
    227 La. 1067
    Raymond B. OLIVER v. SHREVEPORT MUNICIPAL FIRE AND POLICE CIVIL SERVICE BOARD. Victor BUSSIE v. SHREVEPORT MUNICIPAL FIRE AND POLICE CIVIL SERVICE BOARD.
    No. 41924.
    Supreme Court of Louisiana.
    Dec. 13, 1954.
    On Rehearing April 25, 1955.
    Rehearing Denied May 23, 1955.
    
      Charles M. Peters, Shreveport, for plain-Rffs-relators.
    John A. Dykes, Shreveport, for defendant-respondent.
   McCALEB, Justice.

On December 4, 1953, the Shreveport Municipal Fire and Police Civil Service Board notified relators (members of the Fire Department) and two officers of the Police Department, Chief of Police E. G. Huckabay and Patrolman O. C. Merrett, that it intended to investigate their conduct ■with respect to .their participation in a conspiracy having for its purpose the coercion of Safety Commissioner A. B. Morris óf Shreveport, by means of threats, so as to cause him- to neglect or fail to perform his official duties. Prior to the scheduled date of the investigation, relators and the two police officers, claiming that the contemplated action of the Board was -ultra vires and unconstitutional for divers and sundry reasons, instituted four similar suits (including the present cases) to restrain the Board from proceeding. After a hearing before the District Court of Caddo Parish, a permanent injunction was granted in conformity with the prayer of the petitions without prejudice, however, to the right of the Board to conduct and hold a public trial when and if specific complaints were made against either one or all of the plaintiffs. From this decision, the Board appealed to the Court of Appeal, Second Circuit, where the ruling was reversed and the, complainants’ demands rejected at their costs. See Merrett v. Shreveport Fire and Police C. S. Bd., 72 So.2d 519 and Bussie v. Shreveport Municipal Fire and Police C. S. Bd., and Oliver v. Shreveport Municipal Fire and Police C. S. Bd., 72 So.2d 529. Upon the finality of the judgments of the Court of Appeal, Bussie and Oliver applied for and were granted writs of certiorari, which have been consolidated in this Court and submitted for our decision.

Whereas it appears from relators’ pleadings that they have enumerated some sixteen objections to the proposed investigation, their basic complaint is actually twofold: (1) that the investigative power of the Civil Service Board is restricted to matters involving the administration of civil service personnel and that the Board may not examine into the conduct and performance of a classified employee except on complaint initiated by the appointing authority or on written request of qualified electors and (2) that, in the event it be held otherwise, any such investigation must be conducted in private in order to safeguard the employee’s constitutional right of due process of law.

' The law governing these cases is “the Municipal Fire' and Police 'Civil Service Law”, which was incorporated in thé LSA-Revised' Statutes of 1950 as R.S. 33:2471-2508. These statutory provisions were en-grafted in their entirety into our Constitution' as Section 15.1 of Article XIV by amendment approved by the people on November 4th 1952, LSA. The constitutional provisions, which are self-executing and comprise 39 paragraphs, set forth a composite civil service law for policemen and firemen in cities having a population of not less than 13,000 nor more than 250,000. As said by the Court of Appeal in its opinion [72 So.2d 524] “ * * * the section provides for the constitution' of the Board, prescribes its duties, grants authority, to adopt and execute its own rules and regulations, directs the establishing of classified and unclassified service, provides for corrective and disciplinary action and for maintaining standards of service, regulates the procedure in appeals by employees to the Board, and prohibits certain activities by employees in the Civil Service”.

; Paragraph 7 of Section 15.1 designates the duties of the Board and, in subpara-graph d thereof, it is provided that it shall make, at the direction of certain constituted officials or upon the written petition of any citizen “ * * * or upon its own motion, any investigation concerning the administration of personnel or the compliance with the provisions of- this Section in the said municipal fire and police services; review, and modify or set aside upon its own motion, any of its actions, take any other action which it determines to be desirable or necessary in the public interest, or to carry out effectively the provisions and purposes of this Section”.

