State Ex Rel. Garland v. Guillory

166 So. 94, 184 La. 329, 1935 La. LEXIS 1809

• Court: Supreme Court of Louisiana
• Decided: December 13, 1935
• Docket: No. 33722.
• Status: Published

Opinions

LAND, Justice.

Under article 7, § 31, of the Constitution of 1921, the old Thirteenth judicial district was composed of the parishes of St. Landry and Evangeline, and the old Fifteenth judicial district was composed of the parishes of Acadia, Lafayette, and Vermilion.

Lion. B. H. Pavy and Hon. R. Lee Garland were respectively the duly elected judge and district attorney of the old Thirteenth judicial district, when Act No. 3 of the Fourth Extra Session of the Legislature of 1935, rearranging the old Thirteenth and the old Fifteenth judicial districts went into effect October 1, 1935.

In section 1 of this act, it is provided that “The Parish of Evangeline shall compose the Thirteenth District, and shall have one judge.

“The Parishes of Acadia, Lafayette, St. Landry and Vermilion shall compose the Fifteenth District, and shall have three judges until' the expiration of the terms of the present judges of the district and the term of the judge transferred to the Fifteenth District, and thereafter the Fifteenth District shall have two judges.”

Hon. B. H. Pavy was the judge transferred from the old Thirteenth judicial district to the rearranged or new Fifteenth judicial district, composed of the parishes of Acadia, Lafayette, St. Landry, and Vermilion.

In section 2 of the act, it is provided “That all causes pending in the Thirteenth Judicial District Court for the Parish of St. Landry at the time this re-arrangement takes effect be 'and they are hereby transferred to the Fifteenth Judicial District Court for the Parish of St. Landry.”

In section 3 of the act it is provided that “The Governor shall appoint a Judge and a District Attorney for the re-arranged Thirteenth District, to serve until their successors are elected. The judges and district attorneys of the re-arranged Thirteenth and Fifteenth Districts shall be elected at the congressional election on the first Tuesday next following the first Monday in November, 1936, and every six years thereafter. The District Attorney of the present Thirteenth District shall be appointed as an additional assistant District Attorney of the Fifteenth District, to serve until December 31, 1936”; the compensation for his services is fixed in this section of the act; and it is provided that no successor shall be appointed.

The act became effective on October 1, 1935, and on October 3d, the Governor appointed Hon. J. Cleveland Fruge as judge, and Hon. E. Herman Guillory as district attorney for the rearranged or new Thirteenth judicial district, -composed of the parish of Evangeline. Both were duly commissioned and entered upon the discharge of the duties of his office.

Relator, Hon. R. Lee Garland, district attorney of the old Thirteenth judicial district, on October 5, 1935, filed suit against the new district attorney, under the intrusion-into-office act, section 2593 of the Revised Statutes, as amended by Act No. 102 of 1928 ánd attacked the constitutionality of Act 3 of the Fourth Extra Session of 1935 upon various grounds.

Defendant filed an exception of no cause or right of action, which clearly presented in the lower court the question of the constitutionality of the act.

The district judge held that sections 1 and 2 of the act, in so far as they rearrange the judicial districts, are constitutional, and maintained the exception of no cause or right of action, for the reason that relator was no longer a resident of the Thirteenth judicial district, as rearranged, and had no interest in the office of district attorney in that district.

The district judge, however, held that section 3 of the act was unconstitutional in so far as it provides for the appointment by the Governor of a judge and a district attorney in the reaVranged Thirteenth district, instead of by election, as provided by sections 33 and 58 of article 7 of the Constitution.

He also held that that portion of section 1 of the act in so far as it seeks to increase the number of judges in the Fifteenth district is unconstitutional, as the act was not passed by a vote of two-thirds of the members of Legislature, elected as such, in pursuance of section 34 of article 7 of the Constitution.

He also held that that portion of section 3 of the act that provides for the appointment of relator as assistant district attorney in the Fifteenth district is unconstitu tional, as such appointment was in violation of section 60 of article 7 of the Constitution.

Relator, R. Lee Garland, has appealed from the judgment of the district court, and defendant has answered the appeal, and prays that the judgment appealed from be affirmed, in so far as it holds as constitutional sections 1 and 2 of the act, and that the judgment be reversed, set aside, or amended, in so far as it holds the provisions of the act unconstitutional.

