
    Thomas BARR, III, Member Tenth Ward Orleans Parish Democratic Executive Committee, v. Henry J. ENGLER, Chairman of, and Orleans Parish Democratic Executive Committee.
    No. 1561.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 27, 1964.
    Written Reasons May 28, 1964.
    Dissenting Opinions May 28 and 29, 1964.
    
      Thomas Barr, III, New Orleans, plaintiff in pro. per
    Maurice Indest, A. J. Fortier, New Orleans, for defendants.
    Sam Monk Zelden, New Orleans, for in-tervenor.
    Before REGAN, YARRUT, SAMUEL, HALL and BARNETTE, JJ.
   CHRIS T. BARNETTE, Judge pro tern.

For the written reasons to be handed down in due course:

It is ordered, adjudged and decreed that the judgment of the Civil District Court for the Parish of Orleans granting judgment in favor of Thomas Barr, III, Member, Tenth Ward Orleans Parish Democratic Executive Committee against Henry J. Engler, Chairman of, and Orleans Parish Democratic Executive Committee ordering said defendants to adopt resolution No. 3, providing for the ordering of a primary-election for the purpose of nominating a candidate for the office of Judge of Municipal Court of New Orleans for the term expiring December 31, 1968, is hereby reversed and plaintiff’s suit is dismissed.

Reversed.

YARRUT and SAMUEL, JJ. dissent because they conclude that the judgment of the District Court is correct, reasons to follow.

WRITTEN REASONS

CHRIS T. BARNETTE, Judge pro tem.

On June 27, 1963, the Honorable Joseph R. Bossetta was appointed by the Governor and confirmed by the State Senate to the office of Judge of the Municipal Court of New Orleans to fill the vacancy created by the election of the incumbent judge to the Civil District Court for the Parish of Orleans. The term of office to which Judge Bossetta was appointed runs to December 31, 1968.

At a meeting of the Orleans Parish Democratic Executive Committee on May 22, 1964, a resolution was offered by Thomas Barr, III, a member of the Committee, the substance and effect of which was to order the calling of a primary election for the purpose of nominating candidates for the office of Judge of the Municipal Court of New Orleans for the balance of the term ending December 31, 1968. By a majority vote of the Committee the motion was tabled.

On May 25, 1964, the said Thomas Barr, III, in his capacity as a member of the Executive Committee, brought a mandamus proceeding in the Civil District Court for the Parish of Orleans against Henry J. Engler, Chairman of, and the Orleans Parish Democratic Executive Committee to compel the Committee to adopt the aforesaid resolution which is specifically referred to as Resolution No. 3. Joseph R. Bossetta intervened in that proceeding praying for judgment in favor of defendants and himself as intervenor, dismissing plaintiff’s demands. He also filed exceptions of no cause or right of action. Answer was filed on behalf of the defendants Engler, Chairman of, and on behalf of the Committee.

On May 27, 1964, the proceeding for mandamus was tried before Division “C” of the Civil District Court, and the exceptions of no cause or right of action filed by the intervenor were overruled, and judgment was rendered for plaintiff as prayed for, more particularly as follows:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that there be judgment in favor of the plaintiff, Thomas Barr, III, Member Tenth Ward Orleans Parish Democratic Executive Committee and against the defendants, Henry J. Engler, Chairman of the Orleans Parish Democratic Executive Committee and the Orleans Parish Democratic Executive Committee, ordering the said Orleans Parish Democratic Executive Committee to hold a meeting on May 27, 1964 at 4:00 o’clock P.M. in Division ‘A’ of the Civil District Court for the Parish of Orleans, 421 Loyola Avenue, and at said meeting adopt resolution No. 3 providing for the ordering of a primary for the purpose of nominating a candidate for the office of Judge ‘Municipal Court of New Orleans’ for the term expiring December 31, 1968.
“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that should the Orleans Parish Democratic Executive Committee fail to hold said meeting, for any reason, or should the Orleans Parish Democratic Executive Committee fail to adopt said resolution No. 3, then and in either of these events, or in any event, this judgment shall be and it is hereby ordered to be the adoption of Resolution No. 3 providing for the ordering of a primary for the purpose of nominating candidates and calling and ordering the holding of primary elections for the purpose of nominating candidates for Judge ‘Municipal Court of New Orleans’ for the term expiring December 31, 1968.”

Shortly before 4:00 P.M., May 27, 1964, an application for writs of Certiorari, Prohibition and Mandamus to Division “C” of the Civil District Court for the Parish of-Orleans was filed in this Court on behalf of Joseph R. Bossetta, intervenor. The writ was granted and because of the necessity that a definitive action be taken thereon before 12:00 midnight, an instanta hearing was ordered in this Court.

