*1 Gen., Atty. PORTERIE, et STATE ex rel. al. Mayor, WALMSLEY, et al. 33419, 33447, 33251.
Nos.
11,May 1935. July 10, 1935.
Rehearing Denied
See, also,
181 La.
E. M. Francis P. Henry Curtis, City Burns and Asst. B. Attys., Cahn, Bertrand all I. of New Orleans, T. Sem- appellees-appellants for Walmsley mes et al. city Orleans, mayor of stituted follows: The Iienriques, New C. of. James Orleans, pub- New City commissioner of Liquidation appellant Board of
for city, chairman lic utilities of Debt. Orleans, board of health of the of New Moise, Huey Long, Harold A. P. liquidation two members of board of Orleans, Wilkinson, all of New James debt, by mayor appointed to be Sandoz, Rouge, Peyton of Baton for R. board,' on the recommendation of that three Dist., Board appellees Levee members of the board of commissioners Orleans, and Board Com’rs Port Orleans, ap- the Port of New to be and Shell of Control of New Basin Canal pointed by mayor on the recommenda- Road. board, tion of that one member of the state health, appointed by board of be HIGGINS, Justice. mayor on the recommendation of state of Loui- This an action board, three members com- of the board of siana, Attorney on the relation of the Gen- district, missioners of the Orleans levee eral, right, appeared who in his own also appointed by mayor, on the recom- taxpayers property behalf mendation of that and one member New Orleans and the holders of the board of control of the New Basin improvement for public issued bonds road, appointed Canal and Shell to be systems sewerage, drainage, and water mayor on recommendation of that declared to have parties hoard. All of these and boards are 2d No. Ex- unconstitutional Act made defendants. ap- tra Session 5, 1934, The suit was filed on December This proved 1934. statute November alleged that the statute would be- membership reconstitutes the recreates and noon, come 12 o’clock effective December and water board amend- unless and that above-mentioned re-enacting section 8 of No. ing and parties and boards were restrained in- as amend- of the Extra Session junction, they proceed carry would out provides by Act Ill of ed alleged unconstitutional law the ir- construction, control, maintenance, state, reparable injury city, system operation of a taxpayers, bondholders. *4 system sewerage supplemental petitions and original The spe- of a Orleans, the control under New allege statute is unconstitutional “sewerage and water cially constituted following reasons: board.” (1) change proposed members That provides act that the to be be made this statute not shall con- could and water board made sewerage States, without the New Orleans prop- consent of the deprive will them of their taxpayers erty and bondholders. process law, without due viola- tion of section 2 Con- of article 1 of the (2) That to im- statute undertook Louisiana, stitution of and the Fifth pair upon and to violate the conditions Fourteenth Amendments of the Constitu- taxpayers which the had of New Orleans tion of the United States. special tax, voted the and that the statute impair therefore undertook to the vested (6) In that the selected members to be rights rights and the of the-hold- contract by the board of Port commissioners of the ers of the bonds which issued under were Orleans, health, the state board of the contract. board control for Basin the New Canal and Shell road need not be residents That,
(3) under constitutional Orleans, all in violation pursuant amendment made to Acts Nos. and contravention of section 22 of article 1899, Sess., 4 and 6 of and under ar- Ex. 14 of the Constitution of .Louisiana 1913, ticle 313 of the Constitution 1921. 23 of article 14 Constitution section change could (7) In that said new and wa- membership composition of the sew- ter attempted board to be will not created
erage and water board. necessarily include a each member from municipal seven districts of the Novem- approved (4) That Act No. Orleans, provided section attempted in so far as it ber of Act No. of the Extra Session of membership of the change add all in violation of plain- the vested rights of or the mode of tiff, guaranteed by section arti- 15 of thereof, as es- of the members selection cle 4 of the Constitution of 8 Act No. 6 section of tablished state of Louisiana. Sess., attempt to violate and was an Ex. impair terms and conditions of the (8) In that one or more members of taxpayers’ petition, impair and to
property each the boards of commissioners rights rights contract the vested Port of of the board of control under of the bonds issued holders of the New road, Basin Canal and Shell contract. and of the state board of health' nec- impairs
(5) essarily by That said Act No. 36 the ob- respective laws of the cre- ligations prop- of said contracts with the ation of said boards not citizens and elec- erty taxpayers bondholders, parish in viola- tors of the (and tion section 15 of article 4 of the Con- case of the state board of health no mem- Louisiana, section stitution required ber is to be a. citizen and elector 1 of the article the United of said parish); and that said Act No. *5 150 title to said held be in- bodies of Act No. 36 be special in purporting to establish objects, of dicative of the the said members aforesaid consisting electors all the boards, Act No. 36 violates said section 17 of ar- respective including those said ticle 11 parish, of said' Constitution in that citizens and electors of Orleans object. same embraces more than one electing com- purpose naming and water sewerage missioners attempt (10) In that it an to revive board, and duties of which the functions Legislature section 8 of No. Ill of the Orleans, parish vio- are confined Louisiana, approved July which article only section lates not said has been declared unconstitutional of the Constitution of Louisiana of Supreme Court of the state of Louisiana spirit sec- the letter and but violates also in the case of State ex rel. Saunders v. Constitution, said tion 1 of article 8 of Kohnke, reported page in 109 La. at qualifica- provides electoral which expressing- 33 So. without in its ti- tions. objects subjects tle the or of section 8 of Act No. 6 of the Extra Session of the of commissioners
(9)In that the board Louisiana, approved August of con- the Port of the board 18, 1899, amended, to be all in violation and Shell trol of the New Basin Canal and contravention of section 16 of article Health, road, and the board of state 3 of the Constitution of the state of Loui- the Or- board of levee commissioners siana; and in that section 8 of Act No. au- no or leans levee district have 1902, having Ill of been so declared un- their thority respective laws of under the constitutional, susceptible was not name, select, otherwise creation amendment. appoint of said choose and commissioners board; right, such
sewerage and water
attempt
(11) In that it is an
to remove
totally foreign
duty,
or function
sewerage
certain members of the
and water
duties,
rights,
respective prescribed
board without
cause and
a manner dif-
boards;
that the title to
said
provided by
functions of
ferent from that
section 9 of
purport to em-
Sess.,
36 does not
said Act No.
Act No. 6 of
Ex.
said mem-
rights,
enlargement of the
du-
brace the
bers of said
and water board be-
boards,
ties,
only
of said
ing
and functions
prescrib-
removable
the manner
them,
Act No. 36 be
and if said
ed
and for the causes
one of
enumerated in ar-
confer such en-
purporting
prior
ticles 217 and
construed
Constitutions
Louisiana,
same is unconstitution-
power, of the state of
larged
articles
subject-mat-
al, null,
in that the
are now embodied
sections 1 and
and void
title,
1921;
embraced in
of the Constitution of
is not
article 9
ter thereof
of said Act
that said section 9
No. 6
17 of article
was
section
is violative
further,
adopted
Constitution; and,
even if the
Constitution of
said
subsequent By
court,
has
in all
been embodied
divided
judgment
Constitutions,
part of the Consti-
and is a
district court was affirmed and
case
tution of 1921.
remanded for trial on the merits. The con-
questions
stitutional
being necessarily in-
The four
first mentioned defendants
volved in
preliminary
connection with the
were
members of the
injunction,
expressions
there were
en
question
before the act in
*6
majority opinion
appeared
that the statute
They
attacking the
acted.
filed answers
constitutional,
to be
whereas
the dis-
constitutionality of the statute on substan
senting
concurring
an
opinions
initial
e
tially
plaintiff
the same
that th
grounds^
contrary
expressed.
view was
ex
State
rel.
did. The
answered
other four defendants
Porterie,
General,
Attorney
Walmsley,
and denied
unconsti
that the statute was
Mayor,
al.,
et
181 La.
The moved to reasons. ground appeals on the four defendants’ having dismissed judge, that the district having held the act judge The trial suit, obtained
plaintiffs’ these defendants constitutional, contrary defendants’ they prayed for and judgment merits, they right on the had a interest in their appeal judgment cannot from a appeal. favor; dis- plaintiffs also asked The dismissal of the suit the district position appeal, missal of the because judge ground that the was based on the pleadings is in their of these defendants theory statute was and not on the valid they contradictory in that inconsistent and plaintiffs in- were without a and also for the dismissal of the suit ask proceedings. terest to institute the statute un- hold the pray that the court appeal is over- The motion to dismiss permanent in- issue a constitutional and ruled. restraining the enforcement junction defendants, mayor plain- stated in the motion that act. It is Orleans, the commissioner po- attempted to have this inconsistent tiffs city, utilities of the the chairman corrected in the of these defendants sition of the board of health of the to answer requiring lower court them liquidation the board of peti- categorically allegations *7 debt, plaintiffs’ tion, have answered in accordance with Act No. 27 appeal and the case be remand moved that trial overruled this but that the court court, ed to the that the district order aver- motion to strike out inconsistent might decree corrected as to render answers, be so to ments of those defendants’ judgment They a definitive on the merits. plaintiffs ruling the' reserved a bill complain they process get did not due exception. law, procedure because of the follow that, It is also stated if the defendants by judge, contrary ed the district to the right wish to avail themselves of the to statute law of this state. statute, constitutionality attack they in a reconven- should have done so judge The record shows that the district demand, particularly they tional since had judgment holding rendered that the stat- questioned plaintiffs’ right bring the to ute was constitutional and dismissed the suit.- suit, plaintiffs’ judge but the trial states position his attention was called to' it is true the defendants’ when the fact
While involved, sufficiently appears that the minute clerk had not written the it, defendants, proprio he rendered he ex judgment as plaintiffs and on the merits of elapse it before the case, motu corrected joined urged the un- three have sign The case to days to motion to remand the allowed law within which lower court is denied. judgment; that the correction merely to judgment minutes and the validity major The attack on the .the errors; rectify patent these clerical act is threefold: unnecessary grant new tri- that it was to First, conditions the terms and purpose. al for that part of taxpayers’ petition became opinion district are of the that the Leg- We and-the Constitution of the state judge right had under article 546 repeal authority the. islature was without the Code of Practice and the rules of the changing by varying or amend the same did, par- court to do what he civil district conditions; those reservation and that the ticularly since these defendants were legislative .of 35 of power under section way prejudiced. no Extra of 1899 Session give did not alleged be cor The error can also modify those terms conditions. rected this court under these four de Second, con- that the statute was enacted appeal. appeal fendants’ and answer to the trary provisions of the so-called purpose could served re No useful “home rule clauses” of Constitution. manding the case to the lower court for Third, act, that the even if it be con- pro forma purpose making a cor police power sidered as an exercise of the rection, below learned brother when our through Legislature, im- the state" upon all issues involv already passed has pairs obligation of the contract be- only again The result of ed on the merits. one tween of New Orleans on lower court remanding case to the taxpayers hand and the and the unnecessary incurring of de would be the improvement holders of the bonds on the already record bris lay in a case where the hand; away other and takes from these pleas dilatory objections tles with parties property vested interests without joined who have with the those defendants process due of law. purpose of the plaintiffs primary suit declared the act unconstitutional. have points interrelated, being These we shall together. discuss them complaint that this matter was tried deprive summarily Principal plea the defendants support reliance so equally process unconstitutionality of law is placed upon due unfound- the case Kohnke, ed, the record shows that the trial of *8 because State v. 109 La. 33 So. 793, within acted the law and where court held judge gave that the restric- .well every parties concerned opportunity taxpayers’ petition all tions contained in the fully completely present and sewerage all for the creation of the issues and water raised. having approved board been ratified and 157 158 amendment, Legislature a constitutional Commission Flower]), Case v. [State mem- not in authority change point, without the reason that since they bership sewerage and personnel were words, rendered the ‘and with board, 1902, the and that Act No. Ill of administration of the affairs of said corporation changes so far as increases or part,’ whole or in have been board, membership of the is unconstitution- added to the say article. ad- To al, being in articles 319 and minister sewerage violation of and the waterworks 1898, commonly of the Constitution of is not to administer its ‘affairs referred to rule clauses.” A whole or part’ square- “home go would be to complete history ly sewerage against wa- plain and proposition.” ter 2-mill board and the tax voted words, In other the cited cases were dif- purpose systems sewerage and water only ferentiated ground on the opinion New Orleans will be found in the sweeping, broad, general delegation Billhartz, 855, and in State 146 La. 84 v. police power of the state to the So. 120. under articles 319 and 320 constitutionality advocating
Those of of the Constitution of 1898. taxpayers’ peti- argue the statute that, It is by parties conceded if the all tion with its conditions or limitations was Kohnke applicable Case is still pres- subsequent nugatory, made because of stat- 1921, provisions ent utes and constitutional amendments and authority, was without un- particularly by provisions of the Con- der the reserved it in section 35 1921; stitution of and that the Constitu- 1899, of Act No. 6 of the Extra Session rewrote the tional Convention which Con- article 313 of the Constitution of stitution in restored to the state of 1921 sections 22 and 23 of article 14 of the police power Louisiana that had been change Constitution of 1921 to the mem- wrongfully delegated to the of New bership statutes and articles various 319 and the go court need no further. 320 of the Constitution 1898. amended and No. Ill of 1902 re-en- Case, page La. In the Kohnke at acted section 8 Act No. 6 of the Extra 793, 806, 871, 33 the court said: So. Assembly approved Session of the General August entitled: “An Act to decisions in the cases in 41 La. make “The levy (Police special the vote Ann. Board So. Case effective taxpayers property Shakespeare]), City tax 49 La. Ann. [State [114] So. 179 (Dock Board Case of New Orleans for water, City drainage purposes; authorizing Orleans]), cap- [Duffy v. said tax (the italization of Drainage Ann. issuance La. *9 ing Or- or com City New establishment of boards fifty-year bonds and with are elect missions members of which leans under certain conditions e restrictions, by appointed by ed provid- th council or privileges certain and mayor and with consent of the As principal council. ing payment for the existing to all other thereof, disposition of boards or commis interest thereof, it, and sions shall proceeds affected said article bonds and the said take effect from and after the first mu powers duties defining the and nicipal election which shall held in there- reference Liquidation with Board city adop establishing of New Orleans after ; by constituting and provided, City tion Constitution: Sewerage and Board Water nothing con pow- herein contained shall be defining its New Orleans Legislature from ers, duties, prevent strued as to with rights obligations pow City creating boards or commissionswhose public, the Coun- reference to the cil, beyond parish Liquidation and ers shall extend in and the Board of Commission,” gave Orleans, present affecting The act boards Drainage etc. or character, of- di right appoint ad- of that or the boards the Governor the public provided, members. rectors of the schools: ditional or new city the Kohnke ticles of the litical follows: is said Mr. Justice corporation which ‘Art. Case, Constitution 319. La. and of 805: electors may [1898] Provosty in “These ar be estab at any po read pages as' thereof shall be from cil as hereinabove Orleans, in, such thereof, at hereafter, powers, least and elected or in two-thirds of provided.’ appointed creating filling vacancies people city the members board with or coun mayor there now, territory board or which “That lished within be, may po- embraced within the' exercise ‘charged hereafter is city, shall with the corporate power limits of said have lice administration officers, choose the New Orleans in whole undeniable, with the exercise is and not charged part,’ who shall be denied. seem, therefore, power and with the ad that the act police It would of the affairs of said cor contravention of these direct articles ministration part. or in porations (Italics ours.) in whole Constitution.” [Italics ours.] words, by In other article 319 of “ This article ap- ‘Art. 320. shall not the state of Constitution Lou- liquidation ply to the board of stripped isiana had been its entire prohibit- debt nor shall it be construed and control over the Louisiana, fare of will avoid of New Or- all fric- board of the we leans, reorganize accomplish per- powerless to tion results will and was Nation, manently State and it, ever benefit both become should its members even your hearty co-operation to that end or of guilty so of acts of misfeasance sincerely requested. discharge malfeasance in the acts submitted, “Respectfully their duties. * * * Parker, M. Governor. “Jno.
