State ex rel. Nicholls v. Shakespeare

• Citation: 6 So. 592,41 La.Ann. 156
• Decision Date: 01 February 1889
• Docket Number: 10,247
• Court: Louisiana Supreme Court
• Parties: THE STATE EX REL FRANCIS T. NICHOLLS, GOVERNOR, ET AL. v. JOSEPH A. SHAKESPEARE, MAYOR OF NEW ORLEANS, ET AL

6 So. 592

41 La.Ann. 156

THE STATE EX REL FRANCIS T. NICHOLLS, GOVERNOR, ET AL. v. JOSEPH A. SHAKESPEARE, MAYOR OF NEW ORLEANS, ET AL

No. 10,247

Supreme Court of Louisiana

February 1, 1889

On The Merits, February, 1889, Reported at 41 La.Ann. 156 at 165.

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

Walter H. Rogers, Attorney General, E. E. Moise and W. W. Vance, for the Relators and Appellants.

Carleton Hunt, City Attorney, for the Respondents and Appellees.

MCENERY J. POCHE, J. WATKINS, J. and FENNER, J. dissent.

OPINION

ON MOTION TO DISMISS.

POCHE J.

Relators whose object was to enforce the execution of Act No. 63 of 1888, entitled "An Act creating a Police Board for the City of New Orleans, and defining its powers," are appellants from a judgment which rejected their application for a writ of mandamus to the end proposed by them.

Appellee's motion to dismiss the appeal is grounded as follows.:

"That this Court is without jurisdiction ratione materioe to entertain and pass upon relators' petition, there being no pay attached to the office of commissioner of police herein involved, and nothing to show that the amount in dispute exceeds $ 2000 00."

If the controversy involved no other issue but the creation of the right to the office of commissioner of police, there would be some merit in the motion. But such is not the case under a proper appreciation of the pleadings, and a due consideration of the statute sought to be enforced, which is made part of relators' petition in the case.

A careful analysis of the act discloses that its true and clear purport is to provide for a complete reorganization of the entire police force of the City of New Orleans, by withdrawing from the Mayor and City Council the power of appointing and controlling the force, and by conferring that power to the Police Board created by the statute.

And in terms, the act includes in the powers conferred to the Board, that, which might have been claimed by logical inference, of administering the fund to be appropriated by the city authorities to meet the payment of the salaries of all persons employed in, or connected with, the force.

After imposing on the Board the duty of making an annual estimate of the sums required for the expenses of maintaining the force during the ensuing year, Section 20 of the Act provides: "The Common Council shall set aside in the budget of expenses, a sum equal to that required according to the estimate made as aforesaid, by the Police Board; provided, that said Council shall have the right to reduce said estimate to a sum not less than one hundred and fifty thousand dollars ($ 150,000) for the police department, including the amount to be received" "from the wharf lessees, whenever the revenues of the city will not justify or permit a larger appropriation."

By reference to previously existing laws, under which the compensation and the control of the police force were left to the Mayor and City Council, it appears that the widest latitude and absolute option were left to the city as to the appropriation and as to the disbursement of funds needed for the salaries of all persons employed on the force.

The only mandates of the law on the subject were to the effect of conferring the power to, and making it the duty of, the council, "to preserve the peace and good order of the City," * * * and "to organize and provide an efficient police," coupled with the general power and corresponding duty of providing pecuniary means necessary to that end.

That, under such grant of power, the City had the option to organize a small or a large police force, and by that means, as well as by the way of fixing the salaries of all persons on the force, to determine the amount to be appropriated therefor. But under the law which the Governor is now seeking to enforce, all matters connected with the costs of providing an efficient police are removed from the discretion or control of the City, and the latter is ordered, in mandatory terms, to provide annually a sum, not less than $ 150,000, for the purpose of maintaining the police force. It thence follows, that a judgment which would enforce the execution of the act in question would, in its pecuniary effect or result, be tantamount to a mandamus directed to the City Council, ordering an annual appropriation, for an indefinite number of years, of not less than $ 150,000, for a designated purpose, which cannot be varied or departed from under any circumstances.

