It is my opinion that Act No. 3 of the Fourth Extraordinary Session of the Legislature of 1935 is unconstitutional in its entirety. The statute in authorizing the Governor to appoint a judge and a district attorney for the Thirteenth judicial district, composed of only the parish of Evangeline, is violative of section 33 of article 7 of the Constitution, requiring that district judges shall be elected, and of section 58 of article 7 of the Constitution, requiring that district attorneys shall be elected. These statutory provisions are also violative of section 69 of article 7 of the Constitution, permitting the Governor to fill vacancies in the offices of district judges and district attorneys only where the unexpired portion of the term is less than one year, but requiring in all other cases that the vacancy shall be filled by a special election. The unexpired portion of the terms of Judge Pavy as judge and Mr. Garland as district *Page 380 attorney of the Thirteenth judicial district was a year and three months when the statute under review became effective.
The statute so far as it attempts to remove the relator Garland from office before the expiration of his term is violative of sections 33 and 58 of article 7 of the Constitution, the former section fixing the term of office of the district judge at six years and the latter section fixing the term of a district attorney the same as that of a district judge.
The statute so far as it provides that the district attorney of the present Thirteenth judicial district (meaning Garland) shall be appointed an additional assistant district attorney of the Fifteenth judicial district to serve to the end of his term as district attorney of the Thirteenth judicial district is violative of section 60 of article 7 of the Constitution which authorizes the district attorney of each judicial district to appoint and remove his assistants.
Under the allegations of Garland's petition, which must be accepted as true for the purposes of defendant's exception, the statute was not passed by a two-thirds vote of the membership of each House, which was in violation of section 34 of article 7 of the Constitution requiring such a vote to increase or decrease the number of judges of any district. In my opinion, "a two-thirds vote of the membership of each house" as required by the constitutional provision, means a two-thirds vote of the members elected to each House, and not "two-thirds of a quorum of each house," as held by the majority opinion. *Page 381
The effect of the first section of the statute under review is to remove Garland from his office of district attorney for the Thirteenth judicial district before the expiration of the term for which he was duly elected. The other three sections are predicated upon the validity of the first section. If the first section be unconstitutional, then all the other sections, independently of their inherent invalidity, are likewise unconstitutional. Therefore, it is not my purpose nor do I consider it necessary to discuss the unconstitutionality of the statute, except so far as it attempts to legislate the relator Garland out of office, which I think is clearly beyond the power of the Legislature to do.
It cannot be disputed that a district attorney as well as a district judge is a constitutional officer. Both are so designated in the Constitution itself. 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. Section 58 of the same constitutional 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." Garland was elected in November, 1924, for the term of six years, and he was also elected in November, 1930, for another term of six years, which will not expire until the end of the year 1936. Therefore, the legislature cannot directly or indirectly abridge the term of Garland's office, *Page 382 the tenure of which is fixed in the Constitution.
An office which has been provided by the Constitution may not be abolished by an act of the Legislature. Such an office may be abolished only by a new Constitution or by an amendment to an existing one. 46 Corpus Juris, p. 935, section 30 under title "Officer." A number of authorities are cited in support of the text.
The Legislature cannot remove an officer where the term of his office is fixed by the Constitution, and the same result cannot be effected indirectly by transferring the office to another or by abbreviating the term. Throop, Pub. Off., § 20.
The majority opinion that the term of office of a district attorney, although fixed in the Constitution, may be abridged by legislative act at any time is based on section 34 of article 7 of the Constitution providing: "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." The case of State v. Dowling, 167 La. 907, 120 So. 593 is also cited in the opinion in support of the proposition.
I respectfully submit that the decision in the Dowling Case is not authority for the majority opinion rendered in this case. What was decided in the Dowling Case, as shown by paragraph No. 7 of the syllabus, prepared by the Editorial Staff of the West Publishing Company, was that: *Page 383 "The office of the president of state board of health, though a `constitutional office,' under Const. 1921, art. 6, § 11, is such only in the sense that the Constitution commands the Legislature to create the office, but, since the Constitution does not fix term of office, it impliedly leaves that authority with the Legislature, and the term of office is subject to change at any session of the Legislature, in view of article 7, § 40." In other words, that as Dr. Dowling's term of office as president of the state board of health was not fixed in the Constitution, the statute which shortened the term of that office was not violative of any constitutional provision.
