Whenever in the discharge of my official duties I find that an act of the Legislature is, in my judgment, unconstitutional, I deem it my duty to explain why it is so, particularly in matters of great public importance.
The all-important question in this case is whether the Constitution of Louisiana permits the Legislature to enact a special or local law taking away from the people of one parish — and only one parish — their right of local self-government, without previous publication or warning of the intention to enact such a law, especially in an Extraordinary Session of the Legislature. *Page 302 That question is of vital importance not only to the people of the parish of East Baton Rouge, whose right of local self-government has been taken from them without warning, but also to the people of every other parish, and of every city, town, and village in the state, who yet enjoy the right to elect the members of their local governing authority.
The Constitution of Louisiana, like the Constitution of every other state, as everybody knows, imposes certain limitations upon the authority of the Legislature to enact laws. These constitutional limitations, or guaranties, are intended to protect minorities of the people. The majorities can protect themselves.
Act No. 22 of the Third Extraordinary Session of the Legislature of 1934, which took away from the people of the parish of East Baton Rouge their right of local self-government, violates both the letter and the spirit of several guaranties in the Constitution.
In the first place, the statute was enacted in violation of section 14 of article 5 of the Constitution, which declares that the Legislature, in an Extraordinary Session, shall not enact any law having an object not "specially enumerated" in the proclamation of the Governor convening the Extraordinary Session. This limitation upon the authority to legislate, in Extraordinary Sessions, is stated in section 14 of article 5 of the Constitution in very plain terms, thus:
"The power to legislate, under the penalty of nullity, shall be limited to the objects *Page 303 specially enumerated in the proclamation of the Governor, or petition and notice, convening such extraordinary session."
The only effect, and hence the only object, of Act No. 22 of the Third Extraordinary Session of 1934 was to deprive the people of the parish of East Baton Rouge of their right of local self-government. That was obviously the only possible result or effect that the act could have; hence it was, unquestionably, its only object. The object was accomplished by declaring that, in the parish in which the state capital is situated, the Governor shall appoint as many additional members of the police jury as there are members elected by the people. That is the only change that was made in the law, as it stood before the adoption of this new statute. According to the general law on the subject of police juries throughout the state, which law is embodied in sections 6382, 6383 and 6384 of Dart's compilation of the General Statutes, the voters in each police jury ward, in every parish in the state (except in the parish of Orleans), elect their own police jurors; and the number of police jurors is apportioned according to the population of the wards. The parish of Orleans, of course, is excepted from the provisions of the law on the subject of police juries, because this parish is coextensive with the city of New Orleans, which is governed by a commission council. According to the general law (embodied in sections 6382, 6383 and 6384 of the General Statutes), at the time when Act No. 22 was introduced in the Third Extraordinary *Page 304 Session of the Legislature of 1934, the police jury of the parish of East Baton Rouge, according to its population, was composed of thirteen members, who were elected by the people. Act No. 22 of that session is an exact copy or production of sections 6382, 6383 and 6384 of the General Statutes, except that, in section 1 of the new statute, there is inserted the proviso that, in the parish in which the state capital is situated, the Governor shall appoint as many additional members of the police jury as there are members elected by the voters of that parish. That proviso, which merely doubled the membership of, and changed the method of selecting, the police jury of the parish of East Baton Rouge, is the only change that was made in the law; hence this proviso in the law is all that was really enacted. The law remains exactly as it was in all of the other parishes throughout the state, with regard to the membership and the election of the police juries, while the people of the parish of East Baton Rouge are denied the right to elect even a majority of the twenty-six members of their local governing authority. That result was accomplished as effectually as if the Legislature had boldly declared its intention to enact only the new part of the law, as a special or local law for the parish of East Baton Rouge, instead of putting it in as a proviso, in a reproduction or copy of the general law, exactly as it stood before. Here is how the proviso reads:
"Provided, however, that in the parish in which the State capital is situated there shall be appointed by the Governor, by and *Page 305 with the advice and consent of the Senate, to serve for terms of 4 years, as many additional members of the police jury as there are members elected. The members of the police jury of the parish in which the State Capital is situated to be appointed under this Act shall be appointed by the Governor after this Act takes effect, and their terms shall expire with the term of the Governor appointing them."
