Gervais v. New Orleans Police Department

No.
41509
Supreme Court of Louisiana
Gervais v. New Orleans Police Department

226 La. 782 (La. 1955) • 77 So. 2d 393
Decided Jan 10, 1955
No. 41509. Appellant admits the verity of all of the charges

upon which the action of the Superintendent of
December 13, 1954. Rehearing Denied January
Police was based, but he denies that any one of
10, 1955.
these acts furnishes legal cause for his removal
Matthew S. Braniff, New Orleans, for plaintiff- from the police force. His primary contention is
appellant. that, since the stated acts were committed during
the summer of 1952, before Section 15 of Article
Henry B. Curtis, City Atty., Beuker F. Amann,
XIV of the Constitution, LSA, was adopted, this
Asst. City Atty., New Orleans, for defendant-
amendment, which embodies civil service in our
appellee.
Constitution, cannot govern these acts. Conceiving
that these civil service provisions are penal in
McCALEB, Justice.
nature, he maintains that it would be improper to
Appellant, formerly a detective of the New construe them to be retrospective in operation.
Orleans Police Department, seeks a reversal of a
The point is without substance. This is not a case
ruling of the Civil Service Commission of the City
in which the dismissal of the employee is
of New Orleans, which upheld his removal from
grounded on acts committed prior to the time the
office on May 29, 1953, by the Superintendent of
civil service law was in effect forasmuch as
Police. The dismissal was founded on four causes,
appellant was a classified employee in civil
stated in writing by the Superintendent in
service during 1952 under the provisions of "the
conformity with law: (1) that appellant had
City Civil Service Law", LSA-R.S. 33:2391-2433,
become engaged in the business of selling jewelry,
formerly Act No. 171 of 1940, which has been in
an allegedly unauthorized employment outside of
force in the city of New Orleans since 1943.
his police duties; (2) that, during June, 1952, he
traveled via airplane to New York under an The amendment adopted by the people in 1952, by
assumed name, subsequently registering and which civil service for State employees and
occupying a room in the Hotel New Yorker from employees of cities having a population of over
June 14th to June 28th under an assumed name; 250,000 was inserted in our Constitution as
(3) that, during his visit, he shared the hotel room Section 15 of Article XIV, did not repeal or
with a woman who was not his wife, but who supersede LSA-R.S. 33:2391-2433. On the
registered as such under the name assumed by contrary, that statute and all other civil service
appellant and (4) his admitted association and laws were continued in force by specific
companionship with this woman, who was a stipulation of the constitutional amendment except
known police character. insofar as they were in conflict therewith. See
Section 15(P) (6) of Article XIV.1 Hence, it
1
Gervais v. New Orleans Police Department 226 La. 782 (La. 1955)
matters not that appellant's acts upon which his time, the procedure by which it may be protected
dismissal was founded occurred prior to the or defended, save as otherwise curtailed by the
adoption of the constitutional amendment. civil service provisions of the Constitution.
1 It provides: "All existing laws relating to
Counsel also claims that there was no lawful
the State or City Civil Service System are evidence produced against appellant to warrant his
continued in force insofar as not in conflict dismissal. It is said that, whereas it is true that
herewith, subject to the power of the
appellant committed all of the acts specified as
Legislature to amend or repeal such laws or
grounds for dismissal, his conduct was not such as
adopt new laws, provided said amendments
to justify the action taken against him, because
or new laws are supplementary and not in
they occurred while he was on vacation and,
conflict herewith".
further, because of his uncontroverted testimony
It is also plain that the civil service provisions are that he and his female companion did not occupy
not penal as contended by counsel for appellant. the bed of the hotel room at the same time.
Civil service laws are not enacted to penalize
The answer to this contention is that it involves
anyone. They are designed to eradicate the system
determination of a question of fact of which this
of appointment to public office for political
Court has no appellate jurisdiction under the
considerations and to establish in its place a merit
provisions of Section 15(O) (1) of Article XIV of
system of fitness and efficiency as the basis of
the Constitution. There was unquestionably some
appointment and, to this end, the appointee is
evidence before the Civil Service Commission
given tenure during good behavior. Evidently, this
exhibiting that the acts committed by appellant
notion of counsel (that the constitutional civil
were prejudicial to the service. We are without
service amendment is penal in nature) emanates
authority to examine into the question of the
from the faulty premise that appellant had a sort of
sufficiency thereof.
inalienable property right to his position which
could only be divested by the procedure obtaining The ruling of the City Civil Service Commission
at the time the right was conferred. But such of New Orleans is therefore affirmed.
argument overlooks, of course, the fact that,
FOURNET, C. J., absent.
except for civil service, appellant had no right of
tenure whatever and was subject to summary HAMITER, J., did not participate.
dismissal. And the legislative authority which
created the right can take it away or change, at any

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Gervais v. New Orleans Police Department

No. 41509. Appellant admits the verity of all of the charges

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