State ex rel. Porterie v. Walmsley

• Decision Date: 10 July 1935
• Docket Number: 33419,33447,33246,33251
• Citation: 162 So. 826,183 La. 139
• Court: Louisiana Supreme Court
• Parties: STATE ex rel. PORTERIE, Atty. Gen., et al. v. WALMSLEY, Mayor, et al

162 So. 826

183 La. 139

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

Nos. 33419, 33447, 33246, 33251

Supreme Court of Louisiana

July 10, 1935

O'NIELL, C. J., adheres to his dissenting opinion. ODOM J., dissents from the refusal to grant a rehearing. ROGERS J., dissents from the refusal to grant a rehearing.

OPINION

PER CURIAM.

Generally, decisions of this court involving an interpretation of the 'home rule' clauses in the various Constitutions of this state have varied in strict conformity with either the omission, enlargement, or restriction of these clauses.

In the case of R. E. Diamond v. G. L. Cain, 21 La.Ann. 309, the court said, in upholding the right of the Governor to appoint, remove, and control officers and men of the police force of the city of New Orleans, as follows:

'The Constitution of 1868 omitted article 133 of that of 1864, but by article 149 continued in force all legislation not inconsistent with the Constitution itself. This left the whole subject of the city corporation and police under the power and discretion of the Legislature, which by Act No. 1, approved July 9, 1868, created a Board of Police Commissioners, to be appointed by the Governor, and who shall have 'full power to appoint and remove and control the officers and men of the police force of the city of New Orleans;' directed how the officers and men should be removed, and repealed all acts and parts of acts inconsistent therewith. This act took effect from and after its passage, and as a consequence, the laws authorizing the mayor to appoint the police, and creating a police commission, with the Mayor as a member, for the trial and removal of policemen, being inconsistent therewith, were repealed and all control of the police was taken from the Mayor and the said commission and vested in the board of five police commissioners, created by said act. No law exists authorizing the Mayor to make such appointment.' R. E. Diamond v. G. L. Cain, 21 La.Ann. 309, 319.

In State v. Kohnke, 109 La. 838, 33 So. 793, Mr. Justice Provosty made the following comments in differentiating certain cases which held contrary to the decision in the Kohnke Case, but which were decided under the 'home rule' clauses of the Constitution of 1879:

'The decisions in the cases in 41 La.Ann. 156, 6 So. 592 (Police Board Case [State v. Shakespeare]), and 49 La.Ann. 115, 21 So. 179 (Dock Board Case [Duffy v. City of New Orleans]) and 49 La.Ann. 1199, 22 So. 623 (the Drainage Commission Case [State v. Flower]), are not in point, for the reason that since they were rendered the words ['charged with the exercise of the police power'], 'and with the administration of the affairs of said corporation in whole or in part,' have been added to the article. To say that to administer the sewerage and the waterworks of a city is not to administer its 'affairs in whole or in part' would be to go squarely against a plain proposition.' 109 La. 838, 871, 33 So. 793, 806. (Quotation between brackets ours.)

In this same case, Mr. Justice Provosty thoroughly discussed articles 319 and 320 of the Constitution of 1898 as follows (109 La. 838, 868, 33 So. 793, 804):

'Another ground of unconstitutionality relied upon is that by articles 319 and 320 of the Constitution the officers charged with the exercise of the police power and with the administration of the affairs of the municipalities of the state must be chosen by election, and the members of boards or commissions must either be elected by the city councils or appointed by the mayors of such municipalities; and that said act of 1902 undertakes to make the commissioner of labor and statistics, three members of the board of commissioners of the Orleans Levee District, and one member of the board of commissioners of the port of New Orleans, all of whom are appointed by the Governor, members ex officio of the sewerage and water board.

