Graham v. Jones

• Decision Date: 30 June 1941
• Docket Number: 36159.
• Citation: 3 So.2d 761,198 La. 507
• Court: Louisiana Supreme Court
• Parties: GRAHAM et al. v. JONES et al. In re TUGWELL, State Treasurer, et al.

3 So.2d 761

198 La. 507

GRAHAM et al. v. JONES et al.

In re TUGWELL, State Treasurer, et al.

No. 36159.

Supreme Court of Louisiana

June 30, 1941

Rehearing Denied July 18, 1941. [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Eugene Stanley, Atty. Gen., W. D. Goff and Cicero C. Sessions, Asst. Attys. Gen., G. T. Owen, Jr., Executive Counsel to the Governor, of Baton Rouge (James J. Morrison, of New Orleans, of counsel), for relators.

Kemble K. Kennedy, of Baton Rouge, for respondents.

James Smitherman, of Shreveport, George Wilson, of New Orleans, John B. Smullin, of Baton Rouge, James I. Smith, of Winnfield, Arthur Hammond, of New Orleans, Samuel M. Robertson, of Shreveport, William B. Clarke, of Monroe, William J. Blass, of Rayville, and Charles J. Rivet, C. Ellis Henican, Thomas E. Furlow, and L. F. Wingerter, all of New Orleans, for various amici curiae.

ROGERS Justice.

Six residents and taxpayers of the Parish of East Baton Rouge brought suit attacking the constitutionality of Act 384 of 1940 and seeking injunctive relief against the Governor and other state officials. Exceptions and an answer were filed by the defendants. After a hearing on the rule nisi, the trial judge overruled the exceptions and granted plaintiffs a preliminary injunction against the defendants, A. P. Tugwell, State Treasurer, and L. B. Baynard, State Auditor, plaintiffs having abandoned their suit against the defendants, Sam H. Jones, Governor, and Jerome Hayes, Budget Officer.

The trial judge dismissed plaintiffs' suit against Grady C. Durham, who had superseded Jerome Hayes as Budget Officer.

Under the terms of the preliminary injunction, the State Treasurer and the State Auditor are prohibited 'from accepting, honoring, and acting upon notice or notices from Grady C. Durham, or any other individual claiming authority to exercise the duties as 'Budget Officer,' to transfer funds appropriated to various state agencies named in Act 44 of 1940, to the agencies listed under Act 384 of 1940, upon the plaintiff furnishing bond, according to law, in the sum of Five Hundred ($500.00) Dollars.'

Upon the application of the State Treasurer and the State Auditor, this Court ordered that the record be brought here for the purpose of reviewing the judgment of the trial judge, and, pending such review, that all further proceedings in the suit be suspended. On April 28, 1941, the return day fixed in our order, the matter was submitted on the record and the briefs filed by the parties as provided in section 4 of Rule XI of this Court.

While the case was under consideration by the Court, the Attorney General filed a motion on behalf of the relators requesting that we suspend our rule and permit the case to be reopened and orally argued, because of the importance of the issues involved therein. In view of the public interest in the matter, we granted the motion of the Attorney General and assigned the case for oral argument on June 2, 1941. On the day fixed, the case was extensively argued by counsel representing the parties, after which it was resubmitted to the Court for decision.

In the brief filed on the original submission of the case, counsel for the relators suggested that because of the necessity for a prompt determination of the constitutional questions involved, the Court should pretermit any discussion of the exceptions filed by relators and limit its review only to those questions involved on the merits of the case. But in their oral argument and in their supplemental brief filed in connection therewith, counsel for relators, disregarding their previous suggestion, insisted that the Court should dispose of relators' exceptions, which they exhaustively discussed. This change of position on the part of counsel for relators necessarily requires the Court to pass upon the exceptions interposed by relators to the respondents' suit.

In the district court, the following exceptions were filed on behalf of relators and overruled by the trial judge, to-wit: (1) An exception to the jurisdiction of the court ratione materiae; (2) an exception to the jurisdiction of the court ratione personae; (3) an exception of no cause of action; and (4) an exception of no right of action and want of interest in the plaintiffs. We shall dispose of the exceptions in the order of their statement.

(1) In support of the exception to the jurisdiction ratione materiae, the relators argue that the courts are without right to pass upon the constitutionality of an amendment to an existing constitution; that the question is a political one over which the courts have no control. The argument is not sound.

