State ex rel. Porterie v. Walmsley

• Decision Date: 04 February 1935
• Docket Number: 33251,33246
• Citation: 181 La. 597,160 So. 91
• Court: Louisiana Supreme Court
• Parties: STATE ex rel. PORTERIE, Atty. Gen., v. WALMSLEY, Mayor, et al

160 So. 91

181 La. 597

STATE ex rel. PORTERIE, Atty. Gen., v. WALMSLEY, Mayor, et al

Nos. 33246, 33251

Supreme Court of Louisiana

February 4, 1935

Rehearing Denied March 4, 1935

Appeal from Civil District Court, Parish of Orleans; Wm. H. Byrnes Jr., Judge.

Suit by the State, on the relation of Gaston L. Porterie, Attorney General, against T. Semmes Walmsley, Mayor, and others. From a judgment entered upon defendants' return to plaintiff's rule to show cause why a preliminary injunction should not issue, perpetuating the rule, and issuing a preliminary injunction, defendants appeal.

Affirmed and cause remanded.

E. M Robbert, B. I. Cahn, and Henry B. Curtis, all of New Orleans, for appellants T. S. Walmsley and others.

J. C. Henriques, of New Orleans, for appellant Board of Liquidation of the City Debt.

Harold A. Moise, James Wilkinson, and Huey P. Long, all of New Orleans, for appellants Board of Com'rs of the Port of New Orleans and others.

Gaston L. Porterie, Atty. Gen., and George M. Wallace and James O'Connor, Asst. Attys. Gen., for appellee.

BRUNOT, Justice. O'NIELL, C. J., ROGERS, J., ODOM, J., HIGGINS, J., concurs.

OPINION

BRUNOT, Justice.

This is a suit by the state, and by the Attorney General, in his official capacity, he being charged with the duty of representing the state in all judicial proceedings in which the state has an interest, either as plaintiff, defendant, or intervener.

It is alleged by the plaintiffs that Act No. 36 of the Second Extra Session of the Legislature, approved November 21, 1934, is unconstitutional, null, and void for the six reasons enumerated in article 13 of the petition; that if the provisions of said act are complied with, irreparable injury will be done to the state, the city of New Orleans, the property taxpayers of said city, and to certain of its bondholders; and that the several officers and boards mentioned in article 15 of the petition will comply with the provisions of said act, unless enjoined and restrained from so doing.

After praying for citation and service of the petition upon the officers and boards named therein, the continuing verbiage of the prayer is in the following words:

"That a rule issue herein commanding them and each of them to show cause on a date, not less than two nor more than ten days from service hereof, why a preliminary injunction should not issue herein without bond, restraining them and each of them from complying in any manner with the provisions of Act No. 36 of the Extra Session of 1934, approved Nov. 21, 1934; that upon the trial of said rule there be judgment in favor of the State of Louisiana and your relator and petitioner, granting said preliminary injunction, and that upon final trial hereof, said Act No. 36 of 1934, approved November 21, 1934, be declared unconstitutional, null and void, and said injunction be made permanent and perpetual; that meantime a temporary restraining order issue herein, without bond, temporarily enjoining and restraining said defendants and each of them from complying in any manner with the provisions of Act No. 36 of the Extra Session of 1934, approved November 21, 1934. Relator and petitioner further pray for all orders necessary, for costs and general relief."

A rule nisi and a temporary restraining order issued, as prayed for, and the rule was made returnable on December 11, 1934.

In a supplemental petition, relator and petitioner amended article 13 of the petition by adding thereto six additional reasons for challenging the constitutionality of Act No. 36 of the Second Extra Session of 1934, approved November 21, 1934.

In response to the rule to show cause why a preliminary injunction should not issue, all of the defendants, except the Board of Commissioners of the Port of New Orleans, the Board of Commissioners of the Orleans Levee District, Louisiana State Board of Health, and Board of Control of the New Basin Canal and Shell Road, excepted to the original and supplemental petitions upon the ground that the state of Louisiana and the Attorney General have no interest in the matters alleged in the petition, or in the amendment thereof, nor capacity to stand in judgment in this suit, or to represent the taxpayers or bondholders affected by Act No. 36 of the Second Extra Session of 1934; and, therefore, the petitions disclose no right and no cause of action.

