State Ex Rel. Saint v. Dowling

120 So. 593, 167 La. 907, 1928 La. LEXIS 2099

• Court: Supreme Court of Louisiana
• Decided: November 26, 1928
• Docket: No. 29606.
• Status: Published

Opinions

O’NIELL,’C. J.

This'is a suit to oust Dr. Oscar Dowling from the office of president of the state board of health, and to declare Dr. Joseph A. O’Hara entitled to the office. The plaintiffs are the state of Louisiana, on the relation of the Attorney General, and Dr. O’Hara, who was appointed president of the state board of health and commissioned for the term of four years, under authority of the Act 126 of 1928, p. 156. Dr. Dowling was appointed under authority of section 2 of the Act 79 of 1921, p. 108, for the term of seven years, commencing on the 30th of August, 1925, and he pleads that the Act 126 of 1928, which purports to repeal and supersede section 2 of the Act 79 of 1921, is unconstitutional. The civil district court decided in favor oi Dr. O’Hara. Dr. Dowling has appealed from the decision.

The only question to be decided is whether the Act 126 of 1928 is valid legislation or unconstitutional. If it is valid, so far as it supersedes the second section of the Act 79 of 1921, Dr. Dowling is removed from office. If the new statute is unconstitutional in that respect, the act of 1921 is yet in force, and Dr. Dowling is entitled to remain in office until the end of the term of seven years for which he was appointed, and which will expire on 'the 29th of August, 1932.

The state board of health is provided for in the eleventh section of article 6 of the Constitution, viz.:

“The Legislature shall create for the state and for each parish and municipality therein boards of health, and shall define their duties and prescribe their powers. The parish and municipal boards of health shall be subordinate to the state board of health. The state board of health shall be composed of a president, who shall be designated as state health officer, and eight members, one from each congressional • district, as at present constituted; five of which members shall be duly qualified and registered physicians; and the three others shall have such qualifications as shall be prescribed by the Legislature. The Governor shall, by and with the advice and consent of the Senate, appoint the president and members of the state board of health.”

The first ground on which the appellant contends that the Act 126 of 1928 is unconstitutional is that the statute — according to his contention — has more than one object, and is therefore violative of the sixteenth section of article 3 of the Constitution, which declares:

“Every law enacted by the Legislature shall embrace but one object, and shall have a title indicative of such object.”

The title of the Act 126 of 1928 is as follows:

“An Act

“Providing how the stats board of health shall be composed; providing for the payment of funds and revenues collected by, or for the use of and expenditure by said board to be paid into the treasury of the state and thereafter to be appropriated by the Legislature according to law; prescribing the qualifica tions of tlie members of the said state board of health; providing for the appointment of such members, their terms of office; repealing section 2 of Act No. 79 of 1921 and providing that this act shall supersede the provisions of all laws inconsistent herewith; and providing that the unconstitutionality of any provisions of this act shall not affect or impair any other part thereof.”

The first section of the act declares merely that the state board of health shall be composed of a president and eight members, one from each congressional district, and that the board shall be officially known as the Louisiana state board of health and shall have its domicile in New Orleans.

The second section declares that all fees, taxes, licenses and other funds and revenues collected by or for account or for the support of the state board of health, or to be used in any of its work, or heretofore paid to said board for any purpose, shall be paid by the party, concern, officer, board or commission collecting the same into the state treasury, and shall hereafter be appropriated by the Legislature according to law.

The third section prescribes the qualifications of the members of the board and provides that they shall be appointed by the Governor for terms of four years, except that, as to the first board, the terms of two members shall expire on the 29th of July, 1929, the terms of three shall expire on the 29th of July, 1930, and the terms of three shall expire on the 29th of July, 1931, and that the term of the president of the board shall begin on the 15th of August, 1928, and expire on the 15th of August, 1932.

The fourth section of the act declares that section 1 and sections 3 to 18, inclusive, of the Act 79 of 1921 shall not be affected, but that section 2 of the Act 79 of 1921 shall be repealed, by this act, 126 of 1928, and that all provisions of other laws inconsistent with this act shall be supez-seded by its provisions.

The fifth and last section of the act declares that, if any of the provisions of the act be unconstitutional, the unconstitutionality shall not impair or affect any other of its provisions.

Appellant’s argument, stated specifically, is that the Act 126 of 1928 has two distinct and well-defined objects, both as indicated in its title and as expressed in its text, viz.:

First. To provide for the composition or membership of the state board of health and the appointment of its members, and to prescribe their qualifications and fix their terms of office.

Second. To require that all of the funds and revenues collected by or for account of the state board of health, shall be paid into the state treasury, and thereby to increase the general revenues of the state.