Paragraph 30 specifies that all persons permanently inducted in the classified service shall have tenure during good behavior and that the appointing authority may only remove an employee from, the service, or take such disciplinary action against him as the circumstances warrant, when he has failed, by acts of commission or omission, to comply with the standard set forth in said paragraph, which enumerates some fifteen grounds as causes for disciplinary action.

And subparagraph c of Paragraph 30 declares :

“Although it is incumbent upon the appointing authority to initiate corrective or disciplinary action, the board may, and shall upon the written request of any qualified elector of the state which sets out the reasons therefor, make an investigation of the conduct and performance of any employee in the classified service mid, thereupon may render such judgment and order action to be taken by the appointing authority. Such action shall be forthwith taken by the appointing authority.” (Italics ours.)

Paragraph 31 of the Section sets forth the remedy available to any employee who has been discharged or subjected to corrective or disciplinary action. It provides that he may appeal to the Board within a fixed time; that the Board shall grant him a hearing within 30,. days after receipt of a written request and that “All such hearings and investigations conducted by the board pursuant to the provisions of this Section shall be opened to the public.”

The Court of Appeal found that rela-tors’ complaints were insubstantial in view of the above referred to provisions of Section 15.1 of Article XIV of the Constitution and particularly those which confer upon the Board the privilege of investigating the conduct and performance of any classified employee, even though no action has previously been taken by the appointing authority or written request made by a qualified elector. The correctness of this resolution cannot be seriously questioned, for Paragraph 30, subpar: c, is perfectly clear and explicit.

However, counsel for relators professes, inter alia, that specific charges must be made before or by the Civil Service Board as a condition precedent to its investigation of the employee’s conduct.

There is no merit in this point as the Civil Service Law does not require that a complaint precede an investigation. On the contrary, th.e law authorizes the appointing authority to act without giving .the employee an opportunity to be heard but, in, the event of disciplinary action, the employee has a right of appeal to the Board and ultimately to the courts for a determination of whether the action was taken in good faith for cause. Paragraph 31, Section 15.1 of Article XIV of the Constitution. In like manner, Paragraph 30, sub-par. c, grants to the Board the unqualified prerogative of investigating the conduct of an employee on its own motion and nothing in the law prescribes that such employee even ‘be given notice of the investigation, much less that he be furnished with a statement or detailed account of the conduct to be examined. Nevertheless, the Board has given relators in the instant cases written notification of the specific conduct that will be scrutinized and they have also been advised that they may be assisted by counsel ; that they will be called upon to testify, cross-examine witnesses and present testimony, if they so desire, to refute any evidence which tends to reflect upon their conduct or performance as members of the Shreveport Fire Department.

Albeit, it is because of these privileges extended by the Board that relators principally complain — that is, they view with apprehension the proposed public investigation, fearing that it' may subject them to unwarranted criticism and adverse publicity. And they say that their constitutional rights will be violated if the open investigation is permitted.

These postulations are untenable. To begin with, relators’ assertions of unconstitutional invasion of their rights are somewhat nebulous. We are told "in generalities that the open investigation would violate due process, yet' it is difficult to perceive the manner in which due process is denied. Actually, the only vested right which relators have to their positions is that given them by the constitutional amendment itself, i. e., the right of tenure conditioned on good behavior as defined in the law. And, since they are public servants, their conduct and performance of their jobs are unquestionably a matter of public interest' and open to public examination.

The Court of Appeal believed that, since Section 15.1 was the only section in the law relating to the procedure to be followed in conducting hearings and investigations, its provisions were clearly applicable to all investigations by the Board. The contention that the Board, must conduct its proposed investigation in private is founded on the premise that Paragraph 31 of Section 15,1,. declaring that all hearings and investigations of the Board “pursuant to the provisions of this Section” shall be open to the public, applies only to hearings on appeals by employees to the Board, and it is said that the Court of Appeal erred in holding otherwise.