'These articles of the Constitution read as follows: 'Art. 319. The electors of the city of New Orleans, and of any political corporation which may be established within the territory now, or which may hereafter be, embraced within the corporate limits of said city, shall have the right to choose the public officers, who shall be charged with the exercise of the police power and with the administration of the affairs of said corporations in whole or in part. * * *

'That the sewerage and water board is 'charged with the exercise of the police power and with the administration of the city of New Orleans in whole or in part,' is undeniable, and not denied. It would seem, therefore, that the act is in direct contravention of these articles of the Constitution.'

The ruling of the court in connection with these cases is that, since their rendition, the Constitution of 1898 has been adopted which contained an enlargement of the 'home rule clause' to such an extent that the city of New Orleans became charged with the entire exercise of the police power in connection with the operation of its affairs, including the affairs of the sewerage and water board.

The present case comes before this court under the Constitution of 1921 under which the 'home rule clause' was deliberately curtailed, and the enlargement of this clause contained in the Constitution of 1898 was completely obliterated, and consequently the decision follows the Police Board Case, the Dock Board Case, and the Drainage Commission Case mentioned above.

The following cases in the jurisprudence of Louisiana deal with certain phases of the decision in State v. Kohnke, 109 La. 838, 33 So. 793, but none of these cases deal with the question of membership of the sewerage and water board. A resume of these cases follows:

Saunders v. Board of Liquidation of City Debt, 110 La. 313, 34 So. 457. Judgment holds constitutional amendment relative to ratifying special tax levied in city of New Orleans as set out in Act No. 4 of 1899, Ex. Sess., was passed and adopted in full conformity with the Louisiana Constitution, and that said amendment was declared a part and parcel of the Louisiana Constitution.

State ex rel. Sewerage & Water Board v. Michel, Secretary of State, 127 La. 685, 53 So. 926, 928:

'For the reasons stated, our conclusion is that such notice was not required [art. 50, Const., requiring thirty days' notice prior to introduction of bill in General Assembly]. It is therefore ordered, adjudged, and decreed that the judgment appealed from, whereby the mandamus prayed for was made peremptory, be now affirmed.' (Quotation between brackets ours.)

New Orleans Taxpayers' Ass'n v. Sewerage & Water Board, 132 La. 839, 61 So. 843 (syllabus by the court):

'The property taxpayers of New Orleans petitioned for the levy of a special tax, to be devoted, among other purposes, 'to the construction * * * of a free sewerage system, with free water therefor.' Act No. 270 of 1908 authorizes the Sewerage & Water Board to fix the rate, to consumers, for such water as they may use 'for drinking and domestic purposes, exclusive of sewerage,' and the board has adopted rules fixing such rate, making a liberal allowance for water required for sewerage purposes. Hence neither the act nor the rules operate to impair the obligations of the contract between the city and the taxpayers; for the petition of the taxpayers stipulates, in effect, that only such water as may be required and used for the purposes of the sewerage system shall be free, and water required and used for other purposes, such as drinking, cooking, bathing, laundering, sprinkling, etc., and which goes into the free sewers only after those purposes have been served, does not fall within that stipulation. * * *

'It appears to be conceded that the Sewerage & Water Board has not present intention of disturbing the cisterns, and plaintiffs' complaint on that subject has not been adverted to in the argument. The trial court did not err in rejecting plaintiffs' demands, and the judgment appealed from is affirmed, at plaintiffs' cost.'

State v. Billhartz, 146 La. 855, 84 So. 120:

'The purposes, terms, and conditions for and upon which the property tax payers of New Orleans consented that their property should be subjected to a special tax, to be funded into bonds the proceeds of which were to be expended in the acquisition, by construction or otherwise, of water, sewerage, and drainage systems, were set forth in detail in Act No. 6 of 1899 (extra session) which, by vote of the entire electorate of the state, was incorporated in and made part of the Constitution, after which it is clear that ordinarily no change could have been made therein by mere legislative enactment. Section 35 of the act, however, declares:

'That as it is proposed to have this act ratified by the Constitution, it is hereby specially declared to be the intent of this act, and of said ratifying constitutional amendment, that the General Assembly reserves the right to amend this act in any...