Under *10 of New erected within its Orleans had Program. Political “5. sovereignty sovereignty. a a
limits within A Constitutional “h. Convention. condition intolerable This became so “(1) be To held in 1921. following the Governor addressed the com- Delegates “(2) to be elect- Assembly: munication to the General February, ed 1921. 29, 18, Journal, May p. “House 1920: “(3) membership How be “Message from the Governor. based. following “The message from the Gov- possible “(4) Discussion ernor was received and read: program. Louisiana, Depart- “State of Executive “i. program Much reform ment, La., Rouge, May Baton 1920. administration must be left to be out worked “To the Members of the Assembly General Convention, such as assess- State of Louisiana: ments, courts, judiciary, and beg “Gentlemen —I to herewith trans- civil for both service State your mit for information a memorandum municipalities. and important of a number of the needs of “See, also, Journal, May Senate State Louisiana which will be sub- p. 37. you to your mitted for consideration. Journal, p. 548, “Senate Wednes- my judgment “In it much better' day, 1920: June you give to a statement of the various Message. “Governor’s items, up and then to spe- follow it with a section, message covering cial each Louisiana, “State of Depart- Executive you proper read and refer ment, La., can com- Rouge, Baton 1920. June mittees for discussion and such action as “To Honorable Members of the Gen- they see fit. Assembly: eral
“My earnest wish is that thorough compliance “Gentlemen —In my expressions frank and of our views promise people to the a- of Louisiana' to do united determination my to work for the the' wel- all destruction- of Louisiana, and ringism
boss rule and “Louisiana is situated unlike oth- Orleans, I er particularly City State in the has a Union in that vl¡hich respectfully the dominant great city direct the attention of has become an Assembly to overwhelming members of dangerous General element Claiborne, 33, by government House Bill No. Mr. State not dealt intelligently if Furthermore, with. strongly urge city, this bill en- be in this the util- ities por- acted into under place large law. control tion of pub- electorate on my thought uppermost “With the pay lic rolls. people mind that the of Louisiana earnest- “This which should presents a situation ly put ring- desire an end be have most attention careful rule; government of New Or- coming Constitutional Convention people, be leans returned to your order that legislative next session in large State at freed from over- be an may pro- Nezv Orleans be whelming power, I have and concentrated rights yet may tected in all her pains investiga- been at to cause great become menace the balance seeking made tions a cure State. of, complained I turn every evils at find therefore, have, pre- to be “I caused written constitutional inhibitions therein pared introduced in the House insuring with the obvious intent most 338, by Representatives House Bill No. bosses from freedom *11 Claiborne, crea- proposes the which Mr. legislative pow- or legislative interference the investigate to tion of a commission either the people the protect er to of city of New Orleans government I have found it city. or While State auxiliary subsidiary and boards and all its practical leg- suggest some possible to eliminating to what a and officeswith view ' concluded, upon islation, the ad- have I date, re- and out of undesirable lawyers, that ablest to ac- the vice of by ex- taining which has been found people purpose of the full complish the outgrowth as an perience to be useful changes. many constitutional require will peo- customs of of character and our the primary purpose ; of com- “Beyond the with to coordinate the whole ple of in bossisrii New pleting retaining necessary the destruction final the view important autonomy city, power her- there be the in it is city’ change their at people and reformation to administration reorganization will, bring permit play prop- her of New Orleans to it to to her government their date, párt government equal legitimate, modern conditions the to up to er State, to adequately but not become a menace city’s to meet able political people. welfare of its great opportunities. to appointment Mayor, "1 ask that this commission be instruct- Council or ed nor report filling Con- the un- to the Constitutional vacancies for expired pro- vention and term as or hereafter the next session of Gen- now Governor, by law; Assembly eral apply and vided nor shall it to the Debt, City adequately Liquidation, be Board of or given it financed and any Board Civil investigations make the Service Commission- which Examiners; necessary will ers present be if it a con- or nor shall it be con- program police power strued as restricting structive which will be real State, prohibiting Legis- value to Constitutional Convention and or as your body authorising lature appointing honorable at next session. from appointment of, (Italics ours.) any board or commis- “Respectfully, City sion with authority in the full Parker, M. Governor. other than that of control- “Jno. also, ling ordinary “See, governmental Journal, p. House 336.” functions municipal Constitution, (Long’s 1812-1930, government.” pp.
681.) Section 22 of article of the Con
When Constitutional merely Convention stitution of 1921 does not rein Rouge convened in Baton year vest the plenary state with its inherent and police power, under goes administration but Gov. much further Parker, prohibits M. articles 319 and 320 courts of the state from John “construing Constitution rewritten section” as a limitation wer.e upon police power, of 1921 state’s section 22 so far law, organic 14 of the as the article of New so Orleans is concerned. Thus the members1 read follows: “The electors of the Constitution al City Convention restored the po- New Orleans and of state’s sovereign power corporation over may litical of New which be estab- Orleans and the territory now, lished within the board. which may hereafter be embraced within Again in of New Or- corporate city, limits of said shall have attempted to leans reinvest itself ple- to choose their officers” nary power, by passage of. Act (“who shall charged zvith the exer- purports No. 82 to amend police power cise and zvith the and re-enact section 1 of Act No. 159 administration of the affairs of said cor- the charter of the *12 poration in or part”), reading whole in in contained as follows: “The article of Constitution of Orleans City shall also have all being omitted. “This section shall powers, privileges not by functions which prohibit any pursuant the election officer or Constitution of this be, centralization been, granted guage, culminated could or have
State the almost have the by any city, and shall of New Orleans to, exercised or power exclusive exercise of the ordinances, to exer- pass power to of the state. in connection with police power cise full municipal government any function State, history public City, limits of said the territorial within judicial can take of which Court authority, right, including the ar cognizance, that section shows matters, subject on all pass ordinances present Constitution was ticle Leg- subject matters which including this state organic into the law of written right itself the has reserved to islature year purpose di has regulated, or regulate, but has not vesting Leg- fully on which regulated, not or authority grant sweeping which had been right itself the has reserved to islature the first time article 319 ed to it for or has legislated, legislate, but has not re of the Constitution of and to do special passed general or laws the state with the to exercise invest matter, and subject cover the entire not (cid:127) unimpaired unabridged retain its any subject matters with- on and all other governmental police power in the affairs exception, regardless of whether out of New Orleans. special Legislature has enacted not dispute the do not correctness- We subject upon same general laws of this court in the Kohnke the decision matter, subject only to the limitation that Case, of 1898 because Constitution shall provisions of said ordinances ruling in that case. -justified this court’s provisions directly conflict with-the Shakespeare Nicholls upon In State ex rel. subject laws the same state 592, 597, 41 La. Ann. (1889) matter.” corporation “The said: it is Leg- amended This statute was was created the state New Orleans by Act No. 7 of the First Extra islature purposes, having political subordinate for Session of 1934. legislation. Those powers local state, of this the Constitutions All of matters, which concern to the state are of except the Constitution of. down within although exercised de large, at adoption of Constitution of limits, a§ the administration —such fined contained, “home a so-called have preservation pub justice, provision. rule” health, regulation and the lic control, morals, legislative still under adoption not until the it was But —are municipal by the enforcement while of 1898 these “home purely legisla-. local are- matters varying form and laws lan- provisions, rule” *13 al grant al public capacity appointive power to the tion and control. In its cit- of city.” the cor- izen of part machinery, as a state this the of owes poration the New Orleans of provided is also in section 18 of responsibility government to the state article the Constitution of 1921 pub- performance acts for police power "the exercise benefit, lic the regulation and in the State shall be abridged(Ital- never these responsibility manner in which —the ours.) ics done, by whom—the acts shall be and As said in State (1922) New Orleans v. supreme.” (Ital- authority the state is 24, 39, top page page 151 La. bottom ours.) ics 40, 533, 539: “That So. does mean (1897) In v. Flower 49 La. Ann. State police of the state shall page at delegated not be to an administrative body decision: “The is said commission, or municipality board or to a pro police power given to the state to corporation. political or other It means health, appre public tect cannot we Legislature irrevocably shall not ciate, by. abridged is to be a constitu state, police power surrender the provision dealing with the ordi tional delegation any part and that police administra nary functions police power to an administrative board city, confiding tion of the and such du commission, municipality or to a agents by ties selected cit political corporation, other be always shall (Italics ours.) izens.” subject to revocation Case, 1199, (Italics ours.) In the Flower 49 La. Ann. 623, page
at 22 So. stat- it is Municipalities are established for ed: alone, public purposes specific grant legisla- all “It is not at novel our rights by the Legislature of charter are per- appoint tion state officers empowered to administer a formance of functions in this [New sovereign power of state over such relating subjects of more than Orleans] territory municipality may embrace. attaching ordinary the interest They Legisla are mere creatures * * * functions officials. entirely subject to the leg ture and are- past legislation lesson of. our “The which islative will. Laws establish and legislative power corporations regulate municipal over some sub- are not designate contracts; they ordinary jects, the of- are of leg acts islation, instrumentalities the powers authority ficials and which such be executed confer legislation city, they nothing is to in this more than state, sovereign power, wholly unimpaired by the constitution- mandates subject ing public the do- may repealed or altered to a within and those laws he power of except general legislative so main of the the Legislature, at the will State, public rights rights involving repeal may affect far com- them. the entire persons acquired under welfare third munity Shreveport, Ann. affected it.” Jury v. La. Police Baldwin, 661, 665; Reynolds 1 La. Clearly, amenda- 162; Hernandez v. Ann. State ex rel. acts, supply, tory dealing with *14 61; Flanders, 57, New Or- 24 La. Ann. city disposal, drainage the and Orleans, leans, New M. & C. R. Co. v. Orleans, con- highly the most New Cain, 487; 21 v. 26 La. Ann. Diamond state, populous centrated section of the La. Ann. 309. importance are matters of vital such welfare, health, general general the and theory the only on the only general good public, not pe in taxpayers their the stipulation of Orleans, the at of New but the state contract between rise a gave tition pub- public relating large, are laws to a taxpayers or to con the a the state subject, public rights, lic involve taxpayers, and city, the the tract between public the the welfare of entire section such, bondholders, and, in became the by affected them. violable, have this contention would any argument, as far as weight, but this repeated wide and There have been concerned, state is any with the contract departures through constitutional amend by absolutely refuted the deci has been ments, petition the the from text of Kohnke, in State v. this court sions of taxpayers New Orleans 793, 838, Real 33 in 109 La. pursuance in City Alliance ty Protective Owners’ brought into existence. water board Orleans, 159, 115 So. 444. La. taxpayers’ petition property con- The templated the retirement of the bond is- hold to these cases the con- Both of 1900; fifty years 1, July from sue such ground that statutes trary on taxes voted to meet but the this issue and public relating to sub- public laws maturities of the issues themselves not es- jects, their enactment does year were continued and extended existence contractual rela- tablish beyond years period or twelve tions, the decision of the cite Unit- taxpayers’ stipulated for petition. Supreme Court Newton v. ed States 548, 557, Company, 100 S. Mahoning U. The restriction the bond issue to the $12,000,000, court wherein the held that sum original stipulat- Ed. L. did similar tenor not create ed for section statute of 2 of Act No. Sess., contract, public relat- Ex. but was “a law was raised subsequently $29,000,000. gality Act No. pursu- sum had in transactions 26; p. Act No. ance thereof. 174; p. Ex. Sess. However, impressed we are not stipulation property taxpay-
The depar- the contention that of these petition tures, otherwise, ers’ taxes should be radical or would strike proceedings predicated diminished reduced to a sum sufficient thereon with obligations to take such nullity, care of should change since in each instance the assessment of of New Or- or through modification was effected produce leans a revenue more than amendment, suffi- duly means of a constitutional pay obligations accruing ratified, cient to un- approved/'and adopted vote only recog- der the bonds was not state, including electors of Sess., nized Act No. 6 of Ex. -city the electors of the entirely contrary but act contained an the bulk of signatories whom were provision. property taxpayers’ petition. Legislature, adhering instead of Neither nor requirement taxpayers’ peti- people bargain themselves can away the drainage tion members of a former power regulate health and commission of the of New Orleans morals, legislative discretion concern among be named should members ing regulation, such and the *15 and water board to be cre- by express inalienable even grant. It act, petition under ated varied elementary and fundamental by stipulating drainage if the com- police power state’s cannot be bartered city of the New Orleans shpuld mission contract; away by clauses abolished, its erstwhile members should be Constitutions, guaranteeing due discontinued as members of the sew- be process of law vested or contract erage and board. impairment, rights against always have yielded departures proper its
These radical from the exercise. Osborn Nicholson, taxpayers’ 660, conditions of 654, terms and v. 13 Wall. 20 L. 689; petition. If a modification as to one Ed. Boston Beer Co. v. Massachu petition setts, 25, 989; have essential detail would U. 24 97 S. L. Ed. Stone annulling 814, Mississippi, 819, effect of transactions 101 U. S. v. 25 thereon, 1079; Alabama, Boyd then these numerous radical based Ed. L. v. 94 U. original stipulations 645, 650, 302; from the departures 24 L. Ed. S. New Or taxpayers’ petition Co., conditions leans v. Water-Works 79, necessarily 142, cumulation of rea- 142 U. 12 35 S. S. Ct. would L. Ed. 943; against militate the le- Atlantic Coast Line R. that would Co. v. Golds- sons 176 175 state, 364, power by “express 58 lice 548, even boro, 34 Ct. 232 S. U. S. ; grant,” this court Springs, 199 it is certain that Manigault Ed. v. L. 721 274; 127, powerless 473, Ed. to do so. 50 L. 26 S. Ct. U. S. Mottley, R. Co. v. Louisville & Nashville reason, private For no con 265, Ed. 467, 55 L.