For our part, we find it unnecessary to determine whether counsel’s contention is correct for, if it be conceded that Paragraph 31 refers exclusively to open hearings of appeals by employees to the Board, it is plain that the Civil Service Law contemplates and elsewhere specifies that all hearings and investigations of the Board be open to the public. Indeed, it is manifest to us that, in demanding a private investigation, counsel is again overlooking the nature 'of relators’ employment, of their status as civil servants, and of the public interest in any investigation of their conduct and performance. In addition, it is exceedingly doubtful that the Civil Service Board has the authority to conduct private investigations or hearings, as Paragraph 6, subpar. m, of Section 15.1 declares, among other things, that “Meetings of the boards shall be open to the public.” This envisages that the Board is to act and function only as a body and not through its individual members and that, in order for it to exercise any of the duties listed in Paragraph 7 of the law, it must first be convened at a “meeting”. Obviously, without a “meeting” the Board cannot take official action.

The judgment of the Court of Appeal is affirmed.

HAMITER, J., dissents with written reasons.

HAMITER, Justice

(dissenting).

Plaintiffs, Victor Bussie and Raymond B. Oliver, who are the Chief and Assistant Chief, respectively, of the Shreveport Bureau of Fire Prevention, seek in these causes to enjoin the Shreveport Municipal Fire and Police Civil Service Board from conducting a proposed public investigation or trial of them, no complaints or charges having been filed against the plaintiffs by any elector or by their appointing authority or by the respondent Board.

Written stipulations of counsel, on which the cases were tried, disclose (among other things) the following: “The investigations will be held in the Council Chambers of the Shreveport City Hall and will be open to the public and the press.

******

“There is a great deal of public interest in the proposed investigations and the local newspapers and radio stations plan to give extensive publicity to the investigations if held.

. * * * * * *

“If as a result of the proposed investigation, in the opinion of the Board, corrective or disciplinary action is indicated, then in that event, the Board will be advised by its attorney, Mr. John A. Dykes, that it has the authority to order disciplinary Or corrective action to be taken, and if such corrective or disciplinary action is taken, as to any plaintiff or plaintiffs against whom it is taken, the investigation will have been a trial.”

As is correctly said in 81 C.J.S., verbo States, § .66d, “A civil service commission or board can exercise only such authority and has only such duties as are legally conferred by express provisions of law, or such as are by fair implication and intendment incident to, and included in, the authority expressly conferred for the purpose of carrying out and accomplishing the objects for which the commission was created. Any reasonable doubt as to the existence of any particular power in the commission should be resolved against the exercise of such authority. * * *” (Italics mine.)

The question which we are presently called upon to determine, therefore, is whether or not the provisions of Article 14, Section 15.1 of the Louisiana Constitution (these provisions govern the respondent Board and were copied almost verbatim from.LSA-R.S. 33:2471-2508), confer the power, either expressly or impliedly, for conducting the proposed public investigation sought to be enjoined.

Answering this question in the affirmative, the Court of Appeal relied primarily on paragraph 31 of the mentioned constitutional provisions and held that therein specific authority for the proposal is expressly given. But clearly that paragraph, as the title and the other language thereof plainly reveal, contemplates a public hearing held only in connection with an appeal to the Board by a “regular employee in the classified service who feels that he has been discharged or subject to any corrective or disciplinary action without just cause.” These circumstances are not applicable to the instant plaintiffs.

In reply to plaintiffs contention that the Court of Appeal erred in so holding, the majority opinion of this court states: “For our part, we find it unnecessary to determine whether counsel’s contention is correct for, if it be conceded that Paragraph 31 refers exclusively to open hearings of appeals by employees to the Board, it is plain that the Civil Service Law contemplates and elsewhere specifies that all hearings and .investigations of the Board be open to the public.” And in conclusion, and as the principal reason for such majority view, it recites: “In addition, it is exceedingly doubtful that the Civil Service Board has the authority to conduct private investigations or hearings, as Paragraph 6, subpar. m, of Section 15.1'declares, among other things, that ‘Meetings of the boards shall be open to the public.’ This envisages that the Board is to act and function only as a body and not through its individual members and that, in order for it to exercise any of the duties listed in Paragraph 7 of the law, it must first be convened at a ‘meeting’. Obviously, without a ‘meeting’ the Board cannot take official action.”