Relator attacks the constitutionality of the act on five grounds:

(1) That it attempts to remove relator from the office to which he was elected, by a simple act of the Legislature, and without cause, in violation of article 9 of the Constitution, which provides the only method for the impeachment and removal of officers such as district attorneys.

Act No. 3 of the Fourth Extra Session of 1935 is enacted by the Legislature under the authority contained in section 34 of article 7 of the present Constitution, which provides that “The Legislature may rearrange the judicial districts, and by a two-thirds vote of the membership of each house, may increase or decrease the number of judges in any district.”

It is also provided in section 40 of article 7 of the Constitution that “No judge of any court of the State, except as otherwise provided in this Constitution, shall be. affected in his term of office, salary, or jurisdiction as to amount, during t'he term or period for which he was elected or appointed; and any legislation so affecting any judge or court shall take effect only at the end of the term of office of the judge or judges, incumbents of the court, or courts, to which such legislation may apply at the time of its enactment.”

In State v. Dowling, 167 La. 907, 120 So. 593, 597, it is said, with the present Chief Justice as the organ of the court, that. “There is a provision in the Constitution, section 40 of article 7, which forbids the Legislature to curtail the term of office or salary of any judge in office, and declares that any legislation so affecting a judicial office shall have effect only at the end of the term of the incumbent in office at the time of the passage of the act. If the writers of the Constitution had intended to impose the same restriction upon legislation affecting the terms of office or salaries of other officers, they would not have confined the restriction to legislation affecting the terms of office and salaries of judges. In fact, no such restraint would have been imposed upon legislation affecting the terms of office or salaries of judges, if the restraint went without saying as to public officers generally.” (Italics ours.)

In other words, under the present Constitution, a judge is the only public officer whose term of office or salary cannot be curtailed or affected by an act of the Legislature during the term or period for which he was elected, “except as otherwise provided in this Constitution,” which means, of course, that a judge may also be removed from office, during his term, by impeachment, or by address out of office, or by suit to remove from office brought •in a court of competent jurisdiction, under article 9 of the present Constitution, relative to “Impeachment and Removal From -Office.”

But section 40 of article 7 of the •Constitution contains no restriction upon legislation curtailing the term of office or .affecting the salary of a district attorney, during his incumbency. His term of office -or salary may, therefore, be curtailed or affected by a simple act of the Legislature during his incumbency, without the necessity of impeachment, or address out of office, or suit to remove, as such legislation is authorized by the present Constitution.

In enacting Act No. 3 of the Fourth Extra Session of 1935, rearranging the old Thirteenth and Fifteenth judicial districts of the state, the Legislature, without doubt, was aware of the decision in the Dowling Case and acted in due accord with it.

Under the provisions of this act, the old 'Thirteenth judicial district of the state was dismembered and abolished, by organizing the parish of Evangeline into a separate -and new judicial district, known as the rearranged Thirteenth judicial district, and by incorporating the parish of St. Landry .as one of the parishes of the rearranged or new Fifteenth judicial district. As the result of such rearrangement of the old Thirteenth and Fifteenth judicial districts, •the term of the office of district attorney of relator was curtailed, or shortened, as the judicial district in which he held that office was abolished.

Section 59 of article 7 of the Constitustion provides that a district attorney “shall be an actual resident of the district and a qualified elector of the same.”

With the rearrangement of the districts, the relator, who alleges that he is a resident of St. Landry parish and a qualified elector of that parish, is no longer an actual resident of the Thirteenth judicial district, as rearranged, and therefore, in spite of the fact that he has served as district attorney in that parish, or in the district which included that parish, for approximately forty years, he now lacks the qualification of residence.

As the Constitution of the state, under section 34, specifically gives the Legislature the right to rearrange the judicial districts, and with no prohibition as to the time the rearrangement might be made, the Legislature was clearly acting within the authority granted by the Constitution, in enacting Act No. 3 of the Fourth Extra Session of 1935, providing for the rearrangement of the old Thirteenth and Fifteenth judicial districts in the state. If relator is no longer a resident of the Thirteenth district, as rearranged, he cannot serve as district attorney of that district, and, in effect, is legislated out of office. Const. 1921, § 13, art. 8.

At the time relator was elected and qualified as district attorney of the old Thirteenth judicial district, section 13 of article 8, as to his eligibility, was a part of the Constitution of this state, and relator accepted the office, subject to the provisions of that section of the Constitution, as well as subject to the provisions of section 34 of article 7, providing for the rear rangement by the (Legislature of the judicial districts of the state.

