Opinion
No. 36592.
March 8, 1943. On Rehearing July 13, 1943.
Appeal from Twenty First Judicial District Court, Parish of Tangipahoa; Allen B. Pierson, Judge.
Suit by Bolivar E. Kemp, Jr., District Attorney, Twenty-first Judicial District Court, against Eugene Stanley, Attorney General, to enjoin the defendant from superseding the district attorney in criminal proceedings pending in the Parish of Tangipahoa, and to enjoin defendant from superseding the district attorney as legal advisor to the Grand Jury of that parish in the investigation of complaints regarding public institutions. From an adverse judgment, the Attorney General appeals.
Affirmed.
Eugene Stanley, Atty. Gen., W.C. Perrault, Asst. Atty. Gen., and R.H. Lee, Sp. Asst. Atty. Gen., for appellant.
L.H. Perez, Dist. Atty., of New Orleans, and Bolivar E. Kemp, Jr., of Amite, for appellee.
This is an appeal from a judgment permanently enjoining the Attorney General from superseding the District Attorney of the 21st. Judicial District in three cases against the Supervisor of Public Accounts and others, pending in the Parish of Tangipahoa, charging them with conspiracy to destroy public records; with destroying public records, and with slandering the Sheriff of Tangipahoa Parish; and enjoining the Attorney General from superseding the District Attorney as legal advisor to the grand jury of that Parish in the investigation of complaints regarding public institutions and particularly audits of and regarding the offices of Sheriff, Clerk of Court, Police Jury, School Board, Assessor, Southeastern Louisiana College, Southeast Louisiana Experiment Station, Florida Parishes Hospital, Office of Louisiana Milk Commission, Camp Moore Cemetery, Louisiana Conservation Station and the Louisiana Highway Commission insofar as they pertain to Tangipahoa Parish.
It appears that on July 18, 1941, the Sheriff of Tangipahoa Parish obtained a temporary restraining order prohibiting the Supervisor of Public Funds and auditors from his office from making any further audits of the Sheriff's Office. It was claimed that auditors from the office of the Supervisor of Public Funds had withdrawn certain records from the Sheriff's Office which had disappeared or had been destroyed. Thereafter, upon trial of a rule, a preliminary injunction was issued. On July 19, 1941, the Sheriff preferred criminal charges against the Supervisor of Public Funds and his auditors, accusing them of destroying public records and of conspiring to destroy public records, and against the Supervisor of Public Funds, individually, charging him with slander growing out of a statement published in the newspapers wherein it is claimed the Sheriff was accused of embezzlement. On September 15, 1941, the Attorney General notified the District Attorney that he was superseding him in the charges pending against the Supervisor of Public Funds and others. On September 17, 1941, the Attorney General filed twelve informations against the Sheriff in the Parish of Tangipahoa, charging him with embezzlement of public funds, and instituted a civil suit to recover a certain amount alleged to have been misappropriated. A grand jury was empanelled in Tangipahoa Parish on September 22, 1941. On September 23, 1941, the grand jury issued subpoenas duces tecum to the Supervisor of Public Funds and the Attorney General ordering them to appear and produce all audits in their possession covering the public offices, boards and institutions of the Parish. Thereafter, the Attorney General notified the District Attorney that he was superseding him as legal advisor to the grand jury in all of the matters under investigation relative to the offices, boards and institutions and designating one of his assistants as legal advisor to the grand jury in such investigation. On September 24, 1941, the Attorney General appeared before the grand jury with copies of the audits that had been furnished his office and notified the grand jury that he had superseded the District Attorney in the investigation of the public offices, boards and institutions of the Parish. On the same day, he notified the court, which was in session, of the supersession. Immediately thereafter, the grand jury filed in open court a written document stating that it was their unanimous recommendation and suggestion that the Attorney General was arbitrarily abusing the powers vested in him in superseding the District Attorney. It was stated therein that the Attorney General having previously superseded the District Attorney in the charges against the Supervisor of Public Accounts and others informed the grand jury that he was further superseding the District Attorney in the investigation of the offices, boards and institutions of the parish; that the grand jury, after discussion, found that no reason was given for the supersession, no charges of incompetence, failure, refusal or neglect of duty on the part of the District Attorney had been made; that it appeared to them that no interest of the State could be served by the supersession; and that there was no justification for the supersession. The grand jury stated in this instrument that they refused to be advised by the Attorney General in the matters under investigation and suggested to the court that the District Attorney be recognized as their legal advisor.
On September 29, 1941, the Attorney General filed a motion in court seeking to have the grand jury accept him as its legal advisor in the investigations. On the same day, the District Attorney obtained a temporary restraining order prohibiting the Attorney General from interfering with him in the cases against the Supervisor of Public Funds and others and the other matters under investigation by the grand jury. The court denied the Attorney General's motion. A rule for an injunction was obtained, in connection with a temporary restraining order, returnable on October 7, 1941, which was continued on October 7 and refixed for October 14. The Attorney General filed exceptions to the jurisdiction ratione materiae of the court and of no right and no cause of action. An answer was filed to the rule reserving the rights under the exceptions. The district judge recused himself on the ground that he was a brother-in-law of the District Attorney and appointed Allen B. Pierson, Esq., an attorney, as Judge ad hoc to try the case. The trial of the rule was completed on November 10, 1941. On that date, the entire matter was submitted on its merits with briefs to be filed within ten days after the filing of the transcript. On January 30, 1942, the lower court gave judgment permanently enjoining the Attorney General from superseding the Distric Attorney in the matters involved. The lower court refused to grant a suspensive appeal from the judgment. On application to this Court, a suspensive appeal was granted. The matter is now submitted for our determination.
The written reasons handed down by the trial judge show that the judgment of the lower court was predicated on the ground that the Attorney General had arbitrarily abused the discretion vested in him when he attempted to supersede the District Attorney.
The Attorney General contends that the judgment of the lower court is erroneous for the reason that he, the Attorney General, has the power, when he deems it necessary for the protection of the rights and interests of the State, to supersede the District Attorney under the provisions of Section 56 of Article VII of the Constitution of 1921 and Act No. 24 of the 1st E.S. of 1934, amending Code Cr.Proc. arts. 17, 156, and that the exercise of his discretion, in respect thereto, cannot be questioned or inquired into by the courts.
The District Attorney takes the position that Act No. 24 of the 1st E.S. of 1934 is violative of various articles of the State and Federal Constitutions. He contends in the alternative that if the Act is held constitutional, then in that event the Attorney General is without authority to arbitrarily supersede him without cause when the interests of the State do not require it.
There is no evidence in the record going to show that the District Attorney has failed, refused or neglected to perform any duty with respect to the pending charges or the matters under investigation before the grand jury. In fact, it is conceded in the Attorney General's brief as well as in the argument advanced in his behalf that no contention is made herein that the District Attorney has in any way refused, failed or neglected to perform his duties.
Under the provisions of Section 56 of Article VII of the Constitution of 1921, the Attorney General and his assistants have the power "to institute and prosecute or to intervene in any and all suits or other proceedings, civil or criminal, as they may deem necessary for the assertion or protection of the rights and interests of the State", and they have supervision over the several District Attorneys throughout the State.
Undoubtedly, under this provision of the Constitution, the Attorney General is vested with discretionary power to intervene for the assertion or protection of the rights and interests of the State. However, there is nothing to indicate that the framers of the Constitution intended to prohibit the courts from inquiring into an arbitrary abuse of this discretion.
It is not disputed that the District Attorney, in addition to being legal advisor of the grand jury, has entire charge and control over criminal prosecutions subject to the supervision of the Attorney General and the right of the Attorney General to intervene in proceedings when the interests of the State require it. There is nothing in this record to show that the Attorney General ever exercised his supervision over the District Attorney or that the District Attorney has ever failed in any way or refused to comply with any instructions given him by the Attorney General.
We are not presented in this case with any question of the District Attorney's refusing to recognize the supervision of the Attorney General over him. In fact, the record shows that the Attorney General is attempting to supersede the District Attorney and take over the prosecution of the charges and supplant the District Attorney as advisor to the grand jury.
The provision in Act No. 24 of the 1st E.S. of 1934 to the effect that the courts cannot inquire into the exercise of the discretion vested in the Attorney General in superseding the District Attorney is clearly violative of Section 56 of Article VII of the Constitution. It goes beyond the powers granted to the Attorney General by the Constitution. Any legislation within the limits of this constitutional provision would be valid, but legislation beyond the limitations fixed in this constitutional provision must necessarily be stricken down.
Since we have arrived at the conclusion that Act No. 24 of the 1st E.S. of 1934 is unconstitutional insofar as it attempts to prohibit the courts from inquiring into the exercise of the discretion vested in the Attorney General, it leads us to the question of whether or not the Attorney General has arbitrarily abused the discretion vested in him in attempting to supersede the District Attorney.
There is no evidence in the record going to show that the District Attorney has failed or neglected or will fail or neglect to perform the duties imposed upon him by law or that the District Attorney has in any manner failed or will fail to assert and protect the rights and interests of the State. Under such circumstances there would be no necessity for the Attorney General to intervene.
We have therefore reached the conclusion that the attempted supersession of the District Attorney is arbitrary and an abuse of the discretionary power vested in the Attorney General. Having arrived at this conclusion, there is no necessity for us to consider the other contentions urged by the District Attorney.
For the reasons assigned, the judgment is affirmed at appellant's cost.
HIGGINS, J., concurs for the reasons set forth in the concurring opinion of HAMITER, J.
HAMITER, J., concurs and hands down reasons.
ODOM, J., takes no part.
O'NIELL, C.J., dissents.
On Rehearing.
The District Attorney of the Twenty-first Judicial District instituted proceedings against the Attorney-General of the State of Louisiana, to enjoin and restrain him from allegedly attempting to illegally supersede, supplant and relieve him as the District Attorney for the Parish of Tangipahoa, without any cause whatever, in three criminal cases where Jerome A. Hayes and others were indicted by the Grand Jury, and as the legal advisor of the Grand Jury of the Parish of Tangipahoa with reference to any investigations or complaints regarding any and all public institutions and offices in the Parish, and particularly all audits of and concerning the following: the office of the Sheriff, the Clerk of Court, Police Jury, School Board, the office of the Assessor, Southeastern Louisiana College, Southeastern Experiment Station, Florida Parishes Hospital, Louisiana Milk Commission, Camp Moore Cemetery, Louisiana Conservation Station, and Louisiana Highway Commission, insofar as the Parish of Tangipahoa was concerned, over the protests and objections of the District Attorney and the Grand Jury.
The petitioner alleges that the actions of the Attorney-General in attempting to supersede him were unconstitutional, illegal and arbitrary, and beyond the powers conferred upon him by Section 56 of Article VII of the Constitution of this State, the Attorney-General predicating his right to take such action upon the provisions of Act No. 24 of the First Extra Session of the Legislature of 1934, which statute is alleged to be unconstitutional, being violative of.
Section 56 of Article VII of the Constitution of the State of Louisiana, which limits the powers of the Attorney-General over district attorneys;
Section 58 et seq. of Article VII of the Constitution, which creates the office of District Attorney for each judicial district;
Section 6 of Article IX of the Constitution providing the exclusive method of removing a District Attorney from office;
Section 6 of Article I and Section 1 of Article VII of the Constitution, which provide that all courts shall have judicial powers and shall be open to every person for injury done him in his rights and that such person shall have adequate remedy by due process of law without denial thereof;
Section 2 of Article I of the Constitution and the XIV Amendment of the Constitution of the United States, which guarantee petitioner due process of law;
Section 6 of Article I of the State Constitution and Section 1 of the Federal Constitution the XIV Amendment thereof, guaranteeing the petitioner the equal protection of the law; and
Section 16 of Article III of the Constitution because the Act embraces more than one object, without the title of the act indicating all of them.
The plaintiff, in the alternative, pleaded that in the event the Court should hold Act No. 24 of the First Extra Session of 1934 constitutional, the Attorney-General could only relieve, supplant and supersede him under the act for the protection of the rights and interests of the State, and that the Attorney-General has attempted to supersede him without assigning any reason or cause whatsoever in an arbitrary and illegal way, although the petitioner was ready, willing and able to faithfully and promptly carry out the duties of his office.
The Attorney-General filed exceptions to the jurisdiction of the court ratione materiae and of no right and of no cause of action on the ground that the statute in question grants him the sole discretion to supersede, relieve and supplant a District Attorney and that his actions in that respect are not subject to review by the court under the express provisions thereof. With reservation of his exceptions, he answered, and denied the allegations of the petition charging that he acted illegally and abused his discretion.
The trial judge overruled the exceptions, and, on the merits, decided that the evidence overwhelmingly showed that the Attorney-General had manifestly and palpably abused his discretion, and granted a permanent injunction restraining the Attorney-General from superseding, supplanting and relieving the District Attorney in all of the criminal proceedings in question and as advisor of the Grand Jury. He refused to grant the defendant a suspensive appeal and upon application to this Court, an appeal was granted under the authority of Act No. 29 of 1924 and Act No. 15 of the Second Extra Session of 1934. In our original majority opinion we held that the provision in Act No. 24 of the First Extra Session of the Legislature of 1934 denying the courts the right to inquire into or question the exercise of the discretion granted the Attorney-General to supersede a District Attorney in a criminal proceeding was unconstitutional and that the Attorney-General had abused his discretion. The judgment of the district court was affirmed. Two of the justices were of the opinion that the entire part of the statute under attack was unconstitutional. One justice dissented. A rehearing was granted on the Attorney-General's application and the case was reargued and submitted with additional briefs.
