City of New Orleans v. State
| Decision Date | 28 November 1983 |
| Docket Number | No. 83-CA-1767,83-CA-1767 |
| Citation | 443 So.2d 562 |
| Parties | The CITY OF NEW ORLEANS, etc., et al. 1 v. The STATE of Louisiana, etc., et al. 2 |
| Court | Louisiana Supreme Court |
Salvador Anzelmo, City Atty., Galen Brown, Asst. City Atty., Phillip A. Wittmann, Wayne J. Lee, Judy Y. Barrasso, Steven W. Usdin, Stone, Pigman, Wlather, Wittmann & Hutchinson, New Orleans, for plaintiffs-appellees.
William J. Guste, Jr., Atty. Gen., Louis M. Jones and Maureen J. Feran, Asst. Attys. Gen., for defendants-appellants.
In this contest between the City of New Orleans and the State of Louisiana over control of Audubon Park, the parties dispute the ownership of the park property and the constitutionality of Act 485 of 1983. Intervenors on behalf of the state include "Friends of the Zoo", a nonprofit group incorporated in 1975 to help the New Orleans Zoo, which is located in Audubon Park.
Plaintiffs, the City of New Orleans, et al, filed suit to enjoin the implementation of Act 485 of 1983, which by its terms, abolishes the Audubon Park Commission for the City of New Orleans with members appointed by the Mayor and creates the Audubon Park Commission as a political subdivision of the state with members appointed by the Governor. The trial court granted the injunction on the ground that the Act was unconstitutional, and the State of Louisiana has appealed. 3
Act 84 of the Extra Session of 1870 was passed "[t]o establish a Public Park for the city of New Orleans and to provide means therefor". A parcel of land on Metairie Road which had been laid out by the City as a public park was denominated "The New Orleans Park" and placed under the exclusive management and control of five commissioners. The Act required the City to levy an additional ten year tax of one-eighth of one percent on all property taxed by the City and remit that money to the commissioners "weekly". The commissioners were authorized to enact park ordinances; purchase and hold property between Metairie Road and Lake Pontchartrain; borrow money; sell corporate bonds or promissory notes as security; mortgage "its real and personal property, as well as the land now belonging to the city of New Orleans, known as the City Park;" and to sue and be sued.
Act 83 of 1871 enlarged the commissioners' powers by allowing them to purchase other real estate within the corporate limits of the City (in addition to that lying between Metairie Road and Lake Pontchartrain). Title to such property would vest "according to its terms." By virtue of this authority, "The Commissioners of the New Orleans Park", a corporate body created by the legislature, purchased for the corporation "and its legal successors and assigns" a portion of the Foucher Plantation lying between St. Charles Avenue and the Mississippi River for $800,000. 4 This acquisition, on August 15, 1871, comprises the major portion of what is now Audubon Park. 5 For part of the price, the commissioners issued bonds secured by a mortgage on the City Park property which had been acquired by the City of New Orleans from the succession of John McDonough in 1852.
By Act 87 of 1877, the legislature abolished the offices of the commissioners and the special tax for the parks. All the powers and duties formerly conferred on the "Park Commissioners" were transferred to the City Council of New Orleans. Among the powers transferred to the City was the right to hold real estate for park purposes. Among the duties transferred was the obligation of paying the balance of the Foucher Plantation debt. As the legal successor of the Commissioners of the New Orleans Park, the City acquired title to the Foucher Plantation property.
created a board of commissioners for the Upper City Park [now Audubon Park] to undertake the management and supervision of the park. Financing was to be through private contributions and municipal funds. The Mayor was designated a permanent member of the board of park commissioners.
Subsequently, Act 103 of 1884 authorized the City to renew and extend payment of "her indebtedness" for the unpaid balance of the price paid for the Foucher Plantation property. Part of the price was the assumption of twenty-seven notes of twenty thousand dollars each. All but four of the notes had been paid. The City was authorized to issue certificates of indebtedness and levy a tax to retire the certificates, thereby avoiding a seizure and sale of the property. The Act recites that the $108,000 balance of the purchase price is "due by said city for said park."
