Board of Directors of Louisiana Recovery Dist. v. All Taxpayers, Property Owners, and Citizens of State of La.

• Citation: 529 So.2d 384
• Decision Date: 24 June 1988
• Docket Number: No. 88-C-1621,88-C-1621
• Parties: The BOARD OF DIRECTORS OF the LOUISIANA RECOVERY DISTRICT v. ALL TAXPAYERS, PROPERTY OWNERS, AND CITIZENS OF the STATE OF LOUISIANA and Non- Residents Owning Property or Subject to Taxation Therein, and All Other Persons Interested in or Affected in Any Way by the Issuance of Sales Tax Bonds of the Louisiana Recovery District. 529 So.2d 384
• Court: Supreme Court of Louisiana

Page 384

529 So.2d 384

The BOARD OF DIRECTORS OF the LOUISIANA RECOVERY DISTRICT v. ALL TAXPAYERS, PROPERTY OWNERS, AND CITIZENS OF the STATE OF LOUISIANA and Non- Residents Owning Property or Subject to Taxation Therein, and All Other Persons Interested in or Affected in Any Way by the Issuance of Sales Tax Bonds of the Louisiana Recovery District.

No. 88-C-1621.

529 So.2d 384

Supreme Court of Louisiana.

June 24, 1988.

Rehearing Denied June 27, 1988.

A. Edward Hardin, Baton Rouge, for applicant.

Thomas A. Casey, New Orleans, Charles L. Patin, Jr., Baton Rouge, John N. Kennedy, New Orleans, Martha S. Hess, Harold B. Judell, William H. Beck, Jr., Susan Weeks, Meredith L. Hathorn, David E. Henderson, Foley & Judell, Baton Rouge, for respondent.

William J. Doran, Jr., Baton Rouge, amicus curiae for Police Jury Ass'n.

DENNIS, Justice.

This is a suit to validate bonds brought by the Louisiana Recovery District, a political subdivision of the state, and answered by Roberta Madden, a taxpayer, who challenges the constitutionality of the statute that created the Recovery District and empowered it to levy a tax and to issue bonds, Act 15 of the First Extraordinary Session of 1988.

Finding a state of emergency to exist in state and local governments because of accumulated fiscal deficits, the Legislature enacted, by two-thirds of the elected members of each house, Act 15 of the First Extraordinary Session of 1988. The Act created the Louisiana Recovery District, specifically designated as a special district and a political subdivision, having boundaries coterminous with the state. Additionally, the Act empowered the district to (1) adopt an ordinance levying and collecting a sales and use tax not to exceed one cent, and (2) issue bonds to be funded by the tax revenues for the purpose of assisting the state and local governments in the reduction of fiscal deficits. Act 15 further provided that the tax shall be imposed by ordinance without the need of an election and that the bonds shall be issued without a state guarantee or a pledge of the full faith and credit of the state.

The Louisiana Recovery District, pursuant to the act, adopted an ordinance levying a one cent sales and use tax and a resolution authorizing the issuance of bonds in an amount up to $1.3 billion. The district brought this suit, pursuant to R.S. 13:5121-30, to validate the bonds. Ms. Roberta Madden answered the suit as a citizen, taxpayer and resident challenging the constitutionality of Act 15, the establishment of the district, and the validity of the bonds. After a trial, the district court upheld and declared the statute, district and bonds to be constitutional and valid. Ms. Madden appealed. The court of appeal, without reaching the merits, sustained a peremptory exception of no right of action raising an objection of no right of action, and dismissed Ms. Madden's pleading and challenge to the statute, district and bonds, 529 So.2d 401. This court granted certiorari to review the judgments of the trial and appellate courts.

I. No Right of Action

The court of appeal sustained the peremptory exception raising an objection of no right of action filed by the Recovery District on the ground that Ms. Madden did not introduce any evidence to prove that she was a member of the class of "taxpayers, property owners and citizens ... [or] other persons interested ... or affected", who are authorized by law to contest the issuance of the bonds. See La.R.S. 13:5123. Ms. Madden filed an answer in which she alleged that she was a citizen, a taxpayer and a resident of East Baton Rouge Parish, Louisiana. The Recovery District did not file its exception in the trial court until all of the evidence had been taken. The Recovery District did not adduce any evidence to show that the pertinent allegations of Ms. Madden's pleadings were incorrect.

In our opinion the court of appeal erred. It is well settled that on consideration of an exception of no right of action the averments of fact in the pleading must be taken as true in the absence of evidence to the contrary. In re Nunez, 203 La. 847, 14 So.2d 680, 681 (1943); Walton v. Hutton, 457 So.2d 1230, 1231 n. 1 (La.App. 1st Cir.1984); Invest, Inc. v. State, 247 So.2d 175, 177 (La.App. 1st Cir.1971); J.B.N. Morris v. Rental Tools, Inc., 435 So.2d 528, 531 (La.App. 5th Cir.1983); Clark v. Clark, 377 So.2d 544, 547 (La.App. 3d Cir.1979); Jurisich v. Board of Levee Commissioners, 8 So.2d 554, 557 (La.App.Orl.Cir.1942); Brooks v. Bass, 184 So. 222, 223-24 (La.App.Orl.Cir.1938); see also Burns v. Genovese, 254 La. 237, 248, 223 So.2d 160, 164 (1969); Commercial Nat. Bank v. Sanders, 132 La. 174, 176-77, 61 So. 155, 156 (1913); McMahon, Exception of Want of Interest, 11 Tul.L.Rev. 527, 533-36 (1937). Consequently, in the present case, Ms. Madden's allegations that she was a taxpayer, citizen and resident must be accepted as true, and the appeals court's judgment dismissing her suit must be vacated.

