39 So. 792 | La. | 1905
Lead Opinion
The Constitution (article 88) provides that:
“The General Assembly shall make the necessary appropriation to provide suitable and commodious buildings for said court [the Supreme Court] and the records thereof, and for the care and maintenance of the State Library therein; and shall provide for the repair and alteration of the building now occupied by the court.”
A statute as old as the state itself makes it the duty of each and every parish of the state to provide “a good and sufficient courthouse.” Nearly every parish of the state, heeding this injunction, is. to-day adorned by a building to which the inhabitants may point-with parochial pride as their courthouse. But a different sentiment possesses the inhabitant of New Orleans, when, to the visiting stranger who inquires where the Supreme Court and the civil district courts sit, he shows on each side of the Cathedral the two old structures pleading for repairs. One of them is the old Cabildo, so intimately associated with the early history of the state, and the other, too, is venerable with age and crowned by many associations; so that the reflection naturally suggests itself in their
In response to this suggestion, and in obedience to article 88 of the Constitution, and doubtless with a view also to the duty, imposed immemorially upon the parish of Orleans, but thus far virtually unheeded, to provide a good and sufficient courthouse, the Legislature of 1902 passed Act No. 79 of that year, embodying a scheme for the erection, by the joint efforts of the state and of the parish' of Orleans, of a magnificent courthouse that would be an ornament to the city of New Orleans and a credit to the parish of Orleans and to the state.
The present suit is an injunction of that scheme, on the ground that said Act No. 79, p. 106, Acts 1902, and Acts Nos. 96, 179, pp. 214, 369, Acts 1904, amending it, are unconstitutional. The plaintiffs bring the suit in their quality' of citizens and taxpayers of the city of New Orleans. All of them being lawyers the court has no doubt that their secret wish is that the suit be decided adversely to them. But this has not prevented them from pressing it vigorously. Doubtless their motive has been to bring to a test, and, if unfounded, put at rest, the rumors current in the community respecting the unconstitutionality of the legislative measures in question.
Said Act No. 79 creates a commission of five persons to have charge of the selection and acquisition of a site for the building, and of the construction, furnishing, and equipment thereof, and fixes the cost at $575,000. The sole qualification prescribed for the members of this commission is that they be citizens and taxpayers. Nothing is said as to residence. Two are to be appointed by the Governor, and three by the mayor of the city of New Orleans by and with the advice of the city council.
The commission is required to advertise for plans for “a building to accommodate the Supreme Oourt, its archives, the State Library, the Louisiana Law Library, and such state boards and officers as are now located in the city .of New Orleans, the Oourt of Appeal, the civil district court, and the First city court of the parish of Orleans, and other record offices of said parish. * * *”
The building is to be “ a courthouse for the parish of Orleans,” and the selection of its site is to be “subject to the approval of the mayor and city council of New Orleans,” and any proceedings instituted for the expropriation of the site are to be carried on “in the name and for the city of New Orleans.”
Of the $575,000, $200,000 is to be contributed by the state and $375,000 by the city of New Orleans. The $200,000 of the state is appropriated in the act in the following words:
“In consideration of a perpetual free use of the rooms to be. set apart for the Supreme Court, its archives, the State Library, and such state boards and offices as are now located in the city of New Orleans, and of the perpetual maintenance of these rooms by the city of New Orleans, the sum of two hundred thousand ($200,000.00) dollars shall be contributed by the state of Louisiana, which amount be and is hereby appropriated payable out of the surplus interest tax fund for the year 1901 and previous years, at such times and in such amounts as the commission may recommend and the Governor approve as follows:
“The State Auditor shall warrant for the same on the State Treasurer on written application of the commission, approved of by the Governor, in such sums as may be required for paying the premiums for plans and for the construction, furnishing', and equipment of said building. :|i :|: * »
The city is required to contribute the $375,-000, and elaborate provision is made for the manner in which the obligation shall be met.
In 1904 said act was amended by Act No. 96, p. 214, of that year in the following particulars:
The tenure of office of the commissioners is fixed at four years.
