Edwards v. ParkerEdwards v. Parker
William J. Guste, Jr., Atty. Gen., Kendall L. Vick, Louis M. Jones, Asst. Attys. Gen., Donald Ensenat, Sam L. Levkowicz, Dept. of Justice, New Orleans, for defendant-respondent, Mary Evelyn Parker.
Harry B. Kelleher, Lemle, Kelleher, Kohlmeyer & Mathews, David J. Conroy,
B. B. Taylor, Jr., Taylor, Porter, Brooks & Phillips, Baton Rouge, for intervenor-appellee La. State University and Agricultural and Mechanical College.
William J. Guste, Jr., Atty. Gen., Frederick W. Ellis, Special Asst. Atty. Gen., Lands and Natural Resources Section, intervenor for Governor Edwards.
DIXON, Justice.
We granted writs in these consolidated cases to determine disputes which have arisen concerning the disposition of funds received from the United States government as part of the settlement of the tidelands litigation.
Because of the importance of the questions to the State of Louisiana and to the operation of its government, all parties have requested expeditious treatment and determination of the issues.
On September 15, 1975 the State of Louisiana received two checks from the federal government. One was in the amount of $96,138,938.68, and the other was in the amount of $40,157,076.75. In the summer of 1975, when it became known that the tidelands funds would be forthcoming in the fiscal year 1975-1976, the Governor and the Treasurer of the State of Louisiana requested opinions from the Attorney General of Louisiana concerning the disposition of the funds. In the first opinion, to the Governor, the Attorney General concluded that the funds may be used to pay currently maturing bonded indebtedness, as well as that which would mature in future years. The Legislature subsequently added approximately $90,000,000 to the appropriations and capital outlay bills. After that legislative action, on August 5, 1975, the Attorney General‘s opinion to the Treasurer informed her that she could only make from the tidelands funds to be received, certain dedicated payments and pay bonds which matured during the fiscal year in which they were received, and only after that to pay for bonds in advance of maturity.
On September 26, 1975 the district court rendered judgment in favor of the plaintiff taxpayers and against the Treasurer, granting a preliminary injunction prohibiting the Treasurer from the disposition of the tidelands funds, except for their investment, for any purpose other than the payment of bonded indebtedness maturing after the end of fiscal year 1975-1976.
On March 23, 1976 the Treasurer filed an answer in the injunction suit, admitting the allegations of fact therein and praying for judgment according to law. That same day, the district court ordered the consolidation of the taxpayer suit with a suit for declaratory judgment filed by the Honorable Edwin W. Edwards, Governor, on March 16, 1976. The declaratory judgment action sought a declaration of the powers, authority and duties of the Governor, the Legislature and the Treasurer with respect to the receipt, deposit, distribution and use of the tidelands funds. Constitutional responsibilities of the Governor and the Legislature with respect to the operating budget and the capital outlay budget and the pressing need for certainty as to the proper disposition of the tidelands funds in time for the 1976 session of the legislature, due to convene May 10, 1976, justify the exercise of the supervisory jurisdiction of this
The principal question to be decided is whether the funds received by the State in the tidelands settlement are available to pay the obligations of the State which fall due in the year in which the tidelands funds are received, thus freeing current revenues of the State, otherwise allocable for the payment of currеnt debt, for other uses by the Legislature.
On the next day, December 18, 1973, debate commenced on what is now
“Funds derived from offshore mineral leases and held in escrow under agreement between the state and the United States pending settlement of the dispute between the parties shall be deposited in the state treasury when received. Upon such settlement, these funds and the interest from their investment, except the portion otherwise allocated or dedicated by this constitution, shall be used by the state treasurer to purchase, retire, or pay in advance of maturity the existing bonded indebtedness of the state or shall be invested for that purpose. If any of these funds cannot be so expended within one year, the legislature may appropriate annually, for capital improvements or for the purchase of land, ten per cent of the remaining funds, not to exceed ten million dollars in one year.”
Several reasons support the interpretation of the taxpayers—that the tidelands money fell into a special fund and not into the Bond Security and Redemption Fund. The first is the disclosure in the Official Transcript of the Constitutional Convention on p. 134 of the 103rd day that a delegate, Senator DeBlieux, proposed an amendment which would have placed the tidelands moneys in the bond and redemption fund. His amendment would have deleted all language in
“I certainly feel like that the proper portion of this is to get those funds and deposit them in the state treasury and then let the set-up that we have that we have enacted by a statute, now incorporated into our law by constitutional amendment, manage those funds so that we can get the best use out of them. Now, here, if you take these funds and use them for retirement of the state
debt as has been indicated, as Senator Rayburn told you, we are just going to lose the management of our funds and possibly lose a great deal of interest which the state is now being able to get from these funds if they should ever come into the state treasurer. So, I ask that you adopt this amendment and, therefore, you might say undedicate these funds so that we can get the best management out of our funds.”
The debate that followed expressed the fear of political factors that might prevent retirement of the bonded indebtedness by the legislature, confidence that the committee proposal would insure fiscal responsibility, a realization that tidelands money would be non-recurring income, that the sum involved was about $150,000,000, and that the Treasurer should be able to invest the money to make the most advantageous arrangement for the State in retiring the indebtedness.
The DeBlieux amendment was defeated by a vote of 16 to 73.
Other portions of the debate support the taxpayers’ interpretation. One delegate said: “But, I think the intent is clear, the intent is to avoid the possibility of a legislature expending moneys that are suddenly received in one year in a great windfall for something other than first seeing to it that this State‘s debt is taken care of.” (Supra, p. 130). On the next page a delegate referred to the matter as “dealing with a special fund.”
Throughout the debate it was emphasized that, with small exceptions,
The 1921 constitutional provision clearly contemplated that the tidelands money would constitute a special fund, notwithstanding any other provision of law. A fair reading of the provision required the prepayment of all the State debt possible on receipt of the funds and the investment of that money which could not be so spent, which would then be used to pay what fell due in the next year. At the time of the adoption of this provision there was in effect
Even in the absence of rather clear еvidence of the intent of the drafters of the 1974 Constitution from the transcript of the proceedings, an appropriate and common method of interpretation would lead to the conclusion that the tidelands funds were not to be included in the Bond Security and Redemption Fund.
