City of Alexandria v. Alexandria Fire Fighters Ass'n

HAMITER, Justice

(dissenting).

In determining whether the statute assailed herein delegates legislative authority and, for that reason, is unconstitutional, certain well established principles must ibe kept in mind.

A legislative act is presumed to be legal until it is shown that it is manifestly unconstitutional, and all doubts as to its validity are resolved in favor of its constitutionality. Board of Barber Examiners of Louisiana v. Parker, 190 La. 214, 182 So. 485.

Further, as said in 11 American Jurisprudence- verbo Constitutional Law, Section 216: “The rule is well settled that while the legislature may not delegate its power to make a law, it may make a law to become operative on the happening of a certain contingency or future event. Moreover, in general it makes no essential difference what is the nature of the contingency if it is essentially just and legal. The reason for this rule is that it is not always essential that a legislative act must in any event take effect as law after it leaves the hands of the legislature. If the law is in its provisions a complete statute in other respects, its taking effect may be made conditional upon some subsequent event. When that event happens, the statute takes effect and becomes the law by force of legislative action as fully as if the time when it should take effect had been unconditionally fixed.” (Emphasis ours.)

Again, to quote from 16 C.J.S., Constitutional Law, § 141:

“It is the general rule that where an act is clothed with all the forms of law and is complete in and of itself, it is fairly within the scope of the legislative power to prescribe that it shall, become operative only on the happening of some specified contingency, contingencies, or succession of contingencies. Such a statute lies dormant until called into active force by the existence of the conditions on which it is intended to operate.

“The legislature must itself fix the condition or event on which the statute is to operate, but it may confide to some suitable agency the fact-finding function as to whether the condition exists, or the power to determine, or the discretion to create, the stated event. The nature of the condi■ *768tion is, broadly, immaterial. Generally, it may consist of the determination of some fact or state of things on the part of the people or a municipality or other body or officers; or, it may consist of some act or acts to be performed by public officers or bodies, or by the people or parties interested, except that the execution of a statute may not foe conditioned on the unbridled discretion of a single individual or an unduly limited group of individuals. * * *” (Emphasis ours.)

It seems clear from the foregoing that aithough the Legislature cannot delegate the exercise 'of its discretion as to what a law shall be, it may leave to selected instrumentalities the discretion of determining some fact or state of things upon which an adopted law makes or intends to make its own action depend. “* * * The true distinction is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law; the first cannot be done, to the latter no valid obj ection can be made. * * 16 C.J.S., Constitutional Law, § 133.

By Act 239 of 1950 (amending LRS 33 :- 1994, LSA-R.S.), which is the statute questioned herein, the Legislature sought to prescribe maximum hours of work in any one calendar week for all firemen employed full time by municipalities of the state. To this end it first fixed the maximum hours of the firemen in a city exceeding 250,000 population (applying now only to the City of New Orleans) at 60 hours. As to the remaining municipalities it realized, obviously, that in some, particularly the larger ones, the prevailing economic and other conditions (involving wages, living standards, amount of hazardous duty required, hours of other municipal employees, etc.) might foe similar to those in the- City of New Orleans' and, therefore, the same maximum hours would be appropriate; whereas, in other cities, especially the smaller ones, different conditions existed which required a different maximum work week. With this realization, and being unable to properly legislate for all municipalities individually, the Legislature did the only thing feasible, in my opinion. It fixed a maximum for eaoh municipality, other than New Orleans, of 72 hours; but then it specifically provided: “* * * that in any municipality having a population of not less than fifteen thousand (15,000) nor more than two hundred fifty thousand (250,000), if at an election held for that purpose, the majority of the members of the fire department of any city having a maximum work week of seventy two hours, should so vote, the maximum hours of work required of firemen as herein provided in such city shall not be in excess of sixty hours in any one calendar week.”

The Legislature further declared: “The election herein provided for shall be called by the chief of the fire department if re*770quested so to do in writing by at least twenty-five percent of the members of the department. Notice of the election shall be given by posting in each station of the department involved at least thirty days prior to the holding of the election. The necessary ballot and tally sheets shall be furnished by the municipality and the election shall be conducted by commissioners selected from amongst the members of the department by the chief. No more than one election shall 'be held during any one calendar year.”