As I have pointed out, even if this new statute were a general law, in reality and not merely in form, prescribing the method of selection, and the number of members, of the police juries throughout the state, the statute would yet be violative of that provision of the Constitution which forbids the Legislature, in an Extraordinary Session, to enact any law having an object not "specially enumerated" in the proclamation of the Governor convening the Extraordinary Session. There was nothing in the list of objects "specially enumerated" in the Governor's proclamation, in this instance, putting any reasonable person upon his guard against the enactment of a statute that would have for its object and effect the taking away from the inhabitants of one particular parish — and of only one parish — the right of local self-government.
Among "the objects specially enumerated in the proclamation of the Governor," the only one which the Attorney General points to and relies upon — and which a majority of the members of this court say was a sufficient notice to the public of the intention to enact this new statute — is object No. 16, which was expressed in the *Page 306 Governor's proclamation calling the Legislature in Extraordinary Session, thus:
"For the consideration of, and action upon, the following specially enumerated objects, to-wit: * * *
"16. Appointment and election of public officers."
The most that can be said of this object, "Appointment and election of public officers," is that its publication might have given the public some vague and hazy idea that the Legislature would be called upon to consider and act upon legislation concerning the appointment or election of some or all of the public officers occupying the offices already in existence, throughout the state. There was no suggestion of the creation of new offices. And certainly there was no "special" mention of an intention to enact a law that would have the object and effect of creating thirteen new offices, for thirteen additional police jurors, for the parish of East Baton Rouge, to be appointed by the Governor, so as to double the membership of the police jury of that parish, and thereby to deprive the inhabitants of the parish of the right to elect even a majority of the members of their local governing authority.
It is true that the Governor is not required by the Constitution to describe in detail, in his proclamation calling the Legislature in Special Session, the statute or statutes which he intends to submit to the Legislature. But the object or objects of such legislation must be "specially enumerated in the proclamation of the Governor", *Page 307 to use the exact language of the Constitution. This has no meaning whatever, and serves no purpose whatever, if the Governor may, in his proclamation calling the Legislature in Special Session, state the object or objects thereof in such vague and indefinite terms that nobody will be informed in advance of the object or objects of the legislation intended to be enacted. Special Sessions of the Legislature are of very short duration, and are intended to be called only on occasions of emergency, and only for the enactment of laws that are deemed to be immediately necessary. The same section of the Constitution that we are now considering (section 14 of article 5) declares that the Governor "may, on extraordinary occasions" convene the Legislature in Special Session; which means that he shall not convene the Legislature in Special Session except "on extraordinary occasions" and for the enactment of laws which he deems immediately necessary. For that reason it is highly important to enforce the guaranty that the Legislature, in a Special Session, under the penalty of nullity, shall not enact any statute having an object not specially enumerated in the proclamation of the Governor convening the Extraordinary Session of the Legislature.
It is said of this new act, in the majority opinion in this case:
"No new offices are created by the act, but simply incumbents of offices already existing are provided for."
I respectfully submit that thirteen new offices are created by the act. That is exactly *Page 308 what this court said in the opinion which was rendered in this very case, last May, when the case was before us on a writ of mandamus to compel the judge of the district court to grant a preliminary injunction. The opinion which was rendered in the case at that time is published in volume 182 of the Louisiana Reports, at page 662, and in volume 162 of the Southern Reporter, at page 413, 422. In order to decide, at that time, whether the Governor and the Attorney General and a majority of the twenty-six members of the police jury, as newly constituted, were entitled to a writ of injunction, one of the important questions was whether this new statute created new offices; and the decision of the question was stated thus:
"Act No. 22 does not abolish any of the offices of the police jurors of East Baton Rouge, but creates thirteen new andadditional offices, which the Governor is authorized to fill."
I do not understand how it can be said now that this act, No. 22, does not create thirteen new and additional offices. The fact that a number of offices of the same character existed before Act No. 22 was adopted was not deemed to be in conflict with the statement made in the former opinion, rendered in this case, that this new statute "creates thirteen new and additional offices."