I cannot subscribe to the conclusion that the word “meetings” as used in paragraph 6, subpar. m, relates to all of the Board’s activities, including any and all of the investigations that it is authorized to conduct. If such were the intention of the Civil Service Law, particularly in view of the fact that reference is variously made throughout it to “meetings” and “hearings” and “investigations” as different phases of the Board’s activities, I feel certain that the language relied on would have read: “All meetings, investigations, and hearings of the Boards shall be open to the public.”

Indicating to me that the Board’s authorized investigations were intended to be private unless specifically declared otherwise are certain provisions contained in the law. For example, subparagraph c of paragraph 30 recites: “Although it is incumbent upon the appointing authority to initiate corrective or disciplinary action, the board may, and shall upon the written request of any qualified elector of the state which sets out the reasons therefor, make an investigation of the conduct and performance of any employee in the classified service, and thereupon may render such judgment and order action to be taken by the appointing authority. Such actions shall be forthwith taken by the appointing authority.” Then in the following paragraph 31, a public investigation is expressly provided for in the case of an employee’s appeal to the Board. By reason of the specific mention, in the latter provision of a public investigation • I am convinced that only a private investigation (when initiated by the Board) is contemplated by the quoted paragraph 30, subpar. c, which omits the word “public”.

Again, paragraph 34, relating to the prohibition of political activities, tends to support the- view that I entertain. Subpara-graph b of that paragraph states in part: “ * * * The board may, upon its own initiative, investigate any officer or employee in the classified service whom it reasonably believes guilty of violating any one or more of the provisions of this Section. The board shall, within thirty days after receiving the written charges, hold a public hearing and investigation and determine whether such charges are true and correct. * * * ” Here two different investigations are provided for, one being on the Board’s own initiative and the other following the Board’s reception of written charges. If the first were intended to be public seemingly the provision would have specifically so read, just as the provision relating to the second investigation does. Or if it be contended that the first is necessarily public because of the above-mentioned paragraph 6, subpar. m, then there was no need for expressly terming the second investigation as public in character.

Furthermore, to require a conducting by the Board of only public investigations, a.s in open meetings, is unsound in principle and, hence, it could not possibly have been intended. A requirement of that kind would not only greatly hamper such body in carrying on the meritorious service for which it was designed and created, but also many innocent employees would be unjustly and irreparably harmed by and through some of the publicly held investigations predicated on mere suspicions.

Therefore, I am of the opinion that although the respondent Board may initiate and make private investigations of the conduct and performance of these plaintiffs, pursuant to paragraph 30, subpar. c, it is without authority or right to hold the proposed public hearings (and it should be enjoined), no formal complaint of misconduct or inefficiency against such persons having been made.

I respectfully dissent.

On Rehearing

HAMITER, Justice.

The primary question to he determined in these consolidated cases is whether Section 15.1, Article 14 of the Louisiana Constitution (an amendment adopted November 4, 1952 and consisting of 39 paragraphs, the provisions of which are substantially the same as those of LSA-R.S. 33:2471-2508) grants authority and power to the Shreveport Municipal Fire and Police Civil Service Board to hold the public hearings that it proposes and which plaintiffs seek to enjoin.

. With respect to the proposed public hearings the admitted allegations of the petitions and a written stipulation of counsel, on which the cases were tried, disclose the factual situation hereinafter set forth.

Plaintiffs, • Oliver and Bus'sie, were and are members of the Shreveport Fire Department and governed by the classified civil service provisions of the Municipal Fire and Police Civil Service Law of Louisiana, now contained in the above-mentioned constitutional amendment. Neither had been disciplined by his appointing authority; such authority had never •filed a complaint against either; and no •written request for investigating or disciplining them had been made by any elector. The public hearings proposed to •be held, and involving these employees, jvere instigated by the civil service board on its own motion.