Thus, the Legislature, by the foregoing provisions which constitute a statute clothed with all the forms of law and is complete in and of itself, established two maximum work weeks: one of 60 hours available to any city (in addition to New Orleans) of a population from 15,000 to 250,000 the economic and other conditions of which warranted it, and another of 72 hours for each of the remaining municipalities.

The enactment of this law — the legislative establishment of each of the two maximum work weeks — was not performed by the firemen of any city. Their sole function with reference to the law is to determine, as an instrumentality designated by the Legislature and as persons directly interested, whether the economic and other conditions — the state of things — of their respective municipalities require the 60 hour week rather than the 72 hour week. And for this purpose the statute itself vests them with the necessary discretion, it to be exercised in accordance with specific and well defined directions. When, under those directions, a majority of the members of the fire department of any city determine that the 60 hour week is required (by voting therefor), it becomes operative in that municipality, the stated event having occurred.

I am of the opinion, therefore, that with reference to the firemen the Legislature has merely conferred on them a discretion as to the execution of the instant statute, to be exercised under and in pursuance to its provisions; and that to this grant of authority there can be no valid objection.

Very similar in principle to the statute involved here was an Act of Congress assailed in Currin v. Wallace, 306 U.S. (1, 59 S.Ct. 379, 386, 83 L.Ed. 441. The Act related to transactions involving the sale of tobacco at auction as commonly conducted at auction markets. It authorized the Secretary of Agriculture to investigate the handling, inspection and marketing of tobacco, and to establish standards by which its type, grade, size, condition or other characteristics might be determined. It further authorized him to designate those markets where tobacco bought and sold at auction or the products customarily manufactured therefrom move in commerce. But he was not to designate a market unless two-thirds of the growers, voting at a prescribed referendum, favor it. In holding that the Act did not delegate any legislative powers the court first said: * * * *772This is not a case where Congress has attempted to abdicate, or to’ transfer to others, the essential legislative functions with which it is vested by the Constitution, * * *. We have always recognised that legislation must often be adapted to conditions involving details with which it is impracticable for the legislature to deal directly. * * *” (Emphasis ours.)’

The court in the Currin case then discussed separately the functions of the tobacco growers and the Secretary of Agriculture under the Act. As to the former, whose functions were closely akin to those of the firemen under the instant state stat.ute, it said: “So far as growers of tobacco are concerned, the required referendum does not involve any delegation of legislative authority. Congress has merely placed a' restriction upon its own regulation by withholding its operation as to a given market ‘unless two-thirds of the growers voting favor it’. Similar conditions are frequently found in police regulations. Cusack Co. v. Chicago, 242 U.S. 526, 530, 37 S.Ct. 190, 191, 61 L.Ed. 472 [475], L. R.A.1918A, 136, Ann.Cas.l917C, 594. This is not a case where a group of producers may make the law and force it upon a minority (see Carter v. Carter Coal Co., 298 U.S. 238, 310, 318, 56 S.Ct. 855, 872, 876, 80 L.Ed. 1160 [1188, 1192]) or where a prohibition of an inoffensive and legitimate use of property is imposed not by the legislature but by other property owners (see Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116, 122, 49 S.Ct. 50, 52, 73 L.Ed. 210 [214], 86 A.L.R. 654). Here it is Congress that exercises its legislative authority in making the regulation and in prescribing the conditions of its application.. The required favorable vote upon the referendum is one of these conditions. * * * ” (Emphasis ours.)

It is to be noticed from the above quotation that the United States Supreme Court distinguished the Carter Coal Co. case, relied on in the majority opinion herein, which it had decided three years previously. ' In my opinion it is also distinguishable from the instant case. The Act of Congress involved there delegated to the coal producers and miners the' legislative power to fix maximum hours of labor and to fix minimum wages. Here the Legislature itself has fixed a maximum working week of 60 hours for the firemen of a city; and it has merely granted to those men, who are directly affected thereby, the authority to. carry it into effect.

State v. Watkins, 176 La. 837, 147 So. 8, 9, on which the majority opinion is largely predicated, is also distinguishable. Unlike the instant statute, the Act therein attacked clearly. delegated legislative power. As said in the opinion of that case it “merely provided for a referendum, submitting to the electors * * * the question whether the prohibition law, known as the Hood Act * * * should be repealed.”

For the foregoing reasons, I respectfully dissent.