Section 56 of Article VII of the Constitution of the State of Louisiana of 1921, provides:
"The Attorney General and the assistants shall be learned in the law and shall have actually resided and practiced law, as duly licensed attorneys, in the State for at least five years preceding their election and appointment. They, or one of them, shall attend to, and have charge of all legal matters in which the State has an interest, or to which the State is a party, with power and authority to institute and prosecute or to intervene in any and all suits or other proceedings, civil or criminal, as they may deem necessary for the assertion or protection of the rights and interests of the State. They shall exercise supervision over the several district attorneys throughout the State, and perform all other duties imposed by law." (Emphasis ours.)
Article 23 of the Code of Criminal Procedure, adopted by the Legislature of 1928, provides:
"The Attorney General and his assistants shall have power and authority to institute and prosecute, or to intervene in any proceeding, civil or criminal, as they may deem necessary for the assertion or protection of the rights and interests of the state; and furthermore, the Attorney General shall exercise supervision over all of the District Attorneys throughout the state and shall represent the state in criminal cases on appeal."
Act No. 24 of the First Extra Session of the Legislature of 1934, reads:
"To amend and re-enact Articles 17 and 156 of the Code of Criminal Procedure.
"Section 1. Be it enacted by the Legislature of Louisiana That Article 17 and 156 of the Code of Criminal Procedure Be and the same are hereby amended and re-enacted so as to read as follows:
"`Art. 17. Subject to the supervision of the Attorney General, as hereinafter provided, the District Attorney shall have entire charge and control of every criminal prosecution instituted or pending in any parish wherein he is district attorney, and shall determine whom, when, and how he shall prosecute; provided, that every district attorney shall have the right to employ or to accept the assistance in the conduct of any criminal case of such counsel as to him may seem fit. Provided, further, that the Attorney General shall have power to relieve, supplant and supersede the District Attorney in any criminal proceeding, when he may deem it necessary for the protection of the rights and interests of the State, with full power to institute and prosecute criminal proceedings, and the discretion of the Attorney General under this Article shall not be questioned or inquired into by any court.' (Italics ours.)
"`Art. 156. Whenever the Attorney-General or any district attorney shall be informed that a crime or misdemeanor has been committed, and that no complaint or declaration has been made before any judge or justice of the peace, it shall be their duty respectively to inquire ex officio into the fact by causing all persons they shall suppose to have some knowledge of the fact to be summoned before some judge or justice of the peace, that their depositions may be taken; provided, that the Attorney General shall have the power to intervene and to relieve, supplant and supersede the District Attorney in any such proceeding instituted by such district attorney, when the Attorney General may deem it necessary for the protection of the rights and interests of the State, and the discretion of the Attorney General under this Article shall not be questioned or inquired into by any court.' (Italics ours.)
"Section 2. That all laws or parts of law in conflict herewith are hereby repealed."
It will be observed that the Legislature, in 1928, in adopting Article 23, as a part of the Code of Criminal Procedure, did not attempt to extend the powers of the Attorney-General beyond those granted in Section 56 of Article VII of the Constitution. On the other hand when the Legislature, in 1934, adopted Act No. 24 of the First Extra Session, it enlarged the powers of the Attorney-General over District Attorneys by giving him the right to "relieve, supplant and supersede" the District Attorneys in any criminal proceeding in which he deemed it necessary for the protection of the rights and interests of the State, and, in conferring that power and discretion upon him, expressly forbid the courts from questioning or inquiring into his action. It will be noted that Section 56 of Article VII of the Constitution does not confer on the Attorney-General an unreviewable discretion. No where in that section are the words "relieve", "supplant" and "supersede" used. The words "intervene" and "supervision" are found there. These words are defined in Webster's International Dictionary, Second Edition, as follows:
"Intervene — to come in or between * * *; to interpose."
"Interpose — to intrude; to step in between parties at variance; to mediate; to intervene."
"Supervise — to oversee for direction; to superintend; to inspect with authority; * * * also, to exercise supervision over; as to supervise a * * * department; * * *"
"Supervision — Act of occupation of supervising; inspection; * * *."
"Relieve — to release from a post, station, or duty; to put another in place of, or to take the place of, * * * in the bearing of any burden, or discharge of any duty."
"Supplant — To overthrow, destroy, undermine, or force away, esp. in order to put a substitute in place of."
"Supersede — to replace; to displace, or set aside and put another in place of; to supplant, as to supersede one official with another."
The office of District Attorney is created and governed by the provisions of Sections 58, 59, 60, 61, 62, 63 and 64 of Article VII of the Constitution, but while these sections do not detail the duties and powers of the office, it clearly appears that he is to act as the State's prosecuting attorney in his district, and Section 6 of Article IX of the Constitution expressly provides that the District Attorney, as a district officer, can be removed from office only for certain specified causes in a suit before a court of competent jurisdiction.
By virtue of the constitutional amendment — Act No. 262 of 1926 — adopted in the election of November 2, 1926, the Legislature, in 1928, adopted the Code of Criminal Procedure drafted by three former district attorneys and it contains provisions relative to the powers and the duties of the Attorney-General and the District Attorney in criminal proceedings.
Article 17 of the Code provides that the District Attorney shall have entire charge and control of every criminal prosecution instituted or pending in any Parish in his district and shall determine whom, when, and how he shall prosecute, subject to the supervision of the Attorney-General.
Article 18 of the Code makes the District Attorney "the representative of the public and the legal adviser of the grand jury".
Articles 19 and 215 grant the District Attorney the right at all times, except during its deliberations to appear before the Grand Jury as its legal advisor.
Article 25 provides that the Attorney-General "shall consult with and advise the District Attorneys in all matters appertaining to the duties of their office."
Articles 327, 328, 329, 330 and 331 confer upon the District Attorney the authority to enter a nolle prosequi and place certain restrictions thereon.
In adopting Article 23 of the Code, the Legislature recognized the limitation on its authority by practically tracking Section 56 of Article VII of the Constitution, but in passing Act No. 24 of the First Extra Session of 1934, the Legislature ignored the limitation and went much further in granting the Attorney-General additional powers. Therefore, the Statute of 1934 clearly gives to the Attorney-General greater and more extensive powers than those granted to him by Section 56 of Article VII of the Constitution, above quoted.
The Attorney-General recognized the difference in the meaning of the words "intervene" and "supersede". He testified, in this case, that he only "intervened" with the District Attorney (James Burns) in St. Tammany Parish, Louisiana, but "superseded" the plaintiff as District Attorney in the instant case. In the former instance, the Attorney-General and the District Attorney acted together in the case, but in the latter the District Attorney was completely excluded from taking any part whatsoever in the matters. There is an obvious difference in a case where the District Attorney is acting under the supervision of the Attorney-General when he has intervened, or is supervising, and one where the Attorney-General has superseded and supplanted the District Attorney and put him out of the proceedings entirely. If the District Attorney has the constitutional right to remain in the criminal proceeding under the supervision of the intervening Attorney-General, then it is clear that he cannot be legally eliminated entirely therefrom. In the instant suit, the Attorney-General is not claiming that he intervened and is supervising under Section 56 of Article VII of the Constitution, but the record shows that he has attempted to supersede and supplant the District Attorney under the Act of 1934.
Analyzing the first paragraph of Section 56 of Article VII of the Constitution, it will be noted that it consists of three sentences. The first sentence does not pertain to nor have any bearing on the issues before us. The second one places the Attorney-General and his assistants in charge of all legal matters where the State is a party or in which the State has an interest, and requires them to attend thereto, and grants them the power and authority to institute and prosecute, or to intervene in civil suits or criminal proceedings whenever they deem it necessary for the assertion or protection of the rights and interests of the State. The third sentence gives the Attorney-General and his assistants the right to exercise supervision over the district attorneys throughout the State. If the first part of the second sentence which places the Attorney-General in charge of all legal matters in which the State has an interest means that he has the power and authority to completely exclude and eliminate district attorneys from participating in such matters by superseding, relieving and supplanting them, the latter part of the same sentence, which more specifically defines the power and authority of the Attorney-General to institute, prosecute and intervene in any civil suit or criminal proceeding and to assert the rights and protect the interests of the State, is wholly unnecessary. If this language means that the Attorney-General has full and absolute charge of all legal matters in which the State has an interest to the complete exclusion and elimination of any District Attorney, that would be plenary power for all purposes and the balance of the sentence would be meaningless and a needless waste of words. Furthermore, the third sentence would be purposeless because it simply provides that the Attorney-General and his assistants shall have supervision of the several District Attorneys throughout the State. If the Attorney-General and his assistants, under the first part of the second sentence, have complete and absolute charge, to the complete exclusion of District Attorneys, of all legal matters in which the State has an interest, why should the members of the Constitutional Convention have then provided for the mere supervision of the District Attorneys by the Attorney-General? The latter part of the second sentence and the third sentence of Section 56 show that the members of the Constitutional Convention did not intend to grant the Attorney-General and his assistants the complete and exclusive charge and control of all legal matters in which the State has an interest. If they intended that such exclusive, unlimited, and extensive power and authority should be conferred upon the Attorney-General and his assistants, they certainly would have used appropriate language to convey that meaning. We are borne out in this interpretation by the contemporaneous construction placed by the Attorney-Generals of this State since 1921, upon these provisions of the Constitution, because it was only after the Legislature passed Act No. 24 of the First Extra Session of 1934, that the Attorney-General and his assistants claimed the right, authority, and power to supplant, supersede and relieve the District Attorney in criminal proceedings. The first case on the subject is State v. Major, 181 La. 822, 160 So. 425, decided by this Court on March 4, 1935.
In supervising the District Attorneys or taking charge of legal matters by attending thereto or by instituting and prosecuting any criminal proceeding or intervening therein, under Section 56 of Article VII, the Attorney-Generals and their assistants did not claim the right and authority to exclude the District Attorney completely and absolutely from any participation therein as they have done under their constructions of Act No. 24 of the First Extra Session of 1934. In the instant case, it appears that the Attorney-General and his assistants did not institute or prosecute any criminal proceeding or intervene therein, but claimed the right to supplant, supersede and relieve the District Attorney in toto of all participation in such criminal proceedings and as advisor of the Grand Jury.
Section 56 of Article VII is found in that part of the Article of the Constitution that establishes the Department of Justice.
Sections 58, 59, 60, 61, 62, 63 and 64 of the same Article (VII) create the office of District Attorney throughout the State in each judicial district, provide for his qualifications, election, term of office, salary and the appointment of an assistant district attorney and his removal. While the Constitution does not enumerate the powers and duties of a District Attorney, his right and authority thereunder to institute and prosecute criminal proceedings against persons charged with crime, if not expressly provided for, is clearly and necessarily implied from the above sections of the Constitution and especially Section 63 of Article VII, which reads as follows:
"§ 63. It shall be gross misconduct, and a cause for removal from office, for any district attorney or assistant district attorney to appear, plead, or in any way defend, or assist in defending, any criminal prosecution, or charge, involving a penalty or punishment for the violation of any law, or ordinance, in the State."
The reason why it is gross misconduct and a cause for removal from office for a district attorney or his assistant to defend or assist in defending a person who has committed a crime is because it is their duty to represent the State in prosecuting him. Briefly, they are made prosecuting attorneys by the provisions of the Constitution.
If the members of the Constitutional Convention did not intend the District Attorneys to be prosecuting attorneys subject to the supervision of the Attorney-General, we are at a loss to know why they expressly prohibited them from taking any part whatsoever in defending those charged with violating any law or ordinance involving a penalty or punishment therefor. Furthermore, Section 6 of Article IX of the Constitution expressly provides the exclusive method of divesting a District Attorney of his office or removing him therefrom.
If this Court were to hold that Section 56 of Article VII of the Constitution does not limit the powers of the Attorney-General over District Attorneys and the Legislature could confer exclusively upon the Attorney-General, as additional or other duties, all of the duties and functions heretofore performed and powers exercised by District Attorneys, a most unusual and extraordinary result could follow. The Legislature under such a ruling would have the constitutional right and authority by statute to grant to the Attorney-General and his assistants complete, absolute, and exclusive control of all of the duties and functions now performed and powers exercised by District Attorneys and their assistants in both civil and criminal matters in which the State has an interest. Thus we would have the spectacle of the District Attorneys throughout the State having titles to constitutional offices for a constitutionally fixed term of six years with salaries, without any powers, duties, functions and responsibilities, because the Legislature is powerless either to remove them from office or to abolish their office by statute. Certainly the members of the Constitutional Convention did not intend to leave the Legislature with such unrestricted power to bring about such an absurd result. It is only by isolating the provisions of Section 56 of Article VII and ignoring Sections 58 through 64, inclusive, under the same article, and the provisions of Section 6 of Article IX of the Constitution, that one could possibly interpret the language of Section 56 to mean that the members of the Constitutional Convention did not intend, in that Section, to place a limitation or restriction upon the powers of the Attorney-General over District Attorneys and the right of the Legislature to confer other duties upon the Attorney-General by taking away the powers of the District Attorneys.
