Ricks v. Close

• Decision Date: 25 May 1942
• Docket Number: 36549.
• Citation: 9 So.2d 534,201 La. 242
• Court: Louisiana Supreme Court
• Parties: RICKS v. CLOSE, Director of Finance, et al.

9 So.2d 534

201 La. 242

RICKS v. CLOSE, Director of Finance, et al.

No. 36549.

Supreme Court of Louisiana

May 25, 1942

Rehearing Denied July 20, 1942.

Eugene Stanley, Atty. Gen., W. D. Goff, First Asst Atty. Gen., A. M. Suthon and Joseph A. Loret, Sp. Asst. Atty Gen., and Arthur B. Hammond, of New Orleans, and James I. Smith, of Baton Rouge, for defendant and appellants.

Kemble K. Kennedy, of Baton Rouge, for plaintiff and appellee.

PONDER Justice.

In this suit the plaintiff, O. Dolan Ricks, a resident and taxpayer of East Baton Rouge Parish, Louisiana, attacks the constitutionality of Acts Nos. 47 and 48 of 1940. In the alternative, in event that Acts Nos. 47 and 48 are held not violative of the Constitution, he attacks the resolution of the Board of Liquidation of the State Debt, adopted August 26, 1941, as being violative of the Constitution. In the further alternative, in event the acts and the resolution complained of are held not violative of the Constitution, he attacks the validity of the resolution of the Board of Liquidation of the State Debt complained of and Act No. 35 of 1918 on various other grounds. He seeks to enjoin any further withdrawal from the State Treasury of the unexpended balance of $270,000 borrowed under a resolution of the Board of Liquidation of the State Debt, wherein a loan of $540,000 was provided and authorized for the Department of Finance. The defendants, Martin L. Close, Director of Finance, the Department of Finance, L. B. Baynard, State Auditor, and Andrew P. Tugwell, State Treasurer, interposed exceptions of vagueness, immateriality, no cause and no right of action. The exceptions were overruled in the trial court. Upon hearing of the rule nisi, the trial judge granted the plaintiff a preliminary injunction, prohibiting the Director of Finance and the Board of Finance from issuing any warrants or orders for the withdrawal from the State Treasury of any further part of the unexpended $270,000, already borrowed under the resolution of the Board of Liquidation of the State Debt, adopted August 26, 1941, wherein a loan of $540,000 was provided and authorized for the Department of Finance, and from expending any part of the loan for any purpose whatsoever; prohibiting the State Auditor from issuing warrants or signing any check on any of the funds involved herein; and enjoining and prohibiting the State Treasurer from honoring or paying any warrant drawn thereon by the Director of Finance, the Board of Finance, the Department of Finance or the State Auditor, upon the plaintiff's furnishing bond in the sum of $250. Upon application to this court, the defendants were granted a suspensive appeal. The matter has now been submitted for our determination.

Counsel for the defendant does not point out in his brief or in his argument in what manner the plaintiff's petition is vague. We have examined the petition and have arrived at the conclusion that there is no merit in this exception.

The exception of immateriality appears to be leveled at the many allegations in the plaintiff's petition to the effect that certain provisions contained in acts Nos. 47 and 48 of 1940 are violative of certain sections of the State and Federal Constitutions. We see no merit in the exception for the reason that laws are presumed to be constitutional until the contrary is made to appear, and the one who urges the unconstitutionality of a law must not only specially plead its unconstitutionality but must show specifically wherein it is unconstitutional. City of Shreveport v. Pedro, 170 La. 351, 127 So. 865; State v. Hudson, 162 La. 543, 110 So. 749; Ward v. Leche, 189 La. 113, 179 So. 52; Pugh et al. v. Police Jury of Livingston Parish, 196 La. 1025, 200 So. 450.

The defendants' exceptions of no cause and no right of action are leveled at the right of the plaintiff, a taxpayer, to maintain an action to enjoin State officials from expending public funds under color of authority of alleged unconstitutional statutes. No purpose could be gained by reviewing the various arguments advanced by counsel for defendants to the effect that the plaintiff was without right to maintain the present action. The right of a taxpayer to maintain an action of the nature involved herein is no longer open to dispute. Graham v. Jones, 198 La. 507, 3 So.2d 761; Stewart v. Stanley, 199 La. 146, 5 So.2d 531.

