
    (65 South. 890)
    No. 20665.
    STATE ex rel. YOUNG v. CAPDEVIELLE, Auditor, et al.
    (June 8, 1914.
    On Application for Rehearing, June 29, 1914.)
    
      (Syllabus by the Oourt.)
    
    1. Mandamus (§ 102*) — Right of Action-Issuance of Salary Warrant.
    A mandamus will lie to compel the auditor of the state to issue a warrant to another officer for his salary, where said officer has been declared removed by an unconstitutional, illegal, null, and void order.
    [Ed. Note. — For other cases, see Mandamus. Cent. Dig. §§ 217-219, 221, 222; Dee. Dig. § 102.*]
    2. Statutes (§ 64*) — Title and Subject-Matter — Removal of State Auditor.
    “Every law enacted by the General Assembly shall embrace but one object, and that shall be expressed in its title.” ,
    [Ed. Note. — For other cases, see Statutes, Ce7it. Dig.' §§ 58-66, 195; Dec. Dig. § 64.*]
    3. Mandamus (§ 182*) — Peremptory Writ-Modification of Alternative Writ.
    The peremptory writ of mandamus may vary from the alternative one.
    [Ed. Note. — Eor other cases, see Mandamus, Cent. Dig. §§ 405-408, 411, 412; Dec. Dig. § 182.*]
    Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; H. F. Brunot, Judge.
    Mandamus by the State, on the relation of William L. Young, against Paul Capdevielle, Auditor, and others. From judgment for relator, the respondent named appeals.
    Amended and affirmed, and rehearing denied.
    R. G. Pleasant, Atty. Gen., and Harry Gamble, Asst. Atty. Gen., for appellant. Pugh & Pugh, and J. E. Smitherman, all of Shreveport, for appellee.
   SOMMERVILLE, J.

This proceeding by mandamus is a sequel to the one just decided, No. 20,617, and entitled State ex rel. Young v. Hall, Governor, et al., 65 South. 596. Tire parties respondent are the auditor and treasurer of the state, but, the alternative writ addressed to the treasurer was recalled; and, as no appeal was taken by the relator from the order recalling that writ, the treasurer is not before the court.

Relator, alleging himself to be the state examiner of state banks, under appointment by the Governor of the state, and entitled to receive a warrant from the auditor for his services during the month of March, 1914, on his own warrant, for $375, and that he was further entitled to receive a warrant for office expenses, assistants’ salaries, traveling expenses, and stenographer’s bills, in the sum of $700, obtained an alternative writ, which was subsequently made peremptory, directing the auditor to audit for the salary and office expenses of reliitor for the months of March and April, 1914, etc. Respondent, Capdevielle, auditor, has appealed.

Relator was appointed to office July 9, 1912, by the Governor of the state, by virtue of the first paragraph of section 1 of Act 112, 1910, p. 173, which is as follows:

“That the Governor shall appoint, with the advice and consent, of the Senate, an officer who shall be known as the state examiner of state banks. * * * The state examiner of state banks shall be commissioned on taking and filing the necessary oath of office and shall serve for a term of four years from the date of his induction into office, unless sooner removed by the Governor in the exercise of his discretion.”

And the Governor, under the authority of the last quoted clause, removed relator from office March 7, 1914.

The title to Act 112 is, “An act to put into effect article 194 of the Constitution of 1898,” etc., which constitutional provision is as follows:

“Art. 194. There shall be appointed by the Governor, by and with the advice and consent of the Senate, a state examiner of state banks, who shall be an expert accountant, and who shall make examinations of all state banks at least twice in every year. His term of office shall be four years and the Legislature shall define his duties and fix his compensation.”

The point submitted for decision is the alleged uneonstitutionality of the clause in the above quoted sentence in the act of 1910, which gives to the Governor, in the exercise of his discretion, the right to remove the state examiner of state banks.

It is argued that the Governor is not given such power in article 194, quoted above; that the Constitution, in articles 163 and 220 has delegated to the Legislature exclusively the right to remove or impeach all civil officers, including the state examiner of state banks, “except those whose removal is otherwise provided for by this Constitution”; that the Legislature was not given authority to delegate the power of removing relator from office to the Governor of the state, or to any other person; that the clause referred to in the act of the Legislature, No. 112, is therefore unconstitutional; that the action of the Governor thereunder is illegal, unconstitutional, and without effect.

It is also urged that said clause in the act of the Legislature is unconstitutional for the reason that it is not covered by the title of the act, that the title does not refer to removals from office, and that it refers to another object, viz., “to put into effect article 194 of the Constitution of 1898,” etc., and that the right of removal of the state examiner of state banks from office is a second object, all contrary to article 31 of the Constitution.