It 'is argued that these two objects — the one to provide for the membership of the state board of health and the other to require its revenues to be paid into the state treasury — are not cognate or germane to each other, and that the statute has not, either as indicated in its title or expressed in its text, one main object, of which the two objects mentioned might be regarded as mere incidents, or means to an end.

A sufficient answer to the argument is that the so-called two objects — the one to provide for the membership' of the state board of health, and the other to require its funds to be paid into the state treasury — deal with the same subject-matter, namely, the state board of health, and are therefore, and to that extent, cognate objects. It is conceded in appellant’s brief that the so-called two objects, which this statute is said to have, could be included in one statute, without violating the sixteenth section of article 3 of the Constitution, if the two objects were mere incidents or subdivisions of one main object — as, for example, if the title were “An act relative to the state board of health,” or “An act to prescribe tbe powers, duties and functions of tbe state board of bealtb,” or “An act to carry into effect section 11 of article VI of tbe Constitution.” As a matter of fact, although the title of this act is not couched in that language, the object of the act is relative to the state board of health, and is to carry into effect the provisions of section 11 of article 6 of the Constitution — as far as the new statute goes ; and the title of the statute is “indicative of such object.” It is true that the title of this statute is not as artistically worded as it would be if its author had stated the one main object of the act, instead of stating merely the several means of accomplishing that object; but all that the Constitution requires in that respect is that the statute shall embrace but one object and have a title indicative of that object. The Constitution of 1913, and 1898 in article 31, and 1879 in article 29, required that the one object of a statute should “be expressed in its title.” The requirement of the new Constitution, that the title of a statute shall b.e indicative of its object, was intended, manifestly, to be a modification of the requirement of the previous Constitutions, that the object of a statute should be expressed in its title. The manifest purpose of the modification -was to give assurance that there was no necessity of expressing in detail, or even in substance in the title of a statute, all of the provisions contained in its text. The title of this statute does,' unnecessarily, go into detail in expressing the object of the statute; but the title is nevertheless indicative of the object of the law.

It is argued on behalf of the appellant that the Act 126 of 1928 shows upon its face that it has not the one main object of dealing with the state board of health in a general way, because the statute does not purport to. prescribe the duties or powers of the board, or provide for any of its functions, but merely accomplishes the two avowed objects, namely, to deprive the board of its revenues and to get rid of 'Dr. Dowling. Whether that was or was not the motive of the Legislature in enacting this law is a matter which we have no authority over. The Legislature is supreme in its law-making power, so long as it keeps within the restrictions imposed upon it by the Constitution.

Appellant’s second contention is that there is no indication in the title of the Act 126 of 1928 of the intention — or object — of providing for the appointment and fixing the term of office of the president of the state board of health. They are the provisions in the new statute which Dr. Dowling is most concerned with. The argument, specifically, is that the president of the state board of health is not a member of the board, and, therefore, that the clauses in the title of the act, “providing how the state board of health shall be composed; * * * prescribing the qualifications of the members of the said state board of health; providing for the appointment of such members, their terms of office,” etc., are not indicative of an intention — or the object — of providing for the appointment and fixing the term of office of the president of the state board of health. The answer to the argument is that the president of the state board of health is a member of the board, for the Constitution itself declares that “the state board of health shall be composed of a president, who shall be designated as state health officer, and eight members, one from each congressional district as at present constituted.” It would be more accurate perhaps to say that the board is composed of a president and eight other members; but the idea that was intended, to be conveyed was that the board should be composed of the president and one member from each of the eight congressional districts. It is not- unusual, in addressing the president and other members of a political board, to refer to them as the president and members, in stead of the president and other members. Be that as it may, when the Constitution declares that the state board of health shall be composed of a president and eight members, it makes the president one of the component members of the board; and when the title of the statute, enacted pursuant to that provision of the Constitution, declares that the object of the statute is to provide how the board shall be composed and' provide for the appointment of its members, their terms of office, etc., it is a sufficient indication of ■the object of providing for the appointment of the president, as well as of the other members of the board.

