City of Gretna v. Bailey

• Decision Date: 14 May 1917
• Docket Number: 22490
• Citation: 141 La. 625,75 So. 491
• Court: Louisiana Supreme Court
• Parties: CITY OF GRETNA et al. v. BAILEY, Secretary of State, et al. (CALDARA et al., Interveners)

75 So. 491

141 La. 625

CITY OF GRETNA et al. v. BAILEY, Secretary of State, et al. (CALDARA et al., Interveners)

No. 22490

Supreme Court of Louisiana

May 14, 1917

SYLLABUS

(Syllabus by the Court.)

A municipal corporation, being a creature of the Legislature cannot question the authority of its creator to amend or abrogate its charter, except in so far as the Legislature attempts to exceed its own constitutional authority. But the General Assembly is as well bound not to violate the mandates expressed in the Constitution as a corporation created by the Legislature is controlled by its statutes. Hence a municipal corporation, having authority to prosecute and defend suits in the courts, may invoke the protection afforded by the Constitution to prevent a violation of its rights. The decision to the contrary in Mayor and Council of the City of Carrollton v. Board of Metropolitan Police et al., 21 La.Ann. 447, is overruled.

The state officials whose duty and intention it is to tabulate the returns and promulgate the result of an election in which a special and local statute appears to have been adopted by a majority vote of the electors of a municipality affected by the statute, are the proper defendants in an injunction suit by the municipal corporation to prevent the law from going into effect, on the ground that it violates the Constitution.

The submission by the Legislature of a special and local statute proposing a new form of government for an existing municipal corporation to a vote of the electors of the municipality for adoption or rejection is not a delegation of the authority or functions of the Legislature.

The Legislature has no authority to create a city court, even in a parish ward containing a city of more than 5,000 inhabitants, except in the place and stead of the justice of the peace court, which shall be thereby abolished. Therefore section 40 of Act No. 2 of 1916, attempting to create the city court of the city of Gretna with jurisdiction concurrent with that of the justice of the peace for a period of four years, violates articles 84 and 96 of the Constitution.

As the title is an essential part of a statute, the recital contained in the title of a special or local statute that due notice was given of the intention to apply for the passage of the act is contained in the act, within the requirement of article 50 of the Constitution.

A statute that is in part unconstitutional and invalid must be decreed entirely invalid if its provisions are so interrelated that it cannot be presumed that the Legislature would have enacted the provisions which do not violate the Constitution independently of the provisions that are found to be unconstitutional or invalid. That doctrine is particularly applicable to a referendum statute, because of the improbability that a majority of the electors who voted for its adoption or rejection would have voted for the adoption of the provisions that do not violate the Constitution, independently of the provisions subsequently decreed to be unconstitutional and invalid.

A. V. Coco, Atty. Gen., for appellants.

Miller, Miller & Fletchinger, of New Orleans (Wm. A. Dixon, of New Orleans, of counsel), for interveners.

L. E. Hall and P. A. Sompayrac, both of New Orleans, for appellees.

Stubbs, Theus & Grisham and Hudson, Potts Bernstein & Sholars, all of Monroe, amici curiae.

OPINION

O'NIELL, J.

In 1916 the General Assembly enacted a special statute, Act No. 2 of the session of that year, providing or proposing a commission form of government under a new charter for the city of Gretna. It was provided in section 41 of the act that the statute should not become operative in any respect unless it should be approved by a majority of the qualified electors of the city voting at a special election to be held for that purpose, under the general election laws of the state and under the supervision of the board of supervisors of elections, on the third Tuesday in September, 1916. A majority of the votes cast at the election held on that date -- that is, on the 19th of September, 1916 -- were in favor of the adoption of the new charter and commission form of government.

