State v. Billhartz

• Decision Date: 03 November 1919
• Docket Number: 23427
• Citation: 84 So. 120,146 La. 855
• Court: Louisiana Supreme Court
• Parties: STATE v. BILLHARTZ. In re BILLHARTZ

84 So. 120

146 La. 855

STATE v. BILLHARTZ.

In re BILLHARTZ

No. 23427

Supreme Court of Louisiana

November 3, 1919

Dissenting Opinion November 8, 1919; Rehearing Denied March 12, 1920

Conviction and sentence annulled, and defendant discharged.

Alfred J. Bonoma and R. A. Dowling, both of New Orleans, for applicant.

Chandler C. Luzenberg, Dist. Atty., J. Arthur Charbonnet, Asst. Dist Atty., and Walter L. Gleason, Sp. Counsel Sewerage and Water Board, all of New Orleans (Edgar H. Bloch, of New Orleans, of counsel), for the State.

OPINION

Statement of the Case.

PROVOSTY J.

The affidavit upon which this prosecution (in the Second criminal court of New Orleans) is based charges that defendant --

"at No. 603 Deslonde street, did then and there violate a certain resolution of the sewerage and water board of New Orleans, relative to the demolition and removal from the premises of all cisterns, tanks, and other water receptacles, duly adopted July 13, 1916, and promulgated July 18, 1916, in accordance with section 2 of Act 270 of 1908 and section 20 of Act 6 of Extra Session Acts 1899, as amended, etc., by failing to remove and abolish a cistern from said premises."

The resolution thus referred to reads as follows:

"Whereas, notices to enforce the connection of inhabited premises of the city of New Orleans with the public water supply of the sewerage and water board have been sent to the owners of property throughout the city of New Orleans in accordance with the rules and regulations of this board; and

"Whereas, most of the inhabited premises in the city of New Orleans are connected with the said system and are taking the water supply therefrom; and

"Whereas, the existence of cisterns, tanks, wells, and other receptacles are a menace to the health of the city; and

"Whereas, Act 270 of the General Assembly of the state of Louisiana for the year 1908 authorized the sewerage and water board to cause the abolition thereof;

"Now, therefore, be it resolved that the following rules and regulations be made part of the permanent rules and regulations of the sewerage and water board, and as such promulgated in accordance with law, to wit:

"After the 1st day of the month of August, 1916, it shall be the duty of the owners of each inhabited premises in the city of New Orleans, which is connected with the water system of the sewerage and water board, to cause the demolition and removal from the premises of all cisterns, tanks, and other water receptacles, and shall also close all wells (except artesian wells). That the general superintendent shall from time to time send written notices, addressed to the owners of property failing to abolish or remove any cistern, tank, or other water receptacle, or failing to close any well (except artesian wells), commanding said delinquent property owner to comply with the rules and regulations of the sewerage and water board within a period of ten (10) days. That any person failing to comply with the said order of the general superintendent shall be subject to a fine not exceeding twenty-five ($ 25.00) dollars for each offense, or to imprisonment not exceeding thirty days, or both such fine and imprisonment, in the discretion of the court having jurisdiction of the offense. The general superintendent shall also have the authority, upon default of any property owner, to go upon the premises of said defaulting property owner and cause the demolition and removal of all cisterns, tanks, and other receptacles, and to close all wells (except artesian wells), the whole to be done at the cost and expense of said property owner, which said cost and expense shall be a lien on said property, equal in rank to the lien of taxes as provided for by section 3 of Act 270 of 1908."

Defendant filed a demurrer, which having been overruled, he was tried and convicted, and was sentenced to 30 days' imprisonment, and he thereupon appealed to the criminal district court for the parish of Orleans, where the conviction and sentence were affirmed. He then obtained from this court a writ of certiorari, and the record has been sent up, to the end that those rulings may be here reviewed, quoad the questions of law involved therein.