The Governor‘s contention that the tidelands money may be used to reduce the bonded indebtedness of the State which matures in the fiscal year of receipt is based in part on the use of the word “or” in the phrase “purchase, retire, or pay in advance of maturity.” The argument is in
We cannot agree with this interpretation.
Therefore, we conclude that the tidelands funds cannot be employed to pay currently maturing bonded indebtedness of the State, and do not fall within the operation of
One further dispute must be resolved, because the check in the amount of $40,157,076.75 did not represent income from royalties or other payments under the provisions of the leases, but represented severance taxes. Counsel for the Governor contend that the severance tax fund is different from “funds derived from offshore mineral leases,” and should be governed by
Pursuant to a 1953 statute (now
In 1956 such an agreement was made by the United States and Louisiana, under which the lessees of the disputed tracts, operating under leases from the State of Louisiana, would deposit in escrow, in addition to royalties due the State under the leases, an amount equal to that which would be due the State for severance taxes. Severance taxes in Louisiana are excise taxes imposed upon the right to produce or sever products from the land. Bel Oil Corp. v. Roland, 242 La. 498, 137 So. 2d 308 (1962).
The royalties received were due the State of Louisiana from production under leases from the State on lands whose ownership was in dispute, but finally determined to belong to the State. The production of oil under the leases would have created the tax liability to the State in the absence of the disputed ownership. The federal statute and the agreement thereunder provided for
We conclude therefore that both the sums attributable to royalties and to severance are governed by the provisions of
Since we conclude that
It is to be noted, of course, that
Many specific and hypothetical questions are propounded in the suit for declaratory judgment. We consider that this opinion has answered the only justiciable issues in the case; we are not authorized to depart from deciding justiciable controversies and enter the area of advisory opinions.
“A ‘justiciable controversy’ connotes, in the present sense, an existing actual and substantial dispute, as distinguished from one that is merely hypothetical or abstract, and a dispute which involves the legal relations of the parties who have real adverse interests, and upon which the judgment of the court may effectively operate through a decree of conclusive character. Further, the plaintiff should have a legally protectable and tangible interest at stake, and the dispute presented should be of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”
And further, there is judgment in the declaratory judgment action, Edwin W. Edwards, Governor v. Mary Evelyn Parker, Treasurer, No. 190,239 on the docket of the 19th Judicial District Court, decreeing:
(1) The tidelands funds are not covered by
(2) Because the tidelands funds do not form part of the Bond Security and Redemption Fund, said funds are not available to pay obligations which are secured by the full faith and credit of the State which become due and payable from the Bond Security and Redemption Fund in any current fiscal year, including principal, interest, premiums, sinking or reserve fund, and other requirements.
(3) The $40,157,076.75, representing severance taxes due the State of Louisiana, are not to be treated differently from the $96,138,938.68, representing royalties, and are therefore excluded from the operation of
Affirmed and rendered.
SUMMERS, J., assigns additional concurring reasons.
TATE and CALOGERO, JJ., concur in part and dissent in part and assign reasons.
MARCUS, J., joins in the additional concurring reasons assigned by SUMMERS, J.
DENNIS, J., concurs in part and dissents in part and assigns reasons.
APPENDIX
Section 9. (A) Deposit in State Treasury. All money received by the state or by any state board, agency, or commission shall be deposited immediately upon receipt in the state treasury, except that received:
(1) As a result of grants or donations or other forms of assistance when the terms and conditions thereof or of agreements pertaining thereto require otherwise;
(2) by trade or professional associations;
(3) by the employment security administration fund or its successor;
(4) by retirement system funds;
(5) by state agencies operating under authority of this constitution preponderantly from fees and charges for the shipment of goods in international maritime trade and commerce; and
(6) by a state board, agency, or commission, but pledged by it in connection with the issuance of revenue bonds as provided in Paragraph (C) of Section 6 of this article, other than any surplus as may be defined in the law authorizing such revenue bonds.
(B) Bond Security and Redemption Fund. Subject to contractual obligations
(C) Exception. Nothing in this Section shall apply to a levee district or political subdivision unless the full faith and credit of the state is pledged to the payment of the bonds of the levee district or political subdivision.
2(d). Revenue from tidelands mineral leases; use of
Section 2(d). Notwithstanding any other provision of this Constitution or of the laws of this state, all funds received by the state of Louisiana during the calendar year 1966 and thereafter from revenues derived from tidelands mineral leases and now or hereafter held in escrow under an agreement executed by and between the state of Louisiana and the United States Government pending settlement of the claims of the state of Louisiana with regard to its portion of such revenues, but not including any portion of such funds derived from royaltiеs received by the state from mineral leases which are required by the provisions of Article IV, Section 2 of the Constitution to be placed in the Royalty Road Fund to the credit of the parish from which production is had and not including any portion of such funds now dedicated or allocated to public education purposes, shall be credited by the state treasurer to a special fund in the state treasury.
So much of the monies credited to the special fund hereinabove provided for as are needed for the purpose shall be expended by the state treasurer, when authorized and directed to do so by the Board of Liquidation of the State Debt, to purchase and retire in advance of maturity the callable bonds or other evidences of indebtedness of the state of Louisiana or its agencies, boards and commissions. Monies thereafter remaining on deposit in said special fund, which cannot be extended immediately for the purpose hereinabove provided, shall be invested by the state treasurer, in such amounts as he in his discretion may deem advisable and in the best interest of the state. Such funds, including any interest earned thereon, shall be invested and reinvested in time certificates of deposit in state banks organized under the laws of Louisiana or national banks having their principal office in the state of Louisiana and in short-term United States Treasury bills and in bonds and other direct obligations of the United States Government.