Numerous cases hold that by abolition of the district the incumbent loses his office. In re Petitioner, Hinkle (1884) 31 Kan. 712, 3 P. 531; In re Wood (1886) 34 Kan. 645, 9 P. 758; Aikman v. Edwards (1895) 55 Kan. 751, 42 P. 366, 30 L.R.A. 149; State ex rel. Robinson v. Lindsay (1899) 103 Tenn. 625, 53 S.W. 950; State ex rel. Harris v. Hamby (1904) 114 Tenn. 361, 84 S.W. 622.

In State v. Dowling, 167 La. 907, page 920, 120 So. 593, 597, it is said:

“In support of the argument that the Act 126 of 1928 violates Article 9 of the Constitution appellant cites four cases, namely, State ex rel. Holmes v. Wiltz, 11 La.Ann. 439, State ex rel. Downes v. Towne, 21 La.Ann. 490, State v. Bain, 137 La. 308, 68 So. 621, and State v. Dunson, 138 La. 131, 70 So. 61; but we do not find the rulings in these cases appropriate to the question presented here. In State ex rel. Holmes v. Wiltz, it is true, the court said that a person holding an existing office, under a fixed tenure, could not be removed, or his regular term of service abridged, by an ordinary act of legislation other than an act abolishing the office. But the only question which the court had in mind, or was called upon to decide, or did decide, was whether an act of the Legislature, entitled ‘Act creating a recorder of mortgagors for the Parish of Orleans/’ approved March 14, 1855, p. 321, had repealed the original act creating the same office, approved March 20, 1813, p. 136. The court ruled that the act of 1813 was not repealed by the act of 1855 and therefore that the office was not thereby made vacant. The important point in the case cited was that, in that case, the new statute on the subject did not purport to shorten the term of office, as the court observed, on page 442 of the report, viz: ‘The same term and the same mode of appointment have been redeclared in the Act of March 14, 1855, and still no change is made in the office itself or its duties.’ In the case of State ex rel. Downes v. Towne, the ruling was that an officer whose term of office was ‘fixed in the Constitution’ could not be legislated out o-f office. We quote from page 492 of the report (the italics being ours), viz: ‘It was not in the power of the Legislature‘to legislate him out of office or to diminish or increase his term of office as fixed in the Constitution.’ In State v. Bain and in State v. Dunson, the ruling was that, in so far as a statute which declared a certain act on the part of a public official to be a misdemeanor declared also that a conviction for the offense should operate as a removal from office, the statute was unconstitutional, because the Constitution prescribed a civil process for removal from office, and impliedly forbade any other process. The Act 126 of 1928 does not provide a proceeding for removal from office, and is not violative of article 9 of the Constitution.”

Nor does Act No. 3 of the Fourth Extra Session of 1935 provide a proceeding for removal from office, by impeachment, suit, address, or otherwise, in accordance with the provisions of article 9 of the present Constitution. This identical question was settled in the case of State v. Dowling, 167 La. 907, 120 So. 593, in which it was held that the provision of Act 126 of 1928, shortening the term of the office of president of the state board of health, did not constitute a removal of such officer by a method other than that prescribed by article 9 of the Constitution so as to render the statute unconstitutional.

It is true that the case of State ex rel. Downes v. Towne, 21 La.Ann. 490, cited in the Dowling Case, holds that where the term of a public officer is "fixed in the constitution■ " he cannot be legislated out of office, or his term of office diminished or increased.

That case, however, was decided in the year 1869 under the-provisions of the Constitution o.f 1868. Article 83 of that Constitution provides that “The general assembly shall divide the State into judicial districts, which shall remain unchanged for four years, and for each district court one judge, learned in the law, shall be elected for each district by a plurality of the qualified electors thereof,” etc.

Article 84 of the same Constitution also provides that “Each of said judges shall receive a salary to be fixed by law, which shall not be increased or diminished during his term of office. * * * The judges of the district courts shall hold their office for the term of four years."

The Constitution of 1868 does not contain any provision that “The Legislature may rearrange the judicial districts, and by a two-thirds vote of the membership of each house, may increase or decrease the number, of judges in any district,” as contained in section 34 of article 7 of the present Constitution; nor does the Constitution of 1868 provide that “No judge of any court of the State, except as otherwise provided in this Constitution, shall be affected in his term of office, salary, or jurisdiction as to amount, during the term- or period for which he was elected or appointed,” as provided in section 40 of article 7 of the present Constitution.

