State v. Flower

• Decision Date: 21 June 1897
• Docket Number: 12,558
• Citation: 22 So. 623,49 La.Ann. 1199
• Court: Louisiana Supreme Court
• Parties: STATE OF LOUISIANA v. WALTER C. FLOWER ET ALS

22 So. 623

49 La.Ann. 1199

STATE OF LOUISIANA v. WALTER C. FLOWER ET ALS

No. 12,558

Supreme Court of Louisiana

June 21, 1897

Submitted June 10, 1897

APPEAL from the Civil District Court for the Parish of Orleans Monroe, J.

Milton J. Cunningham, Attorney General (Farrar, Jonas & Kruttschnitt of Counsel), for Plaintiff, Appellee.

Howe Spencer & Cocke, for Defendants, Appellants.

MILLER J. NICHOLLS, C.J., absent; ill.

OPINION

MILLER J.

The defendants appeal from the judgment annulling the act for the drainage of the city, and hence denying their corporate capacity claimed under the act. Session Acts 1896, No. 114. The suit is brought by the Attorney General under the provisions of law, which, taking away the writ of quo warranto as the remedy for the unwarranted exercise of public office, substitutes the appropriate procedure by the Attorney General to test the right to exercise corporate functions claimed under any law of the State. Revised Statutes, Secs. 2593, 2596, 2597, 2603; Railroad vs. Town of Kentwood, 49 An., not yet reported.

The act assailed is to effect the drainage of the city; provides for a drainage board of nine; the mayor, the chairman of designated committees of the council, the presidents of the Board of Liquidation of the City Debt and Orleans Levee Board, and two others to be selected by the designated members; the board thus constituted is to have succession and other usual corporate powers to effect the drainage; to accomplish the work the board is authorized to contract for the materials, labor and supplies requisite; employ engineers and other needful agents and do all things requisite for the drainage of the city in accordance with the plan adopted by the council; the act sets apart for the expense of the work the proceeds of sale of city franchises, and that part of the fund now in the hands of the Board of Liquidation and to accrue after 1st January, 1898, heretofore dedicated to public improvements under existing laws and constitutional amendments (Acts 1892, p. 144); to procure means, in advance of realizing the resources pledged by the act, the power to issue bonds bearing interest, payable in forty years, is conferred on the board, the payment of which is secured by the means the act provides; in aid of the drainage the power to expropriate is given, the right to connect the system begun in New Orleans with the waters of the adjoining parish is conferred: to make the drainage more efficient the act requires the co-operation of the Orleans Levee Board, the Board of Liquidation, and these bodies along with the city are represented in the composition of the Drainage Board.

Two grounds to annul the act are alleged in the petition and sought to be supported in argument; it is charged the act is local and special legislation creating a corporation within the prohibition of Art. 46 of the Constitution, and because of the alleged infringement by the act of the right guaranteed by Art. 253 of the Constitution to the citizens of New Orleans of appointing the officers to conduct the police administration of the city.

There are two articles in the Constitution relative to local and special legislation. One is permissive, provided notice of the intended law is given, and provided the subject is not embraced in the other article, absolutely prohibitive of such legislation on enumerated subjects. Arts. 46 and 48. The permissive Art. 48 is not involved in this discussion. The subject of the act is claimed to be within the scope of the prohibition in Art. 46 of local or special legislation creating corporations or amending charters. In Art. 46 there is the suggestiveness in the enumeration of the subjects with reference to which legislation is prohibited, of the legislative appreciation of the scope of the prohibition. Thus laws changing the names of persons; for the education of children; granting divorces; giving privileges or monopolies to individuals, and similar acts commonly known as private bills, are forbidden. These prohibitions have no application to this controversy, but they tend to illustrate the general bearing of the inhibition as the framers of the Constitution understood it. In connection and along with private bills the article forbids the legislative creation of corporations and amendments of charters, and it is this prohibition, accompanied as it is with the clearly expressed proviso not to apply to the corporation of this city, that the plaintiff conceives, annuls the drainage act.

It seems to us the appropriate sphere of this prohibition of the creation of corporations and amendment of charter can be readily appreciated without denying the legislative power to deal with the drainage of this city. The great mass of legislation filing our statute books of earlier years, of special acts of incorporation for each and every village or town, or private individuals seeking corporate privileges, at every session, the equally numerous demands on the Legislature for amendments of particular charters, public or private, were the prominent evils that the inhibition under discussion was designed to correct in future legislation. The response to the constitutional prohibition is, in our present general statutes, for the formation into corporations, of all towns or villages complying with prescribed conditions; other general laws conferring powers deemed essential for all subsisting municipal corporations; the statute affording all private corporations the means pointed out in the act of amending their charters and similar legislation. Acts 1880, No. 125; Act No. 49, p. 111; No. 26 of 1882; Act 150 of 1890, Sec. 14. Now does the general import conveyed by this prohibition in Art. 48, aided by the illustration of the purpose in view, and by the legislative interpretation since the Constitution came into existence, afford the basis for this court to hold that this inhibition directed against private bills and special legislation as to corporate rights strips the Legislature of the police power to provide for the drainage of this city.

The argument, in great part, is directed to the proposition that the drainage commission possesses corporate powers, and by the usual tests, as well as by the terms of the act, is constituted a corporation; hence, it is argued, the act is brought clearly within the prohibition of the creation of corporations by special act. But passing over all the discussion to show that the commission is a corporation, and giving the argument on that point its full force, does it follow that the inhibition as to the creation of corporations of undoubted usefulness and applicability for the purposes, we think, were in the contemplation of the Constitution, divests the Legislature of that power, the exercise of which is manifested by this drainage act? The attribute of government we call the police power, resides in the State, can not be relinquished by the Legislature, and if it can be surrendered by the organic law, at least, the abandonment to command judicial acceptance should find the clearest expression. Are we to take for that expression the constitutional provision against creating corporations, designed, in view, for purposes entirely distinct from the surrender of a great power of government? The intimate association of drainage with the public health is obvious. In our earliest legislation the drainage of this city was deemed a measure of vast importance to the State and city. Acts 1835, p. 168. If that was the view then, there is the added force derived from our experience that this city is the gateway through which, aided by local conditions, not the least of which is bad drainage, diseases of foreign origin may, and medical scientists affirm, have become epidemic here and propagated throughout the State. It seems to us that the drainage act viewed as a health measure must be deemed within the legislative competency, not surrendered or impaired by the constitutional prohibition of local or special legislation respecting corporations.

Again the statement in the pleadings, enforced in the argument, is that the prohibition of creating corporations or amending charters applies to this city, and this drainage act is not within the proviso. The result of the statement and argument is, as we appreciate it, that the Legislature is prohibited from giving New Orleans any legislation creating a corporation to conduct its affairs or amending its charter. There stands in the Constitution the inhibition of legislation creating corporations or amending charters, and the argument is, the drainage act is within the prohibition and not saved by the proviso. Without the aid of Art. 253 giving the Legislature plenary authority in respect to this city, the argument fails that the prohibition of Art. 46 applies to this city and defeats the drainage act. If it prevents the draining legislation it is an impediment to the charter under which we live, and was fatal also to that of 1882. The conclusion to which we think the argument leads answers it. To...