This brings me to another provision in the Constitution which was violated in the enacting of this statute, depriving the inhabitants of the parish of East Baton Rouge of their right of local self-government. *Page 309 Section 4 of article 4 of the Constitution forbids the Legislature to enact any local or special law on certain "specified subjects," which are enumerated in that section. Section 6 of the same article forbids the Legislature to enact any local or special law, on any subject not forbidden by section 4, "unless notice of the intention to apply therefor shall have been published, without cost to the State, in the locality where the matter or things to be affected may be situated, which notice shall state the substance of the contemplated law, and shall be published at least thirty days prior to the introduction into the Legislature of such bill, and in the same manner provided by law for the advertisement of judicial sales." This section of the Constitution declares also that the evidence of the fact that the notice has been published shall be exhibited in the Legislature before the act can be passed, and that the act itself shall contain a recital that the notice was published. There is no such recital in Act No. 22 of the Third Extraordinary Session of the Legislature of 1934; and it is admitted that there was no publication whatever of an intention to enact or to introduce any such statute as this.
It is said in the majority opinion in this case that this court decided in the case of State ex rel. Sewerage Water Board of New Orleans v. John T. Michel, Secretary of State, 127 La. 685,53 So. 926, 928, that this constitutional provision, requiring previous publication of an intention to enact a special or local law, was not applicable to the enactment of such a law in an *Page 310 Extraordinary Session of the Legislature. The decision that was rendered in the case cited is not at all appropriate to the present case. In the case cited, the statute which was in contest was an act amending a statute relating to the sewerage and water board. Although the statute relating to the sewerage and water board was embodied in the Constitution, it was declared therein that the Legislature might amend the statute, except in certain particulars; and it was also declared therein that any provision in the Constitution contrary thereto was thereby repealed. What this court decided, therefore, was that the special provision in the Constitution, authorizing the Legislature to amend (in certain respects) the constitutional provisions on the subject of the sewerage and water board, and expressly repealing all contrary provisions in the Constitution, should prevail over the general provisions requiring the publication of an intention to enact a special or local law. Having so decided, the court added, unnecessarily, that the authority of the Governor to call the Legislature in Extraordinary Sessions, "in order that it may legislate on matters of urgent necessity," and the authority of the Legislature to legislate in such sessions, was independent of the restriction imposed by article 50 (now section 6 of article 4) of the Constitution, "since the necessity for immediate legislation which would justify the convening of the General Assembly in extraordinary session could not be expected to yield to the requirement that notice of the intention so to legislate should be published for 30 days, without expense to the state." It was said, in the *Page 311 course of the opinion in that case, that the object of the statute in contest was to do "something required for the successful prosecution of the great public work that had been undertaken, and the matter was regarded as of such importance that, on November 16, 1910, the Governor issued his proclamation," etc. It appears also, in the published opinion rendered in the case cited, that the object of the legislation intended to be enacted was "specially" mentioned in the proclamation of the Governor convening the Legislature in Extraordinary Session. For the reasons I have given, the decision rendered in the case of State ex rel. Sewerage Water Board v. Michel, Secretary of State, is not at all applicable to this case, where there was no immediate need for the local law, depriving the inhabitants of the parish of East Baton Rouge of their right of local self-government, and where there was no mention of such legislation in the proclamation of the Governor, convening the Extraordinary Session of the Legislature. In this instance, no warning was given to the people of the parish of East Baton Rouge, or to the public, either in the proclamation of the Governor, as required by section 14 of article 5 of the Constitution, or by publication for thirty days, as required by section 6 of article 4 of the Constitution.
Another section of the Constitution that was violated in the enacting of this statute is section 5 of article 4, which declares: "The Legislature shall not indirectly enact special or local laws by the partial repeal of a general law." That is exactly what the Legislature did in this instance. *Page 312 The author of this statute copied, word for word, the general law on the subject of police juries, and inserted a proviso relating only to the parish of East Baton Rouge, and then added a repealing clause, repealing only such laws or parts of laws as were in conflict with the new act. Of course, the only part of the new act which the general law was in conflict with was the proviso, relating to the parish of East Baton Rouge. Thus the Legislature, in this roundabout way, did "indirectly" adopt a local law, for the parish of East Baton Rouge, by a partial repeal of the general law on the subject of police juries throughout the state.