The third contention of the appellant is that the Act 126 of 1928 violates the seventeenth section of article 3 of the Constitution, and violates again the sixteenth section, by attempting to revive section 1 and sections 3 to 18 of the Act 79 of 1921, and to repeal the Act 296 of 1926, which latter act repealed and superseded sections 3, 4, 5, 11 and 13 of the Act 79 of 1921. The seventeenth section of article 3 of the Constitution declares that the ¿nly way to revive or amend a law is to reenact and publish it at length, and that no law shall be revived or amended by reference to its title. The Act 126 of 1928 does not purport to revive section 1 and sections 3 to 18 of the Act 79 of 1921, but merely declares, in the fourth section, that section 1 and sections 3 to 18, inclusive, of the Act 79 of 1921 shall not be affected by the act of 192S. It is very likely that the Legislature overlooked the fact that sections 3, 4, 5, 11 and 13 of the Act -79 of 1921 had been repealed by the Act 296 of 1926 when the act of 1928 was adopted; otherwise the Legislature would not have referred to those sections of the act of 1921 as being unaffected by the act of 1928. It is said that the Act 126 of 1928 has gutted the law on the subject of the state board of health, by repealing the Act 296 of 1926 and attempting to revive the repealed sections of the Act 79 of 1921. For the purpose of deciding this case, we are not concerned with the question whether the Act 296 of 1926 has been repealed by the Act 126 of 1928; for the act of 1926 had no reference to the appointment or term of office of the president of the state board of health, but merely amended and re-enacted&emdash;and thereby repealed&emdash;sections 3, 4, 5, 11 and 13 of the Act 79 of 1921, which sections had no reference to the appointment or term of office of the president of the state board of health.

The fourth complaint of the appellant is that, if the Act 126 of 1928 is not null, it has nullified the inspection statutes, particularly Act 199 of 191S, providing for “coal oil inspections,” Act 291 of 1924, providing for “bottling works inspections,”, and Act 228 of 1926, levying a tax oñ kerosene, and has thereby put an end to the functions of the state board of health. The second section of the Act 126 of 192Si, as we have said, requires all of the funds and revenues of the state board of health, to be paid into the state treasury. The revenues or fees which are authorized to be collected under the inspection statutes which we have mentioned are levied, not under the taxing power, but under the police power, and are supposed to cover only the costs of the inspections, and to- be appropriated and devoted to that purpose. It is contended, therefore, that if these revenues or fees are turned into the state treasury, subject to the general appropriations made by the Legislature, there will be no authority for collecting them under the police power, and that, as the fees are collectible only when the inspections are made, if no inspections are made no fees can be collected. These objections have reference not to the question of constitutionality, hut to the question of wisdom or policy of the Act of 1928&emdash;-a question for the Legislature and not for the courts to consider.

Appellant’s fifth contention is that the Act 126 of 1928 is violative of article 9 of the Constitution, in that the purpose and effect of the statute is to remove Dr. Dowling from office by a method other than the methods prescribed in that article of the Constitution. The argument is founded upon the doctrine stated in State v. Bain, 137 La. 308, 68 So. 621, and repeated in State v. Dunson, 138 La. 131, 70 So. 61, that, when the Constitution prescribes a method of removal from office, that method is exclusive, and a statute prescribing any other method is unconstitutional. The Act 126 of 1928, however, did not remove Dr. Dowling from office for any cause relating to him, but merely shortened the term of office. It is argued that the office of president of the state board of health is a constitutional ’ office, and, therefore, that the term of the office cannot be shortened by an act of the Legislature, to the prejudice of an incumbent in office at the time of the passage of the act. The office of president of the state board of health is a constitutional office in the sense only that the Constitution commands the Legislature to create the office; but, inasmuch as the Constitution did not fix the term of office, and impliedly left that authority with the Legislature, the term of office is subject to change at any session of the Legislature. 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.

In support of the argument that the Act 126 of 192S 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 mortgages 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 of 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.

Appellant’s sixth contention is that, if the Act 126 of 1928 does not violate article 9, generally, by providing an unauthorized method of removal from office, it violates the third section of that article, in so far as the statute undertakes to “address” Dr. Dowling out of office, because a removal cannot be accomplished by that process except&emdash;as declared in that section&emdash;“on the address of two-thirds of the members elected to each house of the Legislature.” That method of removal from office applies only to a removal “for any reasonable cause,” and the provisions of the Constitution on the subject are therefore not at all applicable to this case.

Appellant’s seventh and final argument is that the Act 126 of 1928 violates the thirty-fourth section of article 3 of the Constitution, which declares that the salaries of public officers, whether fixed in the Constitution or otherwise, may be changed by a two-thirds vote of the members of each house of the Legislature. In support of the argument it is said that the act of 1928 undertakes to reduce the salary of the president of the state board of health from $42,000 to $28,000 (perhaps meaning $24,000), and that the statute was adopted by a majority vote less than two-thirds of each house of the Legislature. We assume that what is meant by those figures is that the salary for each full term of office was reduced to four-sevenths of the original amount, by the shortening of the term of office from seven to four years. What is meant by the thirty-fourth section of article 3 of the Constitution is that a public officer’s salary for any given time, or rate of salary, shall not be changed except by a two-thirds vote of the Legislature. A decrease or an increase in a term of employment is never regarded as a reduction or an increase of salary. The act of 1928, therefore, does not violate the thirty-fourth section of article 3 of the Constitution.

The judgment is affirmed.