219 31 S. Ct. U. S. individuals, tract of affected when 297; Mc County Co. v. Hudson Water state, police power of the can ever be 529, 349, Carter, Ct. 28 S. 209 U. S. come perpetuad, to the detriment of the 560; 828, Rail Ann. Cas. 52 L. Ed. 14 state. Yaple, 236 U. S. Co. & River Coal v. the Constitutional Conven 607; When 359, 338, Noble 59 L. Ed. 35 S. Ct. year Rouge tion assembled at Baton 104, Haskell, Bank 219 U. S. State v. 1921, its members were aware 112, 186, 32 L. R. 31 55 L. Ed. S. Ct. abridgement police power 487; 1912A, 1062, Ann. (N. S.) A. Cas. the Con state articles 319 and 320 of 330, States, Perry 294 S.U. v. United They aware also stitution of 1898. were —, Ed. 95 A. L. Ct. S. L. in the Kohnke this court of the decision of 1335; Baltimore & O. R. Norman v. Case, since, state its restoring to the Co., 55 S. Ct. R. 294 U. S. 1352; “unrestricted” -, Nortz v. A. L. R. L. Ed. Orleans, article in section States, of New 55 S. Ct. 294 U. S.
United 1346; the Con —, Ed. 95 A. L. R. 14 of the Constitution 79 L. the iden Ass’n, that section from Treigle Acme Homestead omitted v. vention Con 637; Harris Monroe in article La. 160 So. tical clause Kohnke 1898, upon App.) 154 Building (La. Loan Ass’n stitution & by this court. had decided been So. 503. Case very police power state’s is the time, Convention, the same at But the sovereignty. essence its With- soul and the Con- section 23 of article it, sovereign becomes the sub- out 1921, fully protected the con- stitution the master becomes the servant. ject; holders of the sew- rights of the tract this court its decision could lim- If bonds, by provid- erage board state, police power perpetually special tax that “the ing in that section destroy the state itself. This it could by the improvements, voted the mere creature of court is but City taxpayers property existence, pow- derives its 6, 1899, state. and levied on June *16 ers, jurisdiction from the sover- and its 15;- by City No. Council Ordinance eign. 22, 1899, approved hereby is June Legislature peo- ratified, validity nor the and its shall never be
If “neither the adopted bargain away po- questioned. special The ple can act themselves” Legislature special held at the session section 23 of article 14 of the Constitu- 8, 1899, on August constituting the Sew- tion of 1921 is identical. erage City and Water Board of the As Kohnke, said in State v. 109 La. New authorizing City 838, 842, 33 So. 794: “We do not Orleans to issue bonds and providing find that there has been any contract means to and interest pay principal entered into between the state and the thereof, cognate purposes other for taxpayers New Orleans in connection purposes special tax afore- with this tax or the administration of said, hereby approved, spe- ratified and same. taxpayers These devised a scheme cially including "therein legisla- reserved levy of the tax and the admin same," tive right- amend the etc. tou proceeds istration of the thereof, ap In section 35 of Act No. 6 of plied to Legislature requisite for the Sess., Ex. the right the legislation carry the scheme into ex Assembly General “to amend reserved ecution. The met in extra any respect this act not violative of session, provided the legislation. This spe- the conditions upon which the said was all. No one asked the Legislature tax was property cial voted tax- contract, to bind the "state to or payers City New Orleans and doing dreamed that it was so. No con impairing rights the vested sideration other than such as lies at rights contract the holders the bonds is, legislation bottom of all pub —that
issued provisions." under its lic the state in the mat welfare —moved purpose And what section ter, directly indirectly. either The state 23 of article 14 Constitution of obligation was under no prem 1921, except “ratifying that of and car- ises, and simply it entered into none. rying special into effect the tax levied in legislated.” City of New Orleans for certain The not issued the sew- bonds were improvements, and to establish erage “the faith but full public systems therein and credit” of New Orleans water, the issuance bonds therefor same, pledged payment providing the and means ways pay rights and the contract of the bondhold- principal interest of said bonds?” fully protected by ers have been sec- purpose the declared Such was tion 23 of of the Constitution article proposed amendment to the Constitution of 1921. Special 4 of Act No. Session language alleged of section objectionable portion since the Resolution and that of Act 2d Extra Session of Joint *17 180
179
proposition.”
abstract
Burr,
merely
provisions
Hooker
1934 relates
v.
415, 422,
706, 709,
194 U. S.
24
personnel
alter the
board.
S. Ct.
1046;
48
Columbus,
L. Ed.
Walsh v.
act,
clearly the
opinion, is
in our
etc.,
Co.,
469, 479,
R.
176 U. S.
20 S.
the restored
legitimate exertion of
393,
548;
Ct.
44 L. Ed.
Williams v.
present
power of
the state under
Eggleston,
304, 309,
170 U. S.
18 S. Ct.
Constitution;
not,
any
man-
and does
617,
1047;
42 L. Ed.
Hagar
Reclama
v.
ner,
powers
the au-
impinge upon the
Dist.,
tion
701;
663,
111 U. S.
4 S. Ct.
board
thority
of the
569;
28 L. Ed.
Hogood,
Williams v.
98
Orleans,
delegated
to it
New'
72, 74,
U. S.
As as the board taxpayer pay refusal of the tax, comply dation collects it must tax, prevent or about suit its obligation with by pay of the bonds collection, levy and since the validity ing principal they them in and interest as ' may questioned. tax never be mature, default, may they and until right will have no to come be bondholder rights So the “vested or contract rights” court, any impair fore the and assert which the holders of the bonds issued obligation ment of the of his contract. have, may impaired and which not be Act by amendment of No. 6 of specifically is declared in section 6 right is the vested the 2-mill tax and Sess., of Act No. 6 of Ex. collection, levy proper its and and not a proper levy “said taxes and their composition right vested hereby collection are declared to be the sewerage and water board of the right vested the holders of bonds of all New Orleans. act”; issued under and in section part
7 of Act No. 110 of which is a The bondholder is not concerned at all (sec- membership of Louisiana the sewerage by tion 24 of art. as amended which expend water was to The board forms of the bonds the sale proceeds by remaining provided no law means surplus funds and the enforced; and which the contract can be The payment the interest. after membership pos- change cannot city Or- by tax is collected sibly its enforcement. day affect paid day by to the board leans and (Act debt liquidation of the sewerage and composition The the 2-mill tax extended therefore, not, one of water board is 6 of Ex. 6 of Act No. section purposes purposes “the cognate to liquidation is the board- Sess.), and may special tax” not be payment specifically charged with provided Legislature, amended principal of the bonds the interest by section 23 of article 14 of the Con- 1899,as amend- (section 5 of Act No. of 1921, protecting stitution “vest- 111 of Nos. 85 and ed Acts rights ed of the' rights” or contract bond- 1910). by Act No. holders. has no sewerage and water board The And particularly true as in the is this any portion jurisdiction whatever over Kohnke specifically declared Case the bondhold- of the tax to which “that board is taxpayer has pledge, er has a ’charged with the exercise validity no to contest power and with the administration of the tax. city of New Orleans whole or in partf undeniable, contract em obligation denied”; and not *19 remedy, includes all le Legislature, in passing braces the which Act at gal 1934, law the crea means allowed 2d Extra Session clearly per enforce its acted tion the contract to under Constitution of 1921 re- resulting injury storing or redress the to the state its formance “unrestricted” po- Orleans, nonperformance. power Collins Col lice city v. as to the from its Brashears, 88; Ky. Lapsley altering personnel lins, 79 of the sewerage city water 4 Litt. 47. board that (Ky.) the case at bar. the contract obligation of By the means, its follows, which at time of necessarily,
meant the that even if it- for its enforce- creation, the law affords be conceded that composition of the Jury, 111 S. sewerage Police U. Nelson v. can, ment. and water 'by board 574, 575; 648, possibility; L. Ed. 4 Ct. 28 S. construed as “a vested Ranger right,” rel. v. New ex Or- that such alleged Louisiana “vested right” leans, yield 26 Ed. police U. S. L. must to the 102 power of the enacting state in that 132. act. Billhartz, 146 quiring drainage,
In the State v. or construction of a case of out pointed sewerage, city; La. system it was and water in the that that of the Extra Session when a ob- approval No. 6 vote of was people, been constitu tained having made a the council secure tional of the legislative authority, with reservation amendment and constitutional police state, power unprecedent capitalize to the order to on the then basis of words, ed. New city In other city assessment in the proceeds tax, sewerage Orleans and and water augment- 2-mill which was to be placed special board had been ed on the same basis one-half the cent, preferred position by surplus having already per of an existing city. delegated debt drainage pur- state tax then dedicated for poses, The members Con by issuing fifty-year Constitutional bonds bear- cent, simply ing interest, tention of dis corrected this more than 4 per city crimination New and only in favor to be sold as needed at not state municipality interest; less par no than and accrued enjoyed it, placed if the assessed value of the should Orleans in the oth category same all as increase such figure to make state, er municipalities in the far as surplus already one-half cent, the state having per to exercise debt tax existing enough 10-mill police power pay was concerned. portion larger the whole or on the interest bonds to be so is-
Certain property taxpayers during the sued, years for such there be “a year petitioned mayor coun- corresponding diminution in the amount levy cil of of New Orleans to tax”; special the board of a 2-mill tax and create a liquidation debt have author- water board. This board was to havé ity for the issuance and sale the bonds charge sewerage disposal, drainage, water board city. (cid:127)and supply of thé drain- composed was to be of the members of age commission theretofore was created drainage commission and one tax- by Act No. 114 of 1896. The substance payer each municipal from of the seven petition of- that which was either vio- districts; funds realized lated or subsequent nullified ordi- used for purpose therefrom be of con- nances, statutes, and constitutional amend- structing operating drainage, sew- give ments purporting effect to same erage, systems of New Or- was as follows: leans. taxpayers’ petition The- requested the *20 levy
authorities to a tax 2 mills for The council submitted the matter forty-three years, people to be used ..o for the ac- the vote to determine board. sewerage and water bers of the be voted would special 2-mill tax
if the drainage com if the provides The act that to devoted forty-three' years to be for abolished, mem mission should be water, drainage under sewerage, and discontinued bers thereof should be tax- set forth terms and conditions water members of the also were payers’ petition. people The municipal offi except certain ex officio ballot separate a asked indicate on to members of cers remain who would the seven they not wanted whether or if petition stipulates that board. The municipal district taxpayers from each Orleans assessment of the appointed. elected or that large enough so should become 6, 1899, approved July the voters On per existing 1 revenues derived from the they signified that wanted the matter and cent, pay to debt tax should be sufficient taxpayer appointed members seven issued, the 'the interest on the bonds approval the coun mayor, same, 2-mill tax greater part of the v cil. extent as should be abolished such an adopted an ordinance The then cent, surplus per funds from the constituted 2-mill tax and which levied a ob debt tax of the bond would take care and water board. ligation. only Act No. 6 not failed con- proclamation Gov. Foster issued a stipulation, contain that but made an en August 1899. vening on subject. tirely provision different on the (cid:127) Extra Session No. 6 of Act There also are other variations which ti- beginning The enacted. Legislature did show that not enact make effective “To reads: the act tle of petition taxpayers. verbatim tax special levy of the the vote provided No. 6 for not Act bonds City of payers of tax property (cid:127) $12,000,000. exceed The constitutional water, sewerage and for amendment, 1906, provid- Act No. 19 of Act No. etc. purposes,” drainage drainage, sewerage, ed that if the passed, 1899 was also Session the Extra systems require did all of the of the Extra No. 6 order tax, proceeds of the 2-mill the bal- might be submitted Session expended ance should be city of. constitu- ratified people to be paving purposes. New Orleans It amendment. tional provisions other contains contrary also directly contrary part 6 was Act No. taxpayers’ petition. taxpayers and in petition amendment, Constitutional Act No. 116' scope petition. beyond the 1908, authorized the issuance of an . also, stipulates $8,000,000 petition members of additional bonds should be mem drainage commission commission provided per of 6 cent:
189
190
par
the
and
might he deducted from
value
vision that
the
fa-
paid
accrued interest
was to be
which
cilities
placed
were
be
in certain marked
tax-
stipulated
for
the
in the
out
bonds as
lots and blocks were not observed.
