Clark v. BOARD OF COM'RS, ETC.

422 So. 2d 247
CourtLouisiana Court of Appeal
DecidedNovember 2, 1982
Docket13230
StatusPublished
Cited by25 cases

This text of 422 So. 2d 247 (Clark v. BOARD OF COM'RS, ETC.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clark v. BOARD OF COM'RS, ETC., 422 So. 2d 247 (La. Ct. App. 1982).

Opinion

422 So.2d 247 (1982)

J.W. CLARK
v.
BOARD OF COMMISSIONERS, PORT OF NEW ORLEANS.

No. 13230.

Court of Appeal of Louisiana, Fourth Circuit.

November 2, 1982.

William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., Louis M. Jones, Asst. Atty. Gen., Paul A. Eckert, Staff Atty., Louisiana Dept. of Justice, New Orleans, for appellant.

Harvey C. Koch, Beard, Blue, Schmitt, Mathes, Koch & Williams, New Orleans, for appellee.

*248 Before GARRISON, AUGUSTINE and CIACCIO, JJ.

CIACCIO, Judge.

This is a devolutive appeal by the Board of Commissioners, Port of New Orleans (Dock Board) from a decision of the Civil District Court, Parish of Orleans, declaring that the term of office of a commissioner of the Dock Board begins on the date his commission is issued by the Governor, and that the term of office ends five years after the date of appointment. The trial court then enjoined the Dock Board from taking any action declaring the term of plaintiff-appellee, J.W. Clark, expired or his office vacant prior to March 8, 1983. We affirm.

On December 10, 1976, a vacancy was created on the Dock Board by the expiration of the term of office of one of its members. To fill this vacancy the Governor appointed the plaintiff-appellee, J.W. Clark, by commission dated March 9, 1978. At some time prior to December, 1981, the Dock Board notified Mr. Clark that his term of office would expire on December 10, 1981, and that on that date his office would be declared vacant. In reaction thereto, Mr. Clark filed this suit seeking to enjoin the Dock Board from pursuing any such procedure and for a declaratory judgment defining his term of office.

For purposes of trial, the parties filed a stipulation of facts. The stipulation set out that Mr. Clark had been appointed by commission of the Governor dated March 9, 1978. He took his oath of office, filed the oath with the Secretary of State, and began actively serving as a Board Member on March 23, 1978. Prior to December, 1981, the Dock Board notified Mr. Clark of its intention to declare his term expired and his office vacant as of December 10, 1981. And, as of December 10, 1981, Mr. Clark would have served three years and nine months as a Dock Board member.

The Dock Board maintains that a member's term of office begins on December 10th of the year that the term of his predecessor expires and lasts for five years thereafter. The Dock Board relates the present statutory provisions concerning the Dock Board back to the Louisiana Constitution of 1921. The Dock Board argues that the terms of office of its members begin on December 10th because that is the date that the 1921 Constitution was promulgated. The Dock Board policy for the past sixty years has been that the terms run for five years from December 10th regardless of when a member is appointed to serve his term.

Mr. Clark, however, reasoned that his term of office began from the time that he took his oath of office and began to serve. That date is March 23, 1978.

The issue presented to the trial court and now on appeal is to determine the term of office of a member of the Dock Board.

The trial court decided that Mr. Clark's term began on March 9, 1978, when he was appointed by the Governor. Mr. Clark's five year term, therefore, would last until March 8, 1983. Consequently, the trial court enjoined the Dock Board from declaring Mr. Clark's term expired any time prior to March 8, 1983.

In support of its position the Dock Board relies upon an opinion of Attorney General A.V. Coco (Op.Atty.Gen., 1920-22, p. 919) and the doctrine of contemporaneous construction. The attorney general's opinion stated:

"The term of office of these commissioners began from the date our Constitution went into effect by promulgation, and not from the date of their appointment by the Governor."

This opinion cites as its only authority the case of State v. Young, 137 La. 102, 68 So. 241 (1915).

State v. Young deals with the issue of whether the Governor could fill a vacancy for bank examiner when the Senate was in recess, and the right of a person so appointed to take office. The beginning of a bank examiner's term was specifically provided for by statute, but the Court said that, if it had not been so provided, the term would have begun on the date the act creating the office became effective.

*249 Article 194 of the Constitution of 1898 provided:

"There shall be appointed by the Governor, by and with the advice and consent of the Senate, a state examiner of state banks, who shall be an expert accountant, and who shall make examinations of all state banks at least twice in every year. His term of office shall be four years and the Legislature shall define his duties and fix his compensation."

Subsequently, Act No. 198 of that year provided:

... "He ... shall serve for four years from the date of his induction into office..."

In contrast to the above demonstrated brevity of Article 194 of the 1898 Constitution, Article VI, Section 17 of the 1921 Constitution covering the Dock Board contains some 17 paragraphs and provides, among other things, for a very complex nominating procedure, for appointment by the governor without the advice and consent of the Senate, and for an exclusive removal procedure.

The two constitutional provisions have nothing in common except a final appointment by the Governor. Further, since the Young Court was not presented with the issue in this case, its comments thereon must be classified as dicta.

The Court in State v. Young cites and quotes as its authorities the cases of Bry v. Woodroof, 13 La. 556 (1839) and State ex rel. Wilson v. Parker, 30 La.Ann. 1182 (1878). The Woodroof and Parker courts also dealt with statutes entirely different from those covering the Dock Board. Woodroof and Parker presented the issue of when a term of office, not otherwise provided for, begins. A careful examination of these opinions reveals that they do not support the Dock Board's position in this matter.

The Dock Board argues for December 10th, the date the 1921 Constitution was promulgated, as the day to begin and end terms. In Bry v. Woodroof, supra, the Court held the term of office under consideration to begin on the day of the date of the act. In State ex rel. Wilson v. Parker, supra, the Court held with regard to the office of public administrator that the term begins with the going into effect of the act creating the office. Each opinion relied upon by the Dock Board dealt with a different office and each decision chose a different starting point from which to calculate the term of office.

The Dock Board provisions are detailed and unique with regard to selection, nomination and removal of Board members. Judicial precedent resolving particularly the questions presented by this case cannot be found. The answers must come from applying the standard rules of interpretation directly to the statute.

The Louisiana Constitution of 1974 relegated the Dock Board provisions to the revised statutes, Title 34:1 et seq. The portion of the statute pertinent to this case is R.S. 34:1(K) which reads:

"K. Term of appointment; filling unexpired term; reappointment. A person appointed to fill a vacancy that occurred other than by expiration of a term shall serve for the unexpired portion of the term. Otherwise, each member appointed to the Board shall be appointed for a term of five years.

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422 So. 2d 247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-board-of-comrs-etc-lactapp-1982.