On December 4, 1953 the defendant board addressed identical letters to the two plaintiffs, as well as to two other persons who were members of the Shreveport Police Department, notifying them that it intended to publicly investigate their conduct during a period of about seven years to determine “to what extent, if any,” they had participated in a conspiracy the purpose of which was to coerce a designated public official into taking or failing to take action in connection with his public duties, and “to what extent, if any,” they succeeded in so coercing the said official. Plaintiffs were informed that they would be given the opportunity, at such hearings to cross-examine witnesses produced by the board and to present testimony for the purpose of refuting any evidence which reflects on their conduct. The letter closed with the notification: “Should the Board decide to investigate any other phases of your conduct and performance, you will be given further notice.”

The four investigations, according to the stipulation, were to be conducted separately; not more than a week would elapse between the close of one and the beginning of the next; and each of the employees would be subpoenaed by the board and required to answer all questions dealing with the subject matter, unless" he refused to answer on the grounds of self-incrimination. Other witnesses would be called and the employees would be allowed to cross-examine them and to present any- testimony or evidence on their own behalf.

It appears from the stipulated testimony of an agent for the hoard (a specially appointed attorney who subsequently represented and still represents the board in these proceedings), that he had been authorized and directed to make, and that he did make and complete, a private investigation of plaintiffs’ conduct for the board; and that it was at the completion of this private investigation that the board proceeded to initiate the public hearings sought to be enjoined.

The stipulation of counsel further discloses that the proposed hearings would be held in the council chambers of the Shreveport City Hall and open to the public with “the testimony of all witnesses being available to the press and ' radio announcers; that the hearings almost certainly will last-several days and that there would be an opportunity for the press and radio announcers to play up the subject matter for a number of days.”

“There is a great deal of public interest in the proposed investigations and the local newspapers and radio stations plan to give extensive publicity to the investigations if held.”

“The said Board does not propose to he bound by the legal rules of evidence. Further, the Board proposes to hear all evidence which it deems to be relevant to the announced subject matters or such additional subject matters as may be later announced, without regard for whether or not such evidence involves criminal activities.”

“The said Board, in connection with the proposed investigations, proposes to use its power of subpoena against your plaintiffs under the Civil Service Law. If the testimony indicates criminal activity .on the part of any plaintiff, such testimony will be adduced in public with newspaper reporters present or plaintiff or plaintiffs will be forced to rely on the constitutional and civil service provisions against self-incrimination, in public, with newspaper reporters present.”

“At the present moment the Caddo Parish Grand Jury is in session. If the proposed investigations are held prior to the completion of deliberations by the Caddo Parish Grand Jury, the transcript of testimony of the investigations will be avail.able to said Grand Jury and, if the investigations disclose illegal or criminal-activities, the Chairman of the Board will send a copy of the transcript to the said Grand Jury.”

“If, as a result of the proposed investigation, in the opinion of the Board, corrective or disciplinary action is indicated, then in that event, the Board will be advised by its attorney, Mr. John A. Dykes, that it has the authority to order disciplinary or corrective action to be taken, and if such corrective or disciplinary action is taken, as to any plaintiff or plaintiffs against whom it is taken, the investigation will have been a trial.”

“If disciplinary action is taken against any of the plaintiffs as a result of the said investigations, before said plaintiff could resort to court action, the said plaintiff would have to appeal his case to the identical board that' ordered such .disciplinary or corrective action, to be taken and judicial review would be limited to consideration of whether the action was taken in good faith for cause.”

“Upon the trial of this cáse [these cases], plaintiffs would call as witnesses a number of Civil Service employees who would testify that a public investigation as proposed herein would adversely reflect upon them as individuals and as Civil Service employees, irrespective of their guilt or innocence and irrespective of whether or not corrective or disciplinary action was or was not taken against them.” (Brackets ours.)

These plaintiffs do not dispute the authority of the board to make whatever private investigations it deems necessary and to order the appointing authority to take corrective or disciplinary action. But they do challenge the board’s claimed right to hold the proposed public hearings or trials, they insisting that the Civil Service Law contains no provision granting such power. If it does, they contend alternatively, it violates the due process-clause of the federal constitution.