City Ordinance No. 1806, adopted May 31, 1886, created a "Board of Commissioners ... of the Upper City Park" with jurisdiction over the park and neutral ground of St. Charles Avenue. Of the twenty-four members, three were permanent: the Mayor; the Commissioner of Police and Public Buildings; and the Commissioner of Public Works. The other members of the board were to be appointed by the Mayor.
Audubon Park received its name from an 1886 City ordinance which changed the name of the "Upper City Park" to Audubon in honor of John James Audubon.
The first legislative mention of Audubon Park by name appears in Act 130 of 1896 which places the management and control of City Park and Audubon Park with separate corporations, The New Orleans City Park Improvement Association and the Audubon Park Association. Under this statute, the parks cannot be held liable for obligations contracted by the associations. The City of New Orleans was ordered to provide funding for the park associations in its budget. Both parks were treated identically. The Act notes that the Audubon Park Association had previously been incorporated on June 20, 1894.
Ordinance number 11727, enacted January 9, 1896, directed the Mayor to accept title to square number "60", bounded by Felicia Street, Walnut Street, St. Charles Avenue and Audubon Park, which had been donated to the City. The property measured twenty-eight feet front on Felicia Street, eight hundred and thirty-one feet in depth, and fourteen feet in the rear. Ordinance number 2256, enacted February 12, 1904, dedicates the same property to public use as an addition to Audubon Park. 6
Act 191 of 1914 created an Audubon Park Commission for the City of New Orleans and entrusted it with the management and control of Audubon Park. The Commission was composed of twenty-four citizens, property taxpayers of the City of New Orleans, each appointed by the Mayor with the advice and consent of the Council. Upon the request of the Commission, the City was authorized, empowered and directed to issue bonds in an amount not exceeding $100,000 for the maintenance and improvement of the park. These "Audubon Park Bonds of the City of New Orleans" were to be retired from appropriations in the City's budget. "Like other city bonds," they were "exempt from all taxation."
After approval by the voters of New Orleans, Act 351 of 1948 authorized incorporation of the City of New Orleans under a commission form of government. The Mayor, except as otherwise specifically provided by the constitution, the charter or other statutes, was empowered to make all necessary appointments to boards and commissions. The Act stated the intention of transferring to the City:
"[a]ll the powers and duties of government in the city of New Orleans or parish of Orleans and the control of all real public property, and all the powers and duties of boards and commissions other than those provided for by the constitution shall be transferred and vested in the city of New Orleans, ..."
The Audubon Park Commission has never been a constitutional board. This legislation gave the City control of Audubon Park, "real public property," and the powers and duties of the Audubon Park Commission. These powers, functions and duties were retained under Article VI, Section 4, of the Louisiana Constitution of 1974. 7
On July 15, 1948, the Council and Mayor of the City of New Orleans adopted and approved an ordinance to authorize the Audubon Park Commission to purchase from the Texas & Pacific Railway Company for park purposes a portion of ground in the Sixth District bounded by the Mississippi River, Tchoupitoulas Street, Audubon Park and Henry Clay Avenue, containing approximately 21.41 acres. This is the "Avenger Field" or "Mengel Tract" property.
The home rule charter of the City of New Orleans effective May 1, 1954, refers to some "unattached boards and commissions". The Audubon Park Commission is not specifically mentioned, but the Parkway and Park Commission Board shall "administer, control and manage all parks, except those otherwise provided for by applicable state laws."
In 1958, Act 492 authorized the Audubon Park Commission for the City of New Orleans and the New Orleans City Park Improvement Association to control all activities in the parks under their respective management; to contract with private individuals; and to charge rental and/or activity fees for use of the park property. Both parks were treated interchangeably by the legislature. The legislation did not change the authority granted to the Audubon Park Commission for the City of New Orleans by Act 191 of 1914.
Act 150 of 1962 required the "Register of State Lands" to prepare and maintain a listing of all real property owned by or under the control of the state of Louisiana and its boards, commissions, departments and agencies. Audubon Park has never been included in this listing as property of the state or property under the control of a state commission.
Act 305 of 1978 created the New Orleans Exhibition Hall Authority, "a body politic and corporate and political subdivision of the state of Louisiana". The language of this act is significantly different from those dealing with Audubon Park in that it specifically designates the authority as a...
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