payers’
allowing
petition,
the coun-
thus
All of these
departures
and
variations
cil
them
cents on the dol-
to sell
for 94
place
which
prior
took
to 1913
val-
were
had
realizing that
there
Apparently,
lar.
idated
by
and ratified
article
the
departures from
been
and serious
obvious
Constitution of 1913.
taxpayers’ peti-
the stipulations of
the
If
the
members
tion,
amendment
the
lawmakers
.
the sewerage and water
and
validating
following
the
placed
1908
members
the
liquidation
board of
present
provisions of
the
clause:
“All
the
debt
propose
could
and advocate
with
of the State
conflict
Constitution
legislation
passed
which
was
Leg-
the
and
provisions
the
of said Act of 1908
islature and subsequently by popular vote
Amendment,
to that extent
with this
are
given the status of constitutional amend-
only
purpose,
repealed.”
and
for
ments which changed the terms
con-
and
Later,
amendment,
original
taxpayers’
ditions of
peti-
constitutional
tion,
Sess.,
petition
of taxpayers
then
No. 3 of
Ex.
authorized an
nugatory
made
$9,000,000
taxpayers’
against
bond issue
ac-
additional
cent,
quiescence
voted,
or consent and the
per
in-
taxes
to bear
Constitu-
tional
legally
Convention of
could
terest.
police
invest
state
with the
or reserve
So,
taxpayers’
property
peti-
when
power previously delegated
to the
tion
terms and conditions is taken
with its
the sewerage
and
and
compared
and is
with the law
a basis
water board. To hold otherwise would
time,
present
ap-
at
as it exists
it
jeopardize
validity
respective
many
pears
great
the most
that a
subsequent
bond
original
issues
provisions
petition
important
have
For, if
taxpayers’ petition
one.
is to
and
statutes
constitutional
been deleted
given that sanctity
which is contend-
stipulation
peti-
The
amendments.
counsel,
ed
anything
beyond
for
done
membership
governing
tion
the terms
conditions of
petition,
provisions
re-
ignored;
board was
upon
voted,
basis the 2-mill
which
tax was
price
rate of interest
garding the
unconstitutional, null,
would be
and void.
were
the bonds
to be sold
discussion,
proviso
foregoing
In the
surplus
abrogated;
were
have
we
already
per
of several
existing
disposed
other
ques-
incidental
funds from
cent,
be used to diminish tions raised
fall as
tax should
a result
debt
of our
special
2-mill
tax was
reference to
conclusions with
amount
main
nullified;
points.
and the pro-
constitutional
contradicted
board;
presented
question
next
involved,
state
since
has
to be
interpretation
out
arises
protect
general
section
part of
last
placed upon
pestilences,
contagious
from
epidemics,
14 of the
article
malaria,
typhoid,
diseases
such as
e.,
whether
quoted, i.
hereinabove
yellow fevers, thereby
pub-
promoting the
water, and
sewerage,
operation
lic weal. Medical science has definite-
Or
city of New
systems
drainage
ly
yellow, typhoid,
determined that
func
“ordinary governmental
leans
malaria
by germs
fevers are caused
government?”
municipal
tions
*22
propagated
insects bred and
as a result
sewerage and water
history
the
of
The
improper
drainage,
inadequate and
shows
city of New Orleans
of the
board
faulty sewerage disposal, and contaminat-
purpose of
the
for
created
it
that
was
drinking
ed
In
water.
order
avoid
malaria, typhoid,
repetition of
avoiding a
repetition
spread
further
the
that had
epidemics
yellow fever
diseases,
supply,
those
the water
sewer-
Or-
city
people of
plagued
age disposal,
city
drainage
was
Louisiana,
en-
and the
leans, the state of
placed
sewerage
and water board.
proclamation
Foster’s
Gov.
tire South.
prevalence
The
these maladies had
Assembly of the state
General
general quarantine, paralyzing pub-
caused
contained
Louisiana,
August
dated
private'
lic and
causing gen-
business and
Rep-
House of
in the Journal
public
eral
loss.
en-
resentatives,
requested the
page
on
6 of the
Nos.
Acts
actment of
largest
New Orleans is
city
1899, since the New
Session of
Extra
South, having
population
400,-
a
of about
2-mill tax
voted a
taxpayers had
Orleans
persons,
easily
and is
accessible
board,
and water
sewerage
to create
route,
water
well as
transporta-
land
only
not
legislation was
believing
this
that
Ships
.parts
tion.
from all
of the world
people of the
for the benefit
port.
dock
its
cosmopolitan
It
a
for
benefit of
but
(cid:127)of New
great
and a
number
persons
visit
state,
a sanitation
as it was
whole
So,
annually.
it
it would seem that the
measure. The
regulation
health
operation of
the sewerage and water
acting
its
under
reserve
controlling
board
the drainage, sewerage,
n creating
sewerage
systems
and water
of New
was a matter
because it
and water
ordinary
governmental
Orleans is
an
general welfare and
affected
municipal government.
function of the
It
throughout
people
the state.
health
vitally concerns and affects the health and
people
supply, drainage,
throughout
lives of the
sew-
water
The
state.
operation
is handled The
of this board
erage disposal
per-
is the
del-
In
function
governmental
a
Kohnke
formance of
Case
is stated that
this
This
sovereign state.
court will
judicial
take
egated to it
notice
placed
history
has been
interpretation
activities
connection
it with
upon
sewerage
functions
the duties and
and water board.
is a
matter of
board itself.
record
(cid:127)performs
general
knowledge that
sewerage
and water
citizens sued
In
cases where
several
period
board for a
of over
years
seventeen
board for dam-
has sold water
Gretna,
injuries
said to have
ages
personal
a municipality incorporated
pro-
under the
negligence
care-
resulted from
visions of Act
No. 136 of
and con-
officials, agents,
or em-
lessness of
sisting
first, second,
and third wards
pleaded exemp-
ployees,
board
has
parish
Jefferson, La.,
having
liability
ground
tion from tort
on
according to the United States census
performance
engaged
it was
population
10,265
a
inhabitants.
distinguished
function
governmental
municipal
Manguno v.
from
function.
and water board also
(La.
City
App.) 155 sold
of New Orleans
for more than ten years to
46;
page
Rome
v. London
at
Water Company, which
Jefferson
(La.
Ind.
Am.
App.)
& Lancashire
Co. of
people
served the
the seventh and
This
refused
The pub- right appoint have the the several of section ently provisions construed necessary the administra- lic officers Extra 6 of the 17 of Act No. S.ession city, pursuant police tion of the of said Con- article 23 of 1899 and section shall be which to the mode of election right to giving stitution Assembly,” etc. provided by ad- the General these people in furnish water to activities on parishes. These joining in 1882 The that court held when mem- that even show -board charter enacted the legal advisors its bers of board Orleans, so in further- of New it did purely were felt functions its authority delegated ance of the local. pow- not exhaust Constitution and did pre- had ers state thus conferred. The operation of the
We
conclude
amending
chang-
served the
controlling
sewerage and water board
respects, provid-
ing the
charter
in all
supply
sewerage, and
drainage,
no in-
ed that
ordinary govern-
doing so there was
not an
Orleans
fringement
inhibition.
govern-
constitutional
municipal
mental function
Legisla-
The court concluded that
govern-
a
ment,
performance of
but
lawfully
ture had
the reserved
exercised
board
delegated
function
mental
powers
transgressed
no
state and
by the
city of New
and the
constitutional
limitations.
court said:
of Louisiana.
sovereign state
provisions
“Had the
of Act 63 of 1888
Nicholls,
ex rel.
State
In
case of
incorporated
been
into
No. 20 of
Act
Mayor
Governor,
Shakespeare,
Orleans],
charter of New
are of
we
[the
al.,
Orleans,
La. Ann.
et
City of New
opinion
question
that no
un-
sought
the relator
6 So.
constitutionality of
the act could have
to enforce
execu
mandamus
writ of
* * *
been urged.
1888, entitled, “An
Act No.
tion of
City
a Police Board for the
Creating
“As
principle
of constitutional
law
Orleans,
defining
pow
of New
it is
well
police pow-
now
settled that the
mayor
Respondents,
and com
ers.”
ers of the
protection
state for the
refused
mission council
health,
public
public safety,
act, contending
give effect
(is)
morals are
inalienable.
unconstitutional, contravening ar
it was
“Act 63 of 1888 comes
the po-
under
the Constitution of
ticle
powers
state;
lice
and the
reads,
part, as
follows:
board therein created
empowered
*24
provided
citizens of the
of
regulate,
“The
New Or-
for
in
act,
said
corporation
any political
public safety, public
or
health,
leans
which the
pub-
197
198
police
lie
matters
already
morals. All
these
We have
in this
demonstrated
opinion
are embraced
in
act.”
that identical clause was omit-
ted from
22
section
article 14 of the
The contention
is
of counsel
1921,
Constitution of
state
.that
changing
personnel
of the board
was
po-
reinvested with its “unrestricted”
police
is
an
reserve
not
exercise of
lice
by that section.
power,
legislation
it is
con-
because
not
health,
public
cerning
safety, public
It
is also stated in the Kohnke Case:
public
fallacy
argu-
morals. The
in
“The
in
41
decisions
the cases in
La.
appointment
ment
isolates
156,
Ann.
592 (Police
So.
Board Case
from
board
members
v. Shakespeare]), and
La.
[State
Ann.
powers, duties, responsibilities, and func- 115,
(Dock
La. Gen- eral, bar, 111 of 1902 was unconstitutional the case at attacked as un- changes as it increases or the meth constitutional Act so far No. 114 of an membership act drainage od selection to effect the city Orleans; providing board as created New for a drain- nine; age mayor, reason “that Act No. 6 board the chair- ‘charged designated board is man of committees of the coun- cil, police power presidents exercise twith the the board of liqui- the administration of dation debt and and with the Orleans part/ in whole or and two is levee others to be select- not denied.” the designated ed undeniable members.