In 1897, the Legislature of Missouri, "indirectly," enacted a local or special law, for the city of St. Louis, by a partial repeal of the general law on the subject of judges of the probate courts throughout the state; and the Supreme Court of Missouri held that the statute was unconstitutional, because it violated section 53 of article 4 of the Constitution of that state, declaring that the Legislature should not "indirectly" enact a special or local law by the partial repeal of a general law. The decision was rendered in the case of Henderson v. Koenig,168 Mo. 356, page 372, 68 S.W. 72, 76, 57 L.R.A. 659. The only difference between that case and this is that, in that case, the proviso in the new statute referred to the probate judges, and was applicable only to the city of St. Louis, whereas, in this case, the proviso in the new statute refers to police juries, and is applicable only to the parish of East Baton Rouge. In principle, therefore, the Missouri *Page 313 case and this case are exactly alike. According to section 3407 of the Revised Statutes of Missouri, of 1889, the probate judge in every county throughout the state, and in the city of St. Louis, received fees for his services. Under section 4160 of the Revised Statutes of Missouri, of 1899 (Mo.St.Ann. § 655, p. 4899), the city of St. Louis was treated as a county. By an act of the Legislature, approved March 20, 1897 (p. 82) which became section 1764 of the Revised Statutes of 1899, the Legislature repealed and at the same time reenacted section 3407 of the Revised Statutes of 1889, exactly as it was, but added a proviso, to the effect that in cities having a population of 300,000 or more inhabitants, the probate judge should receive a salary instead of fees. St. Louis was the only city having a population of 300,000 or more inhabitants. The Supreme Court, therefore, held that the new statute, which had become section 1764 of the Revised Statutes of 1899, was a local and special law, referring only to the probate judge in the city of St. Louis. The Supreme Court decided, therefore, that the statute was null, because it violated the constitutional prohibition against the enacting, indirectly, of a local or special law by the partial repeal of a general law. The court said, referring to the general law, section 3407 of the Revised Statutes of 1889, this:
"This law, as it thus and then stood, applied to everyjudge of probate in the state of Missouri. And if the legislature then, without repealing in terms the statute just quoted, had enacted into a law the proviso *Page 314 [which] section 1764 now contains, no one, it seems, could doubt that such additional enactment would have amounted to the partial repeal of a general law, and the consequent enactment of a special or local law; because, in such cases, the partialrepugnancy would accomplish the partial repeal. Potter's Dwar.St. 113, 155, and cases cited; Suth.St.Cons., §§ 137, 138, and cases cited.
"But the case is in nowise altered by reason of the fact that such repeal was in reality accomplished by the pretended andformal amendment by enacting as a part and parcel of section 1764 the proviso aforesaid, which declares the old law intact save inthe city of St. Louis, and save in regard to the then incumbentof the office of judge of probate in that city. If such legislation as this can be sustained, then there is neither force nor efficacy in the constitutional prohibition which forbids that the legislature `indirectly enact such special or local law by the partial repeal of a general law.'
"The act in question is local as to the city of St. Louis, andspecial as to the incumbent of the office of judge of probate."