The plans to be advertised for are to be for “a building to accommodate the Supreme
On the subject of funds the amending act (Acts 1904, p. 214, No. 96) provides as follows;
“There shall be devoted to said purposes the amount of two hundred thousand dollars ($200,-000.00) already contributed and appropriated by the state of Louisiana, under the terms of Act 79 of 1902, in consideration of the perpetual free use of the rooms to be set apart for the Supreme Court, its judges, clerks and archives, the State Library and Attorney General, his clerk or clerks and assistant or assistants, and of the perpetual maintenance of these rooms by the city of New Orleans.
“The State Auditor shall warrant for the same on the State Treasurer, on written application of the commission, approved by the Governor, at such times and in such sums as may be required for paying the premiums for plans, for the acquisition of a site, and for the construction, furnishing and equipment of said building.
“Such other sums as may be contributed and appropriated by the General Assembly of the state of Louisiana for the considerations aforesaid.
“The remainder of the funds required for the expenses of said commission, for acquisition of the site of said court house and the construction, furnishing and equipment thereof, shall be provided for by the issue and sale of bonds of the city of New Orleans as hereinafore provided.”
Here follows elaborate provision for the issue of the bonds in question to the amount of $750,000. The whole matter is placed in the hands of the board of liquidation of the city debt. The city is required to set apart yearly “out of the reserve fund of the annual budgets of the city, commencing with the year 1905, and until said bonds shall have been paid in full, in principal and interest, an annual amount of $41,000,” to be paid over to the “board of liquidation of the city debt to be by it held and used in payment of interest and principal of the bonds.”
Payments for the construction, etc., of the building are to be made by the board of liquidation of the city debt upon certificates “approved by the president of the commission and the mayor of New Orleans.”
Said Act No. 96, p. 214, of 1904 was amended by Act No. 179, p. 369, of same year by the addition of the following provision :
“That in addition to the courts, libraries and officers to be accommodated in the courthouse building provided for by said Act 96, of 1904, there also shall be accommodated in said building such other state officers and boards as may be deemed proper and advisable by the Governor and as he may indicate by notice in writing to said commission on or before January 1, 1905.”
The commission thus provided for has been appointed, and has organized, and its work has progressed to the extent that it has acquired by purchase and by expropriation, and has cleared of all buildings, a prominent square in the heart of the city of New Orleans, and has advertised for the submission of plans for the building.
Several constitutional provisions -are said to be contravened;
First.
“Art. 45. No money shall be drawn from the treasury except in pursuance of specific appropriation made by law; nor shall any appropriation of money be made for a longer term than two years. A regular statement and account of receipts and expenditures of all public moneys shall be published every three months in such manner as shall be prescribed by law.”
The respect in which this article is said to be contravened is stated in the brief as follows:
“Section 6 of the statute provides for an appropriation of $200,000, ‘payable * * * at such times and in such amounts as the commission may recommend,’ etc. This, we submit, is an appropriation of an indefinite sum of money, so far as the period of two years is concerned, and is an appropriation which may*340 extend far beyond two years from 1902. Indeed, on the date of filing this brief the time limit of the power of appropriation had already been exhausted. If any other interpretation is placed upon this section of the statute as being in conflict with article 45 of the Constitution, that article can be evaded by the Legislature appropriating a sum to be drawn on during some indefinite future period, whenever the beneficiary of the appropriation and the Govern- or shall give their joint consent. It converts article 45 into a merely verbal prohibition, without any actual effect.”
We fail to see how or wherein the fact that this appropriation is to be expended and drawn out of the treasury only when occasion for doing so should arise makes it exceptional or peculiar. Every appropriation stands on precisely the same footing. Even the alimony of the different state institutions is appropriated in a lump sum, and is, or should be, drawn out of the treasury and spent only when the occasion arises. To say that these appropriations are unconstitutional, because not required to be drawn out and spent within the two years, is assuredly to put upon this article 45 a construction never dreamed of by its framers. In last analysis, the objection resolves itself into the proposition that every appropriation must be conditional upon the amount thereof being spent within two years. Suffice it to say that the Constitution does not so provide.
The court is not informed what the mischief sought to be remedied by this constitutional provision was. If the motive of its enactment was to keep the executive department of the government dependent upon the legislative for money, after the manner in which in England the government is dependent upon the Commons, then its purpose is not contravened in the present instance; no more having been appropriated than was absolutely necessary.
