State ex rel. Higgins, Dist. Atty. v. Aicklen

• Decision Date: 26 November 1928
• Docket Number: 29580
• Citation: 167 La. 456,119 So. 425
• Court: Louisiana Supreme Court
• Parties: STATE ex rel. HIGGINS, Dist. Atty. pro tem., v. AICKLEN et al

119 So. 425

167 La. 456

STATE ex rel. HIGGINS, Dist. Atty. pro tem., v. AICKLEN et al

No. 29580

Supreme Court of Louisiana

November 26, 1928

Rehearing Denied January 2, 1929

Appeal from Twenty-Fourth Judicial District Court, Parish of Jefferson; L. Robert Rivarde, Judge.

Suit by the State of Louisiana, on the relation of A. T. Higgins District Attorney pro tempore for the Twenty-Fourth Judicial District, against C. P. Aicklen and others. From the judgment, defendants appeal.

Affirmed.

Dart &amp Dart, E. Howard McCaleb, Jr., and Joseph A. M'Caleb, all of New Orleans, for appellants.

A. T. Higgins, Dist. Atty. pro tem., of New Orleans (J. C. Henriques and Frank Doyle, both of New Orleans, of counsel), for appellee.

F. A. Middleton, of New Orleans, for interveners.

O'NIELL C. J. THOMPSON, J., dissents.

OPINION

O'NIELL, C. J.

This is a suit to remove from office the parties claiming to be the mayor and aldermen of the city of Metairie Ridge, by declaring that the so-called city is not legally incorporated. The action is brought under the provisions of section 2593 of the Revised Statutes, authorizing such a suit to be brought in the name of the state, by the district attorney, or a district attorney pro tempore, "when any association or number of persons shall act within this state as a corporation without being duly incorporated." The district court decided that the municipality was not legally incorporated, and the defendants have appealed from the decision.

Some time between the 11th of April and the 15th of June, 1927, a petition signed by 649 individuals, asking that the hamlet of Metairie Ridge, in Jefferson parish, should be incorporated as a city, was presented to Governor Simpson, and, on the 15th of June, 1927, the Governor issued a proclamation declaring the hamlet incorporated as "the village of Metairie Ridge," and fixing the metes and bounds as set forth in the petition. The signers of the petition styled themselves "duly qualified electors and citizens in and for the hamlet of Metairie Ridge, in the parish of Jefferson, and representing two-thirds of the qualified electors in and for said hamlet, and residents of the area described" in the petition. The area was described by a survey of the courses and distances, and a plat of the survey annexed to the petition. There was also annexed to the petition a list of the qualified electors in the proposed city of Metairie Ridge, taken from the registration rolls. Each name on the typewritten list had its serial number before it, from 1 to 1067, showing at a glance that there were 1067 names on the list, and at the end was a tabulated deduction of 67 names, viz. 26 errors, 38 names of persons residing outside of the bounds of the survey, and 3 names that were duplicated on the list, thus showing that there were 1,000 qualified electors in the area sought to be incorporated. The petition, therefore, with the list of qualified electors annexed to it by the petitioners themselves, showed on its face that, even if every one of the petitioners was in fact a qualified elector residing within the territory described in the petition, they did not constitute two-thirds of the electors residing in the territory.

On the 9th of July, 1927, a petition for a reclassification of the village as a city was presented to the Governor, signed by the mayor and board of aldermen whom the Governor had appointed, and on the 13th of that month the Governor issued a proclamation declaring the village of Metairie Ridge to be reclassified as the city of Metairie Ridge.

The cause of action set forth in the petition in this case was, not only that the petition to the Governor was not signed by two-thirds of the electors of the unincorporated hamlet, as required by the eleventh section of the Act 136 of 1898, p. 227, but that the petition was defective, in that it did not state the number of inhabitants of the hamlet, and also in that the petitioners asked for the incorporation of a city, instead of a village.

