Anderson v. Thomas

• Decision Date: 09 April 1928
• Docket Number: 29162
• Citation: 166 La. 512,117 So. 573
• Court: Louisiana Supreme Court
• Parties: ANDERSON et al. v. THOMAS, Mayor, et al

117 So. 573

166 La. 512

ANDERSON et al. v. THOMAS, Mayor, et al

No. 29162

Supreme Court of Louisiana

April 9, 1928

On the Merits, May 7, 1928. Rehearing Denied June 4, 1928.

Appeal from First Judicial District Court, Parish of Caddo; E. P Mills, Judge. Suit by W. A. Anderson and others against L. E Thomas, Mayor of the City Shreveport, and others. From a judgment for plaintiffs defendants appeal.

Affirmed.

B. F Roberts, of Shreveport, for appellants.

Wilkinsons, Lewis & Wilkinson, of Shreveport, for appellees.

ST. PAUL, J., OVERTON, J., concurs in the decree.

OPINION

On Motion to Dismiss.

ST. PAUL, J.

Appellees (plaintiffs) move to dismiss the appeal herein taken by defendants on the ground that the court below (First judicial district court) "is a court of record, and that no written motion for an appeal in this cause was made or filed by the defendants herein."

The minutes of the court below recite that--

"Oral motion for appeal [was] made by defendants; appeal devolutively granted, returnable to the Supreme Court," etc.

I.

In plaintiffs' brief on the motion to dismiss it is said that the Constitution declares that district courts shall be courts of record (Const. 1921, art. 7 § 35), and "therefore there must be a record, which means a written record of all proceedings had in the district court." All of which is quite correct; for the clerk of court is required by law (C. P. 775, 779) to keep a record of all proceedings had before the court, consisting of (1) the file, C. P. 176, 779, 585; (2) the docket, or entry book, C. P. 776; and (3) the minute book, C. P. 777, 544.

II.

And thereupon appellees argue a non-sequitur, to wit, that since there can be no record of a verbal motion other than the fact that such motion was made, therefore there can be no such motion.

Which, of course, is simply begging the question as to how the record shall be kept of the motions made by the parties; i. e., whether the record of such motions belongs in the "file" or in the "minutes." And the answer is that such motions belong in the minutes and need not be in writing, since the law does not require that they be reduced to writing and "filed" (as it does for pleadings, C. P. 171, 176, 317), but only that they be entered on the minutes. C. P. 777, 573, 574; Theriot v. Michel, 28 La.Ann. 107; Gaidry v. Lyons, 29 La.Ann. 4; Knoll v. Knoll, 114 La. 703, 38 So. 523.

Accordingly motions made in open court and the orders thereon granted need not be in writing and filed, unless the rules of court require that they should be; for the courts have authority to establish such a rule. C. P. 145. Cf. 42 C. J. 404; 19 R. C. L. 672.

Decree.

The motion to dismiss is therefore denied.

On the Merits.

The opinion of the district judge covers the case fully and correctly, and we adopt it as our own, as follows:

Opinion of the District Judge.

This suit is brought by W. A. Anderson, as president of the Civic League, and various taxpayers of the city of Shreveport, seeking to enjoin the city through its mayor or council from erecting a public auditorium on 10-acre lot 7 of said city, known as Princess Park, on the following grounds:

(1) That in selecting said site the council unlawfully rejected and disregarded the advice and assistance of an advisory commission appointed by said council to aid and assist in the selection of a site.

(2) That the ordinance and ballot authorizing the election for an auditorium provided also for the purchase of a site, and the council is without right to expend all the fund on the construction of the building.

(3) That the location is wholly unsuited for an auditorium site; that the action of the council in selecting it is arbitrary and in violation of the rights of petitioners.

(4) That the city in its purchase of said 10-acre lot acquired only a servitude, limiting its use to that of a public park; and that its diversion to another use would result in a forfeiture of said servitude, and a loss to the city of its entire interest in said lot.

