*1 investigation. duty tiffs’ to make further complained
Obviously, when the defect who, partially apparent, buyer never-
theless, purchases thing without further
investigation to have waived must held right quanti
his to sue in minoris. Appeal on
The Court cases relied facts. distinguishable
counsel are on their assigned, judgment
For the reasons
is affirmed.
152 So.2d Boyd
Dr. M. WOODARD
v. REILY, S. Commissioner of Adminis
James Louisiana, tration, State of al. et
No. 46560.
April 8, 1963. Opinion April 9,
Dissenting *2 Watson, Blanche, L. Roland
Robert Thibaut, Wilson, Rouge, Baton Posner & Gen., Gremillion, Atty. Carroll P. F. Jack Gen., Buck, Atty. E. 1st Asst. John Jack- Gen., son, defendants- Jr., Atty. Asst. appellants. Rives, Henriques &
Ogden, Woods, Orleans, for II, New Ogden, Charlton B. plaintiff-appellee.
HAMLIN, Justice. Woodard, he Boyd
Dr. M. alleging taxpayer resident the State was Louisiana, against S. brought suit James Administration, Reily, Commissioner of P. Roy Comptroller, A. Theriot, R. *3 Treasurer, and official Tugwell, their capacities the State executive Officers Louisiana; prayed he be or- why prelimin- show cause writs dered to ary not issue injunction should as follows: Tugwell, A. P. “To: Honorable Treasurer, Roy R. Honorable Theriot, Comptroller, ordering commanding these two defendants by Act appropriations made honor Legislature pay of the 75 1962 any contingen- regard without same whatsoever, either unconstitution- cies 4, 6,5, 3, ally Sections established 8, Regular 7, and 11 of Act 75 Legislature of of the Louisiana Session by de- sought or to be exercised constitutionality fendant, Reily, and the of LSA-R.S. 39 :- S. Honorable James 52, 55, 56, 57, 95, 96, 97, Administration, 42, 54, pur- 53, 231 and Commissioner 39:42, 52, 54, 56, 53, alleged 233. He that the continued actions 55, to R.S. suant 96, 97, 57, 95, of the defendants the manner described and 233 or unconsti- petition, irreparable -tutionally in his would cause in- assumed or other al- jury similarly authority. taxpayers to him and other leged situated. He further stated that was he Reily, Honorable “To: S. James attaching exhibits which would illustrate Administration, en- Commissioner specific unlawful and unconstitutional acts restraining joining, prohibiting said prayed Plaintiff defendants. exercising attempt- from or defendant defendants, officers, agents, em- any of the ing to exercise functions at- counsel, ployees, any persons in active tempted delegáted to him or his participation them, concert be en- officers, employees agents, and coun- joined taking action whatsoever persons those! in active sel con- and/or alleged provi- under unconstitutional participation with him cert sions. alleged contained in Sec- 4, 5, 7, 8, 9 and tions 11 of plaintiff’s In answer to petition, defendant Regular Session of the Loui- appearing through Tugwell, P. F. Gre- Jack Legislature siana of 1962 million, Attorney R.S. General State of and/or 39:42, 52, 53, 55, 56, 57, 96, 97, Louisiana, counsel, and other averred in part: ' “ * * * respondent your avers that injunctions “That not these issue respondent as only defendants, Treasurer of the to their State of but as well officers, has honored Louisiana warrants drawn agents, employees and counsel Treasury by the State persons on the State those in active concert Comptroller in capacity, his ministerial participation with them. junctions issue in substance as to prayed for hereinabove.” . % “That [*] due course [*] preliminary injunctions n [*] same form and permanent [*] [*] in- less inafter set cases where there Court. and will continue to do so until or un- he Except enjoined forth, or a *4 may the instances here- specific not be a except this Honorable sum in those specific to a constitutionality of designated attacked the agency, Plaintiff official or this said 3, 4, 5, 6, 7, 8, Sections 9 and 11 Act 75 respondent has and continue to will Act, Appropriations the General honor upon warrants drawn the Treas- concluded with Tugwell ury by Comptroller, the ex- Defendant said plaintiff’s ceptions as suit. particularly designated prayer for dismissal follows: Theriot, appearing also Defendant
Hi [*] Hi ^ ^ through the Attorney General and other counsel, plaintiff’s petition, answered aver- respondent “Your is a member of part: ring in Budget State Committee created “ * * * 17:88, respondent your of R.S. the functions avers that clearly Comptroller respondent, which said Board are set of the State Louisiana, forth in performance the said Section Revised of his part required Statutes of which is made a to honor ministerial duties reference, by hereof of funds warrants for withdrawal honor your respondent tions have been made without due school certain school directives and the said as illustrated made a been Hi “That Division of Administration and properly payment boards part budgets despite Hi hereof, regard identified. proclamations boards, H< throughout the fact that pursuant has the attached exhibits Budget each which has been Hi dependent to R.S. adoption required to Committee, appropria- Hi issued parish 17:88, State, upon Hi by by agency appropriations have been definite less has and will continue to honor warrants such to lature from the State when drawn funds. “That [******] constitutionality your enjoined by conditions or have approved by upon purpose and pursuant presume been official the State use of Treasury, where imposed by this and it is contingencies which the Division of Ad- constitutionality of said Honorable said Treasury, only respondent un- appropriated made for his assumption particular duty as specific Legis- Court He Hi [*] ^ Hi Hi ministration and the State Committee, in Act provided all as respondent in “That' his official ca- upon contingen- 75 of pacity performance and in the of his particular cies set forth in the Sections required ministerial duties is assume of Title 39 of the Revised Statutes constitutionality acts, legislative particular- 1950 which are set forth abide he will continue to the same ity petition filed herein. respects in all until unless he is re- ‘ * * * Hi * * strained Court.” Honorable *5 them, did he but that sought restrict respondent received to has your “That defendant party not make the Committee proclamations directives and numerous as he have done. should to him under issued the said said Sections Act 75 Gremillion, Attorney General P. F. Jack 39, had provisions have which Title Louisiana, and certain of the State of prohibiting him the effect of Assistants, appearance an his made money be to honoring warrants views, which the matter and submitted their Treasury on the State withdrawn from quote part as follows: we 75, said act, which agrees Attorney “THAT General practices respondent will continue plaintiff’s that those with contention enjoined follow unless restrained of 1962 of Act Number 75 Sections Court, all as shown this Honorable plaintiff’s petition are enumerated in ” * * * properly identified exhibits unconstitutional because constitute plain- prayed that contingencies upon Defendant Theriot also impinge Act, be Appropriations tiff’s suit dismissed. all of General manifestly repugnant Arti- which are excep- Reily Defendant filed S. James 9 and the Louisi- cle Sections right cause of action and tions of no [LSA], ana Constitution of interest, and, alternatively, excep- want of non-joinder par- vagueness and tions of plaintiff’s petition.