Second.
“Art. 48. The General Assembly shall not pass any local or special law on the following specified subjects; * * *
“Granting to any corporation, association or individual any special or exclusive right, privilege or immunity.”
“Art. 50. No local or special law shall be passed on any subject not enumerated in article 48 of this Constitution, unless notice of the intention to apply therefor shall have been published, without cost to the state, in the locality where the matter or thing to be affected may be situated, which notice shall state the substance of the contemplated law, and shall be published at least thirty days prior to the introduction into the General Assembly of such bill, and in the same manner provided by law for the advertisement of judicial sales. The evidence of such notice having been published, shall be exhibited in the General Assembly before such act shall be passed, and every act shall contain a recital that such notice has been given.”
We have thought best to consider these two articles together, as they are closely related. The objection made under them is twofold; First, that the acts are local and special, and that notice of the intention to apply for their enactment should have been, and was not published; second, that even if such notice had been published, still the acts would be null, because they “grant an exclusive privilege.”
It is not explained to us wherein these acts grant an exclusive privilege, and we have been unable to make the discovery for ourselves.
A law, however, providing for the construction of the courthouse of a parish, is a local law. This no one can doubt. Indeed, if the providing of a courthouse for the parish were not a local matter, it would be hard to conceive what part of a parish’s business could be considered local. But it is said that the state is to have a share and part in this courthouse, and that this feature rescues the law from localism. It does not. The law continues to be one for the providing of a courthouse for the parish of Orleans, and as such a local law, as to the enactment of which the people of New Orleans had the right, under the Constitution, to be notified and to be heard. The matter will appear in a clearer light if we substitute one of the other parishes to that of Orleans, say the parish of Jefferson. Would any one doubt that a law compelling
Third.
“Art. 58. The funds, credit, property or things of value of the state, or of any political corporation thereof, shall not be loaned, pledged or granted to or for any person or persons, association or corporation, public or private; nor shall the state, or any political corporation, purchase or subscribe to the capital stock oj any corporation or association whatever, or for any private enterprise. Nor shall the state, nor any political corporation thereof, assume the liabilities of any political, municipal, parochial, ■ private or other corporation or association whatsoever; nor shall the state undertake to carry on the business of any such corporation or association, or become a part owner therein, provided, the state, through the (general Assembly, shall have power to grant the right of way through its public lands to anj; railroad or canal; and, provided, police juries and municipal corporations may, in providing for destitute persons, utilize any chaxútable institutions within their corporate limits for the care, maintenance and asylum of such persons; and all appropriations made to such institutions for the purpose aforesaid shall be accounted for by them in the manner required of officials entrusted with public funds.”
It is said that, these acts grant to the commission created by them the funds and credit of the city of New Orleans. Also that the state is made a part owner of the building in question, and that this infringes that provision of the article forbidding the state from becoming “a part owner in the business of any political or municipal corporation.”
There is no granting of funds to anybody. There is a scheme for the construction of a building for the joint benefit of the state and the parish of Orleans, and each of the beneficiaries is made to bear its proportional part of the cost.
Whether the proportions are exactly observed, or not, is a matter of detail, upon which the judgment of the Legislature is presumably correct. In fact, it is not contended that they are not. There can be no doubt that the Legislature has desired to deal with the city of New Orleans in perfect fairness. So far as the commission is concerned, it is nothing more than an ephemeral body, part of the mechanism for the carrying out of this scheme. Obviously, it cannot be considered as a “person, association or corxioration” distinct from and independent of the state and the parish. Fisher v. Auditor, 39 La. Ann. 447, 1 South. 882.
True, the state is made part owner of the building, for to have the perpetual free use of thing is to be pro tanto its owner (Civ. Code, articles 490-492, 494, 626, 633, 637, 638); but to be part owner of a public building to be used exclusively for public purposes is not “to carry on a business or to become part owner thereof,” within the meaning of article 58. What the ai’ticle aims at is the propensity which the state manifested in the past to join in enterprises of a quasi private character, and even of a wholly private character, such as banking. The article was never intended to hamper the government of the state in the performance of public duties, such as the providing of accommodation for public functionaries. In conducting the ordinary business of the state, and availing itself to that end of the means in its judgment most suitable, the Legislature of Louisiana is as free and untram
Fourth.