Out of the total funds remaining in the said special fund on the last day of each calendar year there shall be set aside such amount as is needed to pay the principal of and interest on the outstanding bonded and other indebtedness of the state and its agencies, boards and commissions in the next succeeding calendar year, as hereinabove provided, and such funds so set aside shall be so used. Thereafter, not more than ten per centum of thе total value of the said special fund remaining on the last day of each preceding calendar year, up to but not in excess of Ten Million Dollars, may be appropriated by the Legislature during the first calendar year following the adoption of this amendment in 1966 and in any calendar year thereafter, for capital improvements, including the purchase of land, architect and engineering fees, construction costs and equipment for buildings and other costs.
SUMMERS, Justice (concurring).
I believe, as the author of the opinion points out with respect to the 1921 Constitution, that a fair reading of
Although I believe that this is the meaning of the Court‘s opinion, and I subscribe to it in every respect, I add these concurring reasons to make clear what I understand the opinion stands for.
TATE and CALOGERO, Justices (concurring in part and dissenting in part).
In summary, for reasons to be stated more fully,
We concur (1) in affirming the district court judgment that tideland funds received during this fiscal year may not be used to retire state indebtedness becoming due during this year and (2) in affirming the general holding that tidelands must be used to reduce the bonded indebtedness of the state, with the limited exceptions below noted.
However, we dissent from the majority‘s holdings (1) that the portion of the funds received to pay severance tax liability upon the tidelands area are to be treated as tidelands funds, not tax revenues and (2) that the tidelands funds deposited in the state treasury may never form part of the Bond Security and Redemption Fund for any given year and may never be used, even if invested for that purpose, to pay any bonded indebtedness becoming due in the future within the fiscal year in which the payment is to be made.
Simply stated, we feel that, in reaching the latter holdings, the majority has converted into a constitutional strait-jacket provisions of our 1974 constitution which were, instead, intended to afford flexibility in the payment and securing of the bonded indebtedness of the state (subject, of course, to the constitutional restriction that the tidelands funds be used to retire preexisting state indebtedness falling due in any fiscal year subsequent to that in which they are paid).
By so doing, we are overlooking the fundamental purpose of our 1974 constitution to provide for a flexible framework of government, with a minimum of detailed restrictions and dedications which freeze the mechanics into a 1974 mold of the day and of future years and deprive the legislatures with full power to provide for the needs of the present.
The detailed reasons for these conclusions we set forth below.
We are also of the belief that the majority is in error in refusing to answer certain practical questions of administration of the public debt posed by this declaratory judgment action.1 By characterizing them as raising “non-justiciable” issues, the majority shirks its judicial duty under our declaratory judgment code articles,
I. The Threshold Issue
The issues before us involve an interpretation of the constitutional provision in question. Before discussing important ancillary issues, we will first consider a threshold issue relating to the intent of the constitutional provision.
“Funds derived from offshore mineral leases and held in escrow under agreement between the state and the United States pending settlement of the dispute between the parties shall be dеposited in the state treasury when received. Upon such settlement, these funds and the interest from their investment, except the portion otherwise allocated or dedicated by this constitution, shall be used by the state treasurer to purchase, retire, or pay in advance of maturity the existing bonded indebtedness of the state or shall be invested for that purpose. If any of these funds cannot be so expended within one year, the legislature may appropriate annually, for capital improvements or for the purchase of land, ten percent of the remaining funds, not to exceed ten million dollars in one year.” (Italics ours.)
The threshold issue before us is whether, as the taxpayers contend, the italicized phrase prohibits the use of tidelands leasederived funds to purchase, retire, or pay any portion of the existing bonded indebtedness of the state which matures in the fiscal year of receipt (i.e., in the instance of the present payment, the fiscal year 1975-1976). The taxpayers contend this is the import of the state constitution‘s requirement that the tidelands proceeds be used “to purchase, retire, or pay in advance of maturity the existing bonded indebtedness of the state.” The state treasurer concurs in this interpretation.
On the other hand, the governor, the attorney general, and the board of supervisors contend that the unambiguous meaning of the provision is only that the tidelands funds be used to reduce the bonded indebtedness of the state existing on the date of their receipt. Thus, they argue, the contested wording provides alternative (“or“) methods by which to reduce the indebtedness: (a) purchase of outstanding bonds; (b) retirement at maturity, including during the current fiscal year; and (c) payment in advance of maturity.
The precise issue raised by the opposing interpretations of the above-italicized wording is whether the phrase “in advance of maturity” modifies the entire preceding series of words (that is, “рurchase, retire, or pay“); or whether instead it merely qualifies the last word in the series (that is, “pay“).
Various rules of statutory interpretation, legislative drafting, and grammar are advanced with equal persuasiveness to support the opposing constructions urged upon us. The treasurer and the taxpayers suggest that the words “purchase, retire, or pay” have in the present context synonymous meanings. The state points out, on the contrary, that, in fact, the terms (a) “purchase”2, (b) “retire”3, “or” (c) pay
II. Intent of Drafters
Each of the two opposing constructions advanced may with equal reason be considered as reflecting the functional intent of the literal wording of the provisions; both opposing interpretations are included within the ordinary meaning of the language used. With regard to the limited issue before us, therefore, the intent of the constitution‘s drafters is not clearly reflected by the actual wording of the provision. Under this circumstance, it is appropriate for us to refer to the documents and debates of the constitutional convention to determine the legislative (constitutional) intent of the delegates to the convention who drafted the provision which was subsequently ratified by the people. 2A Sutherland, Statutes and Statutory Interpretation, Sections 45.05, 45.09, and 45.13 (4th (Sands) ed., 1973):
The provision, as drafted, clearly reflects a constitutional intent to apply tidelands funds to reduce the existing bonded indebtedness of the state. However, it does not—in the light of the equally reasonable constructions advanced to us—unambiguously provide that such tidelands funds must be used to reduce the debt only by paying bonded indebtedness “in advance of maturity“. Nor does the constitutional phraseology of the provision itself require a construction, for which the taxpayers contend, that the tidelands escrow funds may not be used to pay any portion of the state‘s bonded indebtedness which matures in the same fiscal year as the funds are received.5
Reference to the records and debates of the constitutional convention clearly indicate a specific intent to continue by this provision the substance of a predecessor section of the 1921 constitution (to be cited and quoted below). See: State of Louisiana, Constitutional Convention of 1973, Verbatim Transcripts (39 Volumes; 1973-1974) (hereinafter cited as Proceedings, by volume number, date of debate, and page numbers) at: 34 Proceedings (103rd day, December 18) 123-39 and (104th day, December 19) 2-12; 38 Proceedings (117th day, January 14) 105 and (118th day, January 15) 13, 15; and 39 Proceedings (121st day, January 18) 187, 188-89, 198.