IDO the to is city government the uncon- of grounds alleged of- One of the confided citizens, ref- the by selected by the infringement stitutionality the was ficials to show city charter is the erence made to article right guaranteed the act of these functions. drainage is one of the to (1879) the manifest- framers of the constitution The appointing of Orleans citizens right of local appreciation ed their admin- police the conduct to the officers the cit- should vest in government which city. the istration is question But city. izens case instant the- charged is also on the right*thus conferred whether Ses- Extra 2d that Act No. qualifications not. admit of citizens does to cre- “undertakes year 1934 sion for applied governmental be to sought to when board.” sewerage and ate newa the limits exerted within functions cited, Case, it is above the Flower In importance highest city, but of the drain- association intimate “The said: concern. Instances more than local obvious. health public age with the in ref- readily legislation will occur our, drainage legislation In earliest subjects deep erence to interest measure of deemed city was of this providing state instru- city, state and city. state and importance to vast carry into effect in this mentalities view If that p. 168. Acts sup- legislation. has never been such If force derived added then, there is posed parted the state has with all city is the this experience that from our subjects by legislative control of such 'which, by local aided through gateway giving provision in the constitution is bad conditions, least of which ap- to the citizens of New may, foreign origin drainage, diseases required pointment for officers have, affirm, be- and, scientists medical police city. administration The here, propagated epidemic come police power given to pro- the state to * * * the state. throughout health, public appre- tect the cannot we ciate, abridged by is to be a constitution- of New Or right of citizens “The dealing provision al with the ordinary officers ad appoint leans police administration of government of this ministration functions city, confiding such duties been, of lan some variance city has " * * * agents selected the citizens. every constitution of secured guage, * * * past “The lesson our legislation of 1868. We state save this provision legislative power over this so that some construe sub- are asked jects, designate and the power to the state of deprive as to of- argument The is that instrumentalities drainage. which such this enact ficials every is to legislation function of be executed in city, the constitution under never constitution- unimpaired by the of the State shall is wholly power.” (Italics abridged.” appointive grant al
ours.) mayor provides present act that the city, Shakespeare, commissioner
In State ex rel. Nicholls utilities, it is said: and the chairman the board 41 La. Ann. 6 So. of health of New Or- corporation “The political shall be members. as to by the state ex officio But
leans was created mayor and local and the chairman of the water purposes, having subordinate matters, drainage legislation. (who Those committee is now the powers of *26 they public utilities), state at commissioner of are to the which are concern of although 8, defined large, by exercised within members under section amended limits, jus- of (see as the administration No. 111 ex of State rel. —such health, tice, public the preservation Sewerage the Commis & Water Board v. of morals, 938, public Council, regulation 392), and the of sion La. —are control, the legislative still while of of under and the chairman the board health by-laws 1902. municipal are was a member under the act of of enforcement legislation purely local and for matters The contention that in .recreat capacity part as a its public control. In ing board un corporation machinery, the the state of of 2d der Act No. 36 Extra Ses owes re- New Orleans city of of appointed sion of all members there state in sponsibility government on be electors must and residents of the public performance acts of for sound, city is not of New Orleans as it re- benefit, regulation in of this merely argument city is that manner in which these sponsibility—the public capacity in New its done, whom—the by acts shall be machinery, of the state’s owes no supreme” (Ital- is the state authority of government responsibility to state in ics ours.) public for performance acts benefit, authority and that
Hence, reconstruc- the wholesome under supreme regulation fiot state is provi- “home rule” alleged tion of the responsibility, the manner in which of this 22 of article in section sion as contained by done whom. these acts be the state 14 of the Constitution legislative pow that assertion in unhampered and unrestricted left was preservation subject er over its provision that application of Or health in section organic contained law large is state at a mat and the leans of the Constitution article exclusively the control of within that the ter the “exercise stipulates that city, political cor- a local and subordinate contention is that an act that has poration, any sewerage and wa- been declared unconstitutional cannot be amended, revived, be ter the state must board created and re-enacted. state’s in the exercise dominated However, in the case State v. Wal- pub- police general power in matters of ters, 135 La. 66 So. the latest lic the residents and electors welfare held, case on subject, it was on re- of New Orleans. hearing, provisions under the ar- arguments Such and contentions ticle 32 of the state, juris- clearly contrary the established “the Legislature may repealed amend a prudence of this state. by the statute same act in which the re- pealed re-enacted, pro- law is revived and presumed to act ar-
The state is not object vided the amending pow- its bitrarily exercise re-enacting expressed be statute in its ti- er; attempts but, repeated because of tle.” to limit the of New Orleans police power the state exercise It must be remembered that Mr. Jus fully jus- city, the state within Provosty’s tice decision in the Kohnke sewerage, drainage, creating a tified in Case, 109 La. only 33 So. may not activities and water board whose to the extent so far as Act No. appointment of res- hampered 111 of 1902 made certain officers ex officio electors of the idents and members the sewerage and water board Orleans. provide did not their election *27 by the council- or appointment by their 2d Extra Ses No. 36
Act
mayor,
the same was
ar
violative of
1934,
revives,
re-enacts,
and
sion of
1898,
ticle 319
of
Constitution of
and
1899,
of Act No. 6
section 8
amends
consequence
as a
only
and to that extent
Sess.,
by Act
Ill
Ex.
as amended
No.
is now
and
null
void.
1902,
repeals
original
section
and
repeals section 8
and also
as amend
8
1899,
Section 8 of Act No. 6 of
as
by
No. Ill
1902.
ed
Act
by
1902,
amended
Act No. Ill of
provided in section 17
It
of article
being
by
cited as
in force and effect
Constitution,
present
State,
also
etc.,
and
3
this court
v. Commission
1913, Council,
938,
32
392, 394,
article
Constitution of
151 La.
92 So.
shall be
that,
that “no law
revived
amend-
appears
where the court held: “It
title,
but
in such
members of
five
the commission
by reference
ed
revived,
council,
or section as amend-
four are exofficio members of the
the act
(cid:127)cases
board,
published
sewerage and
ed,
namely,
and
at
water
be reenacted
shall
mayor,
the chairman
the finance com-
length.”
mittee,
committee on
Act
original
chairman of
vided in the
section
assessment,
1899,
and chairman
No. 6 of
budget and
Ex. Sess.
water,
and
drainage,
the committee on
Therefore,
having
de-
not
courts
too,
mayor,
that the
sewerage.
appears,
It
Legislature
clared the act of
uncon-
municipal coun-
the consent of
stitutional,
did
in-
Legislature
not
cil,
members of
appoints all other
it,
revived,
tend to so consider
amend-
See section 8
sewerage and
board.
water
ed, and re-enacted section 8 as it was
171,
1902, p,
construed
111 of
of Act
by
amended
Act No. Ill of 1902.
Kohnke, 109
ex
in State
rel. Saunders
Act No. 36
Extra
Session
838,
La.
.as that speaking, general properly purpose.” is its up- case, pass it would not scope of 378, p. 800. C. §J. passed upon un- has not been it. on drainage germane com- day. “All matters which are to and this So til general merged subject with the sewer- with the of a connected remains mission may Ill its provisions Act No. be included in under statute board age old rendering members of the it violative of con- without and certain provision prohibiting hold virtue a stat- board stitutional more than embracing one sub- ute from merger abolishment statute, commission, no matter ject, how com- virtue (cid:127)drainage be, prehensive may or how numerous certain committees membership of their *28 complies council, pro- provisions, the consti- commission (cid:127)of 207 208 requirements pur- tutional single ground if a main that we have hereinabove dem- pose is nothing held in is em- view and onstrated and concluded that the statute braced except question impair act what is nat- not does the vested urally property connected with and incidental rights obligations and the 379, purpose.” 800, 59 C. bondholders’ pp. contracts. §J. 801. This is a summary proceeding and act was original title If -of an emergency affecting pro matter vast wa- sufficient t6 create posed public improvements, which will af the amend- then title ter ,ford employment great to a number of cit act, quotes the title of ing izens, according plans to the of the Pub act, to recreate the sufficient original lic Works Administration. Such cases board. are entitled to special preference under the long-established rules of this court named de four first
Counsel
and the. statutes of this state. We have
following
cases:
refer us
fendants
give
endeavored
prompt
the case the
Liquidation, 110
v. Board
Saunders
required.
attention it
457;
313,
Sew
State ex rel.
La.
34
Michel, 127
Board v.
& Water
erage
style, form,
substance
926;
Billhartz,
685,
State v.
La.
53 So.
decree of the
having
lower court
been
120;
855,
New
84 So.
146 La.
questioned, for
purpose
clarity,
we
Board,
Taxpayers’
Sewerage
Ass’n v.
shall amend it to read as follows:
843;
839,
Realty
61 So.
Owners’
La.
For the
assigned,
ordered,
reasons
it is
City of
Or
Alliance v.
Protective
adjudged, and decreed that Act No. 36
159,
leans,
La.
constitutional, dissolving the changing of member- Second. The dismissing inary injunction, and writ ship composition the sewerage plaintiffs’ suit. board, mem- so that some is affirmed. judgment amended majority of fact a the members bers —in Governor, appointees of —shall be O’NIELL, J., from the rul- C. dissents home the so-called rule clauses violates constitutional, and Act No. 36 is ing that in section 22 of article of the Con- down his reasons. hand will stitution, which, plain terms, declares ROGERS, J., overruling the electors of concurs remand, have the and to shall to choose motions to dismiss municipal officers, dissents, local being opin- and that otherwise but shall not 2d authorize the No. 36 of the Extra Ses- ion that appointment otherwise of local board is unconstitutional. sion authority “of con- 222 of or commission the State Constitution.” Articles with the ordinary func- trolling governmental 217 and and the municipal government.” corresponding articles of the Con- tions 1913, prescribed stitution of the causes for 36 of the Third. as Act No. So far removal of a officer from his of- attempts 2d Extra Session of fice, prescribed proce- the mode of place on the provisions, dure. The same substantial- officio, eight to be selected as members ex ly, are retained in sections 1 and re- boards, of whom members of‘ other some spectively, of article 9 of the Constitu- required by be residents are not law to *30 tion of the be- causes for removal Orleans, city of or of the New electors ing high declared to be crimes and (1) required fact and some of are in whom office, (2) incompetency, misdemeanors in electors be residents and else- law to favoritism, (3) corruption, (4) extor- (5) state, No. 36 vio- where in the the Act office, oppression gross tion or in (6) mis- qualifications prescribed lates the electoral conduct, (7) habitual drunkenness. in 1 section of article 8 the Constitu- provisions Inasmuch as these of the Con- tion, and violates section 13 the same stitution have been sufficient would au- (1921); article of the Constitution which thority any for removal of member or person eligible be declares that no shall office, state, district, board sewerage members and water parochial, of the mu- misfeasance, office, for or without nicipal, or ward who is not a malfeasance du- state, No. ly qualified district, any of the fact in Act 6 elector of the mention ward, parish, municipality, is obvi- wherein Extra Session purpose of section per- only office ous that 9 functions are to be emphasize there formed. of the statute was to (especially change should no made attempt, The Act Fourth. No. 36 amendment) without constitutional a of the 2d Extra Session of to re- composition membership or taxpayers the seven resident move from board, sewerage as fixed and water membership of the sewerage and water statute, embedded in the Con- and as board, is violative of section 9' of Act stitution, as one of the conditions on 6 of the Extra Session which which the tax was levied and the bonds Constitution, a has become were issued. declares, and which as one of the con- on which the tax ditions was voted Fifth. Act No. 36 of 2d Extra Ses- abolishing the bonds were issued: “That sion of the mem- this condi- , bers of said board shall be tion on the tax was removed from voted and only in office the manner and bonds for the the were issued' —that there should always causes enumerated in Articles taxpayers 217 and be seven resident bar, quo the sew- ber New as members of Orleans obtained a writ impairs newly-added the ob- erage warranto against and water six board — board, the contract between the ligation members of the and water taxpayers, and challenging take office as their city of New is re- contract between members of the The board. case bondholders, ported there- Orleans and ex Kohnke State rel. Saunders v. al., of article 1 fore violative section 10 et La. 793. States, only United basis—and the basis —of Mr. Saun- of article as well as of section ders’ suit was that act of 1902 was of the Constitution of Louisiana 1921. unconstitutional, for the several reasons here, Attorney which the General on attempted Legislature
What has behalf of the state and on behalf the 2d Extra do Act No. Ses- taxpayers city, and bondholders of this at- sion of 1934 is what contends now that Act No. 36 of 1902; tempted Act No. Ill of to do 2d Extra Session of 1934 unconstitu- say, to is to amend section tional. very This court rendered thor- No. 6 of the Extra Session of ough and opinion in well-considered majority of the members of so rel. Kohnke case State ex Saunders v. sewerage and water board would be al., holding et of 1902 was Governor, the act appointees instead of unconstitutional, so far as it undertook majority of members of the .a board change membership composi- being taxpayers resident appointed tion of mayor. *31 First, following for the reasons: that the did By the of 1902 act change the of one of the was violative away with the do seven attempt to taxpayers’ pe- conditions named in the taxpayers as members property resident city tax, levy the attempted tition to the council merely to of the but petition the conditions named board, which add, members of the officio as ex —with of No. 6 it—became a Act of of the board commis- three members which, district, the Extra Session Orleans levee the of the sioners health, the virtue of constitutional amend- the a mem- board (cid:127)chairman adopted pursuánt ment Act No. of commissioners of the board ber Orleans, year, part of the that became a Con- and the of New com- Port the itself; second, stitution the act statistics. of labor and Soon missioner violative the so-called passed, home of 1902 was the act after Constitution, effect, being go prop- into rule clauses a ar- it could before Orleans, the 319 and ticles taxpayer in New late Constitution erty 1898, reserving Saunders, distinguished mem- of inhabitants a D. .Eugene necessary is not to the deci- to of which city of New Orleans officers; sion of this municipal suit.” choose their local or (cid:127) third, that, and, one of the inasmuch therefore, submit, that, respectfully I members of newly-added and ex officio so far 2d 36 of the Extra sewerage board was not Session of 1934 to allow the undertakes of, required be an elector placing upon water Orleans, of 1902 was vio- New the act board of the Orleans of of the lative of articles city, appointed by nonresidents of the the- qualifications for prescribing electoral Governor, the is statute violative officials, article 210 public particularly prescribing articles of the Constitution 1898, declaring that of the Constitution of officials, qualifications electoral for eligible municipal to a no one should be particularly provisions of sec- qualified 'he elector office unless was a tion 13 of article 8 of the Constitution. municipality in which func- to that answer I do not find a sufficient performed. tions of the office to be were ren- opinion majority proposition ground latter As to this unconstitu- It is said in present case. dered in the said, the court tionality of the act of it seems opinion here that majority page on in 109 La. sewerage and operation of the 807: city of New Or- system of the opposition governmental this contention it ordinary
“In is leans not an is of the office municipal government, said that the incumbent because function being happens to be an the time elector health and lives vitally affects the it that, state; parish of people throughout there- of the fore, complaint groundless. This extended lines because the board has reply present city limits, beyond It is not the so as to furnish wa- fallacious. individually adjacent parishes, incumbent is made who in two a ter and. Jefferson Hence, Sewerage said that the member and Water Bernard. it is St. [of Board], and water board but incumbent of office functions pure- board], member of are “not the other who- of the New Orleans [as be; might be an From statements in the ly ever he and to elector local.” these parish prescribed opinion infer majority is not I ma- among qualifications of the the members of the court take jority incumbent member of the the members of the position of the office other Sew- [as ground erage This and water board of unconstitution- board]. municipal not local or
ality
be sustained.
offi-
must
Whether
in- Orleans.