We shall give consideration to the objection to the title of Act 112 of 1910, p. 173, as, in our opinion, it will dispose of the case; and consideration of the other matters argued will be unnecessary.

The title to the act is a lengthy one, and it does not mention the removal of the state examiner of state banks. It refers to his appointment, duties, salary, and his relations to other state officers, etc., and, in the body of the act, all of those things are provided for. The act, as we have seen, goes further than the title, and provides for the removal from office of the bank examiner in a manner, and by a department of the government, different from those directed by the Constitution.

The Constitution created the office of state examiner of state banks in article 194, and provided for his removal in article 163 or article 220, by address of the Legislature.

Had the Legislature, in carrying out the several articles of the Constitution referring to the bank examiner, provided for his appointment and removal in one act, or had it created an office, and, in the same act provided for the appointment and removal of the incumbent, the matters might be considered germane, or even, that the act embraced but one object. But when the Legislature does not follow the articles of the Constitution, and attempts to delegate its own power of removal to another, or when it does not create the office, and does not, in either case, express the power of appointment and removal in the title to such an act, that portion of the body of the act which is not covered by the title is unconstitutional, null, and void, as being in violation of article 31 of the Constitution.

The Legislature, in the title of Act 112, has not expressed an intention to provide for the removal of the bank examiner from office, and the act is therefore unconstitutional in so far as it provides for his removal; and the action of the Governor in removing relator from office under Act No. 112 was unauthorized, null, and void.

It is unnecessary to review the pleadings and argument to the effect that the appointment and removal of the state examiner of state banks are provided for in widely separated articles of the Constitution, and that when the Legislature acted as is hereinbefore indicated, the provision of the act transferring or giving the right of removal to one different from the one indicated in the Constitution is a different object, or that it could not be done.

And it is unnecessary at this time to decide whether article 163 of the Constitution of 1898 is inconsistent with article 220 of the present Constitution, and thereby repealed or not. We observe that article 220 in the Constitution of 1913 is different from article 220 in the Constitution of 1898, in that the words “the governor shall remove” are not in the new article 220, when providing for removal by address of the General Assembly. And article 78 dispenses with the necessity of the approval by the Governor of an order, resolution, or vote on an address for removal from office.

Relator is not technically entitled to the whole relief sought and granted by the trial court. He is entitled to receive from the auditor a warrant for his salary for the month of March, 1914, on his own warrant or voucher. The trial judge fell into error in including in, the judgment relator’s salary for the month of April. It was not claimed in the petition, and it formed no part of the alternative writ issued in the proceeding. The “traveling expenses and other necessary incidental expenditures in the proper conduct of his (the relator’s) office” must be approved by the Governor before the auditor can issue a warrant for them, and relator does not allege that such approval was obtained; relator is not, therefore, entitled to a peremptory writ of mandamus for these items; and, as they are commingled with salaries of assistants, clerks, and stenographers in relator’s employ the application for a writ for the entire sum of $700 will be denied.

Respondent invokes the earlier doctrine that the peremptory writ must strictly follow the alternative one, and that if the alternative writ, in its entirety, will not be made peremptory, the proceeding for mandamus must fail utterly. We have heretofore amended judgments making alternative writs peremptory; and ordered the performance of only parts of the acts referred to in alternative writs, when the acts were independent of each other; and we shall do so in this case. State ex rel. Thurmond v. Shreveport, 124 La. 178, 50 South. 3, 134 Am. St. Rep. 496; 26 Cyc. 490; State ex rel. Collens v. Jumel, 30 La. Ann. 861; State ex rel. De Leon v. City, 34 La. Ann. 477.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be amended by striking therefrom reference to the salary of relator for the month of April; 1914, and all reference to office expenses; as thus amended, the judgment is affirmed at the cost of relator.

On Application for Rehearing.

MONROE, C. J.

The learned counsel for respondent, in their application for rehearing, after again insisting upon the soundness of the view entertained by them with respect to the constitutionality of Act 112 of 1910, call the particular attention of the court to the fact that they also originally invoked Act 125 of Extra Sess. of 1877 as authority for the removal of relator, and that the court has failed to deal with the question thus presented.