As this latter provision was construed in State v. Dowling as prohibiting, during the term of office, the curtailing of the term of a judge, but not of any other public officer, the case of State ex rel. Downes v. Towne, cited in the Dowling Case, ceases to be of any value as a precedent or authority, because of the difference in the provisions of the Constitution of 1868 and the present Constitution of 1921.

The logic of the construction placed upon section 40 of article 7 in the Dowling Case is unanswerable. If the framers of the Constitution had intended to protect the term and salary of a district attorney, during his incumbency, against curtailment, in the rearrangement by the Legislature of the judicial districts of the state, undoubtedly, the district attorney, as well as the judge, would have been included in that section and article of the present Constitution. The omission of that officer, from that section and article, can lead to but one reasonable and sound conclusion, and that is, that such was not the intention of the framers of the present organic law of the state.

This attack upon the constitutionality of the act is without merit.

(2) That the act is unconstitutional because, by a simple act of the Legislature, it attempts to add a new district judge and a new district attorney for the proposed new Thirteenth judicial district composed of the parish of Evangeline alone, effective at once, and by appointment of the Governor instead of by election, which violates sections 33 and 58 of article 7 of the Constitution.

Section 33 of article 7 of the Constitution provides that “District judges shall be elected by a plurality of the qualified voters of their respective districts, in which they shall have been actual residents for two years next preceding their election. They shall be learned in the law, and shall have practiced law in this State five years previous to their election. District judges under this Constitution shall be elected on the 'Tuesday after the First Monday in November, 1924, and every six years thereafter.”

Section 34 of article 7 of the Constitution, however, provides that “The Legislature may rearrange the judicial districts, and by a two-thirds vote of the membership of each house, may increase or decrease the number of judges in any district.”

The Legislature cannot increase the number of judges in any district, without creating new judges; and it is specifically provided in section 11 of article 5 of the Constitution “that the Legislature may provide the mode of filling all offices created by it.”

The Legislature, under section 34 of article 7 of the Constitution, in rearranging judicial districts, may likewise decrease the number of judges, which necessarily includes the authority in the Legislature to remove judges which may not be deemed necessary.

It thus appears that section 34 of article 7 of the Constitution is a special provision or law pertaining solely to the rearrangement of judicial districts in the future' and the increase or decrease of the number of judges, in effecting such rearrangement, as the public interests may require.

On the other hand, section 33 of article 7 relative to the election of judges is a general provision or law, applicable to judges created at the time of the adoption of the Constitution in the year 1921.

The framers of the Constitution in that year provided for twenty-six judicial districts and for the number of judges then deemed necessary, and for the election of such judges. These are all general provisions or laws, intended to meet the need for judges at the date of the adoption of the Constitution in 1921.

The growth of the state in the future, the increase of its population and business, a possible increase of litigation might render it desirable, and it might become important to the public interests that the number of judges should be increased. On the other hand, the changing condition of a retrograding state in the amount of population, or even a decrease of litigation, might require a decrease in the number of courts. Such was the reason upon which section 34 of article 7 rests, and the purposes which the framers of' the Constitution- intended it should accomplish. The ever changing state of human affairs imposes upon the Legislature the duty of adopting its legislation to the various phases which the condition of the country and the wants of the community may from time to time assume.

Section 34 of article 7 of the Constitution, as well as section 11 of article 5 of the Constitution, are express and special provisions or laws.

Section 34 of article 7 of the Constitution specifically confers upon the Legislature the constitutional authority to "increase” or create new judges, in the rearrangement of judicial districts of the state; and section 11 of article 5 of the Constitution specifically confers upon the Legislature the constitutional authority to “provide the mode of filling all offices created by it.”

It follows, necessarily, that the Legislature had full constitutional authority to provide that the new judge created by it in the new Thirteenth district should be appointed by the Governor.

Section 33 of article 7 of the Constitution providing for the election of judges is a general provision or law and cannot apply to the present case, without making a dead letter of section 34 of article 7 and of section 11 of article 5 of the Constitution, express and special provisions or laws.

Article 9 of the Constitution, relative to the “Impeachment and Removal From Office” is likewise a general provision or law, and is in conflict or inconsistent with the constitutional authority granted by section 34 of article 7 to the Legislature to “decrease,” or remove judges, in the rearrangement of the judicial districts of the state.