The district court, after trial of the merits, rendered judgment in favor of each plaintiff “permanently enjoining and restraining the said Shreveport Municipal Fire and Police Civil Service Board of the City of Shreveport, Louisiana, from holding a public ‘investigation’ of either plaintiff’s conduct pursuant to defendant’s letter addressed to each plaintiff under date of December 4, 1953. Said injunction is granted without prejudice to the right of defendant to conduct and hold a public trial of any specific complaint or complaints made or which may be made against either or all of said plaintiffs.” (This reservation evidently has reference to complaints regarding political activities prohibited by paragraph 34 of the constitutional Civil Service Law.)

In reversing those judgments on appeal, and dismissing the suits, the Court of Appeal concluded that specific authority for the hoard’s holding the proposed public hearings is granted in paragraph 31 of Section 15.1, Article 14 of the Louisiana Constitution. 72 So.2d 526, 529. That paragraph is entitled “Appeals by Employees to the Board.” And it recites in part: “Any regular employee in the classified service who feels that he has been discharged or subject to any corrective or disciplinary action without just cause, may, within fifteen days after the action, demand in writing, a hearing and investigation by the board to determine the reasonableness of the action. The board shall grant the employee a hearing and investigation within thirty days after receipt of the written request.

“All such hearings and investigations conducted by the board pursuant to the provisions of this Section shall be opened to the public. No hearing and investigation shall be held unless both the employee and the appointing authority have been advised at least ten days in advance of the date, time and place therefor. * * * ”

Clearly paragraph 31, as the title and the other langauge thereof plainly reveal, contemplates a public hearing held only in connection with an appeal to the board by a “regular employee in the classified service who feels that he has been discharged or subject to any corrective or disciplinary action without just cause.” These circumstances are not applicable to the instant plaintiffs. (Italics ours.)

The appearance of the word “section” in the last quoted provision of paragraph 31 is obviously an error. The word “paragraph”, no doubt, was intended. As contained in the Constitution the Civil Service Law comprises one lengthy “section” and is divided into 39 paragraphs; whereas the law in the Revised Statutes of 1950, from which it was taken practically verbatim, consisted of a single part divided into numerous sections. Section 2501 of Title 33, LSA-R.S. provided for public hearings on employees’ appeals to the board, and when it was carried into the Constitution the word “section” as therein used was not changed to read “paragraph”, as should have been done.

Able defense counsel does not contend, as the Court of Appeal concluded, that the discussed paragraph 31 authorizes the instant proposed public hearings. Conceding that the board possesses only such powers as are conferred by the Civil Service Law its counsel, to quote from his brief, states: “It is defendant’s contention that the authority to conduct the proposed investigations can be supported by the unambiguous language of either the provisions of paragraphs 7d, 7e or paragraph 30c.”

The provisions thus relied on read as follows :

“7. Duties of the Board

***** *

“d. Make, at the direction of the mayor, commissioner of public safety, chief of either the fire or police department, or upon the written petition of any citizen for just cause, or upon its own motion, any investigation concerning the administration of personnel or the compliance with the provisions of this Section in the said municipal fire and police services; review, and modify or set aside upon its own motion, any of its actions, take any other action which it determines to be desirable or necessary in the public interest, or to carry out effectively the provisions and purposes of this Section.

“e. Conduct investigations and pass upon complaints by or against any officer or employee in the classified service for the purpose of demotion, reduction in position or abolition thereof, suspension of [or] dismissal of the officer or employee, in accordance with the provisions of this Section.

* # * * * *

“30. Corrective and Disciplinary Action for Maintaining Standards of Service

******

“c. Although it is incumbent upon the appointing authority to initiate corrective ■or disciplinary action, the board may, and shall upon the written request of any qualified elector of the state which sets out the reasons therefor, make an investigation of the conduct and performance of any employee in the classified service and, thereupon may render such judgment and order action to be taken by the appointing authority. Such action shall be forthwith taken by the appointing authority.”

