Diamond v. Cain

Howell, J. The plaintiff, alleging that on the twenty-ninth October, 1863, he was duly appointed and commissioned as Chief of Police in and for the city of New Orleans by the Mayor thereof, whose authority so to do is derived from the city charter, and that the defendant, G. L. Cain, without legal authority and in violation of plaintiff’s rights, claims and usurps the office and is pretending to perform the duties thereof to the injury of plaintiff, wiiose rights he refuses to recognize, [318] prayed for a writ of quo warranto, directing said Cain to show by what authority he holds, claims and usurps said office, and for a writ of injunction restraining him from interfering with plaintiff in the discharge of the duties of chief of police, with damages. The writ of quo ivarranto was issued returnable on a day fixed and a rule to show at the same time why an injunction should notissue. Subsequently an amended petition -^yas filed setting forth that said Cain was acting as chief of police of New Orleans by virtue of his appointment as “Superintendent of the Metropolitan Police,” made pursuant to an act of the Legislature, entitled “ An act to establish a Metropolitan Police District and to provide for the government of the same,” approved fourteenth September, 1868; that his acts as such violates the vested rights of plaintiff as chief of police; that he usurps all the functions of said office under color of said appointment and refuses to plaintiff access to the records and office room tof the chief of police of New Orleans to the injury of plaintiff and danger to the public peace} that the acts and doings of defendant violate the letter and spirit of the aforesaid act of the Legislature, which in no manner conflicts with the vested rights of plaintiff as chief of police under the city charter and ordinances; that said act violates articles 94, 117 and 118 of the Constitution of this State, and vests no rights in the defendant, and closing with the prayer of the original petition. The defendant, without excepting to either petition, answered with a general denial and a special denial that plaintiff is chief of police or that any such office exists, or that theMayor'has any authority to make such appointment, and avers that plaintiff has no right to the writ of quo warranto, and his claim is in contempt of the laws of the State; that by divers acts of the Legislature the said office of chief of police has been abolished and the Mayor deprived of any power to appoint police officers; that on second November, 1863, he, plaintiff, was appointed superintendent pro tempore, and on ninth same month was-duly elected and qualified superintendent of the “ Metropolitan Police force,” by the Board of Metropolitan Police, and he is now exercising the duties thereof; that the allegations of the petitions are untrue and insufficient for an injunction, which cannot issue to suspend the functions of executive officers, and upon presenting his warrant of appointment according to section seventeen of the act establishing the said Board, he prays that the petition be dismissed. ■ There being no evidence in the record, except the commissions of the parties with defendant’s oath of office, the question involved is one of the construction and effect of the laws relating to the two offices and the functions thereof in controversy. By the twenty-sixth section of the amended city charter (acts 1856, p. 142) the Mayor of New Orleans was empowered to appoint police officers, policemen and watchmen, under the ordinances of the common council organizing the same. [319] Article 133 of the Constitution of 1864 gave to the citizens of New Orleans the appointment of the officers necessary for the administration of the police of the city, in the mode prescribed by the Legislature, and directed that the city should maintain a police selected by the Mayor, and removable by a commission appointed by the G-overnor, recognizing in express terms a chief of police and other officers, and fixing the grade of their salaries. Act No. 14 of the Legislature of 1866 directed that after the ensuing municipal election the police of the city should be organized by an ordinance determining the number, functions, etc., of the same; authorized the Mayor to make the appointments, and provided for carrying into effect the above article of the Constitution, fixing, among other things, the composition and functions of the police commission, which, with the Mayor ex officio a member thereof, had the control of the police of the city. None of the city ordinances are before us. The Constitution of 1868 omitted article 133 of that of 1864, but by article 149 continued in force all legislation not inconsistent with the Constitution itself. ThisTel't the whole subject of the city corporation and police under the power and discretion of the Legislature, which by act No. 1, approved July 9, 1868, created a Hoard of Police Commissioners, to be appointed by the Governor, and who shall have ‘1 full power to appoint and remove and control the officers and men of the police force of the city of New Orleans directed how the officers and men should be removed, and repealed all acts and parts of acts inconsistent therewith. This act took effect from and after its passage, and as a consequence, the laws authorising the Mayor to appoint the police, and creating a police commission, with the Mayor as a member, for the trial and removal of policemen, being inconsistent therewith, were repealed and all control of the police was taken from the Mayor and the said commission and vested in the board of five police commisj sioners, created by said act. No law exists authorizing the Mayor to make such appointment. The plaintiff however asserts this act No. 1 to be unconstitutional, because by the one hundred and fifty-ninth article of the Constitution of 1868, it is provided that the General Assembly at its first session shall not have power to enact any law until the fourteenth amendment to the Constitution of the United States “ shall have been acted upon.” We have the highest evidence that said amendment had been “ acted upon,” when the said statute was passed, for the joint resolution ratifying it was approved on the same day with the statute. Both required alike the action of each house and to be submitted to the Governor before they took effect. The Constitution does not say that the proposed amendment shall be adopted before the General Assembly could propose or consider any bill — it only says that it shall not enact any laws, thftf is, pass any bill through the necessary stages to become a [320] law, until it bad acted upon the amendment — the object being to secure early action thereon; and in our opinion the amendment was acted upon before any law was enacted in the constitutional sense. And we can see nothing in this statute in conflict with articles 42, 94, 117 and 118 of the Constitution, as charged. The conclusion is evident that the Mayor was without legal authority to appoint plaintiff chief of police. Subsequent legislation on the subject has, if possible, more effectually withdrawn and withheld the police of the city from the Mayor, (see acts Nos. 74 and 145 of 1868, and Nos. 60 and 92 of I860); and the conclusion is manifest that the alleged appointment of the plaintiff as chief of police by the Mayor was without authority of law, and that in said capacity he has no right to the writ of quo warranto demanded in this proceeding. It is not protended that section 130 of the city charter, if in force, applies; and by act No. 156 of 1868, tho party complaining must have an interest in the controversy and the proceeding must be in the name ol the State. Plaintiff having no interest in the office of chief of police or super-tendent of the metropolitan police, cannot interfere with or restrain the defendant in the discharge of his alleged functions or question his right to the office, which plaintiff admits he holds under an “ act to establish a metropolitan police district, and to provide for the government thereof,” approved September 14, 1868. Admitting that this act, jn the particular features mentioned, is in conflict with the Constitution, it does not invalidate the establishment of a metropolitan police and the appointment of a superintendent thereof, as provided for in the act. It is said the act violates article 117, because the Lieutenant Governor is made ex officio the president of the board with a salary, and article 118, because the tax authorized is to be assessed upon the portion of the State comprising the metropolitan police district only, which, if true, as said before, docs not render the balance of the act unconstitutional. It is therefore ordered that the judgment appealed from bo reversed and that there be judgment in favor of defendant dismissing plaintiff’s demands with costs in both courts.