author: Watkins, J. Nicholls, C. J., Breaux, J.

text:
    No. 12,309.
    Citizens and Taxpayers of De Soto Parish vs. Goode B. Williams, President Police Jury, et als.
    The provisions of Arts. 209 and 242 of the Constitution being upon the same subject matter, the incrasee of ad valorem taxation upon property within the parishes and municipalities of.thajState, same are laws in pari materia and must be construed together.
    What is meant by the phrase “ by a vote of the majority of the property taxpayers in number and in value” occurring in Art. 242, is a majority of the property taxpayers actually present and voting at an election.
    All qualified property taxpayers who absent themselves from an election duly called, arepresumed to assent to the expressed will of the majority of those voting, unless the law providing for the election otherwise declares.
    APPEAL from the Ninth Judicial District Court for the Parish of De Soto. Hall, J.

      Scarborough & Carver for Plaintiffs, Appellees.

      Alexander & Blanchard (Wm. Goss of Counsel) for Defendants* Appellants.
    Argued and submitted January 19, 1897.
    Opinion handed down February 15, 1897.
    Rehearing refused March 15, 1897.
   The' opinion of the court was delivered by

Watkins, J.

About twenty alleged citizens and taxpayers of the parish of De Soto entered suit against the Kansas City, Shreveport & Gulf Railroad Company, the president of the police jury of that parish, and the board of supervisors thereof, and demanded that the ordinance of said police jury directing an election to be held for the purpose of taking a vote on the question of levying a special tax of five mills upon the assessed valuation of all property within said parish, for the use and benefit of said railroad company, and the declaration of the result of the election as being in favor of the tax by said board of supervisors, be declared null and void; and the prayer of their petition is that the court declare and decree that the aforesaid election, which was held on the 2d of December, 1895, did not result in favor of the tax, and that they be relieved from all obligations and burdens resulting therefrom.

After answer filed and trial had there was judgment in favor of the plaintiffs in conformity to the allegations and prayer of their petition, and after a motion for a new trial was made and overruled, the defendants prosecuted this appeal.

The several grounds upon which plaintiffs rhst their claims to relief are, substantially, as follows, viz.:

First — That the said election was erroneously ordered, for the reason that the petition therefor was not signed by one-third of the property taxpayers of the parish.

Second — That the said election was illegal for the reason that the petition therefor requested that the proposition for the levy of the tax be submitted to the property taxpayers of the parish, whereas the police jury ordinance required that it be “submitted to the property taxpayers of the parish who are entitled to vote under the laws of the State;” and the ordinance was illegal and void, by reason of its incompatibility with the petition of the taxpayers upon which it was predicated, and of the fact, that “ there was no law at the time in existence which authorized the police jury to submit a question of levying a special tax in aid of a railway, to only such taxpayers as were entitled to vote under the general election laws of the State,” etc.

Third — That said election was not carried in favor of the tax, for the reason that no legal ballots were cast for the tax, same not conforming to the form of ballots prescribed by the ordinance.

Fourth — That the tax was not voted for by a majority in number and value of the property taxpayers of the parish, in conformity with the requirements of Art. 242 of the Constitution.

With the exception of the third, all the grounds assigned for annulling the ordinance of the police jury calling the election, the proclamation of the result of the election by the board of supervisors, and the ordinance of the police jury levying the tax, are substantially the same; and they proceed upon the theory that the proposition for the levy of the tax was not submitted to the property taxpayers of the parish, but only to those entitled to vote under the election laws of the State.

It must be observed at the outstart of this inquiry, first, that the plaintiffs make no contention as to the qualifications of the persons who voted for or against the tax; second, none that any persons who offered to vote were refused the right of voting; third, and none as to the method of holding the election, or of the manner in which proclamation of the result thereof was made.

Also, that there is no claim made with regard to the right of aliens, or non-residents, to have participated in the election; and no claim is made to rest upon any statute of the State — the plaintiff’s theory resting exclusively upon an interpretation of Art. 242 of the Constitution.

The District Judge, in disposing of tbe objection which relates to the form of the ballots that were cast in favor of the tax, said: “ There is no difference between the ballot prescribed and that used;” and our examination of the evidence has satisfied us of the correctness of his conclusion.

The crucial question in the case was disposed of by the District Judge very tersely, in the disposition he made of the plaintiffs’ second and fifth propositions, which was subsequently elaborated and enlarged, in the course of his reasons for judgment and analysis of authority.

In that of the second, he said:

“ This objection loses its force and pith, for the reason that the right to vote was not confined to those taxpayers alone who are authorized to vote under the ‘ election laws ’ of Louisiana, but extended the right to all taxpayers who are entitled to vote under ‘the laws’ of Louisiana,” etc.
In that of the fifth, he said — quoting it as follows, viz.: “That the tax was not voted for by a majority in number and value of the property taxpayers of the parish, as required by Art. 242 of the Constitution of the State, and that the tax was therefore not carried ” — the evidence shows that at the date of the election there were two thousand four hundred and seven male resident taxpayers in the parish, with an assessment of eight hundred and eighty-three thousand six hundred and seventy-five dollars; and that of this number one thousand and sixty-nine, with an assessment of four hundred and thirty-eight thousand four hundred and forty-eight dollars, voted for the tax, while six hundred and thirty-eight, with an assessment of three hundred and forty thousand five hundred and ninety-eight dollars, voted against the tax.
“ It will thus be seen that the tax received a majority in number and amount of the votes east, but did not receive a majority either in number or amount of the whole number of resident male taxpayers; though a majority both in number and amount of such resident male voters participated in the election.”

Discarding, altogether, the interpretation of like questions by the courts of many of the States, and of the Supreme Court of the United States, and holding “ that this case must be decided by the aid of our own constitutional provisions, in the light of our own jurisprudence,” the judge a quo said:

“It is true that Art. 242 does not say, in so many words, that it shall require a majority of all, whether voting or not, to carry such a tax; and if the article stood alone, and there was no other article authorizing an increase of taxation for any other purpose, the conclusion might be different. But when we find an express provision in the only other article authorizing an increase of taxation by a vote, that a majority of those voting shall be sufficient, and find no similar words in Art. 242, the conclusion seems inevitable that the omission was intentional, especially when we find it coupled with so many other restrictions in Art. 242 that are not in 209.”

