State ex rel. Board of Directors of Public Schools of New Orleans v. City of New Orleans, 10,433

• Court: Louisiana Supreme Court
• Writing for the Court: BERMUDEZ, J.
• Citation: 7 So. 674,42 La.Ann. 92
• Decision Date: 01 February 1890
• Docket Number: 10,433
• Parties: THE STATE EX REL. BOARD OF DIRECTORS OF PUBLIC SCHOOLS OF NEW ORLEANS v. CITY OF NEW ORLEANS

7 So. 674

42 La.Ann. 92

THE STATE EX REL. BOARD OF DIRECTORS OF PUBLIC SCHOOLS OF NEW ORLEANS
v.
CITY OF NEW ORLEANS

No. 10,433

Supreme Court of Louisiana

February 1, 1890

APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

A. H. Wilson, E. B. Kruttschnitt and C. F. Buck, for the Relators and Appellants.

Samuel L. Gilmore and Francis B. Lee, Assistant City Attorneys, for the Respondent and Appellee.

OPINION [7 So. 675]

[42 La.Ann. 95] BERMUDEZ, J.

This is a mandamus proceeding, the object of which is to compel the City of New Orleans to place the relator board on its budget of expenditures for 1889 for the sum of $ 250,000, which it has failed to do except to the extent of $ 180,000.

The petition is based on Sec. 71 of Act 81 of 1888, relative to public schools.

That section provides substantially that the Council of New Orleans, in making their annual budget of expenditures, shall include therein the amount deemed necessary to meet the expenses of the schools, and keep in good repair school houses and grounds, as may seem just and reasonable, provided it shall not exceed the statement of the School Board to be previously made, and shall not be less than $ 250,000, whereof $ 75,000 to be paid out of the reserve fund of 20 per cent. contributed by Sec. 66 of Act 20 of 1882, and Act 109 of 1886, from which certain claims against the board shall be paid gradually so as to be extinguished in 1895.

The section authorizes the board, if necessary, to enforce its provisions by mandamus.

There is a charge of failure and a prayer for relief.

The defences of the city are a general denial, and the constitutionality of the act on various grounds.

A number of persons claiming an interest intervened, joining the board, and were met by exceptions and answer by the city.

From a judgment dismissing the proceedings and the intervention, the relator and the intervenors have appealed.

[42 La.Ann. 96] The objections of the city to the constitutionality of the act may be summarized as follows:

1. It embraces two objects.

2. It attempts to amend the city charter in a prohibited manner.

3. It is a local or special enactment which was adopted without previous publication of intention, etc.

4. It requires the city to pay, through the Board of Directors, a debt which it does not owe.

5. It requires the city to make an appropriation for school purposes which the city can not be compelled to raise by a school tax.

Counter, the board and the intervenors retort that the City of New Orleans has no legal standing to charge the unconstitutionality of any law affecting her.

Touching this peremptory objection to the right of the city to stand in judgment which must be determined at the threshold, it might suffice to say that, however absolute and broad the powers of the General Assembly may be on the City of New Orleans, their supremacy may be confined within certain boundaries by the State organic law which can not be overleaped, and that when an attempt is made to transgess them the city has an undoubted right to interpose impediments, and to be heard; but it is better that the matter receive further attention.

The principle is well recognized that "where a demand is asserted against a municipality, though of a nature that the Legislature would have a right to require it to incur and discharge; yet, if its legal and equitable obligation is disputed, the corporation has a right to have the dispute settled by the courts and can not be bound by a legislative allowance of the claim." Cooley on Const. Lim. 232-3.

Indeed, were it not so, the mouth of political organizations, representing the corporators, would remain absolutely muzzled. The corporations would have not only tamely to submit to and passively allow unconstitutional legislation to be executed, but would be constrained to carry it out themselves.

The books are full of cases in which political corporations have been recognized the privilege of setting up the unconstitutionality of laws under which some unwarrantable right against their revenue and property was sought to be enforced, and which in the legality of such defences has been sanctioned.

When, therefore, the courts have said in cases of that category [42 La.Ann. 97] that such corporations can not resist legislation affecting them, they could mean and meant only constitutional and in no way unconstitutional legislation, for the glaring reason that to [7 So. 676] have meant and said the reverse would have been to have held that municipal corporations must, in all contingencies, accept and further unconstitutional legislation, which would be a monstrous proposition.

The ruling of this court in the recent case of the State ex rel. Nicholls vs. City, 41 An. 156, is no authority to prevent the City of New Orleans from being heard in the instant controversy.

It was a suit in which the Governor, entrusted with the execution of the laws, claimed that under the provisions of Act 63 of 1888, entitled "An act creating a Police Board for the City of New Orleans and defining its powers," it was made the ministerial duty of the Mayor and Councilmen of New Orleans to proceed to the election of six commissioners, who were with the Mayor, to constitute the Police Board; that they had declined to perform that duty, and that they should be compelled to do so.

The return of the defendants was a charge of unconstitutionality of the act sought to be enforced.

The issue was whether the defendants, the representatives of the corporation as its council, could resist the execution of the law on that plea. It did not involve the question whether the defendant had any legal standing to plead the unconstitutionality of the law, or whether the city's revenue should or should not be appropriated for the purposes of the Police Department.

The act contemplated a reorganization of the police force by withdrawing from the Mayor and Council the appointing power and vesting it in a board created by the statute, and it prescribed, as a preliminary matter, that an election should be made by the Council of the commissioners, who, with the Mayor, were to constitute that board.

Although the court catechised the defendants by informing them that it was improper for them lightly to question the validity of the act, which was prima facie constitutional; that it was better that they withold their resistance until...