Board of Com'rs for Bayou Terre Aux Boeuf Drainage Dist. v. Baker

• Decision Date: 30 November 1908
• Docket Number: 17,358
• Citation: 48 So. 654,123 La. 75
• Parties: BOARD OF COM'RS FOR BAYOU TERRE AUX BOEUF DRAINAGE DIST. v. BAKER
• Court: Louisiana Supreme Court

48 So. 654

123 La. 75

BOARD OF COM'RS FOR BAYOU TERRE AUX BOEUF DRAINAGE DIST. v. BAKER

No. 17,358

Supreme Court of Louisiana

November 30, 1908

On Rehearing, March 1, 1909. Rehearing Considered.

Appeal from the Twenty-Ninth Judicial District Court, Parish of St Bernard; Nemours Henry Nunez, Judge.

Specific performance by the Board of Commissioners for the Bayou Terre aux Boeuf Drainage District against Earl R. Baker. Judgment for plaintiff, and defendant appeals. Reversed, and suit dismissed.

Fernando Estopinal, for appellant.

Henry L. Favrot and Nemours Henry Nunez, for appellee.

William Milton Murphy, McCoy, Moss & Knox, and William Champion Carruth, amici curiae.

OPINION

MONROE J.

Statement of the Case.

Plaintiff sues to enforce specific compliance with a contract whereby defendant agreed to buy at par 180 of its bonds, of $ 500 each. Defendant admits that he agreed to buy valid bonds issued by plaintiff, to the number and at the price stated in the petition, and expresses his willingness to accept and pay for such bonds, but he alleges that the bonds which have been tendered to him, though of the denomination and at the price agreed on, are not valid bonds, for the reasons:

1. That the special election purporting to have approved of the organization of the board of commissioners of the Bayou Terre aux Boeuf drainage district and to have authorized the issuance of the bonds in question and the levy and collection of a tax and of forced contributions for their payment was held by the order and under the direction of the police jury whereas, under article 281 of the Constitution, and Act No 145, p. 248, of 1902, and Act No. 159, p. 293, of 1902, as amended by Act No. 135, p. 225, of 1906, the authority to order and direct such election is vested in the board of drainage commissioners.

2. That the amount of bonds issued exceeds one-tenth of the assessed valuation of the property of the drainage district, in violation of article 281 of the Constitution.

Opinion.

1. In the matter of Mayor and Board v. New Iberia Drainage District, 106 La. 651, 31 So. 305, this court was called on to determine whether the power to order and direct elections such as that here in question was vested in the police juries or the boards of drainage commissioners, and, construing the legislation on the subject up to and inclusive of the year 1900, held that the controlling law was Act No. 114, p. 178, of 1900, which was then the latest enactment, and which confers such power on the police juries in specific terms.

In June of this year the case of Esteves v. Board of Commissioners, etc., 121 La. 991, 46 So. 992 (in which the present plaintiff was defendant), was decided, the court holding that a special election held under article 281, by order and under the direction of the plaintiff, was illegal, and that the power to order and direct such election is vested in the police jury, affirming, in that respect, the decision in Mayor and Board v. New Iberia Drainage District, above referred to. Counsel for defendant, however, say that the acts of 1902 and 1906, set up in the answer, were not in existence when the first case was decided, and were not sufficiently considered in the last case, and that those acts, in effect, repeal Act No. 114 of 1900. Counsel also invokes "the spirit" of article 281 of the Constitution, as sustaining the proposition that the power to order and direct special elections, to be held under its authority, is vested in the boards of drainage commissioners.

The proposition last stated was carefully considered in the case of Mayor and Board v. New Iberia Drainage District, and the conclusion was reached that, whilst it may be conceded that the drainage district is to have an autonomy of its own, and is to exercise such powers as may be specifically granted to it, the determination of the question, by whom shall the power to order and direct the special elections contemplated by article 281 of the Constitution be exercised, is left by that article to the discretion of the Legislature.