ties defendant Attorney agrees “THAT the General plaintiff’s contention that those plaintiff Reily alleged Defendant that certain Sections of Title 39 enumerated capacity sued in his as a citizen and tax- petition plaintiff’s are unconstitu- payer, enjoin illegal not an delegation leg- as an unlawful tional right public had the funds which he authority and being islative function State, but jurisprudence under the of this do manifestly repugnant and violative of enjoin fiscal certain enforcement of 1 and 2 of Article 2 of the Sections admin- safeguards provided by statute and Constitution and as Louisiana therewith. rulings istrative in connection 1 of well, Article Section said Con- without suf- urged plaintiff He that was stitution.” bring action. ficient interest to Attorney his said that General and As- Reily Said Defendant contended further response prayed plaintiff sistants complained activities compliance with law and that deemed in full Louisiana prayed plaintiff granted liminary injunction for in relief for which he writs of prayed. plaintiff’s petition to be issued were granted, upon in the sum plaintiff bond furnishing Reily Defendant filed motion to strike over- exceptions All filed were of $500.00. “Appearance” the entire document entitled ruled. Attorney filed General his As- Court, sistants, averring “Appearance” appeal said In their to this defendants *6 lawsuit; was an specification defense a of insufficient set the forth following opinions that the of referred were to therein errors: judicial significance.
no overruling “1. The trial erred court exceptions exceptions trial The court overruled the the IN- of OF WANT right action, TEREST, of no in- cause of want of CAUSE OR NO terest, defendant, ACTION, non-joinder parties of RIGHT NON- OF vagueness; was PROPER PAR- the motion strike OF JOINDER taken under advisement. nisi was TIES The rule DEFENDANT. sup- upon
then heard pleadings, verified “2. The finding trial court erred in as affidavits, of porting testimony the a matter law that certain sec- of parties the immediate to the suit. tions of of the Title Revised 39 certain sections of judgment The decreed Statutes and of the trial court 7, 8, Appropriations 3, 4, 6, of Act the General Act 5, that 11 Sections 9 and 1962, 75) Appropriations (Act 1962 were unconstitu- 75 the General tional.” Legislature, the unconstitu- were 1962 tional; it that further decreed 97,
39:42, 52, 56, 57, 95, 96, Budget 231 53, 54, 55, Legislative The Committee 1962;1 pre- The 233, was created Act 368 unconstitutional. were expired same as 1. Com term manner “Section 1. The appointment. original hereby The Committee is mittee created. The Committee composed a and a Gov select chairman vice-chair- shall be of the Lieutenant Rep ernor, Speaker officers as and such other the Com- of the House man necessary. membership eight resentatives, The deems members from mittee Representatives receive the same of the of the Committee shall of the House of Legislature per allowance in from diem travel Louisiana and five pro- Leg performance membership as of their duties of the Senate of Legislature. Louisiana, appointed for members of the islature of vided duty 2. It shall be “Section the Governor for terms concurrent study own, Ap make ex- his Committee and the Chairman of the pertaining propriations of matters to the House of amination revenues, budgeting Representatives of state funds and Chairman of the vacancy, fiscal affairs Senate Finance Committee. A any cause, as it deems desirable. The Com- un- state filled for the 352 taxpayer unjustly wise affect his included the Act are provisions of 1950, X of Part property. taxpayer’s as Revised The fact Statutes of Public Chapter treating the section 1 of might susceptible and not interest be small Administration, LSA- Finance, Division of of accurate determination is not sufficient to 313, 39:311, 312, 314, The Com- 315. R.S. deprive right. action him constituted, juris.2 mittee, sui is not as thus public regarded as a character and having neces- circumstances, it not Under was these public proceeding a as being therefore, sary, the Committee ” * * * complains. In v. Board Carso The trial party named as a defendant. 368, 358, Liquidation, we 17 So.2d La. exception of properly court overruled “ * ** stated, it is now settled several non-joinder proper parties defendant. taxpay decisions this court that recent Stanley, La. 5 So. v. In Stewart such, enjoin er, right of action to has firmly es that, 2d we held “It is dispos agency or state from a state official that a jurisprudence tablished State ing public funds authority to taxpayer may judicial resort taxpayer which the contends is statute transcending public restrain servants ” * * * See, Graham unconstitutional. legal powers their lawful or violating 761; Jones, La. Ricks v. 3 So.2d would duty in unauthorized mode which Close, La. So.2d or other- increase the of taxation v. burden *7 necessary personnel ieal, (cid:127) and other and to work with the Office of the mittee shall necessary expenses other for car- incur and the Division of Administra- Governor rying provisions preparation budg- out the of this Act. tion in the of the state boards, agencies, presented Legislature 5. All of the to be the for “Section et to departments regular of commissions and the state at sessions. its consideration its any political findings reports of of its subdivisions are and hereby It shall make such of its regard directed to assist the Committee there- and recommendations with Legislature work and to furnish such informa- deem in its to to as it shall the aid, tion, reports, services and assistance advisable. any requested, all without as cost The shall have “Section 3. Committee any charge authority hearings, power of nature to the or Commit- and to hold the subpoena witnesses, quire oaths, re- administer tee. parts production 6. All of records “Section laws or laws of books and hereby repealed.” things necessary herewith are in conflict and accomplish do all other Act, 3605, part purposes in- 2. Art. reads in as of this LSA-C.C.P. * * * contempt granting cluding power punish “An order follows: preliminary a * * * * * * injunction prosecution provide in ac- and to for the against parties of be effective re- with the laws of this state cordance * ** testify persons and those in who or strained individual refuses to participation charged swearing or or active concert with them with false who * * Also, prayer plaintiff’s perjury see the Committee. before supra. petition, 4. have “Section The Committee shall employ professional, eler- 353 in