The provision of the 1921 constitution thus intended to be continued in substance by the 1974 constitution, was
The records of the Constitutional Convention clearly indicate that the drafters merely intended to shorten the 1921 provision, but to retain its substance. Senator Louis Lambert, chairman of the committee reporting the provision and recommending its adoption, so explained this as its meaning and substance. He stated that the section provides that tidelands funds not otherwise dedicated would be used to retire the state‘s bonded indebtedness “as did the previous article. . . . Basically what this does is retain the source provision in our present constitution.” He further stated, “[w]e did not want to do anything to take away from the intent of the [prior] constitutional provision. As a result of that, we adopted it almost as it was. We tried to shorten it as much as we could and we shortened it quite a bit. But, we tried to retain the substance that was in the source provision . . . [W]e tried to keep intact as best we could the existing, the source provision, in our present constitution.”
See 34 Proceedings (103rd day, December 18) 125-26.
Nowhere in the debates is any contrary intent set forth.
(The debates of the convention reflect a consistent intent, when retaining in substance prior constitutional provisions, to shorten6 and simplify the language, and to use English rather than legalese in expressing the same concepts. Thus, a change in language does not necessarily indicate any change in meaning from a provision of the prior constitution so retained in simplified language.)
At the outset of this discussion, therefore, we shall set forth in the table below the text of the two constitutional provisions:
TABLE 1
Offshore Mineral Revenues; Use of Funds
Section 10. Funds derived from offshore mineral leases and held in escrow under agreement between the state and the United States pending settlement of the dispute between the parties shall be deposited in the state treasury when received. Upon such settlement, these funds and the interest from their investment, except the portion otherwise allocated or dedicated by this constitution, shall be used by the state treasurer to purchase, retire, or pay in advance of maturity the existing bonded indebtedness of the state or shall be invested for that purpose. If any of these funds cannot be so expended within one year, the
of
So much of the monies credited to the special fund hereinabove provided for as are needed for the purpose shall be expended by the state treasurer, when authorized and directed to do so by the Board of Liquidation of the State Debt, to purchase and retire in advance of maturity the callable bonds or other evidences of indebtedness of the state of Louisianа or its agencies, boards and commissions. Monies thereafter remaining on deposit in said special fund, which cannot be expended immediately for the purpose hereinabove provided, shall be invested by the state treasurer, in such amounts as he in his discretion may deem advisable and in the best interest of the state. Such funds, including any interest earned thereon, shall be invested and reinvested in time certificates of deposit in state banks organized under the laws of Louisiana or national banks having their principal office in the state of Louisiana and in short-term United States Treasury bills and in bonds and other direct obligations of the United States Government.
Out of the total funds remaining in the said special fund on the last day of each calendar year there shall be set aside such amount as is needed to pay the principal of and interest on the outstanding bonded and other indebtedness of the state and its agencies, boards and commissions in the next succeeding calendar year, as hereinabove provided, and such funds so set aside shall be so used. Thereafter, not more than ten percentum of the total value of the said special fund remaining on the last day of each preceding calendar year, up to but not
This Section shall be self-operative and shall require no further or other legislation to place it into effect.
III. Analysis of Predecessor Constitutional Provision re Threshold Issue; Intent of 1974 Constitution‘s Section 10
The quoted predecessor provision of the 1921 constitution required tidelands funds when received to be placed into a special fund. From this fund, when authorized and directed by a political organ of government then entrusted with aspects of debt management, the treasurer was to expend monies “to purchase and retire in advance of maturity the callable7 bonds or other evidences of indebtedness” of the state. (Italics ours.)
The section further provided that monies not so used should be invested so as to bear interest; and that, annually, “Out of the total funds remaining in the said special [invested] funds on the last day of each calendar year“, a sum shall be set aside and used “to pay the principal of and interest on the outstanding indebtedness of the state ... in the next succeeding calendar year.”
Thus, with regard to the specific issue before us, the predecessor provision directed that the funds be immediately used to reduce indebtedness “in advance of maturity” only before the end of the calendar year. However, the political agencies of the state were authorized and in fact directed to use the remainder of the funds annually thereafter to the extent “needed to pay the principal and interest” of the existing state indebtedness, either as it fell due or (by implication) in advance of maturity.
With regard to the specific issue before us, the general language of the 1974 constitutional provision may reasonably be interpreted to similar effect. In light of the constitutional intent to incorporate the substance of this predecessor provision in
1. The tidelands funds may not be used to pay bonded indebtedness already due at the time of the receipt of the funds or that
2. However, the tidelands funds may be invested to pay bonded indebtedness not yet due, rather than being immediately used to pay such bonded indebtedness in advance of maturity. The convention debates9 and the arguments before us indicate practical reasons why it may be financially advantageous to the state instead to invest the funds at the present high rates of interest in order to use the proceeds to pay off lowinterest obligations later, at their subsequent maturity. This, indeed, was the explicit purpose of the floor amendment explicitly permitting investment of the funds to pay obligations not yet mature rather than using the tidelands funds immediately for such purpose.10
3. The obligations not then due at the date of the receipt of the tidelands funds include the indebtedness of the next and succeeding years. Tidelands funds may be invested to pay these debts. That is, we can find no intent in the predecessor provision or the constitutional debates that directs the use of the funds only to longterm obligations of the state which would not ordinarily be paid from the revenues of the year in question.11 No intent is reflected to prevent this so-called windfall to the legislatures of the succeeding years, whether consecutive to the receipt of the tidelands funds or long thereafter, by using
4. Unlike the predecessor provision, the 1974 section does not specify the initial period during which only debts not yet matured may be paid “in advance of maturity.” (During this period, the tidelands funds may be invested to pay indebtedness maturing after expiration of the period, so as to pay such unmatured debts as they mature; rather than paying such unmatured debts immediately during this initial period, to the possible financial detriment of the state.) The 1974 provision does not itself clearly define this initial period, nor do the constitutional debates shed any light as to it. The issue thus addresses itself to judicial ascertainment.