It is true that the article in question has been amended, first, in 1906, pursuant to Act No. 122, p. 207, of that year, and again in November of 1908, by the adoption of the amendment proposed by Act No. 300, p. 450, of the session of 1908. But neither of the amendments denies to the General Assembly the authority which otherwise it possesses of determining in whom the power to order and to direct the details of the elections contemplated by article 281 shall be vested. As to that question, therefore, the matter stands as it did when the opinion in the New Iberia Drainage District Case was handed down, and we adhere to the view expressed in that opinion.

Inquiring, now, whether there is anything in the statutory law enacted in 1902 or 1906 which takes from the police juries the power, with respect to the ordering and directing of the elections in question, which was vested in them by Act No. 114 of 1900, we find as follows: Act No. 145 of 1902 purports to be an amendment of Act No. 5, p. 7, of the Extra Session of 1899, the first section of which last-mentioned act provides that:

"Municipal corporations, parishes and drainage districts, * * * when so petitioned * * *, may submit to a vote * * * propositions to incur debt," etc.

But, whatever force there might at any time have been in the suggestion that the right to submit the "propositions" in question to a vote carries with it the authority to order and direct the conduct of the election at which such vote is to be taken, the matter was set at rest by Act No. 114 of 1900, which, as we have found, specifically and in unmistakable terms conferred that authority on the municipal corporations and the police juries, and this court, prior to the passage of Act No. 145 of 1902, had recognized the police jury as the "governing body" of the parish in which the drainage district may be organized. Bearing those facts in mind, it will be found that Act No. 145 of 1902, purporting, as we have said, to amend the act of 1899, does not refer to the act of 1900, and its first section (being an amendment and re-enactment of the first section of Act No. 5 of 1899) provides that:

"Municipal corporations, parishes and drainage districts * * * when, in the opinion of the governing body of such municipal corporation, parish, or drainage district, such action is necessary, or, when petitioned * * * may submit to the vote * * * propositions to incur debt," etc.

which appears to be a recognition of the construction which this court had placed upon the then existing law. Apart from that, and dealing with the matter as though the act of 1900 had not been passed, it can hardly be denied that, in the ordinary acceptation of the term, for the administration of civil and criminal justice, and for the exercise of political and governmental power in general, the police jury is, and the board of drainage commissioners is not, the "governing body" of the parish, and that its jurisdiction, as such, extends to all parts of the parish save to such municipalities in the parish as may be subject by law to other control, and save such specific control as may be vested by law in other state agencies. Elsewhere, the act under consideration uses the expression, "authorities ordering the election," but we find in it nothing that we can construe as operating a repeal of the plain provisions of Act No. 114 of 1900, conferring the power here in question on the police juries.

Act No. 159 of 1902 purports to be an amendment of Act No. 12, p. 12, of 1900 (which latter act was held, in the New Iberia Drainage Case, to have been repealed by Act No. 114 of 1900, in so far as the two were in conflict).

It authorizes the police juries to divide their respective parishes into drainage districts, and to fix the limits of such districts and give them names; fixes the number and qualifications of the drainage commissioners, and provides that three out of the five authorized shall be appointed by the police jury, upon the recommendation of the property owners; declares that the drainage districts shall be bodies corporate, whose domiciles shall be designated by the police juries; that, in the creation of a drainage district and the appointment of commissioners, the police jury shall designate the time and place at which the latter shall meet; prescribes the general duties of the board of commissioners and its officers, and confers specific authority and imposes specific duties on them in the matter of drainage work. Section 7 reads, in part:

"That, in order to carry out the provisions of this act * * *, the commissioners shall have power, when authorized to do so by the vote of the majority, in number and amount, of the property tax payers * * *, voting at an election to be held for that purpose, after due notice of said election shall have been published, * * *, may (to) incur debt * * *, and may be authorized by the property tax payers, voting at such election, to levy a special tax * * *. And the said drainage district shall have * * * what other powers are conferred * * * article 281 of the Constitution * * * and the acts carrying into effect said article," etc.

And though there are many other provisions, none of them deal particularly with the...