Schedule 75 of one twenty days hundred after the Appropriations General Act of year; the 1962 close provided, of the fiscal appropriates $60,000.00 Legislature, appro- for the unencumbered balances operation priations the Legislative Budget Com made under this Act which mittee; Schedule ap the same Act remain as of 1963 shall be June propriates $320,046.00 operation deposited in the fund which the from Both, appropriation the Division of Administration. is made to the account of twenty the Di said fund within one hundred Administration, partici days year vision after are active the close of the fiscal pants 1962-1963, receipts in directly carrying into effect of the col- provisions plaintiff year lected in July the laws con the fiscal appro through tends unconstitutional; receipts are except funds June priated, supra, itndoubtedly colleges would state be em trade schools ployed part supervision in under the operations. Under the Louisiana herein, circumstances plaintiff, tax State Board Education herein- payer provided, after part who the extent un- contributes of the funds said receipts involved —no matter infinitesimal —has encumbered balances and how subject appropriation. definite interest he can Nothing assert this cause. provisions judge properly The trial shall in therefore the foregoing deposit overruled exceptions way require the fund of want of interest right no appropriations cause of action. which said any legal made of reserves We will now consider the constitutional- required by sums to maintained law ity vel non of the contested sections Act provided departments of 1962 the Revised Statutes. agencies. said balances The transfer of provisions receipts required The sections of Act 1962 herein 75 of au- expressly is herein Section provide: involved Legis- by the thorized and directed “Section 3. made lature.” payable in this Act out operating agencies All specified, “Section on con- only sources but partly deposited partly on dedicated funds dition that there shall be herein appro- an *8 the state funds the from from re- priations Fund shall of from General are made the account the State to mit Fund said the State General funds all unencumbered balances each surplus at the close of cash hand on 1962 with- available on of June impaired or will be being dedicated the unit year after applying fiscal however, without such transfers.” receipts; the maximum the State General remittances to such appropriations here- “Section 6. The total amount not exceed the Fund shall in contained shall become available from General withdrawn the State ex- budget units month the the each year.” during Fund fiscal tent of allot- quarterly one-third of expenditures “Section 5. The total made on the basis ments for which departments agencies approved by the annual allotments made herein and the of Administration Commissioner money spend obligations incurring of Budget concurred in the Governor’s as to allotments are es- shall conform Committee, Study or its successor. Budget tablished Governor’s Commissioner Administration Committee, Successor, Study or its provided the consent in Section 5 approved by the Ad- Commissioner Comptroller ap- authorize State ministration Commissioner prove Treasur- and authorize the State ap- shall establish Administration pay unit an er to amount only prove ap- such allotments after quarterly greater than one-third of proval Study Budget Governor’s month, if the best allotment one Committee, or successor. To the its interest will served State operation efficient extent thereby.” impaired, units not be will various money paid “Section All into expended by to be each the amounts Treasury from Federal State subven- strictly unit to the cate- shall conform bequests or grants and all tions specified gory as earnings from trust funds shall be approved Commis- allotments deemed to be available for however, Administration; sioner of beyond appropriated, with- sums herein of Administration with Commissioner specific appropriations out and consent the Gover- advice insofar the ac- authorization thereof Study its nor’s subventions, ceptance grants, of such successor, approve is authorized bequests and is authorized trust funds category funds from one transfer however, provided, by law; that before another, expenditure to but subventions, grants, be- only when, any of approve such transfers quests, funds pre- earnings opinion, trust sufficient evidence is operations for allotment deemed available to them sented *9 expenditure, and opera- agencies whose conformity in with the law and the tions be provisions Act; will effected such by provided, subven- of this how- tions, bequests grants, earnings ever, or special appropriation that no trust funds shall submit to the Division Legislature made at this session of the listing of Administration showing preference shall priority have and over purpose pur- their source and the or any of general ap- the items in this poses for which such funds are to be propriation bill.” used.” If, “Section 11. at during time “Section If of the functions year, fiscal governor finds that the departments agencies and here- receipts treasury falling appropriated in for are transferred to short of the estimates for the then cur- department agency, different or or de- quarter that, rent and reason of partments agencies, appropria- conditions, other unforeseen a cash tions herein made shall follow the likely deficit is to be incurred under the activity function In so transferred. expenditure pursuant to allotments then such case the Commissioner of Admin- force, in he shall review the estimates provided istration with the consent and pur- he shall examine in detail the Section 5 shall ascertain amounts posed expenditures under the allot- appropriations of such trans- be force, ments in and he shall recom- notify ferred and shall the Treasurer agency mend to the a revision of the Comptroller transfers, of such allotments force the extent that such notification shall be deemed full committed, already are not for transfers to be made otherwise, contracts may as he see Comptroller.” Treasurer bring expenditures fit to within the
