State ex rel. Morris v. Mason

• Decision Date: 27 April 1891
• Docket Number: 10,794
• Citation: 43 La.Ann. 590,9 So. 776
• Court: Louisiana Supreme Court
• Parties: THE STATE EX REL. JOHN A. MORRIS v. L. F. MASON, SECRETARY OF STATE

9 So. 776

43 La.Ann. 590

THE STATE EX REL. JOHN A. MORRIS v. L. F. MASON, SECRETARY OF STATE

No. 10,794

Supreme Court of Louisiana

April 27, 1891

May 1891

APPEAL from the Seventeenth District Court, Parish of East Baton Rouge. Buckner, J.

Thos J. Semmes, for the Relator and Appellant.

F. P Poche, on the same side.

Walter H. Rogers, Attorney General, for Defendant and Appellee.

H. N Sherburne, District Attorney, on the same side,

White & Saunders on the same side,

Don Caffrey on the same side,

J. N. Luce on the same side.

The opinion of the court was delivered by

WATKINS, J. McENERY, J. BERMUDEZ, C.J., concur. FENNER, J. BREUX, J. dissent.

OPINION

WATKINS, J.

Alleging himself to have a personal interest therein, John A. Morris, as relator, represents that on the 9th of June, 1890, during a regular session of the General Assembly of the State of Louisiana, there was introduced in the House of Representatives a measure proposing an amendment to the Constitution of the State, known and designated therein as "House Bill No. 214," for submission to the electors of the State for their ratification or rejection; it being entitled "an article on levees, schools, charities, pensions, drainage and lotteries." That the main purpose of said amendment was, and is, under certain terms and conditions therein stipulated, to authorize and empower the relator, his heirs, agents and assigns, to prepare schemes of lotteries, to sell lottery tickets and to draw and conduct lotteries in this State for a term of twenty-five years ensuing on January 1, 1895.

"That after said proposed amendment had been read on three separate days in the House of Representatives and in the Senate, respectively, two-thirds of all the members elected to each house concurred therein by a final vote taken in each house, respectively, on the 1st of July, 1890, and that said proposed amendment, together with the yeas and nays thereon taken, was duly entered on the journal of each house." That said proposed amendment having been adopted by the General Assembly, it was and became the duty of the respondent, Secretary of State for the State of Louisiana, under the provisions of the 256th article of the Constitution to cause the same to be published in two newspapers published in the parish of Orleans, and in one newspaper published in each other parish of the State in which a newspaper is published, "for three months preceding the next election for representatives;" and "under the terms of the second section of said proposed amendment it is made the duty of the Secretary of State to make such publication within ninety days after the first day of January, 1891."

That, upon due demand made by the relator upon the Secretary of State to comply with the constitutional mandate and publish said proposed constitutional amendment, he declined to do so, and he avers that through said refusal he apprehends great and irreparable injury; and, averring the duty of the respondent in this regard to be a purely ministerial one, he alleges himself to be entitled to and prays for the issuance of a peremptory mandamus to him, compelling his performance thereof.

The following is the full text of the proposed constitutional amendment, as it finally passed the two houses of the General Assembly, viz:

House bill No. 214 --

An act providing for the submission to the electors of the State, for adoption or rejection, an amendment to the Constitution of the State by inserting therein "an article on levees, schools, charities, pensions, drainage, lotteries, and general fund."

SECTION 1. Be it enacted by the General Assembly of the State of Louisiana, That the following amendment to the Constitution of the State be submitted to the electors for approval or rejection, as provided in Article 256 of the Constitution, and if adopted, the amendment shall read as follows:

ARTICLE ON LEVEES, SCHOOLS, CHARITIES, PENSIONS, DRAINAGE, LOTTERIES AND GENERAL FUND.