In arriving at this conclusion the judge a quo appears to have given due attention to all the adjudications of this court upon the subject, and he collated them as follows, viz.: Surget vs. Chase, 33 An. 833; Duperier vs. Viator et al., 35 An. 957; MacKenzie vs. Wooley, 39 An. 944; Sentell et als. vs. Police Jury, 48 An. 96 — analyzing only the last two; but his analysis of the two articles of the Constitution, taking them in conjunction, is very persuasive, though we can not concur in his conclusion.

Without goinginto details, or traversing the answer of the defendants in extenso, we make from the principal brief of their counsel, the following extract, as fairly stating the contention on which they rely, namely:

“ ‘A vote of the majority,’ as used in Art. 242, instead of meaning that a majority of all the property taxpayers in numbers and in value in the parish must vote affirmatively for the proposition, means that the vote given as a whole must be considered, and if it be found that a majority of such vote is in favor of the tax, then it is carried, otherwise not. How can those who, by abstention from the polls, do not act on the proposition, be held to be included in ‘ a vote?’ They can not be. The phrase ‘ a vote,’ as used in the article, is synonymous with ‘ a poll ’ — a poll of the property taxpayers of the parish — and if a majority in numbers and in value of such 4 poll ’ be found voting for the tax it is carried. This view not only makes the article practical and effective, but reconciles it with its sister Art. 209, relating to the same subject matter — an increase of taxation, over the general limit, for the purpose of public improvements. Webster defines ‘ a poll,’ in this sense, to be ‘ a number or aggregate of heads; a list or register of heads or individuals;’ also ‘ the register of the names of electors who may vote in an election.’ Therefore, ‘ a poll,’ ‘ a vote,’ includes all who actually cast their votes at the election. Those who stay away are not to be counted in the poll — in the vote.”

The facts are few, simple and uncontested.

They are, in substance, as follows, viz.:

At the request of the Kansas City, Shreveport & Gulf Railroad Company, one of the defendants, a special tax was solicited at the hands of the people of the parish of De Soto, to be laid upon the taxable values thereof in aid of the construction of a railroad track through said parish en route from Kansas City to the Gulf of Mexico.

Upon petition duly signed as the law requires the question was duly submitted to the property taxpayers of the parish at an election held conformably to law, and with the result, substantially, as stated in the reasons assigned by the District Judge.

After the votes cast had been duly counted and tabulated by the board of election supervisors, another of the defendants, proclamation of the result was made as authorizing the tax.

Thereupon the police jury, another of the defendants, passed an ordinance levying the special five-mill tax voted at the election.

In furtherance of its enterprise the railroad company proceeded to construct its line of railway through the parish of De Soto, as originally contemplated; and, at great expense, had already constructed and completely equipped and outfitted same for many miles, relying upon the avails of said tax, and .the laws and jurisprudence of the State interpreting them as they existed at the time.

And, in fine, while the road was in process of construction and the tax in process of collection, this suit was brought for the annulment of the latter.

It is from the standpoint of the aforesaid pleadings, proof and opinion we are invited to review the judgment appealed from.

While the argument at the bar and in the briefs of counsel, on either side, are very elaborate, and more than usually able and instructive to the court, yet, in our conception, the question for decision is narrowed to the compass of the single phrase of Art. 242 of the Constitution, viz.: “By a vote of the majority of the property taxpayers in numbers and in value.”

And in determining the true meaning and import of that phrase, we must decide whether a majority of those voting is intended, or a majority of all the property taxpayers, regardless of whether they participated in the election by voting thereat or not.

And just here it must be observed that in the discussion of the case, and in the opinion of our learned brother of the District Court, property taxpayers of the parish of De Soto were alone dealt with.

Inasmuch as this constitutional article is not self-explanatory on this subject, we are constrained to do as the District Judge has done and consult other articles of the organic law upon the same subject matter — increase in the rate of property taxation for public improvement — as well as the jurisprudence applicable thereto, in order to reach a satisfactory solution of the query propounded.

Pursuing this course, we will, in the first place, deal with Arts. 209' and 242, as in pari materia; and in the second place with the latter alone.

I.

The following are the two articles — namely, 209 and 242.

That portion of Art. 209 which relates to the question involved in.; this case reads as follows:

“ No parish or municipal tax, for all purposes whatsoever, shall exceed ten mills on the dollar of valuation; provided, that for the purpose of erecting and constructing public buildings, bridges and works of public improvement in parishes and municipalities the rates of taxation herein limited may be increased when the rate of such increase, and the purpose for which it is intended, shall have been submitted to a vote of the property taxpayers of such parish or municipality entitled to a vote under the election laws of the State, and a majority of same voting at such election shall have voted therefor.”

Article 242 reads as follows:

“The General Assembly shall have power to enact general laws authorizing the parochial or municipal authorities of the State, under certain circumstances, by a vote of the majority of the property taxpayers in numbers and in value, to levy special taxes in aid of public improvements or railway enterprises; provided, that such tax shall not exceed the rate of five mills per annum, nor extend for a longer period than ten years.”

A careful scrutiny of these articles makes it apparent that both appertain to the same subject matter, the increase of parish or municipal taxation beyond the fixed limit of ten mills. Art. 209, occurring under the heading in the Constitution entitled “ Revenue and Taxation,” lays down the general prohibition that “ no parish or municipal tax for all purposes whatsoever shall exceed ten mills on the dollar of valuation;” and the subjoined proviso states the exceptions thereto, enumerates the character of objects in aid of which the foregoing limitation may be increased and the modus operandi of increasing such parochial or municipal tax.

Article 242, occurring under the heading in the Constitution entitled “Corporation and Corporate Rights,” contains a general direction to the General Assembly upon the subject of special taxes, and confers upon them “ power to enact general laws authorizing the parochial or municipal authorities of the State, under certain circumstances, to levy special taxes in aid of public improvements or railway enterprises.” (Our italics.)