*32
officers,
cers,
by
unconstitutionality
may,
of the
state
who
leg-
the
en-
but
volves
enactment,
question
determination
and without
the
islative
tire act
a
constitu-
de-
by
the
of
health and the commissioner
amendment,
appointive,
be made
tional
new
partment
These two
of conservation.
Governor,
any part
the state.
of
the
from
of
board of commissioners
members
the
course,
the sewer-
members of
if the
Of
city of
police department
of
of the
city
the
of New
of
age
the
and water board
quorum
ma-
New Orleans constitute a
or
municipal of-
local or
Orleans were not
board;
jority
officers,
of
ficers,
Legislature
the members of
but state
required by
neither of them is
law
violating
constitution-
might,
without
city
be
resident
of
Or-
a
of the
New
eligibility to
requirements
al
of-
eligible
leans
order to be
to the
office,
appoint,
authorize the Governor
him,
officio, mem-
the fice which makes
ex
all
the members of
as some or
of
city ber of the
of
of
of
board
commissioners
sewerage and
board
water
city
Orleans,
police department
New
parish
of
residents of
New
Cameron,
fact,
remem-
Caddo,
parish
Orleans.
In
as far as I
or
ber,
president of
state
any
parish
or of
state.
neither
other
We
very
know
would
of health nor the commissioner
well
Governor
board
authority
department
ever
never
he
of conservation was
do
if
had
it,
city
do
a resident
Legislature
and that
would
New Orleans
present
appoint-
if until the
incumbents were
give
authority
never
him the
to do it
Hereafter,
will
com-
ed.
Governor
be
give
Legislature
could
it. But
always
appoint
pelled by
a res-
law
question before the court
is whether
now
city
to the
can,
ident of the
of New Orleans
without constitution-
amendment,
appointment,
president
state
al
authorize the
office of
of the
board
Governor,
health,
ex
city
officio members
and another
resident of the
of the
board
to the office
com-
of New Orleans
city
Orleans,
department
of New
nonresidents of
of the
conserva-
missioner
of,
city.
importance
tion,
anomaly
As evidence of the
order
avoid
Constitution,
safeguards'
these
in our
we
having
board
commissioners'
recently
very
department
had occasion
to observe
New Or-
Legislature,
No. 20 of the
composed partly
perhaps
that the
main-
leans
—and
1935, changed the
1st Extra Session of
ly
nonresidents
—of
membership
composition
arrangement
board
not seem
Orleans. That
does
police depart-
politically advantageous,
ei-
of commissioners of the
to me to
to the inhabitants of New
ther
ment of
inhabitants of
other
amending
16 of the
charter
section
I mention this illus-
of Louisiana.
1912),
state
(Act
placing
merely to demonstrate that
tration
on
ex officio members there-
possibility
of such an anom-
to avoid
board of
the state
of,
president
*33
and municipal.
framers
alous condition that
the members
Those of
requir-
provisions
appointed
who are
adopted
appoint-
receive their
that,
person to he ment
ing
mayor.
a
from the
order
for
The other mem-
or bers
eligible
parochial
mostly
are
any particular
city.
for
the officers of the
But, apart
this,
following
from all
office,
resident of
municipal
be a
he must
excerpt from the same
authoritative work
parish
municipality
in which
on the
[municipal]
law of
cor-
performed.
[Dillon]
functions of the office are-to
porations clearly fixes the character of
is vio-
provision
That
in the Constitution
municipal
this board as
agency,
a
to wit:
Extra Ses-
of the 2d
lated
Act No. 36
“
of the sew-
sion of
if the members
‘Questions have
special
arisen under
city
erage
board of
and water
provisions
constitutional
respecting the au-
municipal of-
are local or
thority
New Orleans
of the
over municipal
ficers,
state officers.
distinguished
from
offices and officers. And here it
im-
is
only
board is
sewerage
That the
and water
portant
to bear in mind the before-men-
board, whose mem-
municipal
a local or
tioned distinction between state officers
officers,
municipal
only
bers
local or
are
is,
—that
officers whose duties concern
in the case of
point blank
was decided
large,
state
pub-
at
general
lic, although
Kohnke et al.
State ex rel. Saunders v.
exercised within defined ter-
court,
speaking ritorial
subject,
officers,
municipal
On that
limits —and
whose functions
Provosty,
exclusively
said:
to the
through
(relate
Justice
particular municipality. The administra-
it
“By
statute of its creation
[the
tion
justice,
preservation
of the
given
is
a
Sewerage and Water Board]
public peace,
like,
although
con-
since,
domicile,
from
given name.
It is
fined to
agencies,
local
essentially
mat-
circumstances,
its domicile
the force of
public concern;
ters of
while the enforce-
city
than the
of New
cannot be other
ment of municipal by-laws] the establish-
* *
*
Orleans.
gasworks,
ment of
waterworks,
the con-
sewers,
struction
like,
and the
are mat-
quo
does
the writ
warranto
“Since
o.f
ters
pertain
which
officers,
municipality, as
it becomes nec-
issue to state
not
distinguished from the state
large.’
at
this board
essary
determine whether
Dillon,
Corp.
Mun.
citing
long
§
the state or of the
agency of
is an
authorities,
list of
at the
matter,
head of
opin-
The
our
New Orleans.
leading
is the
case
People
Hurlbut,
difficulty.
ion,
free from
The board
is
24 Mich.
Rep.
Am.
103.” (The
request
ital-
at
created
was
ics are
me.)
Orleans,
taxpayers
or of
pur-
of New
for
Maintaining
the act of 1902 was
administering
strictly
affairs
local
pose of
violative
home rule clauses of the
so,
Constitution,
Provosty,
for
were not
if
powers
Justice
court,
board
Case,
in the Kohnke
said:
were
part
to be exercised in
the benefit
territory,
of this
outside
not,
“It
is
be-
contended that
situation
would be that the
cause these
articles
Constitution]
[of
being
taxed for
benefit
powers,
do not
whose
apply to boards
of these neighboring parishes. Nobody
like those
and water
pretends
say
the tax is
strict-
limits
beyond
board
extend
ly and exclusively for the benefit of the
parish
act
Orleans.
city of New Orleans. This shows that
6 of the Extra
Session
[No.
1899]
is,
board also
since
the board
noth-
conferring upon
*34
ing more than an agency
special-
created
powers extending beyond the lim-
board
ly to carry out
purposes
the
of the tax.
of the
is
parish
of Orleans
contained
lows:
in section
“
‘Said
board
of
shall have
act,
and
reads as
authority
fol-
to
whose
ish of
“To say that in speaking
powers
Orleans the
shall
extend
article
beyond
of
[320]
the boards
of the
par-
any
Constitution
expropriate any property in
has
[of
reference to
1898]
boards
parish
of such
adjoining
strictly
of
parishes
local functions
this,
as
may
palpably
find convenient and neces-
that
is
to misinterpret the ar-
pow-
of
ticle.
sary
proper execution
The
evidently
article
has reference
it,
to extend
and
boards
granted
herein
created
ers
as much for the ben-
parish for the
efit
ben-
of
outlying
into such
territory
its work
as of the
Orleans,
city
and city
boards,
instance,
efit
for
as the
—such
authority in
jurisdiction and
such board of
have
port
commissioners of the
therein
works
situated.’
said
parish over
New Orleans. That
jurisdic-
board has
tion over
port
of New
purposes
plain
perfectly
“It is
port
embraces territory outside of the
pertain whol-
this board
creation
city. Drainage
Case,
Commission
49 La.
city
exclusively to the
ly and
Ann.
