State ex rel. Porterie v. Walmsley
| Decision Date | 11 May 1935 |
| Docket Number | 33246,33447,33419,33251 |
| Court | Louisiana Supreme Court |
| Parties | STATE ex rel. PORTERIE, Atty. Gen., et al. v. WALMSLEY, Mayor, et al |
Rehearing Denied July 10, 1935.
Appeal from Civil District Court, Parish of Orleans; Wm. H. Byrnes Judge.
Suit by the State, on the relation of Gaston L. Porterie, Attorney General, who also appeared in his own right, against T Semmes Walmsley, mayor of the city of New Orleans, the commissioner of public utilities of the city, the chairman of the board of health of the city, the board of liquidation of the city debt, and others, to have a certain statute declared unconstitutional. From a judgment declaring the statute constitutional, dissolving a preliminary injunction, and dismissing the suit, the State, the Attorney General, and defendants named take appeals which were consolidated in the Supreme Court. Motion by plaintiffs to dismiss appeals of defendants named. Motion by defendants named, who answered plaintiffs' appeal, to remand the case.
Motions to dismiss the appeals and to remand the case denied, and judgment below amended and affirmed.
Gaston L. Porterie, Atty. Gen., Geo. M. Wallace, of Baton Rouge, and James O'Connor, of New Orleans, for appellant-appellee.
E. M. Robbert, City Atty., Francis P. Burns and Henry B. Curtis, Asst. City Attys., and Bertrand I. Cahn, all of New Orleans, for appellees-appellants T. Semmes Walmsley et al.
James C. Henriques, of New Orleans, for appellant Board of Liquidation of City Debt.
Huey P. Long, Harold A. Moise, and James Wilkinson, all of New Orleans, and Peyton R. Sandoz, of Baton Rouge, for appellees Orleans Levee Dist., Board of Com'rs of Port of New Orleans, and Board of Control of New Basin Canal and Shell Road.
OPINION
This is an action by the state of Louisiana, on the relation of the Attorney General, who also appeared in his own right, in behalf of the property taxpayers of the city of New Orleans and the holders of the public improvement bonds issued for the sewerage, drainage, and water systems of the city of New Orleans, to have declared unconstitutional Act No. 36 of the 2d Extra Session of the Legislature of 1934, approved November 21, 1934. This statute recreates and reconstitutes the membership of the sewerage and water board by amending and re-enacting section 8 of Act No. 6 of the Extra Session of 1899, as amended by Act No. 111 of 1902, which provides for the construction, control, maintenance, and operation of a public water system and a public sewerage system for the city of New Orleans, under the control of a specially constituted "sewerage and water board."
The act provides that the members of the sewerage and water board shall be constituted as follows: The mayor of the city of New Orleans, the commissioner of public utilities of the city, the chairman of the board of health of the city of New Orleans, two members of the board of liquidation of the city debt, to be appointed by the mayor on the recommendation of that board, three members of the board of commissioners of the Port of New Orleans, to be appointed by the mayor on the recommendation of that board, one member of the state board of health, to be appointed by the mayor on the recommendation of that board, three members of the board of commissioners of the Orleans levee district, to be appointed by the mayor, on the recommendation of that board, and one member of the board of control of the New Basin Canal and Shell road, to be appointed by the mayor on the recommendation of that board. All of these parties and boards are made defendants.
The suit was filed on December 5, 1934, and it is alleged that the statute would become effective 12 o'clock noon, December 6, 1934, and that unless the above-mentioned parties and boards were restrained by injunction, they would proceed to carry out the alleged unconstitutional law to the irreparable injury of the state, the city, the taxpayers, and the bondholders.
The original and supplemental petitions allege that the statute is unconstitutional for the following reasons:
(1) That the change proposed to be made by this statute could not be made without the consent of the New Orleans taxpayers and bondholders.
(2) That the statute undertook to impair and to violate the conditions upon which the taxpayers of New Orleans had voted the special tax, and that the statute therefore undertook to impair the vested rights and the contract rights of the holders of the bonds which were issued under the contract.