“Section 9. No shall amount of estimated available pursuant except period.” made to this Act in ac- cash resources of the cordance with allotments The sections of the Revised Statutes Commissioner of The Administration. provide: herein involved departments “Adoption 39:42. of financial LSA-R.S. agencies for which plan incurring obliga- made herein and spend money presented tions to plan shall conform “The financial with such allotments budget adopted as are established executive shall by the Commissioner of Administration such amendments as be determined provided and the legislature. legislature consent in Section 5 programs 39 :53. “Work pass reve- such acts, requests for allotments acts nue necessary may deem legislature day than “Not later the first of each plan financial effective. make the budget quarter, the head of each unit by the plan adopted “The financial so spending agency state by the legislature shall be evidenced present budget office on the year, prepared state prescribed, forms and in manner *10 provisions this accordance with the requests provided in for allotments as appro- Chapter. The several amounts this Section. priated shall be made available requests “The for allotments shall budg- quarterly made allotments budget, except as conform to the state for ex- budget units et office made neces- deviations therefrom are penditure.” sary by changes opera- in conditions “Quarterly allotments 39:52. tion, circumstances, to meet unforeseen errors.” to correct “Appropriations shall be made avail- “Quarterly LSA-R.S. 39:54. review budget to the units allotments able budget al- estimates authorizations quarters year, for fiscal these al- each lotments shall made on the basis of lotments shall, prior budget to the “The office requests allot- programs and for work quarter day first fiscal of each prepared heads ments year: units, budget and no allotments several made available to them until shall be “(1) progress col- Review requests have programs
the work revenues, lection consider condi- approved by the commissioner. been treasury, tion forecast the re- promptly no- commissioner The ceipts treasury for next en- budget con- tify head of the unit suing quarter, and total estimate regarding each allotment cerned period cash that will resources proposed revision or modification each expenditures. be available for provisions of made under thereof “(2) probable Chapter, the end that harmoni- Estimate the cash re- quirements adjustments where for be made made ous period, by necessary.” categories as follows: on, "(a) confirmed, For interest and retirement revised or made under the of, maturing funded and debt floating preceding preced- category or all the.- during period. payable ing categories, promo- with a view tion of spending economical and to “(b) meeting obligations For keeping the total of all the allotments already under accrue contracts quarter for the within the amount capital outlay projects pro- and for the available cash resources of the viding for such additional extraordi- avoiding quarter, and incurrence of nary capital outlays expenses and cash deficit. necessary inaugurate or continue “(4) allotments, Make or confirm or espe- projects are deemed to be made, revise previously allotments cially urgent. unexpended bal- ordinary expenses recurring for each ances of commitments contracts quarter succeeding year, the fiscal quarter the then current extraordinary and for each expense added to the allotments for the next capital outlay project for each quarter. ensuing quarter year succeeding pur- until the ordinary “(c) expens- For recurring pose project completed, or the previously for which allotments have es equipment or property has been been made and additions to the allot- acquired.” proposed ments units. LSA-R.S. 39:55. “Revisions of allot- *11 extraordinary “(d) For further ex- quarter during ments prevent a def- penses capital outlays not covered icit category. preceding second “If, any at time during year, a fiscal “(3) governor any receipts or finds that Confirm revise allot- treasury previously any falling ments made and make short of the estimates quarter for the then additional allotments the next en- current for that, suing quarter reason of under each the cate- other unforeseen conditions, gories preceding likely cash deficit listed under the next to be expenditure sub-section. The allotments of each incurred under the pur- category separately, force, shall be dealt with allotments then in suant to he in succession. case each In the review the shall estimates he shall first, category proposed after the shall expend- action examine in detail the upon be based force, consideration of the es- itures under the allotments timated cash resources available after he shall recommend agency to the- allowing already for the allotments a revision of the allotments in force therefor, or already amount not the extent or
committed, contracts other- contemplated that the work will “(2) Chapter, with this accordance wise in purpose for insufficient for be expend- bring the fit to may see he made, were the esti- amount itures within resources cash
mated available “(3) providing after debt period.” ordinary recurring and for the service capital expenses outlays, cash will cap- “Authorization 39:56. LSA-R.S. treasury pay not available be outlays ital promptly the work.” no commenced “No shall be work for the into entered contract gov- 39:57. “Allotments LSA-R.S. construc- or the improvement of lands expenditures; transfers of allotments ern alteration, reconstruction tion, budg'et unit “The head shall structure, in- building any quarterly hold expenditure the state from volving an obligations In no allotment. case not- appropriation, any treasury under expenditures made in be incurred or therefor, withstanding any allotment excess the total amount allotted. funds expenditure except from one “Transfers allotments the con- constitution dedicated only category to another shall made high- maintenance struction approval upon governor or the state, plans and way system of the until commissioner administration.” cost, and specifications, estimates of 39:95. “Commitments ex- received, the entire covering the bids approved of allotments not to be cess proposed contemplated, and the work undertaking of the contract, or the any “In no the head of event shall author- work, approved and been has unit, himself or either governor. governor by the ized any through designated assistant approve nor authorize not so him, approve any voucher commitment undertaking of the contract, nor sum in involving an finds, he work, in which any case balance excess of the unencumbered plans, specifications, esti- resulting ex- to which the the allotment therefor, mates, or other- the bids charged, without penditure would wise; governor.” prior approval of the *12 grant may complete :96. “Governor the cost of the LSA-R.S.