The language quoted from the Dowling Case in the majority opinion clearly has reference only to those officers whose terms are not fixed in the Constitution, among whom district attorneys are not included. Dr. Dowling was not a constitutional officer so far as his term of office was concerned, and therefore his term could have been, as it was, abridged by the Legislature. But Garland's term of office, as district attorney, is fixed in the Constitution, and therefore his term cannot be abridged by a legislative act.
I cannot subscribe to the majority view that section 34 of article 7 of the Constitution, authorizing the Legislature to rearrange the judicial districts, justifies such rearrangement to take effect in mid-term. In construing a constitutional provision, the whole instrument is to be taken together and every part is to be made consistent with the other parts. The *Page 384 construction placed upon section 34 of article 7 of the Constitution nullifies sections 33 and 58 of article 7 which provide that district judges and district attorneys, when elected, shall hold their terms of office for six years. The power given the Legislature by section 34 of article 7 of the Constitution to rearrange the judicial districts must be so exercised as to leave the incumbent judges and district attorneys in their offices until the expiration of their terms. In this way only can a conflict between the provisions of the Constitution be avoided and the provisions themselves be made to harmonize.
The established rule that the term of a constitutional officer cannot be abridged by the Legislature was discussed and enforced in the case of State ex rel. Gibson v. Friedley, 135 Ind. 119,34 N.E. 872, 875, 21 L.R.A. 634. In the course of its opinion, the Supreme Court of Indiana correctly remarked: "If the legislature, by a special act, may remove one judge or one prosecuting attorney, it may remove any and all such officials in the state, and hence they would be at the mercy of any legislature whose enmity or ill-will they may have incurred." The court also correctly stated:
"The office of circuit judge, as well as prosecuting attorney, is a public trust, committed by the public to an individual, the duties and functions of which he is bound to perform for the benefit of the public, and entitles him to exercise all the duties and functions of the office, and to take the fees and emoluments belonging to it. * * * *Page 385
"There can be no such thing as an office without responsive duties and functions to be performed by the officer. It is not the mere right to receive an annual compensation, without the exercise of any corresponding duties. If the general assembly can transfer bodily the entire territory which constitutes the locality in which the judge or prosecuting attorney may lawfully exercise the functions and duties of his office, and attach that territory to another circuit, then it can strip the incumbents of their respective offices as effectually as it is possible to so do by any words that can be used. It is in fact as much a removal of the judge and prosecutor so deprived of all territory as would be a judgment of a supreme court removing either of them from his trust. It is not to be assumed that the framers of the constitution builded it so unwisely as to secure to a judge an office and its tenure, and the right to exercise all its prerogatives within a defined locality, for a period of six years, if he so long behave well, and by the same organic law intended that the general assembly might remove him, at its will, from the exercise of all the privileges and duties pertaining thereto, without a hearing, without a conviction for misconduct, under the guise of `from time to time dividing the state into judicial circuits.' Such division may be exercised by the legislature where the act does not legislate judges and prosecutors out of their respective offices, but not otherwise."
In the majority opinion herein much stress is laid upon the fact that section 40 of the article 7 of the Constitution *Page 386 which declares that no judge shall be affected in his term of office does not say that no district attorney, or other public officer, shall be affected in his term of office. But that section of article VII of the Constitution goes further, and declares, "and any legislation so affecting any judge or court shall take effect only at the end of the term of office of the judge or judges, incumbents of the court, or courts, to which such legislation may apply at the time of its enactment." Judge Pavy, the judge presiding over the Thirteenth judicial district court composed of the parishes of St. Landry and Evangeline, was clearly "affected in his term of office," by Act 3 of the Fourth Extraordinary Session of 1935. In fact, he was deprived of his office of judge of the Thirteenth judicial district court and a successor was appointed in his place. It is true, Judge Pavy was made one of the judges of the Fifteenth judicial district; but, nevertheless, the fact remains that he was "affected in the term of his office," and was in fact deprived of his office of judge of the Thirteenth judicial district court, by effect of the statute. Therefore, the statute, according to the precise language of the Constitution itself, should not have gone into effect, or it should not go into effect, until the expiration of the term of office which Judge Pavy held when the statute was enacted; that is to say, until the end of the year 1936. And the statute should not affect the term of Garland, the district attorney for the old Thirteenth judicial district, until the statute can validly go into effect; especially in view of section 58 of article 7 of the Constitution, which *Page 387 provides that the district attorney in each district shall be elected "at the same time and for the same term as is provided herein for district judges."
