Johnson v. Sewerage Dist. No. 2 of Caddo Parish

• Decision Date: 25 April 1960
• Docket Number: No. 44961,44961
• Citation: 239 La. 840,120 So.2d 262
• Parties: Tyre JOHNSON, John W. Lowery and Albert Julius Lowery, v. SEWERAGE DISTRICT NO. 2 OF THE PARISH OF CADDO, State of Louisiana.
• Court: Louisiana Supreme Court

Page 262

120 So.2d 262

239 La. 840

Tyre JOHNSON, John W. Lowery and Albert Julius Lowery, v. SEWERAGE DISTRICT NO. 2 OF THE PARISH OF CADDO, State of Louisiana.

No. 44961.

Supreme Court of Louisiana.

April 25, 1960.

Foley, Cox & Judell, John W. Cox, New Orleans, Carstarphen & Ross, N. B. Carstarphen, Shreveport, for defendants-appellants.

Bean & Smith, Lafayette, amicus curiae.

Martin, Himel, Morel & Daly, New Orleans, J. Hugh Martin, Lake Charles, Lehmann & Oubre, Norco, amici curiae.

Love & Rigby, Shreveport, for plaintiffs-appellees.

SIMON, Justice.

As duly qualified voters and property owners in Sewerage District No. 2 of the Parish of Caddo, Louisiana, plaintiffs instituted this action to have declared null, void and of no effect a special bond and tax election held on April 25, 1959, in said district, a political subdivision of this State duly created by Ordinance of the Police Jury of Caddo Parish, adopted September 11, 1958, its creation being in full compliance with the provisions of Article XIV, Section 14(c), of the State Constitution, LSA, and LSA-R.S. 33:3881-33:3890, inclusive. The numbered statutes appear under the title of Sewerage Systems or Districts outside municipalities, the pertinent parts of which are hereinafter referred to. In compliance therewith, particularly LSA-R.S. 33:3887, said ordinance also appointed three property taxpayers residing within the District to function as the Board of Supervisors of said Sewerage District, and as such, to be the governing authority thereof.

Following their appointment the Board of Supervisors met and organized on the date and at the time specified in said Ordinance; and it is conceded that said Board has continuously officiated as the governing authority of the District in all of its legal and administrative affairs. After complying with all legal requirements the Board of Supervisors ordered the calling and holding of an election in said District to obtain the consent or disapproval of the property owners, both in sufficient numbers and assessed valuation, in the proposed issuance of ad valorem tax bonds totalling $85,000 for the announced purpose of constructing, maintaining and operating sewerage disposal works, title to which would vest in the public.

Following the holding of the election on April 25, 1959, the Board of Supervisors met at the closing of the polls, and as the governing authority, opened the ballot box, counted the ballots in number and amount, canvassed the returns and declared the results. The minutes of the Board reflecting all matters in connection therewith were duly published in the official journal of the District.

In contesting the legality of said election, plaintiffs assert:

(1) That LSA-R.S. 39:503, which requires only four publications of the notice of the special election, violates Article XIV, Section 14(a) of the Constitution;

(2) That the Board of Supervisors had no right, power or authority to order or hold said election, since the Police Jury of the Parish of Caddo is legally the governing authority of the Sewerage District;

(3) That alleged irregularities nullify the election; and

(4) That the amount of tax bonds voted exceeds the debt limitation fixed by Article XIV, Section 14(f), of the Constitution.

Pursuant to a rule initiated by plaintiffs, the lower court ordered the opening of the ballot box used in the election, and it is conclusively shown that the recount commissioners, after viewing all ballots in the presence of the judge, found the election to have carried in both number and amount.

On the merits judgment was rendered declaring the election null, void and of no effect. In so decreeing the district judge concluded that LSA-R.S. 39:471 was not repealed by Acts 494 and 495 of the Legislature of 1952, and that since LSA-R.S. 39:471 specifically designated the Police Jury of the Parish as the governing authority of sewerage districts for the calling of a tax bond election, the Board of Supervisors of the District Possessed no legal right to do so.

From this judgment defendant has appealed.

It is the contention of defendant-appellant that the two above-numbered statutes of 1952 (Acts 494--495) clearly repealed LSA-R.S. 39:471 insofar as the governing authority of parochial sewerage districts is concerned, and specifically designate the Board of Supervisors as the legal governing authority for all purposes.