have the choose their City Alliance v. Protective New Or officers, but that this should not be con- leans, 165 115 So. La. 444. strued restricting power of state, prohibiting Legisla- majority opinion In the rendered in or as that, authorizing Case, appointing, from case it is said in the ture Kohnke of, cases, namely, or commis- appointment board three earlier the Police authority (State sion of Board Case Shakespeare), with full Orleans, other than that of control- Ann. 6 So. and the La. Dock *36 an- A sufficient charge of their duties. Or- City of New v. (Duffy Board Case of Act swer to is that section and 21 So. Ann. leans), La. 1899, which Session of No. 6 the Extra (State Case Drainage the Board itself, de- part of the Constitution was a 22 So. 49 La. Ann. Flower), the sewer- clared that the members Case Kohnke the from were differentiated be re- age should not sweeping, and water board the “only ground of on the and except in the manner stated police moved general delegation broad the in Con- for the causes enumerated city of New the power the state to Or- offi- the removal stitution for leans, 319 and articles under or misfeasance. cers for malfeasance the true that It is 1898.” Constitution of the Case that Kohnke said in the made, court majority opin-' in is the Reference point, in were “not cited decisions three ion, message to Parker’s to Governor they were ren- that since reason in session of in Legislature, words, admin- ‘and with dered expressed he his determination to corpora- of said of the affairs istration power in his for the destruction do all added been have part,’ in ringism tion whole or in in of boss rule Louisiana deemed perhaps was That the article.” particularly to in New Or- dismissing from for reason upon message sufficient not a leans. I do look this cases the three upon consideration having bearing ques- further much that, in the cited; fact Parker,, but presented were tions in this Gov. case. (Act statute however, Board Police in message, his recommended' Case(, did not the board creating 1888) “retaining necessary autonomy the electors deprive city, change power people in her mem- to choose will, their their per- at administration their Board board; Dock legitimate bers her play proper mit her were Board Case Drainage State, Case government but these boards fact upon the polit- decided not to become menace to the municipal boards. people.” interpret were ical welfare of its I that, although all of that to mean majority opinion was said in Con- deemed advisable curtail that, by article case “ring,” politics, Louisiana the so-called state state stitution autonomy c-ity con- of New power and Or- stripped of preserved, water board leans should be for the benefit sewerage and over trol many was of the inhabitants who were well- city it, meaning policy That people. if mem- even was car- exercise powerless guilty redrafting ried out ever so home became the board bers Constitution, in the dis- rule clauses or misfeasance malfeasance *37 upon police power, had itation Convention of the intention the state’s in 1921. If so city city of far as been the New the of Orleans is to withdraw from New delegated po- concerned. Thus the the Orleans all of the so-called members of Con- power, lice electors stitutional deprive Convention of 1921 restored power state’s city sovereign city in the their to choose the over municipal boards New members the local or Orleans and the sewerage wa- ter having authority controlling “of board.” ordinary governmental' functions of mu- My opinion is that the state never at government,” nicipal the home rule clauses any plenary time lost its “inherent and would have been deleted from Con- police power” city in the of New Or city or in stitution. No other town Lou- leans, or power its “sovereign over isiana is favored with a home rule clause city of New Orleans in the If these home Constitution. rule police power water board.” The in clauses the Constitution of do the state nothing has little or to do with protect city not the inhabitants Nobody this dispute case. can well against legislative inter- New regulation and control sew controlling matter “of ference in the erage any or of oth ordinary governmental functions of mu- er of the governmental affairs ask, government,” nicipal I what benefit po New within home rule these clauses to the inhab- lice of the state —as in the it was of the itants New Orleans? beginning now—and ever shall be — —is Governor Parker did suggest not principio, world end. without Sicut erat in ' in or to the Legislature, Constitu- nunc, semper, et et et in saecula any change
tional Convention question saeculorum. But the in this case provisions in the be made should first, is, police pow whether the state’s Extra Session cre- er, instance, particular may in this be governing the ating Legisla exercised mere act water board Orleans. ture, requires a constitutional amend second, ment, and, attempt whether this majority opinion said in
It police power ed exercise of this case: impair obligation state tends to of a 14 of the 22 of article Con- “Section contract between New Orleans merely 1921 does rein- stitution taxpayers and the or bondholders. ple- its inherent and state with vest goes much power, majority opinion but it fur- Much is said nary authority the courts prohibits state this case about of the Leg- ther and municipal this ‘construing section’ as a lim- islature amend charters. Of from resulting negli authority damages sued for from course, Legislature has or em gence agents re- on any municipal charter to amend perform ployees of the board in the lim- no constitutional spect where there is duties, plead ance of their has the board authority; but where upon such itation perform engaged ed that in the limitation constitutional there is such a function, dis governmental ance of a municipal charter the amendment tinguished municipal function. from a way amendment of of an must makes,, in The the law distinction which itself. the Constitution it, is respect, I understand not be majority opinion in is said tween and a mu governmental function argument behalf ithe on case that is be nicipal function. distinction *38 and the tax- plaintiffs state of the —the which tween the two kinds of functions and the bondholders payers municipality performs kind of mu a —one Legislature the can- New Orleans—that “gov being the called nicipal functions (on the the condition not abolish functions, kind the other and ernmental” the that members of levied) the tax was the being called municipal functions res- shall be and water board sewerage “corporate” “proprietary” or “private” or city, not is electors idents and been rec has That distinction functions. argument sound, merely it is in that court, consistently, ognized this pub- in its city of New that time, in the follow long particularly a part of the state’s ma- capacity as a lic City New Or ing v. cases: Stewart responsibility to the state chinery, owes no 218; 461, Am. Dec. leans, 61 La. Ann. 9 performance of acts government in Orleans, 12 La. City of New Lewis v. benefit,- this is Kerr, 190; City Orleans v. of New Ann. authority merely argument 413, 417, 69 Am. 23 So. 50 La. Ann. supreme reg- in state is 442; City of v. New Or Rep. St. Jones responsibility, and Of the of this ulation 865; leans, So. La. Joliff these acts are to be in which manner Shreveport, City 144 La. question in done, The this whom. 200. however, case, author- is not whether that, therefore, when the plain, It is that of the superior is ity state pleads, in de- sewerage water board authority of the city, but whether suit, that the board damage fense of a superior to that of the is function,” “governmental in engaged is Legislature. engaged the board is it means that ordinary governmental- majority opinion in of “the func- one said in is municipal government,” that, as re- instances where tions of certain case to in section of article board has been ferred water sewerage and thing, goes from to do the further Constitution, distinguished same but appoint- “corpo- and undertakes to abolish “proprietary” “private” or ing by mayor resident tax- expression in of seven function. rate” Orleans, payers Constitution, ordinary governmental in the of New “the board, municipal sewerage members and water government,” functions tautology; language taxpayer one each one of the seven like hut from sounds well-chosen, because, municipal as I have districts. really out, class there is another pointed In attempting change in to make this (cid:127) municipal government” be- “functions membership composition, ordinary governmental func- sides “the authority selecting and method of (cid:127) municipal government.” In re- tions of members, sewerage and wa- serving to the electors of the ter has the members choose come into Leg- conflict —more than the exercising municipal of all local boards islature of 1902 came into conflict —with functions, members the Constitu- requirement, constitutional as a condi- tional Convention of 1921 were exact tion on which the tax was levied and the specifying ordinary governmental “the bonds were issued for the establishment municipal government.” functions of I sewerage system, disputed have never heretofore heard it there should taxpay- be seven resident operation maintenance and a ers as members of the and wa- system among “the ter board. That the tax was levied sub- ordinary governmental functions of mu- ject stipulated to the conditions nicipal government.” taxpayers’ petition the municipal coun- adopt necessary cil to ordinance was
It is pointed a fact —as out in the ma- *39 No. preamble stated in the to Act opinion jority in this case—that the the Extra ratifying Session of the only Kohnke Case the court decided that levy, subject conditions, tax to the thus: Ill Act No. of 1906 Was unconstitutional “Whereas, 6, 1899, in that mem- on prop- it undertook to make the the June erty taxpayers bers of certain other boards or com- of New Orleans members, officio, missions form of special ex of the sew- in due law voted a tax erage requir- mills on the dollar forty- of two for without ing they by years, beginning year 1899, should be chosen the three with the Orleans, conditions upon electors of the of or certain set New in the forth by ap- taxpayers’ petition, made the municipal property elected the council ba- election,” pointed by mayor. (I sis said did the Act No. 36 of etc. the ital- of icizing.) the 2d Session of 1934 Extra undertakes and any the Extra to re- Act No. 6 of amend this act in
Section 8 of spect not copy up- of section Session of is a violative of the conditions levying on which the City special said Ordinance tax was voted tax; and, conditions property taxpayers the the as one of the the levied, section on this which the tax was the impairing of New statute, ordinance, cre- the the and of rights of rights or the contract vested membership the provided ated and for the holders of issued the bonds under and wa- composition provisions.” construct- purpose of ter board “for the right Legislature This reserved the operat- maintaining and ing, controlling, act, lim- stipulated the the amend with pub- system ing public water the upon amend, right itation city of New sewerage system lic amendment; repeated in the constitutional Orleans.” say, joint (Act is to resolution the Ex- Act No. 6 of
In 1899) pro- section 35 No. 4 Extra Session of sig- most amendment, 1899 are the posing tra Session of adopted, which was pro- important of all nificant and thus: are' deal- subj we ect which
visions on the special public improve- “The for tax In that section suit. ing with in this ments, property voted taxpayers that, pro- declared the act it was city- New Orleans on .of June to become the act were visions of ratified, hereby is and its valid- Constitution, re- right was ity questioned. spe- never shall be nevertheless, Legislature, served, adopted cial act [No. 6] would respect that amend the act Special at August held Session on * * * on which the conditions violative not be constituting the Sewer- prop- was voted special tax age and Water Board the City would not im- and that erty taxpayers, Orleans, authorizing rights or contract rights vested pair the bonds, Orleans to issue providing under issued bonds holders pay principal means to and interest Section act. provisions thereof, and purposes cognate other for follows: is as act purposes special tax afore- enacted, said, hereby etc. es- approved, it further Be 35. “Sec. ratified pecially including this act That, leg- to have therein reserved proposed as it is right same; to the Con- islative to amend 'the amendment by an ratified hereby present all specially provisions stitution, jdeclared act, with provisions of said in of this said the intent conflict act, amendment, amendment, are to that ratifying constitutional repealed Assembly purpose only reserves extent.and the General *40 regard provisions provisions constitutional of Act No. 6 this word, retained, prevails Extra Session of to- .amendment word were day, section under language the exact of sec- the Constitution of pro- tion 23 of 23 of added article 14 of the article 14. There was Constitu- tion of New "Orleans 1921. relieving vision in its annual duty providing Now, her.e what this court said on opera- and budget for the maintenance subject Kohnke Case: , system, tion hardly taking “We think it would be sewerage ánd water requiring practical or sensible of the situa- view accordingly. adjust board to its rates tion interpret [constitutional] author- provision 'There was added also a amendment so as to leave the matter parties izing the board to contract with of the bonding vel non of the avails sup- having purpose franchises for that tax, and the matter of the consti- adjoin- ply consumers in the water to tuting special vel non of the board to ad- ing parishes, rates be fixed at avails, minister these the discre- within added also a ratifica- board. There was tion of Legislature, it- while tax of 1906 and Act No. tion of Act No. 19 self being was secured hard and fast relating to the issuance in the framework of the Constitution. We improvement
.$8,000,000 of new think practical that the and sensible view bonds Orleans. to take agents is that of the tax- adoption of the mu The result of the payers who framed the did amendment nicipal and the statute and con ordinance their work with a conserving view to of 1899 that stitutional amendment was conditions; words, these in other that conditions on which the tax .all the amendment exactly means precise- levied, stipulated was which were ly says, namely, what ‘the tax taxpayers’ petition levying in the ratified, voted’ and ‘the tax levied’ is repeated in tax, were and which questioned; is, shall never be levy, ratifying tax became a the act levied, the tax as voted subject and as Constitution; included part of upon to the conditions it was voted right of therein * * * and levied. law, though it even was a amend Constitution; hold that the conditions of provided, must how “We taxpayers’ petition referred to in the amended in not be ever, it should rate, duration, not the reserve were be violative of the that would respect tax, but levied, were ‘the terms purposes the tax was on which conditions taxpay- forth set impair rights the contract conditions would under which the tax had status, petition That with ers’ bondholders. <of *41 239 240 voted,’ been and that one the chief the effect of this reserve was to withhold these the one incorporation conditions was bear- from into the Constitution ing upon organiza- parts the manner of all the of the act not covered tion of the board was to administer the conditions of taxpayers’ petition. which proceeds follows, necessitate, of'the tax. This result ex from legislative right amend. Since that, argued
“It is if this Legislature cannot amend the Constitu- water board has become a constitutional tion, act, it follows that in so far board, during then that the life of this as amendable Legislature, is no years possible board —43 will not be —it part Constitution, and it is amend- change government the form respects able in all except in violation mayor because taxpayers’ conditions of the peti- and the chairmen of the committees of tion.” budget, drainage, water and and finance What was said in the board; Kohnke Case members of said
are made repeated was and affirmed in that, in order State v. proposition being con- Billhartz, 146 board, 120, 122, La. 84 members of the So. tinue to be thus: in their have to continue said officials will functions, same of- seen, under their “It therefore,
same will be purposes, terms, ficial titles. and conditions for and upon which property payers tax the situation do not think that “We New Orleans consented prop- their as all this. If the would be so serious erty subjected should be special to the have an officer called ceased to tax, which could not have been levied ‘mayor,’ name of it would be the official consent, without such were set forth in filling have some other official forced to detail, considerable in an act of the functions, Gen- the same approximately and the eral Assembly, which, by vote of experience difficulty no courts would what- entire state, electorate of the was incor- holding that in official took ever porated in, and part of, made the Con- mayor board; on the place stitution, and which (it may stated) other and so with officials. * * * has so been recognized by this court. “It well note, in passing, that, State v. Kohnke, 109 La. [838] 793; adopted So. Board, the act of 1899 is into Saunders while v. 110 La. whole, 457; adopted as a it so So. State ex rel. Sewer- special age reservation of the Board Michel, & Water 127 La. amend, 926; except in so 53 So. New Orleans Taxpay- might be violative of the' Sewerage Board, far condi- ers’ Ass’n v. 132 La. taxpayers’ petition; tions 843.” ferently majority opinion in the constituted and the board is said 'provided No. so of Act provisions having organ- that the for not ever this case were, ized, having entirely but supplanted 6 of the Extra Session been contrary peti- by directly legislative to the part, board created act 1899; and "that the taxpayers, part be- latter board was tion of the subject remained legislative taxpayers’ petition. scope yond the control, being purely legislatively cre- found, however, the Kohnke This court ated board. departures from the slight Case that petition, find taxpayers’ “We no force argument.
terms of in this The section 8 of the provid- act of 1899 made it of the Con- statute ing for the sewerage stitution, unimportant, were in and water board were copy a verbatim only interpretations petition. section fact *42 the council adopted carry said on the ordinance Here is the court sub- what petition; ordinance, out the and this very ject: far seeking from to violate the condi- faithfully accom- “The had petition, tion's of the sought, on the con- plished strictly purpose, adhering that trary, carry them faithfully out plan scheme, except in harmless a carefully. petition In the eventuality particular, objected. The nobody to which of the reduction membership of the drafting joint of the res- act drainage commission or of the total proposing olution the amendment was the abolition of the commission had not been taxpayers handiwork of the themselves for; provided foreseen and and it be- through agents, their fact chosen of which necessary remedy came this in the or- may judicial this court take notice carrying dinance petition, out history a of the provision covering eventuality was ac- why state. There was no reason cordingly made. But this was a mere adopted tax voted should not be into the interpretation petition, and strict- voted; is, Constitution as that with the ly in line with it. Nobody upon looked conditions attached to it which the tax- in the light change matter payers coupled voting had with it in it. petition, conditions and that idea * * * suggested is now time. Un- for first said, also, circumstances, “It' suggestion is that der these the condition of petition regard respect to the with organ- petition to this board must ization of the and water held to have been what both by board be ' out, was never carried Legisla- the ordinance the act ordinance adopted been, purpose carrying interpreted was thus to have out ture it petition provided having have been for a dif- and it must be held to carried
'243
n intothe Constitution as thus
ly, that ‘the
levied’
interpreted.”
tax voted’ and ‘the tax
ratified,
questioned;
and shall never
(Italics
mine.)
be
is,
levied,
the tax as voted and as
majority opinion in this
It is said in the
subject
upon
conditions
which it
(cid:127)case:
was voted and
(The
levied.”
italics are
(Act
“The
State Constitution
mine.)
