State ex rel. Whitaker v. Adams

The opinion of the court was delivered by Nicholls, C. J. The question submitted to us for decision is whether, whilst the recorder of the First Recorder’s Court of the city of New Orleans is present, able and willing to perform the duties of his office, he can be suspended from exercising his functions and temporarily replaced by the recorder pro tem., through an order of suspension from the mayor of the city, this order being grounded upon the pendency of impeachment proceedings before the City Council directed against the recorder. Defendants invoke, in favor of the affirmative of this proposition, Section 58 et seq. of Act No. 20 of 1882, known as the Charter of the City of New Orleans, which confer upon the common council the power of impeachment, and name the recorders of the pity, among others, as holding their offices subject to this power. Relator’s contention, on the other hand, is that for high crimes and misdemeanors, for non-feasance and malfeasance in office, for incompetency, for corruption, favoritism, extortion or oppression in office, or for gross misconduct or habitual drunkenness, an exclusive method of removal from office is provided by Article 201 of the Constitution, which declares that for such causes district attorneys, clerks of court, sheriffs, coroners, justices of the peace, and all other parish, municipal and ward • officers, shall be removed by judgment of the District Court of the domicile of such officer, and that the office which he holds is one of the offices covered by the article. [832] Recorders of New Orleans are part and parcel of the machinery of the city government. They are not constitutional officers. The Recorder’s Court is purely a statute court. It might be conceded that the recorders, as to removal from office, fall under the terms of Article 201 of the Constitution without determining the issue raised in this case. The real issue is whether the power of removal referred to in the article of the Constitution is identical with the power of amotion, impeachment or quasi impeachment, on which the defendant ¡ base their right to act, and whether proceedings under Article 201 are exclusive of any other method by which municipal officers may be dis - placed. If the two proceedings are referable to separate and distinct powers as the source from which they spring, and the former method of removal is not necessarily exclusive of the latter, the provisions, of Article 201 of the Constitution do not control this case. Relator’s contention that he is not “ removable for cause,” otherwise than by the Civil District Court, could be well admitted as thoroughly correct-if “judicial” proceedings be referred to, and yet the course pursued by the defendants be perfectly sustainable as legal. That the General Assembly conceived there was a difference between “ judicial removals for cause after trial,” and impeachment, quasi impeachment or amotion of its officers by a municipal body acting politically and in the discharge of an administrative duty, and that-both could be resorted to though under different circumstances and varying conditions, appears on the face of the act; for whilst Section 49 declares that for the causes specified in Art. 196 of the Constitution the recorders shall be “removed ” in the manner pointed out by Art. 201, Sections 58 et seq. confer expressly upon the council the-power of “ impeaching ” these same recorders. "We are of the opinion that the Legislature was justified in making the distinction it did. Proceedings for the removal of officers, whether by. that name or that of impeachment, addressal, expulsion, amotion, or quasi impeachment, do not properly and regularly belong to the judicial department; they are universally recognized as arising in and from the exercise of the political power of the State, lodged in its legislative and executive branches. If the judiciary has jurisdiction in any manner, shape or form over such proceedings it is only by virtue of direct special exceptional grant. Whilst the distribution of the different powers in a State to the different depart833 merits is of course under the control of the convention which framed the organic law, and it is at liberty in its apportionment of powers to depart in greater or lesser degree from what is and has been for generations regarded as the functions legitimately belonging to each and those separating each, and such action m'jst be maintained and enforced, it is none the less true that such action preserves a distinctive exceptional character. As exceptional in its nature it has to a degree to be construed as to its scope by the rules governing exceptional legislation. Whilst full effect is to be given to it, it should be kept within precise limits and not be extended beyond the cases evidently contemplated to be covered by it. The. reason, the object and the purpose to which it owed its origin must be constantly kept in view. It must be conceded that in adopting Art. 201 of the Constitution the convention made not only a departure, but a very great departure from established principles. We are therefore of the opinion that when it provided a method for the removal of officers through courts, after a full trial and slow and regular judicial proceedings, it intended to establish special and additional, and not an exclusive method of removal, and that if the proceeding be exclusive it is exclusive only to the extent that it has been so specially made by express declaration. What was the object and purpose of this extraordinary grant of exceptional power to the judiciary ? In our opinion, it was to furnish a guard and a protection against the unjustifiable continuance in office of incompetent and unworthy officers, by giving to the people, acting directly in their own right, a special remedy to which they could themselves have free recourse, independently of the official action of others. Without this article the people would have to rely entirely for relief upon the Governor, or General Assembly or the municipal authorities, who, no matter how great the occasion or cause for action