Bardwell v. Parish Council of Parish of East Baton Rouge

• Court: Louisiana Supreme Court
• Writing for the Court: McCALEB
• Citation: Bardwell v. Parish Council of Parish of East Baton Rouge, 216 La. 537, 44 So.2d 107, 19 A.L.R.2d 514 (La. 1949)
• Decision Date: 30 December 1949
• Docket Number: No. 39710,39710
• Parties: , 19 A.L.R.2d 514 BARDWELL et al. v. PARISH COUNCIL OF PARISH OF EAST BATON ROUGE.

Page 107

44 So.2d 107

216 La. 537, 19 A.L.R.2d 514

BARDWELL et al. v. PARISH COUNCIL OF PARISH OF EAST BATON ROUGE.

No. 39710.

Supreme Court of Louisiana.

Dec. 30, 1949.

Sanders R. Cazedessus, Emile N. Weber, Victor A. Sachse, Baton Rouge, for defendants and intervenors-appellants.

Fred G. Benton, George Mathews, Edward Donald Moseley, Albritton, Ware, Litton & West, Watson, Blanche, Fridge, Wilson & Posner, Brumfield, Hebert & Rush, Daggett & Daggett, Sanders, Miller, Downing & Rubin, Jess Johnson, Byron Kantrow, Roland Kizer, J. Burton LeBlanc, Jr., Clint Pierson, A. J. Spedale, Baton Rouge, for plaintiffs and appellees.

McCALEB, Justice.

Acting under authority of section 3(a) of Article 14 of the Constitution (added by Act No. 389 of 1946 which was approved on November 5, 1946), the people of the Parish of East Baton Rouge adopted a plan of government proposed by a 'City-Parish Charter Commission' created under the constitutional amendment. The validity of this 'plan of government' was sustanied by this court in State v. City of Baton Rouge, 215 La. 315, 40 So.2d 477.

The constitutional amendment, Section 3(a) of Article 14, in providing for the creation of a new government, declares, among other things, that '(4) The plan of government shall be subject to amendment by election of the people as provided therein' and, in conformity, the charter subsquently adopted provided in Section 11.09 thereof that:

Amendments of this plan of government may be proposed by majority vote of all the members elected to the parish council or by a petition containing the full text of the proposed amendments signed by qualified voters of East Baton Rouge Parish in number equal to ten per cent of the number of votes cast for sheriff at the last preceding election of parish officers and filed in the office of the parish clerk. A proposed amendment shall be sumitted by the parish council to the qualified voters of the parish at a special election to be called and held by the parish council not less than sixty or more than ninety days after the passage of the amendment by the parish council or the filing of the petition; * * *'

On October 19, 1949, a petition was filed by 212 qualified voters, allegedly more than ten percent in number of the votes cast for sheriff in the last preceding election, to amend the plan of government in numerous particulars. Upon receipt, the council referred the petition to the parish attorney for study, opinion and comment and, subsequently, the latter reported that the proposed amendments would, if adopted, be illegal and unconstitutional for divers reasons. After considering this opinion, the parish council, believing that it was bound to call an election by the mandatory provisions of Section 11.09 of the plan of government, formally declared its intent to do so and instructed the parish attorney to prepare the necessary resolution. Simultanously, however, it publicly declared that it had been advised of the illegality and unconstitutionality of the proposed amendments; that it was reluctant to see the people subjected to the cost and trouble of a useless election and that the responsibility must fall upon the leaders proposing the changes. The parish attorney prepared the resolution, calling the election for January 17, 1950, but, on the eve of the meeting at which it would have been adopted, the council was restrained by order of the district court which had been issued on the application of plaintiffs herein, 27 in number, residents and taxpayers of East Baton Rouge Parish, petitioning to enjoin the calling and holding of an election upon the proposed amendments on the ground that they were illegal and unconstitutional. Plaintiffs also sought, in the alternative, a declaratory judgment stating the illegality and unconstitutionality of the proposed amendments.

The parish council resisted plaintiffs' demand by interposing various exceptions, in which were included a jurisdictional plea, exceptions of prematurity and no right or cause of action. And, before the trial, certain other interested citizens and taxpayers filed an intervention joining the parish council in opposition to plaintiffs' demands. These intervenors, alleging that their presence in the suit was necessary in order that the court might have a proper presentation of the issues, ¹ adopted substantially the same grounds of defense advanced by the parish council.