Sess.,
(cid:127)of
Ex.
article
plainly
That
can
means —as
as words
23 of ar-
Constitution of
and section
convey
meaning
the ratification
—that
1921)
ticle 14 of
[the
of]
given subject
tax was
to the con-
(cid:127)provides
validity
special
that ‘the
”
ditions on which the tax was voted and
questioned.’
shall never
tax
be
levied. And the condition which the court
majority opin-
Hence it is said in the
especially
mind,
had
making
ion in this case:
important
Case,
declaration in the Kohnke
worry
“The
need never
bondholders
composition
was that
membership
taxpayer
pay
(cid:127)about
the refusal of the
as fixed
tax,
prevent
or about
suit to
taxpayers’
petition
and in the or-
collection,
levy and
since the validity of
statute,
dinance and in the
should not be
questioned.”
may
tax
never be
.changed.
corollary
of the declara-
copied already
I have
the constitution-
just
tion which I have
quoted from the
tax,
ratifying
al amendment
Kohnke
validity
Case
repeated
ratification is
in section 23 of
may
questioned
tax
the taxpay-
article
the Constitution of
ers if the conditions on which it was voted
ratified,
.showing that the tax was
as voted
and levied
And,
are not adhered to.
levied,
subject
and as
to the condi-
reason,
bondholders,
as well as
statute, “including
tions stated in the
*43
the taxpayers, have the right
complain
to
same,”
right
therein reserved
to amend the
now of the act of the Legislature which
upon
legislative
-with the limitations
impair
undertakes to
obligation
to amend the
And
same.
here is’
contract with
of New Orleans.
this
subject
what
court said on the
in
Case,
the Kohnke
viz.:
fact,
In
the decision
by
rendered
this
practical
think that
“We
and sen- court in the Kohnke
part
Case became a
to take
agents
sible view
is that
of of
obligation
of the contract on the
taxpayers
who framed the
part
[constitu-
of New Orleans in fa-
amendment did their work with
tional]
vor of
the bondholders. The evidence
conserving
conditions;
to
(cid:127)a view
these
in this case
$9,000,000
discloses that
of
words,
in other
that the amendment
$12,000,000
means the
of bonds were sold after
(cid:127)exactly
precisely
what
says,
it
name-
the decision was rendered in the Kohnke
on the
“From
Case,
sold,
presumably,
extended
and were
reference
adjudications
in
by
of
representations
Supreme
the decision
of
made
Court
Louisiana, upon
in
in evidence
Constitution of
Kohnke Case.
is
requiring uniformity
banks
and equality
this
the New Orleans
case that
taxa-
tion, there
$12,000,000
can be
question
sent
no serious
that held the
of bonds
as
validity
of
circulars,
to the
the act
out
as
of
so
an inducement
far
bonds, as
prospective'bond
buy
consolidated
buyers
bonds
concerned,
New Orleans are
pro-
and the
saying that all of the conditions on which
visions
by
made
supplementary
and the
pay
the tax was
voted and levied
act for the
levy
annual
$650,-
of a tax of
protected
legislative
bonds
against
were
000 to pay the interest and
copy
interference.
reduce the
per-
_
Here is a
principal. The
upon
part
tinent
decisions
the clause
the circular:
in the Constitution of 1852
corrob-
are
“Every
surrounding
condition
these
orated
the correctness of the construc-
bonds,
authority
which are issued under
originally placed
tion
upon
the clause
-of a
amendment,
constitutional
pro-
the Constitution of 1845. Whether such
tected from legislative
interference
a construction was a sound one is not
whatsoever,
particular
as announced
open question
an
the va-
considering
Supreme
decision of
a
Court
Lou-
lidity
exposition
bonds. The
giv-
isiana, in the case of State ex rel. Saun-
en by the highest
tribunal
the State
Kohnke,
ders v.
Applying
v.
226;
112 La.
36 So.
court
by this
Maxwell-Yerger
rendered
decision
Kohnke,
Rogan,
Co. v.
125 La.
ex rel. Saunders
48. The
case of State
Supreme
part
Court of the
a
United
as much
became
States treats
January,
the construction which
the highest
Extra Session
court
Act No.
given
state
a
has
sections
statute
particularly
state as
statute
According
itself;
itself.
text
-the
*45
therefore,
My opinion,
the
given to
is that
different constructions are
if
times,
it will
of the 2d Extra Session of 1934 vio-
same statute at different
only
provisions
lates
the
if
there-
not
the several
which
not
follow
latest decision
I
rights
have arisen un-
have referred to of
the Constitution
contract
which
Louisiana,
of
ruling
injurious-
der the
be
the
earlier
would
but also
declaration in
ly
Douglass
County, section 10 of
affected.
Pike
article
the Constitution
v.
States,
of
(11 Otto)
water board
PER CURIAM.
leans,
to
stat-
especially
regard
with
the
court
in-
Generally,
of this
decisions
utory
requirement of
and constitutional
“home
interpretation
the
volving an
taxpayers
mem-
having
resident
seven
Constitutions
rule” clauses in the various
im-
bers of
is matter of no
the
a
in strict con-
of this state have varied
taxpayers
portance
gen-
or concern to the
omission,
formity
enlarge-
with either the
bonds,
erally, or to the
holders
ment,
clauses.
or restriction
these
city
The com-
of New Orleans.
E.
position
In the case of R.
Diamond
G.
was
membership
of the board
Cain,
said,
only
L.
La. Ann.
the court
subject-matter
litigation
upholding
Case;
in the
the Governor
Kohnke
decid-
and
was
remove,
appoint,
to
and
ed there
control officers
composition
mem-
police
bership
and men
force of the
“of
ad-
the board which was to
minister
as follows:
proceeds
of the tax” was one
of the essential
on
and vital conditions
of 1868 omitted ar-
“The Constitution
taxpayers
which the
tax was voted
by article
133 of that of
but
ticle
and
city.
levied
The court said:
legislation
all
in force
149 continued
with the Constitution itself.
must hold that
the conditions
inconsistent
“We
subject
petition
left
taxpayers’
referred to
This
whole
duration,
rate,
power
corporation
police under
reserve
not the
and
and
were
tax,
Legislature,
terms
discretion
which
purposes
‘the
and
but were
9, 1868,
approved
taxpay- by
July
Act No.
and conditions set
forth
Commissioners,
petition
Board of Police
ers’
under
the tax had created a
Governor,
by the
voted,’
.appointed
been
to be
and that one
and
chief of
appoint
‘full
have
bearing up-
these
was
one
who shall
conditions
and control
officers and men
on the
the remove
organisation
manner
police
force
pro-
board
which was
administer
Orleans;’
how
directed
the officers
mine.)
(Italics
ceeds
the tax.”
removed,
all
repealed
men
sewerage-
should be
administer
parts
acts and
acts
there- waterworks
inconsistent
of a
is not
to admin-
ister
part’
with. This
effect from and aft-
its ‘affairs in whole or in
act took
would-
consequence,
go squarely against
er
passage,
plain prop-
as a
838, 871,
osition.”
109 La.
appoint
33 So.
authorising
mayor
laws
(Quotation
806.
ours.)
between brackets
com-
creating
police
police, and
member,
mission,
Mayor as a
case,
In
Provosty
this same
Mr. Justice
policemen, be-
the trial and removal
thoroughly discussed articles
319 and
therewith,
repealed
ing
were
inconsistent
the Constitution of 1898 as follows
police
taken
and all
control of
838, 868,
(109
La.
33 So.
804):
Mayor
from the
the said commission
“Another ground of unconstitutionality
and vested in
board of
five
upon
relied
is that
articles
commissioners,
by said act. No
created
*46
320 of the Constitution
charged
the officers
Mayor
authorizing
exists
to make
law
with the exercise
the police power
R.
Diamond v.
appointment.”
E.
such
and with the administration of the affairs
Cain,
309,
Ann.
L.
21 La.
319.
G.
of the municipalities of the state
must
Kohnke,
838, 33
In
109 La.
State v.
by election,
chosen
and the members of
793,
Provosty made the
Mr. Justice
boards or commissions must either be
differentiating
in
cer-
following comments
by.
elected
city
councils
appoint-
or
contrary
held
tain cases which
ed
mayors
of such municipalities;
Case,
decision in the Kohnke
but which and that said
act
1902 undertakes to
“home
were decided
rule”
under
make the commissioner of labor and sta-
clauses of the
1879:
Constitution
tistics,
three members of
board
commissioners
Orleans
Dis-
Levee
the cases in 41 La.
“The decisions in
trict, and one member of the board of
156,
(Police
Ann.
Board Case
“The
independent statute,
property tax as
-upon
an'
and not as
an
for and
to the act
consented that amendment
it was
un-
payers of New
subjected
thereof, and,
section 35
be
to a authorized
if
property should
their
effect,
tax,
given
into
would be violative
be funded
bonds
special
condition,
implied,
plainly
expended
obliga-
of which were
proceeds
*48
Sewerage and
creating
“The act
payers, under
property
tions of the
tax
act,
pow-
conferring
Water Board and
certain
are
by
the contract evidenced
amended,
upon
ers
it is in
sense
since
independent and
change by
subject
not
to
conferred;
powers
it
additional
are
but
but,
the ex-
to
legislation,
miscellaneous
is
by making any changes
not amended
authorized, only by means
thereby
tent
in it.
perfectly
remains
and abso-
act and con-
direct
of a
amendment
lutely intact,
just as the Constitution
imposed and as-
they
wheréby
were
tract
it;
adopted
Consti-
article
sumed.”
tution, requiring amended acts to be re-
120, 124)
dissenting opinion (84 So.
full,
application
enacted
.only
has
when
Provosty in the
by Mr.
rendered
Justice
change
some
being
is
made in the ‘amend-
interesting by reason
case
above-cited
See,
effect,
ed’
act.
Cyc.
to that
organ
he
of .the
was the
the fact that
citing
O.,
Arnoult v. N.
11 La. Ann.
Kohnke, up-
the case
State
court
54;
Henderson,
State v.
32 La. Ann.
by
placed
reliance was
much
which so
on
779;
O.,
Kathman v. N.
.
11 La. Ann.
herein.
defendants
certain
145;
O.,
Moore v.
726;
N.
32 La. Ann.
“I cannot
Provosty,
(dissenting):
Murphy v.
Jury
Police
Parish,
St. Mary
J.
because,
I
decision,
agree with
118 La.
against Appeal malaria Court yellow fever and Circuit *49 scope the of clearly Supreme the the United tion falls within States Court in said act power; yet holds case was police as follows: to be unconstitutional. “Second. the certifi- The warrants and judiciary to annul the
“The of by complainant held having cates the been gov- of legislative act branch an supplies issued for services rendered and many; but all by ernment is contested furnished contract the board under with exercised, recognize it should not Metropolitan police, of when the laws doing so except and when sparingly, required said warrants and certificates unavoidable. by pay- be received defendants in licenses, taxes, ment of all and other respectfully dissent.” “I therefore "dues, and all such laws re- having been Mr. dissenting opinion, By this Jus- pealed legislature Louisiana of disagrees unquestionably Provosty tice provision making without other for in court their majority of the redemption of said warrants and certifi- of State interpretation of case v. cates, impairment was this an of the ob- wrote. is notable he Kohnke which ligation of the contract in relation to Provosty rendered this that Mr. Justice certificates, such warrants and within the adoption prior to the opinion dissenting 1, 10, meaning of article of the con- § 1921 under stitution the United States?” containing the Constitution Supreme The answer Court gov- which “home rule” clauses identical question the United States was as Kohnke Case. erned his decision 411, (153 905, follows S.U. 14 S. Ct. a change whether or not question 912, 764) 38 L. Ed. : membership prescribed by Act “This ques- covers board as conclusion the second tion, Extraordinary Session of specifically inquires 2d which 36 of the whether 1934, re-enacting section amending impairment obliga- 8 there was an upon Extra Session of tions of arising Act No. contract 1899, certificates, amended Legislature of warrants by reason of give repeal would rise the making Ill of laws them Act No. receiv- already payment licenses, taxes, of contract has impairment able to an course, Supreme Court of other debts. been answered Of there was no impairment City States the case of United such act if Benjamin H. v. act W. et left in force substantially the al., 905, 908, payment S. U. S. Ct. mode provided warrants questions laws, by existing L. 764. One Ed. cer- and the bill did not at- suspend- tack ODOM, act J., No. 33 of dissents from the refusal ed grant certifi- to rehearing. tender warrants and prior cates except years for taxes ROGERS, J., dissents from the refusal January 1, 1874, or- while under grant rehearing. 1879, by dinance of Act No. 49 of scrip warrants po- made were receivable for lice taxes without discrimination
year issued, in which the warrants were
or the taxes levied.”
It will be noted from this case that
warrants did this not constitute an
impairment of contract because the per- New Orleans would undoubtedly through departments
form one performed
functions heretofore by the
metropolitan police board and substantially
act “left in force the mode payment provided by of warrants ex- case,
isting present laws.” In the membership in the sewer-
change in only does not leave
age board “substantially” pay- the mode of
in force principal on both interest
ment of does but not disturb bonds
outstanding iota. one method assigned, the rehear- reasons
For refused. for is applied
ing
O’NIELL, to his dissent- J., adheres C. opinion.
ing