Articles 224, 232 and 270 are said to be violated, in that taxing power, which under the Constitution can be exercised by the city of New Orleans alone,' is in these acts exercised by the Legislature, and, moreover, is so exercised in excess of the constitutional limit.
A sufficient answer is that it is not true that the Legislature has undertaken by these acts to exercise the power of taxation vested in the city of New Orleans, or to increase the rate of taxation. The taxes remain as heretofore. All that the Legislature does is to make more stringent and specific a duty which has rested immemorially upon the parish of Orleans, as upon all the parishes of the state, to provide a good and sufficient courthouse; a duty which the parish of Orleans may be said to have neglected. The limitations placed upon the powers of the Legislature by the Constitutions of 1879 and 1898 have not had the effect of absolving the parish from this duty, nor of debarring the Legislature from making it more imperative by appropriate legislation.
Fifth.
“Art. 319. The electors of the city of New •Orleans, and of any political corporation which may he established within the territory now or which may hereafter be embraced within the corporate limits of said city, shall have the right to choose the public officers who shall be charged with the exercise of the poiice power and with the administration of the affairs of •said corporation in whole or in part.
“Art. 320. This article shall not apply to the board of liquidation of the city debt, nor shall it be construed as prohibiting the establishment of boards of commissioners, the members of which are elected by the council or appointed by the mayor with the consent of the council. As to all other existing boards of commissioners affected by it, said article shall take effect from and after the first municipal election which shall be held in the city of New Orleans after the adoption of this Constitution; provided, that nothing herein contained shall be so construed as to prevent the Legislature from creating boards of commissioners, whose powers shall extend in and beyond the parish of Orleans, or as affecting present boards of that character, or the board of directors of the public schools; provided, that hereafter, in creating any board with such powers, or in filling vacancies therein, at least two-thirds of the members thereof shall be from the city of New Orleans, and elected by the people or council thereof, or appointed by the mayor as hereinabove provided.”
The contention under these articles is that' to construct a courthouse, which it is the duty of the city of New Orleans to build and for which the greater part of the city of New Orleans is to pay, is to administer in part the affairs of the city of New Orleans, and that therefore the commissioners should be chosen by the electors, or by the city council, or appointed by the mayor, of the city of New Orleans. Again, that even if it can be said that this commission is a board “whose power extends beyond the parish of Orleans,” still its composition is obnoxious to these articles, because only three out of the five members are appointed by the mayor, and three is not two-thirds of five.
These objections appear to us to be unsurmountable. The obvious, plain, and recognized purpose of article 319 is to secure to the inhabitants of the territory comprised within the corporate limits of the city of New Orleans, as existing at the date of the adoption of the Constitution, the administration of their own affairs; that the Legislature shall not have the right to choose the officers charged with such administration in whole or in part; and it is equally plain that the construction of a courthouse for a parish, at the expense of the parish, is the administration in part of the business of the parish. Jackson Square Com. Case, 112 La. 957, 36 South. 817; State ex rel. Saunders v. Kohnke, 109 La. 838, 33 South. 793. It may be well
Our conclusion is that the several statutes assailed in this case would he constitutional and valid if, as local laws, they had been preceded by the publication of the notice required by the Constitution, and if the members of the commission were required to be chosen by the electors, or by the city council, or to be appointed by the mayor, of the city of New Orleans, but that, failing in these respects, they are unconstitutional, null, and void.
It is therefore ordered, adjudged, and decreed that the judgment appealed from be set aside, and that there be judgment decreeing Act No. 79, p. 106, of 1902, and Acts 96 and 179, pp. 214 and 369, of 1904, amendatory thereof, to be unconstitutional, null, and void, and that an injunction issue as prayed.
See dissenting opinion of BREAUX, C. J„ 39 South. 797.
Rehearing
On Rehearing.