In 59 C.J. 112, § 124, the rule is stated thus:
"In the absence of constitutional restrictions, the duties of a state officer may be increased or diminished at the will of the legislature. But the legislature cannot deprive an officer of the duties imposed upon him by the constitution, as by transferring his duties to another officer."
In Cobb v. Parnell, Governor, 183, Ark. 429, 36 S.W.2d 388, 389, the Supreme Court of Arkansas stated the rule of construction thus:
"It is a fundamental and universally recognized canon of construction that the Constitution of this state is not a grant, but a limitation, of power, and, in all cases where there is not an express or necessarily implied limitation of its power by the Constitution, the Legislature is supreme; and it is always the presumption that, in the enactment of a law, the power of the Legislature has not been limited and it is properly exercising its inherent authority."
It is our opinion that Section 56 of Article VII of the Constitution limits the powers of the Attorney-General and his assistants over the District Attorneys and their assistants and that the Legislature cannot, by statute, in conferring upon the Attorney-General other duties, deprive the District Attorneys and their assistants of the powers of their office, contrary to the restrictions or limitations upon the Attorney-General's powers placed in Section 56 of Article VII of the Constitution. As the proviso part of Act No. 24 of the First Extra Session of 1934 amending Article 17 of the Code of Criminal Procedure violates those limitations by conferring powers in excess of those allowed, it is unconstitutional, null and void.
Ordinarily, the above conclusion would make it unnecessary for us to consider the other constitutional issues raised herein, but based upon an error made by us in inadvertently adding the words "relieve", "supersede" and "supplant" to Section 56 of Article VII of the Constitution, as will be explained hereafter, we have heretofore expressed views contrary to our present ones, and now deem it necessary to consider other constitutional points presented herein, in order to clarify the law on this important subject.
Section 6 of Article IX of the Constitution of this State of 1921 provides the exclusive method of removing a District Attorney from office through court proceedings and for the causes specified in Section 1 of the same Article. The jurisprudence of this State is clear that the provisions of the Constitution of this State providing for the method of removal of officials from office are exclusive. In re J. Claude Meraux, 202 La. 736, 12 So.2d 798; State v. Gravolet, 168 La. 648, 123 So. 111; State v. Dunson, 138 La. 131, 70 So. 61; State v. Bain, 137 La. 308, 68 So. 621; State v. Judges, 35 La.Ann. 1075; State v. Lamantia, 33 La.Ann. 446; and State v. Carey, 28 La.Ann. 49. The Attorney-General contends that Section 6 of Article IX of the Constitution is inapplicable in this case because he has not attempted to remove the District Attorney from office but only to supersede, supplant and relieve him in the criminal matters specified in his two letters addressed to the District Attorney on September 15 and 23, 1941, notifying him thereof.
The issue in this case is not whether the Attorney-General has exercised a sufficient amount of the power granted to him by the statute in question to remove the District Attorney from his office, but whether or not the provisions of the Act in question grant him the unreviewable discretion or power to divest the District Attorney of his office for all practical purposes. If the statute were held to be constitutional, it is obvious that the Attorney-General would have the right and authority thereunder, without cause, to relieve, supplant and supersede the District Attorney in all criminal proceedings by simply notifying him of his decision. As practically all of the District Attorney's duties and functions pertain to criminal proceedings, if the Attorney-General superseded him in all such matters, he would be the District Attorney in name only, except that he would remain as the legal advisor to the Police Jury and the School Board in civil matters and be entitled to draw his salary. The statute does not place any limit upon the number of criminal proceedings in which the Attorney-General shall have the right to supplant the District Attorney nor does it limit the period of time that the supplanting of the District Attorney shall remain in effect. Consequently, under the statute, the Attorney-General has the discretion and power expressly granted to him to supersede the District Attorney in all criminal proceedings for an indefinite length of time without any hearing before the Attorney-General and without any cause whatsoever, and the courts are forbidden to question or inquire into his action. Under this statute, if the Attorney-General decided to do so, by relieving, supplanting and superseding the District Attorneys throughout the State in all criminal proceedings, he would have the entire machinery for the administration of justice in his hands, because he would be the legal advisor of the Grand Juries and could institute criminal prosecutions and nolle prosequi them at will, and his discretion therein could not be questioned either by the District Attorneys or by the courts. Certainly, Section 56 of Article VII of the Constitution does not confer upon the Attorney-General such plenary and unreviewable power and discretion and does not leave the Legislature free to grant him such power and discretion. In the argument before the Bar, the Attorney-General conceded that if he had gone so far as to relieve and supersede the District Attorney in all criminal proceedings, his actions would have been illegal, but he stated that he had not done so.
We reiterate that the answer to the Attorney-General's position in the above respect is that, the question is not whether he has exercised the full authority granted to him by the Act in controversy, but whether or not that Act grants him the unreviewable discretion and power to relieve the District Attorney of all of the duties and functions of his office in criminal proceedings. Clearly, the Act by its express terms grants the Attorney-General such plenary power and discretion and as a result thereof manifestly clashes with the purpose and spirit, if not the letter, of the constitutional inhibition that the District Attorney cannot be divested of his office or removed therefrom except for cause and in any other manner, than the exclusive method provided in Section 6 of Article IX of the Constitution. An Act of the Legislature that grants to the Attorney-General the power to divest a District Attorney of all powers, authority and functions of his office, leaving him with nothing except the naked title thereto and salary, is irreconcilable with Section 6 of Article IX of the Constitution, because the District Attorney would be virtually and practically removed from office, in the true sense, although not in the technical legal sense.
Section 6 of Article I of the Bill of Rights of the Constitution provides:
"All courts shall be open, and every person for injury done him in his rights, lands, goods, person or reputation shall have adequate remedy by due process of law and justice administered without denial, partiality or unreasonable delay."
Section 1 of Article VII reads, as follows:
"The judicial power shall be vested in the Supreme Court, in Courts of Appeal, and in District Courts, and in such other courts as are hereinafter provided."
The Statute expressly forbids the court to question or inquire into the Attorney-General's discretionary action in the exercise of the power to relieve, supplant and supersede the District Attorney whenever he deems it necessary for the protection of the rights and interests of the State. Therefore, if the Act were held to be constitutional, the District Attorney would be unquestionably denied his constitutional right to have the Court review the action of the Attorney General in relieving, supplanting and superseding him, and thus judicial power would be conferred upon the Attorney-General.
We may say here that Section 56 of Article VII of the Constitution does not confer upon the Attorney-General an unreviewable discretion in exercising the powers granted to him thereby because it is not declared therein that the courts shall not have the right to inquire into such actions by him. The hold otherwise would make the above Section conflict with Section 1 of the same Article granting judicial power to the courts and Section 6 of Article 1 thereof guaranteeing that the courts shall be open for the assertion of rights through adequate remedy to all persons.
In Meyer v. Board of Trustees, etc., 199 La. 633, 6 So.2d 713, 716, a widow sued for a pension alleged to be due her under Section 12 of Act No. 43 of 1902, amended by Act No. 27 of 1914. The defense was that the Board of Trustees' decision on the plaintiff's application for the pension was final and conclusive under the provisions of Section 3 of the statute as amended, because it was expressly provided that a decision of the Board "shall be final and conclusive, and [not] subject to review or reversal except by the Board." In affirming the judgment of the district court, after quoting the provisions of Section 6 of Article 1 of the Constitution (Bill of Rights), the Court said:
"Article VII of the Constitution of Louisiana of 1921 vests in the Supreme Court, the Courts of Appeal and the district courts judicial power. Section 80 and 81, respectively, of the same Article, create the Civil District Court for the Parish of Orleans and vest it with original civil jurisdiction. Therefore, the pertinent provision in Section 3 of the above statute cannot be interpreted as the defendant demands that it should be, without resulting in its nullity or unconstitutionality."
Therefore, that part of the statute which states that "the discretion of the Attorney General under this Article shall not be questioned or inquired into by any court" is clearly and manifestly unconstitutional.
Having concluded that the above portion of Act No. 24 of the First Extra Session of 1934 is unconstitutional and assuming that the remainder of the proviso of the statute is constitutional (contrary to our opinion hereinabove expressed), the next question is whether or not that part of the Statute which grants the discretionary power to the Attorney-General to relieve, supplant and supersede the District Attorney in any criminal proceeding that he may deem necessary for the protection of the rights and interests of the State is so closely bound to the unconstitutional part of the Statute as to likewise strike it with nullity.
In the case of Flournoy v. First National Bank of Shreveport, 197 La. 1067, 3 So.2d 244, there was presented the question of whether or not the provisions of Act No. 172 of 1938, in assessing and taxing shares of stock of State and National Banks, were separable. The Court had previously, in the case of Hibernia National Bank et al. v. Louisiana Tax Commission et al., 195 La. 43, 196 So. 15, declared a part of the statute unconstitutional insofar as State Banks were concerned. In deciding that the statute was unconstitutional as to both State and National Banks, the Court said [ 197 La. 1067, 3 So.2d 247]:
"In the case of the City of Alexandria v. Hall, 171 La. 595, 131 So. 722, 724, the Court said:
"`It is well settled that a statute may be valid in part and invalid in part, and that the invalid part may be disregarded altogether and the other part constitute a valid statute, if the two parts are not so intimately connected as to raise the presumption that the Legislature would not have enacted the one without the other.'
"Act 172 of 1938 contains no severability clause. There is no mention therein whatsoever of shares of national bank stock. The Act does not make any distinction between shares of stock of state or national banks. It sets out no line of demarcation and in no wise indicates that the Legislature was considering separately the shares of stock of state banks or national banks. There is nothing contained in the statute which can be pointed to as raising the presumption that if the members of the Legislature had known that the features therein pertaining to state banks would thereafter be declared unconstitutional, it was their intention that the act stand as affecting national bank shares only."
It will be noted that the part of the Statute under attack begins with the word "provided" and consists of one sentence. The main thought and meaning conveyed by the sentence is to give the Attorney-General absolute and unquestionable discretionary power to relieve, supplant and supersede the District Attorney in any criminal proceeding without cause or reason when he deems it necessary for the protection of the rights and interests of the State without being subject to judicial review. It will be observed that the Act does not contain any clause that, in the event any part thereof is held to be unconstitutional, the Legislature intended that the remainder of it be effective.
Are both portions of the Statute in question — the part declared unconstitutional and the other part or remainder of the sentence — "so intimately connected as to raise the presumption that the Legislature would not have enacted the one without the other"? We think so. It would be pure conjecture and speculation on our part to say that the Legislature would have enacted the first part of the proviso without the latter part, because the whole purpose of that portion of the Statute was to make the Attorney-General supreme and his actions final in supersession matters without the District Attorney having any right to complain to the courts, nor the courts the authority to inquire into or question his action even though he acted arbitrarily, capriciously and illegally. There is nothing in the provisions of the Statute to show that the Legislature was considering these parts of the Statute separately. The Act does not contain any language expressly or impliedly indicating in the slightest that, if the members of the Legislature had known that a part of the Act would be declared unconstitutional, they intended the other part thereof to stand. Under these circumstances, we could not with any confidence state that the provisions of the statute are separable. Therefore, it is our conclusion that the first part of the controversial sentence of the statute beginning with the word "provided" and ending with the word "court" is likewise unconstitutional.
In support of his position the Attorney-General relies upon three cases: State v. Major, 181 La. 822, 160 So. 425; State v. Ardoin, 197 La. 877, 2 So.2d 633; State ex rel. De Armas v. Platt, Judge, 193 La. 928, 192 So. 659; and the unreported ruling of this Court made in February, 1941, on the question of supersession of district attorneys by the Attorney-General in connection with two applications for writs under our supervisory jurisdiction, Nos. 36,117 and 36,127 of the docket of this Court.
