Kohler v. Tugwell

do, and for an order court reliev- ing Security obligation further Raymond against defend Bluth personal

claims Joan Landando for

injuries granted will be so far as leave deposit concerned, but denied so against duty

far as relief to defend sought. appropriate en- An order will

ter. KOHLER,

Claude L. David L. Burnes and Wogan, individually Rene S. citi zens, taxpayers and voters State Louisiana, and all for themselves oth persons similarly er and the situated Taylor Penniston-General Association Uptown Association, and the Civic Plain tiffs, TUGWELL, individually

A. P. and as Louisiana, Treasurer of the State of Levy, individually Neville and as Chair Mississippi Bridge man Authority River Greater Or and/or Bridge Mississippi leans ity River Author individually Stewart, and Arsene L. Department and as Director of the Highways State McKeithen, individually and John J. Governor of Louisi ana, office, and their successors in De fendants. A.

Civ. No. 68-253.

United States District Court Louisiana, E. D.

New Orleans Division.

Oct. 24,1969.

Judgment Feb. Affirmed S.Ct. 879.

See 89 and tolls not be col bonds would long so this was done.

lected as Bridge Mississippi River Later possible Authority began plan to bridges across construction of additional area, in and the New Orleans the river Orleans, La., Organ, necessary New Donald V. the Consti- to amend was plaintiffs. permit pledge of for further tution to financing in to state funds assist Schuler, Gremillion, P. William Jack P. bridge. any construction of new Curry, Rouge, La., P. William Baton Jr., Guillot, Porterie, S. B. Jesse Louis Accordingly, on November Orleans, La., for defendants. New presented with Louisiana’s citizens were part proposal a ballot contain as Judge, WISDOM, and Circuit Before ing forty-four proposed amend other Judges. RUBIN, District BOYLE Constitution,4 already to their ments longest Proposed in Union.5 Judge: RUBIN, District identified Amendment 26 was injunction an citizens seek Louisiana as ballot follows: au any prohibiting action Against:” “For or amend thority constitutional a state to Ar- proposed “The amendment ground adopted on the in VI, 22(a) (4) of the ticle Section designation as of the amendment so to amend Louisiana Constitution misled appeared on the state ballot provide of funds as to for a dedication Hence, they those contend that voters. police jury parish to Tangipahoa enactment in favor who voted of funds and a dedication vote, right deprived to- of their were Bap- to John Charles-St. the St. of Law1 both Due Process denied Authority Bridge Ferry tist Republican Form of to a and the provide ad- so to funds for Government.2 for crossings ditional river across adopted a In 1952 Louisiana’s voters Mississippi River or near to amendment authorize constitutional long Orleans so a time for sup state to the dedication of revenues outstanding bonds, are whatsoever bridge. financing plement toll of a bridge in connection with such bridge built, of its After the some reimposing on all reasonable tolls objected payment users During to of tolls. bridges and the Greater facilities gubernatorial cam Bridge Mississippi River New Orleans paign, promised one the candidates Authority.” (Emphasis supplied.) that, elected, passage on the if he were bridge Upon requires that be free. his elec constitution would Louisiana’s tion, proposed kept promise. He amendments be the Governor his constitutional approved mentions a contract between the Mis submitted to the voters but Bridge sissippi Authority are be de- River manner in which only Department by stating that amendments the State of Louisiana scribed Highways.3 provided so as to enable that State “shall be submitted This highway paid on each amendment funds would be to service electors vote XIV, reprinted Appendix 1. 4. amend. The full ballot in § U.S.Const. A. art. § U.S.Const. Havard, Proposals “The See Constitution,” neither Amend the bondholders 3. The trustee objected (1958) in the contract La.L.Bev. for a nor discussion concurred government by arrangement in has continued referendum. and the objection by apparent force -without bondholders. separately.”6 However, Bridge Mississippi Con River Authori- require ty paid stitution does text of full or refunded in full proposed each pub principal to be and interest order newspaper lished in building Bridge each of the of an additional sixty-four parishes during Bridges state’s twice within the Jurisdiction period thirty a at least Mississippi Bridge more of the River Au- sixty days election, thority