In State ex rel. Downes v. Towne, 21 La.Ann. 490, which was quoted with approval in the Dowling Case, it was held that where the term of a public officer is fixed in the Constitution he cannot be legislated out of office, or his term of office diminished or increased. In State ex rel. Robinson v. Dranguet, 23 La.Ann. 784, the court, reaffirming that holding, said: "Time and reflection have only strengthened our conviction expressed" in State ex rel. Downes v. Towne. The holding was also approved in Lafayette Fire Ins. Co. v. Remmers, 29 La.Ann. 419.
But it is said in the majority opinion herein that the decision in State ex rel. Downes v. Towne has ceased to be a precedent, because the decision was rendered in 1869, under the provisions of the Constitution of 1868, which did not contain the provisions of section 34 of article 7 of the Constitution of 1921, authorizing the Legislature to rearrange the judicial districts or the provisions of section 40 of the same article of the Constitution of 1921, declaring that no judge shall be affected in his term of office during the term or period for which he is elected, and that any legislation so affecting any judge shall take effect only at the end of the term of the incumbent judge. Article 83 of the Constitution of 1868 authorized the Legislature to divide the state into judicial districts, which should remain unchanged for four years, but it appears *Page 388 to me the majority of the members of the court overlooked the fact that the office which was in contest in the case of State ex rel. Downes v. Towne was not the office of district judge, but the office of parish judge, which office was abolished by the Constitution of 1879. Inasmuch as the contest was over the office of parish judge, in the case of State ex rel. Downes v. Towne, the fact that the Constitution of 1868 did not contain the provisions of section 34 of article 7 of the Constitution of 1921, authorizing the Legislature to rearrange the judicial districts, is a matter of no importance whatever. The fact that the Constitution of 1868 did not contain any such provisions as are contained in section 40 of article 7 of the Constitution of 1921, protecting judges in their terms of office, makes the decision which was rendered in State ex rel. Downes v. Towne as good authority to-day as if the office which was in contest in that case had not been a judicial office. It was only because article 86 of the Constitution of 1868 fixed the term of office of the judge of each parish court that this court said in State ex rel. Downes v. Towne that it was not in the power of the Legislature to legislate Judge Downes out of office "or to diminish or increase his term of office as fixed in the constitution." If the term of office of Judge Downes had not been fixed in the Constitution, he would not have been protected in his term of office by any such provision in the Constitution of 1868 as is embodied in section 40 of article 7 of the Constitution of 1921. Therefore, as Judge Downes was protected in his term of office by the Constitution of 1868 so *Page 389 is the relator Garland protected in his term of office by the Constitution of 1921.
The case of State ex rel. Collens v. Clinton, 26 La.Ann. 406, 408, is cited in support of the majority opinion that the judicial districts of the state may be rearranged by legislative act. But in Lafayette Fire Ins. Co. v. Remmers, 29 La.Ann. 419 this court, after approving the rule announced in State ex rel. Downes v. Towne and State ex rel. Robinson v. Dranguet, as hereinabove shown, pointed out that the case of State ex rel. Collens v. Clinton was decided "under the special provisions of the constitution for the parish of Orleans, and so expressly stated, and the court was divided." And the court in the Remmers Case expressly refused to approve the decision in State ex rel. Collens v. Clinton, stating: "Without being called upon to give our assent to that decision [State ex rel. Collens v. Clinton], it is enough to say that it does not therefore and was not intended to vary the rule announced in the two former cases of Downes and Robinson just quoted."
