City of New Orleans v. Dameron

• Decision Date: 04 October 1921
• Docket Number: 24385
• Citation: 149 La. 535,89 So. 685
• Court: Louisiana Supreme Court
• Parties: CITY OF NEW ORLEANS v. DAMERON et al

89 So. 685

149 La. 535

CITY OF NEW ORLEANS v. DAMERON et al

No. 24385

Supreme Court of Louisiana

October 4, 1921

Appeal from Civil District Court, Parish of Orleans; Fred D. King Judge.

Action by the City of New Orleans and Martin Behrman, Mayor, against Frank Dameron and others, as members of a state commission for injunction, and preliminary writ issued as prayed for and subsequently the State was substituted for the original defendants, and from a judgment dismissing their rule to dissolve the injunction, the State and the Governor, through the Attorney General, procured a devolutive appeal.Judgment appealed from affirmed as to the plaintiff Martin Behrman and reversed as to the City of New Orleans, and preliminary injunction held no longer in force.

Judgment appealed from affirmed as to the plaintiff Martin Behrman, and reversed as to the City of New Orleans, and preliminary injunction held no longer in force.

A. V. Coco. Atty. Gen., L. E. Hall, Asst. Atty. Gen., and P. A. Sompayrac, of New Orleans, for the State.

Isaiah D. Moore and John F. C. Waldo, both of New Orleans, for appellee Behrman.

OPINION

Statement of the Case.

MONROE C. J.

Act 37 of the General Assembly of 1920 created a "commission," the members of which were to be, and were appointed by the Governor, for cities having a population of over 100,000 inhabitants, and imposed upon it the duty --

"to investigate the management of all municipal boards and commissions located or existing within the limits of said cities, and all the departments of said cities' governments, and each parochial and municipal office of said cities, and of the affairs and form of government of said cities, and to make report of its findings and recommendation to any constitutional convention that may be called by the present General Assembly, and the next session of the General Assembly, and to the Governor, from time to time, whenever requested by him so to do, to the end that the people of said cities may be helped to obtain that form of government which will best lend itself to service and efficiency, and that will not serve as a cloak or agency for the construction and maintenance of a political ring or rings," etc.

The act provided for the organization of the commission, authorized it to employ officials, clerks, etc., and fix compensation; to summon witnesses, compel their attendance and examine them; to call for books and papers; and appropriated $ 25,000 for the payment of its expenses.

As there is not, and has never been, and is not likely to be, for some years to come, a city in Louisiana, except New Orleans, with a population exceeding 100,000, it is evident that the act was intended to apply to New Orleans, and is inapplicable to any other city. The city of New Orleans, so regarding it, therefore, by authority of its council, and through Martin Behrman, its mayor, and Martin Behrman individually, in his capacity as an elector and taxpayer, brought this suit, attacking the constitutionality of the act in question, and praying that a preliminary injunction issue prohibiting the members named by the Governor from organizing the commission so created, and, after due proceedings, that the injunction be made perpetual: and the preliminary writ was issued as prayed for. Thereupon the members, made defendants, ruled plaintiffs to show cause why said preliminary injunction should not be dissolved, upon the grounds alleged by them, including the following, to wit: "that neither said city or any officer thereof, or any individual taxpayer, has any right or cause of action to restrain such action" -- meaning the action contemplated by the statute, and, after hearing, there was judgment dismissing their rule. About that time, the state appeared in the case, and, taking the place of the original defendants, filed an answer to plaintiff's petition in which it is alleged, inter alia:

"That the plaintiffs in injunction have no interest nor legal right entitling them, or any of them, to question the constitutionality of said Act 37 of 1920, or to prevent the organization * * * of the commission, or otherwise to obstruct or prevent the proposed investigation, on any ground whatsoever."

The original defendants took no appeal from the judgment dismissing their rule to dissolve the injunction, but three months later (on December 1, 1920) the state and the Governor, through the Attorney General, appeared, and alleging that they were aggrieved by said judgment, and that a devolutive appeal was necessary in order to prevent irreparable injury, obtained an order for such appeal, which was duly returned...