than before financing the for which the im- position this was re-imposition done. or of is tolls required.” plaintiffs The contend that lan guage description in say language the ballot’s of It is to charitable Amendment 26 led voters to believe that this clause it insofar as “the relates to reimposed building tolls Bridge would be on the exist of an additional or ing bridge Bridges” as soon as the constitutional is inartistic. These words effective, twenty us, amendment Judge became seem to in Learned Hand’s days after issuance of phrase, the Governor’s memorable to “dance before proclamation declaring passage,8 eyes meaningless its procession in a [our] * * * when in fact leav[ing] amendment contains in mind[s] [our] requirement reimposed. no only that vitally tolls be a confused sense of some They urge misled, important, that voters for successfully but concealed * * description the ballot purport ambiguous, lead the “ would At best average they may voter unintelligible. to read the . words . . in fact be But and reimposing reasonable no interpretation tolls on all issue of their is bridges” here, to mean as soon as this amend raised meaning and whether ment becomes found in be them is a matter for effective. Louisiana courts.10 The desig- read defendants the ballot saying nation as that the intended far as can divine amendment is So we * * * provide resorting “to meaning reimposing to harus- without tolls,” finding pication, provision reasonable we surmise that the inference in merely payments suspends any text that to the tolls will be re- imposed bridges designated parochial when authorities until additional bridge built. payment of all after in full bonds outstanding the amendment was when part The of the relevant amendment adopted and of issued subse- all bonds provides payment itself first by quent passage to financed its Highway certain Fund sums from State imposition reimposition If of tolls. Tangipahoa to No. to the Parish so, makes constitutional Baptist the St. Charles —St. John the requirement reimposed tolls no that Bridge Ferry Authority. Then it exigencies any time, although the states: financing and the demands of bond “* * * forego- provided that buyers may practical matter make ing $100,000.00 payment to annual levying inescapable. tolls parish governing authority Tangipahoa foregoing and the apparent so is that text $150,000.00 payment turgid say annual St. difficult it would be Bridge Baptist designation Charles —St. John the de- ballot could Ferry Authority accurately. shall no event in The scribe voters could payable become due attempt interpre- unless and to derive their own presently outstanding until pro- bonds tations from entire text of XXI, Swan, La.Const. Hand, art. 1.§ 9. Learned Thomas Walter Yale L.J. Id. Jones, 198 La. Graham So. Id. 2d deniably,” Supreme published posed amendment, United which said, Sims,14 parish The Court in “the every in state. twice in pro appeared on the Constitution language ballot of the United States that1 qualified by but tects the all citizens phrased some official11 was not vote, legislative state as well as federal was set forth verbatim However, elections.” proposed the constitutional court act appeared must not the bal with internal interfere af amendment. What necessary fairs of a voters what State unless lot tell was sufficient protect guaran to do complicated so to those amend every by up teed citizen to them to Federal Constit It was was about. procedure by ution.15 study The followed its exact text. deprive does propo- us is before issue of Due Process for it is sufficient grammarians. If the aver- sition for by Louisiana’s voters informed were the age what he to decide was had voter subject amendment, of the ballot of the alone, voting he on from the ballot given publi opportunity by were a fair plaintiffs might as the read it have well text, cation to consider its full and were from not have to decide he do. But did by not deceived the ballot's words. summary. the could look at He itself. deny plaintiffs Nor did Louisiana Ap- Republican ballot, appear their to Form of from a Gov- The will IV, 4, long. A, one has ernment. Article pendix No who .Section voting provides, Constitution “The at which election United voted in guarantee every shall fail to that States to in know machines are used voters, they Republican this Union Form of be- a once stand Gov- Louisiana’s agree booth, My voting voting in a ernment.” and I that brothers fore a machine challenged study likely de- state action does to to here are not be not able plaintiffs’ scription proposition on invade the the bal- of each Guaranty pre- They polls to the lot. must come Clause same reasons respect pared as those to vote on we have stated with advance to in process. due to But on amendments if vote with we differ whether understanding. there is another and more semblance fundamental why may reason not suc- requirements of The both cessfully Guaranty invoke Clause. Federal Louisiana Constitution by interpreted in Ever since the decision Luther Constitution v. Borden, 1849, (U.S.) Supreme 1, in v. Court Hotard 7 How. 12 L.Ed. 581, Guaranty City to “All has Orleans12 mean: Clause been held nature, printed primarily political required to in on be to be its enforcement ballot information to identi been held be is sufficient has a Congress fy proposed the matter for than amendment which rather for against.”13 voting the courts.16 for or “Un- voter is Neuner, 1, Conway, 146, 194 15. Ohio Oil v. See Blitz v. Or. 240 P. Co. 281 U.S. Neuner, 310, (1952); (1930); Dodd v. 50 S.Ct. L.Ed. 2d 1193 510, 118 Or. 74 775 (1950). Thompson, (5 NAACP v. 216 P.2d F.2d 670 357 831 1966). Cir., 752, 843, (1948). 