“(1) that in certain cases special contemplated will exceed work may special governor grant propriations “The au- expenses of the next thority, any year, during year fiscal for mak- ensuing beginning fiscal until the ing specific purchases supplies year.” or materials to be in next used en- 39:97. “Conditions under year unit, any budget fiscal suing for public money may which be withdrawn contracts in or he authorize an- treasury from the ticipation appropriations already money “A. No of the state or for made, or to be made for the next en- responsible which the state is year suing purposes any fiscal for au- treasury withdrawn from the or other- law; by existing an thorized but not purpose any except wise disbursed for any exceeding amount that neces- for pay obligations sary requirements sup- to meet the for by appropriation, authorized either ded- plies expenses capital other than ication of revenues other au- lawful outlay projects for the first three thority pursuant to allotment as in year; pro- months the next fiscal Chapter provided and not in ex- ap- vided that this restriction shall not ; cess of the amount so authorized capital ply outlay proj- contracts for which ects for have “B. Each such provided obligations been for to be in- been have authorized the head years. curred two more fiscal expen- the unit for necessary place it Where orders diture was made. supplies, equipment for materials and provisions “C. The of this Section period beyond months, three shall not apply be construed to to with- order to be assured of deliveries to drawals of funds from state de- agencies the needs of state meet and to pository" redeposit bank for immediate prices, due obtain favorable to seasonal depository state bank
supply and demand as established law, provided by investment as for re- trades, particular usages of the error, paid fund of deposits taxes specific cases shall be submitted vendor and similar disburse- upon governor approval, ments, or expenses reimbursements of approval purchases may be made for representing fund; restoration of the requirements beyond the three months. provisions apply nor to insur- Payments made at the close of a fiscal ance recoveries where the insurance year authority shall be under such recovery replacement is used for (cid:127) charges ap- property destroyed.” treated as deferred to the *13 368 367 to the condition and certificate as “Commissioner 39:231. petty Payment of' the cash. in governing traveling ex- reim- rules prescribe petty bursement cash shall in be penses prescribed the form and manner commissioner, ap- with the “The payments Chapter other under this prescribe governor, shall proval of the approved the-amount of the total of the defining the conditions rules payment vouchers. The shall be made of trans- forms each of various petty cash the custodian of the and officers portation may used state be shall be devoted to reimbursement by them employees and and used Any question thereof. relative to the re- discharge of the duties of cash, petty amount to be allowed spective positions offices thereof, expenditures accounting define and he shall state service therefor, thereof, payment shall will allowances conditions under which be determined the commissioner of of trav- granted for all other classes be Petty administration. cash advanced expenses maximum eling and the any fund be carried on shall expenses of each amount allowable books of the state as an asset general class.” fund.” of the “Petty cash LSA-R.S. 39:233. plaintiff’s judge The trial sustained at- may granted
“Any budget unit
be
cash,
by ap-
petty
provided for
quoted
when
on the above
sections of
tack
Act
allotment,
propriation
pur-
for the
of Title
39
the Revised
pose making
requir-
disbursements
and held :
Statutes
prompt
outlay,
ing
cash
but not
The sections of Act 75 of
“1.
twenty-five
dol-
case to exceed
hundred
IV,
-9,
violate Article
Section
Loui-
lars,
cash,
petty
The custodian of the
siana
in that
Constitution of
necessary
as often as
to re-
incorporate
Appro-
into the General
plenish
petty
cash and at least once
priations
other
Act of
matters
month,
prepare
each
shall
a schedule of
appropriations.3
than
accom-
the disbursements therefrom
panied by appropriate
“2. The
sections of both
contested
vouchers
therefor,
Act and
re-
statements of
indebtedness
the Revised Statutes
gee.
schools,
public
thereon,
public
IV,
1921, pro-
3. Art.
La.Const. of
terest
gtate
roads, public
general
bill
and all
in-
vides:
charities
“The
stitutions;
nothing
appropriations
item-
shall
and such bill shall be so
embrace
but
ordinary
govern-
expenses
each
ized as to show for what account
for the
ment,
every appropriation
public
pensions,
in-
shall be made.
debt and
legislative powers to the Commissioner
the constitutional
functions of
strict
Legisla-
officers.
State
of Administration and to
in violation
tive
“3. The contested sections
of 1921.4
the Louisiana Constitution
delegate
the Revised Statutes
by law.”
prescribed
All
manner
shall
appropriations
be made
embracing
La.Const.
IV,
Art.
Sec.
separate
each
but one
bills,
object.”
20, provides
V,
Article
Section
avers in brief:
“The creation
Appellee
Legislature
make
system
of a
monthly
allotments
expenses
and other
the clerical
subject
to the
approval
Treasurer,
Auditor,
offices of the
*14
Legislative Budget
the
the
Committee
and
Register
of the
the
Secretary
of State,
Commissioner
of Administration
is not a
Agricul-
Office,
Land
Commissioner
subject
in the
proper
incorporation
Immigration,
the Commissioner
and
ture
Appropriations
General
Act. Under Arti-
De-
and the Insurance
Conservation,
4,
cle
Section
is a
which
9,
it
matter
partment.
subject
sepa-
should have been the
of a
argued:
“In
is
brief,
In
it
appellee’s
rate
and
act,
is, therefore,
it
unconstitu-
legislation
attack
bar,
case at
tional.”
surrender
complete
constitutes
government
4.
powers
“The
of the
Legislature
of Ad-
to the Commissioner
State of Louisiana
divided
into
Budget
and the
ministration
legislative,
departments
three
distinct
Legis-
—
control of the
Committee
judicial.”
executive,
1,
Art.
Sec.
II,
appropriating
over
the matter
lature
La.Const.
of 1921.
pur-
revenue
to the several
the State’s
“No
of these departments,
one
nor
in
Constitution.
