Bonnette v. Karst

HAMLIN, Justice. Defendants, the City of Alexandria; its Mayor and Commissioner of Public Health and Safety, Honorable C. Edward Karst; its Commissioner of Finance and Public Utilities, Honorable Carroll E. Lanier; and its Commissioner of Streets and Parks, Honorable O’Hearn L. Mathews; and intervenors, Local 540, Alexandria Fire Fighters Association, AFL-CIO, Board of Trustees of the Firemen’s Pension and Relief Fund and Willis L. West, appeal from a judgment of the trial court, sitting en banc as a three judge court, which (1) ordered that a permanent injunction issue, directed to the defendants, restraining, enjoining and prohibiting each of them from taking any action under the provisions of LSA-R.S. 42:691 looking toward the separation or retirement of Pearly J. Bonnette, Lionel C. Bergeron, Sam Domico, Jr., and John Fertitto from their positions as permanent classified officers and employees in the Fire Department of the City of Alexandria, Louisiana; and, (2) decreed that “R.S. 42:691 is hereby declared to be unconstitutional in its application, insofar as any effort has been or may be made to make that statute applicable to the plaintiffs in this proceeding in connection with their employment with the City of Alexandria, Fire Department.” ' After being notified by letter of April 2, 1971, written by C. Edward Karst, appointing authority and Mayor of the City of Alexandria, that they were being placed on retirement pursuant to the provisions of LSA-R.S. 42:69b1 Pearly J. Bonnette, Lionel C. Bergeron, Sam Domico, Jr., and John Fertitto2 instituted, April 28, 1971, [856] the present declaratory judgment and injunctive proceedings against the defendants; they prayed for the judgment decreed, supra, by the trial court. Local 540, Alexandria Fire Fighters Association, AFL^CIO, Board of Trustees of the Firemen’s Pension and Relief Fund, and Willis L. West intervened in the matter and prayed that plaintiffs’ suit be dismissed. In answer to plaintiffs’ petition, defendants prayed that the trial court hold that the provisions of LSA-R.S. 42:691 are applicable to the Alexandria Fire Department and that plaintiffs’ suit be dismissed. Honorable Jack P. F. Gremillion, Attorney General of the State of Louisiana, appeared and submitted to the trial court the matter of the constitutionality of the involved statute and the relief sought. Defendants and intervenors filed a declinatory exception in which they averred that the trial court was without jurisdiction over the subject matter involved because Art. XIV, Sec. 15.1(31), of the Louisiana Constitution granted the district courts limited jurisdiction only to review a prior decision made by the Alexandria Fire and Police Municipal Civil Service Board; that plaintiffs had made no application to the Board to review their discharge, and that consequently, the Board had rendered no decision reviewable by the court. They further averred that the trial court had neither original jurisdiction nor appellate jurisdiction over the subject matter. Defendants and intervenors also filed peremptory exceptions of prescription and no cause of action. The trial court overruled all of the exceptions, and its decision with respect to jurisdiction stated: “It is the opinion of this Court that these letters written to these parties are not discharges or contemplated discharges as envisioned or contemplated by the Constitution, Article 14, Section 15.1, sub-paragraph 31. But that mandatory retirement is a change of status other than discharge and certainly corrective or disciplinary action. And that being the case, then this Court does have jurisdiction to hear this matter. It is the position of this Court that the word discharge carries some connotation other than a mandatory retirement. A discharge is a complete severance of that employee with prejudice and that retirement, of course, is not of that nature. So the exception to the jurisdiction is overruled.” [858] The trial court rendered judgment after-hearing, and the present appeal ensued. Defendants and intervenors assign the following errors to the judgment of the trial court: “1. The district court erred in talcing jurisdiction over the subject matter of the proceeding. “2. The district court erred in holding that plaintiffs’ rights of action had not prescribed. “3. The district court erred in holding that firemen were granted life tenure under the Louisiana Constitution making any retirement statutes unconstitutional when applied to firemen.” Amicus Curiae, Professional Firefighters Association of Louisiana, AFL-CIO, urges that the trial court erred in finding the provisions of LSA-R.S. 42:691 to be unconstitutional, insofar as applied to plaintiffs, members of the classified service of the Alexandria Fire Department. Plaintiffs submit that the judgment of the trial court should be affirmed, and state: “The long and short of this entire case is that firemen and policemen subject to the provisions of Article 14, Section 15.1, have special and unique constitutional civil service protection, are entitled to tenure during good behavior and are subject to removal from their employment only in the manner and for the reasons set forth in the Constitution. Statutes which provide to the contrary must yield.” Counsel for defendants and intervenors contend that in a civil service dispute involving policemen and firemen, a state district court does not have original jurisdiction but only a form of limited appellate jurisdiction. Art. XIV, Sec. 15.1(31), La.Const. of 1921, as amended, provides: “Any regular employee in the classified service who feels that he has been discharged or subject to any corrective or disciplinary action without just cause, may, within fifteen days after the action, demand in writing, a hearing and investigation by the board to detemine the reasonableness of the action. The board shall grant the employee a hearing and investigation within thirty days after receipt of the written request.” See, LSA-R.S. 33:2501. The letters ordering mandatory