Arguably, in view of the constitutional intent to retain the substance of the prior constitutional provision, this initial period could be the same as that specified by the predecessor provision—i.e., tidelands funds could be used to pay only debt maturing after the end of the calendar year in which the funds are received. However, to select this date (end of the calendar year) as the termination of the initial period when only unmatured debts may be paid, is to reach a construction not founded upon any constitutional language, without any clear constitutional intent to guide us to this result.
Arguably also, this initial period could terminate at the end of one year after date of receipt of the tidelands funds. This construction would be based upon the final sentence of the 1974 section, which provides that the legislature may annually appropriate, for land and capital improvements, ten percent of the “funds not so expended within one year” of receipt, not to exceed ten million dollars. No party so contends, however, perhaps because, in the context of the limited purpose of the sentence (see part V, question 8, below), ascribing this constitutional effect to the sentence is not founded upon any constitutional intent.
The taxpayers and the state treasurer argue that: Construing the constitution as a whole, it has made provision for the payment of obligations “which become due and payable within the current fiscal year“, see
We find this last to be the most reasonable of the interpretations available to us. It is based upon constitutional language, and it implements the functional intent of
We therefore would conclude that tidelands funds may not be used or invested to reduce any of the bonded indebtedness of the state which are due and payable during the fiscal year of their receipt by the state. See also part IV of our opinion below. We thus to this extent affirm the ruling of the trial court in granting a preliminary injunction in the taxpayers’ suit, Fenner et al. v. Parker, Treasurer.
IV. Relationship of Article 7, Section 9 to Article 14, Section 10
In the construction we have reached of
Nevertheless, we deem it appropriate at this point to discuss the relationship of the two constitutional provisions, not only because of this contention of the state, but also because of an ancillary contention raised by the taxpayers in connection therewith.
(We should here note, as conceded by all parties, that, whether or not the tidelands funds may ever form part of the bond security and redemption fund, they do not revert to the general fund for general appropriation.
The state argues that, upon deposit of the funds into the state treasury, they are immediately “allocated” to pay currently maturing debt, by operation of
With regard to the state‘s contention:
Although the funds are deposited in the state treasury, no portion of these tidelands funds is allocated to payment of the currently maturing debt. To do so, is to defeat the express intention of
The reference to other allocation of a portion of the tidelands funds refers solely to the allocation of royalties from mineral leases to the parish in which the production occurs.
With regard to the taxpayers’ contention:
However, as we have noted, the intent of the provision does not prohibit use of the tidelands funds (deposited in the treasury and invested for such purpose) from being used to any bonded indebtedness which matures in subsequent fiscal years. From this bond and security fund, without the necessity of legislative appropriation (by virtue of
The effect of the provision is not to designate the particular state monies in the state treasury which shall be allocated for retirement of currently maturing debt. It is primarily only to give holders of currently maturing bonds “a first lien and privilege and privilege on the funds in the Bond Security and Redemption Fund“,
We are unable to find that the explicit provisions and purpose of
In finding a contrary intent, the majority relies upon an excerpt of a statement by Senator DeBlieux, who was author of an amendment which lost by a vote of 73 to
The defeat of the senator‘s amendment was not a defeat of any proposal to make tidelands funds subject to being included in the bond security and redemption fund. It was a defeat of a proposal to place tidelands funds in the general funds available, except for the bond security and redemption fund allocation (as with all other monies in the state treasury), for spending for any purpose whatsoever. The ascription of any constitutional intent to this out-of-context excerpt of the statement of the author of a defeated (16-73) amendment is without legal foundation, and it flies in the face of the express language of the constitution (and the specific intent reflected by the debates) that all monies in the state treasury shall be credited to the bond security and redemption fund for the purpose of securing (not necessarily paying) state debt.
By our proposed holding, we would not intend to imply that tidelands funds must be used to pay debts maturing in the fiscal years next succeeding their receipt, simply because they are available for inclusion in the bond security and redemption fund for those years and thus available for this purpose. So long as (by requirement of
Fiscal Decisions and Economic Policy Primarily for the Political Branches of Government, not the Courts
We are mindful of the strong but opposing policy arguments made both by the taxpayers and by the state.
On the one hand, the taxpayers contend that the best economic advantage to the state will result from application of the tidelands funds to reduce longterm indebtedness at a discount, with consequently longrange savings in principal and interest.
On the other hand, with equal force, the state contends that, in view of the present high-interest borrowing rates and the constant inflation of construction costs, the state‘s longterm economic advantage may best be served by using the tidelands funds to retire soon-maturing indebtedness and using any thus-freed current revenues to build, for cash and without borrowing (at present high-interest rates), needed capital improvements (which must lаter, if not today, be constructed at much greater capital cost to the state).
The function of the courts, however is not to make political determinations as to fiscal questions where, as here, the constitution does not dictate their decision.
In the absence of restriction by the constitution, the choice of fiscal and economic policies is entrusted to the executive and legislative branches of our government, not
Finding no such constitutional restriction here, we would find no occasion for judicial enforcement of the concepts advanced either by the taxpayers or by the state, however meritorious and wise they respectively may or may not be.
V. Ancillary Issues and Questions Posed for Declaratory Judgment
As we indicated at the outset of this opinion we are also of the belief that the majority errs in refusing to answer certain practical questions of administration of the public debt posed by this declaratory judgment action. Were our view to prevail, we would address ourselves to these nine questions relating to the judicial interpretation of
Question 1
“Does the phrase ‘Funds derived from offshore mineral leases’ in Article XIV, Section 10, mean only the royalties, rentals and other lease moneys due Louisiana as lessor of offshore lands, or does it also include the severance taxes collected by Louisiana as the taxing sovereign of those lands?”
