State ex rel. Board of Commissioners of the Lake Borgne Basin Levee District v. Bergeron , 235 La. 879 ( 1958 )

On Rehearing

FOURNET, Chief Justice.

This intrusion-into-office suit¹ involving title to the offices of two of the Commissioners on the three-man Board of the Lake Borgne Basin Levee District arose out of conflicting claims asserted by the defendants Lawrence Bergeron and Edmond Collins, appointed by the Governor as Commissioners of said levee district on September 11, 1956, and plaintiffs James Licciardi and Charles A. Leon, appointed by the Governor on October 7, 1957, after notifying the former of their removal.

The district judge, after trial of the case on the merits, maintained the exception of no right or cause of action and dismissed plaintiffs’ suit,² being of the opinion that R.S. 42:4 (Sec. 3 of Act 68 of 1950, as amended by Act 22 of 1950, 2nd Ex. Sess.), the authority under which the Governor dismissed the defendants, was unconstitutional, and, consequently, the defendants could not be removed from office at the pleasure of the appointing Governor, and further holding that, under a fair and reasonable interpretation of R.S. 38:1071, subd. B (Act 35 of the Extra Session of 1956), the defendants were entitled to the offices in controversy during the term of office of the Governor appointing them and until their successors are appointed and qualified.

On appeal, we reversed the holding of the district court as to the constitutionality of R.S. 42:4, but approved of its holding as to the construction of R.S. 38:1071, subd. B and, therefore, affirmed the judgment dismissing plaintiffs’ suit. A rehearing in this case was granted, primarily because of its public importance and also because of an error in our original opinion relative to the legislative history of R.S. 38:1071, subd. B.

While, in granting the rehearing, we did not limit it to a reconsideration of R.S. 38:1071, subd. B, a careful study and reappraisal of these two issues convinces us of the correctness of our holding that R.S. 42:4 is constitutional for the reasons so ably stated in our original opinion, but we were in error in holding that the defendants could not be removed at the will and pleasure of the appointing Govern- or.

Generally, the power of removal is incidental to the power of appointment,, but this principle does not necessarily apply to the Governor of a state. Dubuc v. Voss, 19 La.Ann. 210. His power to remove officers appointed by him has to be conferred either by the Constitution or by-statute. Such authority is specifically-granted the Governor by R.S. 42:4.³ The provisions of this section, which are copied: in extenso in footnote 3, clearly and unequivocally empower the Governor to remove at his pleasure any public officer, except those specifically excluded from its. provisions. The offices in controversy are not to be found in these exceptions.

Defendants’ contention that the Legislature by the very provisions of R.S. 38 :- 1071, subd. B ⁴ has fixed the term of office of the defendants to continue during the term of office of the Governor appointing them and until their successors are appointed and qualified is untenable in the face of the express and unequivocal provisions of R.S. 42:4.

Moreover, counsel for defendants’ argument in support of such contention, i. e. that the particle “or” in the controlling clause of R.S. 38:1071, subd. B, underscored in footnote 4 below, should be construed as “and”, is in direct contravention of the express mandate of the Legislature which, in adopting the Revised Statutes, declared that “Unless it is otherwise clearly indicated by the context, whenever the term 'or’ is used in the Revised Statutes, it is used in the disjunctive and does not mean ‘and/or’.” See R.S. 1:9.⁵

We think, a review of the legislative changes this section has undergone since its first enactment in 1892 makes it clear that defendants’ contention is totally unfounded. The first act, creating the Lake Borgne Basin Levee District and fixing the terms of the offices in controversy (Act 14 of 1892, which became Section 38:1073 of the Revised Statutes of 1950), provided that

“ * * * said commissioners shall hold their office for the term of four years, and until their successors are appointed and qualified.”

This provision was changed by the Legislature of 1956,⁶ (R.S. 38:1071, subd. B), and reads as follows:

“The commissioners shall hold their office during the term of office of the governor appointing them or until their successors are appointed and qualified.”

From the foregoing it is obvious that the Legislature intentionally changed the term of office of the Commissioners from a fixed term of four years to a period to run during the term of office of the appointing Governor,⁷ thus removing any apparent discrepancy between this section and the provisions of R.S. 42:4, and, as was so aptly stated by one of our learned colleagues,⁸ “the Legislature must be presumed to have passed the statute in the light of the preceding statutes on the same subject; and where a statute is worded differently from the preceding statutes, the Legislature is presumed to have intended to change the law. See State v. Wilson, 204 La. 24, 14 So.2d 873.” Therefore, when the Legislature substituted the word “or” for “and”, “the statute was made to mean just what counsel for appellants say it means: (1) The commissioners shall hold their office during the term of office of the Governor appointing them, or (2) they shall hold office until their successors are appointed and qualified.”