Sec-
poses permitted
holding
person
or collection
of persons
1962 appropri-
of Act 75 of
tions
of them,
office
one
shall exercise power
agen-
specified
sums to
state
specific
ate
belonging
properly
others,
to either of the
remaining
sections
but
cies,
except
in the instances
hereinafter
ex-
contested sections of Title 39
act and the
pressly
permitted.”
directed or
II,
Art.
agencies may not ob-
these
provide
See.
La.Const.
of 1921.
2,
ob-
without
first
appropriations
their
tain
legislative power
“The
of the State shall
taining
of Ad-
from the Commissioner
Legislature,
vested in a
be
which shall
Budget
and the
Committee
ministration
consist of a Senate and a
of Rep-
House
the use to which the
approval
Art. Ill,
1,
resentatives.”
Sec.
La.Const.
put.
is to be
Under
appropriation
of 1921.
Legisla-
legislation
herein,
attacked
raising
“All bills
revenue or appro-
‘ceiling’
only a
determined
or
ture has
priating
originate
money
shall
agency’s
for a state
ap-
amount
maximum
House of
but
Representatives,
Senate
subsequently
the Commis-
propriation;
may propose
concur
amendments,
and the
of Administration
sioner
as in other bills.” Art.
Sec.
La.
Ill,
22,
the use to
determine
which
Committee
Const, of 1921.
put by
may be
appropriation
agency
in the event
the Commis-
money
“No
shall be drawn from the
disapproves
cer-
treasury
or the
except
pursuance
specific
sioner
agency’s proposed
expendi-
tain of
appropriation
by law;
nor
in the ‘unallotted
them
places
tures
money
be made
appropriation
category,’
longer
regular
in a reduc-
action results
years.
term
two
A
than
agency’s
appropriation.
tion
receipts
statement
and account
moneys
of all
(cid:127)expenditures
public
months,
published every
be
three
in such
IV,
9,
Section
of the Louisiana
“4. The contested sections of
Constitu-
Act and
tion
1921.
of the Revised Statutes have
making appropriations
the effect of
deciding
“In
whether a statute of the
IV,
contingent in violation
Article
Legislature violates a constitutional
Section
Louisiana Constitution of
provision
prohibits
an act from
1921.”
embracing
than
object,
more
one
courts
keep
must
purpose
mind its’main
reading
A close
of the sections
language.
disclosed
its
It matters
of Act 75 of
herein
con
involved
comprehensive
not how
the act
vinces us that
not contain matter
do
provisions;
or how numerous its
it
foreign
appropriations.
purpose
does not
such a
violate
constitutional
Section 9 of Article
IV the Constitution
prohibition
language,
if its
reasonably
prevent
incumbering
general
is to
construed, shows that
it has but one
appro
bill with all kinds of
main, general object
purpose,
and if
priations,
it,
thereby
simplifying
thus
nothing
except
is written into it
what
reducing the
making
naturally
with,
chances of
ill-con
connected
inci
to,
germane
dental or
purpose
the one
sidered
in the confusion that
object.”
Close,
Wall v.
203 La.
might
arise,
preventing
otherwise
See,
14 So.2d
Guidry,
State v.
retarding
by protracted
of the bill
discus
142 La.
"1. The various units of the “5. After requests Appropriations the General State submit for their money law, year Act becomes con- taking for the into ensuing fiscal might sideration Legislative the items which Com- prior according to mittee the have been vetoed the meeting law, for Legislature. the various know agencies money the first time the amount of “2. The Budget Committee will them be available to and the Division Administra- expenditure during for en- the study requests many tion year. suing money, probable revenues which will be for ex- then budget agencies available “6. The various penditure during year prepare budget showing how money propose spend make recommendations to the Di- budget Governor. and submit that vision Administration and The Governor then submits “3. Legislative Budget Committee message budget Legislature approval. money in which he outlines the expected during budget approved, to be available “7. Once pur- year moneys he believes amount are made available agency each should receive. suant to allotment.
n “4. The considers Legislature quar- then are made “Allotments available and after programs basis terly recommendation on the work con- adjustments prepared as it
making requests allotments budg- necessary budget not a units. siders enacts LSA- the heads et, Appropriations quarterly allotment but a General R.S. 39:52. administration “The commissioner administration “The commissioner required supervision shall, governor, staff services shall render the activities of the division of functions of his office direct connection governor advise and assist and such other subdivi- administration legislature gov- committees of the thereof as are created and the sions ap- matters.” The commissioner consideration ernor. pleasure pointed 39:6. serve at the LSA-R.S. ”* * * governor. furnishes bond in the The commissioner upon $50,000.00 conditioned sum 39:5. performance of duties. 'faithful his *16 37$ paid meetings thirds. commission.” LSA- Sec. Throughout Act R.S. 39:291. statutes herein involved there budget appeals “The commission provisions emergencies providing for shall, requested by Governor, when agencies. of budget and extra needs actively preparation him in assist approved by “If an allotment is not budget the executive for submission to Legislative Budget legislature required law, by as the Commissioner Administration purpose, for this it shall meet any quarter, fiscal funds can be during capitol state at such times as the Gov- an transferred to unallotted fund. The may ernor or Governor-elect direct. budget permitted to re- agency is later The commission shall also meet on call quest a withdrawal the unallotted any appeals budget act on as fund. budget filed the various units as provided in R.S. 39:293.”' LSA-R.S. Comptroller approves “The State 39:292. allotments; drawn for the warrants paid Treasurer. State right appeal “A ap- the budget peals hereby commission is to- granted ag- “8. any agency If feels unit, any budget 39:2, defined in R.S. grieved by disapproval its a aggrieved case which it feels quarterly request, it is allotment the action or of Governor granted appeal. an budget officein approving disapprov- hereby ing “There budg- a quarterly budgets established submitted appeals commission, operation et them for the consisting respec- of their Governor, appro- the chairman tive units. head the budget unit priations committee the house of concerned shall file Governor representatives, the fi- request chairman of written before hearing senate, commission, nance committee of the shall, and the Governor speaker representatives thereafter, the house of days within five set date and the Lieutenant Governor. The notify for the hearing and the members commission, members commission serve who meet on except compensation without those who specified. date The decision of the legislature are members of the ap- who commission matters twenty per peal shall receive dollars diem parties, on binding all expenses attending and travel subject rights while action *17 378 377 368, Debt, 17 Liquidation of 205 La. State L provided law.” review judicial 358, 363. So.2d SA-R.S. 39:293. provid- system government “Under our of judicial re-
“Subject rights the of to powers of between 39:293, a distribution if the ing in provided as R.S. view judicial vote, de- legislative, the executive commission, holds by majority importance ap- partments, it is vital the of presenting unit in favor unduly department interfere with or no one shall order peal, the commission then department the con- hinder while budget to unit to amend its the assuming act within the acting latter is to findings the commission. to the of form scope particular powers reserved to then be the amended of This v. approval it.” Furniture transmitted, Durrett Hardware & Co. with the written 911, 329, commission, City Monroe, Auditor of to the State La. 5 So.2d 199 gov- A.L.R. Comptroller] who 140 433. [now thereby of war- drawing erned money expenditure
rants for
of
however, may
Legislature,
The
commission
provided by
If the
as
law.