The “tidelands” litigation involved a dispute between the state of Louisiana and the federal government as to ownership of offshore areas. The monies received on September 15, 1975, resulted from judicial decision and subsequent agreement as to Louisiana‘s ownership of some of the disputed area. See United States v. State of Louisiana, 382 U.S. 288, 86 S. Ct. 419, 15 L. Ed. 2d 331 (1965). Louisiana then received from sums held in escrow certain payments attributable to or as a consequence of mineral leasing and production on areas now recognized as Louisiana‘s.
On September 15, 1975, Louisiana received two payments from the federal government in the total amount of $136,296,015.43. One check was for $96,138,938.68 payable to the “Treasurer of the State of Louisiana” and represented proceeds attributable to leasing and mineral production within the area now determined to be Louisiana‘s. The other check was for $40,157,076.75 payable to the “Collector of Revenue State of Louisiana” and represented the liability for severance taxes upon mineral production from that area during the period of litigation.
The specific issue raised by this question is whether the latter check is part of the “tidelands funds” which, by
The taxpayers argue, opposed by all other parties to this litigation, that the severance tax proceeds are “funds derived from offshore mineral leases” (
We find that the latter view is better supported by legal theory and is correct in
A severance tax is imposed upon all natural resources, including minerals, severed from areas subject to Louisiana‘s jurisdiction.
In the instant case, those who severed the minerals from Louisiana tidelands were liable for the tax from the moment of severing.
The interim agreement, at the cited Section 9(c), specifically provides that, “on determination that such funds are derived from an area determined to be owned by the State of Louisiana“, they should be “paid to the Collector of Revenue of the State of Louisiana, or the official or agency then designated by Louisiana law to receive such payments, and shall be credited by the State only against taxes which may be due and payable and not theretofore paid to the state * * *.”
The intent of the payment was thus to satisfy the producer‘s severance tax liability for production from an area now determined to be Louisiana‘s. During the period of litigation, Louisiana had not sought to enforce payment of the severance tax on production in an area it claimed, out of fairness to the producers and in an effort to encourage production.
Nevertheless, once the area was determined to be Louisiana‘s, the producers were liable to this state for these severance taxes. The payment had been held in escrow at the time of severance and is now received by the state for the specific purpose of satisfying this severance tax liability, undoubtedly due now that the area within which the production occurred has been determined to be owned by Louisiana at the time of production.
The 1974 constitution itself recognizes a distinction between Section 10‘s receipt of “funds derived from mineral leases” (which thus form part of the tidelands funds dedicated to debt reduction), as contrasted with the delayed receipt of severance tax proceeds attributable to offshore production.
The state contends, correctly we believe, that the constitutional distinction between Section 10‘s “offshore revenues” and Section 11‘s “tidelands taxes” can reasonably support the conclusion that the latter are not included within Section 10‘s “funds derived from offshore leases“, which latter must be used for reduction of pre-existing state indebtedness. Some additional support for this contention is furnished by the constitutional debates in conneсtion with adoption of Section 10.
The delegates did not contemplate that severance tax receipts were included in Section 10‘s debt-dedicated tidelands funds. This may reasonably be inferred from their concern to assure that the section specifically recognized the allocation to local governments of their share of the mineral lease royalties to which they were entitled by (now)
We are also reinforced in this conclusion by the conceptual distinction between taxes paid to the state upon production (severance) of minerals, as contrasted with revenues derived from the lease itself.16
A lease is a contract between a lessor and a lessee, by which the lessee‘s consent obligates himself to pay the rent. Civil Code Articles 2669, 2679, 2710(2). The payments by the mineral lessees (the producers) to the mineral lessor (the state) for the granting and maintenance of these mineral leases are lease-revenues of this consensual nature,
It is therefore conceptually accurate to speak of such lease-payments or such lease-rentals as “funds derived from offshore leases” (
Distinguishably, the right to tax is a sovereign attribute of a government, existing without consensual agreement, over persons and property subject to that government‘s jurisdiction. A severance tax is one imposed on the production (severance) of minerals, independent of any mineral lease; it is a payment derived from the state‘s power to tax, not from its power to lease.
Conceptually, therefore, a severance tax when paid is not a revenue or fund “derived from” a mineral lease.
The constitution does not provide this all-encompassing definition. We are unwilling by judicial interpretation to strike from the constitutional provision the constitutional limitation of dedicated tidelands funds to those “derived from offshore mineral leases.”
To summarize, we would answer Question 1 as follows: The payment of severance taxes upon the offshore production is not included within the “funds derived from offshore mineral leases” which must, by Section 10, be used for debt-reduction.
Question 2
“If the phrase “Funds derived from offshore mineral leases’ in Article XIV, Section 10, includes severance taxes, then does the phrase ‘except the portion otherwise. . . dedicated by this constitution’ in that same constitutional provision exclude that part of the severance taxes dedicated to the parishes by Article VII, Section 4(D)?”
In our previous answer we concluded that Section 10‘s “funds derived from offshore mineral leases” does not include monies the state receives to pay severance tax liability upon offshore production. Therefore, Section 10‘s dedication provision does not refer to the allocation to local governments affected of a share of severance tax proceeds, as provided by
Question 3
“Does the phrase ‘except the portion otherwise . . . dedicated by this constitution’ in Article XIV, Section 10, refer to that portion of the royalties dedicated to the parishes by Article VII, Section 4(E)?”18
Yes. See Part IV of our opinion, and our answer to Question 1 of Part V.
Question 4
“Article XIV, Section 10, provides that the funds derived from mineral leases “shall be deposited in the state treasury’ and ‘except the portion otherwise allocated. . . by this constitution, shall be used . . .’ for the purpose set forth therein. Article VII, Section 9(B), provides that `all . . . money deposited in the state treasury shall be credited
to . . . the Bond Security and Redemption Fund,’ and that `In each fiscal year an amount is allocated from the bond security and redemption fund sufficient to pay all obligations which are secured by the full faith and credit of the state and which become due and payable within the current fiscal year’ and that `Thereafter, except as otherwise provided by law, money remaining in the fund shall be credited to the state general fund.’ Does not the clause `except . . . otherwise allocated’ in Article XIV, Section 10, refer to the allocation by the Bond Security and Redemption Fund in Article VII, Section 9(B) which requires that on July 1, 1976, there shall be allocated an amount sufficient to pay all obligations which are secured by the full faith and credit of the state and which become due and payable during fiscal 1976-1977?”