- Significantly, not one of the quoted and relied on provisions uses the term “public investigation” or “public hearing” as do paragraphs 31 and 34. Paragraph 31, as pointed out above, relates to a situation whereby an employee has been disciplined hy an appointing authority for some alleged misconduct, described in paragraph 30 and inimical to a high standard of service, and he appeals to the board (after it and the employee have been furnished, in accordance with paragraph 30, subpar. d, a statement in writing of the appointing authority’s action and the complete reasons therefor), with the view and purpose of presenting evidence at a public hearing to show that the action was not taken in good faith for cause. Under paragraph 34 the board, within thirty days after receiving written charges respecting an employee’s engaging in certain specified and prohibited political activities, is required to hold “a public hearing and investigation and determine whether such charges are true and correct.” In each of those instances, it is to be noted, the law contemplates a filing with the board of specific written charges against the employee; and, if and when such charges are so filed, it accords him the right to a public hearing in order to obtain redress if he can, including a clearing of his name from the resulting stigma. And the action of the board following the public hearing, if it rules against the employee, is conclusive except for a review by the courts.

On the other hand the provisions relied on by the defendant board (as granting authority for the proposed hearings sought to be enjoined herein) neither provide foi public hearings • or public investigations nor require specific written charges as a basis for the action to be taken thereunder; they make reference simply to the board’s conducting or making investigations. And this, in the light of what has been stated above, indicates that only private investigations are contemplated by such provisions.

To hold otherwise would seem to make for an anomalous situation — one clearly not intended by the framers of the constitutional amendment. Thus, paragraph 30, subpar. c (relied on by defendant) gives to the board the right to order disciplinary action at the conclusion of an investigation and make the imposition of the recommended action mandatory upon the appointing authority. And paragraph 31 provides that 'the appeal from such disciplinary action shall first be to the Civil Service Board and thereafter to the district court. Now if at a public hearing held initially the board finds an employee guilty of misconduct and requires the appointing authority to take disciplinary action, such employee (before he can obtain a judicial review) must appeal such action to the same board; and it must then hold another and an identical public hearing, on the same evidence previously considered, and there “review” its own former ruling. That such a procedure would be grossly impractical and unreasonable is admitted by defense counsel. To quote from his brief, he states: “ * * * It is conceded by counsel for defendant that the prescribed procedure is cumbersome, unreasonable and does violence to our concept of justice and judicial procedure. It seems equally obvious that the responsibility for curing these objectionable features is legislative unless they do violence to the provisions of the state or federal constitution. * * * ”

The last sentence of paragraph 6/ subpar. m of the constitutional Civil Service Law, which states that “Meetings of the boards shall be open to the public”, does not militate against an interpretation that paragraphs 7, subpars. d, e and 30, subpar. c (all relied on by defendant) contemplate only private investigations. The framers of the law could not have intended that the quoted sentence was to be applicable to all of the activities of the board, particularly since they made specific reference in later provisions to “investigations”, “public investigations” and “public hearings”. If such had been their intention very likely the sentence would have recited that “all meetings, investigations and hearings shall be open to the public”, and the specific references to public hearings found in paragraphs 31 and 34 would have been omitted.

Again, paragraph 32 plainly indicates that the framers intended that the board might function with respect to some activities in a manner other than by way of public meetings. It provides in part: “The board, and each of its members, shall have the same power and authority to administer oaths, subpoena witnesses, and compel the production of books and papers pertinent to any investigation or hearing authorized by this Section as is possessed by the district courts of Louisiana. * * *

“Any officer or employee in the classified service who wilfully refuses or fails to appear before any court, officer, board, body or person properly authorized to conduct any hearing or inquiry, * * * shall, in addition to any other penalty to which he may be subject, forfeit his position, and shall not be eligible for appointment to any position in the classified service for a period of six years.” (Italics ours.)

This paragraph seems to completely refute the suggestion that the board can conduct an investigation only as a body and when convened in a public meeting, for it expressly requires employees and other persons to appear before any officer or other persons properly authorized to conduct any inquiry, and it grants to the individual members of the board the power to administer oaths, subpoena witnesses and compel the production of books and papers. Pertinent here and worthy of notice, incidentally, is the admitted fact (referred to above) that a private investigation of the conduct of these plaintiffs was made for the board by a specially appointed attorney prior to its notification to them of the proposal to hold the public hearings in question. In part the stipulated testimony of such attorney is: “ * * * Subject to the Board’s obtaining authority from the City Council for such employment, I agreed to being retained by the Board and to assist it in the preparation and conduct of the proposed investigations. In such capacity, I was authorized and directed to gather information for presentation at these investigations. * *