The first case was decided by this Court in March, 1935, and arose as a result of the District Attorney for the Parish of Orleans (the present Attorney-General) insisting on prosecuting the defendant for carrying concealed weapons when he claimed the right as an officer of the law to do so. The Attorney-General agreed with the defendant and disagreed with the District Attorney and wrote him a letter that he was superseding and relieving him as District Attorney in that particular case. In the litigation that followed, the District Attorney pleaded that Act No. 24 of the First Extra Session of 1934, under which the Attorney-General was acting, was unconstitutional, because, under Section 56 of Article VII of the Constitution, the authority of the Attorney-General to relieve and supersede the District Attorney "is thereby limited to cases where the intervention of the Attorney General * * * is `necessary for the assertion or protection of the rights and interests of the State,' as, for example, where the district attorney fails or neglects, or is disqualified or incompetent, to prosecute the case." [ 181 La. 822, 160 So. 427]. In deciding that the statute was constitutional and that the Attorney-General had not abused his discretion, the Court said:
"The only difference between the language of this statute and the article of the Constitution is that, in the statute, the word `supplant' is added to the words `relieve' and `supersede,' and the discretion of the Attorney General, in the matter of relieving or superseding a district attorney, is declared absolute. As a matter of fact, the statute has added nothing of importance to the provisions of the Constitution itself. The addition of the word `supplant,' to the words `relieve' and `supersede,' is only an example of the redundance which too often occurs in law phrases. And the provision that the discretion of the Attorney General in determining when he shall relieve or supersede a district attorney `shall not be questioned or inquired into by any court' means nothing more than that the discretion of the Attorney General in that respect shall be absolute. It is contended by the district attorney that this provision of the statute is an attempt to vest a judicial function in the Attorney General, and to divest the courts of their jurisdiction in the premises, and is therefore unconstitutional. We do not think so. That provision in the statute in superfluous, because the Constitution itself provides that the Attorney General and his assistants shall have the power and authority to institute and prosecute or to intervene in criminal proceedings, as they may deem necessary, etc. The declaration that the discretion of the Attorney General in that respect shall not be questioned or inquired into by the courts does not interfere with the jurisdiction of the courts to inquire into the result of any criminal prosecution which the Attorney General has instituted or intervened in. It is not necessary to decide now whether an abuse of the discretion which is vested in the Attorney General might be inquired into by the courts. There is no showing of abuse of discretion in this case. * * *"
A rehearing was not applied for in the case.
The Court, through inadvertence, stated that the statute merely added the word "supplant" to the words "relieve" and "supersede", which were already in the Constitution. As a matter of fact, this statement is incorrect, because neither of these words appear in Section 56 of Article VII of the Constitution. It was also incorrect to hold that the statute did not attempt to confer judicial functions on the Attorney-General and to divest the courts of their jurisdiction and did not attempt to deny the District Attorney his right under Section 6 of Article 1 of the Constitution to have the court decide whether or not the provisions in the statute conferring upon the Attorney-General the absolute and unreviewable discretion to supplant, relieve and supersede him were constitutional simply because the Act did not attempt to deprive the court of its jurisdiction to inquire into the result of the criminal prosecution by the Attorney-General. A criminal proceeding between the State and a defendant would be an entirely different case from one between the Attorney-General and the District Attorney on this constitutional question. Even if the defendant raised the issue that the Attorney-General was without authority to exclude the District Attorney in prosecuting him, the raising of that issue would be left to the discretion of the defendant and his attorney. Under the express provisions of Section 63 of Article VII of the Constitution, the District Attorney would be prohibited from joining with the defendant to raise the point. If the Attorney-General, as in the Major case, supra, elected not to prosecute, the matter would end there. Therefore, the District Attorney would be powerless to present the issue and if the point were made by an accused, the district attorney would not have the right to join the defendant in the case in presenting the legal problem to the court. Finally, it will be noted that while the Court stated it was not necessary to pass upon the issue of whether or not the Court might inquire into the alleged abuse of the discretion by the Attorney-General, it did make the inquiry and held that there was no showing of abuse of the discretion in the case. The provision of the statute providing that the discretion of the Attorney-General shall not be questioned or inquired into by any court was either constitutional or unconstitutional. If it were constitutional, the court had no jurisdiction or authority to review the actions of the Attorney-General to determine whether or not he exercised it arbitrarily. If that part of the statute were unconstitutional, it should have been so declared and the court would then have had the right and jurisdiction to determine if there had been any abuse in the exercise of the discretion by the Attorney-General.
In the second case, the Grand Jury requested the Attorney-General to act as legal advisor because of some difference between the District Attorney and itself. The Attorney-General assigned one of his assistants to act as the advisor of the Grand Jury and he served for a period of five months during which time the Grand Jury brought in indictments against the defendants who filed motions to quash them on the ground that the Attorney-General and his assistant had no right to relieve, supplant and supersede the District Attorney as the legal advisor of the Grand Jury. In annulling the judgment of the trial court quashing the indictment and overruling the motion, this Court said [ 197 La. 877, 2 So.2d 636]:
"In the case of State v. Major, 181 La. 822, 160 So. 425, the Attorney General intervened and claimed the right to relieve and supplant the District Attorney in a criminal prosecution which the latter had instituted and was ready and willing to proceed with. The District Attorney contended that in Section 56 of Article VII of the Constitution the Attorney General was given the right to intervene and relieve and supplant a District Attorney only in cases where the District Attorney was neglecting his duty, and that the Act No. 24 of the First Extra Session of 1934, so far as it purported to allow the Attorney General to relieve and supplant the District Attorney in a case where he was not neglecting his duty, extended the authority of the Attorney General beyond that which was conferred by Section 56 of Article VII of the Constitution, and was to that extent unconstitutional. But our ruling was that this amendment of the article of the Code of Criminal Procedure, by using the words `relieve', `supplant', and `supersede', did not really add anything to, but merely emphasized, the authority which was conferred upon the Attorney General by the provisions of Section 56 of Article VII of the Constitution — to institute or prosecute or to intervene in any criminal proceeding which the Attorney General might see fit to institute or prosecute or to intervene in. * * *"
Necessarily, the Court still considered correct its statement in the Major case that the statute merely added the word "supplant" to the words "relieve" and "supersede" contained in Section 56 of Article VII of the Constitution, because nothing is said in the opinion to indicate that that error had been discovered. The above error and failure to observe it could not either add to or detract from the provisions of the Constitution because to say otherwise would be recognizing another way in which the Constitution could be amended.
The defendants therein contended that if the Court should hold that the Attorney General had the right to supersede the District Attorney as legal advisor of the Grand Jury, the law did not give him the right to serve in that capacity in an unlimited number of cases and for an indefinite period of time. In that case, the Attorney-General had served as advisor of the Grand Jury for about five months to the exclusion of the District Attorney and a large number of indictments against various parties were returned by it. This Court answered the contention by stating:
"We doubt that any one of the defendants in these cases should be concerned with the Attorney General's having served as legal advisor of the grand jury in relation to the case of any other of the defendants. The only one who might have been concerned with the extent to which the Attorney General served as legal advisor of the grand jury is the District Attorney."
The third case is not only relied upon by the Attorney-General but is cited by this Court in State v. Ardoin, supra, in support of the views therein expressed that the Attorney-General under the provisions of Act No. 24 of the First Extra Session of the Legislature of 1934, has the right to supersede the District Attorney in a criminal proceeding. In the De Armas case, some of the Grand Jurors had illegally obtained advice from outside attorneys and refused to take the advice of the District Attorney. In defiance of the judge's order not to publicly present a certain document signed by some of the Grand Jurors and reflecting upon the District Attorney and his assistants, they, in a spectacular manner, did so and were removed by the court as Grand Jurors. The question of the constitutionality of Act No. 24 of the First Extra Session of 1934 was in no way involved. In answer to the question of counsel for the recalcitrant Grand Jurors what legal relief they were entitled to when the District Attorney and his assistants were misconducting themselves and violating the law, — the majority members of this Court stated that the Grand Jury could indict them for any crime that they might have committed; that the District Attorney would be subject to removal from office or impeachment if the charges were true and "* * * they (the District Attorney and his assistants) might be superseded by the Attorney-General under the provisions of Act No. 24 of 1934, 1st Ex. Sess." [ 193 La. 928, 192 So. 679.] (Italics and brackets ours.) We further declared "These charges (made by these grand jurors in the document against the District Attorney and his assistant) if proved to be true, might be sufficient reasons to justify the Attorney-General in superseding the District Attorney." (Italics and brackets ours.) These statements are certainly not equivalent to declaring that the statute is constitutional and that the Attorney-General could supersede, supplant and relieve the District Attorney in any criminal proceeding in his discretion without any cause and that the courts have no right or authority to inquire into or question such action.
The rulings of this Court on two applications for writs under our supervisory jurisdiction simply followed the misstatement and erroneous views expressed in the Major case, supra, that there was no difference between the provisions of the Constitution and the provisions of the Act. However, since our attention has been called to these errors and as there are other grounds of unconstitutionality of the statute alleged here that go far beyond the limited issues presented in the previous cases, supra, we certainly would not be justified in now holding that those cases are controlling in the instant one.
As the other constitutional issues raised herein were not considered by us in previous opinions, it is not necessary to decide those constitutional points here, in view of our above conclusions.
We refrain from attempting to state generally in this opinion the extent of the Attorney-General's powers and the Legislature's authority under Section 56 of Article VII of the Constitution, because we have before us only the constitutionality of the Act of the Legislature granting the Attorney-General the right to supplant and supersede the District Attorney and the actions of the Attorney-General in exercising the powers granted to him thereby. To go further than necessary in deciding the present case would result in giving expression to obiter dictum. Each case must be decided as it arises and is presented to us.
In answer to the argument that confusion would result between the offices of the Attorney-General and the District Attorneys if Act No. 24 of the First Extra Session of 1934 were declared unconstitutional, it is sufficient to say that the effect of our present decision holding the part of the statute attacked in the instant case unconstitutional will leave the law in the identical condition it was from 1921 to 1934, during which time there was less confusion on the question of the Attorney-General's right to supplant and supersede the District Attorneys than there has been since the statute was adopted.
For the reasons assigned, it is ordered, adjudged and decreed that our original decree affirming the judgment of the district court is reinstated and made the final judgment of this Court.
FOURNET, J., concurs in the views expressed in the majority opinion and will assign additional reasons.
O'NIELL, C.J., dissents and hands down reasons.
ROGERS, J., concurs in part and dissents in part and hands down reasons.
ODOM, J., dissents.
On Rehearing.
On Rehearing.
On Rehearing.
It is my opinion that Act No. 24 of the First Extra Session of 1934 is unconstitutional in its entirety.
The duties and powers of the attorney general and his assistants are described in Article 7, Section 56 of the Louisiana Constitution of 1921. It is therein stated that they "shall attend to, and have charge of all legal matters in which the State has an interest, or to which the State is a party, with power and authority to institute and prosecute or to intervene in any and all suits or other proceedings, civil or criminal, as they may deem necessary for the assertion or protection of the rights and interests of the State. They shall exercise supervision over the several district attorneys throughout the State, and perform all other duties imposed by law."
The district attorneys are likewise constitutional officers. But their duties and powers are fixed by statute, some of which are recited in Article 17 of the Louisiana Code of Criminal Procedure, adopted by the Legislature in 1928, as follows:
"Subject to the supervision of the Attorney-General, as hereinafter provided, the District Attorney shall have entire charge and control of every criminal prosecution instituted or pending in any parish wherein he is district attorney, and shall determine whom, when, and how he shall prosecute; provided, that every district attorney shall have the right to employ or to accept the assistance in the conduct of any criminal case of such counsel as to him may seem fit."
In adopting Act No. 24 (1st E.S.) 1934, the Legislature amended and re-enacted said Article 17 of the Code of Criminal Procedure, along with another article of that Code, by adding thereto the following:
"* * * Provided, further, that the Attorney General shall have power to relieve, supplant and supercede the district attorney in any criminal proceeding, when he may deem it necessary for the protection of the rights and interests of the State, with full power to institute and prosecute criminal proceedings, and the discretion of the Attorney General under this Article shall not be questioned or inquired into by any court."
As stated in Article 7, Section 56 of the Constitution, the attorney general has the right to exercise supervision over the district attorneys; and he may intervene, for the protection of the interests of the State, in proceedings instituted by them. But nowhere in our Constitution is he authorized to "relieve, supplant and supersede" a district attorney. Therefore, the statute in question, in as much as it seeks to confer on the attorney general authority and power in excess of the mentioned constitutional limitation, is violative of our constitution and is null.
For the above reasons, I respectfully concur in the decree.
My views are in accord with those expressed in the majority opinion, but I am also of the opinion that the Act (Act No. 24 of the First Extra Session of 1934) is totally unconstitutional for the reasons assigned by Justice HAMITER in his concurring opinion. For these reasons, I concur.
The Hon. Eugene Stanley, Attorney General of Louisiana, is appealing from a judgment of the Twenty-first Judicial District Court for the Parish of Tangipahoa enjoining him (1) from superseding that district's attorney in three criminal cases before that court, i.e., the state's case against Jerome A. Hayes, individually, wherein he is charged with slander, and the state's two cases against Jerome A. Hayes as the Supervisor of Public Accounts and his deputies, wherein they are jointly charged with conspiracy to destroy and the destruction of public records; and (2) from superseding the district attorney as the legal adviser of the grand jury, then investigating complaints relative to all of the public institutions and offices in that parish. These were eleven in number: (1) The sheriff's office, (2) the clerk of court's office, (3) the police jury, (4) the school board, (5) the assessor's office, (6) Southeastern Louisiana College, (7) the Florida Parishes Hospital, (8) the Louisiana Milk Commission, (9) Camp Moore Cemetery, (10) the Louisiana Conservation Station in that parish, and (11) the Louisiana Highway Commission's work in that parish.
The injunction was sought on the basis that the attorney general's supersession of the district attorney under Act No. 24 of the First Extra Session of 1934 was unwarranted and illegal because of the act's unconstitutionality, and, in the alternative, that if the act were held to be constitutional, then that the only time the attorney general can supersede the district attorney is when it is in the interest of the state, which was not the case here for the reason that the district attorney was at all times ready and willing to protect the interest of the state and to carry out faithfully the duties of his office, as provided by law; that although the attorney general did not assign any reason for his act of supersession, his real motive in this case, as in his wholesale abuses in oppressively superseding other district attorneys throughout the state not of his political faction, was to help his political affiliates.