We therefore conclude that the removal by the Governor of the defendants Lawrence Bergeron and Edmond Collins as Commissioners of the Lake Borgne Basin Levee District was legal and proper under the statute and the plaintiffs James Lic-ciardi and Charles A. Leon or their appointed successors are entitled to the offices of Commissioners of the Lake Borgne Basin Levee District.

For the reasons assigned, the judgment of the district court dismissing plaintiffs’ suit is reversed and set aside, and it is now ordered, adjudged and decreed that there be judgment herein in favor of the plaintiffs James Licciardi, Charles A. Leon and Selma Picarella recognizing them to be duly commissioned and qualified commissioners of the Board of Commissioners of the Lake Borgne Basin Levee District; and accordingly the defendants Lawrence Bergeron, Edmond Collins and Edgar N. Quillin are hereby ordered and directed to forthwith deliver unto plaintiffs or their successors the possession and control of all of the books, documents, records and other items belonging and appertaining to the said board, as well as all of the chattels, equipment and other paraphernalia of the board; all cost in this proceeding to be paid by the defendants.

SIMON, J.,

is of the opinion that the provisions of Act 208 of 1958 makes the issue moot in regards to the interpretation and construction placed on the subject statute.

1 . Plaintiffs originally instituted a mandamus suit, to which defendants filed an exception, which was upheld by the district court on the ground that a writ of mandamus will not lie where the title to the office is put in issue, and plaintiffs were allowed to amend their petition to convert the proceedings into an intrusion-into-office suit.

2 . Prior to answering, defendants filed exceptions of misjoinder of parties plaintiff and parties defendant, which were overruled, and exceptions of no right or cause of action, which were referred to the merits.

3 . “A. In all other cases, all public officers who are appointed by the Governor shall serve at the pleasure of the Governor. This Section shall not apply to officers appointed by the Governor upon recommendation or from lists submitted by others where the law requires appointments to be so made, nor to those whose terms of office are fixed by the constitution and those who are required by the constitution to be appointed with the advice and consent of the Senate.

“B. This Section shall not apply to the Louisiana State Board of Public Welfare, the Louisiana Merit System Council, the Board of Review and the State Advisory Council of the Division of Employment Security of the Louisiana Department of Labor. Acts 1950, No. 68, § 3, as amended Acts 1950, 2nd Ex.Sess.,. No. 22, § 1.”

4 .“The governor may appoint a competent person from among the qualified voters, of each parish and part of parish embraced in the levee district and one representative of the New Orleans and-Southern R. R. Co., or its successor, to-serve as levee commissioners for the district. The commissioners shall hold' their office during the term of office■ of the governor appointing them or until their successors are appointed, and qualified. As amended Acts 1956, No. 386, § 1; Acts 1956, Ex.Sess., No. 35, §§ 1, 2.”

5 . Without aid of such statute the Arkansas Supreme Court in Beasley v. Parnell, 177 Ark. 912, 9 S.W.2d 10, 12, reached the same conclusion in construing a similar statute. The Arkansas statute, Acts 1925, Act No. 88, provided that the commissioner “shall hold office for a term of four years, or until his successor shall be appointed by the Governor.” In rejecting the argument that the word “or” should be construed as “and”, the court held that it “would not be justified in making the proposed substitution unless the whole context of the statute requires plainly and beyond question that it be done to give effect to the intention of the Legislature.”

6 . Act 386 of 1956, Sec. 1, (R.S. 38:1071), reenacted and amended Act 14 of 1892 and provided that “The commissioners shall hold their office during the term of office of the governor appointing them or until their successors are appointed and qualified.” Subsequently, Act 35 of the Extra Session of 1956, Sec. 3, repealed Sec. 38:1073, and Sec. 2 of the same act amended and reenacted Act 386 of 1956. The provision under consideration here was not affected by the latter amendment.

7 . In order to remove any doubt as to the interpretation of R.S. 38:1071, subd. B, the Legislature of 1958 adopted Act No. 208, amending and reenacting that section, the pertinent part of which now reads as follows: “The commissioners shall hold their offices, at the pleasure of the governor, during the term of office of the governor appointing them or until their successors are appointed and qualified.”

8 . Justice Hawthorne, dissenting in part and concurring in part in the original opinion.