The eleventh section of the Act 136 of 1898, which is the only authority in law for the Governor to create a municipal corporation, provides:

"That whenever a petition, signed by two-thirds of the electors of any hamlet or unincorporated village, shall be presented to the Governor, setting forth the metes and bounds of their hamlet or village, stating the number of inhabitants therein, and praying incorporation, he shall inquire into the facts. If he finds the petition sufficient and sufficiently signed, and it be shown to his satisfaction that it has been published in full for three weeks in some newspaper of the proposed municipality, if there be one, and if not, by posting in at least three conspicuous places in the hamlet or village, and that the place contains at least two hundred and fifty inhabitants, he shall, by proclamation, declare the village incorporated, defining its limits and boundaries, and fixing its name as 'the village of .' Such proclamation shall be filed in the office of the Secretary of State, and remain a record thereof."

The contention of the appellants -- which was first urged by a plea to the jurisdiction of the court and an exception of no cause or right of action, which pleas were overruled -- is that the Governor's finding that the petition was "sufficiently signed" was not subject to judicial investigation. It is not denied that the petition on which the Governor acted was not "signed by two-thirds of the electors of the hamlet or unincorporated village." In fact, the admission was made during the progress of the trial, after a number of witnesses had been examined, "that, if all of the remainder of the qualified electors residing within the area sought to be incorporated were produced and examined herein, such evidence, together with the testimony heretofore adduced herein, would show that the petition to the Governor of Louisiana for incorporation, when delivered to the Governor, and at all times, was between 50 and 60 names short of two-thirds of all the qualified electors residing within the area sought to be incorporated."

If a proclamation of the Governor purporting to create a municipal corporation, under authority of the eleventh section of the Act 136 of 1898, were immune from judicial investigation, that part of section 2593 of the Revised Statutes, which authorizes such a suit as this "when any association or number of persons shall act within this state as a corporation without being duly incorporated," would be not applicable to municipal corporations; for it cannot be imagined that any association or number of persons would pretend to represent a municipal corporation without the semblance of an incorporation. The place which this provision has in the law -- in a statute providing for suits to remove persons usurping or intruding into or unlawfully holding public office -- shows beyond all doubt that the provision is applicable to municipal corporations, and the fact has been recognized by this court in all of its decisions on the subject since the statute was enacted as Act 156 of 1868, p. 199. The same provision for such a suit, "when any association or number of persons shall act within this state as a corporation without being duly incorporated," is retained in the Act 102 of 1928, p. 118, amending and re-enacting sections 2593, 2594, and 2597 of the Revised Statutes. The act of 1928 was enacted after this suit arose, but the retention of the provisions for suits to remove from office those who pretend to represent a corporation which is not "duly incorporated" shows that these provisions of the law remained in force as well after the enactment of the Act 136 of 1898 as when they were first enacted, in 1868.

It is conceded by the appellants that the creating of municipal corporations is -- and is universally acknowledged to be -- strictly a legislative function. No department of the government except the Legislature can create a municipal corporation. The Legislature may, by a general law, as it did by the eleventh section of the Act 136 of 1898, prescribe rules and regulations for the creation of municipal corporations, and may confer upon some designated tribunal, board, or other agency the authority to ascertain and determine that the prescribed rules and regulations are complied with. See McQuillin, Municipal Corporations, vol. 1, § 136. But the Legislature cannot, without violating the maxim "delegatus non potest delegare," delegate to a designated tribunal or board or other agency the authority to create municipal corporations, whenever and whereever such tribunal or board or agency may deem proper, or according to whatever conditions such tribunal or board or agency may see fit to require or dispense with. On that subject the attorneys on each side of the case quote 43 C. J. pp. 77-79, § 17, viz.:

"In the United States, only an act of the Legislature can create a municipality. Congress has power to incorporate municipalities in the District of Columbia and any territory of the United States; but the power of the Legislature of an organized territory to create municipal corporations within its limits depends upon whether such power has been delegated to it by the Organic. Act. * * * However, in a majority of the states, the creation of a municipal corporation within the territorial limits of a state is within the power of the Legislature of the state; and, subject only to such constitutional limitations and restraints, if any, on the exercise of the power as may exist, the power of the Legislature in this respect is absolute, plenary, and exclusive, to be exercised according to its judgment, will and discretion, no other body, officer, or person having authority to incorporate a municipality within the...