State ex rel. Orr v. City of New Orleans

• Decision Date: 07 March 1898
• Docket Number: 12,538
• Citation: 24 So. 666,50 La.Ann. 880
• Court: Louisiana Supreme Court
• Parties: STATE ET REL. HENRY ORR, SR., v. THE CITY OF NEW ORLEANS ET ALS

24 So. 666

50 La.Ann. 880

STATE ET REL. HENRY ORR, SR., v. THE CITY OF NEW ORLEANS ET ALS

No. 12,538

Supreme Court of Louisiana

March 7, 1898

Argued December 18, 1897

Rehearing Refusing May 2, 1898.

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

John C Wickliffe and Arthur H. Brown, for Plaintiff, Appellant.

Charles J. Theard, Charles S. Rice, Anthony Sambola, J. St. Paul Dinkelspiel & Hart, James J. McLoughlin, Assistant City Attorney; Sam'l L. Gilmore, City Attorney; J. Madison Vance (Frank McGloin of Counsel), for Defendants, Appellees.

NICHOLLS, C.J. BREAUX, J.J., dissent.

OPINION

NICHOLLS, C.J.

In a petition filed by him in the Civil District Court, on November 30, 1896, relator averred that he was a citizen and taxpayer of the city of New Orleans, and the father of two children of school age, who were dependent upon the public schools of that city for an education, and who were attending said schools. That through lack of sufficient appropriation of public money from the public treasury of said city by the City Council of New Orleans to the school fund of said city for the year 1896, the School Board of said city had declared that it would be necessary to close the said public schools during the month of November, 1896. That in the budget of expenditures of the city of New Orleans for the year 1896, the City Council of the city of New Orleans appropriated and ordered taken from the public treasury of the city of New Orleans the sum of forty thousand two hundred dollars, and same paid to sundry private, charitable and benevolent institutions, to-wit: Evangelical Lutheran Orphan Asylum (Bethel); Protestant Orphans' Home, St. Vincent's Orphan Asylum, Wet Nurses, St. Mary's Orphan Boys' Asylum, House of Good Shepherd, German Protestant Orphan Asylum, Touro Infirmary, Faith Home for Aged Widows, Lafon's Old Folks' Home, St. Vincent's Asylum, New Orleans Female Orphan Asylum, Female Orphan Asylum of the Immaculate Conception, German Protestant Home for the Aged and Infirm, Jewish Home, Home for Incurables, Maison Hospitaliere, St. Alphonsus Asylum, St. Vincent's Half Orphan Asylum, Louisiana Asylum, St. Joseph's Boys and Girls' Asylum, Holy Family Asylum, St. Joseph's Asyium of the Little Sisters of the Poor, Protestont Episcopal Children's Home, Eye, Ear, Nose and Throat Hospital, Convalescent's Home, Louisiana Freedman's Asylum, St. Vincent de Paul's Society, Conference of St. Joseph and Immaculate Conception, St. Mary's Asylum of Little Sisters of the Poor and the Carmelite Nuns, which said sums in various amounts were ordered to be paid to private persons and communities as members and representatives of various churches, sects and denominations of religion, for an itemized statement of which reference was made to the said budget of 1896, adopted by the said City Council on the fourteenth day of January, 1896, and to the resolution of apportionment thereunder, adopted by said council or its committee on the fourth day of February, 1896, both of which were made part of the petition. That the existing City Council through its Committee on Budget and Assessment had prepared a budget of expenditures of the public moneys and of appropriations from the public treasury of the city of New Orleans of the year 1897, which budget had been published in the newspapers of the city of New Orleans; said budget having been prepared and provisionally adopted by said committee on the third day of December, 1896, which budget was made part of the petition.

That by said budget it was proposed to appropriate and take from the treasury of the city of New Orleans a sum of money largely in excess of the sum of twenty-seven thousand dollars for private, charitable and benevolent purposes in various amounts to sundry private persons and communities as representatives of and in aid of sundry churches, sects and denominations of religion; that said proposed budget would be adopted by the council and said sums taken from the treasury for said purposes unless the said council and officers were restrained from so doing by due process and orders of court. That none of the appropriations referred to either in the budget of 1896 or that of 1897 were for the State Asylums for the Insane, Deaf, Dumb or Blind, nor for any charity hospital nor other charitable institution or institutions conducted under State or any other public authority. That all of said appropriations and proposed appropriations were illegal, contrary to law, and beyond the power of the City Council to make or to have made.