These respondents also pleaded the unconstitutionality of Act No. 36 of the Second Extra Session of 1934. The four defendants named supra filed a joint return to the rule, from which we quote article 9 thereof:

"Denied. And it is specially denied that the ordinances, the act of the Legislature No. 6 of 1899 Ex. Sess., and the amendment to the constitution embraced in Act No. 4 of 1899, constituted a contract with the State of Louisiana and the City of New Orleans and the taxpayers of said City, or a contract with the holders of said bonds, or that the terms and conditions under which said tax was voted preclude the Legislature from adopting Act No. 36 of the Second Extra Session of 1934, approved November 21, 1934. And further answering this article, it is alleged that:

"1. The power of the Legislature to amend said Act No. 6 of 1899 as it has done by Act No. 36 approved November 21, 1934, is specially reserved to it, both in Act No. 6 of 1899 and in the amendment to the Constitution embraced in Act No. 4 of 1899, in article 313 of the Constitution of 1913, and in sections 22 and 23 of article 14 of the Constitution of 1921, and that the amendment embraced in said Act No. 36 will not have the effect of violating in any respect the conditions upon which said 2 mill tax was voted by the property taxpayers of the City of New Orleans, and will not have the effect of impairing the vested rights or the contract rights of the holders of the bonds issued as alleged in the petition.

"2. That the electors of the State of Louisiana, by constitutional amendments to the Constitution of the State of Louisiana, and by the provisions of the Constitutions of the State of Louisiana of 1913 and 1921, including, of course, the electors of the City of New Orleans who are property taxpayers, have long since so changed, and altered the said conditions that the only right left in the taxpayer is the privilege of paying the said 2 mill tax annually as the same is assessed, which said actions have been accomplished by the electorate by the following provisions:

"(a) Act No. 19 of 1906, a constitutional amendment adopted in November, 1906;

"(b) Act No. 116 of 1908, a constitutional amendment adopted by the electors in November, 1908.

"(c) Article 315 of the Constitution of 1913, and section 23 of article 14 of the Constitution of 1921, ratifying and approving the provisions of said Acts Nos. 19 of 1906 and 116 of 1908.

"(d) Act No. 3 of the Extra Session of 1927, an amendment to the Constitution of Louisiana, adopted November, 1927.

"3. That, therefore, as all of said provisions stipulate for the disposition of the 2 mill property tax, in relation to the sewerage, water and drainage systems of the City of New Orleans, and, together with Act No. 6 of 1899 and the amendment to the Constitution embraced in Act No. 4 of 1899, provide how any funds reaching the Sewerage and Water Board shall be expended, it is no concern of the taxpayers and is not violative of any term or condition of the contract with them, just how the Sewerage and Water Board shall be composed; and that therefore said Act No. 36 is a valid exercise of the Legislative power reserved to the Legislature, and vested in it without such reservation."

The issues thus presented were taken up in due course, whereupon the learned trial judge suggested to counsel that, if they consented thereto, he would try the case on the rule and on the merits and would decide all issues presented by the pleadings at one and the same time. Counsel for the board of liquidation of the city debt, the city of New Orleans, and the city board of health objected to a trial on the merits.

The judge's proposal to hear the whole case was doubtless prompted by the showing in the record that the Federal Emergency Administration of Public Works had allocated to the city of New Orleans $ 2,570,000, but said allocation had been suspended pending the final determination of this suit. In view of the emergent need of the sum allocated to the city of New Orleans, we also think that this case should be finally decided on the merits as speedily as is consistent with the legal rights of all parties to this suit.

The case was tried on the rule, the exceptions pleaded were overruled, the rule was perpetuated, and a preliminary injunction issued, as prayed for in the petition. All of the respondents appealed from the judgment. The appeals were brought up to this court in two transcripts, but they were consolidated and submitted together.

We are of the opinion that Judge Byrnes correctly held that the state has a sufficient interest in the matters alleged in the petition to institute and prosecute this suit; and we quote, with approval, from the opinion of the learned judge, his reasons for so holding. After incorporating in his opinion excerpts from the brief of counsel for the board of liquidation of the city debt, the judge says:

"In my opinion the word 'private,' before the word 'interest,' in the foregoing quotation, destroys the argument of counsel. The decision which he quotes from is not at all analogous to the suit before me. In that case no question whatever was raised as to the right of the Attorney General to represent the state if it had an interest, but the court held that in that particular case, which involved the payment of wages due to laborers, the state had no interest in that...