II. Merits

1. A person attacking the constitutionality of a statute of

public purpose must show clearly the

constitutional aim to deny the

Legislature the power to enact

the legislation.

The legislative power of the state is vested in the Legislature. La. Const. 1974, Art. III, Sec. 1. Except as expressly provided by the constitution, no other branch of government, nor any persons holding office in one of them, may exercise the legislative power. La.Const.1974, Art. II, Secs. 1 and 2. Furthermore, it is a general principle of judicial interpretation that, unlike the federal constitution, a state constitution's provisions are not grants of power but instead are limitations on the otherwise plenary power of the people of a state exercised through its Legislature. In its exercise of the entire legislative power of the state, the Legislature may enact any legislation that the state constitution does not prohibit. Thus, to hold legislation invalid under the constitution, it is necessary to rely on some particular constitutional provision that limits the power of the Legislature to enact such a statute. Board of Commissioners v. Dept. of Natural Resources, 496 So.2d 281, 286 (La.1986); New Orleans Firefighters Association v. Civil Service Commission of City of New Orleans, 422 So.2d 402, 406 (La.1982); State ex rel Guste v. Legislative Budget Committee, 347 So.2d 160, 164 (La.1977); Hainkel v. Henry, 313 So.2d 577, 579 (La.1975); In re Gulf Oxygen Welder's Supply Profit Sharing Plan, 297 So.2d 663, 665 (La.1974); see also, State v. Mallery, 364 So.2d 1283, 1284 (La.1978), cert. denied, 442 U.S. 940, 99 S.Ct. 2881, 61 L.Ed.2d 310 (1979) ("Except as limited by the constitution its power is plenary"); Swift v. State, 342 So.2d 191, 194 (La.1977) ("Unlike Congress, our State Legislature has all powers of legislation not specifically denied it by the Louisiana Constitution").

Unless the fundamental rights, privileges and immunities of a person are involved, there is a strong presumption that the Legislature in adopting a statute has acted within its constitutional powers. State v. Griffin, 495 So.2d 1306, 1308 (La.1986); City of Lake Charles v. Henning, 414 So.2d 331, 333 (La.1982); In the Interest of Voyles, 417 So.2d 497, 500 (La.App. 1st Cir.), writ denied, 420 So.2d 981 (La.1982); Harry's Hardware, Inc. v. Parsons, 410 So.2d 735, 737 (La.), cert. denied, 459 U.S. 881, 103 S.Ct. 178, 74 L.Ed.2d 145 (1982). The presumption is especially forceful in the case of statutes enacted to promote a public purpose, such as statutes relating to taxation and public finance. United States v. Jacobs, 306 U.S. 363, 369-70, 59 S.Ct. 551, 555, 83 L.Ed. 763, 768, motion to set aside judgement denied, 306 U.S. 620, 59 S.Ct. 640, 83 L.Ed. 1026 (1939); Interstate Oil Pipe Line Co. v. Guilbeau, 217 La. 160, 167, 46 So.2d 113, 115 (1950); see Board of Education of Jefferson County v. State ex rel. Carmichael, 237 Ala. 434, 443, 187 So. 414, 422 (1939); American Amusement Co., Inc. v. Dept. of Revenue, 91 Mich.App. 573, 283 N.W.2d 803, 805 (1979), appeal dismissed, 446 U.S. 931, 100 S.Ct. 2145, 64 L.Ed.2d 783 (1980); Halbruegger v. City of St. Louis, 302 Mo. 573, 584, 262 S.W. 379, 382 (1924). The party attacking such a statute has the burden of showing clearly that the legislation is invalid or unconstitutional, and any doubt as to the legislation's constitutionality must be resolved in its favor. State v Griffin, supra; City of Lake Charles v. Chaney, 468 So.2d 1191, 1192 (La.1985); State v. Gisclair, 363 So.2d 696, 698 (La.1978); State v. Newton, 328 So.2d 110, 117 (La.1975); Ancor v. Belden Concrete Products, Inc., 260 La. 372, 379, 256 So.2d 122, 125 (1971); Buras v. Orleans Parish Democratic Executive Committee, 248 La. 203, 226, 177 So.2d 576, 584 (1965); Board of Barber Examiners of Louisiana v. Parker, 190 La. 214, 273, 182 So. 485, 504 (1938). In an attack upon a legislative act as falling within an exception to the Legislature's otherwise plenary power, it is not enough to show that the constitutionality is fairly debatable, but, rather, it must be shown clearly and convincingly that it was the constitutional aim to deny the Legislature the power to enact the statute. Ancor v. Belden Concrete Products, Inc., supra; Buras v. Orleans Parish Democratic Executive Committee, supra; Board of Barber Examiners of Louisiana v. Parker, supra; U.S. v. Simms, 508 F.Supp. 1179, 1187 (W.D.La.1979); see Morris v. Metriyakool, 107 Mich.App. 110, 309 N.W.2d 910, 911 (1981), affirmed, 418 Mich. 423, 344 N.W.2d 736 (1984); Thompson v. City of Chelsea, 358 Mass. 1, 6, 260 N.E.2d 699, 702-03 (1970); State v. Capone, 115 R.I. 426, 432-33, 347 A.2d 615, 619 (1975).

In attacking the statute in the present case, Ms. Madden does not point to any constitutional provision which expressly limits the power of the Legislature to enact the legislation. Instead, she contends that several constitutional provisions which actually confirm the Legislature's power to...