The identical issues involved in this case arose in the case of State ex rel. T. Wharton Collens v. Charles Clinton, Auditor, 26 La.Ann. 406, 408. There were six district courts in the parish of Orleans when the Constitution of 1868 went into effect. Relator was elected judge of the Seventh district court of New Orleans on November 4, 1872, and continued to discharge the duties of the office until the going into effect of an act of Legislature passed on December 14, 1872, Act No. 2 of Acts 1872, Ex.Sess., p. 38, abolishing the Seventh district court of New Orleans. The relator specifically charged that the act of the Legislature was unconstitutional, void, and without effect, because it violated certain general provisions of the Constitution of 1868, which provided in article 83 that the General Assembly may establish in the parish of Orleans as many district courts as the public interest may require, and until otherwise provided, there shall be seven district courts for the parish of Orleans.

It is said in part in State ex rel. T. Wharton Collens v. Charles Clinton, Auditor: “Article 83 announces that the General Assembly may establish as many district courts as the public interests may re quire. * * * If it should decide that the public interests require more than seven district courts in New Orleans it may establish more. If it should decide that the public interests require a smaller number of district courts than seven, it has equally the right to establish a smaller number. * * *

“We are told that this article of the constitution must be considered and interpreted in connection with the other articles of the constitution on the same subject matter, the articles 81, 84, 97, 110, 122 and 158. Granted. But let us not overlook an important feature that is presented in this discussion, and that is, that article 83, so far as it relates to the organization of the district courts of New Orleans, is express and special. It is a well recognized rule that general legislation does not control special legislation on the same subject matter. All those articles that treat of district courts, tenure of office, removal of judges, etc., as a general subject must be subordinated to article 83, so far as their provisions are in conflict or inconsistent with the special provisions of article 83 in relation to the district courts of New Orleans. By this rule we harmonize and give effect to each and every one of the articles we have just enumerated, instead of becoming bewildered in a labyrinth of difficulties, vainly endeavoring to limit and circumscribe the special provisions of article 83, by giving a controlling power over them to the general provisions of the other articles.”

To interpret the Constitution of 1921 otherwise, would strike out and eliminate from it every special provision therein contained, because of conflict or inconsistency with general provisions on the same subject-matter.

The Legislature having the Specific constitutional authority conferred upon it by section 34 of article 7 of the Constitution to “increase,” or create new judges, in the rearrangement of the old Thirteenth and Fifteenth judicial districts, necessarily had plenary power to create a new judge for the rearranged Thirteenth judicial district, as well as a new judge for the rearranged Fifteenth judicial district, and to require that these judges be appointed by the Governor under the authority of section 11 of article 5, conferring upon the Legislature the constitutional right to “provide the mode of filling all offices created by it.”

This attack upon the act is without merit.

(3) That the act creates an additional assistant district attorney for the Fifteenth judicial district as rearranged by the act, and names the assistant, in violation of section 60 of article 7 of the Constitution.

We will discuss this attack upon the constitutionality of Act No. 3 of the Fourth Extra Session of 1935, after disposing of the two additional grounds of unconstitutionality raised by amended and supplemental petition, which are as follows: (1) 4th. Because it deprives relator of the office of district attorney, to which he was elected; and of emoluments of said office, without due process of law, in violation of the Fourteenth Amendment to the Constitution of the United States, and of section 2, article 1 of the Constitution of this state; and, (2) 5th. Because the act was not passed by a vote of two-thirds of the membership of the Legislature, elected as such, and in pursuance of sections 8 and 9 of article 3 of the Constitution of this state.

As to the attack upon the constitutionality of the Act (1) 4th, as to deprivation of office and emoluments, being in contravention of the Fourteenth Amendment to the Federal Constitution and also in violation of section 2, article 1 of the State Constitution, it has been repeatedly held by the Supreme Court of the United States and by various state courts that the nature of the relation of a public officer to the public is inconsistent with either a property or contract right. Taylor v. Beckham, 178 U.S. 548, 20 S.Ct. 890, 1009, 44 L.Ed. 1187; Crenshaw v. United States, 134 U.S. 99, 104, 10 S.Ct. 431, 33 L.Ed. 825, 827; Newton v. Mahoning County, 100 U.S. 548, 559, 25 L.Ed. 710; Smith v. Mayor, etc., of New York, 37 N.Y. 518, 520; State ex rel. Attorney Gen. v. Hawkins, 44 Ohio St. 98, 5 N.E. 228; 22 R.C.L.,. § 12, p. 44, “Property” 22 R.C.L., § 9, p. 377, “Public Officers” 46 C.J. 932, § 28, “Constitutional Provisions.”