Counsel for the plaintiff contends that Acts Nos. 47 and 48 of 1940 are unconstitutional. Counsel, among other grounds, takes the position that Acts Nos. 47 and 48 are so interwoven with and dependent upon Act No. 384 of 1940, that when Act No. 384 was declared unconstitutional in the case of Graham v. Jones, 198 La. 507, 3 So.2d 761, both of the acts were stricken with nullity. The argument is advanced that it would be impossible to separate the valid from the invalid parts of these statutes without destroying the intention manifested by the Legislature in passing the acts.

Act No. 384 of 1940 was a joint resolution adopted by the Legislature, proposing to amend the Constitution of this State in a number of important particulars. The resolution was submitted and adopted at an election held on November 5, 1940, as Proposed Constitutional Amendment No. 3 or Act No. 384 of 1940. In the case of Graham v. Jones, supra, Act No. 384 of 1940 was held unconstitutional.

From a mere reading of Acts Nos. 384, 47, and 48 of 1940, all passed at the same session of the Legislature, it is apparent that they are interrelated, interwoven and designed to form a comprehensive scheme for the reorganization of the Executive Branch of the State Government and to establish a unified financial system of administration. Act No. 384 of 1940 not only proposed certain amendments to the Constitution of this State relative to the form of organization of the Executive Department and a unified system of financial administration, but also outlined the plans by which these purposes were to be accomplished. It was pointed out in our opinion in the case of Graham v. Jones, supra, that the proposed amendment, Act No. 384, purported to change six articles of the Constitution by repealing twenty sections, amending and rewriting eight sections and adding seventeen new sections. Among the changes in the Constitution sought to be made were the amendment of Article V of the Constitution, Sections 1, 18, and 20, and the addition of nine new sections to be known as Sections 22-30, inclusive. These proposed changes in the Constitution would have entirely recasted the set-up of the Executive Department. Under the Constitution of 1921, the Executive Department consisted of the Governor, the Lieutenant Governor, Auditor, Treasurer, Secretary of State, Register of Land Office, Commissioner of Agriculture and Immigration, and the Commissioner of Conservation. Under the proposed changes in the Constitution, the Executive Department was to consist of the Governor and the Office of the Governor, not to exceed twenty administrative departments, and three independent establishments, all of which together was to be known as the Administrative Service. See Act No. 384, Section 3(a), amending Section 1 of Article V of the Constitution. In one of the new sections, Section 22, proposed to be added to Article V of the Constitution under Act No. 384, Section 3(d), the aforementioned administrative departments were to be: Department of Revenue; Department of the Treasury; Department of Finance; Department of State; Department of Education; Department of Occupational Standards; Department of State Lands; Department of Agriculture; Department of Labor; Department of Banking; Department of Public Service; Department of Public Welfare; Department of Institutions; Department of Health; Department of Public Safety; Department of Highways; Department of Public Works; Department of Conservation; Department of Minerals; Department of Military Affairs. Without going into the other changes sought to be made in the Constitution to bring about the reorganization of the Executive Department, it is sufficient to say that, when Act No. 384 was declared void, the plan to reorganize this department necessarily fell.

Act No. 47 of 1940 purports to reorganize the Executive Department in accordance with the plan outlined in the proposed amendment, Act No. 384 of 1940. Without going into a lengthy discussion of this act, we will point out some of the material provisions showing that it follows the plan outlined in the proposed amendment. It is provided in Title II, Section 1, that the Administrative Service of the Executive Branch of the State Government shall comprise the Governor, the Governor's Office, and the administrative departments and independent establishments provided for in the Act. Title III of the Act creates the same twenty administrative departments outlined in the proposed amendment, Act No. 384, Section 3(d). Section 1(c) of Title II of Act No. 47 provides that the Administrative Service, above referred to, shall exercise all of the administrative functions, and that no other agency shall exercise these functions. All of the other provisions of the Act, with reference to the Administrative Service, merely set up the manner and method of performing these services.

In our opinion, the Act follows the general scheme outlined in the proposed amendment. It cannot be disputed that Act No. 47 cannot stand in its entirety in the absence of the proposed changes in the Constitution. From a mere reading of the Act it is apparent that it is predicated upon the changes sought to be made in the Constitution. Throughout the Act, the proposed changes in the Constitution are contemplated. It would be impossible to segregate any part of the Act that might be valid without entirely rewriting the...