The attorney general defended the case on the ground that the court is without power or jurisdiction to inquire into the motives or sufficiency of the reasons which prompt the attorney general in superseding the district attorney.
The mandatory duties imposed upon the attorney general and his assistants under Section 56 of Article VII of the Constitution of 1921, where their qualifications are fixed, is that they shall "attend to, and have charge of all legal matters in which the State has an interest," and "shall exercise supervision over the several district attorneys throughout the State." In this same section he is given the power and authority, when it is for the protection of the rights and interest of the state, to institute and prosecute any civil or criminal proceeding or intervene in any such proceeding already pending.
Our law makers, in adopting the Code of Criminal Procedure in 1928, defined the powers of the district attorney to be: "Subject to the supervision of the Attorney-General, as hereinafter provided, the District Attorney shall have entire charge and control of every criminal prosecution instituted or pending in any parish wherein he is district attorney, and shall determine whom, when, and how he shall prosecute; provided, that every district attorney shall have the right to employ or to accept the assistance in the conduct of any criminal case of such counsel as to him may seem fit." Article 17. In defining the duties and powers of the attorney general in Article 23, in his relation to criminal proceedings, they, in effect, adopted the language of the constitution above referred to.
By Act No. 24 of the First Extra Session of 1934, the legislature amended Articles 17 and 156 of the Code of Criminal Procedure by adding to each article a provision granting to the attorney general the additional power relieving, supplanting, and superseding the district attorney in any proceeding instituted by the district attorney when he deemed it necessary for the protection of the rights and interest of the state, and providing further that "the discretion of the Attorney General under this Article shall not be questioned or inquired into by any court." Prior to its amendment, Article 156 had made it the mandatory duty of district judges and attorneys to inquire into any crime that might come within their knowledge where no complaint thereof had been made; so, by its amendment, this power was taken away from the district judge and granted to the attorney general, along with the above power of supersession.
It is obvious from a mere reading of Act No. 24 of the First Extra Session of 1934, therefore, that it was the intention of the legislature in enacting it to give authority and power to the attorney general that had not theretofore been authorized under the codal articles. But this object is not indicated in its title, where it is stated that its object is "To amend and re-enact Articles 17 and 156 of the Code of Criminal Procedure." Such amendment and re-enactment is, of course, merely incidental to and the means of obtaining the object for which it was enacted, that is, to grant enlarged powers to the attorney general. It therefore follows that this is in direct contravention of Section 16 of Article III of the Constitution, providing that "Every law enacted by the Legislature shall embrace but one object, and shall have a title indicative of such object."
If the only object for which the act was enacted is, as stated in its title, to amend these two articles of the criminal procedural code, then it is equally obvious that it is also violative of Section 16 of Article III of the Constitution for the act then would have a dual object, that is, the amendment and re-enactment of two entirely distinct and disassociated articles of the Code of Criminal Procedure, Article 17, found under Title IV entitled "Of District Attorneys and the Attorney General," and Article 156, found under Title XV headed "Of Committing Magistrates and Preliminary Examinations."
It is also clear that the power given the attorney general in Act No. 24 of the First Extra Session of 1934 extends beyond and exceeds the limitation placed on his power in Section 56 of Article VII of the Constitution, for he is there authorized to institute and prosecute civil and criminal proceedings or intervene in those already pending only in those instances where it is necessary for the protection of the rights and interest of the state.
Furthermore, the declaration in the act that the discretion of the attorney general in his supersession of the district attorney cannot be questioned or inquired into by any court is in direct contravention of Section 6 of Article I of the Constitution guaranteeing that all courts shall be open to all persons for the speedy redress of wrongs. While it is the accepted rule that courts will not interfere with the actions of public officials in the performance of their administrative duties, there is an equally well accepted and recognized exception to this rule, that is, that when a public official in performing his official duties acts so capriciously and arbitrarily he abuses his discretion and encroaches upon the rights of others, the persons so injured are given a right of redress in the courts under the express guarantees of the due process provisions of our constitution and that of the United States.
This court recognized this exception to the rule when, in the case of State v. Major, 181 La. 822, 160 So. 425, 427, it said: "It is not necessary to decide now whether an abuse of the discretion which is vested in the Attorney General might be inquired into by the courts. There is no showing of abuse of discretion in this case." And the attorney general has himself recognized that his discretion in superseding district attorneys is subject to review by the courts, for, in testifying in this case, he stated he knew of no law that gave the attorney general the right to take charge of the district attorney's office and that his understanding and interpretation of Act No. 24 of the First Extra Session of 1934 was that it allowed the attorney general to supersede the district attorney "in specific cases for the protection of the rights and interest of the State," and that if he abused the power thus given him, "the Supreme Court would stop him." (All italics the author's.)
The large mass of testimony in the record conclusively shows the abuses indulged in by the attorney general in his supersession of the district attorney in this case as well as in his other wholesale supersessions of the district attorneys throughout the state. The judge ad hoc, the Hon. Allen B. Pierson, appointed to try the case because of the relationship existing between the district judge and the district attorney (brothers-in-law), after reviewing and analyzing the evidence, concluded, on the merits of the case, that "this attempted supersession is not based on sound legal discretion and that such supersession, if allowed, would be a gross arbitrary abuse of a discretionary power which should be jealously guarded and kept free of personal feelings and politics." In discussing these abuses of the attorney general in superseding other district attorneys throughout the state whenever they were politically opposed to him and his faction, the judge ad hoc pointed out that "The entire record in this case is teeming with testimony which tends to show that the purpose of supersession in other parishes was largely for political reasons." To substantiate these statements, he pointed out:
"A great mass of testimony and documentary evidence was placed in the record growing out of the supersession by the Attorney General of District Attorney Hundley of Rapides Parish. It was proven that some two hundred seventy-six indictments were returned by the Rapides Grand Jury while a Special Assistant of the Attorney General was legal adviser of the Grand Jury and that a great majority of these indictments were against men prominent in politics and politically opposed to the Attorney General. Be that as it may, it was likewise proven that not a single one of the two hundred seventy-six indictments had ever been tried, in fact, not a single person charged has even been arraigned. For example, some forty-seven of the Rapides Grand Jury indictments were returned against the Mayor, V.V. Lamkin, and were kept pending under the sole charge of the Attorney General during an election in which Mayor Lamkin was defeated for re-election. After his defeat the Attorney General proceeded to nolle prosequi some of the charges and stated on the witness stand that he expected to nolle prosequi others still pending against Mayor Lamkin. The Mayor was never arraigned on any of the indictments.
"In the case of State Versus Sheriff Derrick of Sabine Parish, it was proven conclusively that the prosecution was instituted by a bill of information filed by the Attorney General personally; the charge being that the Sheriff had accepted a bribe from bootleggers. The only two witnesses against the Sheriff were proven to be notorious bootleggers and law violators (Transcript — Page 149), viz: Asa E. Drew and Dave Moody. It was shown that they made a trip to Baton Rouge and consulted with the Attorney General's office and that after the Derrick case had been concluded and the Sheriff acquitted, that the Attorney General, through one of his Special Assistants proceeded to nolle prosequi some ten pending indictments against these bootleggers. The record further shows that J. Reuel Boone, Esq. was assisting the Attorney General's office in the prosecution of Sheriff Derrick and was also acting as attorney for Asa E. Drew, bootlegger."
But it is the contention of the attorney general that we cannot review his actions in superseding district attorneys other than the one now under consideration. The attorney general, although protesting that his actions in this case, as well as in all of the cases where he or his assistants superseded district attorneys, were in the interest of the state, admitted on the witness stand during the course of his examination of this case, that he superseded the district attorney solely because he wanted to see Jerome A. Hayes get justice and believe he "would get better justice out of the attorney general's office." But as found by the judge ad hoc, in which he is amply supported by the evidence, including the attorney general's own admission, in this instance he did not supersede the district attorney for the purpose of protecting the state's interest, but only for the purpose of protecting Jerome A. Hayes. The judge ad hoc has also pointed out, that it is equally obvious that the attorney general's reason for seeking to become the legal adviser of the grand jury in Tangipahoa parish was so that he might take charge of and have control over all of the indictments they might return with respect to the public offices and institutions Jerome A. Hayes was then investigating in the parish and, in this way, effectively and literally tie the hands of the district attorney and render the functioning of his office an impossibility.
One of the rules of evidence is that one's motive in doing an act may be shown by similar acts on his part. The most serious and important issue in this case is whether the attorney general's supersession of the district attorney was an abuse of the authority vested in him by law, consequently his actions in superseding other district attorneys in the state are admissible to show that his motives were not in the interest of the state but arbitrary and capricious.
This case furnishes its own very apt example of the reason why the action of the attorney general in exercising his discretion in matters of supersession should be reviewable by the courts. Although the attorney general purportedly superseded the district attorney in this instance in the interest of the state (to see that Jerome A. Hayes receive justice) the record shows he contributed his pro-rata share, along with several other state officials, of the amount needed to finance Hayes's appearance bond in these very cases which he was prosecuting for the state against Hayes and to which end he had superseded the district attorney; and he appeared in court as the personal representative of Hayes (the very man against whom the grand jury returned indictments and whom the attorney general superseded the district attorney to prosecute) in order to prevent the grand jury (also represented by the attorney general because of his general supersession of the district attorney) from securing the report Hayes had made of his investigation of the public offices and institutions of Tangipahoa parish.
The attorney general's supersession of the district attorney in Sabine parish, referred to by the judge ad hoc in his opinion, furnishes another illustration of the arbitrary and capricious abuse of the powers of his office. In that case, while he was acting as the legal adviser of the grand jury there, the jury returned an indictment against Sheriff Derrick of Sabine parish charging that he had accepted a bribe on the testimony of two notorious bootleggers and law violators. The attorney general, apparently content that the indictment alone would serve its purpose, made no effort to prosecute Sheriff Derrick until the sheriff himself insisted that he be tried. He was acquitted by a jury of his peers within a few minutes after the trial began, and, subsequently, indictments were returned against the two prosecuting witnesses, charging that they had been guilty of perjury in making their complaint and testimony against the sheriff. The attorney general, charged specifically under the constitution with acting solely as the representative of the state, then, in order to extricate these prize witnesses from the trap they had themselves set, appeared in court through one of his assistants as the attorney for these bootleggers and law violators and filed there a motion to have the indictments charging them with perjury quashed.
It is interesting to note that when the attorney general sought to explain to this court, during his oral argument, why he had never prosecuted any of the several hundred indictments returned by other grand juries throughout the state during the periods when he or one of his assistants was acting as the grand jury's legal adviser, he stated that these indictments were returned by grand juries, like those made by Jerome A. Hayes, upon "wild charges" and were based on such flimsy evidence that it would have been impossible for him (the attorney general) to substantiate them in a court of law. This was an admission on the part of the attorney general of the abuses to which he was lending his office. He admits knowing that the indictments were wholly unfounded — were not worth the paper they were written on, so to speak — and, although he was unable to control the action of the grand jury returning such worthless indictments, being thus well aware that they were unfounded because either he or one of his assistants acted as the grand jury's legal adviser when they were returned, it became his duty, in the interest of justice and in all fairness to those falsely charged, to immediately have these unsupported indictments nolle prossed and not delay taking such action until the indictments had served their purpose of aiding in the defeat of those politically opposed to him and his faction.
It is impossible to conceive in what manner the attorney general was acting in the interest of the state in any of the instances where he superseded the various politically opposed district attorneys throughout the state. As was succinctly pointed out by this court in the case of State v. Tate, 185 La. 1006, 171 So. 108, 112: "The district attorney is a quasi judicial officer. He represents the State, and the State demands no victims. It seeks justice only, equal and impartial justice, and it is as much the duty of the district attorney to see that no innocent man suffers as it is to see that no guilty man escapes. * * * Therefore he should not be involved or interested in any extrinsic matters which might, consciously or unconsciously, impair or destroy his power to conduct the accused's trial fairly and impartially."
It is my opinion, therefore, that the judge ad hoc, having properly concluded the attorney general's supersession of the district attorney in this case was capricious, arbitrary and not in the interest of the state, correctly enjoined him from superseding the district attorney in the prosecution of the various matters involved in this proceeding and representing the grand jury and that his judgment should be affirmed.
The majority ruling in this case, so far as it forbids the Attorney General to intervene in and take charge of a criminal prosecution, is a reversal of the jurisprudence on the subject. Every member of the court, as then constituted, subscribed to the opinions which are being overruled now. Two members of the court, as now constituted, were not members of the court when the Major case was decided, and one of them was not a member of the court when the other cases were decided. But their predecessors concurred in those decisions, making them unanimous.
