It is said in the prevailing opinion rendered in this case that an act of the Legislature is presumed to be constitutional, and that, in order to destroy that presumption, the act "must be shown manifestly to violate the organic law." I agree to that statement. It means that every act of the Legislature is presumed to be constitutional until it is shown to be unconstitutional, and that one who questions the constitutionality of an act of the Legislature must make such allegations as to show that, if his contentions are well founded and his allegations are true, the act is unconstitutional. My opinion is that the members of the board of commissioners of the police department and the members of the board of commissioners of the fire department, now in office, have made a serious and "manifest" showing that Act No. 20 of the First Extra Session of 1935, which undertakes to change the composition of these boards so that two of the three members of each board shall be appointees of the Governor, violates the provision in section 22 of article 14 of the Constitution, which forbids the Legislature to create any board or commission to control any of the ordinary *Page 228 functions of municipal government in New Orleans, without giving the electors of the city the right to elect the members of the board, either directly or through the municipal council.
The defendants in this suit, who are seeking to go into office under authority of the act of 1935, have not suggested any substantial reason why the act is not unconstitutional. No reason is suggested in the prevailing opinion rendered in this case as to why the act may not be unconstitutional. It is not denied that the Constitution does forbid the Legislature to create any board or commission in New Orleans, with the authority "of controlling the ordinary governmental functions of municipal government." That is the exact language of the Constitution. And it is certain that the function of maintaining a police department and the function of maintaining a fire department are ordinary functions of municipal government.
A municipality whose inhabitants were not allowed to choose their officers who perform the ordinary functions of municipal government would not be a municipality at all, except in name. That is why every Constitution that Louisiana has ever had, except the Constitution of 1868, has contained the guaranty that the Legislature shall not create any board or commission in New Orleans, with authority to control any of the ordinary functions of municipal government, without giving to the electors of the city the right to choose the members of the board or commission.
Article 319 of the Constitution of 1898 and the corresponding article of the Constitution of 1913 contained, substantially, the same provisions *Page 229 which are reserved in section 22 of article 14 of the Constitution of 1921, guaranteeing to the inhabitants of New Orleans the right to choose the members of all local boards or commissions that exercise the ordinary functions of municipal government. In 1916, by Act No. 36 of that year, the Legislature undertook to create a board of public utilities for the city of New Orleans, composed of five members, and to provide that four of the five members of the board should be appointed by the Governor. When the board undertook to regulate the fares to be charged by the street railway company, the company attacked the constitutionality of the statute creating the board, and this court held that the statute was unconstitutional and of no effect because it did not provide that the members of the board should be chosen by the electors of the city. The decision is reported in Board of Public Utilities v. New Orleans Ry. Light Co.,145 La. 308, 82 So. 280. We cited that decision with approval, on March 20, 1922, in the case of State v. City of New Orleans,151 La. 24, 91 So. 533, 537, thus:
"The reason why that statute [Act No. 36 of 1916] was declared unconstitutional was that it violated the constitutional right of local self-government. It provided that a majority (four of the five) members of the local public utilities commission, thereby established, should be appointed by the Governor of the state; whereas article 319 of the Constitution of 1898 and of 1913 had reserved to the electors of the city the right to choose all public officers charged with the exercise of the police power of the city, in whole or in part. Observing that the power to fix rates *Page 230 for public utilities was an element of the police power, we held that the Legislature could not confer that power upon a local board, without reserving to the electors of the city the right to choose the members of the board. The convention of 1921, in reserving to the electors of this city the right to choose their public officers — which is the city's sheet anchor for home rule — also reserved to the Legislature the right to provide for local boards or commissions, without authority, however, tocontrol the ordinary governmental functions of the municipality."