This last article deals with the General Assembly alone, and authorizes them to deal with ‘ ‘ parochial and municipal authorities under certain circumstances; ’ ’ and in keeping with this delegation of authority It confers upon the General Assembly “ power to enact general laws ” with reference to “ special taxes in aid of public improvements or railway enterprises.”

It is not denied, on the contrary it is admitted, that the provisions of Art. 209 must be consulted for the purpose of ascertaining the true meaning and import of the phrase “ under certain circumstances," occurring in Art. 242, or in orther words, the article conferred power upon the General Assembly to enact laws upon the subject of special taxes under the circumstances enumerated in Art. 209, which contains the prohibition above referred to.

And manifestly this is the only correct view to be taken of it, as any other would do away with all constitutional restraint upon the General Assembly in the premises and open the door for the enactment of any laws they might deem expedient.

Not only so, but the two articles are, to our thinking, harmonious upon another vital question, the objects for which the rate of taxation may be increased — the phrase in Art. 209 being “for the purpose of erecting and constructing public buildings, bridges and works of public improvement,” while that in Art. 242 is “ in aid of public improvements, or railway enterprises."

It will not be denied that public buildings and bridges are “public improvements” in the sense of Art. 242, nor will it be denied that a railroad, such as the one of the defendant railway company, is a “ work of public improvement” in the sense of Art. 209.

In the two articles of the Constitution succeeding 242 we find the following expressions, namely:

(1) “Any railroad corporation, or association organized for the purpose, shall have the right to construct and operate a railroad between any points within this State, etc., Art. 243; (2) “railways heretofore constructed, or that may hereafter be constructed in this State, are hereby declared public highways, and railroad companies common carriers.” Article 244.

And our statute provides that “it shall be lawful for any number of persons not less than six * * * to form themselves into and constitute a corporation for the following purposes, to - wit: For the contraction and maintenance of railroads, canals, plank roads, bridges, ferries and other works of public improvement.” R. S., Sec. 683.

It is thus established upon the authority of the Constitution and the statutes of this State, that the term “railway enterprises” occurring in Art. 242, as well as “bridges,” occurring in Art. 209, are “ works of public improvement,” in the sense of the latter.

The differences between the two articles are the following, namely, that Art. 209 provides that the proposed increase of the rate of taxation shall be “ submitted to a vote-of the property taxpayers of such parish,” while 242 provides that same shall be authorized “ by a vote of the majority of the property taxpayers in numbers and in value,” omitting the parish; and that Art. 209 provides that the property taxpayers shall be those only who are “ entitled to vote under the -election laws of the State, and a majority of same voting at such election shall have voted therefor,” while Art. 242 is silent on the subject.

Attention has been attracted to the fact that while Art. 209 places no limitation upon the rate of the proposed increase, yet Art. 242 fixes the rate of increase at five mills, and the period of its duration at ten years.

Taking the latter supposed difference first, it can, in our opinion, be readily reconciled, upon the hypothesis already suggested, that Art. 242 was a grant of power to the General Assembly to deal with the subject of special taxes, and that power is subject to the limitation contained in the proviso.

That proviso affording a check upon the General Assembly, it is powerless, “ under (any) circumstances,” to pass the limit therein set.

Considering, in the second place, the other supposed difference, we find it distinctly covered by a decision of our predecessors; we refer to the case of Surgett vs. Chase, 33 An. 833, wherein the question was of the legality of a special tax for the purpose of building a public levee, which had been “ submitted to a vote of the property taxpayers ” in supposed conformity to the provisions of Art. 209, omitting the limitation of Art. 242 “ in numbers and in value.”

In that case the court, in its original opinion, said:

“ It requires no reasoning, or authority to satisfy the legal mind, that any legislation which would have attempted to confer on police juries the power to build public levees * * * would be glaringly unconstitutional, and could not be enforced by the courts unless the authority be found in Arts. 209 or 242. * * *

“ Construing these two articles in connection with Art. 215,” etc., the court announced that the foregoing conclusion was confirmed.

Following up that theory the court quoted Art. 242 in its entirety and made the following observations thereon, viz.:

“Now, as the project of levying this special tax is shown to have been submitted to the majority of the taxpaying electors of the parish, and not to the majority of the taxpayers of the parish in numbers and in value as imperatively required by that article * * * defendants can not invoke the authority of that article.”

In other words, the court held that the defendants had submitted the question of levying the special levee tax to the majority of the taxpaying electors in keeping with the provisions of Art. 209, but had failed to procure “ a vote of the majority of the property taxpayers in numbers and in value,” as provided in Art. 242.

That this was the evident purpose and intended scope of that opinion is fully verified by the opinion on rehearing, wherein Me. Justice Fenner, speaking for the court, said:

“The proposition that Art. 209 is self-operating, and confers directly upon the parishes the absolute power to levy unlimited taxes for the purpose therein specified upon the vote of a mere numerical majority of the taxpayers, without reference to the value of the property represented, is certainly startling.”

It is rarely the ease that so much force and meaning are couched in such few words.

But for the construction the court placed upon the provisions of Art. 209, the consequences apprehended would inevitably flow from it.

If Art. 209 is not self-operating it is because Art. 242 confers upon the General Assembly the power to put it in force. If Art. 209 does not authorize unlimited taxes for the purposes specified therein, it is because the proviso of Art. 242 prevents.

If Art. 209 does not authorize a mere numerical majority of the property taxpayers, without regard to their number or value of property represented, it is because the restraint is imposed by Art. 242.

On the other hand, if only those property taxpayers of a designated parish, who are entitled to vote under the election laws of the State, are entitled to participate in an election held in pursuance of Art. 242, it is because that condition is imposed by Art. 209.

To our minds, the force of the conclusions the court arrived at in that case is irresistible; and we accept them as absolutely conclusive on the proposition that Arts. 209 and 242 are laws in pari materia.

Accepting this conclusion as correct, it necessarily follows that the concluding sentence of Art. 209 controls this case, viz.: “And a majority of the same voting at such election shall have voted therefor.”

But that opinion is not alone. There are others.