For the reasons more fully set forth in parts III and IV of this opinion, we would answer this question as follows:
(1) The refеrence to “the portion otherwise allocated by this constitution” in
(2) However, any of the tidelands funds still on deposit in the state treasury (or invested in connection with such deposit) as of July 1, 1976 (the date the question designates as commencing the 1975-76 fiscal year) are available for, and may be (but need not be) allocated for payment of the obligations maturing during fiscal 1976-77. This results because of the express wording of
Question 5
“Does not the language of Article XIV, Section 10, providing that ‘these funds [derived from off-shore mineral leases] . . . . . . shall be used by the state treasurer to purchase, retire, or pay in advance of maturity the existing bonded indebtedness of the state . . .’ require the use of such funds for the payment of the currently maturing bonded indebtedness?”
For the reasons more fully set forth in parts III and IV of this opinion, we would answer this question as follows: No,
Question 6
“If that language does not prohibit the use of the funds to pay the currently maturing bonded indebtedness, then (a) is the treasurer granted the discretion to determine the manner in which the funds will be expended to reduce the bonded indebtedness of the state, or (b) does that discretion lie with the legislature by virtue of the constitutional provisions, Article III, Section 16(A) and (C), and Article VII, Section 10(A), granting the legislature the exclusive power to expend state funds, or by virtue of possession, by the legislature, of the right to exercise all powers which it is not specifically prohibited from exercising by the constitution?”
The predecessor constitutional provision (see Table 1), retained in substance by Section 10, clearly provided that the tidelands funds were to “be expended by the state treasurer, when authorized and empowered to do so” by a political instrumentality entrusted by the former constitution with that choice. The constitutional debates reflect
We are re-enforced in our conclusion that the answer to Question 6(a) is “No” by a consideration of the constitution as a whole.
First of all, with regard to the state treasurer,
This constitutional section was not, for instance, intended to confer upon the treasurer sole discretion as to how or when or for what purpose to “disburse” public funds; legislative appropriations principally determine the purpose and manner of disbursement of the state monies. This constitutional provision was not, for instance, intended to vest in the treasurer sole discretion as to the manner in which the “custody” of state funds will be maintained; historically, for instance, the manner by which the treasurer exercised custody was subject to legislative oversight and regulation, see, e.g.,
Thus, with regard to the state treasurer, the constitution confers upon this official general ministerial responsibility for the custody, investment, and disbursement of state funds; but it indicates no intent to confer upon this official an autonomous control and completely discretionary powers to disburse or invest these monies of the state. Not only does the constitution not do so; rather, it expressly confers the ultimate power and duty to decide such fiscal issues upon the governor and the legislature, who are (after all) the political officers primarily chosen by the people to determine political policies and programs of the day.
With regard to the payment of the indebtedness of the state, again the constitution explicitly vests in the legislature the power to make determinations as to which debts will be paid and what funds used to pay them (subject, of course, to the automatic allocation of funds in the treasury to pay currently maturing obligations,
Tidelands funds, with the exception of the annual ten percent permitted for construction by Section 10‘s last sentence, may not be used for any other purpose than reducing the pre-existing state indebtedness. Nevertheless, if they are used to pay currently maturing obligations in the fiscal years next succeeding their receipt, current tax monies may be available to pay cash for public construction, if the political organs of the state determine such are needed, instead of borrowing money on the open market at the present high rates of interest20 or of increasing present taxes if at a time of recession.
The choice to use such tidelands funds to pay debt maturing in near years, rather than distantly in the future, is closely related to the overall power and duty of the governor and legislature to make the ultimate political decisions as how best to use the state‘s entire fiscal resources; for instance, either to pay in advance debt not to mature for many years and save interest over the years, or, instead, to construct at the lower costs of today over the (presumably) higher costs of tomorrow. The benefits or demerits of this decision will, of course, depend on a weighing of values in the light of the economic circumstances at the time the decision is made, and they will vary according to the circumstances of that time. But, in any event, the constitutional responsibility for making these political decisions is vested in the governor and the legislature, not in the courts nor in the state treasurer.
The constitution envisages that overall responsibility shall be vested in the governor and the legislature to determine how the state‘s fiscal resources should be used for operating expenses, debt reduction, and capital improvements (either by аppropriation or by issuing bonds); subject (except for veto) to final determination by the legislature.
The governor is required annually to submit both an operating and a capital budget.
The general intent reflected by the 1974 constitution is to strengthen legislative power over the policies and processes of
The constitutional debates adopting Section 10 expressly indicates its purpose as to retain the substance of the predecessor constitutional provision (see Table 1). No intent whatsoever is reflected by these debates that the treasurer‘s merely ministerial function in applying tidelands funds to reduce state indebtedness was to be expanded so as to vest in this official sole discretion, independent of the political processes of the state, as to which debts should be retired and when. As noted, it would be inconsistent with the general framework and philosophy of government exрressed by the 1974 charter if in fact exclusive discretion had so been vested in a single official.
We are thus unable to conclude that, by Section 10, the primarily ministerial duties of the state treasurer designated by the constitution22 were enlarged so as to confer upon this official sole and exclusive discretion to make political fiscal decisions which in effect would determine, whether or not desired by the legislature, major fiscal policies concerning debt reduction, preparation and adoption of operating and capital budgets, capital improvements (and borrowing or taxing to pay for them).
If we were in doubt, however, a state constitution should receive a judicial construction in favor of legislative power, in the absence of unambiguous constitutional limitation thereupon. Hainkel v. Henry, 313 So.2d 577 (La.1975); In re Gulf Oxygen Welders Trust, 297 So.2d 663 (La. 1974); Kane v. Louisiana Commission on Governmental Ethics, 250 La. 855, 199 So. 2d 900 (1967); State v. Guidry, 247 La. 631, 173 So.2d 192 (1965); State v. Macaluso, 235 La. 1019, 106 So.2d 455 (1958); State ex rel. Labauve v. Michel, 121 La. 374, 46 So. 430 (1908). This is so because, as stated in Hainkel v. Henry, cited above, at 313 So.2d 579: “A general principle of judicial interpretation of a state constitution is that, unlike the federal constitution, a state charter‘s provisions are not grants of power but instead are limitations on the otherwise plenary power of the people of a state exercised through its legislature.”