might be, would be free to act or not as they thought proper. With the article they could of themselves force an issue, in any given case — wilful inaction, misplaced friendship, or partisan favoritism to the contrary notwithstanding. A second purpose was to substitute, in lieu of the removal of officers by addressal by mere resolution, the special method of removal through judicial proceedings, without interfering or clashing with other powers either of the Legislature or of the municipal authorities. That the convention did not think that the method of removal of officers provided for by Article 201 was exclusive of others of and by [834] its own force, but required a direct affirmative declaration to that effect to make it exclusive, will appear from Article 152, in which it is provided that' quoad addressals from office by the Legislature it should be so to the extent of its terms. The absolute deprivation of the political right of holding an office under the State, or of holding a municipal office under the City Charter, brought about through the instrumentality of the Legislature or the municipal authorities, is something other and different from the temporary displacement of an officer from an office to which he might again be legally elected or appointed, operated through the courts by regular judicial proceedings. The source of powder of the two proceedings is not only different, but the penalty is different and the character of the proceedings is different, one being political and administrative, the other being judicial by constitutional grant. A proceeding for the “judicial” removal of a district judge would not bar an “impeachment” proceeding by the Legislature against the same judge for the same offences whilst he was still in office. Pursuing the subject further, we find that the Constitution reserved and gave to the General Assembly full power and control over the creation of a government for the City of New Orleans. It did so with knowledge of and with reference to the well recognized existence inherently in municipal corporations of the power of removal or amotion of its officers, and in giving this unrestricted power to the General Assembly it must have contemplated and did contemplate that in creating the corporation the Legislature would deal with that power, either widening or restraining it, as in its judgment it would deem best. The General Assembly, under the Constitution, had the power to determine what the officers of the corporation should be, and to define and fix their respective duties. It had the right to fix and determine what the qualification for those offices should be — the terms and conditions upon which they should be assumed, and the terms, conditions and circumstances under 'which they should be vacated. Every person accepting office under the City Charter accepted it on the conditions constitutionally affixed to the office in the charter. The Recorders’ Courts, as we have said, are part of the machinery of the City government. They were not organized by direct special act, under the grant of power conveyed in Art. 136 of the Constitution, but through the act organizing the City under the constitu [835] tionally reserved and granted power tf creating a government for the City. The courts are purely statute courts, liable to entirely disappear by legislative action, and subject to modification as to their powers, just as is the Oity government of which they form a part. We do not think that any of the decisions quoted by relator reach this case. The only point decided in Richard vs. Rousseau, 35 An. 934, was that Art. 201 of the Constitution had no reference to minor officers elected by the various parish and municipal corporations of the State. The mind of the Chief Justice, who was the organ of the court on that occasion, was as to who was outside of the provisions of the article, not who was inside of the same, nor what' the effect of being v ithin it would be. The fact referred to in relator’s brief, that the recorders are elected by the people and not by thejCommon Council, would perhaps have furnished a good argument before the Legislature in favor of withholding the power of amotion from reaching the recorders, but it does not legally affect the situation when the General Assembly has thought proper not to do so, and there was no constitutional obligation on its part to withhold it. It must be observed, however, that tee Mayor of the City and other officers elected by the people are brought under the operation of the same power. It may also be observed that the attention of the Legislature seems to have been directed to this subject, and to the cases of the officers elected by the people, as in one respect it distinguishes them from those elected by the Council, for Sec. 30 of the act declares “that in addition to the power of removal by way of impeachment the Council shall have power to remove at any time from office any officer of the Council elected by them by resolution declaratory of its want of confidence in said officer, provided that two-thirds of the members elected to said Council shall vote in favor of said reso - lution.” (Italics ours.) In the minds of some persons it may doubtless be considered unwise to have lodged in the Common Council as much power over the elective officers as the General Assembly has granted to it, but we are not to deal with statutes from what we might consider impolitic or unwise. The issues which are presented in this case are similar to those in the case of the State ex rel. Behan vs. Judge, 35 An. 1075, though advanced at a little later stage of the impeachment proceedings and presented under a somewhat different form. The [836] decision in that ease strongly supports the views herein expressed. We discover no unconstitutionality in Act No. 20 of 1882 in the respects complained of. The impeachment proceedings being legal, the order of suspension based thereon was also legal. Por the reasons assigned, it is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed, and it is now ordered, adjudged and decreed that relator’s demand be rejected at his costs.