92 So. 392 | La. | 1922
Lead Opinion
The question in this case is whether the amount of the annual appropriation which the commission council of the city of New Orleans is required to make to the sewerage and water board, to maintain and operate the drainage system, is to be determined by the commission council itself, or by the sewerage and water board.
The board proceeded by mandamus to compel the commission council to include in its budget of expenses for the year 1922, and to appropriate from the city’s alimony, for the maintenance and operation of the drainage system, under the supervision and administration of the board, the sum of $424,000, being the board’s “estimate of the amount requisite for these purposes.” The commission council budgeted and proposed to appropriate only $188,140, which sum-, the council maintains, is all that is “necessary and prop-' er, over and above the receipts of said board for water rates, to maintain and operate in an efficient manner” the system of drainage. Judgment was rendered in favor of the board, making the writ of mandamus peremptory, and the commission council has appealed. There was also a demand for an appropriation of $8,750, being the city’s usual annual contribution to the maintenance and operation of the Jefferson-Plaquemines drainage district, which appropriation was budgeted and is not in contest.
“The city of New Orleans shall annually in her budget of expenses provide out of her alimony by proper appropriation, all the funds necessary and proper-over and above the receipts of said [sewerage and water] board for water rates, to maintain and operate in an efficient manner the said public systems of sewerage and drainage and the said public system of waterworks, inclusive of interest and sinking fund of any assumed mortgage bonds thereon, and the said board shall in the first week in November of each year, present to the council an estimate of the amount requisite for these purposes for the following year. No portion •of the proceeds of said public improvement bonds or of the said taxes shall ever be applied to the .maintenance and operation of said public systems of sewerage, water and drainage, but they shah be used for construction purposes only.”
By a provision in article 313 of the Constitution of 1913, the city was relieved of the obligation of providing, in its annual budget of expenditures, for the maintenance and operation of the systems of sewerage and waterworks, and the board was authorized to use for those purposes its collections from water rates, and to use any surplus of such receipts for the maintenance and operation of the drainage system. Therefore, as the law now stands, the city is required to appropriate annually the funds necessary and proper (over and above any surplus of receipts from water rates remaining after paying the cost of maintenance and operation of the sewerage and waterworks) to maintain and operate in an efficient manner the system of drainage, under the supervision and management of the sewerage and water board. And the board is required to present to the commission council, in the first week in November of each year, “an estimate of the amount requisite for these purposes for the following year.”
The attorneys for appellant contend that the language of the statute does not purport to give the sewerage and water board authority to determine the amount to be appropriated, but leaves it to the municipal council to appropriate whatever sum the council may, in its discretion, deem necessary and proper for that purpose.
In support of their contention, the attorneys for appellant argue that, if the statute should be construed as giving the sewerage and water board the authority claimed, it would be violative of article 319 of the Constitution of 1898 (and of 1913, and section 22 of article 14 of the Constitution of 1921), reserving to the electors of the city of New Orleans the right to choose all officers charged with the exercise of any of the police powers of the city.
If the obligation which the statute imposes upon the municipal council to appropriate “all the funds necessary and proper” for the maintenance and operation of the drainage system “in an efficient manner” were not qualified by the subsequent explanation that the sewerage and water board shall “present to the council an estimate of the amount requisite for these purposes,” the inference might be that the municipal council is invested with the discretion to determine what funds shall be “necessary and proper” for the board to spend. But the only estimate that the statute mentions is that which the board shall make. That this annual requisition of the board is only an estimate is not significant, because nothing more accurate than an estimate could be made in advance by either or anybody. We have no authority to write into the statute that the municipal council may, in its discretion, reject the board’s estimate, or revise it to suit the council’s idea of efficiency and economy in the board’s management of its affiairs. The Legislature had to confer upon either the commission council or the sewerage and water board the authority to determine, ab
The municipal council has appropriated for each of the last 12 years a sum considerably less than the estimate made by the sewerage and water board. But the precedent so established is not important, because the board has actually spent more each year than was appropriated by the council. A large fund had gradually accumulated from the hoard’s collections from consumers of water. When this fund was released, and made available for maintenance and operation, in 1913, the hoard commenced drafting upon it; and it has been almost entirely exhausted because of the deficits in the annual appropriations made by the municipal council.
“It may be affirmed as a general rule, sanctioned by the best authorities, that, when a plain and imperative duty is specifically imposed by law upon the officers of a municipal corporation, so that in its performance they act merely in a ministerial capacity, .without being called upon to exercise their own judgment as to whether the duty shall or shall not be performed, mandamus is the only adequate remedy to set them in motion, and the writ is freely granted in such cases, ordinary remedies at law being unavailing [citing decisions from fourteen courts of last resort]. As illustrating the rule, it is held that, when county commissioners are required by a plain and positive statute to set aside a certain portion of the county funds annually for a specific purpose, and have refused to perform this duty, they may be compelled to act by mandamus. * * * And, when a board of municipal officers is required by law to raise for the support of the poor so much money annually as may be fixed by another board, intrusted with full power as to determining the amount thus to be raised, the duty of raising the money may be enforced by mandamus, there being no discretion left to the officers, and their duty being purely of a ministerial nature” [citing Ex parte Common Council of Albany, 3 Cow. 358].
In State ex rel. Francis T. Nicholls, Governor, v. City of New Orleans et al., 41 La. Ann. 156, 6 South. 592, this court affirmed the right of the Governor to compel the may- or and council of the city of New Orleans, by mandamus, to obey section 20 of Act 63 of 1888, providing:
“The common council shall set aside in the budget of expenses, a sum equal to that required according to the estimate made as aforesaid, by the police board; provided, that said council shall have the right to reduce said estimate to a sum not less than one hundred and fifty thousand dollars [$150,000] for the police department, including the amount to be received ijrora the wharf lessees, whenever the revenues of the city will not justify or permit a larger appropriation.”
In State ex rel. Board of Health v. City of New Orleans, 37 La. Ann. 894, where the court dismissed the proceeding by mandamus, the statute expressly left the amount to
The judgment appealed from is affirmed.
Rehearing
On Rehearing.
A rehearing was granted in this case on application of the defendants. Thereafter, on motion of the relator, the following order was entered:
On motion, of the sewerage and water board of New Orleans, through Walter L. Gleason, attorney, and on suggesting to the court that mover, who is relator and appellee herein, desires to discontinue its suit and dismiss its demands, and that the city of New Orleans/ through its counsel, consents thereto:
It is ordered by the court that the original opinion and decree herein entered be set aside, that the judgment of the district court be reversed, and that the demands and suit of the sewerage and water board be discontinued and dismissed.