After hearing the matter, the court overruled all exceptions, save the exception of no right or cause of action which was sustained only insofar as plaintiffs' alternative prayer for a declaratory judgment was concerned. And, on the merits, the judge found, for reasons orally assigned, that the proposed amendments would, if adopted, be invalid and unconstitutional. Accordingly, he permanently enjoined, the parish council from calling or holding 'any election whatever upon the proposed amendments on January 17, 1950, or upon any other date.' The council and the intervenors have appealed from the decision.

Immediately after the appeal was lodged here, the interested parties filed a joint motion for submission of the case on briefs as provided by Section 8 of Rule IX and request has been made for an early decision. In this connection, we note that, whereas the parish council is appealing, the brief of the parish attorney demonstrates that the council is acquiescing in the judgment below and, in truth, seeks an affirmance. On the other hand, the intervenors vigorously protest and, for purposes of our discussion, they must be considered as the real parties appellant.

An examination of the pleadings reveals that, perhaps, the most serious matter presented for decision is the plea that the court is without jurisdiction to grant an injunction in a matter such as this. This jursdictional plea is grounded on the same predicate as the exception of prematurity but probably the latter is the more appropriate term, as it is based upon the theory that an action for an injunction is not cognizable in equity unless there is a showing of present or imminent irreparable injury. If this plea is well founded, it ends the case inasmuch as the alternative demand for a declaratory judgment was dismissed and plaintiffs have neither appealed nor answered the appeals taken herein. See Succession of Babin, 213 La. 950, 35 So. 864; Westwego Canal & Terminal Co. v. Louisiana Highway Comm., 189 La. 870, 181 So. 429; Betz v. Riviere, 211 La. 43, 29 So.2d 465.

In determining whether the plea of prematurity or lack of equity jurisdiction is well taken, two established principles must be considered. They are the general rule that equity will not interfere with a municipal body in the exercise of powers of a legislative character, see Harrison et al. v. City of New Orleans, 33 La.Ann. 222, 39 Am.Rep. 272; State ex rel. Behan et al. v. Judges, 35 La.Ann. 1075; New Orleans Elevator Ry. Co. v. Mayor, etc., of New Orleans, 39 La.Ann. 127, 1 So. 434; Connell v. Commission Council, 153 La. 788, 96 So. 657; Wachsen v. Commission Council, 162 La. 823, 111 So. 177 and Durrett Hardware & Furniture Co. v. City of Monroe, 199 La. 329, 5 So.2d 911, 140 A.L.R. 433 and the doctrine that an injunction will not issue to prevent the holding of an election (see 32 Corpus Juris, Section 401, 402; 43 C.J.S., Injunctions, § 115; Roudanez v. Mayor, etc. of New Orleans, 29 La.Ann. 271; Town of Ponchatoula v. Police Jury, 120 La. 1040, 46 So. 16 and Dubuisson v. Board of Sup'rs of Election, 123 La. 443, 49 So. 15; Compare Roy v. Board of Supervisors of Elections, 198 La. 489, 3 So.2d 747.

The above stated rules are not without exception. If the threatened action of a municipal council is in direct violation of a prohibitory law, equity will enjoin, even though no irreparable injury is shown, see Connell v. Commission Council and Wachsen v. Commission Council, supra, but this is the only instance that judicial intervention has been permitted in this State. See Durrett Hardward & Furniture Co. v. City of Monroe, supra. And, in cases involving the calling and holding of an election under certain conditions, a court of equity will restrain those ordering the election where the preliminary conditions necessary for the election call have not been fulfilled and the municipal body has either called or is threatening to call the election. See McQuillin on 'Municipal Corporations' (3rd Ed.) Vol. V, Section 16.68 and cases cited in support of the text.

It is apparent that the rule that a court of equity will not enjoin a municipality from passing an ordinance is inapplicable in the instant matter as plaintiffs are not seeking to restrain the parish council from legislating but are attempting to have the court restrain that body from performing its administrative duty in calling and holding an election to amend the parishcity charter on the ground that the proposed amendments are illegal and unconstitutional. Plaintiffs do not claim that any of the preliminary steps and conditions, i. e., requisite number of signatures of voters, etc. have not been complied with by the parties petitioning for submission of the initiative and referendum measure but only that the amendments, if passed, would be illegal...