The principal error in the majority opinion in this case is in the holding that section 56 of Article VII of the Constitution imposes a limitation upon the authority of the Legislature to confer upon the Attorney General more powers than he was given specifically by that section of the Constitution itself. That section is not a constitutional limitation. On the contrary, in general terms it provides that the Attorney General shall have charge of all legal matters in which the State has an interest, or to which the State is a party, with power and authority to institute and prosecute or to intervene in any and all such proceedings, civil or criminal, as the Attorney General may deem it necessary to institute or to prosecute or to intervene in, for the assertion or protection of the rights and interests of the State; and, specifically, it is declared in that section that the Attorney General shall exercise supervision over the several District Attorneys throughout the State and shall perform all other duties imposed upon him by law. The concluding clause in that section, "shall * * * perform all other duties imposed by law", means that the Legislature is left free to amplify the authority of the Attorney General, particularly with reference to his supervisory powers over the several District Attorneys throughout the State. That is what we said in the case of State v. Major, 181 La. 822, 160 So. 425, 427, — thus:
"The expression `and perform all other duties imposed by law' has reference not only to the duties which were already imposed by law, but also to such appropriate duties as might thereafter be imposed by law. See State v. Cedar Grove Refining Company, 178 La. 810, 152 So. 531, 533, where it was held that the expression `as defined by law,' in the Constitution (art. 6, § 22), did not mean `as already defined by law', but meant as then or thereafter defined by law."
It must be borne in mind — and in fact it is conceded in the majority opinion in this case — that the powers conferred upon the District Attorneys, unlike the powers conferred upon the Attorney General, are conferred not by the Constitution but only by the Legislature, specifically by the articles of the Code of Criminal Procedure, cited in the majority opinion in this case. This freedom of authority of the Legislature to amplify the powers of the Attorney General — and to lessen the powers of the District Attorneys — was recognized by this court unanimously in State v. Major, 181 La. 822, 160 So. 425, and in State ex rel. De Armas v. Platt, Judge, 193 La. 928, 192 So. 659, and in State v. Ardoin (and the seven companion cases), 197 La. 877, 2 So.2d 633. In fact it is recognized universally that, although the Legislature cannot take away from a public official powers that are given to him by the Constitution, the Legislature may take away from a public official any powers that have been given to him by the Legislature, and may transfer such powers to any other public official whose powers are not expressly limited by the Constitution. That is recognized in the following cases: Cobb v. Parnell, Governor of Arkansas, et al., 183 Ark. 429, 36 S.W.2d 388; Commonwealth ex rel. Bell v. Powell, 249 Pa. 144, loc. cit. 154, 94 A. 746, loc. cit. 749; Whitaker v. Parsons, 80 Fla. 352, loc. cit. 363, 86 So. 247, loc. cit. 251; State ex rel. Knox, Attorney General, v. Board of Supervisors of Grenada County, 141 Miss. 701, 105 So. 541, loc. cit. 546; People ex rel. Gullet v. McCullough, 254 Ill. 9, 98 N.E. 156, loc. cit. pp. 159 and 160, Ann. Cas. 1913B, 995; Wall v. Close, Director of Finance, pages 15, 20, 27, 35 [ 204 La. 345, 371-373, 377-382, 389-392, 401-404, 14 So.2d 19, 28, 30, 31, 34, 38]; 59 C.J. p. 112, § 124.
In Cobb v. Parnell, Governor, 36 S.W.2d at page 389, the Supreme Court of Arkansas stated the rule thus:
"It is a fundamental and universally recognized canon of construction that the Constitution of this state is not a grant, but a limitation, of power, and, in all cases where there is not an express or necessarily implied limitation of its power by the Constitution, the Legislature is supreme; and it is always the presumption that, in the enactment of a law, the power of the Legislature has not been limited and it is properly exercising its inherent authority."
In Commonwealth ex rel. Bell v. Powell, 249 Pa. at page 154, 94 A. at page 749, the Supreme Court of Pennsylvania stated the rule thus:
"Counsel for appellants also contend that section 10 infringes upon the constitutional functions of the auditor general and state treasurer. The answer to this is that, while these officers are named in the Constitution, yet their duties are not therein defined. That was left to the Legislature. That body did define the duties of these officers, prior to the present Constitution, in the act of March 30, 1811, 5 Sm.L. 228, and it is suggested that, in adopting the present constitution, the continuance of those duties was contemplated. It must be admitted, however, that, as the Legislature originally prescribed those duties, it has power to alter them, and an act making such alteration cannot for that reason be held to be unconstitutional."
In Whitaker v. Parsons, 80 Fla. at page 363, 86 So. at page 251, the Supreme Court of Florida stated the rule thus:
"The Legislature, having all the lawmaking power of the state that is not withheld by the Constitution, may prescribe duties to be performed by officers expressly provided for by the Constitution, in addition to the duties of those officers that are defined in the Constitution, where not forbidden by the organic law; and the Constitution does not withhold from the Legislature the power to prescribe additional duties to be performed by the state treasurer, or others of `the administrative officers of the executive department,' that are not inconsistent with their duties as defined by the Constitution".
In State ex rel. Knox, Attorney General, v. Board of Supervisors of Grenada County, 105 So. at page 546, the Supreme Court of Mississippi stated the rule thus:
"It will be seen from a reading of this section that the Constitution gives the board of supervisors full jurisdiction over roads, ferries, and bridges, to be exercised in accordance with such regulations as the Legislature may prescribe, and shall perform such other duties as may be required by law. The right of the Legislature to control them under proper regulations as to their constitutional jurisdiction is provided for in the Constitution itself. Their other powers and duties are such as the Legislature may confer, or prescribe not violative of the Constitution."
In People ex rel. Gullett v. McCullough, 98 N.E. at pages 159-161, the Supreme Court of Illinois had this to say on the subject:
"The Attorney General is vested with many powers and duties, and these appertain to his office under the Constitution. He cannot be deprived of these common-law functions by the Legislature, but new duties may be imposed.
"* * * It cannot, however, be maintained that the statutory duties performed by the executive officers when the Constitution was adopted became at that time unchangeable. Section 1 of the Schedule recognized the continuance of all the statutes imposing duties on the executive officers, and the Constitution contains no evidence of an intention that they should be irrepealable. Such statutes continued to be operative as statutes under the new Constitution until changed by the Legislature, but the power of the Legislature to amend or repeal them was not affected."
In the very recent case of Wall v. Close, Director of Finance, 203 La. 346, 14 So.2d 19, this court recognized the principle in several instances. On page 15 of the opinion [ 203 La. 371, 14 So.2d 28], referring to Act No. 111 of 1942, it is said:
"It does not take away from any officer, board, or agency any function or duty conferred by the Constitution itself."
On page 20 of the opinion [ 203 La. 379, 14 So.2d 30], referring to the same statute, it is said:
"It does not purport to strip, nor does it in fact strip, any officer of the Executive Department of the government of any of the duties and functions conferred upon such officers by the Constitution."
On page 27 of the opinion [ 203 La. 390, 14 So.2d 34] it is declared:
"Therefore, since the duties of the Auditor and the Treasurer are fixed by the Legislature, that branch of the State government was within its rights in changing or modifying the duties of those officers, if, in fact, it did so by Act 111 of 1942."
On page 35 of the opinion [ 203 La. 402, 14 So.2d 38] it is declared:
"The act transfers to the Department of Finance certain functions of the Printing Board, which had been conferred upon it by the Legislature. The State Printing Board was not created by the Constitution, but by the Legislature."
In 59 C.J. 112, § 124, the rule is stated thus:
"In the absence of constitutional restrictions, the duties of a state officer may be increased or diminished at the will of the legislature. But the legislature cannot deprive an officer of the duties imposed upon him by the constitution, as by transferring his duties to another officer."
It is declared in the majority opinion in this case, on pages 12 and 13, [15 So.2d 10] that if this court adheres to its decisions maintaining that section 56 of Article VII of the Constitution does not impose a limitation upon the supervisory powers of the Attorney General over the District Attorneys throughout the State, the Legislature could confer upon the Attorney General all of the duties and functions that have been conferred by the Legislature upon the District Attorneys, and thus put them out of business, so to speak, — so as to present the spectacle of these officials holding titles and drawing salaries as District Attorneys for six years "without any powers, duties, functions and responsibilities". I concede that there is no express constitutional limitation to prevent the Legislature from enacting such foolish legislation; but I do not concede that the writers of the Constitution had any reason to fear that the Legislature would ever wish to transfer all of the powers of the District Attorneys to the office of the Attorney General. None of us feared such dire consequences when we — unanimously — rendered the several decisions which are being virtually overruled by this decision.
204 La. 137.
We are not now dealing with the question of constitutionality of that provision in Act No. 24 of the First Extra Session of 1934 which purports to deprive the courts of jurisdiction to curb any abuse of the discretion of the Attorney General in a given case, because the Attorney General does not dispute that the courts have such jurisdiction. In his testimony as a witness in this case, he conceded that, to that extent, the statute should be deemed violative of section 6 of Article I of the Constitution, guaranteeing that the courts shall be open to everyone and that everyone shall have an adequate remedy for any injury done to him. The Attorney General conceded also, in testifying in this case, that the act of 1934 did not purport to authorize him to supersede or supplant a District Attorney to the extent of taking over all of the functions of his office, — or in such a way as virtually to remove a District Attorney from office temporarily. The Attorney General concedes that such an interpretation of the statute would be violative of sections 1 and 6 of Article IX of the Constitution, prescribing the causes for which and the method by which a District Attorney is subject to removal from office.
In this case the Attorney General is undertaking merely to supersede the District Attorney in two kinds of proceedings. In the first place, he is undertaking to supersede the District Attorney by intervening in and taking charge of the two criminal cases in which Jerome A. Hayes and his auditors are charged with conspiring to destroy public records and with destroying public records, and a case in which Hayes is charged with slandering the sheriff. In the second place, the Attorney General is undertaking to supersede the District Attorney as the legal adviser of the grand jury in certain investigations or complaints regarding any of the public institutions in the parish, and particularly all audits of and regarding the several offices, departments and institutions mentioned in the second letter addressed to the District Attorney by the Attorney General. For reasons which I shall give hereafter in this opinion I agree that the Attorney General should not supersede the District Attorney as legal adviser of the grand jury in the circumstances of this case, against their protest.
In the case of State v. Major, decided on March 4, 1935, 181 La. 822, 160 So. 425, 426, we had before us for the first time the question of constitutionality of Act No. 24 of the First Extra Session of 1934, so far as it purported to enlarge the authority and powers of the Attorney General in the exercise of his supervision over the District Attorneys throughout the State, and, specifically, his authority to intervene in and take charge of a criminal prosecution. And we held that the statute was not violative of any provision in section 56 of Article VII of the Constitution. The way in which the question of constitutionality of the statute arose is stated in the opinion rendered in that case, thus:
"The question of constitutionality of the statute arose in consequence of the arrest of one A.J. Major, who was employed as an inspector for the supervisor of public accounts. The district attorney filed a bill of information against Major for carrying a concealed weapon. Major claimed that he was employed also as an agent of the bureau of criminal identification and investigation, that he was under assignment to his official duties at the time of his arrest, and was therefore allowed, by a provision in section 12 of Act No. 9, of the First Extra Session of 1934, to carry concealed weapons. Major conferred with an Assistant Attorney General, and he, in turn, notified the district attorney, in writing, that he, the Assistant Attorney General, acting under authority of section 56 of article 7 of the Constitution, and Act No. 24 of the First Extra Session of 1934, amending article 17 of the Code of Criminal Procedure, would relieve the district attorney of further prosecution of the case against Major. The district attorney replied that he considered Act No. 24 of the First Extra Session of 1934 unconstitutional, and therefore respectfully declined to recognize the authority claimed by the Attorney General, or Assistant Attorney General, to relieve or supersede a district attorney in a criminal prosecution where there was no failure or neglect of duty, or disqualification, on the part of the district attorney. He respectfully invited the Assistant Attorney General to file a formal motion in the criminal district court, to obtain a ruling on the question at issue between them. The Assistant Attorney General filed the motion, and the judge directed the district attorney to show cause why the Assistant Attorney General should not be allowed to relieve and supersede the district attorney in the prosecution of Major. The district attorney pleaded, substantially, as he had answered the letter of the Assistant Attorney General; and, after hearing arguments on both sides of the question, the judge decided that Act No. 24 of the First Extra Session of 1934 was not unconstitutional, and that the Assistant Attorney General should be allowed to relieve and supersede the district attorney in the prosecution of Major.
* * * * *
"The argument of the district attorney is that the authority of the Attorney General or an Assistant Attorney General to relieve or supersede a district attorney is defined in section 56 of article 7 of the Constitution, and is thereby limited to cases where the intervention of the Attorney General or of an Assistant Attorney General is `necessary for the assertion or protection of the rights and interests of the State,' as, for example, where the district attorney fails or neglects, or is disqualified or incompetent, to prosecute the case. [Here the court quoted sec. 56 of art. 7 of the Constitution].
* * * * *
"The expression `and perform all other duties imposed by law' has reference not only to the duties which were already imposed by law, but also to such appropriate duties as might thereafter be imposed by law. See State v. Cedar Grove Refining Company, 178 La. 810, 152 So. 531, 533, where it was held that the expression `as defined by law,' in the Constitution (art. 6, § 22), did not mean `as already defined by law,' but meant as then or thereafter defined by law.