12. 213 So.2d 756 La. 35 Telephone Telegraph 16. Pacific appeal Oregon, Hotard was dismissed 118, 224, Co. v. An from 32 S.Ct. 223 U.S. by Supreme (1912); Miller, for want sub- 56 L.Ed. of a Court 377 Coleman v. 803, question. 433, 455-456, 972, 335 307 U.S. U.S. stantial 59 S.Ct. 83 (1948). (1939); Taylor L.Ed. 69 L.Ed. 360 1385 S.Ct. 93 Marshall (No. 1), v. Beckham U.S. 533, 554, U.S. 44 L.Ed. 12 L.Ed.2d 506 my judicially un Both of read out of Constitution as brothers Baker Reynolds Carr17 courts But should also v. Sims18 as ex enforceable. pressing thoughts subject. doubt established second on the reluctant to cast Judges However, majority opinion doctrine. should Baker constitutional thoroughly forget judiciary not the decisions reviewed deal ing guardian Guaranty sole with the Constitution. Clause and Congress [long] duty stated: “The is the Court has refused * ** Guaranty uphold portions and defend resort to the President Clause that, as the for one rea source of Constitution stand invalidating another, son ard for state have been considered action.”19 judicial opinion justifies appropriate The action.23 remainder of the areas If the in Luther v. Borden and conclusion Court decisions require considered, reappraisal, still it is it Baker Carr said had “con sistently proper previously, held” here and “that do now. a chal lenge to state action based on the Guar judicial view enforce- Whichever anty justiciable presents Clause no Guaranty taken, Clause is * * question opinion nor the neither that clause Fourteenth pass v. Sims does contain the requires de- Amendment the state to ing questions observation “some on the itself the contents scribe ballot Guaranty raised under the Clause are proposition popu- submitted for nonjusticiable, ‘political’ where in na lar Nor do assert vote. ture and where there is a clear absence They proposition. such a contend mere- judicially manageable standards,”21 ly must not its mislead the state authority majority and cites as unnecessary de- voters. us to opinion in Baker Carr. sen This exactly termine what each clause does however, employed merely tence, require accept of the state: we preface observation, the Court’s “Never may plaintffs’ premise that the state theless, inconsistent with this to the extent mislead its voters * * * view to hold Equal voting they do not what know Protection Clause require can and does against. for or And find that we more.”22 introductory This sentence was not done here. justify does not the conclusion that legislature has Louisiana’s Since altering Court was the views it had so constitu- federal denied citizens its recently fully considered in Baker v. rights by in which the manner tional Carr. state’s them, plaintiffs’ judge deny No that federal was submitted to read courts should be loath clause suit dismissed. will be 186, 691, his dissent 17. 23. 369 U.S. Frankfurter 82 S.Ct. 7 L.Ed.2d Justice 186, 1962, Carr, 369 82 U.S. 663 Baker v. 663, 691, reviewed L.Ed.2d addition to the Guar- 18. 377 U.S. number areas 84 S.Ct. L.Ed.2d traditionally anty Clause, have been nonjusticiable. cases These include: held foreign affairs, concerning 19. at at war U.S. 82 S.Ct. regulatory power congressional extent of dependent communities 20. 369 over the tribes and U.S. at 714. concerning Indians, the struc- matters political organization insti- U.S. at S.Ct. at ture and ques- States, and “abstract tutions of the sovereignty, power, political Id. tions of government.” WISDOM, Judge; dis Article agreed Justice Frankfurter Circuit whom IV. BOYLE, strongly Judge, joins (concur- District He felt with the Court. ring). leg malapportionment state justiciable non contro islature awas I concur in result all versy, under Clause the Guarantee opinion relating to the Fourteenth Equal under the querading” “mas Protection Clause way go Amendment. I do not all the He under “label”. my brother Rubin’s views on the with pointed out, however, in dissent his Guaranty Clause. ing opinion: IV, Article section “is by express not committed 4 of Article IV declares that Section Congress. terms to is the nature Congress] “the United [not arising it, controversies under guarantee every shall in this State nothing else, ju which has made Republican Union a Form of Govern dicially unenforceable”. (Emphasis U.S. at ment”. bracketed words added.) S.Ct. at at 732. L.Ed.2d It is true Luther Bord v. Douglas, concurring opin Justice put his giant sleep.2 en1 this And the ion, disagreed with the court—and with expanding importance of the Fourteenth Justice Frankfurter: Amendment, “The through vote process due republican