This Missouri case is not mentioned in the majority opinion in the present case, notwithstanding it was cited and quoted from extensively in the oral arguments and in the printed briefs of the attorneys for the defendants in this case. I do not see how the majority opinion in the present case can be reconciled with the ruling in the Missouri case, which is sound in principle. *Page 315
Several decisions are cited in the majority opinion in this case to the effect that a statute which purports to contain all of the law on the subject dealt with supersedes and in effect repeals all previous laws on the same subject. That doctrine is applicable only to cases where the new statute omits a provision that was contained in a previous statute on the same subject. In such cases the presumption is that the Legislature intended to repeal the omitted provision of the previous law. But that has nothing to do with this case, where the new statute is an exact copy of the previous statutes on the subject of police juries, and is supplemented by a proviso relating only to the police jury of one parish. The idea which is intended to be conveyed by these citations in the majority opinion in this case is that Act No. 22 of the Third Extraordinary Session of 1934 is an entirely new law, and that, inasmuch as it refers to the police juries in all other parishes, besides the parish of East Baton Rouge, the new law is not a local law, but a general law. The answer to that is that, with the exception of the proviso which applies only to the parish of East Baton Rouge, the new statute is merely an exact reproduction and a perpetuation of the previous law on the subject of police juries, and is not a new law, in any other sense than that the printer's ink and the paper on which the law is reproduced are new. In the sense in which we speak of a law, whether it be a general law or a local or special law, there is nothing new in Act No. 22 of the Third Extraordinary Session of 1934 except the proviso which is applicable only in the parish *Page 316 of East Baton Rouge, and therefore a local law. What this court said in the case of Federal Land Bank v. John D. Nix, Jr., Enterprises, 166 La. 573, 117 So. 720, 722, is very appropriate, viz.:
"To hold, under these circumstances, that this act is a general one, would be to hold that, by a mere form of words, the Legislature may make what is in reality a local act a general one, and thereby defeat not only the requirement as to publication of intention, but also those prohibitions, or some of them, in the Constitution against enacting, under any circumstances, local laws on certain subjects."
It has been held, consistently, heretofore, by every court that has ever passed upon the question, and is maintained by all of the law-writers on the subject, that a law that applies to only one county in the state (or one parish in this state) is a local law, within the meaning of the term in the Constitution of the state.
Act No. 22 of the Third Extraordinary Session of 1934 violates also section 3 of article 14 of the Constitution, which declares that the Legislature shall provide optional plans for the organization of parochial government, and that any parish shall have the right, by a majority vote of the electors of the parish, to adopt either of the plans so prescribed. That provision in the Constitution emphasizes how faithfully and positively the framers of the Constitution sought to insure the right of local self-government, to the inhabitants of every parish in the state. The Legislature had enacted already a statute, Act No. 190 *Page 317 of 1914, providing, in detail, a commission form of government for the parishes throughout the state, leaving it optional with the inhabitants of each parish to adopt the new form of government, if they saw fit, by a majority vote of the electors of the parish. Section 3 of article 14 of the Constitution, therefore, is merely a confirmation of what was done by Act No.190 of 1914, and an insistence upon the reservation, to the inhabitants of each and every parish, their right of local self-government. Act No. 22 of the Third Extraordinary Session of 1934 deprives the inhabitants of the parish of East Baton Rouge of their constitutional right, or option, either to adopt the commission form of government, prescribed by Act No. 190 of 1914, or to continue with the governing authority which they had before Act No. 22 of the Third Extraordinary Session of 1934 went into effect. It is said in the majority opinion in this case that Act No. 190 of 1914 is unconstitutional, in that it is in conflict with section 11 of article 5 of the Constitution, which section was article 71 in the Constitution of 1898 and of 1913, and which declares "that the Legislature may provide the mode of filling all offices created by it." My answer to that is that the Legislature did provide, in Act No. 190 of 1914, the mode of filling the offices created, or to be created, thereby. To say "that the Legislature may provide the mode of filling all offices created by it" is not the same as to say how the Legislatureshall provide for the mode of filling the offices created by it. Hence I see no justification whatever for the court's holding that the Legislature, by adopting Act No. 190 of 1914, violated the constitutional *Page 318 provision that the Legislature may provide for the mode of filling all offices created by it.
There are other provisions of the Constitution which the defendants in this case say are violated by Act No. 22 of the Third Extraordinary Session of the Legislature of 1934; but I do not consider it necessary to discuss them. Any one of the violations of the Constitution that I have mentioned is sufficient to render the statute null. As the Supreme Court of the United States said, in the case of Norton v. Shelby County,118 U.S. 425, 442, 6 S. Ct. 1121, 1125, 30 L.Ed. 178, 186, "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."
My apology for the length of this opinion is, as I said at the beginning, that the case is of great public importance. If the constitutional guaranties which I have referred to are so limp and impotent that they do not safeguard the people against such anomalous legislation as Act No. 22 of the Third Extraordinary Session of 1934, these safeguards ought to be strengthened and made more effective, to the end that the government of Louisiana shall remain always and in truth a government of laws and not of men.