* * * * *
"It is not necessary to decide now whether an abuse of the discretion which is vested in the Attorney General might be inquired into by the courts. There is no showing of abuse of discretion in this case. The Assistant Attorney General frankly stated that his reason for desiring to relieve and supersede the district attorney was that their opinions were not in accord on the question whether A.J. Major was allowed by law to carry a concealed weapon at the time of his arrest. Whether that was a sufficient or an insufficient reason for the action of the Assistant Attorney General, his action was not arbitrary."
In affirming the ruling of the Judge of the Criminal District Court, that Act No. 24 of the First Extra Session of 1934 was not violative of any provision in section 56 of Article VII of the Constitution, we declared in the Major case that under the provisions of that section the Attorney General already had authority to intervene in and take charge of any criminal case, as he might "deem necessary for the assertion or protection of the rights and interests of the State", and that, to that extent, the Attorney General had the right to exercise his power of supervision over the District Attorneys without the aid of Act No. 24 of the First Extra Session of 1934. In that connection we declared that the word "supplant" was added to the words "relieve" and "supersede". We were mistaken in saying that the word "supplant" was the only word that was added to the words in the Constitution, because in fact the synonyms "relieve" and "supersede" also were new words, added by the statute. That mistake, however, did not control or affect the decision in the Major case, that the power and authority of the Attorney General, under section 56 of Article VII of the Constitution, "to intervene in" any criminal proceeding, as he might deem necessary for the assertion or protection of the rights and interests of the State, gave the attorney general the right to have control — and to take charge — of any case that he might see fit to intervene in.
To say that the Attorney General should not have the right to take charge and have control of a case in which he may intervene, — but should merely share the authority with the District Attorney in such a case — would be not consistent with the supervisory power of the Attorney General over the several District Attorneys throughout the state, — which power is expressly conferred by section 56 of Article VII of the Constitution.
In that connection we must bear in mind that the Attorney General, in this instance, in both of his letters advising the District Attorney that he, the Attorney General, would supersede him in the matters referred to in the letters, declared: "This is to advise you that in accordance with the authority vested in me by the Constitution and laws of the State of Louisiana", et cetera. [The italics are mine.]
On pages 24 and 25 of the majority opinion [15 So.2d 14] in this case is a severe criticism of the opinion rendered in the Major case. The only mistake made in that case, as I have pointed out, was in the statement of fact that the word "supplant" was the only new word that was added in the redundant expression in Act No. 24 of the First Extra Session of 1934, "to relieve, supplant and supersede". The words "relieve" and "supersede" also were added by the act of 1934, for good measure, apparently, and to make the phraseology seem more vigorous in its intention. The purpose of employing all of these synonyms was to make clear and to amplify the supervisory authority which was given to the Attorney General in section 56 of Article VII of the Constitution; that is, to have charge of all legal matters in which the State has an interest, or to which the State is a party, with power and authority to institute and prosecute or to intervene in any proceeding, civil or criminal, as he might deem necessary for the assertion or protection of the rights or interests of the State, and to exercise supervision over the several District Attorneys throughout the State, and to perform all other duties imposed upon the Attorney General by law.
204 La. 150.
The context of the opinion rendered in the Major case shows that the mistake of saying that only one of the three synonyms "relieve", "supplant", and "supersede", was added by Act No. 24 of the First Extra Session of 1934, was a matter of no importance whatever. If the context of the opinion in the Major case is not enough to convince anyone of the lack of importance of the mistake that was made in the opinion in that case, surely the fact that none of the seven members of the court even noticed the mistake when they read and signed the opinion in the Major case ought to be convincing that the error in the opinion had no importance. And this lack of importance is confirmed by the fact that none of the seven justices noticed the mistake when, in May 1941, they all read and signed the opinion in the Ardoin case, — in which the Major case was referred to with approval and at great length. And, if we want "confirmations strong as proofs of Holy Writ", — that the mistake in the Major case has no such importance as is attributed to it in the majority opinion in the present case, — let us remember that our attention was directed to this mistake in the briefs filed in the present case on February 1, 1943, and it was stressed in the oral argument of the case on that day; and yet the mistake was not considered of sufficient importance to be even mentioned in the majority opinion rendered in this case on March 8, 1943.
I respectfully submit, therefore, that the decision in the Major case is as good authority today as it would be if the court had not been mistaken about the piling up of the synonyms, "relieve", "supplant", and "supersede". And I can see no necessity for magnifying the mistake, as it is magnified in the majority opinion in this case.
The further criticism of the opinion in the Major case, — on pages 24 and 25 of the majority opinion in the present case [15 So.2d 14], — commencing with the statement, "It was also incorrect to hold that the statute did not attempt to confer judicial functions on the Attorney-General" et cetera, — I respectfully submit, is not justified by a reading of the opinion itself. On that subject the opinion speaks for itself, and has been speaking for itself, with the sanction of every member of this court, for more than eight years.
204 La. 150.
And, in that connection, it is said on page 25 of the majority opinion in the present case [15 So.2d 15], — by way of final criticism of the opinion rendered in the Major case, — that, while the court stated in that case that it was not necessary then to decide whether the court might inquire into an alleged abuse of discretion on the part of the Attorney General, nevertheless the court "did make the inquiry and held that there was no showing of abuse of the discretion in the case". There was no inconsistency in what the court said on that subject in the Major case. What the court said — or attempted to make plain — was that it was not necessary to decide in the Major case whether the court might substitute its judgment for the discretion vested in the Attorney General in a case where there was some showing of abuse of his discretion, — because there was no such showing in the Major case. Perhaps some other writer might have used the term "no vestige", or "no pretense", instead of "no showing", of abuse of discretion. But, as a matter of style, I still think that the term "no showing" was well chosen. I repeat now the way in which we expressed our opinion on that subject in the Major case, — viz:
204 La. 152.
"It is not necessary to decide now whether an abuse of the discretion which is vested in the Attorney General might be inquired into by the courts. There is no showing of abuse of discretion in this case. The Assistant Attorney General frankly stated that his reason for desiring to relieve and supersede the district attorney was that their opinions were not in accord on the question whether A.J. Major was allowed by law to carry a concealed weapon at the time of his arrest. Whether that was a sufficient or an insufficient reason for the action of the Assistant Attorney General, his action was not arbitrary."
On pages 25, 26 and 27 of the majority opinion in the present case [15 So.2d 15] is an analysis of the opinion which was concurred in unanimously in the eight consolidated cases entitled State v. Ardoin, 197 La. 877, 2 So.2d 633, decided originally on April 28, and on rehearing on May 26, 1941. The quotation from that opinion, on page 27 of the majority opinion in the present case [15 So.2d 15], is not complete; and, by reason of its being incomplete, it conveys the wrong impression that, if the District Attorney, instead of the defendants in the eight cases, had complained of the extent to which the Attorney General had relieved and superseded the District Attorney, our ruling might have been different. But the sentence which immediately follows the quotation in the majority opinion in this case, — and which is omitted from the quotation in the majority opinion in this case, — declares that the result would have been the same if the District Attorney, instead of the defendants, in the Ardoin case, had complained of the extent to which the Attorney General relieved and superseded the District Attorney. In the majority opinion p. 27 in this case [15 So.2d 15] the author quotes only this much of the opinion on the subject in the Ardoin case, — viz:
204 La. 152.
204 La. 152.
204 La. 154.
"We doubt that any one of the defendants in these cases should be concerned with the Attorney General's having served as legal advisor of the grand jury in relation to the case of any other of the defendants. The only one who might have been concerned with the extent to which the Attorney General served as legal advisor of the grand jury is the District Attorney."
The sentence which immediately follows that quotation, — in the same paragraph and forming a continuation of what was quoted, — is this: "If he had complained the result would have been the same as when the District Attorney made the same complaint in the St. Bernard case and in the Plaquemine case." In the St. Bernard case and in the Plaquemine case, — as we explained in the Ardoin case, — the complaint of the District Attorney was rejected on the ground that section 56 of Article VII of the Constitution and article 23 of the Code of Criminal Procedure gave the Attorney General authority to relieve and supersede the District Attorney. Here is what we said about the St. Bernard case and the Plaquemine case, in the Ardoin cases:
"In two cases of later date [later than the case of State ex rel de Armas et al. v. Platt, Judge, 193 La. 928, 192 So. 659], presenting exactly the same issues and arguments that are made in the present [Ardoin] cases, we decided unanimously that the Attorney General had the right, under authority of section 56 of Article VII of the Constitution and Article 23 of the Code of Criminal Procedure, to relieve and supersede the District Attorney as legal advisor of the grand jury when requested so to do by the grand jury. We refer to the case entitled In re Request of the St. Bernard Parish Grand Jury for the Supersession of the District Attorney by the Attorney General, No. 36,117 of the docket of this court, and the case entitled In re Request of the Plaquemine Parish Grand Jury for the Supersession of the District Attorney by the Attorney General, No. 36,127 of the docket of this court. These cases are not reported officially because they came up on the petition of the District Attorney for writs of certiorari to review a ruling of the judge of the district court and we refused to grant even a rule to show cause. The reason which we gave in each case, for refusing to grant a writ or a rule to show cause, was that the ruling complained of, in which the judge of the district court affirmed the right of the Attorney General to relieve and supersede the District Attorney, was correct; and in support of the ruling we cited Section 56 of Article VII of the Constitution and Article 23 of the Code of Criminal Procedure — thus: `Writs refused, ruling correct. Sec. 56, Art. 7 of the Constitution of 1921, and Art. 23 Code of Criminal Procedure.' The first of these two cases was filed on February 11 and was disposed of on February 13, and the second case was filed on February 13 and was disposed of on February 14, 1941. The record in the eight cases which we are now considering was filed in this court on February 12, 1941; and we had in mind when we made the ruling in the St. Bernard case and in the Plaquemine case that the same issues which we were deciding then would be tendered again when these eight cases would come up for argument on appeal. There is therefore nothing new in the arguments made in these cases. Ordinarily, a ruling by which this court refuses to grant a supervisory writ to review a judgment or ruling of another court — even when this court states as its reason for the refusal that the judgment or ruling complained of is correct — is not deemed to be as good authority as a precedent as if this court had decided the case after granting a writ, or had decided the case on appeal. But the circumstances in which we made the ruling in the St. Bernard case and in the Plaquemine case make the ruling very persuasive if not controlling in the present cases. In the case of Carrere v. City of New Orleans, 162 La. 981, loc.cit. 1015, 111 So. 393, loc.cit. 405, we pointed out that, since the Constitution has required, in Article VII, Section 2, that an appellate court shall state its reason or reasons, when it refuses to grant a supervisory writ or writ of review, now when the Supreme Court refuses to grant a writ and declares its reason to be that the judgment or ruling complained of is correct, `it may be said that the Supreme Court affirms or at least approves the decision' or ruling complained of. Twice, therefore, we affirmed or at least approved the ruling of the judge of the district court in St. Bernard and in Plaquemine parish that the Attorney General had the right to relieve and supersede the District Attorney as legal advisor of the grand jury, over the protest of the District Attorney, when the Attorney General was requested by the grand jury so to relieve and supersede the District Attorney."
On page 28 of the majority opinion in the present case [15 So.2d 16] it is said that our ruling in the St. Bernard case and in the Plaquemine case "simply followed the misstatement and erroneous views expressed in the Major case". That is a mistake, because, as I have pointed out, we did not base our ruling in the St. Bernard case or in the Plaquemine case upon Act No. 24 of the First Extra Session of 1934, or upon the interpretation given to the act in the Major case, but based our ruling exclusively upon section 56 of Article VII of the Constitution and upon article 23 of the Code of Criminal Procedure. I quote again — in full — the ruling made in the St. Bernard case and in the Plaquemine case, — thus: "Writs refused, ruling correct. Sec. 56, Art. 7 of the Constitution of 1921, and Art. 23, Code of Criminal Procedure." [ 197 La. 877, 2 So.2d 637]. That was a simple declaration that section 56 of Article VII of the Constitution, and article 23 of the Code of Criminal Procedure, were sufficient authority for the Attorney General to relieve and supersede the District Attorney, without regard for Act No. 24 of the First Extra Session of 1934. And, surely, that declaration had nothing whatever to do with any "misstatement and erroneous views expressed in the Major case".
204 La. 155.
On pages 27 and 28 of the majority opinion in the present case, [15 So.2d 16] the pronouncement which were made on this subject in the De Armas case are referred to as if they were not to be regarded as maintaining that the Attorney General might relieve or supersede a District Attorney under authority of Act No. 24 of the First Extra Session of 1934. But these pronouncements in the De Armas case were quoted with approval, and as authority, unanimously, in the Ardoin case, — thus:
204 La. 155.
"The right of the Attorney General to relieve and supersede a District Attorney as legal advisor of the grand jury, on the request of the grand jury, was recognized in the case of State ex rel. De Armas et al. v. Platt, Judge, 193 La. 928, 192 So. 659. The question in that case was whether the conduct of two grand jurors, who persisted in reading to the judge — after he had forbidden them to read — a criticism of the district attorney and a request for the judge to designate an outside attorney to relieve and supersede the district attorney as legal advisor of the grand jury, was a sufficient cause for the judge to remove the two offending grand jurors. In deciding the question it was not out of order for the court to observe — and the court did observe — that if there was sufficient cause for the District Attorney to be relieved and superseded as legal advisor of the grand jury the latter should have requested the Attorney General to relieve and supersede the District Attorney as legal advisor of the grand jury. On pages 990 and 991 of 193 La. and on page 679 of 192 So., is this declaration:
"`If the District Attorney and his staff were guilty of such misconduct and neglect of duty, which did not constitute a crime, nor a ground for their removal or impeachment, they might be superseded by the Attorney-General under the provisions of Act No. 24 of 1934, 1st Ex. Sess.'