As stated by Professor W. Lee Hargrave of the Louisiana State University Law School and a leading figure in the drafting of the 1974 constitution, see 36 La.L.Rev. 533 (1975):
“Though Louisiana courts have accepted and applied the principle that a state legislature possesses plenary power to do anything not prohibited by the constitution even absent a grant of power, the fact that
In summary, the answer to Question 6 should be that the legislature, not the state treasurer, has the discretion to determine the manner in which the tidelands funds are used to reduce bonded indebtedness; subject, of course, to the limitation previously found that tidelands funds may not be applied to reduce debt maturing during the fiscal year of their receipt.
Question 7
“Regardless of which public body or officer has the discretion to determine the manner in which the bonded indebtedness of the state will be reduced by expenditure of the funds derived from offshore mineral leases, does the provision ‘If any of these funds [derived from offshore mineral leases] cannot be. . . expended within one year . . .” require expenditure of these funds for retirement of the state‘s bonded indebtedness within one year of receipt?”
The answer to this question should be “No“.
In the first place, in the context of the entire text of Section 10, the quoted clause does not purport to state a time-limit during which the tidelands funds must be used for debt-reduction. The clause is contained in the section‘s last sentence, which relates only to the legislature‘s power to appropriate for capital improvements and land-acquisition a minor portion of any tidelands funds not yet actually expended on debt reduction; the clause, in context, modifies the sentence and merely specifies the time-period which must elapse before this minor diversion from debt-reduction may take place.
In the second place, the specific intent of Section 10‘s provision permitting investment of tidelands funds for eventual debt-reduction, rather than immediate expenditure for such purpose, was to permit full flexibility to the political officers and processes to use these funds for debt-reduction purposes with utmost flexibility, so as to assure their use for the best financial interests of the state in the judgment of those officials and agencies constitutionally and statutorily invested with responsibility and duty in this regard. See footnote 10 above and surrounding text of our opinion.
Question 8
“If the funds have not been expended within one year, may ‘the legislature. . . appropriate annually, for capital improvements or for the purchase of land, ten percent of the remaining funds not to exceed ten million dollars in one year‘?”
The answer to this question should be “Yes“. As the last sentence of Section 10 specifically provides, after September 15, 1976 (one year after the date of the receipt
Question 9
“Is `the existing bonded indebtedness of the state’ referred to in Article XIV, Section 10, limited to direct obligations of the state, or does it also include obligations of other taxing authorities but which are secured by the full faith and credit of the state?”
As noted in part II above, Section 10 is intended to continue in substance a predecessor provision of the 1921 constitution (see Table 1). That provision directed tidelands funds’ use to reduction of the “indebtedness of the state of Louisiana or its agencies, boards and commissions“. The constitutional debates reflect no intent to change the usage for such purposes.
Furthermore, the 1974 constitution‘s
We therefore would answer the question to such effect. (We do not read the judgment and decree of the trial court granting a preliminary injunction in the citizens’ suit as providing otherwise; if we are incorrect, upon the remand it could have been modified.)
For the reasons stated herein above were our view to have prevailed we would have remanded to the district court the taxpayer‘s suit, Fenner et al v. Parker, Treasurer, Civil Docket No. 185,033, Nineteenth Judicial District Court, for further proceedings in accordance with law and consistent with our opinion, and in the governor‘s suit for declaratory relief, Edwards, Governor v. Parker, Treasurer, Civil Docket No. 190,239, Nineteenth Judicial District Court, we would have rendered judgment declaring, with regard to the issues raised therein, in accordance with our proposed answers to Questions 1 through 9, part V of this opinion.
DENNIS, Justice (concurring in part and dissenting in part).
I respectfully concur in the majority holding that the tidelands royalty and severance tax funds may not be used except to purchase, retire or pay unmatured bonded indebtedness or to invest these funds for that purpose. However, I respectfully disagree that the purchase, retirement or payment of unmatured bonded indebtedness cannot occur within the same fiscal year as the receipt of the tidelands funds. The constitution essentially requires prepayment of bonds with tidelands funds as correctly held by the majority but it does not specify the extent of time by which the payment of a bond must precede its maturity. Furthermore, in my opinion, the constitution does not prohibit the use of tidelands funds for the payment of matured bonds if the funds have been previously invested for such purpose at a time when those bonds were unmatured if this should have been properly determined to be the most advantageous debt retirement strategy for the state to follow. In all other respects I agree with the majority opinion.
Notes
“No state, district, parish, or other tax, license, fee, or assessment of any kind, and interest charges and penalties attaching thereto, which are imposed, due, or collectible on any property, minerals or the severance thereof, or due or payable by any person, firm, or corporation on any business operation or activity within the tidelands area in dispute between the state and the United States and within the state‘s historic gulfward boundary three leagues from coast as established and defined by the act of Congress of April 8, 1812, which admitted this state into the Union, and as redefined in Louisiana Act No. 33 of 1954, shall prescribe until three years after the thirty-first day of Dеcember in the year in which the controversy existing between the United States and this state over the state gulfward boundary is finally resolved and settled in accordance with law. However, no interest charge or penalty shall be assessed or collected on any such tax, license, fee, or assessment if it is paid within one year after the thirty-first day of December in the year in which the controversy is finally resolved and settled.”
“There shall be a Department of the Treasury. The treasurer shall head the department and shall be responsible for the custody, investment, and disbursement of the public funds of the state, except as otherwise provided by this constitution. He shall report annually to the governor and to the legislature at least one month before each regular session on the financial condition of the state, and shаll have other powers and perform other duties authorized by this constitution or provided by law.” (Italics ours.)
Throughout the 1974 constitution, the term “law” is used in the sense of Article 1 of the Civil Code: “Law is a solemn expression of the legislative will.” (Italics ours.)