Hebert v. Police Jury of Vermilion Parish
Decision Date | 24 February 1971 |
Docket Number | No. 51144,51144 |
Parties | Alton HEBERT v. POLICE JURY OF the PARISH OF VERMILION. |
Court | Louisiana Supreme Court |
Warren D. Rush, Lafayette, for plaintiff-appellant.
Jack P. F. Gremillion, Atty. Gen., Bertrand DeBlanc, Dist. Atty., Charles R. Sonnier, Asst. Dist. Atty., Foley, Judell, Beck, Morel & Bewley, J. Hugh Martin, New Orleans, for defendant-appellee.
On August 6, 1970, the Police Jury of the Parish of Vermilion by resolution called a special election in Road District No. 7 of said parish for the purpose of submitting to all registered voters in the district, not just to property taxpayers, two propositions--one dealing with the issuance of bonds for the construction and maintenance of roads in said road district and the other levying a tax on property in said district for the construction and maintenance of roads therein. The resolution purported to call the election pursuant to the authority of Louisiana Constitution, Article X, Section 10; Louisiana Constitution, Article XIV, Section 14; and, Act 277 of the Regular Session of the Louisiana Legislature for 1970 (Louisiana Revised Statutes 39:520).
Louisiana Constitution, Article XIV, Section 14(a), provides:
'Municipal corporations, parishes and schools, road, subroad, sewerage, drainage and sub-drainage districts, and irrigation districts, hereinafter referred to as subdivisions of the State, may incur debt and issue negotiable bonds, when authorized by vote of a majority in number and amount, of the property taxpayers qualified to vote under the Constitution and laws of this State, who vote at an election held for that purpose after notice published or posted for thirty (30) days in such manner as the Legislature may prescribed, * * *' Similar property requirements for voting in bond elections are provided by Louisiana Constitution, Article X, Section 10, and by Louisiana Revised Statutes 39:508.
In 1969 the United States Supreme Court decided the cases of Kramer v. Union Free School Dist., 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969) and Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969). Those decisions were followed by Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970); City of Phoenix, Ariz. v. Kolodziejski, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523 (1970) and Stewart v. Parish School Board, 310 F.Supp. 1172 (E.D.La.), aff'd 400 U.S. 884, 91 S.Ct. 136, 27 L.Ed.2d 129 (1970). These decisions severly limit the federal constitutionality of property or taxpayer qualifications for voting in general or special elections. The Stewart decision, supra, applying Kramer and Cipriano, holds that Louisiana Constitution, Article XIV, Section 14(a), and Louisiana Revised Statutes 39:508, are unconstitutional in a case in which they were applied to restrict suffrage in a school bond election.
The Louisiana Legislature, evidently in anticipation of just such an application of Kramer, enacted at its regular session in 1970 its Act 277 (Louisiana Revised Statutes 39:520), providing in part as follows:
'All elections held under this Part shall be held in accordance with the requirements of this Part and Article XIV, Section 14 of the Constitution of Louisiana; provided, however, that if the provisions of the Louisiana Constitution or laws which limit the right to vote at such elections to qualified electors who are also property taxpayers are removed by constitutional amendment or are held to be in violation of the Constitution of the United States by the Supreme Court of this State or the Supreme Court of the United States, then all qualified electors of the subdivision shall be entitled to vote in an election on the incurring of debt, issuance of bonds, levying of special taxes or assumption of indebtedness held under this Chapter and such debt may be incurred, bonds may be issued, special taxes may be levied or indebtedness may be assumed if approved by a vote of a majority in number of the qualified electors voting on the proposition at such election as provided in this section. * * *'
On October 3, 1970 the road election was held in Road District No. 7 of Vermilion Parish. All qualified electors residing in the road district (not just the property taxpayers) were permitted to vote in the election. The propositions carried. Plaintiff-appellant, a property taxpayer and registered voter in Road District No. 7 of Vermilion Parish, whose property would be subject to the road tax, filed suit against the governing authority of said road district, the Police Jury of the Parish of Vermilion, to have the special bond and tax election declared null and void, to enjoin the sale of the bonds voted upon and the levy of the tax voted upon, and to enjoin defendant from executing the statutes of Louisiana purporting to permit all qualified electors, rather than just property taxpayers, from voting in road elections held pursuant to Louisiana Constitution, Article XIV, Section 14. The district court upheld the validity of the election and dismissed plaintiff's suit. Because this suit contests the constitutionality of a tax, plaintiff appealed directly to this court. Louisiana Constitution, Article VII, Section 10(1).