That of the appropriation of 1896 a large portion had been paid from the treasury by the City Treasurer on the warrant of the comptroller and the amounts remaining would be so paid out unless said officers were prevented from doing so by law. That if said balance were paid out under the budget of 1896 there would not be sufficient money in the treasury to permit the public schools to remain open for the full time during the year prescribed by law and relator's children would be prevented from attending same during the time they are closed. That if the appropriations proposed in the budget of 1897 were made and the money taken from the treasury there would not be left money enough therein to keep open the public schools during the year 1897 for the full term prescribed by law and custom in said city, and relator's children would be prevented, as stated, from attending school, and thereby prevented from obtaining the education at the public schools which was the right of every American citizen and citizen of the State of Louisiana. That relator's interest in the subject matter was largely in excess of two thousand dollars. In view of the premises, relator prayed for citation upon the mayor -- the treasurer and comptroller of the city and also the common council; that relator have judgment against them decreeing all of said appropriations null and void, and prohibiting any further payment of the money appropriated by the budget of 1896 to the said private, charitable and benevolent purposes to said purposes and communities, and prohibiting the council from appropriating any money for said purposes out of the treasury for the year 1897 as proposed, or any subsequent year, and that the mayor be prohibited from approving, and forbidden to approve any ordinance making such appropriation or appropriations; that the comptroller be forbidden from drawing and the treasurer from paying any warrant thereunder, or any money under color of appropriation for any private, charitable or benevolent purpose whatever, to any person or community or in aid of any church, sect or denomination of religion whatever, and for all writs and orders necessary to enforce the judgment to that effect.

Defendants, through their counsel, filed an exception of no cause of action, and prayed that the suit be dismissed. This exception was referred to the merits.

On the 9th of January, 1897, relator filed a supplemental petition, in which he alleged that since the filing of his petition, the appropriations for 1897, which had been referred to as proposed appropriations, had been, in fact, made in the budget of 1897, and had been approved by the mayor, and were made to the persons and communities named in the supplemental petition for the amounts therein stated. Relator substantially reiterated the allegations of his original petition as to the illegal character of the same and set forth de novo his grounds of complaint. He averred that payments made out of the appropriations for the purposes stated were illegal and without warrant of law. He prayed that they be so decreed, and that the officials participating therein be decreed liable for the same and ordered to pay the same into the city treasury. He reiterated the prayer of his original petition, adding thereto relief in consonance with the allegations of the supplemental petition.

The defendants answered under benefit of their exception. They pleaded, first, the general issue. They then admitted that the city of New Orleans had made certain appropriations for the years 1896 and 1897 to the institutions named in plaintiff's petition, but they averred that said appropriations were made strictly in accordance with law.

The Protestant Orphan Home, the Association for the Relief of Jewish Widows and Orphans, the German Evangelical Lutheran Bethlehem Orphan Association, the Touro Infirmary and the New Orleans Convalescent Home, parties in whose behalf and for whose benefit, among other, appropriations had been made in the budgets of 1896 and 1897, intervened in the suit to join the defendants and protect their interests under the appropriations. Their petitions of intervention were substantially alike. They averred that they were each an incorporated charity under the laws of the State and owners of an asylum for the care, nourishment and protection of the indigent sick and orphans; that they were possessed of no adequate means of support and depended very largely upon contributions made by charitable persons and appropriations made by the city of New Orleans, similar to those contained in the budget of 1897. That the city made use of their institution for the care and support of their indigents and orphans. That said contributions and appropriations were absolutely necessary for the charitable uses for which the institutions were respectively founded. That the appropriations attacked in nowise contravened the charter of the city of New Orleans; were not ultra vires, but were lawful and proper under the Constitution and laws of the State. That relator disclosed no inferest for the relief prayed for and that the court was without jurisdiction ratione materiae.

The District Court after trial rendered...