"Again, on page 993 of 193 La. and page 680 of 192 So. is this declaration:
"`These charges, if proved to be true, might be sufficient reasons to justify the Attorney-General in superseding the District Attorney.'"
We have declared, therefore, in four instances, — and with the utmost deliberation, — that the Attorney General has authority to relieve and supersede a District Attorney as adviser of the grand jury if the grand jury requests the Attorney General to relieve and supersede the District Attorney as adviser of the grand jury. But we have never decided, or had occasion to decide, that the Attorney General may relieve and supersede a District Attorney as adviser of the grand jury against the protest of the grand jury, as in this case. My opinion is that the judgment in this case is correct so far as it forbids the Attorney General to relieve or supersede the District Attorney as adviser of the grand jury in the matters set forth in the second letter addressed to the District Attorney by the Attorney General. The reason for this conclusion is twofold. In the first place, it would result in an impasse if the court should undertake to compel the grand jurors to accept the Attorney General as their legal adviser in matters in which they refuse to accept his advice. That is the practical aspect of the case. In the second place, it is not the duty of the grand jury to make a sweeping investigation of all of the public offices, boards, commissions and institutions enumerated in the letter of the Attorney General proposing to relieve and supersede the District Attorney as adviser of the grand jury in such matters. Of all of the institutions which the Attorney General proposed to have the grand jury investigate, there is only one concerning which the grand jury might have the right to make a report to the district judge; that is the Florida Parishes Hospital. In Article 210 of the Code of Criminal Procedure it is declared that the grand jury shall act upon any complaint that comes to its attention in only one of three ways, namely, first, by returning a true bill, second, by returning not a true bill, or, third, by pretermitting entirely the matter investigated, — that is to say, by taking no action whatever concerning the matter. In the closing paragraph of that article it is declared:
"If the evidence presented to the grand jury does not justify finding a true bill, the grand jury shall limit its action to returning not a true bill or pretermitting all action, and the grand jury shall not, in any case whatever, make any report on any matter submitted to it for investigation, except in the manner hereinabove indicated, as the grand jury is an accusatory body and not a censor of public morals. It shall make no reports to the court other than the return of presentment or indictment, except as specifically provided in Article 211 hereof."
And in Article 211 it is declared:
"Each grand jury shall inspect every prison, place of detention, asylum and hospital within the parish, and make report to the district judge of how the prisoners and inmates of every such institution are treated, and every such report shall state the number of prisoners and inmates in every such public institution, and the costs of maintenance, and shall state the length of time that each prisoner awaiting trial, at the time of said report, shall have been so held for trial."
Those two articles of the Code of Criminal Procedure plainly impose a limitation upon the functions of the grand jury as an inquisitorial body. It was so declared in the De Armas case. And as to that declaration there was no dissent in the De Armas case. There is no reason why twelve grand jurors should spend their time aiding the supervisor of public funds in the proposed investigations or audits of the several public institutions in the Parish of Tangipahoa, as proposed in the second notification given by the Attorney General to the District Attorney. Any accusation that might result from any such audit or investigation may be made as well by way of a bill of information, filed by the Attorney General, as by way of an indictment by the grand jury.
My conclusion is that, so far as the judgment appealed from enjoins the Attorney General from relieving or superseding the District Attorney in the three criminal cases, namely, (1) the case in which the Supervisor of Public Funds and his auditors are accused of conspiring to destroy public records, (2) the case in which they are accused of destroying public records, and (3) the case in which the supervisor is accused of slandering the sheriff, the judgment should be reversed; and, so far as the judgment enjoins the Attorney General from acting as legal adviser of the grand jury in the proposed investigation of the public institutions referred to in the second letter of the Attorney General, the judgment should be affirmed.
I agree in the holding that the judgment of the District Court, so far as it enjoins the Attorney General from superseding the District Attorney as the adviser of the grand jury in the matters set forth in the second letter of the Attorney General addressed to the District Attorney, is correct. The practical effect of holding otherwise would be to oust the District Attorney from his office in a manner not provided nor contemplated by law. But I do not agree in the holding that the judgment, so far as it enjoins the Attorney General from superseding the District Attorney in the three cases of the State of Louisiana against Jerome A. Hayes, referred to in the first letter of the Attorney General, is correct.
The fact that the Attorney General has seen fit to supersede the district attorney in those cases does not have the effect of depriving the district attorney of his office. Notwithstanding such supersession, the district attorney remains the prosecuting officer for his district in all cases and matters in which he has not been superseded.
In my opinion the Attorney General has ample authority for his action in the three cases of the State of Louisiana against Jerome A. Hayes under the express provisions of Article 17 of the Code of Criminal Procedure, as amended by Act No. 24 of the First Extra Session of 1934, Article 23 of the same Code, and Section 56 of Article VII of the Constitution. I agree that so much of Article 17 of the Code of Criminal Procedure, as amended by Act No. 24 of 1934, which prohibits the courts from inquiring into the discretion vested in the Attorney General is unconstitutional because it is violative of Section 6 of Article I of the Constitution, guaranteeing that the courts shall be open to everyone and that every person shall have an adequate remedy for any injury done him. But the unconstitutionality of that portion of the statute does not destroy the other portion of the statute which, in my opinion, is severable and therefore constitutional.
It is plain to me that the primary purpose of the Legislature in enacting the statute was to remove any possible doubt that the Attorney General has the right to take charge of any criminal proceeding in which he might see fit to intervene. The attempt of the Legislature as expressed in the statute to prevent the courts from interfering with the Attorney General in the exercise of the authority conferred upon him was merely incidental to the main purpose of the law. There is no doubt in my mind that if the members of the Legislature had realized that that portion of the statute would not stand the test of judicial inquiry they, nevertheless, would have adopted the statute omitting the unconstitutional portion thereof which was wholly unnecessary to give validity to the law. Nor is there any doubt in my mind that the statute, after striking out the unconstitutional portion thereof, does not violate Section 56 of Article VII of the Constitution. On the contrary, the statute is wholly consistent with the provisions of the constitutional article which authorizes the Attorney General to intervene in all civil and criminal proceedings and to "perform all other duties imposed by law."
Article 17 of the Code of Criminal Procedure, as amended by Act No. 24 of the First Extra Session of 1934, expressly authorizes the Attorney General, where he deems it necessary to do so, to take charge of any civil or criminal proceeding.
Article 23 of the Code of Criminal Procedure in its wording is similar to Section 56 of Article VII of the Constitution. Both the statutory provision and the constitutional article confer upon the Attorney General the right to take charge of any civil or criminal proceeding as he might deem necessary in the assertion or protection of the rights and interests of the state, and to exercise supervision over the several District Attorneys throughout the state.
The fact that the framers of the Code of Criminal Procedure substantially reproduced in Article 23 of the Code the language contained in Section 56 of Article VII of the Constitution, does not and can not effect the right of the Legislature by subsequent enactments to enlarge the powers of the Attorney General under the express authority granted by the Constitutional provision itself.
Section 56 of Article VII of the Constitution reads in part as follows: "They (the attorney general and his assistants), or one of them, shall attend to, and have charge of all legal matters in which the State has an interest, or to which the State is a party, with power and authority to institute and prosecute or to intervene in any and all suits or other proceedings, civil or criminal, as they may deem necessary for the assertion or protection of the rights and interests of the State. They shall exercise supervision over the several district attorneys throughout the State, and perform all other duties imposed by law."
I find it impossible to give this constitutional provision the narrow interpretation placed upon it by the majority opinion. The closing sentence of Section 56 of Article VII, that the Attorney General "shall * * * perform all other duties imposed by law" indicates to my mind that it was the intention of the framers of the Constitution to leave it wholly within the discretion of the Legislature to enlarge, as they might see fit, the duties and authority of the Attorney General with regard to his supervision over District Attorneys.
Under the construction placed upon Section 56 of Article VII of the Constitution by the majority opinion, the right of the Attorney General to intervene in any criminal proceeding becomes a purely nugatory right. The construction is wholly inconsistent with the power given by the provision to the Attorney General to supervise the several District Attorneys throughout the State. If the constitutional grant of authority to the Attorney General to intervene in a criminal proceeding is nothing more than a grant of authority to the Attorney General to associate himself with the District Attorney, nothing could prevent the District Attorney from overriding the wishes or disregarding the instructions of the Attorney General in the event of a conflict of opinion arising between them. I respectfully suggest that the framers of the Constitution in adopting Section 56 of Article VII never contemplated any such absurd result.
The discretionary right given by the constitutional provision to the Attorney General to intervene in any criminal proceeding necessarily contemplates that the Attorney General is vested with something more than the mere right to appear in the proceeding as a subordinate or assistant to the District Attorney over whom the Attorney General is given supervisory powers by the same provision. Section 56 of Article VII of the Constitution clearly contemplates the vesting of complete authority in the Attorney General to take charge of any criminal proceeding in which he may deem it necessary to intervene, whether his act in so doing be characterized as an act of intervention, supervision or supersession of the District Attorney. Any other construction of the constitutional provision defeats its manifest purpose, and I can not accept it as correct.
My views in this respect are not adversely affected by the fact that as stated in the majority opinion the Attorney General testified that he only "intervened" and acted with, instead of displacing, the district attorney in a case pending in the Parish of St. Tammany, whereas in the present case he superseded the District Attorney, completely excluding him "from taking any part whatsoever in the matter." I have no difficulty in reaching the conclusion that where the law empowers the attorney general to intervene and supersede the district attorney in any case, he may legally exercise the lesser power to intervene and act with the district attorney instead of superseding him.
My analysis of Section 56 of Article VII of the Constitution leads me to a different conclusion from that announced by the majority opinion. As I view it, there is nothing inconsistent in the wording of the constitutional provision. The first part of the second sentence merely declares that the Attorney General or his assistant shall have charge of all legal matters in which the State has an interest. This is a general provision and includes all legal matters in which the State is interested irrespective of whether the State is represented therein by the District Attorney. The latter part of the sentence explicitly sets forth the authority conferred on the Attorney General and his assistants to carry out the mandate embraced in the first part of the sentence. In my opinion, the third sentence is not purposeless as the majority opinion holds, because there are many matters other than those involved in litigation entrusted to the District Attorney which the framers of the Constitution obviously concluded should be subject to the supervision of the Attorney General.
I can not concur in the statement contained in the majority opinion that the conclusion announced therein with reference to the wording of Section 56 of Article VII of the Constitution is borne out by the construction placed thereon by the several Attorneys General who have occupied the office since 1921, because it was only after the adoption of the Act of 1934 that the Attorney General and his assistants claimed the right to supersede and relieve the District Attorney in criminal proceedings, the first case in which this was done being State v. Major, 181 La. 822, 160 So. 425. The fact that no Attorney General since 1921 through 1935, when the controversy arose in the Major case, saw fit to exercise the right granted him by the constitutional article does not warrant the assumption that the several Attorneys General disclaimed the right granted them by the Constitution to intervene in any civil or criminal proceeding. Apparently there was no occasion for the exercise of the right until the controversy, described and disposed of in the Major case, arose.
I am not impressed by the argument that if Section 56 of Article VII of the Constitution be held not to limit the powers of the Attorney General over District Attorneys, the Legislature could confer upon the Attorney General all the powers and functions performed by District Attorneys. The obvious answer to the argument is that the Legislature by enacting Act No. 24 of 1934, First Extra Session, does not purport to deprive District Attorneys of the right to perform the usual functions and duties of their offices. All that the Legislature purports to do is to grant the right to the Attorney General to intervene in special cases. Undoubtedly, the Legislature was authorized to do this since all the duties and powers of District Attorneys are derived from legislative and not constitutional authority.
It is difficult to imagine that the Legislature, being composed of reasonable and practical men, would enact or attempt to enact laws that would wholly deprive District Attorneys of the powers, duties and responsibilities of their office.
Independently of Act No. 24 of the First Extra Session of 1934, the Attorney General under the express authority of Section 56 of Article VII of the Constitution is given the right to intervene in or take charge of any criminal prosecution where he deems it necessary to do so.
I find no reason to retract in this case the views expressed by this Court, in which I concurred, in the cases of State v. Major, 181 La. 822, 160 So. 425 and State v. Ardoin, 197 La. 877, 2 So.2d 633, and the cases involving the request of the Police Juries of the Parishes of St. Bernard and Plaquemines for the supersession of the District Attorney Nos. 36,117 and 36,127, respectively, on the docket of this Court.
Holding the views hereinabove set forth, I can not subscribe to the proposition that the injunction issued by the district court prohibiting the Attorney General from intervening in and taking charge of the three cases of the State of Louisiana against Jerome A. Hayes should be permitted to stand.