Duffy v. City of New Orleans

Decision Date14 December 1896
Docket Number12,310
Citation21 So. 179,49 La.Ann. 114
CourtLouisiana Supreme Court
PartiesJOHN A. DUFFY ET AL. v. THE CITY OF NEW ORLEANS ET AL

Argued December 1, 1896

Rehearing Refused January 18, 1897.

APPEAL from the Civil District Court for the Parish of Orleans. King J.

Rouse &amp Grant, for Plaintiffs, Appellants.

Samuel L. Gilmore, City Attorney, for City of New Orleans, Defendant and Appellee.

Bernard McCloskey, for Board of Commissioners of the Port of New Orleans, Defendant, Appellee.

OPINION

BREAUX J.

From the refusal of the court a qua to grant the injunction applied for in this case, plaintiffs, residents of the city, owners of property therein, and taxpayers, prosecute this appeal.

The plaintiffs assert that Act 70 of 1896 is unconstitutional and void.

Whether the Legislature can pass a valid act to establish a commission for the port of New Orleans, define their powers and duties, provide a revenue therefor, is the question before us.

The first ground of nullity urged is that the act creates a corporation, and is in consequence obnoxious to Art. 46, prohibiting the General Assembly from passing any local or special law creating corporations.

Some question also has been made regarding the power of the Governor to appoint the members of the board.

It is in point to state that it is declared in the preamble of the act that public notice has been given as required by Art. 48 of the Constitution. It also contains the declaration, which we paraphrase as follows for the sake of brevity: The port of New Orleans has been gradually extended beyond the corporate limits; the divided authority of three parishes and consequent fees, injuriously affect the traffic of the port and threaten to divert the trade to other ports; the supervision and control of a board will consolidate the service of harbor-master and wardens, wharf superintendents, wharfingers of three parishes under one body at a reduced expense.

The controlling motive is, it is further stated, to operate and improve the wharves, develop and expand the commerce of the port on the lines above indicated.

Act 70 of 1896, under which a Board of Commissioners was appointed, does not create a corporation.

We think that the Legislature may, without contravening the article of the Constitution ordaining that the General Assembly shall not pass any local or special law creating corporations, provide for the appointment of a Board of Commissioners, with powers and duties set forth and defined in the act under consideration. The "Board of Commissioners" authorized by the act of 1896 is not a body corporate within the meaning of the Constitution. It is obvious that the Legislature did not intend to create a corporation. Generally, a corporation has succession in its corporate name; it may plead and be impleaded; it may hold and convey property.

The board here is not invested with all these qualities, essentials to the existence of a corporation.

The act empowers this board to administer the public wharves of the port and invests it with certain duties. The matter is, we think, one chiefly of administration. The Legislature had the power to pass an act to administer the affairs of the public wharves and levees through agents.

Having this power it had the power to carry the legislative will into execution through the intervention of a Board of Commissioners appointed for the purpose, without necessarily creating a corporation within the inhibitory clause of the Constitution. Though the board may possess some of the incidents of a corporation, it is not necessarily a corporation.

The provisions of the act can only be regarded as regulations and agencies to be enforced by this board. It is given such authority as may be needful to that end. The members are agents acting together.

This board is not a body corporate with privileges and immunities such as public corporations must have. The most that can be alleged is that the act authorizes the board to perform certain designated acts, which we must assume are in the interest and for the welfare of the State. The general modes of creating corporations are not before us for consideration. We are only concerned with an act of public agency passed for a special purpose. As such we do not think that it should be adjudged a public corporation.

Conceding that the constitutionality of the act is not as clear as it might have been made to appear, the authorities hold that every possible presumption and intendment will be made in favor of the constitutionality of an act, and that the courts will only interfere in cases of clear and unquestioned violation of the fundamental law. It has been repeatedly said that the presumption is that every State statute, the object and provision of which are among the acknowledged powers of legislation, is valid and constitutional; and such presumption is not to be overcome unless the contrary is clearly demonstrated.

Sedgwick on the Construction of Statutory and Constitutional Law, p. 409.

INTERPRETATION ALMOST CONTEMPORANEOUS WITH THE CONSTITUTION.

It is agreed by all the books that to contemporaneous interpretation due weight should be given in cases of ambiguity and uncertainty. A number of acts have been passed creating similar boards in this State, under which commissioners have been appointed by the executive. In matters of public health, in administering the affairs of canals and other interests in which the State is concerned, boards are appointed with the silent acquiescence of the people, including the legal profession and the judiciary.

Great deference, said the Supreme Court of New York, is certainly due to legislative exposition of a constitutional provision, especially when it is made almost contemporaneous with such provision, and might be supposed to result from the same policy and mode of reasoning which prevailed among the framers of the instrument propounded in convention assembled. People vs. Green, 2 Wend. 266, 274.

The maxim itself is, Contemporanea exposito est fortissime in lege.

APPOINTMENT OF THE BOARD OF COMMISSIONERS.

The second point, relating to the appointment of the officers who should he charged with the administration of the wharves and revenues, is more particularly taken by the city of New Orleans.

The city avers that the matters involved are local and municipal, and that under Art. 253 of the Constitution the officers charged with such duties must hold their offices from the people in the city.

It is not alleged that the city, through any of its officers, can enforce the act. This is impossible under the law. It must be enforced, in so far as relates to the selection of the members of the board in accordance with its provisions, or it can not be enforced at all.

Article 253 is in these words:

"The citizens of the city of New Orleans, or any political corporation which may be created within its limits, shall have the right of appointing the several public officers necessary for the administration of the police of said city, pursuant to the mode of election which shall be provided by the General Assembiy." (Italics ours.)

The organic law, in terms, secures "the right (to the city) of appointing the several public officers necessary to the administration of the police," while the Board of Commissioners have the power of "providing for lighting and policing the wharves and sheds." They are not necessarily conflicting duties. One power is not necessarily opposed to the other. One may provide funds and the other may have charge of the police of the wharves.

The act in question, as relates to the appointment of the members of the Board of Commissioners, is not unconstitutional.

The story of the wharves is gracefully narrated in the brief. Counsel, in support of their cause, quote from well considered decisions of our predecessors. First Municipality vs. Pease, 2 An. 542; Louisiana State Bank vs. Orleans Navigation Company, 3 An. 295; Stewart vs. City of New Orleans, 9 An. 461.

It is also supported by reference to the utterances of prominent legislators in the past history of the State, whose learning and ability were conspicuous in directing the course of legislation and safeguarding public interest. The gist of the narration is that since the days of Governor O'Reilly, under Spanish dominion, ordinances have been enacted by the city relative to fees for wharfage, and that the city always had complete and absolute charge of the police.

It is possible that the historic argument loses its immediate point, in view of the fact that private rights, in so far as appears in this case, are not to be interfered with, and that the police is to remain under the direction of the city authorities.

We refer to one of the cited authorities in counsel's brief, and one upon which, we infer, they confidently rely. In the case cited, that is in Edgerton vs. New Orleans, 1 An. 437, Mr. Justice Rost, speaking for the court, said in substance: That the city had special sovereign power; it had the right to appoint the several police officers necessary for the administration of the police. A right which we also hold can not be questioned.

This right, the court in the last cited case justly said, is secured and rendered permanent by Art. 128 of the Constitution.

And further the court says: "The counsel derides the idea that the city is invested with sovereign powers. Names can not alter things....

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