#### William M. BARNETT et al. v. Robert E. DEVELLE et al.

No. 5735.

Court of Appeal of Louisiana, Fourth Circuit.

May 25, 1973.

Rehearing Denied June 8, 1973.

Writ Granted Aug. 21, 1973.

Many, Hartman, Lococo & Dwyer, Ralph D. Dwyer, Jr., New Orleans, for plaintiffs-appellants.

Blake G. Arata, City Atty., New Orleans, Jackson P. McNeely, Asst. City Atty., for*defendants-appellees.

Dodd, Hirsch, Barker, Meunier, Bou-dreaux & Lamy, C. Paul Barker, Maurice S. Cazaubon, Jr., New Orleans, for inter-venors-appellees.

William J. Guste, Jr., Atty. Gen. of La., Warren Mouledoux, First Asst. Atty. Gen., Louis A. Gerdes, Jr., Dale C. Wilks, Special Counsel, New Orleans, for original ap-pellee State of La.

Before STOULIG, SCHOTT and BAILES, JJ.

BAILES, Judge.

This is an appeal by the plaintiffs from an adverse judgment rendered in a suit for declaratory judgment and for injunctive relief.

The plaintiffs, individual members of the Civil Service Commission of the City of New Orleans, appeal from the judment of the district court sustaining peremptory exceptions of no right of action and no cause of action. This action was filed by plaintiffs against the Director of the Department of Finance, the Chief Administrative Officer, and the individual members of the Council of the City of New Orleans for a declaratory judgment decreeing Act No. 55 and Act No. 57 of the Extra Session of 1968 unconstitutional as violative of Article 14, Section 15 Louisiana Constitution of 1921.

Petitioners also seek injunctive relief against the City of New Orleans to prohibit the expenditure of certain funds necessary to comply with a previous judgment of this court which has now become final and executory.

In compliance with C.C.P. Article 1880, the Attorney General of the State was *529served with a copy of the proceeding and has appeared herein. An intervention in this proceeding in the district court was made by certain members of the Fire Department of the City of New Orleans, the New Orleans Fire Fighters Association Local 632, AFH-CIO, and other named individuals similarly situated.

Both the State of Louisiana, through the Attorney General, and the intervenors filed exceptions of no cause of action based on the ground that the petitioners seek injunc-tive relief based on the unconstitutionality of Act No. 55 and Act No. 57, aforementioned, which already have been declared constitutional in other proceedings namely: New Orleans Fire Fighters Assn. v. City of New Orleans, La.App., 230 So.2d 326 (1970) ; and therein the Supreme Court of Louisiana denied writs, 255 La. 557, 232 So.2d 78 (1970). Additionally an exception of no right of action predicated on the ground that the individual members of the Civil Service Commission do not have the constitutional authority to challenge any statute of this State or to file any suit whatsoever.

As noted above the district court sustained both exceptions and plaintiffs’ action was dismissed. Finding that the ruling of the court a quo sustaining the exception of no cause of action correct, we affirm.

Plaintiffs’ petition alleges that Acts No. 55 and No. 57, aforementioned are unconstitutional for the reasons that these acts represent an attempt by the Legislature of the State of Louisiana :

> 1. To prescribe and adopt a classification plan for a limited number of classified employees (members of the Department of Fire);

> 2. To establish minimum, maximum and intermediate rates of compensation for the same limited number of classified employees;

> 3. That these acts discriminate against all other classified employees of the City of New Orleans;

> 4. That these acts violate and are repugnant to Article 14, Section 15(1) (c) of the Louisiana Constitution insofar as it attempts to place in operation a classification plan and a pay plan which is not the product of the City Civil Service Commission and has not been established or adopted by the governing body of the City of New Orleans; and

> 5. That these acts are repugnant to Article 14, Section 22 of the Louisiana Constitution in that they attempt to usurp the provisions of the Home Rule Charter of the City of New Orleans and to deprive the citizens and electors of the *City*of their rights thereunder.

