39 La. Ann. 855 | La. | 1887
The opinion of tbe Court was delivered by
Tbe object of this suit is to prevent tbe removal of tlie parish seat of <. e Parish of Avoyelles from Marksville to another point in tbe paiLh.
The grounds upon which the suit resis are : That the Act of 1880, No. 104. relative to such removal, is unconstitutional, and if not such, that the requirements of said act have not been complied with.
The district judge considered the act as unconstitutional in all its parts, and made peremptory the injunction issued m limine to prevent the removal.
From this judgment the defendants appeal.
In relation to the grounds upon which plaintiffs rely to assail the constitutionality of the act, it may be sufficient to say that the power of the General Assembly cannot be doubted to authorize, by appropriate legislation, the removal of the parish seat; but that this power can be exercised only when the qualified electors, or a majority of them, consent to it, and, if the constitutional limit of taxation is to be increased thereby, where the property taxpayers of a parish, entitled to a vote, or a majority of same, voting at such election, shall have voted for such increase.
Indeed, the power to remove a parish seat is not only not denied the Legislature by any constitutional limitation or prohibition, but is expressly conferred by article 250, which is to the effect that any law passed, contemplating such purpose, shall not go into effect until after submission to and approval by the qualified electors of the parish. This is so truly so that it is left entirely discretionary with the Legislature to initiate the question, or refrain altogether from agitating it.
The electors of the parish have no constitutional right to operate the removal. All they can claim is a law authorizing the removal, subject to their approval; but this right is subordinate to the will of the Legislature to move or not in the premises.
The real ground of complaint urged by the plaintiffs is simply that the conditions imposed by the act of the removal have not been complied with, namely: That the police jury did not act as the Statute liad commanded, and that the sense of both the electors and the property taxpayers, touching the removal ahd the increase of taxation, have not been ascertained.
The contention of the defendants is that the act is constitutional so far as it refers to the action of the police jury and provides for an election by the electors; but that it is unconstitutional in that portion of it which requires as a sine qua non condition that the property taxpayers shall be likewise, and at the same time, called upon to vote.
In support of this position, it is urged: That the act could not legitimately embody the obnoxious provision and that the title could not and did not embrace it.
It would be premature to consider, at this stage, the questions of fact raised by the plaintiffs respecting the non-observance of the conditions imposed by the Legislature, in as much as the validity or invalidity of the Statute must, at the threshold, be determined, for it is only on the assumption of its constitutionality in its entirety that the inquiry can arise, whether its behests have been observed.
The defendants admit and insist that the act is constitutional, as concerns all its provisions, save the portion of the fourth section, directing the taking of the sense of the property taxpayers, at the same election, and providing that, in the event of there being a majority of votes against the special tax, the act is to be of no effect, whatever may be the vote cast on the vote of removal.
We will therefore now proceed to consider the question of unconstitutionality raised by the defendants, viz : Whether the last proviso of section 4 could legitimately have been inserted in the act, and is or not covered by the title of the act.
The Constitution assuredly provides that “ every law enacted by the General Assembly shall embrace but one object, and that shall be expressed in the title.”
Hence, it is argued by the defendants that, as the act contains two distinct and discordant objects, only one of which is indexed in its title, it follows that the other object, which could not be incorporated in the act and was not expressed in the title, must be deemed unconstitutional, and therefore not included in the law, which, without it can well stand and be executed as a piece of legislation.
The premises granted —jpositis ponendis — the conclusion would be irresistible; but the premises are a fallacy, resulting from a confusion of ideas on the subject.
It is elementary that, although no act can have more than one object in view, which must be announced in its title, still it is needless that the title should enunciate the various ways and means to which the law-giver may resort to accomplish the purpose in view, for it has been well observed, from a practical consideration, that otherwise the title
It is error to suppose that the of the fourth section could not form part of the act, for not only is it germane and congruous, but also an eminently proper and wise appendage.
It is not, in itself, susceptible of forming the isolated purpose of independent legislation, disconnected from all reference to the other poitions of the act, without which it would be unintelligible.
The adoption of the act by the Legislature, and its approval, on submission, by the electors, without a vote, ordered expressly or impliedly, by a majority of the property taxpayers in case of an increase of taxation, might have proved brwtum fulmen, for how could the parish seat be removed, and another provided for, where the limit of taxation lias been reached, unless provision w°re made for the removal and relocation of the same?
In the petition it is alleged, and the record shows, and it is not denied, that an increase of taxation would be unavoidable.
It is apparent that the legislative intent, the sole object which the General Assembly had in contemplation, was the removal of the parish seat from Marksville to another point in the parish, and, as a precautionary measure, the ways and means required to accomplish such removal were provided for.
The General Assembly was well aware of the provisions contained in articles 250 and 209 of the Constitution, which provide: the former, that laws removing parish seats shall, before, taking effect, be submitted to the electors of the parish to be affected thereby, at a special election held for that purpose, and be adopted by a majority of votes cast at such election ; the latter, that for the purpose of erecting and constructing public buildings, the rates of taxation limited by the article may be increased, when the rate of such increase, and the purpose for which it is intended shall have been submitted to a vote of the property taxpayers of the parish, entitled to vote, under the election laws of the State, and a majority of same, voting at such election, shall have voted therefor.
The Legislature may well be presumed to have had knowledge of the financial condition of the parish in question, or at least to have foreseen the contingency of an increase of taxation, beyond the constitutional limit, to accomplish the removal, including the price of the acquisition of the necessary spot, and the cost of construction and fitting up of the building.
The conclusion seems irrestible : That the act had but one object— the removal — ■ which was expressed in its title ; that the conditions attached to the removal are not discordant; but on the contrary, harmonious ; that it was useless to insert them explicitly in the title; that mention of the one therein, without the other, was a superfluity, and that the omission to mention that other is not destructive of the act.
The contention may also be considered from another determining standpoint.
The legislative power and authority to abstain from removing the parish seat are absolute and unlimited.
The first essential prerequisite to the removal is the expression of the legislative will to that effect, in the shape of a law for the purpose. It is perfectly clear that it cannot be removed, except in execution of such a law.
In this case the Legislature has clearly refused to give its consent to such removal, except in compliance with the condition expressed in the proviso.
The statement made by the counsel for the rembvalists establishes this beyond a doubt, for he tells us that the bill, as originally passed by the House, contained no such proviso ; that the Senate refused to pass it without such proviso, and amended the bill by inserting it, and that, as amended only, it received the concurrent vote of the two Houses and the signature of the Governor.
How can it be said that the Legislature has authorized the removal, except on compliance with the explicit requirements of the proviso ? not being complied with, the legislative authority does not exist, and matters stand as if the law had never been passed.
It is of no consequence, possibly, whether the proviso is constitutional or not.
If constitutional, of course it must be complied with.
If unconstitutional, then it is clear that the whole law must fall, because obviously the Legislature would not have passed the law at all, without the proviso, as it actually refused to pass it until the proviso had been inserted.
Coming now to tbe questions of fact averred in tbe petition, it is enough to say that it is needless to determine whether the police jury had to comply with section 2 of the act, which contemplated setting them in motion, for had the police jury complied with its provisions, our conclusions would remain unaffected.
It is evident that the sense of the property taxpayers voting at the election was not sought and ascertained.
Their abstention from voting at all cannot be construed into a vote infmor, but ought rather to be regarded as a vote against tbe increase of taxation, as the Constitution requires, to justify such increase, that “ a majority of same, voting at such election, shall home voted therefor.” Art. 209.
The Secretary of State was therefore correct when promulgating the result of the election he announced that the act had not been adopted.
Judgment affirmed.