is inherent in the form of equal protection through clauses and government”. incorporation its most of Bill Rights, reduced the need for courts to He said: Guaranty pro resort to the Clause to “The statements Luther Borden against tect of individuals * * * guaranty en- governmental proc a state’s abuse of only by Congress forceable or the guarantee esses. But still has Chief Executive is not maintainable. proper place system Executive, Of course the Chief not the checks and balances.3 Court, determines how a will In protected against Baker v. Carr4 Justice invasion. Of Brennan, Court, quoting Luther Congress, course each House of Borden, only Congress Court, concluded that judge is ‘the of the elec- guarantee. However, tions, returns, could enforce the qualifications * * * justiciable the identical issue held non its own members.’ But the guaranty justi judicial clause was abdication of all functions * ** protection equal clause; ciable under the respecting voting rights in- * * * * * underrepresented the contrary citizens therefore deed is 4, could live panoply judicial without of benefit Section full protection of 1849, Borden, (U.S.) 1, 1. Luther v. Franklin, How. 7 and Influence of Abbé de Mably 12 L.Ed. 581. and of Le Mercier de la Rivifire Concerning American Constitutional Ideas sleeping 2. Republic “It is a clause which is Review, like and Judicial in Per- giant constitution, spectives Law, Essays in the never until of for Austin awakened, p. Scott, (1964). recent war but it now comes Wakeman 96 a dis- For giant’s power.” forward with light Charles of clause cussion of Sumner, Cong.Globe, Cong., Carr, Bonfield, 40th 1st Baker v. see Baker v. (1867). Carr, Light 614 Sess. on the Constitutional Republican Guarantee of Government history potential Nahstoll, 3. On the of the clause The Role of the Federal Courts Bonfield, Leg- Reapportionment see The Guarantee Clause of in the of State IV, Study islatures, Article A Section 4: in Con Am.Bar Ass’n Jour. 842 Desuetude, stitutional 46 Minn.L.Rev. Franklin, also See Concern ing Carr, 1962, 186, Influence Roman of Law on the Baker 369 U.S. Formulation 691, of the Constitution of the L.Ed.2d States, (1964) United 38 Tul.L.Rev. 621 * * * offended, process I would hold rights. The Court’s voting by 26 to the Louisi- legality Amendment of which examine refusal adopted does ana Constitution was had been regime law which martial IV, of4 the Unit- offend Article Section is indefensi- upon Island Rhode laid 2, ed Constitution. at 369 U.S. n. ble.” at n. 7 L.Ed.2d at development judicial line of The guarantee, republican bent noted the Court In Sims Borden, since Luther v. broken “some had stated in Baker beyond repair. day, in certain cir Some Guaranty questions raised may judicial cumstances, be branch ‘politi justiciable, where non Clause govern appropriate most branch is a where there in nature and cal’ Guaranty ment enforce the Clause.6 manageable judicially clear absence to read out Federal courts should be loath added.) (Emphasis 377 at standards”. judicially nonen of the as Constitution at 12 L.Ed. 84 S.Ct. Founding provision forceable a therefore, question, of the The nature Fathers considered essential to formu clause, of the mere invocation and not the lation of a federalism. James workable jus a contention whether determines best the case for Article Madison stated judicially enforce the clause ticiable and IV, regarded it 4. He Section able. inter basis for the doctrine position : this case is question in The whether asked, may need possibly what be “It unrepublican man adopted in an precaution, could such there be of bal specifically, ner; whether more may not become a whether people misleading that lot was so in the pretext alterations fundamental deprived of one were governments, concurrence without govern republican in a inherent ques These themselves. of the States ment, amend on an to vote ready If the answers. tions admit same constitution. to their ment general govern interposition of the manageable” “judicially standards needed, pro should not be determining whether will be a an event for such vision deprived process would of due were only superfluity in the Con harmless determining applicable in to be seem say ex what But who stitution. pro deprived of the whether by may produced periments republican government. I of a States, tection by particular caprice of here, therefore, jus regard the issue leaders, enterprising ambition Guaranty On Clause. under the intrigues ticiable by the influence however, (Emphasis merits, add foreign powers?”7 for the same ed.) process clause was the due

reasons Carr, pends Baker v. Sims, 1964, all election laws?” U.S. at 725 U.S. at n. 12 L.Ed.2d 506. Justice n. 7 L.Ed.2d at 703 n. nonjus- concurring. Douglas “Today hold would Court enjoin ‘political’ suit ticiable or p. (Wright Federalist, Castro, who, No. takes like Fidel Governor Ed., 1961). everything sus- into his own hands and

Case Details

Case Name: Kohler v. Tugwell

Court Name: District Court, E.D. Louisiana

Date Published: Feb 24, 1969

Citation: 292 F. Supp. 978

Docket Number: Civ. A. 68-253

Court Abbreviation: E.D. La.