Changing somewhat their order as stated in the demurrer, and condensing them, the grounds therein set up are, in substance, as follows:

(1) That the statute (Act 270 of 1908) and resolution, which are said to authorize this prosecution, involve the grant to, and exercise by, the sewerage and water board of legislative powers which it was incompetent for the General Assembly to delegate to that board; that they impair the obligations of contracts, devest vested rights, and, under pretext of a lawful exercise of the police power, operate as an unreasonable, unnecessary, and unlawful abuse of that power.

(2) That they purport to deprive defendant of his liberty, by compelling him to drink river water, as furnished to him, and preventing him from keeping, drinking, or using rain water, and to authorize the taking and damaging of his property without due process of law, and without adequate compensation, in contravention of both state and federal Constitutions.

(3) That they contravene the health ordinances of the city of New Orleans and of the state and parish boards of health.

Opinion.

As the affidavit upon which the prosecution is based sets up the resolution of the board as its immediate authority, and sets up Acts 6 of 1899 and 270 of 1908, as the authority for the resolution, it will conduce to a better understanding of the case to consider the demurrer in connection with the following resume of the history and textual provisions of those statutes, to wit:

In April, 1899, the requisite number of property tax payers of New Orleans petitioned the mayor and council of that city to call an election upon the question of levying a special tax, and the funding of the same into bonds, the proceeds of which were to be devoted (1) to the acquisition (by construction, purchase, or both) of a system of waterworks, the extension thereof, and the purification of the water supply therefrom; (2) the construction of a free sewerage system and free water therefor; and (3) the completion of the public drainage system, then in process of construction. The petitioner also prayed that, "when said tax is voted, the council will organize a sewerage and water board * * * for the purpose of constructing, controlling, maintaining, and operating said water and sewerage system," and further prayed that there should be submitted, at the election, not only the questions of the levying of the tax and the issuance of the bonds, but also the question of the manner of the selection of the commissioners to constitute the board to be organized for the purpose or purposes above stated. The election was accordingly held on June 6, 1899; the proposition to levy the tax, etc., was sustained; the electors, presumably expressed themselves in regard to the selection of the commissioners; and, on June 22, the tax was levied. In order, however, to make effective, in all respects, the action so taken, it was necessary to obtain a ratification thereof by constitutional amendment, and the General Assembly (having been convened on August 8, 1899, in extra session) passed the Act No. 6 of 1899, which by joint resolution (of the same session), was proposed as an amendment to the Constitution, and, as such, adopted at the general election held in the month of April following. The act in question, after other provisions, declares:

"Sec. 8. * * * That, for the purpose of constructing, controlling, maintaining and operating the public water and public sewerage system of the city of New Orleans, there is hereby organized and constituted a sewerage and water board, to be composed," etc. (as requested by the electors).

Other sections provide for the officers, employes, and meetings of the board, and confer certain powers incidental and necessary to the purposes for which it was organized. Section 20 declares:

"That the said board shall have full power and authority to make all needful rules and regulations for the use of the said public system of sewerage and free water supply furnished therewith, and to prevent the obstruction thereof or interference therewith or damage thereto, and to compel all premises in the city of New Orleans to be connected with said system, and to compel the closing and discontinuance of all other sewers, and all vaults, cesspools, privies, water-closets, urinals, foul water drains and outlets of any kind of fluid material whatever; and any violation of the rules and regulations so established by said board, and duly promulgated in the official journal, shall be punished by a fine not exceeding $ 25.00 for each offense, or by imprisonment not exceeding 30 days for each offense, or by both, in the discretion of the court having jurisdiction of the offense. * * * Nothing in this act shall be construed as taking away the inspecting and supervisory power of the board of health of the city of New Orleans, over the sanitary conditions of premises."

Section 21 declares:

"That the said board shall have power to fix the rates to be charged private consumers of water, and to collect the same from all persons who use water (except for sewerage purposes only) from the public water supply of the city of New Orleans, except the...