In Duperier vs. Viator, 35 An. 957, the contention was “ that the majority of the taxpayers of the parish did not vote in favor of the tax as required by Act 126 of 1882;” but, notwithstanding the proof disclosed that a number less than a majority of the property holders participated in the.election, the court said:

“ In our opinion, this language ” — that of Art. 209, quoting same-:— “ is liable to no other construction (than) that the tax must receive the vote of the majority of the taxpayers who votedatthe election; or, in other words, the majority of the legal votes cast at the election,” etc.

That decision goes further than the exigencies of the instant case require, for the reason that at the election under consideration there was a large majority of the property taxpayers, in numbers and in value, who participated in the election; and a large majority of those participating voted in favor of the tax.

In McKenzie vs. Tax Collector, 39 An. 944, the court had under consideration the identical question we have before us — the legality of a special municipal tax, which had been 1 vied in pursuance of an election held in 1887, in aid of the construction of a railroad connecting the town of Minden with the main line of the Vicksburg, Shreveport & Pacific Railroad, passing through a portion of the parish of Webster.

In dealing with the question the court said:

“ Articles 242 and 209 being in pari materia (they) must be construed together; and the latter provides that the levying of a special tax shall be submitted to a vote of the property taxpayers of such parish or municipality entitled to vote under the election laws of the State.
“ In Duperier vs. Viator, 35 An. 957, this court held that the property taxpayers entitled to vote are only those who are entitled to vote at a general election.”

This case is in exact keeping with that of Surget vs. Chase and Duperier vs. Viator.

In 1884 there was submitted to the electors of the State the subjoined amendment to Art. 214 of the Constitution, namely:

“No. 112. Joint Resolution.
Be it resolved, by the General Assembly of Louisiana, two-thirds of the members elected to each house agreeing thereto, That at the general election next ensuing the passage of this resolution, the following amendment to Art. 214 of the Constitution of this State shall be submitted to the people of this State, and if a majority of voters at said election shall approve and ratify such amendment, the same shall become a part of the Oonstitution of the State, to-wit: That Art. (214) two hundred and fourteen of the Oonstitution be amended so as to read as follows:
“ The General Assembly may divide the State into levee districts and provide for the appointment or election of levee commissioners •in said districts, who shall, in the method and manner to be provided by law, have supervision of the erection, repair and maintenance of the levees in said districts; to that effect the Levee Commissioners may levy a tax not to exceed ten mills on the taxable property situated within the alluvial portions of said district subject to overflow; provided, that in case oi necessity to raise additional funds for constructing, preserving or repairing any levees protecting the lands of a district, the rate of taxation herein limited may be increased, when the rate of such increase and the necessity and purpose for which it is intended shall have been submitted to a vote of the prop - erty taxpayers of such district, paying taxes for himself, or in any representative capacity, whether resident or non-resident, on property situated within the alluvial portion of said district subject to overflow, and a majority of those in number and value, voting at such election, shall have voted therefor.”
From an examination of the act of the Legislature it will be seen that it was to be “ submitted to the people of the State, and if a majority of the voters at said election shall approve and ratify such amendment, the same shall become a part of the Constitution;” and the proposed amendment declares that for the purpose of constructing, preserving or repairing an/ levees, “ the rate of taxation herein limited may be increased, when the rate of such increase and the necessity and purpose for which it was intended shall have been submitted to a vote of the property taxpayers of such district * * * and a majority of those in number and value, voting at such election, shall have voted therefor.”

In Munson vs. Board of Commissioners, etc., 43 An. 15, this court had under consideration, and determined the constitutionality of, Act 97 of 1890, which directed the levy and collection of certain acreage and produce taxes; and therein was drawn in question the legal operation and effect of the aforesaid constitutional amendment.

It was the contention of plaintiffs’ counsel, in that case, that said legislative act was unconstitutional, because its provisions conflicted with those of the afoi’esaid amendment; and that it provided for a local assessment, and not a tax eo nomine, and was, consequently, different from Art. 209 of the Constitution.

In deciding that question this court said :

“ When, however, a question arises of the necesssity for increasing the burden of taxation for any purpose whatever, it is meet and proper that the property taxpayers of the district within which the increase is proposed should be consulted. And we take it to be quite a significant circumstance that there was incorporated in the amendment to Art. 214, the identical provision which is contained in Art. 209, directing that any increase of the rate of taxation therein limited shall be first submitted to a vote of the property taxpayers. It seems to be indicative of the taxing power which is conferred in each article; each being designed for similar specific purposes — the erection of a court house or the construction of a levee.”

See also Charnock vs. Levee Company, 38 An. 323; Planting and Manufacturing Co. vs. Tax Collector, 39 An. 455; and Levee Commissioners vs. Lorio Bros., 33 An. 276, in which analogous principles are announced.

In Barber Asphalt Paving Company vs. Gogreve, 41 An. 251, this court distinctly held, that “ the provisions of Art. 209 of the Constitution have exclusive reference to ad valorem taxation for the purposes of revenue, and do not apply to special assessments for street improvement.”

It thus apppears evident that by an uniform and consistent course of decision, during a period of fifteen years, this court has maintained the principle of consistency and similarity in these several articles relating to an increased rate of ad valorem taxation for the purposes of public improvement; so that they have thereby become a unit— the provisions of one being, as it were, read into the other.

Evidently being mindful of the jurisprudence of the State upon this question, the Legislature of 1894 proposed an amendment to Art. 242 of the Constitution so as to make it read just as it had been interpreted to mean, viz.:

“The General Assembly shall have power to enact general laws authorizing the parochial or municipal authorities of the State, under certain circumstances, by a vote of a majority of the taxpayers in number and amount voting at the election to levy special taxes in aid of public improvements or railway enterprises, etc.” (Our italics.)

Notwithstanding this proposed amendment was, with various others, defeated at the general election held in 1898, it evidences as well as sanctions the interpretation that this court had theretofore placed upon Arts. 209 and 242, as being in pari materia.

Counsel have argued, and our learned brother of the District Court was of opinion, that this court entertained a somewhat different view of this question, in Sentell vs. Police Jury, 48 An. 96; but that is an erroneous supposition.