(3) That, under the constitutional amendment made pursuant to Acts Nos. 4 and 6 of 1899, Ex. Sess., and under article 313 of the Constitution of 1913, and section 23 of article 14 of the Constitution of 1921, the Legislature could not change the membership or composition of the sewerage and water board.
(4) That Act No. 36, approved November 21, 1934, in so far as it attempted to add to or change the membership of the sewerage and water board, or the mode of selection of the members thereof, as established by section 8 of Act No. 6 of 1899, Ex. Sess., was an attempt to violate and impair the terms and conditions of the property taxpayers' petition, and to impair the vested rights and contract rights of the holders of the bonds issued under the contract.
(5) That said Act No. 36 impairs the obligations of said contracts with the property taxpayers and bondholders, in violation of section 15 of article 4 of the Constitution of Louisiana, and section 10 of article 1 of the Constitution of the United States, and will deprive them of their property without due process of law, in violation of section 2 of article 1 of the Constitution of Louisiana, and the Fifth and Fourteenth Amendments of the Constitution of the United States.
(6) In that the members to be selected by the board of commissioners of the Port of Orleans, the state board of health, and the board of control for the New Basin Canal and Shell road need not be residents of the city of New Orleans, all in violation and contravention of section 22 of article 14 of the Constitution of Louisiana of 1921.
(7) In that said new sewerage and water board attempted to be created will not necessarily include a member from each of the seven municipal districts of the city of New Orleans, as provided by section 8 of Act No. 6 of the Extra Session of 1899, all in violation of the vested rights of plaintiff, as guaranteed by section 15 of article 4 of the Constitution of 1921 of the state of Louisiana.
(8) In that one or more members of each the boards of commissioners ofthe Port of Orleans, of the board of control of the New Basin Canal and Shell road, and of the state board of health are necessarily by the respective laws of the creation of said boards not citizens and electors of the parish of Orleans (and in the case of the state board of health no member is required to be a citizen and elector of said parish); and that said Act No. 36, in purporting to establish special bodies of electors consisting of all the members of said respective boards, including those not citizens and electors of Orleans parish, for the purpose of naming and electing commissioners of the sewerage and water board, the functions and duties of which are confined to the parish of Orleans, violates not only said section 22 of article 14 of the Constitution of Louisiana of 1921, but violates also the letter and spirit of section 1 of article 8 of said Constitution, which provides for the electoral qualifications.
(9) In that the board of commissioners of the Port of Orleans, the board of control of the New Basin Canal and Shell road, the state board of health, and the board of levee commissioners of the Orleans levee district have no power or authority under the respective laws of their creation to select, name, or otherwise choose and appoint commissioners of said sewerage and water board; that such right, duty, or function is totally foreign to the respective prescribed rights, duties, and functions of said boards; that the title to said Act No. 36 does not purport to embrace the enlargement of the rights, duties, and functions of said boards, or any one of them, and if said Act No. 36 be construed as purporting to confer such enlarged power, the same is unconstitutional, null, and void in that the subject-matter thereof is not embraced in its title, and is violative of section 17 of article 11 of said Constitution; and, further, even if the title to said Act No. 36 be held to be indicative of the aforesaid objects, the said Act No. 36 violates said section 17 of article 11 of said Constitution in that the same embraces more than one object.
(10) In that it is an attempt to revive section 8 of Act No. 111 of the Legislature of Louisiana, approved July 8, 1902, which has been declared unconstitutional by the Supreme Court of the state of Louisiana in the case of State ex rel. Saunders v. Kohnke, reported in 109 La. at page 838, 33 So. 793, without expressing in its title the objects or subjects of section 8 of Act No. 6 of the Extra Session of the Legislature of Louisiana, approved August 18, 1899, to be amended, all in violation and contravention of section 16 of article 3 of the Constitution of the state of Louisiana; and in that section 8 of Act No. 111 of 1902, having been so declared unconstitutional, was not susceptible of amendment.
(11) In that it is an attempt to remove certain members of the sewerage and water board without cause and in a manner different from that provided by section 9 of Act No. 6 of 1899, Ex. Sess., said members of said sewerage and water board being removable only in the manner prescribed by and for the...
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