185 La. 538

#### SCANLAN v. CITY OF HAMMOND.

No. 33640.

Supreme Court of Louisiana.

June 30, 1936.

Columbus Reid, of Hammond, for appellant.

Ellis, Ellis & Ellis, of Amite, Allen B. Pierson, of Ponchatoula, and James H. Morrison, of Hammond, for appellee.

O’NIELL, Chief Justice.

The question in this case is whether the term of office of the clerk and tax collector in a municipality that is governed by Act No. 136 of 1898, as amended, is two years or four years.' The plaintiff, who holds the offices of clerk and tax collector for the city of Hammond, brought this suit to enjoin the mayor and board of aldermen from removing him from office, or appointing his successor, when he had served for the period of two years. He contends that his term of office, under the statute, as amended, is four years. The defendants contend that the term is only two years. The facts of the case are not disputed, and are stated in State ex rel. Scanlan v. City of Hammond, 184 La. 13, 165 So. 314. The judge of the district court, holding that the term of office was four years, granted the plaintiff a writ of injunction. The defendants have appealed. It is admitted that the city of Hammond is governed by Act No. 136 of 1898; hence it is conceded that if the statute fixes the term of office of the clerk and tax collector at two years the plaintiff has no cause or right of action, and his suit should be dismissed.

Act No. 136 of 1898, p. 224, is a general charter for the government of the municipalities that elect to come under its provisions. According to section 19 of the statute, as amended by Act No. 97 of 1900, § 1, and by Act No. 306 of 1908, § 1, the officers of every municipality, governed by the act, are the mayor, the aldermen, a marshal, a tax collector, a ’ clerk, and a street commissioner. The mayor, the aldermen, and the marshal, are elected by the people, and the other officers, namely, *567the tax collector, clerk and street commissioner, are elected by the board of aider-men. The street commissioner or the clerk may be an alderman; the street commissioner may be the mayor, and the clerk or the marshal may be the tax collector or the assessor. In this instance the plaintiff, who holds the office of clerk, is not an alderman, but holds the office of tax collector, as well as the office of clerk.

Section 23 of the act of 1898, as amended by Act No. 97 of 1900, § 2, and by Act No. 306 of 1908, § 2, provides that the board of aldermen shall elect, at the first regular meeting after their own election, the clerk, tax collector, and all other officers who may be necessary, and whose election is not provided for in section 19; and that the clerk and the tax collector shall give bond as prescribed by ordinance, “and shall hold their office for two years, or until their successors shall be elected and qualified.” This section of the statute, in so far as it fixes the term of office of the clerk and tax collector at two years, has been the same since the Act No. 136 of 1898 was originally enacted.

According to section 38 of Act No. 136 of 1898, as originally enacted, and as amended by Act No. 196 of 1904, and again as amended by Act No. 69 of 1926, munici-' pal elections were held every two years, so that the terms of office of the mayor and aldermen, and of the marshal, were two years. By Act No. 22 of 1928, p. 25, section 38 of Act No. 136 of 1898 was amended so as to provide that municipal elections should be held every four years, and thus to increase the terms of office of the mayor and aldermen and the marshal from two to four years. The only change made in, the law by the act of 1928 was to substitute the word and the figure “four (4)” for the word and figure “two (2),” thus:

> “Section 38. That municipal elections shall be held every four (4) years on the Tuesday next following the second Monday of June. The officers elected shall qualify and enter upon the discharge of their duties on the first day of July, after their ' election, and shall hold their office for four years and until their successors are elected and qualified; provided, if no election be held on the’ day herein prescribed, or if a vacancy in any municipal office, elective by the people, shall occur at any time, or should an officer elected fail to qualify, the Governor shall appoint some suitable person to the office or offices, virho shall hold the office or offices until the next general municipal election and until the qualification of his successor thereafter.

> “In case of any vacancy, at any time, in any municipal office to which the officer is elected or appointed by the Mayor and Board of Aldermen, the same may be filled for the term by the Mayor and Board of Aldermen at any regular or special meeting.

> “Officers of cities, towns or villages who are in office when any city, town or village elects to come under the provisions of this law, under Section 40 of this Act, shall retain their offices until the first election under this law, with the powers of like officers under this act.”

No reference whatever is made to the office of clerk or tax collector, or to section 19 or section 23 of Act No. 136 of 1898, in either the title or the text of Act No. 22 of 1928. All that the act of 1928 has done has been to increase the terms of office of the mayor and board of aldermen, and of the marshal, from two to four years. The two-year term of office of the clerk and tax collector, whether these offices be filled by one person or two persons, remains qs it has been ever since the act of 1898 was enacted. According to sections 19, 23, and 38 of the statute, as they now stand, at the first regular meeting of the board of aldermen after every general municipal election, the board shall elect, for the term of two years, a clerk and a tax collector, and all other officers who are not elected by the people; and, at the end of the two-year term of office of the clerk and tax collector, and of the other officers elected by the board of aldermen, the board shall again elect these officers for the term of two years, ending with the term of office of the aldermen themselves. It is possible, of course, that the failure of the Legislature to increase the terms of office of the clerk and tax collect- or, and of the other officers elected by the board of aldermen, from two to four years, when, by the act of 1928, the Legislature increased the terms of office of the mayor and aldermen and marshal from two to four years, was an oversight; but, even if we should assume that there was an oversight in that respect, we would have no authority to supply the legislation. There is no anomaly in the legislation which fixes the term of office of the mayor and board of aldermen at four years, and fixes *568the terms of office of the officers whom the board shall elect at two years. For all that we know, this arrangement of the terms of office might have been made not inadvertently but with deliberation on the •part of the Legislature. It is sufficient to say that the law which originally fixed the term of office of the clerk and tax collector at two years has not been changed.

The judgment appealed from is reversed, and the plaintiff’s demand is rejected and his suit dismissed at his cost.