State Ex Rel. Harvey v. Stanly

(concurring).

I concur in tbe foregoing opinion, but not in the ruling that a parish superintendent of schools is not a public officer, nor in tbe reasoning on which that ruling is made to rest.

The case of State v. Theus, 114 La. 1097, 38 So. 870, is, in my view, authority for the proposition that a parish superintendent of schools is a public officer. This decision, which so holds, cannot be differentiated properly from the case at bar on the theory tbat it was rendered under tbe Constitution of 1898, whereas the present case arises under the Constitution of 1921. Tbe Constitution of 1921 makes it even stronger than does the Constitution of 1898 that a parish superintendent is a public officer. This appears from merely quoting the pertinent articles of the two Constitutions.

Article 210 of tbe Constitution of 1898 reads tbat:

“No person shall be eligible to any office, State, judicial, parochial, municipal, or ward, who is not a citizen of this State and a duly qualified elector of the State, judicial district, parish, municipality or ward, wherein the-functions of said office are to be performed.

Article 250 of the Constitution of 1898-reads tbat:

“Tbe General Assembly shall provide for tbe creation of a State Board, -and Parish Boards of Public Education. The Parish Boards shall elect a Parish Superintendent of Public Education for their respective parishes, whose qualifications shall be fixed by the Legislature, and who shall be ex-officio secretary of tbe Parish Board. Tbe salary of tbe Parish Superintendent shall be provided for by the General Assembly, to be paid out of the public school funds accruing to the respective parishes.”

As to tbe Constitution of 1921, section 13-of article 8 thereof reads, so far as pertinent, that:

“No person shall be eligible to any. office, State, district, parochial, municipal or ward, who is not a citizen of this State and a duly *850 qualified elector of the State, district, parish, municipality or ward, wherein the functions of said office are to he performed. * * * Provided further, that this article shall not apply to superintendents of public schools.”

Section 10 of article 12 of the Constitution of 1921, reads, so far as pertinent, that:

“The Legislature shall provide for the creation 'and election of parish, school boards which shall elect parish superintendents for their respective parishes, and such other officers or agents as may be authorized by the Legislature. The State Board of Education shall fix the qualifications and prescribe the duties of parish superintendents, who need not be residents of the parishes. * ⅜ * ”

The only difference between the Constitutions of 1898 and 1921, with reference to parish superintendents, pertinent here, is that, under the Constitution of 1898, the qualifications of parish superintendents were required to be fixed by the Legislature, whereas, as appears from section 13 of article 8 and section 10 of article 12 of the Constitution of 1921, construed together, the qualifications of parish superintendents are required to he fixed by the state board of education; article 12, § 10, making it unnecessary to require residence as a qualification. However, making the usual requirement' of residence unnecessary as to parish superintendents, or even dispensing with it altogether, does not justify the conclusion that one holding that position is not an officer. 46 C. J. p. 938, § 34. To the contrary, the very reason why parish superintendents are excepted from section 13 of article 8 of the Constitution of 1921 is that the framers of the Constitution regarded them as officers; for the section treats of officers, not mere employees.

This is made clearer by section 10 of article 12 of that Constitution, which provides that parish school boards “shall eject parish superintendents for their respective parishes, and such other officers or agents as may be authorized by the Legislature.” (Italics mine.) The expression “other officers,” following the word “superintendents,” shows that the Constitution classifies “superintendents” as officers.

The fact that the Constitution provides that the state board of education shall fix the qualifications of parish superintendents, and does so in connection with the dispensing of the necessity of residence as a qualification — -a qualification usually applicable to officers alone — coupled with the fact that the Constitution refers to a parish superintendent as an officer, though it does so in connection with “agents,” shows that the Constitution classifies a parish superintendent as an officer. Moreover, a parish superintendent exercises a part of the sovereignty of the state in superintending the public schools of his parish, and for that reason also must be regarded as an officer.

As a parish superintendent is an officer under the Constitution of 1921 as well as under the Constitution of 1898, the Theus Case, cited supra, cannot be differentiated from it on that ground. Moreover, the Theus Case cannot be differentiated from the present case on the ground that the object of the two cases is different. Each is brought under the Intrusion into Office Act. Neither has for its object -the removal from office of an incumbent under article 222 of the Constitution of 1898, or under section 6 of article 9 of the Constitution of 1921, relative to removal of public officers for high crimes and misdemeanors and the like.

The correct reason, in my opinion, why section 6 of article 9 of the Constitution is not applicable to this case, is not because a parish superintendent is not an officer, nor because he is not an officer within the intendment of section 6 of article 9 of the Constitution, if that be the view of the majority, but because that section is not controlling as to the removal of officers elected by governmental boards, but such boards remove officers elected by them in the manner directed by the Legislature. This has always been the case, and there appears nothing in the Constitution to prevent the Legislature from authorizing parish school boards, which it has done, to remove superintendents, elected by them, for prescribed causes.

Approving the opinion in other respects, I concur in the decree.