On the other hand, plaintiffs rely on the conclusions announced by the lower court contending that the two statutes (LSA-R.S. 39:471 and Act 495 of 1952) are not inconsistent or irreconcilable, urging that the subject matter of each is separable from the other. In the alternative, they argue that if the two statutes cannot be reconciled that the adoption of Act 495 of 1952 did not work a legal repeal of LSA-R.S. 39:471, but had the legal effect of amending the latter statute, changing only a part of it, and that as such the amendment does not conform to the provisions of Article III, Section 17, of the Constitution. ¹ In answer to this appeal plaintiffs re-urge all of the charges contended for below and as above set forth, save and except the complaint that the votes were not legally counted and canvassed, which they now concede was properly done.

It will now be noted that we have been favored with two scholarly briefs submitted amicus curiae by Sewerage District No. 1 of the Parish of Lafayette, Louisiana, and that of Sewerage District No. 1 of the Parish of St. Charles, Louisiana, which considered with the equally scholarly briefs of the litigants have been of material aid to us in resolving the issues presented.

The primary or crucial question presented is whether the Police Jury of the Parish in which a sewerage district is or has been created, outside of municipal boundaries, is the legal governing authority of such sewerage district, or whether the Board of Supervisiors appointed for such district is the governing body thereof.

To determine the main issue and whether there is an irreconcilable conflict between LSA-R.S. 39:471 and Act 495 of 1952 an examination of the applicable law is in order.

Article XIV, Section 14(c), of our Constitution of 1921 provides that the Legislature:

'* * * may, be general law, and within the limitations and conditions herein contained, authorize sewerage districts, Through the police jury of the parish, as the governing authority thereof, * * * to incur debt and insue negotiable bonds * * *.' (Italics ours.)

At the following extra session of the Legislature in 1921, enabling Act 46 was enacted to implement and carry into effect the afore-quoted constitutional article. This Act and Article XIV, Section 14, of the Constitution of 1921, became the embodiment of the entire law of the State at that time with respect to the incurring of debt and the issuing of tax bonds by parishes, municipalities and political subdivisions of the State, such as road, sewerage, fire protection, waterworks, gravity drainage, school, and hospital service districts, respectively. Therein was enumerated the corporate status, powers, governing authority and other administrative powers and matters in regard to these subdivisions.

In 1924 the Legislature enacted two Acts, Nos. 209 and 222. The latter was a complete statute authorizing the creation of sewerage districts outside the corporate limits of municipalities, enumerating their corporate status and powers, Naming the police jury as the governing authority, designating the officers of the district, and providing for the corporate seal, and other interrelated matters of administration. This Act was later incorporated in the Louisiana Revised Statutes of 1950. ² Act 209 of 1924 was enacted amending Act 46 of 1921, supra, so as to designate, besides providing for administrative and other kindred matters, the police jury of the parish the governing authority of sewerage districts therein created outside of municipalities. The provisions of Act 46 of 1921 as thus amended was likewise incorporated in the Revised Statutes of 1950 as LSA-R.S. 39:471. ³ Title 39 is entitled and treats of 'Public Finance' as well as 'Local Finance.'

In its 1952 session the Legislature proposed Act 494, an amendment to Section 14(c) of Article XIV, referred to above, and this amendment, being duly ratified by the electorate at an election held in November 1952 changed the wording of said constitutional section which formerly read 'through the police jury of the parish, as the governing authority thereof, or through the governing body of such municipal corporation, as the case may be, to incur debt and issue negotiable bonds * * *.' to read '* * * Through the governing authority thereof, to incur debt and issue negotiable bonds * * *.' (Italics ours.) Manifestly, the sole purpose of so amending this constitutional provision was to delete the specific designation of the governing authority of sewerage districts and to leave to the Legislature the power of such designation.

As a companion or enabling measure to the proposed constitutional amendment, supra, the Legislature of 1952 amended and re-enacted LSA-R.S. 33:3885--33:3889, added two new sections, Section 6 being designated as LSA-R.S. 33:3890, and Section 7, providing that 'this act shall become effective upon the approval by the electors of the constitutional amendment * * *.' (Act 494 of 1952, supra, the proposed constitutional amendment.)

A comparison of the provisions of LSA-R.S. 33:3885--33:3889 with the provisions of the amending and re-enacting Act 495 of 1952 clearly evidences the exact and pointed changes effected as regards the governing authority of parochial sewerage districts.

Firstly, LSA-R.S. 33:3885 originally provided that 'Any parish, through its governing authority,' which undoubtedly signifies the police jury, shall adopt and enforce rules, regulations, and ordinances in the financial administration of sewerage districts. The amending statute (Act 495...