Accordingly, plaintiffs allege immediate and irreparable injury, loss and damage will be suffered by the employees in the classified service of the City of New Orleans and ultimately by the citizens and the public fisc, and that the defendants should be permanently restrained and enjoined from implementing and disbursing any monies in accordance with the terms and conditions of said acts.

From our painstaking examination of the decision of this court in New Orleans Firefighters Association Local 732, et al v. City of New Orleans, et al, La.App., 230 So.2d 326 (1970), writs denied 255 La. 557, 232 So.2d 78 (1970), with the identical grounds of unconstitutionality alleged, as set forth in plaintiffs’ petition, we find that each and every stated ground has been fully considered and decided adverse to plaintiffs’ position. It would serve no useful purpose whatever to set forth again the reasons which are adequately and amply discussed therein.

In appellants’ brief, the question is asked: — “Why do appellants argue the Acts are unconstitutional?” and they answer their own question. “Because of the *530language in Louisiana Civil Service League v. Forbes, 258 La. 390, 246 So.2d 800 which *was decided*by the Supreme Court *after*writs were refused in New Orleans Firefighters Association Local 632 et al. v. City of New Orleans (1970), *supra.** * * *Furthermore,*the Supreme Court in the most recent Firefighters decision, found in 263 La. 649, 269 So.2d 194 tends to recognize the error and seemingly invites this lawsuit. * *

In New Orleans Firefighters Association Local 632, et al. v. City of New Orleans, et al., 263 La. 649, 269 So.2d 194 (1972) which appellants say tends to recognize the error and seemingly invites this lawsuit, the Supreme Court was discussing its decision of Louisiana Civil Service League et al. v. Forbes et al., 258 La. 390, 246 So.2d 800 (1971), and explaining the action of the district court and the reason why the case came directly to the Supreme Court for decision. The court then stated that it considered the case of New Orleans Firefighters v. City of New Orleans, supra, and found it not controlling of the issue in the Forbes case.

Appellants’ position in this instance is obviously based upon an erroneous conclusion. The Supreme Court factually distinguished the Forbes case by pointing out that the authority to adopt and promulgate pay schedules of the State Civil Service Commission differed significantly from the similar power vested in the City Civil Service Commission. For this reason the Court determined that the case of the New Orleans Firefighters v. City of New Orleans was not controlling of the issues presented in the Forbes case.

Then the court continues (page 197 of 269 So.2d):

> “We quoted with approval from the district court’s opinion where the cases (meaning the New Orleans Firefighters case and the Forbes case) were distinguished on the basis of the difference in the relationships among state police, the state civil service commission, the legislature and the governor, on one hand, and the firemen, the city civil service commission and the city council on the other.”

At this point in the Supreme Court decision, the appellants contend the court “has finally seemed to recognize this” (meaning the error the appellants argue that this court made in the Firefighter cases) when it states:

> “The great and apparent similarity between the cases arising from legislative efforts to increase the pay of the state police and that of the firemen, since both are controlled by the same constitutional provision, furnishes substance to the city’s defense. Because this court found in the Forbes case, supra, that the legislative efforts to raise state police pay conflicted with Article 14, Section 15 of the Louisiana Constitution, argues the city, it must follow that the legislative efforts to increase the pay and benefits of firemen are also unconstitutional.

> “That question, however, is not before us. The judgment in New Orleans Firefighters v. City of New Orleans, La.App., 230 So.2d 326 (1970) has become final. The City of New Orleans is now barred by ‘the authority of the thing adjudged’ (LSA-C.C. art. 2286) from defending on the basis of the unconstitutionality of the legislative act involved.”

It should be noted that the first paragraph of the preceding quotation is merely a summary of the defense and argument advanced by the City of New Orleans in support of its plea of unconstitutionality. The other paragraph is a reiteration of the court’s finding that the issue of unconstitutionality has been adjudged and cannot be reurged by the City as a defense against the enforcement of the legislative acts under attack.

