State ex rel. Sewerage & Water Board of New Orleans v. Michel

• Decision Date: 16 December 1910
• Docket Number: 18,560
• Citation: 127 La. 685,53 So. 926
• Parties: STATE ex rel. SEWERAGE & WATER BOARD OF NEW ORLEANS et al. v. MICHEL, Secretary of State
• Court: Louisiana Supreme Court

53 So. 926

127 La. 685

STATE ex rel. SEWERAGE & WATER BOARD OF NEW ORLEANS et al. v. MICHEL, Secretary of State

No. 18,560

Supreme Court of Louisiana

December 16, 1910

Appeal from Twenty-Second Judicial District Court, Parish of East Baton Rouge; H. F. Brunot, Judge.

Petition by the State, on the relation of the Sewerage and Water Board of New Orleans and others, for writ of mandamus to John T Michel, Secretary of State. From a judgment granting the writ, defendant appeals. Affirmed.

Walter Guion, Atty. Gen., for appellant.

I. D Moore, City Atty., Omer Villere, Special Counsel of Sewerage and Water Board (E. H. Farrar, C. J. Theard and H. G. Dufour of counsel), for appellees.

OPINION

MONROE J.

The sewerage and water board of New Orleans, and Martin Behrman and Charles J. Theard, citizens and taxpayers of said city, pray for a writ of mandamus to compel the Secretary of State to register and promulgate "Senate Bill No. 1," of the second extra session of the General Assembly of the year 1910. The Secretary of State admits that it is his duty to register and promulgate any statute legally enacted by the General Assembly and approved by the Governor. He further admits that, pursuant to the proclamation of the Governor, the General Assembly, on November 28, 1910, convened in extraordinary session and passed the "Senate Bill No. 1," referred to in the petition, and that it was signed by the Lieutenant Governor and the Speaker of the House of Representatives and approved by the Governor. But he avers that said bill has not been passed according to the formalities prescribed by the Constitution, in that it is a local and special law, within the meaning of articles 48, 49, and 50 of the Constitution and was not preceded by the public notice required by said article 50, and is therefore unconstitutional and void; and hence that there is not imposed on him any duty to register and promulgate it.

The facts to be considered are admitted, and are as follows, to wit:

In June, 1899, the property taxpayers of New Orleans voted a special tax of two mills, for 43 years, for the establishment of a sewerage, water, and drainage system; and thereafter, at the extra session of 1899, the General Assembly passed a certain act (No. 6 of said extra session), the title of which reads, in part, as follows:

"An act to make effective the vote and levy of the special tax by the property taxpayers of the city of New Orleans, for water, sewerage and drainage purposes, by authorizing the capitalization of said tax by the issuance of fifty year bonds of the city of New Orleans, under certain conditions and with certain privileges and restrictions; providing for the payment of the principal and interest thereof, for the disposition of said bonds and the proceeds thereof, and defining the power and duties of the board of liquidation with reference thereto; by constituting and establishing a sewerage and water board for the city of New Orleans and defining its powers, duties, rights, and obligation with reference to the public, the city council, the board of liquidation and the drainage commission, and vice versa," etc.

Section 35 of the act reads:

"That, as it is proposed to have this act ratified by an amendment to 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 and power to amend this act in any respect not violative of the conditions upon which the said special tax was voted by the property taxpayers of the city of New Orleans and not impairing the vested rights or the contract rights of the holders of the bonds issued under its provisions."

The constitutional amendment to which reference is thus made was proposed by Act No. 4 of the same extra session, and was adopted at the ensuing general election (in April, 1900) as follows:

"The special tax for public improvements, voted by the property taxpayers of the city of New Orleans on June 6, 1899, and levied by the city council, by ordinance No. 15,391, approved June 22, 1899, is hereby ratified and its validity shall never be questioned. The special act, adopted by the Legislature at the special session held on August 8, 1899, constituting the sewerage and water board of the city of New Orleans, authorizing the city of New Orleans to issue bonds, and providing the means to pay the principal and interest thereof, and for other purposes, cognate to the purposes of the special tax aforesaid, is hereby ratified and approved, specially including therein reserved legislative right to amend the same; and all provisions of the present Constitution in conflict with the provisions of this act, and with this amendment, are, to that extent and for that purpose only repealed."

The act thus referred to has been amended, directly or indirectly, by the Acts Nos. 111 of 1902, 69 of 1904, 19 of 1906, 116 of 1908, and 23 of 1910, as, also, by constitutional amendment, ratifying the acts of 1906 and 1908. Nevertheless, there still seemed to be something required for the successful prosecution of the great public work that had been undertaken, and the matter was regarded as of such importance that, on November 16, 1910, the Governor issued his proclamation calling upon the General Assembly to convene in extraordinary session on November 28th, for the purpose of considering, among other designated objects, or subjects, the following, to wit:

"(2) The passage of such law, or laws, as may be necessary to regulate the power and duty of the board of liquidation of the city debt of New Orleans and of the council of the city of New Orleans in regard to...