The case before the court was similar to some of the contestations we have referred to; but the court dealt with certain exceptions which the defendants had interposed in the lower court, and two of which the District Judge had sustained and dismissed the suit-misjoinder of the plaintiffs, and no cause of action.

In the course of our opinion we said:

“ The exception of misjoinder is based upon the fact that some of the plaintiffs are residents of Avoyelles, and others of Orleans and St. Landry. All are alleged taxpayers.”

And after approving the opinions expressed in McKenzie vs. Tax Collector, and Duperier vs. Viator, the opinion proceeds as follows, viz.:

Article 242 “deals with elections for railway enterprises, and in our view entitles taxpayers to vote. The act (of 1886) which puts this last article into effect, provides for the yotes of non-resident taxpayers. We think that taxpayers, whether resident or non-resident, were properly joined as plaintiffs.”

It must be observed that the opinion says that Art. 242 “ entitles taxpayers to vote;” not non-resident taxpayers. It speaks of the Act of 1886, providing for the votes of non-residents” — an altogether different proposition. And the conclusion of the court was, “that taxpayers, whether resident or non-resident, were properly joined as plaintiffs; not that they were capacitated to vote.

Having arrived at this conclusion, the court reversed the judgment, reinstated the case and remanded it for a trial upon the merits. But after the case went back to the District Court, a voluntary non-suit was entered and nothing passed by our decree.

But as neither Art. 209 nor. 242 makes any provision for the method of holding elections thereunder, nor of ascertaining the results thereof, nor for the contesting of same, the Legislature is empowered by the latter article to deal with those questions as it deems best.

Consequently it was within its competency to declare who were capacitated to institute an election contest in order to have it declared void on the ground of the non-performance of certain conditions precedent, notwithstanding it was absolutely without power to prescribe the qualifications of persons to vote.

Hence in the case of Sentell vs. Police Jury, it was with the capacity of the plaintiffs to institute suit and stand in judgment, that we dealt, and not with their constitutional qualifications to vote. The latter question was one for the merits alone, and they had not been reached and had not been disposed of in the court below.

In keeping with that theory Act 106 of 1892 provides that any election held under Arts. 209, 242 and 250 of the Constitution * * * may be contested by any party or parties in interest on the grounds of fraud, illegality or irregularity, before any court of competent jurisdiction.” Id., Sec. 1.

It provides that all property taxpayers have the capacity of suitors, whether non-residents, minors, married women, interdicted, insane or convicted persons; and surely such persons should enjoy the right to demand judicial relief from the payment of a tax on the ground of its nullity, which they had not the qualifications as voters to primarily resist at the polls. For, in this way, the equality of all property taxpayers would be in a great measure preserved; and the existence and recognition of that right would have a tendency to restrain and repress illegality and informality in the conduct of elections.

After careful consideration of the articles of the Constitution and all the adjudged cases in our reports appertaining thereto, we are prepared to affirm the opinions we have quoted and to adhere to the principles therein announced.

II.

But, pretermitting all reference to Art. 209, and confining the discussion arguendo, to the provisions of Art. 242, let us consider the phrase “by a vote of the majority of the property taxpayers, in numbers and in value,” and ascertain its true meaning.

It is quite significant, indeed, that the phrase is, “ by a vote-of the majority of the property taxpayers,” etc., instead of “ by a vote of the majority of all the property taxpayers,” etc.

Between such phrases as these two, a difference has been taken by nearly all of the courts whose opinions we have examined on the’ subject, and with the proximate result, that in cases where the word all is omitted, the decisions have been, that a majority of those actually voting carries the election in favor of the tax, those not voting being presumed to have acquiesced in the result; whilst in those eases in which the word all occurs, an affirmative vote of all the property taxpayers is requisite for that purpose.

The following decisions of some of the courts of other States will serve to illustrate the foregoing propositions.

They are founded upon the precepts of text writers of the first ability, the trend of which may be summarized thus:

That the rule to guide those to whom the question is submitted is, to take the majority of votes cast as a test — those who remain away from the polls being presumed to assent to what is done by a majority of those who vote. Their silence, when they had an opportunity to speak and change the result, is taken for consent to the result. That is the settled doctrine in this country in respect to the election-of officers at a general election and, also, at elections for the purpose of deciding any special proposition. McCreary on Elections, p. 114.

The Constitution of Minnesota requiring that a law relative to the-removal of a county seat shall, before taking effect, “ be submitted to the electors of the county * * * and be adopted by a majority of such electors,” the Supreme Court of that State held that-phrase to mean “ a majority of those electors voting at the election * * * irrespective of the particular facts appearing in the case,” etc.

To the same effect are Taylor vs. Taylor, 10 Minn. 107; Bayard vs. Filing, 16 Minn. 249.

A statute of North Carolina, which authorized aid to be granted railroads upon same having been “ voted by a majority of the voters of said town qualified to vote for commissioners,” was interpreted by the Supreme Court of that State to mean a majority of the votes actually cast at the election; that all voters who did not choose to participate in the election “ are to be taken as assenting to the result of the election, according to the vote actually polled.” Reiger vs. Commissioners, 7 N. C. 318.

A Missouri statute required that all propositions “to create a debt by borrowing money for any purpose whatsoever ” should be submitted “to a vote of the qualified electors of a city, and that two-thirds of such qualified voters (was necessary) to sanction the same;” and the Supreme Court of that State held it sufficient “ if two-thirds of the qualified voters who voted at the special election voted in favor of the proposition.” State ex rel. Bassett vs. Reneck, 37 Mo. 270.

In People vs. Warfield, 20 Ill. 159, the court said:

“ The voters of the county ref erred to were those who should vote at the election authorized. If we go beyond this and inquire whether there were other voters of the county who were detained from the election by absence or sickness, or who voluntarily absented themselves from the polls, we should introduce an interminable inquiry, and invite contests in elections of the most embarrassing and baneful character, if we did not destroy all of the practical benefits of laws enacted under these provisions of the Constitution.
“We hold, therefore, that a majority of the legal votes cast at this election is sufficient to determine the question of a relocation of the county seat.”