There is no merit in this attack upon the constitutionality of the act.

(2) 5th. “Because it was not passed by a vote of two-thirds of the membership of the Legislature of Louisiana, elected as such in pursuance of sections 8 and 9 of article 3 of the Constitution of this State.”

“An exception of no cause of action admits the well pleaded facts, but not the conclusions of law contained in the petition.”

Such have been the uniform decisions of this court from the year 1853 down to the present time. Parish v. Municipality. No. 2 (1853) 8 La.Ann. 145; State v. Hackley, Hume & Joyce (1909) 124 La. 854, 50 So. 772; First Natchez Bank v. Malarcher-Damare Co. (1914) 135 La. 295, 65 So. 270; Kirkpatrick v. Monroe (1925) 157 La. 645, 102 So. 822; Mahoney v. Perkins (1928) 166 La. 730, 117 So. 810; and other cases.

The question as to whether the Constitution requires a certain vote for the passage of an act is not a question of fact at all, but is purely a question of law, and erroneous conclusions of law are not admitted by an exception of no cause or right of action, and may be questioned by a defendant -pleading such exception.

Section 34 of article 7 of the Constitution of 1921 provides that “The Legislature may rearrange the judicial districts, and by a two-thirds vote of the membership of each house, may increase or decrease the number of judges in any district.” (Italics ours.)

In Warnock v. City of Lafayette, 4 La. Ann. 419, it was held that “The power of removing certain municipal officers for negligence or malfeasance, and of declaring their offices vacant and ordering a new election, conferred upon the City Council of Lafayette by sec. 11 of the stat. of 29 April, 1846, to be exercised ‘by a vote of two thirds of that body,’ must be construed as meaning two thirds of that body as legally constituted by the presence of a quorum, and not two thirds of the whole number of members composing the council.”

The council in that case was composed of ten members, nine of whom were present, and . the votes of six members were held to be sufficient. The 16th section of the act provides that the mayor, or in his absence or inability to act, the president, and a majority of the members elect of said council, shall form a quorum to do business.

The authorities on the question are reviewed at length by the late Wm. A. Taft, then Solicitor General of the United States, in excerpts from his brief in 36 L.Ed. 322, where he cites the Warnock Case, as supporting his contention that two-thirds of each house means two-thirds of a quorum.

To illustrate: The Louisiana House of Representatives consists of one hundred members; a majority of fifty-one members forms a quorum to transact business; and a bill, in order to pass, must be voted for by a majority of the members elected to each House. Const. 1921, art. 3, §§ 5, 19, 24.

The Louisiana Senate consists of thirty-' nine senators. Const. 1921, art. 3, sec. 4, a quorum consisting of twenty members.

Applying the rule in the Warnock Case, a vote of fifty-two members, or two-thirds qf seventy-eight members present and voting, would constitute a two-thirds vote of “the membership of the House”; and a vote of twenty-two members, or two-thirds of thirty-three members present and voting, would constitute a two-thirds vote of “the membership of the Senate” while a vote of two-thirds of the members elected to the House would require sixty-seven votes; and a vote of two-thirds of the members elected to the Senate would require twenty-six votes.

It is clear, therefore, that a “two-thirds vote of the membership of each house,” as required by section 34 of article 7 of the Constitution, means two-thirds of a quorum of each House.

If the framers of the Constitution of 1921 had intended that acts passed in pursuance of section 34 of article 7 of that instrument should receive sixty-seven votes in the House and twenty-six votes in the Senate, they would have, undoubtedly, required a two-thirds vote of the members elected to each House, as is done in the case of amendments to the Constitution (art. 21) ; in the case of the passage of a bill on reconsideration after the Governor has vetoed it (section IS, art. 5); in the case of creation of new institutions (section 14, art. 4) ; in the case of impeachment of public officers (section 2, art. 9); and in case of address out of office (section 3, art. 9).

It therefore appears that in all cases where the Constitution requires the votes of two-thirds of the members elected to each House, the fundamental law has left the matter free of doubt, by declaring, in no uncertain terms, that the votes of two- thirds .of the members elected to each House are required.

In United States v. Ballin, 144 U.S. 1, 12 S.Ct. 507, 36 L.Ed. 321, an Act of Congress was sustained as having received the votes of a majority of the members of Congress, when it received a majority of the votes of the quorum present.