The acquisition of a site for and the construction and maintenance of a courthouse building in the. city of New Orleans was the purpose of the legislation of 1902 and 1904. Act No. 79, p. 106, of 1902, Act No. 96, p. 214, of 1904, and Act No. 179, p. 369, of 1904, are assailed by plaintiffs, taxpayers, on the ground of unconstitutionality.
There remains for consideration and decision two of plaintiff’s grounds of attack. The other grounds have passed out of the discussion by reason of the fact that they were decided adversely to plaintiff’s contention, and on the rehearing the correctness of the court’s decision has not been in any respect questioned.
The remaining grounds for decision are:
First. Whether the legislation was local and special, and falls within the meaning of article 50 of the Constitution.
Second. Whether the statutes under which, the commission known as the “Courthouse Commission” holds its authority were illegal and repugnant to articles 319 and 320 of the Constitution.
We return to the first inquiry. This court, prior to the Constitution of 1898, held that, a statute, though partly local, may be public in its effects.
Our jurisprudence has interpreted the laws, upon the subject. They sustain the view that the statutes attacked are not local and special. .
The state has exercised the authority to-direct that courthouses shall be provided. It is a public question. The Constitution of 1898 (article' 88) lays it down as a mandate that the General Assembly shall make the “necessary appropriation to provide suitable- and commodious buildings for said court and the records thereof, and for the care and maintenance of a State Library therein.’”
These two laws take the statutes in question out of the category of “local and special laws.” They were adopted to the end of carrying out the legislative intent expressed in the act of 1880 and the constitutional mandate of a comparatively recent date.
The courthouse is to be a public building. That part to be occupied by the Supreme-Court (and offices mentioned in the statute) and a public library is for a general purpose. This court laid down the rule of interpretation in the case of State of Louisiana v. Emile Dalon, 35 La. Ann. 1141:
“The real distinction between general and: public laws and local or special laws is that the former affect the community as a whole, whether throughout the state or one of Us subdivisions, and the latter affect private persons, private property, private and local private interests.” Italics ours.
The line of precedents prior to the Constitution of 1898 is unbroken, consistent, and harmonious.
The long line of authorities is sustained by decisions in other states.
In People v. Supervisors of Chautauqua, 43 N. Y. 17, the court said:
“An act is local, within the meaning of the Constitution, which in its subject relates to but a portion of the people of a state or to their property, and may not, either in its subject, operation, or importance and necessary results, affect the people of the state or their property in general.”
Here, as in the cited case supra, the subject, operation, or importance affects the whole state.
In another case the court said, referring to a similar subject: •
“These are to be regarded as public acts which regulate the general interests of the state or any of its subdivisions.” Inhabitants of New Portland v. Inhabitants of New Vineyard, 16 Me. 69.
The least that can be said is that the improvements in question relate to “one of the subdivisions” of the state.
A high school in another state was considered public, and not “local” and “special”; that is, the court decided that the legislation regarding a high school was not an interference with local government. The power of the Legislature commanded some recognition. State v. Freeman (Kan.) 58 Pac. 959, 47 L. R. A. 67.
No one denies the importance of schools, or should in the least seek to lessen their importance. If the Legislature, however, can impose the obligation of building a schoolhouse (a proposition we do not have to approve), surely the Legislature has the authority and power to compel a municipality to build a courthouse. The Legislature has the further authority and power to join the municipality in order to build a courthouse that will enable it to carry an article of the Constitution into effect, and at the same time build a courthouse sufficiently large for the state and the city.
We return for a moment to the decisions of this court first above cited. We cited only decisions of this court that preceded in date the Constitution of 1898, for the reason that it is a well-known principle of construction that a law, if re-enacted, embraces in effect the interpretation placed upon it prior to its re-enactment.
Articles 48 and 50 of the Constitution of 1898 are substantially similar to articles 48 and 50 of the Constitution of 1879.
The rule of interpretation in the decision of this court first above cited is too thoroughly imbedded in our jurisprudence to be disturbed:
“When decisions fully interpret a statute, and the statute is re-enacted, it embodies the interpretation; i. e., the statute is re-enacted as interpreted.” Black, Const, p. 337; Sutherland, St. Const, p. 393.