In Railroad Company vs. Davidson County, 33 Tenn. 636, it was held:

“When a question of an election is put to the people of a county, and is made to depend upon the vote of a majority of the voters of said county, the only proper test of the number entitled to vote in such election is the result thereof as determined by the ballot box.”

In Sanford vs. Prentice, 28 Wis. 358, it was held that “ a majority of the legal voters of a district ‘ meant ’ only a majority of those actually voting at the election.”

In Vance vs. Anstell, 45 Ark. 400, the court held that the phrase “without the consent of a majority of the qualified voters of the county” meant “ a majority of those actually voting at the election.”

In Smith vs. Procter, 130 N. Y. 319,it was held that the phrase “a majority of all the inhabitants of any school district entitled to vote” meant “ a majority of those actually voting,” etc. — an exceedingly strong case.

In People ex rel. Freeman vs. Ohute, 50 N. Y. 461, the court held:

“Those who are absent from the polls, in theory and practical result, are assumed to assent to the action of those who go to the polls and vote; and those who go to the polls and do not vote for any candidate for office are bound by the result of the action of those who do, and he who receives the highest number of earnest valid votes is to be the one chosen to the office.”

In Green vs. State Board of Commissioners, the Supreme Court of Idaho (December term, 1896) had under consideration the question whether a proposed constitutional amendment permitting women to exercise the elective franchise had been carried, at an election held under an article of the State Constitution, and the terms of which amendment were that a “majority of the electors shall ratify the same;” and the court held that a majority of those voting was all the Constitution required, and “that the ten thousand or more voters who refrained from voting must be taken to have assented thereto.”

And in that case the court further said:

“ This is a government by the people, who have opinions, and are willing to express them. Representatives are elected, both in Congress and the Legislature, constitutions are framed, and laws are enacted, and of right ought to be, by these men, and by these only.”

In Walker vs. Oswald, 11 Atlantic Reporter, 711, it was held that those abstaining from voting “ are considered to have acquiesced in the result, if the measure is adopted (by) receiving a majority of those voting upon it,” etc.

In Dayton vs. City of St. Paul, 22 Minn. 400, it was held “ that a majority of those present and voting shall be sufficient.”

Our own court has followed and adopted this interpretation.

In City vs. De St. Romes, 9 An. 57, the question was one relating to the subscription by parishes and municipalities of the State to the stock of corporations in aid of works of internal improvement, and the statute required that such proposition must be submitted to and ratified by “a majority of the voters on whose property tbe supposed tax is be levied;” and the court, through Mr. Justice Ogden, held tfiat it was sufficient if it was ‘ ‘ approved and ratified by a majority of the votes cast at the election.”

It is true that there are many opinions which express a contrary view; but, as before observed, they construe statutes or constitutional provisions which declare that the majority of all the qualified electors shall favor the proposition; that is to say, very many of' them.

But we do not regard it our duty to attempt to reconcile conflicting views upon the question; In such an emergency we may with safety consult the opinion of the Supreme Court of the United States as the best and final arbiter of all such disputes.

One of the principal cases to which our attention has been directed is County of Cass vs. Johnston, 95 U. S. 360, in which the question for determination and decision was, as to what was the proper construction to be placed upon the Missouri statute known as the “Township Aid Act,” which authorized subscriptions by townships to the stock of railroad companies, “whenever two-thirds of the qualified voters voting at an election called for that purpose shall vote in favor of said subscription,” while the Constitution of that State prohibits such a subscription “ unless two-thirds of the qualified voters of the * * * town, at a regular election held therein, shall assent thereto;” and the court held that the provisions of the Constitution and the statute were substantially the same — specifically overruling the case of Harshman vs. Bates County, 92 U. S. 569, in which a contrary opinion had been expressed.

That a majority of legal voters requires only a majority of the legal voters actually voting at an election is “ the established rule as to the effect of elections in the absence of any statutory regulation to the contrary. All qualified voters who absent themselves from an election duly called are presumed to assent to the expressed will of the majority of those voting unless the law providing for the election otherwise declares” — citing with approval St. Joseph Township vs. Rogers, 16 Wall. 644, and many of the eases we have already collated. It will be difficult to find an opinion more completely apposite and authoritative than that.

In Douglas vs. County of Pike, 101 U. S. 677, the Supreme Court had under consideration the constitutionality of the same Missouri statute to aid and facilitate the construction of railroads; and they were requested to review their decision in County of Cass vs. Johnston, because the Supreme Court of Missouri had decided that statute unconstitutional, notwithstanding the decision in that case favoring its constitutionality.

The court did review the grounds of their decision in County of Cass vs. Johnston, most carefully and thoroughly, and after this examination affirmed its correctness.

In Carroll County vs. Smith, 111 U. S. 556, the question was of the validity and legality of an election held in pursuance of the provision of the Constitution of Mississippi and laws of that State which provide the manner in which counties of that State may grant aid to corporations, and the court said:

“The assent of two-thirds of the qualified voters of the county at an election lawfully held for that purpose, to a proposed issue of municipal bonds, intended by that instrument, meant the vote of two-thirds of the qualified voters present and voting at such election in its favor, as determined by the official return of the result.”

But the most recent expression of opinion by the Supreme Court is that in Knox County vs. Ninth National Bank, 147 U. S. 91, in which Mr. Justice Brown, speaking for the court, said:

“ Several decisions of the Supreme Court of Missouri are cited, the latest being that of State vs. Harris, 96 Missouri, 29, in which the court held that two-thirds of those actually voting is not sufficient,” but the court said that opinion was erroneous, and adhered to their previous rulings.

Comment is unnecessary, as those decisions are final and controlling; and we hold that on reason and authority that a majority of the property taxpayers in number and value means a majority of those voting at an election.

And thus holding, the election under consideration was legal, and the judgment appealed from is erroneous.

It is therefore ordered and decreed that the judgment appealed from be annulled and reversed; and it is further ordered and decreed that plaintiffs’ demands be rejected at their cost in both courts.

Nicholls, C. J.,

rests his concurrence on the ground of acquiescence.

Dissenting Opinion.

Breaux, J.

I regret that I am compelled to dissent from the elaborate opinion of the court in this case.

It is conceded, if it is requisite that it be carried by a majority of the property taxpayers in number and amount, the election for the tax was defeated.