The question of the validity of the adoption of an amendment to the constitution is a judicial and not a political question. The general rule governing the jurisdiction of the courts in such cases is stated in American Jurisprudence, Constitutional Law, Volume 11, section 33, page 639, as follows:

'Since amendments to Constitutions derive their force from the people, it is generally recognized that judicial tribunals have no right to question the wisdom or expedience of changes made in the fundamental law. Nevertheless, the power to ascertain the validity of changes in the Constitution resides in the courts, and they have, with practical uniformity, exercised the authority to determine the validity of proposal, submission, or ratification of change in the organic law. Consequently, the judicial department of the government invariably has the right to consider whether the legislative department and its agencies have observed constitutional requirements in attempting to amend the Constitution and may set aside their acts in case they have not done so. When a constitutional amendment has been submitted, the single inquiry for the courts is whether the fundamental law has been complied with and whether the amendment has received the sanction of the popular approval in the prescribed manner.'

See, to the same effect, 16 C.J.S., Constitutional Law, �� 7 and 146, where the question is discussed at length.

In Volume 6, page 908, Second Edition of the American and English Encyclopedia of Law, it is said: 'The courts have full power to declare that an amendment to the constitution has not been properly adopted, even though it has been so declared by the political department of the state.' Numerous

authorities are cited in support of the statement.

The editors of the Lawyers' Reports Annotated, in the note appended to the case of Miller v. Johnson, 15 L.R.A. 524, declared that the question of lawful adoption of an amendment to the constitution is a judicial question.

In State ex rel. Morris v. Mason, Secretary of State, 43 La.Ann. 590, 9 So. 776, this Court, as well as the district court for the Parish of East Baton Rouge, entertained jurisdiction of a case where the question involved required a judicial interpretation of Article 256 of the Constitution of 1879. The constitutional article in the Mason case was similar to, if not identical with, Article 21 of the Constitution of 1921, prescribing the method by which that Constitution may be amended.

Counsel for relators, in support of their contention, have cited many old cases, including State ex rel. Oliver v. Warmouth, 22 La.Ann. 1, 2 Am.Rep. 712, and State ex rel. Mississippi Valley Navigation Company v. Warmouth, 24 La.Ann. 351, 13 Am.Rep. 126, with respect to writs of mandamus and injunction against the Governor or other executive officers. But an examination of the decision of this Court in State ex rel. Brenner v. Noe, 186 La. 102, 171 So. 708, shows that those cases were expressly overruled.

Counsel for relators also have cited a number of cases from this and other jurisdictions which have no bearing on the issue presently before the Court, and we shall therefore not discuss them.

(2) The exception to the jurisdiction of the court ratione personae is predicated on the failure or omission of counsel for respondents to allege that the relators, the State Auditor and the State Treasurer, have their offices and domiciles in the Parish of East Baton Rouge, where the suit was originally filed.

The relators do not deny that L. B. Baynard, the State Auditor, and A. P. Tugwell, the State Treasurer, reside and maintain their offices in the Parish of East Baton Rouge. As shown by the prayer of the petition, Mr. Tugwell and Mr. Baynard were sued in their official capacities only. The trial judge was of the opinion that the defect, if any, was cured by the allegations contained in the prayer of the petition. Moreover, the trial judge took judicial notice of the fact that the domiciles of the State Auditor and the State Treasurer are in the Parish of East Baton Rouge.

The cases of State ex rel. Navo v. Baynard, State Auditor, 176 La. 520, 146 So. 41, and State ex rel. Violet Trapping Co., Inc., v. Grace, Register of the State Land Office, 182 La. 405, 162 So. 26, support the proposition that the Nineteenth Judicial District Court for the Parish of East Baton Rouge was vested with original jurisdiction of this case.

We find no error in the ruling of the trial judge.

(3) The exception of no cause of action involves the question of the constitutionality of Act 384 of 1940, which was considered by the trial judge in connection with the hearing on the merits of the rule to show cause why a preliminary injunction should not issue. We shall discuss the question in reviewing the action of the trial judge in granting the preliminary injunction.

(4) Under the exception of no right of action and want of interest in the respondents, counsel for relators challenge the right of respondents, as mere taxpayers, to attack the...