Charter Commission of Alexandria v. Karst

272 So. 2d 348, 1973 La. LEXIS 5473
CourtSupreme Court of Louisiana
DecidedJanuary 15, 1973
DocketNo. 52266
StatusPublished
Cited by3 cases

This text of 272 So. 2d 348 (Charter Commission of Alexandria v. Karst) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Charter Commission of Alexandria v. Karst, 272 So. 2d 348, 1973 La. LEXIS 5473 (La. 1973).

Opinion

SUMMERS, Justice.

Because of a home rule amendment to the constitution in 1952, Louisiana’s legislature may not pass any local or special law creating municipal corporations or amending, modifying or repealing their charters, with the exception of municipalities then operating under special legislative charters. La.Const. Art. 14, Sec. 40(a). The amendment did, however, require that [350]*350the legislature provide by general law a method whereby municipalities could frame and adopt a home rule charter by a vote of the majority of its qualified electors. Home rule charters so adopted are to be amended, modified or repealed in a similar manner. Ibid. Sec. 40(c).

To implement this constitutional amendment, the legislature enacted Act 325 of 1952, incorporated into the Revised Statutes as Sections 1381 through 1390 of Title 33, providing a method by which municipalities could frame and adopt home rule charters.1

The City Council of Alexandria, composed of a mayor and two commissioners, acting upon the constitutional and legislative authority thus enacted, adopted appropriate resolutions on November 3, 1969 appointing a charter commission to frame a home rule charter. As directed by Section 1383 of Title 33 of the Revised Statutes, representatives of veterans, business, labor and the professions, respectively, were named by the city council to the commission. The mayor was named as the fifth member and chairman of the commission.

Within a year of its formation, as required by Section 1383, the charter commission submitted to the city council its proposal for a home rule charter. An election was called for February 2, 1971. The proposed charter was rejected by the electors of the city of Alexandria by a vote of 5,211 to 5,071.

In the meantime, shortly before the election, the commissioner representing business died. After the election the commissioner representing labor resigned. On two separate occasions thereafter, on March 29, and April 18, 1971, the mayor, at the urging of the charter commission, acting as a member of the city council, proposed the names of individuals to fill the vacancies created by the death and resignation. On each occasion the motions failed for lack of a second.

Notwithstanding the vacancies and the evident disapproval of the city council, the charter commission proceeded to frame a second charter proposal. The new plan, calling for a strong mayor-form-of-government, was presented in a charter commission report to the city council on September 7, 1971. The charter commission report also requested that the charter be advertised and that it be submitted to the electorate for approval in an election to be called on February 1, 1972. The mayor’s motion that the report of the charter commission be approved was tabled. Another attempt by the mayor in October 1971 to have the council approve the charter commission report also failed.

Finally, on November 15, 1971 the city council, over the mayor’s opposition, adopted a resolution setting forth, inter alia, that “the legal status of the former Charter Commission is in question and doubt”, and a new and impartial commission should be appointed to frame a home rule charter for the approval of the electorate. The resolution then provided for a referendum to determine whether the charter should provide for a five-man commission council or a mayor-council form of government. It was also resolved that after the referendum a new charter commission be appointed to draft a charter providing for the form of government approved by the referendum.

The present suit followed on December 16, 1971. It is a mandamus proceeding brought by the charter commission and twenty-one private citizens. The suit seeks to compel the city council and the members thereof to call an election which would enable the electorate of the city to vote on the proposed home rule charter submitted to the city council in the charter commission’s report of September 7, 1971.

As a defendant the mayor answered, admitting all allegations of the charter commission’s petition. He concluded with a prayer that an order issue directing the [351]*351city council to publish the proposed charter and submit it to a vote of the electors.

However, the remaining members of the city council filed exceptions and an answer (1) contesting the right of the charter commission to sue; (2) alleging that the time for calling an election had prescribed because the charter commission had not submitted the second charter to the governing authority within one year of their appointment as required by Section 1383 of Title 33 of the Revised Statutes; (3) setting forth that only one charter and one election is authorized by the Act during the tenure of any charter commission and that a second election would therefore be a vain and useless act; (4) contending that the filling of vacancies in the membership of the charter commission is discretionary with the city council, and their failure to fill the vacancies was an exercise of discretion against which mandamus does not lie; (5) maintaining that appointment of the mayor to the charter commission was invalid and in derogation of the obvious spirit of the legislation (La.R.S. 33:1381-33:1390) prescribing the method for framing home rule charters; thus, because of the mayor’s invalid appointment, after the two vacancies occurred, the commission was illegally constituted, for no quorum could be assembled to validate their actions; (6) averring that after the first election the continuance of the charter commission was a matter which addressed itself to the discretion of the city council; therefore, when the charter commission continued to act after that time contrary to the wishes of the city council, their actions were without legal effect, and mandamus will not lie to compel the city council to continue the charter commission in effect —that matter being wholly discretionary with the council.

The trial judge was of the opinion the denial of the charter commission’s right to sue was irrelevant because twenty-one other citizens of Alexandria were also plaintiffs and no question was raised of their right to maintain this suit. He was also of the opinion that the defeat of the first charter proposal did not end the tenure of the charter commission, for by the explicit terms of Section 1387 the term of office of the members of the charter commission was four years.

Further, the contention was rejected that filling vacancies in the membership of the charter commission was discretionary with the city counsel. Therefore, the trial judge held the city council could not assert the lack of full membership to invalidate the charter commission’s actions, since the deficiency in membership was due to their own failure to perform a mandatory function prescribed by law.

Finding that the governing authority was mandatorily required to call an election when a proposed charter was submitted, the trial judge was of the opinion the obligation to do so was ministerial. He accordingly ordered that the city council advertise the proposed charter and submit it to the electorate not earlier than sixty or more than ninety days from the date of j udgment.

The Third Circuit reversed on the single ground that under the plain language of Section 1383 the charter commission could not function without representatives of business and labor.

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Opinion Number
Louisiana Attorney General Reports, 2003

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Bluebook (online)
272 So. 2d 348, 1973 La. LEXIS 5473, Counsel Stack Legal Research, https://law.counselstack.com/opinion/charter-commission-of-alexandria-v-karst-la-1973.