In aid of the levees, schools, charities, pensions, drainage and general fund hereinafter named the following contract is now made: In consideration of the sum of thirty-one million two hundred and fifty thousand dollars, to be fully secured and paid as hereinafter provided, John A. Morris, his heirs, agents and assigns are hereby authorized and empowered, for the term of twenty-five years ensuing the first day of January, 1894, to prepare schemes of lotteries, to sell lottery tickets and to draw and conduct lotteries in this State; said sum shall be paid to the Treasurer of the State by the persons conducting the business pursuant to this contract in one hundred equal instalments, whereof each instalment shall be paid on or before the first days of January, April, July and October in each and every year during said term; and the Treasurer, upon the receipt of each of said instalments shall apply the same as follows:

To the Public Schools of the State -- Three hundred and fifty thousand dollars annually, payable quarterly in advance, as above provided, which sum shall be distributed to each parish in the proportion prescribed by Article 224 of the Constitution.

To Levees -- Three hundred and fifty thousand dollars annually, payable quarterly in advance, as above provided, which sum shall be distributed among the levee districts of the State or applied to levee purposes in the proportions and in the manner provided by law for the distribution and application of the one mill tax levied under Article 213 of the Constitution.

To Charities -- One hundred and fifty thousand dollars annually, payable quarterly in advance, as above provided, of which sum $ 80,000 shall be applied to the hospitals established by the State; $ 40,000 to State insane asylums; $ 25,000 to State institutions for the deaf, dumb and blind; $ 5000 to the Soldier's Home.

To Pensions -- Fifty thousand dollars annually, payable quarterly in advance, as above provided, to the pensioning of disabled, infirm, or indigent Confederate soldiers, citizens resident in Louisiana.

To the City of New Orleans for Drainage and other Sanitary Purposes -- One hundred thousand dollars annually, payable quarterly in advance, as above provided, the expenditure of said sum and the management and control of the same to be determined by the General Assembly, which is hereby directed to carry into effect this provision by appropriate legislation.

To the General Fund -- Two hundred and fifty thousand dollars annually, payable quarterly in advance.

The several sums of money above specified shall be devoted to the objects and purposes hereinbefore stated, and the General Assembly is hereby directed to carry into effect this provision by appropriate legislation. Said John A. Morris, his heirs or agents, shall, within twenty days from the date of the adoption of this article, file in the office of the Secretary of State a written acceptance by him or them of this contract. And for the protection of the State and the security of the public, this contract is made upon the express condition that said John A. Morris, his heirs or agents, shall, within thirty days from the date of the adoption of this article, file in the office of the Secretary of State a declaration in writing, signed by him or them and six other persons, signifying their consent to form the corporation hereinafter named; and the said John A. Morris shall file therewith his bond, with good and solvent sureties, residents of this State, in the sum of $ 5,000,000 said bond to be in favor of and accepted by the Auditor of State; the condition of the said bond shall be that the said Morris, his agents or assigns, shall pay to the State of Louisiana the said sum of $ 31,250,000 at the dates and in the manner herein set out, and shall faithfully perform all obligations herein contained; and thereupon the persons signing the said declaration shall be thereby constituted a corporation under the name and title of "The Louisiana Lottery Company," whereof the capital stock shall be $ 5,000,000, represented by 50,000 shares of $ 100 each, at least 20 per cent, thereof to be forthwith fully paid up, and which corporation shall be and continue during the period of this contract, and shall have all the rights and powers possessed by corporations generally, as defined by the present Civil Code of the State, and shall be liable for the moneys herein directed to be paid to the Treasurer of the State, and for all prizes to be drawn in said lotteries and shall be entitled to receive semi-annually from the persons conducting the business under this contract 50 per cent. of the net profits of said business. And in consideration of the payment of said sum of $ 31,250,000, in installments as aforesaid, said corporation and the shares of stock therein and the business authorized by this contract and the revenues and receipts thereof, shall be exempt from all taxes, dues, assessments, impositions and licenses of any kind whatever, whether State, parish, municipal or otherwise. The power of said corporation shall be vested in a board of directors, to consist of seven persons, who may make and establish rules and by-laws for the proper management and regulation of its affairs. The persons signing said declaration shall constitute the first board of directors and shall serve for the term of one year from the time of the filing of said declaration and until their successors are duly appointed. All lotteries other than those authorized by this article are prohibited in this State, unless by similar amendment to this Constitution and for not less than $ 1,250,000 per annum. All provisions of the Constitution and laws of this State inconsistent or in any way conflicting with this article are declared to be superseded hereby.

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