The city of Gretna, in its corporate name and capacity, and the mayor and board of aldermen, in their official capacity, and as citizens and taxpayers of the municipality, brought this proceeding by injunction to prevent the secretary of state and the state auditor from tabulating the returns and promulgating the result of the election. The plaintiffs alleged in their petition that there were certain irregularities in the election, and that, in reality, a majority of the votes were not cast for or in favor of the adoption of the new charter or commission form of government. But those allegations and contentions have been abandoned by the plaintiffs, and need not be considered further. The main allegations of the petition on which the injunction was prayed for, and in fact the only contentions on which the plaintiffs rely for the maintenance of the injunction, are that the Act No. 2 of 1916 is unconstitutional and inoperative, for reasons which will be stated hereafter.

In answer to the rule to show cause why the writ of injunction should not issue, the defendants first pleaded that the district court in the parish of East Baton Rouge had not jurisdiction in the premises; that the suit should have been brought at the place where the election was held. In the alternative, in the event that plea should be overruled, the defendants urged the following as reasons why the injunction should not issue, viz: (1) That the suit was premature, because the election returns were not yet promulgated; (2) that they, the defendants, were without right or authority to defend the suit in so far as it was an election contest, or to defend the attack upon the constitutionality of the statute; (3) that the acts of the defendants in tabulating the returns and promulgating the result of the election would be the performance of purely ministerial duties, and would not in any manner affect the rights of the plaintiffs or cause them injury. Hence the defendants pleaded: (4) That the plaintiffs' petition did not disclose a right or cause of action.

The application for a preliminary injunction was submitted on the pleadings set forth above, and judgment was rendered making the rule absolute and issuing the writ.

The defendants then made application to this court for a writ of prohibition to arrest the proceedings in the district court; and the matter was brought up on a writ of certiorari. In that proceeding it was held that the district court had jurisdiction in the premises, and the relief prayed for by the defendants was therefore denied. See City of Gretna et al. v. Bailey, Secretary of State, et al., 140 La. 363, 72 So. 996.

Resuming proceedings in the district court, the defendants filed a motion to dissolve the writ of injunction. They alleged that the mayor and aldermen of the city had voted in the election complained of, and were thereby estopped from questioning its legality or the constitutionality of the act under which it was held; and they alleged that the municipal corporation, being a creature of the Legislature, had no right to question the constitutionality of an act of the Legislature prescribing a form of government for the city. They alleged that they, the defendants, were not required by Act No. 2 of 1916, nor by the general election law, to tabulate the returns or promulgate the result of a special election of the character of that in contest, and that they would not do so. By mutual consent of the parties hereto the motion to dissolve the injunction was referred to the merits.

The defendants then filed an answer reiterating the contentions made in their answer to the rule and in their motion to dissolve the writ, and denying that the statute in question was, for any reason, unconstitutional or inoperative.

The plaintiffs filed a plea of estoppel alleging that, by the allegation that the tabulating of the returns and promulgating of the result of the election would be the performance of a ministerial duty on the part of the defendants, the latter were estopped from contending in their motion to dissolve the writ, or in their answer to the suit, that they were not required and did not intend to tabulate the returns or promulgate the result of the election.

Many citizens and taxpayers in the city of Gretna, about 80 in number, filed a petition of intervention in which they joined the defendants in their opposition to the plaintiffs' demands.

On trial of the suit upon its merits judgment was rendered in favor of the plaintiffs declaring the Act No. 2 of 1916 unconstitutional, and perpetuating the writ of injunction. The defendants and interveners prosecute this appeal. We are not informed by the opinion or judgment of the district court on what particular ground or grounds he maintained the writ of injunction.

Opinion.

In support of the contention that the municipal corporation of Gretna, being a creature of the Legislature, has no right to question the constitutionality of a statute changing the form of government of the city, the defendants rely upon the decision rendered in Mayor and Council of the City of Carrollton v. Board of Metropolitan Police et al., 21 La.Ann. 447, and that rendered in Town of Donaldsonville v. Police Jury of Ascension Parish, 113 La. 16, 36 So. 873.

The latter decision has no application to the question before us. The doctrine announced was that a municipal corporation had no right of action to prevent by injunction the collection of a tax claimed by the police jury of the parish from one of the residents of the town on property situated within the town. The court took...