The court quoted approvingly the following from Commonwealth v. Gamble, 62 Pa. 343, pages 352, 353, 1 Am.Rep. 422, relative to a constitutional provision providing for the election of judges by the electors of their respective judicial districts, viz.:
"`It is obvious that this secures to the electors of every judicial district the right to choose their judges; and it is equally certain that if after an election the Legislature may transfer and make the district *Page 390 part of another district, when the inhabitants have had no participation, or chance of participation, in the election of a judge thus assigned to preside over them, that such an act would utterly ignore the provision of the constitution which provides for the election of judges by the electors of the respective districts.' And again: `If this may be done in this instance, it may be repeated.' And so the territory and people might be transferred from time to time indefinitely, without ever exercising the right of participating in the election of a judge at all, `and all such legislation must be utterly void if the constitutional provision for the election of judges be of the slightest consequence.'"
The decision in State ex rel. Collens v. Clinton, 26 La.Ann. 406, 408, was, in effect, overruled in the later case of State ex rel. Collens v. Jumel, 30 La.Ann. 861. In the first Collens Case it was held that Collens was not entitled to any salary after his court was abolished. In the second Collens Case, it was held that decision was not res judicata as to the salary not included in the suit and that, excluding the salary demanded in the first suit, Collens was entitled to his salary to the end of the term for which he was elected and commissioned, a period of three years and seven months. It is clear that the court in the second suit allowed Judge Collens his full salary on the theory that his office had not been legally abolished and that the decision in the first suit was wrong. In fact, in the second suit the court expressly declared that in no instance had the doctrine announced in the first suit found any favor. We quote from *Page 391 State ex rel. Collens v. Jumel, as appropriate to this case, the following, viz.:
"All devices tending to abrasion of the independence of the judiciary, or to subject it to legislative or popular caprice, have been uniformly condemned by the wisest men of our country. Numerous instances have occurred in the States of attempts by the legislatures to oust judges from their constitutional offices, and deprive them of their salaries, and in no instance has the doctrine announced in the relator's case in the twenty-sixth Annual [State ex rel. Collens v. Clinton] found any favour. A case in Illinois meets the point exactly. Ballou was elected a judge of the circuit court, was commissioned, and qualified, and two years afterwards and before the expiration of his term, the legislature repealed the act which created the circuit of which he was judge, and established another circuit in its stead. The court say: `The question is, can the legislature expel a circuit judge from his office by creating a new circuit, and taking from him the territory which constituted his circuit. The bare reading of the constitution must convince any one that it intended to prohibit such a proceeding. It was the intention of that instrument to place the judges entirely above and beyond legislative control or interference, except by impeachment or address. It is the constitution which creates the office of circuit judge, and not the legislature. * * * It is unnecessary now to say whether the legislature may reduce the number of judicial districts by abolishing one and attaching its territory to another. If it may, *Page 392 then the office would cease upon the expiration of the term of the judge, but until the expiration of his term, the constitution has not provided, nor has it authorized any mode of expelling him from his office.' (People ex rel. Ballou v. Dubois) 23 Ill. [547] 550."
It was only because the Constitution of Illinois fixed the term of office of the circuit judges that the Supreme Court of Illinois declared it was not within the power of the Legislature by repealing the act creating the circuit of which he was judge to expel Judge Ballou from his office before the expiration of his term. While the court found it unnecessary to pass on the question of the right of the Legislature to reduce the number of districts by abolishing one and attaching its territory to another, it distinctly held that if the Legislature had the right it could exercise it by making such reduction in the number of judicial districts take place or go into effect only at the close of the term of the judge of the district abolished. Obviously, the reasoning applied by the court to the office of district judge would have been applied likewise to the office of prosecuting attorney, if that office had been involved in the case. And I think the reasoning is appropriate to this case as showing the lack of power in the Legislature under the constitutional restrictions to rearrange Garland's judicial district so as to expel him from the office of district attorney before the expiration of the term for which he was elected.
The foregoing are some of the reasons which have impelled me to dissent from the majority opinion in this case. *Page 393