State ex rel. Saunders v. Kohnke

• Citation: 33 So. 793,109 La. 838
• Decision Date: 19 January 1903
• Docket Number: 14,598
• Court: Supreme Court of Louisiana
• Parties: STATE ex rel. SAUNDERS v. KOHNKE et al

33 So. 793

109 La. 838

STATE ex rel. SAUNDERS v. KOHNKE et al

No. 14,598

Supreme Court of Louisiana

January 19, 1903

Rehearing Considered.

Appeal from Civil District Court, Parish of Orleans; Walter B Sommerville, Judge.

Quo warranto by the state, on the relation of Eugene D. Saunders against Quitman Kohnke and others. Judgment for defendants and relator appeals. Reversed.

Branch K. Miller, for appellant.

Samuel L. Gilmore, City Atty. (Foster, Milling, Godchaux & Sanders and Thomas H. Thorpe, of counsel), for appellees.

PROVOSTY, J. BREAUX, J., concurs.

OPINION

PROVOSTY, J.

The relator has obtained a writ of quo warranto against the six members who were added to the sewerage and water board of the city of New Orleans by Act No. 111 of 1902, popularly known as the "Merger Bill," calling upon them to show by what authority they claim membership in said board. The only interest the relator alleges is the interest which he has in common with all the other resident taxpayers of the city of New Orleans whose property has been assessed for the sewerage and water tax, of the proceeds of which the said board has the administration. He stands upon his rights as a resident and as a taxpayer, and also upon a contract right that has accrued to him, he claims, as a result of the proceedings that culminated in the imposition of the said sewerage and water tax.

The respondents, by way of exception, deny this contract right, and deny that as a citizen, or as taxpayer, or as both, the relator has a standing in the case. Further, they deny that the proper parties defendant have been made in the case; and they say that, the sewerage and water board not being a corporation, quo warranto cannot issue against one of its members.

We do not find that there has been any contract entered into between the state and the taxpayers of New Orleans in connection with this tax or the administration of same. These taxpayers devised a scheme for the levy of the tax and the administration of the proceeds thereof, and applied to the Legislature for the requisite legislation to carry the scheme into execution. The Legislature met in extra session, and provided the legislation. This was all. No one asked the Legislature to bind the state to any contract, or dreamed that it was doing so. No consideration other than such as lies at the bottom of all legislation -- that is, the public welfare -- moved to the state in the matter, either directly or indirectly. The state was under no obligation in the premises, and it entered into none. It simply legislated.

But, even if the proceedings were fraught with strong elements of contract, still there would be no vinculum juris tying the hands of the state. In the language of the Supreme Court of the United States, "The statute in question is a public law relating to a public subject within the domain of the general legislative power of the state, and involving public rights, and the public welfare of the entire community affected by it." Newton v. Mahoning Co., 100 U.S. 548, 25 L.Ed. 710. In that case a statute fixed the county seat temporarily at a particular town of the county, and provided that the location should become permanent when the people of the town would have contributed $ 5,000 towards building a courthouse and donated a suitable lot of ground for this purpose. The townspeople donated the lot, and built a courthouse at an expense of $ 10,000. Some years later the Legislature passed a statute for submitting to a vote of the county the question of changing the county seat. The election resulted favorably to the change, and some of the citizens who had contributed towards the donation of the lot and the construction of the courthouse enjoined the removal. The court decided against them, using the language quoted above. This case, and those referred to in the decision, appear to us to negative completely the existence of the relator's alleged contract rights.

The next exception -- that the proper defendants have not been made in the case -- was not developed in argument, and we do not see the force of it. The theory of the suit is that the board, as constituted by the act of 1902, is still intact and unchanged, it being a constitutional board, unchangeable by the Legislature; and that these members attempted to be added to it by the act of 1902 are no part of it, but are intruders upon it. The board itself and none of its acts is assailed. The issue is confined to the right of the respondents to claim membership. The membership of those who can claim under the act of 1899 is not questioned. Under these circumstances there was no issue to litigate with these other members or with the board as a board, and, as a consequence, neither the board nor any of these other members could be made defendant. The only issue was that with the respondents; and, as a consequence, they alone could be made defendants. The writ of quo warranto, from its very nature, is directed only against the individual whose authority is questioned.

The next exception is not better founded. If the sewerage and water board is not a corporation, then what is it? The Civil Code defines a corporation as follows:

"Art. 427. A corporation is an intellectual body, created by law, composed of individuals united under a common name, the members of which succeed each other, so that the body continues always the same, notwithstanding the change of the individuals who compose it, and which, for certain purposes, is considered as a natural person."

And it defines a political corporation as follows:

"Art. 429. Corporations are of two principal kinds: political and private. Political corporations are those which have principally for their object the administration of a portion of the state, and to whom a part of the powers of government is delegated to that effect."

The sewerage and water board answers this description to the very letter. It is an intellectual body, created by law, and composed of individuals united under a common name, who succeed each other, so that the body continues always the same, notwithstanding the change of the individuals who compose it, and which, for certain purposes, is considered as a natural person; and it has principally for its object the administration of part of the powers of government delegated to it for that purpose. Every particular required by the Code for the constitution of a corporation is fulfilled to the very letter. The board is, therefore, a corporation.

What attribute of a corporation is lacking to this board we cannot imagine. By the statute of its creation it is given a name. It is given a domicile, since, from the force of circumstances, its domicile cannot be other than the city of New Orleans. It is equipped with the officers usual to corporations -- a president, a secretary, an attorney or legal adviser. It is required to keep minutes of its proceedings, as all other corporations do. It is given power to contract, to employ a superintendent and a board of consulting engineers and all other functionaries necessary for the carrying on of the business with which it is charged. It is empowered to institute expropriation proceedings, and therefore to sue and to be sued. If such a body is not a corporation, then what attributes must a body possess in order to be a corporation?

Because the statute does not expressly declare that this board shall be a corporation is no reason why it should not be one. This the following extract from Dillon on Municipal Corporations clearly shows: "The settled doctrine is that a corporation may be created by implication, as well as by the use of words. But this implication, to be sufficient, must clearly evince or express the intention to establish or constitute a body politic or corporate; that is, to invest it with corporate powers and privileges. But the absence of express provision respecting the incidents which the law tacitly annexes to corporations is considered immaterial. Thus the omission in the charter or act of the words 'to plead and be impleaded,' or 'to have a seal,' or 'to make by-laws,' would not make it essentially defective. So it would not be essentially defective if the name was omitted, if the name could be ascertained from the terms of the charter or act, or from the nature of the thing or matters granted. Certain attributes or powers are absolutely essential to constitute a body corporate; such as perpetual succession, the right to contract, to sue and be sued as a corporation," etc. Again: "Although corporations in this country are created by statute, still the rule is here also settled that not only private corporations aggregate, but municipal or public corporations, may be established without any particular form of words, or technical mode of expression, though such words are commonly employed. If powers and privileges are conferred upon a body of men, or upon the residents or inhabitants of a town or district, and if these cannot be exercised and enjoyed, and if the purposes intended cannot be carried into effect, without acting in a corporate capacity, a corporation is, to this extent, created by implication." Dillon, Mun. Corp. pars. 42 and 43 (3d Ed.).

Defendants give too wide a scope, we think, to the decision of this court in the case of Duffy v. City, 49 La.Ann. 114 21 So. 179. What was there held is not exactly that the board of commissioners of the port of New Orleans is not a corporation. The statute creating that board had said that it should "have and enjoy all the rights, powers and immunities incident to corporations," and therefore the court could not possibly have held that the board was not a body corporate. What was held is that the board is not a corporation within the meaning of the limitation...