The contention of the plaintiff is that it was carried by a majority in number and value of the property taxpayers voting at the election.

The article of the Constitution applying reads: “The General Assembly shall have power to enact general laws authorizing the parish or municipal authorities of the State, under certain circumstances, by a vote of the majority of the property taxpayers in num - ber and value, to levy a special tax in aid of public improvements or railway enterprises,” thus requiring, as I think, a majority of the property taxpayers in number and value of property to carry the election,

It is different under Art. 209 of the- Constitution, which, in my view, does not apply to railroads. The latter applies to public buildings, bridges, and all works of public improvement in parishes and municipalities. Improvements owned by the respective communities with whose funds they were constructed.

In the latter case, in my judgment, a majority in number and value of the property taxpayers voting at suoh election is the majority required. As I appreciate the issues, acquiescence of the taxpayer in the work done and the benefit received by him are far more persuasive than the construction placed upon the article of the Constitution, viz.: that the required majority in value and amount voting is the majority required.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 12,401.
    The State vs. John G. Oriol.
    A city ordinance relating to the sale of lottery tickets, -which provides that one-half of any money recovered from violators thereof shall be the property of the party who shall furnish the information, on which they shall be convicted is neither illegal nor ultra vires,

    APPEAL from the Sixth Recorder’s Court of the City of New Orleans. Arnauld, J.

      Samuel L. Gilmore, Oity Attorney, and O. H. Lavillebeuvre, Assistant City Attorney, for Plaintiff, Appellee.

      Chandler C. Luzenberg for Defendant, Appellant.
    Submitted on briefs March 6, 1897.
    Opinion handed down March 15, 1897.
   The opinion of the court was delivered by

Watkins, J.

The defendant being prosecuted on a charge of having violated City Ordinance No. 12,755, C. S., as amended by Ordinance No. 12,889, C. S., relative to the sale of lottery tickets, entered a demurrer thereto on the ground that the penal clause of said last named ordinance is illegal and ultra vires; and same having been overruled and the defendant found guilty, and sentenced to pay a fine of twenty-five dollars and suffer imprisonment for a period of ten days in the parish prison, and in default of paying the fine to suffer an additional term of impiisonment of twenty days, he prosecutes this appeal.

The part of the amended ordinance complained of as “ illegal and ultra vires ” of the City Council is the following, viz.:

“That one-half of any money thus recovered shall be the property of the party giving such information and testimony to the recorder, as will lead to the conviction of°the offender,” etc.

The City Attorney cites to us our decision in State vs. Voss, infra, p. 444, and State ex rel. Taquino vs. Arnauld, Recorder, supra, p. 104, as having disposed of the issue herein presented.

In the latter the question was of the nullity of the fine imposed, and the penalty inflicted was held to be null and void under the third section of Ordinance No. 12,755, being in excess of thirty days’ imprisonment.

In the former the question was as to the legality of the second and third paragraphs of Ordinance No. 12,889, but their validity and that of the sentence imposed were affirmed.

With regard to the supposed illegality of the ordinance, in the particular paragraph cited, or that of want of power in the City Council to pass and promulgate it, the argument of defendant’s counsel is that it is contra bonos mores, in that it operates as an encouragement to informers and spies.

We do not view the ordinance in that light. The operations of dealers in lottery tickets are doubtless secret and crafty, and if some inducement is not offered by the city to secure their apprehension and conviction the ordinance would speedily become a dead letter for all practical purposes.

Laws of the character of the ordinance are of frequent enactment; and they seem to us quite as defensible and praiseworthy as are the proclamations of the Governor of a State offering rewards to persons who may apprehend refugees from justice, and produce the proof upon which their conviction may be secured.

Judgment affirmed.


author: Breaux, J.

text:
    No. 12,358.
    The State vs. H. Voss.

      City Ordinance. — While it is true that ordinances making certain acts the evidence of an offence committed should be strictly construed, it does not follow that they should be pronounced null.

      Act and “intent ” essentials.- — One accused of violating an ordinance to abate con- ducting lotteries as being a nuisance, is not guilty, unless there was “ intent.” To constitute crime there must be joint operation of act and criminal intent.

      The offence. — Knowingly having tickets in one’s possession in matter of conducting a lottery, or knowingly giving information of a drawing or a pretended drawing, is made the offence in the matter of conducting a lottery. The defendant by the sentence was not deprived of his property or liberty without due process of law.

      Fine of §25, or 30 days’ imprisonment is the statutory limit. — The ordinance interpreted, in its entirety, does not exceed in extent of punishment the limit imposed by the legislative act.
    A PPEAL from the Sixth Recorder’s Court of the City of New Orleans. Arnauld, J.

      James J. McLoughlin, Assistant City Attorney, and Samuel L. Gilmore, City Attorney, for Plaintiff, Appellee.

      Chandler C. Luzenberg for Defendant, Appellant.

      Submitted on briefs February 19, 1897.
    Opinion handed down March 1, 1897.
   The opinion of the court was delivered by

Breaux, J.

An affidavit charged defendant with having violated an ordinance of the Oity Oouncil relative to lotteries.

He was tried, found guilty and sentenced to pay a fine of twenty-five dollars and to ten days’ imprisonment, and in default of payment of the fine, to an additional imprisonment of twenty days in the parish prison.

Upon his trial he alleged that the ordinance was illegal and unconstitutional.

From the sentence he has appealed.

In this appeal, the defendant, in the first place, urged that Sec. 2 of the ordinance, which reads as follows: “That it shall not be necessary to prove the actual sale of lottery tickets in any space, house, office or premises, but any sign, tickets, sheets, bulletins or other device used to indicate that tickets are kept for sale, or to give information as to the result of any drawing or pretended drawing, shall be taken and accepted as a sufficient proof of the keeping of a lottery office or shop,” was illegal and unconstitutional.

The complaint of the defendant was that any ordinance which makes the finding of a lottery ticket or device, on the premises, or on the person of a defendant, sufficient proof of his keeping a lottery shop, is depriving him of his liberty without due process of law.