Provisions for the selection of officers are found in different articles of the Constitution, and provisions for the removal of such officers are found in other and distinct articles. Article 194, in effect, creates the office of state bank examiner, and relates, exclusively, to the qualifications, appointment, duties, term of office, and compensation of the person who may be selected. It provides that he shall be appointed by the Governor, by and with the advice and consent .of the Senate, and that “his term of office shall be four years, and the Legislature shall define his duties and fix his compensation.” Article 163 of the. Constitution (of 1898) declares that “all civil officers shall be removable by an address, * * * except those whose removal is otherwise provided for by this Constitution,” and the specially designated exceptions are to be found in articles 217 et seq. Article 163, as contained in the Constitution of 1898, has been omitted from the Constitution of 1913, and the “sixth” paragraph of article 326 of the Constitution last mentioned reads:

“Sixth. — The Constitution of this state, adopted in 1898, and all amendments thereto, are declared superseded by this Constitution. But the omission from this Constitution of any article of the Constitution of 1898, and the amendments thereto, or of any other existing constitutional provision, shall not amount to a repeal thereof, unless the same be inconsistent with this Constitution.”

Articles 217 et seq. are found in the Constitution of 1913, as in that of 1898, under the title, “Impeachment and Removal from Office,” and they make specific provision for the impeachment of certain designated officers, and further provide that certain designated officers, including some of those who may be impeached, may also be removed by judicial proceedings.

Article 220, which is included under the title mentioned, reads:

“Art. 220. For any reasonable cause, whether sufficient for impeachment or not, any officer, except the Governor or acting Governor, on the address of two-thirds of the members elected to each house of the General Assembly, shall thereby be removed. In every such case, the cause or causes for which such removal may be required shall be stated at length in the address and inserted in the Journal of each house.”

It will be seen by comparison that, whereas article 163 of the Constitution of 1898 provided that any civil officer, except those otherwise specially provided for, might be addressed out of office, whether with cause or without, and article 220 of that Constitution provided (as does the article bearing that number in the Constitution of 1913) “for any reasonable cause, whether sufficient for impeachment or not, the Governor shall remove any officer, on the address of two-thirds of the members elected to each house of the General Assembly,” the convention which adopted the Constitution of 1913 has collected all of the provisions relating to impeachment and removal under one title, and those provisions, so collected, purport to cover, and do cover, all cases of the impeachment and removal of constitutional officers, and, agreeably thereto, any such officer, except the Governor or acting Governor, may be removed, by address, and no such officer can be so removed without reasonable cause, which shall be stated at length and inserted in the journal of each house of the General Assembly. It is held, upon good authority, that:

“If a constitutional amendment does not, in terms, expressly repeal a constitutional provision, yet if it covers the same subject provided for in such provision, the amendment will be regarded as a substitute for it and as suspending it [as is the case with statutory enactments], 8 Cyc. 849, 850.

We, therefore, conclude that all constitutional provisions upon the subject of the removal of constitutional officers have been superseded by the articles of the Constitution of 1913, from 217 to 223, inclusive, which are to be found under the title, “Impeachment and Removal from Office,” and that from none or neither of those articles, or from any other source, does the General Assembly derive the power to make any other provision relating to the removal of a constitutional officer, save such as might be required to carry those articles into effect.

Article 194 creates the office of state bank examiner, and provides that “his term of office shall be four years,” and it is clear that the term thus fixed by the Constitution is not to be abbreviated or otherwise altered, whether in general or with respect to a particular incumbent, save under the authority of the Constitution; and it is equally clear that the present Constitution confers upon the General Assembly no authority to abbreviate the term of the present incumbent, in any other method than as provided in article 220, to wit, “on the address of two-thirds of the members elected to each house.” If, then, the provisions of the present Constitution supersede article 163 of the Constitution of 1898, so that the General Assembly can no longer remove a constitutional officer, even upon “address, without reasonable cause, stated and entered upon the Journals of each house, a fortiori do they supersede Act 112 of 1910, which purports (inferentially) to authorize the Governor to remove such an officer “in the exercise of his discretion,” and Act 125 of 1877, which purports to authorize such removal by the Governor, for cause, but without “address.”

Counsel for respondent say, in their brief:

“The act of 1877 may not have been applicable to certain constitutionally created officers. as, for instance, those whose removal is provided for, specifically, by impeachment or by judicial proceedings; but, if so, the reason is not because they are constitutional officers but that, in thus providing a specific method of removal for such officers, it was the intention of the framers of the Constitution to exclude any other method of removal.”

If, however, it is incompetent for the General Assembly to provide for the removal of a particular officer, by the Governor, acting alone and within his discretion, because the Constitution provides for his removal by impeachment, or judicial proceeding and judgment, why is it not equally incompetent for the General Assembly to make such provision with respect to any officer, except the Governor or acting Governor, since the Constitution provides that, “for any reasonable cause, whether sufficient for impeachment or not, any officer, except the Governor or acting Governor,” may be addressed out of office by the General Assembly, but that, in such cases, the cause shall be stated and entered upon the Journals.

Our reconsideration of the subject having satisfied us that the judgment heretofore handed down is well founded, the application for rehearing is refused. 
      
       Ante, p. 420.
     