retirement of plaintiffs were written on April 2, 1971, and received on April 3, 1971. Plaintiffs did not apply to the Alexandria Fire and Police Municipal Civil Service Board for hearing; they chose not to follow the constitutional article, supra; they instituted, as stated supra, the instant proceedings on April 28, 1971, less than 30 days after receipt of their notice of mandatory retirement. [860] We agree with the trial court that a district court has jurisdiction of a matter such as the instant one. Herein, an appeal or application to the Civil Service Board would have been a vain and useless gesture. That body is without power to determine vel non the constitutionality of a State statute, and plaintiffs challenged the constitutionality of LSA-R.S. 42:691 and prayed for declaratory and injunctive relief. We find that the district court was the proper and only body which could grant or deny plaintiffs’ demands. Having determined that the trial court had jurisdiction of this matter, it follows that the peremptory exceptions are without merit and that the trial court properly overruled them. Chadwick v. Department of Highways of the State, 238 La. 661, 116 So.2d 286 (1959) is not apposite to this matter. Compulsory retirement was involved in the Chadwick case, but the retired employee saw fit to appeal to the Civil Service Commission and filed his appeal untimely. The Commission, however, found that the order of retirement was void ab initio. This Court sustained the motion to dismiss Chadwick’s appeal to the Civil Service Commission on the ground that the appeal was not timely taken pursuant to Rule 13.12 of the Civil Service Commission. We said, however, “Under our view on the merits of the motion to dismiss it is not necessary for us to discuss what authority if any the Civil Service Commission had to consider Act 54 of 1958 [LSA-R.S. 42:691] unconstitutional or for us to express any view as to its constitutionality.” We now approach a determination of the constitutionality of LSA-R.S. 42:691 in the light of Art. XIV, Sec. 15.1 (30)a, La. Const. of 1921, as amended. LSA-R.S. 42:691 provides: “Compulsory retirement at age sixty-five; exceptions; earlier mandatory retirement ages not extended; teachers and college presidents “A. Effective January 1, 1959, any employee of the state of Louisiana, or any political subdivision thereof, except elected officials and department heads appointed and commissioned by the governor, who is insured under the Federal Social Security Law, or who is a member of any public employees’ retirement system, and for whom the state or any political subdivision thereof has made or is liable for contributions toward his retirement, who shall have attained the age of sixty-five years shall be separated from the public service by his appointing authority if such employee is eligible for retirement under either the Social Security Act or the retirement system of which he is a member. If such employee is not eligible for retirement under either the Federal Social Security Act or the retirement system of which he is a mem [862] ber separation shall occur whenever he shall become eligible for retirement under either system or upon attainment of age seventy, whichever event shall first occur. In any case in which the appointing authority certifies that the continuance in service of the employee who shall have attained the age of sixty-five or over would be advantageous to the public service by reason of his expert knowledge and qualifications, such employee may be continued in the public service by his appointing authority beyond the age of sixty-five for periods of one year. “B. Nothing contained in this Section shall be construed as granting any extension to any member of a retirement system which has a provision requiring an earlier mandatory retirement age; and provided further that nothing herein contained shall be construed to in any manner affect the mandatory retirement age for teachers or college presidents.” Acts 1958, No. 54, §§ 1, 2. Art. XIV, Sec. 15.1(30), provides: “a. The tenure of persons who have been regularly and permanently inducted into positions of the classified service-shall be during good behavior. However, the appointing authority may remove any employee from the service, or take such disciplinary action as the circumstances warrant in the manner provided below for any one of the following reasons: « * * * “(13) The development of any defect of physical condition which precludes the employee from properly performing the duties of his position or the development of any physical condition that may endanger the health or lives of fellow employees. “ * * * ” (Emphasis ours.) In Art. XIV, Sec. 15.1(30), no mention is made of “retirement” as a cause for separation from a Fire Department. The article specifically states that tenure shall be during good behavior.3 Webster’s New World Dictionary of the American Language defines “tenure” as follows: “1. a holding, as of property, office, etc. 2. the right to hold or possess some [864] thing. ' 3. ’ the length of time something is held: as tenure of office. 4. conditions of possession. 