The decisions of this court rendered after the Constitution of 1898 had been adopted followed the old decisions before referred to on the subject.
The accepted meaning of the Constitution for so many years should remain undisturbed, in so far, at least, as past acts are concerned. If not, there will be changes and confusion in many places.
Legislation has followed the interpretation of this court, regarding notice required by articles 48 and 50.
The construction placed upon those articles under the Constitution of 1879 was the con
“Great weight has always been attached, and very correctly attached, to contemporaneous exposition.”
Again we quote from Lieber’s Hermeneutics:
“It becomes necessary that doubtful points, springing from a new state of things, should be considered settled until a weighty reason induces us to deviate from the settled decisions.”
If this was a doubtful point when the Constitution of 1879 became the organic law, it should now be considered settled.
It is the law.
This brings us to a consideration of the second ground of objection, viz., the asserted violation of articles 319 and 320 of the Constitution. This objection of plaintiffs is grounded on the hypothesis that the statutes attacked are an infringement on the city’s right to local self-government.
To the city was granted police power and power of administration, and this she has. If this power extends further, it does not extend so as to exclude the state from carrying out the project here involved.
One of the articles of the Constitution (article 319) referred to reads:
“The electors of the city of New Orleans, and of any political corporation which may be established within the territory now or which may hereafter be embraced within the corporate limits of said city, shall have the right to choose the public officers who shall be charged with the exercise of the public power and with the administration of the affairs of said corporation, in whole or in part.”
The contention is that the method of appointment as laid down in the statute attacked takes from the city her right to choose her own officers. We are not of the opinion that the statutes interfere with the city’s right in this respect.
The state seeks to put a constitutional mandate into execution by instrumentalities of her own selection. This she can do if the purpose is not to interfere with the police or administrative powers, or any other power the city has.
In what respect is the police or administrative power interfered with? Building a courthouse has nothing to do with the appointment of commissioners as instrumentalities to carry out its purpose — does not take from the city her right to choose her officers.
Eor the sake of illustration, let us for a few minutes leave New Orleans, its government, and its varied commercial interests, and imagine that a small new city has just been incorporated under a charter conferring police and administrative powers, and to it the usual powers of local government. In the course of time the General Assembly, desiring to comply with an article of the Constitution, deems proper to locate a courthouse and public library in this city. A law is passed making ample provision to that end, and as the new city is to be benefited in many ways, incidentally, the lawmaking power renders it possible for the city to pay for a goodly portion of the building. As these improvements do not fall within the police or administrative department of the city, they can be erected without violating the city’s rights of local government, enjoyed to the extent before mentioned, and the state can appoint her instrumentalities to carry out her own purposes.
Returning to the city of New Orleans: The state owns- lands within her limits; i. e., she did own lands within her limits. But, owing to her good will, it may be that in time these lands have passed out of the ownership of the state into that of the city. The state, as is sometimes the case with the well-disposed paterfamilias toward a favored member of the family, has allowed to the municipality the use of the property until the favored member assumes that he is the real owner.
If the state, under constitutional direction, were to have a courthouse and library built on one of her own lots of ground within the
If the state, in order to carry out the provisions of a still higher authority, the Constitution, appoints an instrumentality of her own to attend to the interests of both the city and the state in putting up a building, could it be considered unfair, illegal, or unconstitutional, in so far as the city is concerned?
The board of commissioners appointed by the state and city to represent both state and city, in building that courthouse are not officers in the senfce prohibited by the Constitution, and therefore can act in carrying out the terms of the statutes.
There are decisions directly in point in other jurisdictions, as well as in our own. Among them are the following:
“Civil officers,” as used in the organic law creating the territory of Wisconsin, “embrace only those officers in whom the portion of the sovereignty is vested and in whom the enforcement of the municipal regulations or the control of the general interests of society is confided. It is not such officers as canal commissioners.” U. S. v. Hatch, 1 Pin. 182; 2 Burns, § 21; Abbot’s Law Dictionary.
But, conceding that they are officers, they do not interfere with local police or with the administration of the city. State v. Flower, 49 La. Ann. 1199, 22 South. 623.
