a two-thirds vote of the membership of the Legislature, elected as such in pursuance of sections 8 and 9 of article 3 of the Constitution, and that therefore the statute was enacted in violation of section 34 of article 7 of the Constitution, which requires "a two-thirds vote of the *Page 378 membership of each house" to increase or decrease the number of judges in any district. It is said in the majority opinion in this case that a "two-thirds vote of the membership of each house," as required by section 34 of article 7 of the Constitution, means two-thirds of a quorum of each House. I do not subscribe to that. "A two-thirds vote of the membership of each house" means "a two-thirds vote of the members elected to each house," and not "two-thirds of a quorum of each house." I do not see the difference between "a two-thirds vote of the membership of each house" and "a two-thirds vote of the members elected to each house." Inasmuch as sections 8 and 9 of article 3 of the Constitution require that the members of each House shall be elected, there ought to be no difference between "the membership of each house" and "the members elected to each house."
I respectfully dissent also from the majority ruling in this case that the unconstitutionality of the provision in the statute which makes Mr. Garland an additional assistant district attorney for the Fifteenth judicial district should not, of itself, render the whole statute invalid. I see no reason for presuming that the Legislature would have enacted this statute, if it had been known that the appointment of Mr. Garland as an additional assistant district attorney for the Fifteenth judicial district was unconstitutional. The Legislature did not insert in this statute the clause which is now so often inserted in statutes of this character, that if any provision of the statute is found to be *Page 379 unconstitutional the unconstitutionality thereof shall not affect the other provisions of the statute. The best reason for believing that the Legislature did not intend that this statute should stand without Mr. Garland's being appointed an additional assistant district attorney for the Fifteenth judicial district is that the Legislature did not adopt the statute without that provision. It is so interrelated with the other provisions of the statute that the statute should not be upheld without it. My own opinion, however, is that the statute is thoroughly unconstitutional.