delegate to the
boards
administrative
appeal, it shall
not concur
does
agencies
power
author
of the state
of its action
notice
transmit written
ity
determining
ascertaining
then be
who shall
Auditor
State
applied
upon
facts
which the laws are to
thereby in the drawing
governed
Guidry, 142 La.
State v.
enforced.
money
expenditure
for the
warrants
tendency of
422,
The modern
istrative bodies or officers absolute control Legislature has complexity of laws tate administration except as State finances over conditions governmental economic provisions. Wall constitutional limited Bank Commerce increases. National 345, 19; Art. Close, 14 So.2d 203 La. v. etc., Sup’rs, 206 New Board Orleans v. 1921, supra. 22, III, La.Const. Sec. Morgan, 913, v. La. 20 264. Cf. State So.2d 682; v. Patorno La. So.2d 238 116 appropriating of State’s “That etc., Safety, La. Department 226 Public fundamen- function is legislative funds is 534; Louisiana Feinblum 76 So.2d v. jurisprudence recognized in the It is so tal. Examiners, La. Optometry State Board of by all of law States Board App., v. So.2d 657. subject.” Carso on writers Maestri, (Mouledoux in the contested laws Nowhere sections La. v. 11), or the help Act 75 Revised Statutes cannot remark So.2d but but we right appropriate agree excerpt following do find that that we we with appellants either the on granted Page funds brief 24: —“The Budget orderly or the need for expenditure Commissioner and some Administration; we do not find sur system of control is obvious. the first In appro Legislature’s right place, render of the than more 497 million dollars finances of the priate or control the appropriated by funds not im- 75 of 1962 is brief, aptly p. Appellants mediately state State. available of Admin treasury “Neither Commissioner irregular on comes into the a most Officer, istration, nor the nor will guarantee basis no that revenues *18 * * * appropriates money Legislative appropriated. equal Committee the amount any agency; none of them can increase imperative to expenditures the it is that money ap amount of decrease the so plan or insures according made to a which they may any agency; only propriated to properly financed programs that such will be quarterly budget allot the examine period the through tlie entire covered that the conform ments see new appropriation. controls not These requirements Leg established the supra. to the Close, and radical.” Cf. v.Wall Appropriations Act the islature the pass now a determination of the We find the con We that Statutes.” Revised judge trial finding correctness the the of of system an orderly contain tested sections Act that the contested sections of the relation with accounting controls of of in violation the Revised Statutes are of Legislature appropriated by the the monies IV, Louisiana Article Section of restraints to consti aids than with rather of the effect and have Constitution of appeal, supra, right of tutional officers. appropriations to the making various use any or safeguard excess granted is agencies contingent. We might occur. abuse of unlawful no there has been conclude that IV, Article Louisiana Section authority nor re legislative delegation of Constitution of recites: constitutional of functions striction of appropriation “Each be for shall officers. specific specific purpose, and for amount, right appropriation to review the have no and no We our policy legislation, because of con- or under the head title wisdom or tingent depart- jurisdiction ; any determining nor officer or is confined constitutionality any applicability, legality government ment receive appropriation amount treasury dependent upon from for contin- the will of gencies contingent fund.” Commissioner Administration and Legislative Budget Committee. As Initially, pertinent it to state that an supra, pro- stated the controversial sections examination of Act 1962 reveals system vide a accounting controls it contains no under the head moneys appropriated by with relation to the or title “contingent.”6 no There are the Legislature. The Ad- Commissioner of provisions in the Act that officer Legislative Budget ministration and the department government shall receive can Committee neither increase nor de- treasury contingencies amount money appropriated crease the amount contingent or for a fund. Sections 1 year any particular agency; 1962 set forth the dollar appropriations amounts appropriations ap- to the various allocate quarterly budget agencies; the contested sections prove the for which the funds are items appro- themselves make no allocations or spent. any budget agency ag- If feels priations ; object has been purpose grieved the action of the supra. set forth and the Commissioner Administration, remedy to secure appellee’s do agree We not alleged necessary relief in such a case is to argument to the appellate utilize procedures set forth budget agencies subject various to the :291-39:294, supra. If event, namely, occurrence of an uncertain alleged necessary granted is not relief approval of Ad Commissioner Budget Appeals Commission, ag- Legislative Budget ministration and the *19 Committee; grieved budget agency may then resort to we find no merit in his conten agency’s tion that an its full receiving the courts. p. Contingent, 182, may although prudent happen,
6.