This court said, in the Police Board Case (State v. City, 41 La. Ann. 171, 6 South. 598):
“The object of the constitutional provisions was to confer upon the citizens of New Orleans absolute control of their government in the exclusive choice of officers necessary for its administration.” .
We abbreviate the following from a number of well-considered decisions regarding officers and the right to appoint commissioners.
First. Commissioners to make a survey are not officers. U. S. v. Hatch, 1 Pin. 182.
Second. Neither are canal commissioners. Butler v. Regent, 32 Wis. 124.
Third. Nor commissioners to superintend the erection of a statehouse. U. S. v. Hatch, 1 Pin. 182.
Fourth. Nor to fund a city debt. Bunn v. People, 45 Ill. 397.
Fifth. Nor to liquidate a financial institution. People v. Middleton, 28 Cal. 603; Andrews v. Saucier, 13 La. Ann. 301; Conrey v. Copland, 4 La. Ann. 307.
The last two are in point, and should have special weight, for they are decisions of our own court.
Again, if these commissioners are officers, they are officers of the state, and not of the municipality, and the article of the Constitution has no effect as to them.
We leave this ground, convinced that the state may carry out one of its statutes through her own instrumentality within city limits.
The right of the city to control her own funds' has given rise to discussion in the pending case. The city cannot very well be placed in the attitude of objecting to the appropriation for the building of a courthouse. She should not be made to defend against her will.
She is not opposed to the appropriation; on the contrary, she has complied with the terms of the statute. She has, without objection on'the part of any one, made provision in her budget for paying the amount required.
The suit was brought in the name, of taxpayers whose interests cannot be affected to any extent.
If we concede that a statute generally accepted and executed can be set aside on the petition of a.few taxpayers, then the question arises, does the exercise of the power under the statute attacked interfere with her local government, her police power, or with her power of administration, or with the funds needful to carry out these powers?
We think not, and we have not heard any one say that it does.
But the contention is that the municipality
With that contention we cannot agree.
The General Assembly has always exercised the authority of directing the city to disburse certain funds for particular purposes, and on this point it is noteworthy that the-salary of the executive officers of the city is fixed by the General Assembly.
The city, under Act No. 170, p. 346, of 1898, appropriates a round sum of the city’s money to defray expenses of the tax assessing department. The limit of the salaries of certain executive officers and other appropriations by the city are made under the expressed legislative will.
The city, under legislative direction, sets aside a part of its revenues for permanent public improvements.
The courthouse to the extent that the city is concerned is a local improvement.
The contention at this point is that these appropriations to which we have just referred are made under amendment to the city charter.
That may be. But the statute attacked also amends the charter. It is not subject to the objection that it is not an amendment. It cannot be successfully contended that the two statutes are not amending statutes of the charter.
A definition will serve to illustrate.
A charter is defined as an act of a legislative body creating a municipality or other corporation, and defining its power and privileges.
The statute here in part defines the power and privilege of the city of New Orleans. It adds to the provisions of her charter. It is an authoritative grant of power, of which she has availed herself to provide a suitable courthouse.
In conclusion, we will say that the state by the plan adopted complied with article 88 of the Constitution, and the city complied with a legal statute.
We have treated the statute as mandatory. There is no limitation on the city’s right to build a courthouse. She can build it without a statute on the subject.
The statute here may be considered as at least authoritative in so far as the city acts conjointly with the state.
In accepting the authority and acting under it; she has violated no part of the organic law.
Whether mandatory or authoritative only, the statutes are legal.
The proposed improvement will be a joint work. The project has already been partly executed. It should not be cut down midway in its course to completion.
There is no suggestion of an amount improperly expended in the progress of the work, or of want of intelligence shown in any way.
The grounds for destroying this project should be very manifest.
The statutes attacked cannot be destroyed without overturning and setting aside a number of well-considered decisions, nearly all preceding in date the Constitution of 1898.
For reasons assigned, the judgment of the district court, heretofore decreed null by the first decision of this court, is reinstated, and now it is ordered and decreed that said judgment of the district court is in all respects affirmed and made the judgment of this court.
Dissenting Opinion
I find myself unable to concur in the views expressed in the foregoing opinion, and therefore respectfully dissent.