The rule is thus stated in Cooley’s Constitutional Limitations, vol. 1, p. 291: “For the vote required in the passage of any particular law the reader is referred to the Constitution of his state. A simple majority of a quorum is sufficient, unless the Constitution establishes some other rule; and where, by the Constitution, a two-thirds or three-fourths vote is made essential to the passage of any particular class of bills, two-thirds or three-fourths vote of a quorum will be understood, unless the terms employed clearly indicate that this proportion of all the members, or of all those elected, is intended. Southworth v. Palmyra & Jackson R. Co., 2 Mich. 287; State v. McBride, 4 Mo. 303, 29 Am.Dec. 636; Rushville Gas Co. v. Rushville, 121 Ind. 206, 23 N.E. 72, 6 L.R.A. 315, 16 Am.St.Rep. 388; State v. Missouri, etc., R. Co., 96 Kan. 609, 152 P. 777, Ann.Cas. 1917A, 612; Osburn v. Staley, 5 W.Va. 85, 13 Am.Rep. 640.”

The allegation is that the bill was not passed by a vote of two-thirds of the membership of the Legislature, elected as such, and in pursuance of sections 8 and 9 of article 3 of the Constitution of this state. This plainly is not an allegation of fact that the bill was not passed by a vote of two-thirds of "the membership of each house,” as required by section 34 of article 7 of the Constitution, but is purely an allegation that the bill was not passed by the votes of two-thirds of the members' elected to each House of the Legislature.

The evident purpose of the framers of the Constitution in requiring, in section 34 of article 7, that bills be passed by “a two-thirds vote of the membership of each house,” or a quorum, was to facilitate legislation to protect the public interests,, in rearranging the judicial districts of the state, and in increasing or decreasing the-number of judges, which could not be accomplished as readily, if a two-thirds vote-of the members elected to each House was-required.

It is apparent that such legislation is-of a character to provoke strong opposition from interested persons, adversely affected, and their friends, and might be-delayed, jeopardized, and even defeated, if a two-thirds vote of all the members- elected to each House should be required for the passage of a bill.

There is no merit in this attack upon the constitutionality of the act.

In our opinion Act 3 of the Fourth Extra Session of 1935 is constitutional, with the single exception that it is provided in section 3 of the act that “The District Attorney of the present Thirteenth District shall be appointed as an additional assistant District Attorney of the Fifteenth District, to serve until December 31, 1936,” etc.

It is provided by section 60 of article 7 of the Constitution that “In each judicial district, the Legislature shall have the power to create and provide one or more assistant district attorneys, said assistant district attorney to be selected and appointed by the district attorney of said judicial district, subject to removal at his discretion, and commissioned by the Governor.” (Italics ours.)

It is true that it is the duty of the Governor to commission an assistant district attorney, but the selection and appointment of such assistant must first be made by the district attorney of the district.

If section 3 of the act had merely provided for an assistant district attorney to be appointed in the present Thirteenth district, leaving his selection and appointment to the district attorney of that' district, it would have been constitutional as to such provision.

However, “Nothing is better settled than that the unconstitutionality of part of a statute does not necessarily invalidate the whole. The same statute * * * may contain unconstitutional provisions, and may contain other salutary and useful provisions not obnoxious to any constitutional exception.” Moore v. New Orleans, 32 La.Ann. 726; Parish of St. Landry ex rel. Fontenot v. Stout, 32 La.Ann. 1278, 1279; State ex rel. Woodward v. Chapman, 35 La.Ann. 75, 76; Watson v. McGrath, 111 La. 1097, 1098, 36 So. 204; State ex rel. v. Isaacson, 32 La.Ann. 1306.

As the appointment of relator as assistant district attorney is the last clause in section 3 of the act, and does not affect in any way the remaining provisions in that section, this provision may be stricken out, without affecting the constitutionality of the act, and the remaining provisions must be given full force and effect.

It is to be observed that the act has sedulously protected the terms, salaries, and jurisdiction as to amount of “the present judges of the district and the term of the judge transferred to the Fifteenth District,” the Honorable B. H. Pavy, during their respective incumbencies, as required by section 40 of article 7 of the present Constitution.

Section 58 of article 7 of the Constitution, under which relator was elected, providing that a district attorney shall be elected in the judicial district at the same time and for the same term as provided herein for district judges, is a general provision of the Constitution, and must yield to the special provision, section 34 of article 7, conferring authority upon the Legislature to rearrange the judicial districts of the state. State ex rel. T. Wharton Collens v. Charles Clinton, Auditor, 26 La. Ann. 406.