The office of Judge of the Municipal Court of New Orleans is a constitutional office, having been created and established by Article VII, Section 94 of the LSA-Constitution. Paragraph (c) of that article provides as follows:

“The successors to the judges of said court in office at the time of the final adoption of this amendment to the Constitution shall be elected for an eight year term at the respective nearest Congressional election preceding the expiration of the respective terms of office of such judges. Every term shall expire on December 31st of the last year thereof. Any vacancy in said Court for any cause where the unexpired term is less than one year shall be filled temporarily by appointment by the Governor until the next succeeding congressional election, at which time such vacancy shall be filled for the remainder of the unexpired term by election. All judges so elected shall take office on the first day of January following their election.”

It is clearly established in the jurisprudence of this State that a distinction shall be made between offices created by the Constitution and those created by legislative act. This Court, in the recent case of State ex rel. Fonseca v. McCulloch, La.App., 126 So.2d 191, again made this distinction and upheld the authority of the Governor to fill vacancies by appointment in constitutionally created offices. No issue has been raised in the present case as-was in the Fonseca case of the authority of the Governor to make the appointment; on the contrary, it is conceded. The question is for how long shall such appointment be made? Does it continue to the expiration of the term which has begun to run, namely, December 31, 1968? Or does it, as plaintiff contends, run only until the next succeeding Congressional election ? The Congressional election to be held in November, 1964, is the first such election-since the appointment was made. Plaintiff’s contention is that Judge Bossetta’s tenure by appointment comes to an end at that time and that it is the mandatory duty of the Democratic Executive Committee to call a primary election for nominations to the office for the balance of the unexpired' term.

In the Fonseca case, supra, the question of the duration of the appointment was not raised. That is the only distinction between that case and the present one. Both cases come under Article VII, Section 94 of the Constitution, but under different subsections.

In the Fonseca case, this Court through Yarrut, J., its organ said:

“Constitution Art. 7, § 94, makes no-provision for filling a vacancy where the remainder of the term is more than-one year, so we must look elsewhere in the Constitution for the answer.
“We first considered Art. 7, § 69 as-a possible clue to the answer. The Section reads:
“ ‘Vacancies occasioned by death, resignation, or otherwise, in the office of district judge, district attorney, sheriff, assessor, or clerk of the district court, where the unexpired portion of the term is less than one year, shall be filled by appointment by the Governor, with the advice and consent of the Senate. In all cases where the unexpired portion of the term is one year, or more, the vacancy shall he filled by special election, to be called by the Governor, and held within sixty days after the occurrence of the vacancy, under the general election laws of the State. (As amended Acts 1952, No. 576, adopted Nov. 4, 1952).’
“A simple perusal discloses that the' first sentence names the specific offices involved where the vacancy is less than one year. The Governor is given the right to make the appointment. Then follows the second sentence, beginning with the clause, ‘In all cases where the unexpired portion of the term is one year, or more, * * * Then follows the mandate that the Governor must call an election within sixty days after occurrence of the vacancy. At first blush it might appear that the clause, ‘In all cases * * * ’ might include Traffic Judge [or Municipal Judge]. In order to give the language such an interpretation, it would be necessary first to redraft the clause by interpolating therein the word ‘other’ and the phrase ‘not heretofore mentioned herein,’ so that the entire provision would read, ‘In all other cases not heretofore mentioned herein * * ’.
“Such a construction or interpolation would be clear judicial legislation and contrary to the rule of statutory and constitutional construction. Unless a different intention is apparent, the enumeration of specified matters in a constitutional provision usually is construed as an exclusion of matters not enumerated. (Citing cases.)
“The applicable constitutional provision in Art. 5 § 11, the omnibus section under Executive Department, referring to the Governor, reading:
“ ‘He shall nominate, and, by and with the advice and consent of the Senate, appoint all officers whose offices are established by this Constitution and whose appointment, or election, is not herein otherwise provided for; except that the Legislature may provide the mode of filling all offices created by it.’
“Accordingly, the Governor had a right to make the appointment of plaintiff-appellee to fill the vacancy at issue here.”

The language of this Court above quoted answers fully the question of the authority of the Governor to make the appointment and it is now readopted as the opinion of the Court in the instant case. This brings us to the question, for how long is such appointment valid?