In 17 C.J.S.
know
we find
men
following:
may
necessarily
the
pendent
“CONTINGENT.
De
there
not
be known in-
something
may
apparent;
may
for effect on
that
of it
be em-
dications
occur,
possi
ployed
presaging
or
not
on a foreseen
existence of
bility,
liability
or on
will
that which is undetermined
tentative
which
become abso-
unknown;
existing
occurring
happening
or
not
or
of a certain
lute on the
event.
necessity;
through
possible
synonymous
liable,
‘Contingent’
has been held
but
occur;
certain,
falling
‘provisional,’
not
ing by chance,
also
and has been
or com
with
with,
contrasted
design
distinguished from,
expec
see
without
‘absolute’
p.
52, ‘certain,’
tation.
It has been said
1 C.J.S.
374 note
that
the word
Absolute
futurity
‘indirectly,’
implies
possibility,
‘incidental,’
‘per-
expresses
‘known.’
”
quality
being casual,
See,
&
Chandler
Chandler v.
and includes
manent.’
La.App.,
anticipated
City
Shreveport,
future
occur, possibilities
events
from the accomplished, said, by This is it is law. the State. specific appropriations of approve by disap- IV, appro- or to their to 1). And each (La.Const. art. § prove specific purpose programs and priation a work and for the be approval appropriation budget no The specific a and units. for amount various title of their head or which is to results from under the referred shall be made of programs “allotting” the contingent. funds for work disapproval is budget and the units the from these constitutional understand I place they certain items manifested when law, ap enactments, paramount that the our approved leg- already the by exclusively propriation public funds is category, there- islature in the “unallotted” au legislature; and that a function of the by the appropriation the reducing con thority responsibility having been approved the legislature previously has stitutionally imposed, delegated to cannot be placed budget unit. Until the funds affected authority. Tichenor any body or are released category unallotted Antiseptic Schwegmann Giant v. Bros. Co. expendi- they are unavailable therefrom 51, Markets, Super So.2d 343 231 La. 90 they unit; if remain ture a City v. Alexandria of Alexandria (1956); year, at the end fiscal unallotted 754, Ass’n, Fighters La. 57 So.2d Fire 220 general State’s these funds remain the Liquidation, (1952); Board 673 Carso v. fund. 368, (1944); La. So.2d State 17 358 205 Watkins, ; (1933) La. So. 8 v. 176 147 reading of the is self-evident from It State, So. approval Carter v. La.Ann. legislation the contested that (1890). Budget Committee Commissioner any payment prerequisite for the to is a propositions foregoing to consider I money appropriated budget unit of indisputable and their conceded be wisdom it denied that legislature. it Can be liberty. who cherish all are appropriations in Act 75 of 1962 it all; for is at fact no leg- that the contested It contended thus required funds that before those islation, particularly not LSA-R.S. 39:52 and approval expended approved can be 6, and of Act 75 of Sections Budget Committee Administration and Commissioner Commissioner so, has this be obtained? If Budget are in must Committee effect responsibility relinquished its legislative not purely legislature exercising functions of primarily empowered whom we have seen others when character not it Does appointees dispose appropriate the funds Governor? delegation legislative that a perceive follow au- plan What I this thority to the executive has taken legislation fact repre- what I consider to be place ? hensible Although unconstitutional. an agency government, the schools proponents validity example, may legislature submit legislation question assert the Com- request appropriation justify for an missioner and the cannot request prior this appropriation, to the money increase or decrease the amount of though legis- becomes a appropriated by legislature so enactment, lative there is no assurance that agency, they possessed conceding if problem They ends there. have still power, it would be an unlawful dele- to confront the Budg- and the Commissioner gation legislative functions. *22 legislation et after the Committee be- has To illustrate the error the contention of come law Budg- and that Commissioner proponents, of the only necessary it is to set legislation et under the Committee contested by forth that Act Section 9 75 1962 authority the sole and has unrestrained to expenditure it is declared that “No approve disapprove or “as he sees fit” or pursuant except to this in accord- opinion” approval disapprov- if “in their ance with by allotments made the Commis- al is indicated.1 By sioner Administration.” it “[appropriations
39:52
is seen that
repugnant
Such a result
to the manifest
is
IV,
budget
1,
made available
the
units
tenor of
the
Article
con-
Section
* * *
;
allotments
require
no allotment shall
provision
stitution for that
does not
*
**
be made
approval
Budget
available to
until the
them
the
Commissioner
requests
by
approved
money
have been
com-
the
for
to be withdrawn from
Committee
missioner.”
requires
appro-
an
Treasury.
the
It
State
any
(1925).
1. The rule of law is well-known that
So.
244
See also 42
purporting
arbitrary
Law,
statute
to vest
dis
Am. Jur. Public Administrative
Sec.
public
pre
in a
officer
cretion
scribing
without
44.
specific
legislation
definite rules or
condi
The
under attack is
a
not
guidance
complete expression
legislative will,
for Ms
is
tions
unconstitutional
but
leg
attempts
a
because it is in effect
surrender of
an
clothe
administrative
offi
power
leg
to make law.
islative
Other
cer
unrestricted
discretion to make
has
islation
been declared unconstitutional
fundamental decisions on what
is best for
by
Banjavich
public
any
setting
on this basis
this court.
welfare without
uni
Licensing
requirements
guidance,
v.
Divers,
Louisiana
Board
Marine
his
form
237 La.