State ex rel. Nicholls v. Shakespeare

• Decision Date: 01 February 1889
• Docket Number: 10,247
• Citation: 41 La.Ann. 156,6 So. 592
• 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

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Original Opinion of February,1889, Reported at 41 La.Ann. 156.

OPINION

McENERY, J.

ON THE MERITS

The nature of this suit and the facts of the case and the objects and purposes of Act 63 of 1888, have been fully stated in the opinion of the court on the motion to dismiss.

Respondents allege in their return to the alternative writ, that there is no cause of action disclosed in the petition for mandamus. This was disposed of in the motion to dismiss. In argument it is alleged that the relators offered no evidence in the trial below to show the necessity for the issuance of the writ, and the record contains no evidence to justify a peremptory mandamus. The alternative writ issued on the affidavit of relators. The respondents answered alleging their excuse. The case was tried on the traverse made to the alternative writ. The answer to the alternative writ shows conclusively that the Mayor and City Council of New Orleans have refused to obey and execute Act 69 of 1888. It was not necessary that the respondents should have been notified of the intention to apply for the writ, and a demand made upon them to carry into effect said writ. An absolute and unqualified refusal to execute said writ has been shown by the inaction and silence of the Mayor and council.

It is alleged that a writ of quo warranto, and not a mandamus, is the proper proceeding to be employed by relators. The distinction between the objects, purposes and functions of these writs is well defined. It is not necessary to state them. Relators are not attempting to recover any office or franchise from the city, or any forfeiture of, or any right to any corporate office or franchise, or the usurpation of any franchise on the part of the Mayor and Council, nor is there any inquiry as to any right, exercised by the Mayor and council in the discharge of their official duties.

Relators apply for a mandamus to compel the Mayor and council to do an act which pertains to their office. A mandamus is the appropriate remedy. 3 Bla. Com 110.

It will lie to compel a corporation to perform any specific act within the scope of its duties. 25 Ann. Rep. 461.

It is also alleged that the writ cannot issue because it will interfere with the discretion vested in the Mayor and council by the act.

The general rule is that if the inferior tribunal or corporation has a discretion and acts and exercises it, this discretion cannot be controlled by mandamus. But if the inferior body refuses to act when the law requires it to act, and there is no other legal remedy, a mandamus will lie to compel action, and the court will settle the legal question, which shall govern, but without controlling the discretion of the subordinate jurisdiction. Dillon Mun. Corp., par. 665.

In the instant case there is no question relating to the exercise of any discretion by the Mayor and council in the execution of the act.

We are asked to compel them to carry into effect an act of the General Assembly relating to the City of New Orleans. In all matters relating to their discretion, where it is vested in them by said act, they are left to themselves, and we are not asked by relators to grant any order directing in what manner the Mayor and council shall perform the duties imposed upon them by the law which they seek to have enforced.

Respondents, in their return, excuse themselves, because the Act No. 63 of 1888 is unconstitutional, null and void, and was enacted in violation of the Constitution of 1879, and particularly of Article 256 of said Constitution, and it was the duty of the Mayor and council to refuse to obey and carry into execution said act. In this they have erred.

A government whose laws can be ignored by those whose duty it is to execute them is feeble, weak and inert, and is wanting in that vigor, strength and energy that will insure its perpetuity. The Mayor and council of the City of New Orleans are the officers of a subordinate political corporation, not only charged with municipal duties, but as a constituent part of the State government they owe allegiance and obedience to their sovereign, the State of Louisiana, whose majesty, dignity and power they must uphold and whose mandates they must obey. They cannot defy the law, constitute themselves the judges of its constitutionality, and pronounce upon its validity when they are charged with its execution, in advance of the judicial tribunal, whose sole prerogative it is to pass upon its constitutionality. It is their duty to obey the law until the law has been declared null and void by the judicial department of the government.

The presumption is always in favor of the constitutionality of the law, to that extent that the case must be so clear that no reasonable doubt can exists as to its constitutionality. Courts are cautious in dealing with constitutional questions, and they will not pronounce on the constitutionality of a law on collatteral questions unless it is essential to the determination of the point in controversy.

There are instances where courts have refused to pass on a constitutional question unless by a full bench; and where they would not pronounce an act void if within the scope of legislative powers, although contrary to natural justice, or violative of some fundamental principle of Republican government, or because they conflict with some supposed spirit of the Constitution. Officers acting under an unconstitutional law have been held to be de facto officers, and officers executing an unconstitutional law have been protected. Therefore, when the judiciary, whose duties are to pass upon the constitutionality of an act is so careful and conservative in its deliberations before passing judgment as to its validity, it seems but reasonable to require, in a well constituted government, obedience to it by officers who are to execute it, until its constitutionality is passed upon by the judiciary. Bassett vs. Sheriff, 11 Ann. 672.

In considering the question as to the constitutionality of the Act No. 63 we will only inquire into the authority of the Legislature to enact it, as no particular clause is attacked. We fully concur with the City Attorney in the statement that the right of self government lies at the foundation of our institutions, commencing with the humblest political subdivision and reaching to the height of the State and National governments; and that the rights of these several local subdivisions are to be carefully guarded by every department of the government.

There can be no doubt but that the surest and earliest bulwarks against despotic power, the preservation of order, the protection of life and property, in fact, the very foundations of modern liberty, owe, in a great degree, their origin to the elective governments of cities which grew in power and influence after the fall of the Roman Empire. But they owed their origin and derived their existence from a superior power as in this country all public corporations derive their existence from legislative will. They are controlled as to what they may do, and in the manner in which they may do it, by their charter or acts of incorporation which are the laws of their being and which they cannot dispense with, alter or change. The scope of legislative authority over a municipal corporation is limited only by the terms of the State and Federal Constitutions and the necessary implications derived therefrom. 24 Mich. 44.

As a principle of constitutional law it is now well settled that the police powers of the State for the protection of the public health, public safety and public morals are inalienable.

Act 63 of 1888 comes under the police powers of the State, and the Police Board therein created is empowered to regulate, as provided for in said Act, the public safety, public health and public morals. All these matters of police are embraced in the Act.

Art 253 of the Constitution of 1879, which it is alleged is violated by Act 63, is as follows:

"The citizens of the City of New Orleans, or any political corporation which may be created within its limits, shall have the right of appointing the several public officers necessary for the administration of the police of said city pursuant to the mode of election which shall be provided by the General Assembly."

The definition of appointment is "the designation of a person by the person or persons having authority therefor to discharge the duties of some office or trust;" and election means, as employed in said article, "choice" or 'selection," as defined in Rouvier's Law Dictionary.

Section 1 of Act 63 provides that the Police Board shall be elected by the City Council. Their term of office is for twelve years. The Police Board is thus created by the Act. There can be no doubt but that it was within the authority of the Legislature to create the Police Board. The objection is to the mode of selection. The City Council undoubtedly has a legal existence. There can be no doubt of the right of the Legislature to confer upon said council the authority to elect. The council, by virtue of the city charter granted in pursuance of Acts 253, 254 of the Constitution, elects and appoints certain officers. The Legislature, when it granted that charter, did not exhaust its authority. It can still cancel or alter or change it, or give the several departments of the city government additional powers. It can authorize the City Council to choose other officers than those whom it was authorized to elect in the first instance. Therefore the City Council, by...