That portion of Article VII, Section 94, reading as follows:

"* * *
“Any vacancy in said Court for any cause where the unexpired term is less (emphasis added) than one year shall be filled temporarily by appointment by the Governor until the next succeeding congressional election, at which time such vacancy shall be filled for the remainder of the unexpired term by election. * * * ”

was apparently drafted with the intention to provide a temporary gubernatorial appointment if the unexpired term is more than one year. This same word “less” is repeated in the corresponding VII, Section 94; II Traffic Court, Subsection (c). Obviously, any vacancy for less than a year would never call for an appointment other than a temporary one. However logical or persuasive this argument may be, we must repeat again the words of this Court above in the Fonseca case, “Such a construction * * * would be clear judicial legislation and contrary to the rule of statutory and constitutional construction.”

The contention that the appointment can be for no longer term than until the next Congressional election is not based upon any pertinent authority in the statutes or jurisprudence brought to our attention, but rather upon analogy and an attempt to read into the Constitution a political concept of democratic practice. Let us not overlook the fact that Article VII, Section 94, adopted as an amendment in 1952, was an act of the people of the State of Louisiana, who by their vote of approval adopted the section as written.

The Court has no more right to substitute the word “more”' for the word “less” than we have to substitute the word “six” or “twelve” for the word “eight” in reference to term by some analogy that other judicial terms may be six or twelve years. The plaintiff’s contention cannot be upheld without in effect doing precisely this.

Any argument from analogy as to what might be considered to be “public policy” or the “democratic way” is answered by the well-settled proposition that the Courts have no jurisdiction in political matters and can control the actions of a Political Party Committee only in those cases where the Constitution or statutes impose a clear ministerial duty upon the Committee. In such cases the courts may compel the Committee to obey the law as written.

In the instant case, although the Committee is required to call a primary election for each office which is to be filled in the Congressional election to be held in November, 1964, there is no constitutional or statutory provision which says that the office of Municipal Judge is one of the offices to be filled in such election. There is therefore no ministerial duty imposed by law on the Committee to call a primary election for this particular office at this time. There being no ministerial duty imposed by law on the Committee, the courts are without jurisdiction to compel the Committee to call a primary on the theory that “public policy” or the “democratic way” would indicate that “there should be a law.”

The learned judge of the Civil District Court has attempted to base his judgment upon some analogy to Article VII, Section 69, relating to District Judgeship on the theory of the reasoning there implied. This cannot be done, no matter how desirable it may be.

The judge of the trial court said in his reasons for judgment:

“The Legislature has evidenced an intent time after time that the Electorate should decide Judgeships. Governors continue to make appointments for terms longer than the Constitution intends and longer than the Legislature intended; and one of these days we’re going to have to put a stop to it. We’re either going to follow the Constitution and the laws or we’re not, and if there are any doubts to be resolved as to what is in the public interest, if the law is vague and uncertain, as may be urged, then I resolve that doubt in favor of the Electorate of New Orleans determining who shall fill public offices, not the Governor of the State nor any other appointive official.
“To allow an elective office to be unduly tied up by appointment impinges upon the right of the Electorate to choose their officers. * * * ”

We thoroughly agree with our learned brother. We, too, abhor the thought that judgeships should become political plums to be handed out by governors for long terms without giving to the electorate an opportunity to express a preference. But this is not the forum in which to air our political opinions, nor the proper place for amending the Constitution.

We agree that Article VII, Section 94 of the Constitution is poorly drawn, and there is a logical assumption that another intention might have been its object, but this is at most an assumption. The language is not ambiguous and is not subject to any interpretation other than that we have given to it. A correction of the error, if there be one in Article VII, Section 94, is not a function of this Court but one of legislative process by constitutional amendment.

It is argued that the Court should read into the Constitution (Art. VII, Sec. 94) the apparent intent to say one thing when it says the opposite. We would not hesitate to search for the intent of such language in our jurisprudence or of the Legislature in a poorly worded statute, but this is the Constitution, our basic law. We dare not open the door for Courts to substitute their words for those of the Constitution upon a pretext of search for a hidden intent. However justifiable and desirable it may seem in the instant case, the next time it may not be so. This indeed would be a dangerous precedent and could lead to disastrous ends.

For these reasons:

It is ordered, adjudged and decreed that the judgment of the Civil District Court for the Parish of Orleans granting judgment in favor of Thomas Barr, III, Member, Tenth Ward Orleans Parish Democratic Executive Committee against Henry J. Engler, Chairman of, and Orleans Parish Democratic Executive Committee ordering said defendants to adopt resolution No. 3, providing for the ordering of a primary election for the purpose of nominating a candidate for the office of Judge of Municipal Court of New Orleans for the term expiring December 31, 1968, is hereby reversed and plaintiff’s suit is dismissed.

Reversed.