I have italicized the expression which shows that this court has decided already that the Constitutional Convention of 1921 preserved for the inhabitants of New Orleans the home rule clause which was in the previous Constitutions, as far as the ordinary functions of municipal government were concerned. The only question, therefore, in one of these cases, is whether it is "manifest" that the maintenance of a police department is an ordinary function of municipal government; and the only question in the other of these cases is whether it is "manifest" that the maintenance of a fire department is an ordinary function of municipal government. Without deciding the question of constitutionality finally, at this time, I am of the opinion that it is sufficiently "manifest" that the maintenance of a police department and the maintenance of a fire department are among the ordinary functions of municipal government, to justify our leaving the present members of these boards in office until the constitutionality of the statute, under which the new members of these boards claim office, can be determined by a final judgment. *Page 231
I do not understand the majority opinion in this case to be that the courts cannot issue a preliminary injunction against the carrying out of an unconstitutional statute. In fact, the authority and duty of the courts to issue a preliminary injunction against the carrying out of a statute that is apparently unconstitutional has never been doubted or disputed, except with regard to criminal statutes; and, as to them, the complainant's right to a preliminary injunction depends upon his having a property right which is about to be invaded. It was so decided by this court in the following cases: Le Blanc v. City of New Orleans, 138 La. 243, 70 So. 212; State ex rel. Tranchina v. City of New Orleans, 141 La. 788, 75 So. 683; Deloney v. Village of Columbia, 142 La. 291, 76 So. 717; Osborn v. City of Shreveport, 143 La. 932, 79 So. 542, 3 A.L.R. 955; Crucia v. Behrman, Mayor et al., 147 La. 144, 84 So. 525; City of New Orleans v. Liberty Shop, 157 La. 26, 101 So. 798, 40 A.L.R. 1136; Tonahill v. Molony, Superintendent of Police, 156 La. 753, 101 So. 130.
The same rule prevails in the federal courts. It was so held in Detroit Creamery Co. v. Kinnane (D.C.) 264 F. 845, and the ruling was affirmed by the Supreme Court of the United States, in a memorandum opinion by Chief Justice White, in 255 U.S. 102, 41 S. Ct. 304, 65 L. Ed. 531.
In the case of Norton v. Shelby County, 118 U.S. 425-454, 6 S. Ct. 1121, 1125, 30 L. Ed. 178, 186, it was said:
"But the idea of an officer implies the existence of an office which he holds. It would be a misapplication of terms to call one an `officer' who holds no office, and a public office can exist only by force of law. This seems *Page 232 to us so obvious that we should hardly feel called upon to consider any adverse opinion on the subject but for the earnest contention of plaintiff's counsel that such existence is not essential, and that it is sufficient if the office be provided for by any legislative enactment, however invalid. Their position is that a legislative act, though unconstitutional, may in terms create an office, and nothing further than its apparent existence is necessary to give validity to the acts of its assumed incumbent. That position, although not stated in this broad form, amounts to nothing else. It is difficult to meet it by any argument beyond this statement: An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed."
The decision rendered in the case of State ex rel. Saizan v. Judge, 48 La. Ann. 1501, 21 So. 94, which is cited in the majority in the present case, is not appropriate, because that suit, for an injunction, was not brought by an incumbent of the office, but was brought by the district attorney on his own initiative. He did not contend that the statute under which the three defendants were appointed police jurors was unconstitutional. He contended that the appointments were invalid on the ground that the three police jury wards did not have sufficient population to warrant the appointment of the three additional police jurors. The district attorney, of course, did not have any such interest in the matter as to give him a right of action to question the authority of the Governor to make the appointments. That is all that was decided in that case. *Page 233
The plaintiffs in this case, who are the members of the boards in office, followed precisely the mode of procedure which was sanctioned by this court in the case of Guillotte v. Poincy, 41 La. Ann. 333, 6 So. 507, 5 L.R.A. 403. In that case, Justice Fenner, for the court, said:
"Proceedings by injunction cannot be used as a means of determining disputed title to office; but they may be properly used to protect the possession of officers de facto against the interference of claimants whose title is disputed, until the latter shall establish their title by the judicial proceeding provided by law.
"The statutes on the subject of intrusion into office clearly contemplate that the claimant of the office is the necessary plaintiff in the action thereby provided, and that the officer de facto in actual possession is the necessary defendant."
It is true that the claimant of the office in that case, out of possession, was not claiming under an apparently unconstitutional statute. But the fact that the claimants of the office in this case, out of possession, are claiming under an apparently unconstitutional statute, is all the more reason why Judge Cage was right in granting to the incumbents a writ of injunction, pending a decision of the right to the office.
Of course, the authority of the courts is controlled by the acts of the Legislature, unless they are manifestly unconstitutional. But the authority of the Legislature, as well as the authority of the courts, is controlled by the Constitution. So that, if an act of the Legislature is manifestly violative of an article of the Constitution, the courts must *Page 234 uphold the article of the Constitution. To maintain that an act of the Legislature that is manifestly unconstitutional must control the authority of the court until the court can declare finally that the act of the Legislature is unconstitutional, in a case where the very question before the court is whether the act of the Legislature is manifestly unconstitutional, would be arguing in a circle, and would be contrary to our system of government.
For the reasons which I have given, I am constrained to decline to sign the decree rendered in this case.