In that case, it is said in part: “The relator in this case, it appears, was elected to the office of district judge of the Seventh District Court of New Orleans at the general election in November, 1872. The State Constitution of 1868, containing the provisions in regard to the district courts of New Orleans which we have had under review, was then, as it is now, the paramount law of Louisiana. The abolishment of the court over which he presided was a legislative act, which the General Assembly of Louisiana had the constitutional power and right to perform. That act was not an ex post facto law. There was no contract or obligation violated by it. It was simply the exercise of a power and discretion with which the General Assembly was clothed before and at the time the relator came into office. Subject to the exercise of this power he sought and obtained the office which he filled. He has no just ground therefore to set up a violation of his .constitutional rights. When the law was enacted which dispensed with the Seventh District Court of New Orleans, he,ceased to be the judge of that court, which, when the law abolishing it was promulgated, became a thing of the past. He was no longer authorized to exercise the functions of a judge. He was no longer called upon to discharge .the duties of a district judge. His claim for the salary which appertained to the office as long as it existed, is a just claim. His demand for salary after the office became extinct is not one that can be recognized. * * *

“In the present case the act of the Legislature of fourteenth December, 1872, operates adversely to the interests of an able and upright judge; but no exception can on that account be taken to the law itself. Private advantage and private interests must yield to public advantage and public interests. We must give laws their proper force how much soever in isolated cases their operation may be opposed to individual interests.” (Italics ours.)

What is said in that case applies with equal force to the case before us.

The Legislature is clothed with plenary constitutional power to rearrange judicial districts. It may, in its discretion, abolish an existing district, as it has done in the present case. The judicial district is the district in which a district attorney is elected, and if that district is abolished by the Legislature, in the rearrangement of judicial districts, he is legislated out of office the moment the act takes effect, which was on October 1, 1935, in this case.

There is no provision in the Constitution protecting a.district attorney against curtailment of his term, or reduction of his salary, during his incumbency.

The office of district attorney of the Thirteenth district as rearranged is a new office, which relator has never held, and is ineligible to hold, as he is not a resident of that district. Hence, relator is without right or interest to attack the constitutionality of the appointment of defendant as district attorney of the new district, and to proceed against him in this suit under section 2593 of the Revised Statutes, as amended by Act No. 102 of 1928, the intrusion into office act.

Mr. Justice Fenner, in speaking of the State Constitution as the paramount law, unless in conflict with the Federal Constitution, said in State ex rel. Folsom Bros. v. Mayor, etc., of City of New Orleans, 32 La.Ann. 709, 714, 715: “Its provisions may control, with plenary power, all private and social rights, and all existing laws and institutions, and may even violate the most fundamental rules of justice; provided, only, they do not conflict with the provisions of the Constitution of the United States, which, with regard to the subjects covered by them, and to those subjects alone, form the paramount law of the land. No court has the right to question the validity of any provision of a State Constitution, however unwise, impolitic, or even unjust it may be, upon any other ground whatever than that it violates the Constitution of the United States.

“Cooley on Constitutional Limitations, p. 34.”

It is therefore ordered that the judgment appealed from be annulled and reversed.

It is now ordered that Act 3 of the Fourth Extra Session of the Legislature of this state of the year 1935 be and is hereby declared legal, constitutional, and valid in all of its parts, except as to the following provision contained in section 3 of said act: “The District Attorney of the present Thirteenth District shall be appointed as an additional assistant District Attorney of the Fifteenth District, to serve until December 31, 1936, and shall receive as compensation for his services, in addition to the annual salary paid by the State, as provided by Article VII, Section 62 of the Constitution, an additional salary of Three Thousand Two Hundred Fifty and No/100 ($3,250.00) Dollars per annum, payable monthly, to be paid pro rata by the police juries of the parishes of said rearranged Fifteenth District, their pro rata to be determined by the assessed valuation of each preceding year. No successor shall be appointed to said additional assistant.” This provision is hereby declared to be unconstitutional, null, and void.

It is further ordered that relator, R. Lee Garland, pay the costs of this court and of the district court.

O’NIELL, C. J., is of the opinion that Act No. 3 of the Third Extraordinary Session of 1935 is entirely unconstitutional. ROGERS, J., dissents from the ruling that Act No. 3 of the Third Extraordinary Session of 1935 is constitutional. ODOM, J., dissents, being of the opinion that Act 3 of the Third Extraordinary-Session of 1935 is unconstitutional.