REGAN, Judge

(concurring):

I respectfully concur.

I fully subscribe to the rationale appearing in the majority opinion; however, I would like to add several words to what has already been said.

Judicial power is never exercised for the purpose of giving effect to the will of the judge, but always for the purpose of giving effect to the will of the people as expressed by them through the medium of their Constitution.

The Constitution of Louisiana simply omitted to restrict the duration of the Governor’s appointment of a judge of the Municipal Court for the City of New Orleans. If we should assume the power of supplying this omission we would then be engaged in judicial legislation, which could, if carried to its logical conclusion, always defeat the will of the people. If a change of the Constitution is warranted by the exigency of this occasion, and I believe that it is, then the change must occur through the electorate who created it, and they alone possess such power.

The function of a judge, and the very nature of the judicial process, is limited to the interpretation of the law and not to the making thereof. This is especially true when the subject, as here, involves the Constitution as distinguished from the jurisprudence. The very liberty of our nation depends upon how carefully this principle is preserved.

To reason otherwise, in the last analysis,, could result in judicial tyranny which ultimately would destroy the democratic process and the division of government — that is the executive and legislative branches thereof — all of which was created, in the nature of checks and balances, for the protection of the people.

To reiterate only for the purpose of emphasis, the exigency of the occasion, no-matter how distasteful it may be, never warrants the exercise of judicial power for the purpose of giving effect to the will of the judge, but only for the purpose of giving effect to the will of the people as manifested in their Constitution.

The State in commissioning its judges-has commanded them to judge, but neither in its Constitution nor in its statutes has it formulated a code to define the manner of their judging; however, a guiding principle that prevents a judge from straying from the path of justice is full recognition of the concept that the final cause of constitutional law is for the welfare of the people who created it, and any rule which misses this aim cannot permanently justify its existence.

SAMUEL, Judge

(dissenting).

The fundamental issue we must decide is the length of the term of Judge Bosset-ta’s appointment by the Governor. If the appointment was properly for the balance of the unexpired term of his predecessor, more than five years, the conclusion of the majority is correct. If the office was to be filled by election at the next succeeding congressional election after the vacancy occurred, that conclusion is incorrect and the Democratic Executive Committee must order the holding of a primary election for the purpose of nominating a candidate for the office. For LSA-R.S. 18:303, which is concerned with primary elections, makes this duty mandatory on the committee whenever a judicial officer is to he elected at the same time as members of congress are to be elected.

Clearly the office involved is a constitutional one and the length of the appointive term must be determined by the constitution itself. The only pertinent constitutional provisions are Article 7, § 94, the amendment which created the Municipal Court, and Article 5, § 11, the omnibus provision relative to appointments by the Governor. The omnibus provision is applicable only in the event that Article 7, § 94 is not. The pertinent portion of Article 7, § 94 is:

“Any vacancy in said Court for any cause where the unexpired term is less than one year shall be filled temporarily by appointment by the Governor until the next succeeding congressional election, at which time such vacancy shall be filled for the remainder of the unexpired term by election.”

The court is not bound by a literal interpretation of a constitutional provision where such an interpretation leads to an absurd conclusion or, more especially, where it leads to a plain violation of the spirit and purpose of the provision; the real purpose and intent must prevail over such a literal meaning. Meyers v. Flournoy, 209 La. 812, 25 So.2d 601; State ex rel. Fernandez v. Feucht, 182 La. 134, 161 So. 179; State v. Joseph, 143 La. 428, 78 So. 663, L.R.A. 1918E; In Re Coon, La.App., 141 So.2d 112.

A literal interpretation of the above quoted portion of Article 7, § 94 renders that portion not only absurd but meaningless and constitutes a plain violation of its spirit and purpose. That spirit and purpose are to be found in the very words of the article. They state that the appointment by the Governor is temporary and only until the next succeeding congressional election at which time the vacancy must be filled by election. Obviously, under Article 7, § 94 the Governor’s appointment cannot be for a time beyond the next congressional election. Equally obviously, if the appointment by the Governor can be made only until the next congressional election, it was never intended that such an appointment could be for a period of years as is true here.

To permit the appointive term to run for a period of years is not only to do violence to the plain intent and purpose of the article, it constitutes a doing of what the article clearly intends to prevent. In my opinion Article 7, § 94 must be interpreted so as to limit the Governor’s appointment to the next congressional election.

I respectfully dissent.

YARRUT, Judge

(dissenting).

I disagree with the conclusions and decree of the majority, and concur in the dissent of Judge Samuel.

