Mulhaupt v. City of Shreveport

• Decision Date: 23 May 1910
• Docket Number: 18,147
• Citation: 126 La. 780,52 So. 1023
• Court: Louisiana Supreme Court
• Parties: MULHAUPT et al. v. CITY OF SHREVEPORT

52 So. 1023

126 La. 780

MULHAUPT et al. v. CITY OF SHREVEPORT

No. 18,147

Supreme Court of Louisiana

May 23, 1910

Appeal from First Judicial District Court, Parish of Caddo; A. J Murff, Judge.

Action by J. T. Mulhaupt and others against the City of Shreveport in which certain persons intervened. From the judgment certain interveners appeal. Affirmed.

Emerson Bentley, for appellants Fisher and others.

Lewell C. Butler, City Atty. (Blanchard, Barret & Smith, of counsel), for appellee City of Shreveport.

Hall &amp Jack, for appellee Hodge.

D. T. Land and T. F. Bell, Jr., for other appellees.

BREAUX, C.J. LAND, J., recused.

OPINION

BREAUX, C.J.

This is an action brought to have declared null a resolution of the council, the proclamation of the mayor calling an election, the promulgation of the election, and the election.

The election was held on the 1st day of September, 1908.

The petitioners represent that they are citizens and taxpayers in the territory annexed to the city of Shreveport, having been brought therein by the election, which they contend is null on a number of counts in their petition.

Inter alia that Act No. 309 of 1908, under which the election was held, is null and void, as it is a special law and was not published as directed by article 50 of the Constitution; also article 49 of that instrument; that by the terms a repeal of Act No. 105 of 1892 had been effected; that the city of Shreveport went beyond its jurisdiction entirely in ordering an election outside of its territorial limits.

Judgment was rendered against plaintiffs.

Third persons -- i.e., taxpayers other than plaintiffs, alleging that they are aggrieved -- presented a petition in open court for an appeal, and produced affidavits in support of the petition.

No objection was raised; an appeal was granted.

Motion to Dismiss the Appeal.

Plaintiffs and appellants deny that appellants Fisher and others have any interest in the appeal, and urge that the ex parte affidavits filed by them are not sufficient to prove interest.

Plaintiffs who move to dismiss the appeal, and the intervener, whose appeal plaintiffs move to dismiss, cannot have any very great conflicting interest. They are all taxpayers complaining of the election held.

In appellant's petition of appeal, they adopt the averment of plaintiff's petition attacking the legality and constitutionality of Act No. 309 of the General Assembly of the session of 1908 and the action of the mayor and city council of the city of Shreveport in holding an election.

They reiterate substantially every allegation of plaintiffs in regard to the election; they are in matter of this, not in all respects, opponents to annexation.

We do not find the least difference. They aver that plaintiffs, having failed after considerable delay to take an appeal, they deem it to their interest to take and prosecute an appeal.

If there is any difference in the position of appellants and plaintiffs, it is not made evident by anything in the record.

Plaintiffs are unwilling to accept the appellants as allies, contending that they (plaintiffs) represent the taxpayers, and that there is no warranty for interference by appellees in their suit.

They do to some extent represent taxpayers in settling the law of the cases. It is not a representation which excludes others from taking part in opposing an election, particularly when they join in all that has been alleged as a ground of nullity.

Appellants are third persons and have a right of appeal.

As Relates to the Affidavits.

The correctness of the judgment appealed from is to be tested by the facts pleaded and the evidence; no new issue can be interjected into the cause on this appeal.

The following is sustained by a number of decisions. The grievance complained of may be established by affidavit. There was no objection made in the district court when the appeal was granted or at any time thereafter. Garland's Code of Practice, p. 671, No. 1, note C.

The motion to dismiss is overruled.

The necessity vel non of publishing notice of intention of applying for the enactment of an act such as No. 309 of 1908, it being a local or special act, is the next point.

That the extension of the city limits changes the Caddo parish lines is another ground.

The next ground is that the city had no authority to order an election beyond its limits.

That the city had no authority to change the polling places established by the police jury to other places of her own selection.

That the question should have been submitted to the qualified voters of the proposed extension, and not to the voters of the whole city, including those in the extension proposed.

That the city authorities paid no attention to the registration laws; dispensed with them altogether. There was no list of voters at precincts seven and eight.

That women in the proposed extension were denied the right to vote.

That they, plaintiffs and appellants, were deprived the right of representation at the polls.

The different pleas are abbreviated.

Opinion and Judgment.

We take up for decision the first point noted above.

At first blush the limitations of the Constitution, expressed in one of its articles, has an unfavorable bearing on the act of the General Assembly, viz. No. 309 of 1908, under which the election was held. Paragraph 12 of the article is quite prohibitive in its first two lines, but permissive in the lines which follow as a proviso.

The General Assembly is directed not to pass local laws creating corporations or amending or renewing or explaining their charters.

The last part of the article (the proviso) is permissive to the General Assembly, provided that this limitation cannot be made to apply to municipal corporations with a population of over 2,000 inhabitants.

It has been decided that corporations excepted by the proviso are emancipated from the effect of the other article (50) of the Constitution requiring notice before the bill passed can become a law. Fortier Case, 104 La. 561, 29 So. 215.

That decision is controlling unless we conclude to set it aside and overrule it, a step we are not inclined to take.

The court held in the cited case, substantially, that the reference in the first part of the paragraph of subdivision 12, art. 48, had an unfettering effect to the extent stated in the opinion.

The question is not free from difficulty in deciding it. We shall leave the decision as it is. It has been accepted as correct for a number of years. It has been acted upon, approvingly cited, and commented upon. It would serve no good purpose to undo that which has been done, or to recall that which has been said.

We are informed that it would have a disturbing effect on local conditions if we were to declare the statute null, passed, doubtless, on the faith in the decision.

Taxes have been collected, bonds issued, and other acts done that would have to be recalled, and much would have to be done to restore as far as possible the status quo ante electionem.

This applies to all acts to date.

We intend, none the less, to let...