(5) That having accepted the dedication of said lot as a public park, and having used same as a public park for more than 50 years, and having expended large sums of money on the improvements of said lot for park purposes, said lot being still needed and used as a public park, the council is without authority to now divert it to any other use; that the erection of the proposed auditorium on said lot would destroy its usefulness as a park.

I. Taking up the allegations in the above order, we find that by Resolution No. 28 of 1927, the city council provided that an advisory commission be created for the purpose of advising and assisting the city council in the selection of a place and the expenditure of funds for the construction of the proposed municipal auditorium; that pursuant to said resolution on March 22, 1927, a commission composed of Andrew Querbes, George M. Hearn, George W. Swallow, E. A. Conway, and Col. D. W. Spurlock was appointed as an advisory committee to confer with the city council in regard to the selection of an auditorium site and plans for said auditorium.

In the first place, the responsibility and duty of selecting a site for a public auditorium to be erected by the city of Shreveport rests upon its governing body, the city council, duly elected for such purposes by the citizens of the municipality. Even if it had attempted to do so, the council is without power to delegate its discretionary and legislate duties to some other body or commission of citizens. The council has the right to appoint advisory commissions and to seek the aid, advice, and assistance of such commission, but the function of such commission is, as the words used imply, wholly advisory. Its advice is not binding upon the council and may be either adopted or rejected as the council sees fit.

In this case the very resolution authorizing said council, and the further resolution appointing same, contain the express stipulation that such committee is an advisory committee appointed for the purpose of advising and assisting the council. It will be seen that there was no delegation of the council's authority, real or intended. Therefore this contention is without merit.

II. In regard to the second contention, it is true that Resolution No. 2 of 1927 proposing to incur debts and issue bonds for certain purposes, provided in section C as follows:

"To incur debts and issue bonds of the city of Shreveport to the amount of $ 500,000 * * * for the purpose of purchasing the necessary real estate and erection of a municipal auditorium within the city of Shreveport as a memorial to our soldiers of the World War, and same to be the property of the city of Shreveport and the citizens thereof."

We are of the opinion that the main object of this section was to provide for the erection of a municipal auditorium, and that the authority given in said section for the purchase of real estate was merely incidental to the carrying out of the main object. We are of the opinion that the words "if necessary" should be read into the section before or after the words "for the purchase of necessary real estate," and that the word "necessary" in itself implies that the purchase of a site was not intended to be mandatory. Any other construction would be entirely unreasonable. Why should the city purchase a site and expend considerable sums of money therefor if a suitable site can be legally obtained without such expenditure. We think this contention also is without merit.

III. We will not attempt to digest the great mass of testimony pro and con concerning the suitability of Princess Park as a site for the location of a public auditorium. The court is not concerned with the question of the comparative merits of the various sites suggested.

As state above, the power to select a site is vested in the duly elected council of the city of Shreveport. Our government, both municipal, state and federal, is divided into three branches--executive, legislative, and judicial. The judicial branch of the government is only concerned with the actions of the legislative branch when such actions are contrary to law, ultra vires, fraudulent or so arbitrary as to constitute an abuse of discretion, a waste of public funds, and a fraud upon the citizens and taxpayers.

It is conclusively shown that Princess Park occupies an entire city block. The land rises gradually from the abutting streets to form a considerable mound or knoll in the approximate center. It is attractively landscaped and ornamented with trees and shrubbery. Outside the question of location it is eminently suited for an auditorium site.

As state above, we are not called upon to decide whether or not it is the best location for a public auditorium. We find that any downtown location is confronted with serious traffic problems. We are not prepared to say that traffic problems affecting Princess Park are so serious as to render it entirely unfit for an auditorium site. It is true that the location is not accessible to the downtown or business section as the Fannin street location, but on the other hand, it is within a few blocks of the downtown section, and is more accessible to the outlying or residential sections of the city, in that conveyances coming from such sections will not be compelled to pass through the downtown lights and traffic. Nor do we find that the presence of negro houses on two sides of the proposed square renders it unfit as an auditorium site. If such residences do not interfere with its use as a public park to be enjoyed by the children, ladies, and citizens of Shreveport, we are unable to see why their presence would unduly interfere with its use as an auditorium site. Nor do we find the...