It is too patent to admit of any doubt or discussion that, by such a judgment, the City, herein represented by the Mayor and Council, would be affected in her pecuniary interests in an amount exceeding $ 2000, and that is the matter in dispute in the controversy.

It therefore follows that, if cast in the suit, the defendant would have had the unquestioned right of appeal to this Court, and it is well settled in our jurisprudence, that such a feature in a cause is the proper test of jurisdiction in case of appeal by either party to the controversy.

Conceding, therefore, that the Governor has no direct or pecuniary interest in the contestation, it is quite apparent that the judgment to be rendered in the cause will affect the City of New Orleans in an amount exceeding the lower limit of our jurisdiction, and that his right of appeal to this tribunal must be recognized and enforced.

The motion to dismiss is therefore denied, at appellees' costs.

DISSENT BY: WATKINS

WATKINS J.

It is my deliberate conviction that this court has no jurisdiction of this cause, ratione materiae, and that the respondent's motion to dismiss the relators'appeal should prevail.

The Executive, joined by the Attorney General, appears as relator, and, under the provisions of Article 72 of the Constitution, which directs that "He shall take care that the laws be faithfully executed," requests a peremptory mandamus against the Mayor of the City of New Orleans, to compel him to execute and enforce Act 63 of 1888, it being an "Act creating a Police Board for the City of New Orleans, and defining its powers."

This enactment was approved and became a law on the 11th of July, 1888. It does not impose any duty, whatsoever, on the Executive, or Attorney General, nor confer upon either any power or emolument.

It provides "that the powers and duties connected with, and incident to the police department, and police discipline of the City of New Orleans * * shall be vested in and exercised by a board consisting of six commissioners and the Mayor of the city * * and such officers * * as may be appointed by said board. That said commissioners shall be elected by the common council of New Orleans * * The Mayor of the City of New Orleans shall be the presiding officer of said board, but shall have only a casting vote thereon." Secs. 1, 2, 3.

There is no compensation, salary or perquisite provided by this statute in favor of the Mayor or police commissioners. The only provision contained in the act, touching the collection, or disbursement of money, is in Section 20. It directs that the said Police Board shall * * make up a financial estimate of the sums required for the expenses, during the ensuing year, of the police force, less expenses and disbursements of the Police Board."

It further directs that the "commoncouncil shall set aside, in the budget of expenses, a sum equal to that required, according to the estimate aforesaid, by the Police Board; provided, that said council shall have the right to reduce said estimate to a sum of not less than $150,000 for the police department, etc."

Then, what is "the matter in dispute," which confers jurisdiction on the court? Art.81 Const.

This proceeding is not taken against a police board, organized under this statute, to compel it to "make up a financial estimate;" or taken against the common council to compel it "to set aside, in the budget of expenses, a sum equal to that required by the Police Board."

If the mandamus had for its object, either of said purposes, there would be no occasion for action by the Governor to compel the execution of this statute, because the organization of the Board of Police Commissioners, would, of itself, be an execution of the law. Evidently, the question involved -- the only one -- is the abstract right of the Governor to compel, by mandamus, the chief executive officer of the City of New Orleans to e nforce this police law. The relator has no appealable interest which can be affected by the decision of this suit in an amount in excess of $2000. No judgment could be rendered by this court which could involve a gain, or a loss of $2000 to either the relator or the respondent. This court has no jurisdiction to determine abstract questions of law, unaccompainied by any monied demand.

Whether a statute is legal, constitutional, or enforceable, can only be determined in a court of justice, when the litigants, seeking its enforcement, have a monied, or property interest at stake, and their right to which depends upon the enforcement thereof.

In my view, the opinion of this court, as expressed in State ex rel. Crean et al vs. P. L. Bouny, State Tax Collector et al, 32...