The only issue in the case is the tenure of intervenor, Judge Bossetta, when the Governor appointed him to fill the vacancy created on the Municipal Court by the election to the District Court of his predecessor. Was it until the end of the year in which the next regular election is held as provided in the Constitution, to-wit, November, 1964; or was it for the full unexpired term, ending December 31, 1968?

I have concluded that the Governor had the right to appoint intervenor as Judge of the Municipal Court for a term ending with the calendar year December 31, 1964, since a regular congressional election must be held in November, 1964, as fixed in the Constitution.

We are confronted by two provisions of the Louisiana Constitution: Article VII, Section 94; and Article V, Section 11.

The Constitution and statutes must be construed literally when clear, free of ambiguity and not in conflict with other provisions of laws in pari materia. When ambiguous or in apparent conflict with other provisions concerning the same subject matter, it is the duty of the courts to reconcile them rather than to nullify the purpose and intent of the Constitution or statutes.

Article VII, Section 94 (c) provides:

“ * * * Any vacancy in said Court for any cause where the unexpired term is less than one year shall be filled temporarily by appointment by the Governor until the next succeeding congressional election, at which time such vacancy shall be filled for the remainder of the unexpired term by election. All judges so elected shall take office on the first day of January following their election.”

Literally, this section creates an absurdity, when a vacancy occurs with an unexpired term of less than a year in the year in which a congressional election must be held under the Constitution. This provision literally gives the Governor authority to appoint a successor until the congressional election, at which time the candidate elected would hold the office until the end of the year, or just one month. Further, since, by Section 94, the judge so elected takes office on January following his election, by the time he took office the term of the original vacating judge would have expired. On the other hand, if the vacancy occurs in a year other than of a congressional election, a literal interpretation of Section 94 would permit the gubernatorial appointee to hold office beyond the term of the vacating judge.

Section 94 becomes logical only if the word “less” is interpreted as being the word “more”, so that it applies to a vacancy in which the unexpired term is more than a year.

In this respect our jurisprudence was well epitomized in the case of In re Coon, La.App., 141 So.2d 112, and the authorities therein cited, in the following language:

“In the interpretation of a constitutional article the courts are not bound by a literal interpretation where to do so would lead to an absurd conclusion or to a plain violation of the spirit and purpose of the enactment. State v. Joseph, 143 La. 428, 78 So. 663, L.R.A. 1918E, 1062. The real purpose and intent of a constitutional provision, as determined from consideration of all its component sections and paragraphs, 'must prevail over a literal meaning which would assign thereto an effect contravening the primary purpose and intent thereof. State ex rel. Fernandez v. Feucht, 182 La. 134, 161 So. 179. To arrive at the true meaning and intent of a particular provision of a constitutional article recourse may be had to the entire instrument, if necessary, to ascertain the true meaning of the provision to be construed. Meyers v. Flournoy, 209 La. 812, 25 So.2d 601.” * * * See also Blessing v. Levy, 214 La. 856, 39 So.2d 84.

Regardless of the wording of Article VII, Section 94 of the Constitution, the intent is that the tenure of any gubernatorial appointments should expire at the end of the year in which the next regular election will be held. It is incredulous to hold that the drafters would allow the Governor to appoint only until the next election when the unexpired term is less than a year, but permit him to appoint until the end of a term which has more than a year to run, as in this case, five and one-half years.

In its final analysis, the majority decision means simply that, if a judge is elected to the Municipal Court for the term of eight years, and unfortunately fails to take his oath within the time prescribed by law, or dies a day or so after taking office, the Governor has the unquestioned right to appoint his successor for the remaining period of his term, to-wit, eight years, thus depriving the electorate of their right to elect their judge for practically a full term.

The intention was clearly to provide that the tenure of gubernatorial appointments to Municipal Court judgeships should continue only until the next congressional election.

In interpreting Article V, Section 11, and the Governor’s power of appointment thereunder, we must keep in mind that Municipal Court judgeships are, by Article VII, Section 94, elective offices. The purpose of allowing the Governor to fill vacancies by appointment is to assure the continued and uninterrupted functioning of public offices until the people have an opportunity to elect them.

To hold that the Governor’s appointment of Judge Bossetta expires in 1968 impinges on the right of the electorate of Orleans Parish to choose their Municipal Court judges. This right of the electorate is specified in Article VII, Section 94:

“(b) Said Court shall consist of four (4) judges, all of whom must be attorneys-at-law; they shall he elected by the qualified electors of the Parish of Orleans * * (emphasis ours)

The appointive power of the Governor was never intended to usurp and supersede the elective power of the people, which power in our republican form of government, is inherent and should be safely guarded by all branches of the government, Executive, Legislative and Judicial.  