The position of plaintiff in this suit is: (1) that Act 277 of 1970, which provides that 'if the provisions of the Louisiana Constitution or laws which limit the right to vote at such elections to qualified electors who are also property taxpayers * * * are held to be in violation of the Constitution of the United States * * *, then all qualified electors of the subdivision shall be entitled to vote * * *' is unconstitutional as violative of Louisiana Constitution, Article III, Section 27, in that its effectiveness is predicated, at a time indefinite, upon the happening of events beyond the control of the Legislature; (2) that the Legislature was without authority to enact Act 277 of [258 La. 48] 1970 because it conflicts with Louisiana Constitution, Article XIV, Section 14(a); and, (3) that that portion of Louisiana Constitution, Article XIV, Section 14(a), providing that the debt and bond issue must be authorized in an election by a vote of a majority 'in number and amount, of the property taxpayers' qualified to vote, is not severable from the remainder of the section and that, therefore, the entire constitutional provision must fall.
These contentions will be treated in order. Plaintiff's first contention is that Act 277 of 1970 is unconstitutional merely because the Legislature made its operation contingent upon the judicial determination that Louisiana Constitution, Article XIV, Section 14, is unconstitutional. That contention is without merit. Just as the Supreme Court of the United States may declare the 'effective date' of its legislative incursions, as it did in Cipriano, 395 U.S. 701, 706, 89 S.Ct. 1897, 1900--1901, 23 L.Ed.2d 647, and as it did in Phoenix, 399 U.S. 204, 90 S.Ct. 1990, 1996--1997, 26 L.Ed.2d 523, so, too, may the Louisiana Legislature. 'It is now well settled that the Legislature may make the operation or application of a statute contingent upon the existence of certain conditions * * *' Schwegmann Bros. Giant Super Markets v. McCrory, 237 La. 768, 112 So.2d 606, 613 (1959); accord, Ricks v. Department of State Civil Service, 200 La. 341, 8 So.2d 49, 62 (1942).
Examples abound of valid enactments that are 'law' at the time of their passage and signature, but whose operation is suspended until the occurrence of a certain condition. Laws exist to protect the public in the event of disaster: war, flood, hurricane, riot, epidemic. We see no reason why the Legislature may not regard incursions of the federal judiciary into state matters in the same manner that it treats other unpredictable hazards.
Plaintiff's second contention is that the Legislature was without authority to enact Act 277 of 1970 because it conflicts with the Louisiana Constitution, Article XIV, Section 14(a). To the extent that the Louisiana Constitution conflicts with the United States Constitution, this contention is without merit. To the extent that the 'property taxpayer' restriction of Section 14(a) remains valid under the federal Constitution, however, plaintiff's contention is well taken. Act 277 of 1970 applies only to the extent that Kramer, Cipriano, Turner, Phoenix and Stewart apply to the situation at hand, if at all.
Indeed, the Legislature might even provide methods for the approval of road bonds and taxes alternative to and wholly outside of the method provided in Louisiana Constitution, Article XIV, Section 14(a). In the case of Stovall v. City of Monroe, 199 La. 195, 5 So.2d 547, 552 (1941), this court ruled:
'The Legislature under our law is empowered to pass any law not prohibited by the Federal and State Constitutions.
In the instant case, however, the police jury purported to call the election pursuant to Louisiana Constitution, Article XIV, Section 14, and pursuant to Act 277 of 1970, which act by its own terms refers back to the constitutional provision. Accordingly, the constitutional 'property taxpayer' qualification, to the extent that it is not invalidated by the federal Fourteenth Amendment, applies to the instant road election.
Plaintiff's third contention is that that portion of Louisiana Constitution, Article XIV, Section 14(a), providing that the debt and bond issue must be authorized in an election by a vote of a...
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