5. permanent possession, as of an office or position.” Counsel for the defendants and intervenors submit that in holding LSA-R.S. 42:691 unconstitutional in its application to firemen, the district court gave it a strained and super-technical interpretation never intended by the people or the Legislature. They contend that virtually all retirement systems contain a mandatory retirement age and submit that the provisions of LSA-R.S. 42:691 are in no way inconsistent with or repugnant to Art. XIV, Sec. 15.1 (30) a, La.Const. of 1921, as amended. Amicus Curiae contends that the constitutional provision was not intended to prohibit the Legislature from establishing a mandatory retirement age for its firefighters and policemen. It argues that if the decision of the trial court is allowed to stand, it will wreak havoc with a majority of the firefighters’ pension systems in the State of Louisiana; a vast majority of pension systems for firefighters have a mandatory retirement age of sixty-five. It states “The resulting effect on the firefighters’ pension systems would be chaotic. It is essential for the proper maintenance of an actuarially sound pension system that the trustees administering the system be able to predict with some reasonable degree of certainty the number of persons expected to retire in a given year.” It is now generally recognized that courts cannot annul an act of the Legislature on any other ground than repugnance to the Constitution. Ricks v. Department of State Civil Service, 200 La. 341, 8 So.2d 49, 58. It is elementary that an act of the Legislature is presumed to be legal, and that the judiciary is without right to declare it unconstitutional unless that is manifest. Schwegmann Bros. v. Louisiana Board, Etc., 216 La. 148, 43 So.2d 248; Everhardt v. City of New Orleans, 253 La. 285, 217 So.2d 400. “It is a rudimentary tenet of statutory construction in this State that ‘When a law is clear and free from all ambiguity, the letter of it is not to be disregarded, under the pretext of pursuing its spirit.’ Article 13 of the Civil Code.” State Through Dept. of Highways v. Bradford, 242 La. 1095, 141 So.2d 378, 386. Constitutional provisions are subject to the same rule of interpretation and construction as are applicable to other laws. State ex rel. Kemp v. City of Baton Rouge, 215 La. 315, 40 So.2d 477, 486; Roberts v. City of Baton Rouge, 236 La. 521, 108 So.2d 111. The trial court stated that discussion before it centered around the question of whether retirement for less than full pay affects tenure, and it concluded that retirement of the nature herein involved affected [866] tenure.4 We agree with this factual finding. We have studied LSA-R.S. 42:691 in the light of the above constitutional mandates and find that it is in conflict with Art. XIV, Sec. 15.1 (30)a, La.Const. of 192.1, as amended. Both the constitutional provision and the statute are clear and free from ambiguity. The retirement contemplated herein is a definite removal or separation from the classified service for a cause not set forth in Art. XIV, Sec. 15.1(30); no bad behavior is involved; no good behavior is involved. Age, not physical disability, is the prevailing factor for retirement. Such a factor is contrary to tenure during good behavior. The constitutional provision must prevail. We do not doubt that there may be difficulties encountered by those administering the pension system as a result of this decision. We appreciate the problems of the system, but the office of judges is jus dicere not jus dare, to interpet law, not make law or give law. Madere v. Long,. 231 La. 498, 91 So.2d 771; Brown v. Travelers Insurance Company, 247 La. 7, 169 So.2d 540. The instant matter is one that addresses itself to constitutional amendment. For the reasons assigned, the judgment of the Ninth Judicial District Court, sitting en banc as a three judge court, is affirmed.. All costs to be paid by defendants and intervenors. DIXON, J., concurs. SANDERS, J., dissents. Footnotes [1] Identical letters were addressed to the plaintiffs; the letter addressed to Chief Pearly J. Bonnette recites: “Chief Pearly J. Bonnette 3020 Darby Street Alexandria, Louisiana 71301 “Dear Chief Bonnette: “This is to advise that I have been reguested by the Firemen’s Pension and Relief Fund to enforce the provisions of Revised Statutes 42:691 requiring mandatory retirement after reaching the age of 65. “Inasmuch as you have declined to voluntarily retire, this is notice to you that you are hereby retired as of April 30, 1971. “The City of Alexandria appreciates the many years of service which you have given. I am aware that you probably feel this law does not apply to firemen, but after careful reading, I am of the opinion along with the Firemen’s Pension and Relief Fund that it does. In any event, if you desire to test the issue in the courts please be advised that I wish you every success. “With kindest regards, [Sgd] C. Edward Karst “C. EDWARD KARST, “Mayor” [2] Plaintiffs’ petition alleged that Pearly J. Bonnette was Chief of the Alexandria Fire Department and was 67 years of [856] age; that Lionel O. Bergeron was the First Assistant Chief of the Alexandria Fire Department and was 73 years of age; that Sam Domico, Jr. was Chief, Bureau of Fire Prevention of the Alexanclria Fire Department and was 67 years of age; and that John Fertitto was Fire Alarm Superintendent of the Alexandria Fire Department and was 68 years of age. [3] It is to be noted that Sec. 1 of Art. Ill of the Constitution of the United States provides: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.” The “Good Behaviour” provision has been consistently interpreted to mean that a federal judge holds his appointment for life or for as long as he acts in conformity with judicial requisites of “Good Behaviour.” [4] The ruling of the trial court recites, in part: “The discussion here with this Court was whether retirement for less than full pay affects tenure, this is the factual matter with which we have to deal in determining the issue now before the Court. This Court was informed that the statutory provisions for retirement is that firemen will receive 60% of their full pay when they are retired. Which means that these four men, if they are retired, will experience a 40% loss of salary. It is the opinion of this Court that retirement of tills nature does affect tenure and that it affects tenure in a manner not contemplated by any of the sub-paragraphs of Article 14:15.1, paragraph 30 and that since it does affect tenure, that is that forced retirement affects tenure, and it is not provided for in the Constitution, then that the statute providing for compulsory retirement is. in conflict with the Constitution and therefore is an unconstitutional statute-as applied to employees of municipalities of this category. “For these reasons the preliminary injunction in the form and nature of the-temporary restraining order is granted.”