* * * * * *

“After being informed of the approval of my employment by the City Council, I proceeded to undertake to gather information with respect to possible prohibited activities by members of the classified service, including persons other than plaintiffs herein. My activities included interviewing persons who allegedly had knowledge of violations of the Civil Service Law by members of the Police and Fire Departments. Some of these interviews were arranged on my own initiative, some of them were held after being furnished by other, persons with the names of the parties to be interviewed, and some of the persons whom I interviewed contacted me voluntarily. * * * ”

Moreover, a requirement that all investigations of the Board be publicly held, as in open meetings, would seem to be unsound in principle. Unquestionably, it would clearly hamper such body in carrying on the meritorious service for which it was designed and created. Also, undoubtedly, many innocent employees would be unjustly and irreparably harmed by and through publicly held investigations predicated on mere suspicions.

Therefore, our conclusion is that defendant is without authority to hold the proposed public investigations of these plaintiffs and that the district judge correctly ordered the issuance of a permanent injunction in favor of each of them.

For the reasons assigned the judgments of the Court of Appeal are reversed and set aside and those of the district court are reinstated and made the decrees of this court. The right to apply for a rehearing is reserved to the defendant.

HAWTHORNE, J., dissents, adhering to the views expressed in the original opinion.

McCALEB, Justice

(dissenting).

The theory of the opinion on rehearing seems to be that, since the provisions of paragraphs 7, subpars. d and e and 30, subpar. c of Section 15.1 of Article 14 of the Constitution, which authorize the Municipal Fire and Police Civil Service Boards to make investigations touching upon the conduct and performance of any employee in the classified service, do not specifically declare that such investigations shall be public, it necessarily follows that they must be held privately. To fortify this position, the majority say that this is so because paragraphs 31 and 34 of the law, which deal with appeals by employees from alleged discriminatory action of the appointing authority and charges respecting an employee’s political activities, declare that the hearing and investigation conducted under those provisions must be open to the public.

These deductions are not sound in my estimation as they neglect to take into account that the civil service law envisions that all investigations of the Board, being matters impressed with a public interest, are open to public examination. As pointed out in our original opinion, it is exceedingly doubtful that the Civil Service Boards constituted under the law have any authority to conduct private investigations or hearings, as paragraph 6, subpar. m of Section 15.1 requires that all meetings of the Boards be open to the public, which contemplates that the Boards may act and function only as a body and not through their individual members in the exercise of duties vested in them under paragraph 7 of the law.

But, if it be conceded for sake of discussion that the investigations authorized by paragraphs 7, subpars. d and e and 30, subpar. c of the law may be held in private, it is a non sequitur to conclude that they must be held behind closed doors. Indeed, since the law does not specify that such investigations are to be privately conducted, the most that can be said is that the Boards are vested with the discretion of determining whether the public interest is best served in having a private or public investigation. And, in the ábsence of a showing that a public investigation impairs some constitutional guarantee (which re-lators claim to be the case here but have been unable to point out the particular constitutional right invaded), the courts should be loathe to interfere with a Civil Service Board in the field of operations encompassed within its statutory duties and prerogatives.

For the reasons set forth in the original opinion in this case, as amplified by these remarks, I respectfully dissent. 
      
      . During the pendency in the Court of Appeal; the action of Huckabay, the other complainant, abated ás a result of his death.
     
      
      . Such vagueness renders it appropriate to refuse to consider the constitutional attacks. See opinion of the Court of Appeal, 72 So.2d at page 528 and authorities there cited.
     
      
      . The end result of this ruling is that henceforth the Civil Service Boards will not be able to conduct public investigations, even upon request of the employees whose conduct is to be scrutinized.
     
      
      . Compare the State and Cities Civil Service Law, Section 15 of Article 14 of the Constitution, which contains similar provisions concerning investigations by the Boards of Civil Service personnel on their own motion. Pargraph (O) (4) declares that these investigations shall be public.
     