A careful reading and understanding of the opinion of the Supreme Court in New Orleans Firefighters Association Local 632 et al. v. City of New Orleans et al., supra, *531does not lead to the. inference that additional litigation such as this was invited.

Having determined that this action presents no new issue or ground for holding the subject Acts unconstitutional or that has not heretofore been determined by this court, the judgment appealed from is affirmed. ■

Affirmed.

SCHOTT, Judge

(concurring in the denial of the Application for Rehearing filed by the members of the Civil Service Commission) :

While this action (Firefighters IV) has been initiated by members of the New Orleans Civil Service Commission who were not parties to the other Fire Fighters decisions cited herein, the arguments advanced by plaintiffs are the same as those urged by the Louisiana Civil Service League which appeared as amicus curiae in New Orleans Fire Fighters Assn. v. City of New Orleans, 230 So.2d 326 (La.App. 4th Cir. 1970) (Firefighters II) and New Orleans Fire Fighters Association Local 632 et al. v. City of New Orleans et al., La.App., 260 So.2d 779, writ granted by the Sup.Ct. and reported at 263 La. 649 and 269 So.2d 194 (Firefighters III). When *Firefighters III*was decided by this Court Judge Boutall as the organ speaking for another panel of this Court said the following:

> “Indeed, we conclude that we cannot overrule our previous decision, even if we were so disposed, because it has now become the law of this case. The issue now presented was presented to us before and we decided it adversely to the City of New Orleans. Rehearing was applied for and denied. The Supreme Court denied application for a writ of certiorari (supra) on March 12, 1970. Our decision thus became final when the decision of the Supreme Court upon the application became final. Louisiana Constitution Art. 7, Sec. 11.”

The only difference between the instant case and the one from which the excerpt above is quoted is that instead of the Louisiana Civil Service League advancing the arguments the plaintiffs as members of the Civil Service Commission are advancing them, but for us to grant relief to plaintiffs now would require us to do exactly what we held we cannot do in *Firefighters III*on April 4, 1972, as quoted above. Surely any relief which plaintiffs might obtain would have to be granted by the Supreme Court which denied writs in *Firefighters II,*thereby approving of our action in that case and which led us, through Judge Boutall, to the quoted observation.

When the Civil Service League joined the City of New Orleans in urging that the question of constitutionality of the statutes be reconsidered in *Firefighters III*the Supreme Court; on November 6, 1972, held that the matter was not before them on the basis of res adjudicata since the City was the original party in *Firefighters II*and was again the party in *Firefighters III.*The presence of new parties in the instant case does not change the issues even though it may prevent a disposition of the case on the basis of res adjudicata should the Supreme Court see fit to reconsider the arguments now advanced by plaintiffs and heretofore advanced by the City of New Orleans and the Louisiana Civil Service League.

Accordingly, I concurred in the original opinion of my colleagues and now concur in their denial of the application for rehearing although I am unable to agree with the rationale of this Court in *Firefighters II*in which it was held that the function of the Civil Service Commission regarding adoption of a pay plan for New Orleans firemen is merely that of making recommendations to the City Council. An analysis of that decision leads to the conclusion that there was a basic underlying error made when the case of New Orleans Fire Fighters Assn. v. City of New Orleans, 204 So.2d 690 (La.App. 4th Cir. 1967) (Fire*532fighters I) was considered to be controlling.

*Firefighters I*was concerned with a contractual agreement regarding hours of work and therefore fell under the purview of LSA-Const. Art. 14 § 15(1) (6), but *Firefighters II*being concerned with a pay plan established by Acts 55 and 57 of the Extraordinary Session of 1968 should have turned on a consideration of Art. 14, § 15 (I) (c) the provisions of which clearly vest in the Commission the right to establish pay plans for all Civil Service employees of the City of New Orleans.

Nevertheless, I feel that this Court is bound by the previous Firefighters decisions and therefore concur in the denial of the application for rehearing.