#### The CHARTER COMMISSION OF the CITY OF ALEXANDRIA et al., Plaintiffs-Appellees, v. C. Edward KARST, Mayor of City of Alexandria, et al., Defendants-Appellants.

No. 3828.

Court of Appeal of Louisiana, Third Circuit.

Feb. 25, 1972.

Rehearing Denied March 3, 1972.

Writ Granted April 6, 1972.

*394Gist, Methvin & Trimble by H. B. Gist, Jr., Alexandria, for defendant-appellant.

Stafford, Pitts & Bolen by Grove Stafford, Sr., Alexandria, for plaintiff-appel-lee.

Before FRUGÉ, MILLER and DO-MENGEAUX, JJ.

MILLER, Judge.

The Alexandria City Council refused to accept the Charter Commission’s report and recommendation that an election be called to change the City’s form of government. The trial court granted mandamus ordering the city to advertise and call a charter election. We reverse.

Alexandria is presently governed by a Mayor and two Commissioners. The Charter Commission was created by unanimous action of the City Council on November 3, 1969 pursuant to the provisions of LSA-R.S. 33:1381 et seq. The Council appointed the Mayor as chairman of the Charter Commission and as required by LSA-R.S. 33:1383, the remaining four members were selected so that one would represent business, one would represent labor, one would represent the professions and one would represent veterans.

Within the year (as required by LSA-R.S. 33:1383), the Charter Commission submitted its recommendation for a home rule charter. Their proposal called for a Council-Manager form of government and the proposal was duly advertised. The election was called for February 2, 1971 and the Council-Manager form of government was rejected by a vote of 5211 to 5071.

A few days before that election, the Charter Commission member representing business died. Shortly after the election, the member representing labor resigned. These vacancies have not yet been filled although LSA-R.S. 33:1387 plainly requires that vacancies be filled by the governing authority of the municipality. On March 29, 1971 the Mayor moved (to the City Council) that Rev. C. J. Bell and Mrs. Gene Warren be appointed to fill the vacancies existing on the Charter Commission, but did not designate (as § 1383 requires) which, if either, person would represent labor or business. His motion died for lack of a second. On April 18, 1971 the Mayor moved to appoint Mrs. Gene Warren and Calvin Kelso to fill the vacan*395cies, but did not designate which, if either, person would represent labor or business. Again the motion died for lack of a séc-ond. The City Council did not direct the Charter Commission to prepare another charter.

Nevertheless, the Charter Commission operated with three of its five members and prepared another home rule charter. On September 7, 1971 their plan calling for a strong mayor form of government (designated as a Mayor-Council) was presented to the City Council with the request that an election be called for February 1, 1972. The Mayor moved the adoption of the report. One of the City Commissioners moved that the Mayor’s motion be tabled and the Commissioner’s motion carried. On October 4, 1971, the Mayor again moved that the charter be presented to the electorate, but this motion failed for lack of a second.

On November 15, 1971, the City Commission passed a resolution over the May- or’s negative vote, stating (among other things) that “the legal status of the former Charter Commission is in question and doubt” and called for a public referendum to be held February 1, 1972 to determine whether the municipal government should be a “five man commission council” as desired by the two City Commissioners, or a “Mayor-Council”.

On December 16, 1971 the Charter Commission of the City of Alexandria and 21 residents, electors and taxpayers of the City brought this action to compel the City (by writ of mandamus) to publish the Charter Commission’s proposed charter and to call an election to submit the charter (calling for the Mayor-Council form of government) to the electors for their approval or disapproval. The Mayor’s answer requested the relief sought by the Charter Commission of which he is Chairman. The two City Commissioners filed exceptions and an answer alleging numerous grounds for contending that the Commission’s activities were not in accordance with the statute and were therefore null and void.

The exceptions and merits were tried on January 5, 1972 with the result that the “Council of the City of Alexandria (was) ordered to advertise the proposed charter submitted to them on September 7, 1971, in accordance with law, and after publication to call an election on that charter not earlier than sixty (60) days, nor more than ninety (90) days from the date of the finality of this, judgment.” Defendants City Commissioners appealed.

We pretermit consideration of all but one of defendants’ grounds for alleging invalidity of the Charter Commission’s proposal. We do not consider the remaining contentions.

Plaintiffs have been unable to establish that the Charter Commission can function with three members and without representatives from business and labor. LSA-R.S. 33:1383 requires that the Charter Commission be composed of five members. One member must represent business and one must represent labor. LSA-R.S. 33:1387 provides that “Any vacancy on said commission shall be filled by the governing authority of the municipality.” Mandamus is the proper remedy to compel the filling of vacancies.

Since the report of September 7, 1971 was submitted without benefit of “a representative of business” and “a representative of labor”, the report was improperly submitted. Both representatives are required by section 1383. The City Council’s finding that the report was improperly submitted was justified.

Mandamus may be used only to compel the performance of a purely ministerial duty. LSA-C.C.P. 3863. Mandamus is not the proper remedy to compel the city to call an election for the adoption of a charter which it justifiably finds to be improperly submitted. See Ware v. Cannon, 248 So.2d 19 (La.App. 1 Cir. 1971), writ *396refused 259 La. 754, 252 So.2d 453 (1971). See also Bussie v. Fant, 216 La. 58, 43 So.2d 217 (1949).

The judgment of the trial court is reversed and set aside. Costs of court in the trial court and on appeal are assessed to plaintiffs appellees. The Charter Commission is relieved from paying costs except “stenographers’ costs for taking testimony.” LS4-R.S. 13:4521.

Reversed and rendered.

FRUGÉ, Judge

(dissenting).

The writer is of the opinion that the trial court is correct. The purpose of LSA-R.S. 33:1381 is to enable the people of a particular municipality to modify or change their form of city government. The statute is remedial in nature. To propose a charter to a municipality, the governing authority pursuant to § 1382 may on its own motion cause said charter to be framed and submitted for adoption, or such a proposal may be made by a petition filed with the governing authority signed by not less than 25% of the qualified electors of the city.

If the governing authority so chooses to cause a home rule charter to be submitted, it shall appoint a Charter Commission of five members to create such. Within one year after appointment, the Commission must prepare and submit a charter. LSA-R.S. 33:1383.

It would seem that the reason for appointing or having established a separate entity in the form of a Charter Commission is to prevent those who presently govern the municipality from being subjected to the temptation of submitting only new charters which would perhaps compromise public interest in favor of their personal gain or advantage. Also, the new Charter Commission is formed of those people representing distinct interest groups within the community.

The purpose of the act as above mentioned will be defeated if the discretion of the present governing authority is determinative of whether or not an election shall be held. If this were so, any charter desired by the public could be defeated before the people of the city had a chance to vote thereon simply by the City Council’s deciding that no election is to be held. Thus, the statutes in question should be ruled mandatory in nature in that the present governing authority of a municipality has no right generally to refuse to submit a proposed charter as prepared pursuant to LSA-R.S. 33:1381 et seq. for election. Once the governing authority appoints the particular commission, it should have no discretion or option with regard to the calling of an election on a submitted home rule charter.

The three members comprising the present commission satisfy a quorum. Vacancies created by the death and retirement of two of the commissioners were not filled by the City Council when the filling of these vacancies was requested by Mayor Karst. The Council now excepts to proceedings taken as a result of their noncompliance with the statutory mandatory provisions of § 1387 providing that the vacancies shall be filled by appointment of the governing authority. The writer fails to see how the Council can reject their duties as outlined by the statute and following this rejection question subsequent proceedings. Although the statute requires that four representative groups compose this Commission, a lack of two of these representatives through the dereliction of duty on the part of the Council appointing them will not be an inherent, disabling factor which would defeat a charter submitted and accepted by the people of Alexandria. The fact that defendants-appellants urge that the Council should have been sued in mandamus for the purpose of having the vacancies properly filled suggests an admission by those appellants as to the mandatory nature of the statute as well as their noncompliance therewith.

It seems obvious that the legislature not only intended that the statutes in question *397be mandatory, but also envisioned the potential multiple submission of charters by one Commission due to the possible defeat of a charter submitted for election. To reaffirm our conviction that the legislature did contemplate these possible defeats, one need only look to § 1387 which provides that the terms of office of the specific commissioners shall be four years. Why would the commissioners have a four-year term if upon presentation of the charter within a year after appointment, said charter was defeated. This would mean that an additional three years of useless office holding would result.

Appellants also urge that LSA-R.S. 33:1383 provides that a charter be submitted within one year of appointment of the Commission and that there has been no compliance therewith. However, the charter in question was not the first presented. As stated in the facts, a charter was submitted to the Council within one year after the appointment of the Commission, and this charter failed to be adopted. The Charter Commission has, therefore, followed the letter of the law.

Appellants also submit that § 1388 states that proposals to amend, modify, or repeal home charters should not be submitted more often than every two years. However, no charter was ever adopted by the City of Alexandria. The purpose of this particular provision is not only to prevent an overburdening of the people of a particular municipality with a number of elections, but to give these same people a chance to live under a government as defined under the new charter that they have adopted and accepted. The people of Alexandria are not now amending, modifying, or repealing their charter for they have none.

The Charter Commission composed of the members now serving thereon, has in all good faith and earnestness pursued the duties with which they have been assigned. Their actions as a quorum thus far have been executed for the purpose of public good as outlined in LSA-R.S. 33:1381 et seq. The City Council of Alexandria should not be allowed to refuse to call an election as per the above-mentioned statute when its only defense is its own noncompliance with that same statute.

For the foregoing reasons, I respectfully dissent from the majority opinion.