The section of the ordinance agiinst which this complaint is directed reads:

“ That it shall not be necessary to prove the actual sale of lottery tickets in any space, house, office or premises, but any sign, tickets, sheets, bulletins, or other device used to indicate that tickets are kept for sale, or to give information as to the result of any drawing or pretended drawing, shall be taken and accepted as a sufficient proof of the keeping of a lottery office or shop.”

The following is quoted by counsel for the appellant, and made the basis of his clearly presented points in argument:

“ The law delights in the life, liberty and happiness of the subject, consequently it deems statutes which deprive him of these, however necessary they may be, in a sense odious. For which, as for kindred reasons, as well as because every man should be able to know certainly when he is guilty of crime, statutes which subject one to a punishment or penalty, or to a forfeiture or a summary process calculated to take away his opportunity of making a full defence, or in any way deprive him of his liberty, are to be construed strictly.” Bishop Statutory Grimes, Sec. 193.

Upon this point we agree with Mr. Bishop and with counsel, in such cases as those alluded to in the quotation; in our view, also, the construction should be strict, but from this agreement in opinion it does not follow that the ordinance assailed should be declared a nullity upon the grounds urged. In our judgment, as we read the ordinance, it does not say that the holder of a ticket is, by the mere fact that he is a holder, guilty as charged.

If one, without guilty knowledge or intent, is in possession of a lottery ticket, it can not be taken of itself as being sufficient proof of guilt. One of the indispensable elements of crime is wanting. To constitute crime there must be joint operation of act and criminal intent. Under the language of the statute, to our thinking, the fact that one is engaged in the business of selling tickets or in giving information as to the result of any drawing, or pretended drawing, constitutes the offence denounced. One accused is certainly not guilty unless it is satisfactorily shown that he knowingly had the tickets in his possession, or knowingly gave information as to the result of any drawing or pretended drawing. Either act is the offence denounced, and it may be made evident from either — that the one thus committing the act is engaged in conducting a lottery shop, without thereby defeating the purpose of the ordinance.

The section requires, to convict an accused “any sign, tickets, sheets, bulletins, or other device used to indicate that tickets are for sale, or to give information as to the result of any drawing or pretended drawing,” a well-known business, giving rise to the conclusion stated in the ordinance that he is conducting a lottery office.

In the second place, the appellant urges that any section of an ordinance which permits a recorder to sentence an accused to an imprisonment of more than thirty days is ultra vires and illegal.

It must be confessed that the language of the ordinance is not as clear as it might have been, but we think it sufficiently fixes the limit.

Section 3 of the ordinance is as follows: “That whoever shall violate the provisions of this ordinance shall, upon conviction before the recorder within whose jurisdiction the offence is committed, be condemned by said recorder to pay a fine not to exceed twenty-five dollars, or imprisonment in the parish prison for a term not to exceed thirty days or both, in default of the payment of said fine; provided, that the fine shall not exceed twenty-five dollars, nor the imprisonment more than thirty days.

By Act 41 of 1890 the Council may enforce obedience to and punish the violation of ordinances “ by fine or imprisonment or both, or by imprisonment in default of the payment of the fine; provided that the fine shall not exceed twenty-dollars for each offence, nor the imprisonment more than thirty days.

The ordinance interpreted as a whole does not, in our judgment, exceed that limit. Without the proviso the recorder would be authorized to impose a fine of twenty-five dollars, with imprisonment of thirty days for the violation of the ordinance and an additional thirty days’ imprisonment for the non-payment of the fine — ■ that is, if the fine were no,d paid the imprisonment might be as much as sixty days, but it is saved by the proviso limiting the fine to twenty-five dollars and all imprisonment to thirty days. The penalty is thereby kept within statutory limitation.

The sentence and fine imposed upon the accused were within the limit of the -proviso.

The sentence and judgment appealed from are affirmed.


author: Nicholls, C. J.

text:
    No. 12,221.
    State of Louisiana vs. Valerian Zurich.
    These is no delegation of power in the city charter of New Orleans to create as a misdemeanor, punishable by fine and imprisonment, the non-compliance by / an owner of property therein, of an ordinance prohibiting owners of property j from erecting buildings on their premises until they had obtained the consent j of the city engineer to the building of the structures (as being in conformity to ¡ city regulations) and until they had obtained a permit from him.
    The appellate jurisdiction of the Supreme Court, in cases in which the constituÍ tionality or legality of the fine, forfeiture or penalty imposed by a municipal ( authority was in contestation, is limited to a determination of the eonstitu- ; tionality of the fine, forfeiture or penalty, and to an examination of the par- [ ticular facts necessary to be considered in order to reach a conclusion on I that subject.
    A BPEAL from the Third Recorder’s Court of the City of New il Orleans. Thompson, J.

      Samuel L. Gilmore, City Attorney, and James J. McLoughlin, Assistant City Attorney, for the City of New Orleans, Plaintiff, Appellee.

      Benjamin Rice Forman for Defendant, Appellant.
    Argued and submitted November 7, 1896.
    Opinion handed down November 16, 1896.
    Rehearing refused February 15, 1897.
    Statement oe the Case.
    The defendant was tried before the Third Recorder’s Oourt upon the affidavit of a police officer, charging, under oath, that the defendant “ did, on Monday, Juhe 22, 1896, between the hours of three and four p. m., on Walnut and'Front streets, within the jurisdiction of the Third Recorder’s Oourt, then and there erect a building without a permit, in violation * *
    “ Wherefore, he (deponent) charged thexaccused with erecting a building without a permit, and prayed tha&. he be arrested and dealt with according to law.”
    The ordinance of which a violation was charged' ^as Oity Ordinance No. 658S, O. S., the 28th section of which is as follows :
    “ If the owner or owners of any lot or portion of ground whereon any building is to be constructed or erected, or of any\ building already erected, whereon any repairs, alterations or addition's are to be made, shall begin such construction or alteration, etc., without having first obtained the certificate required in Sec. 1 of\this "ordinance, he shall be deemed guilty of a misdemeanor, and] he shall be subject to a fine of not less than five nor more than twensyfive dollars, and * * * on his failure to pay said fine he shall lbe imprisoned in the parish prison one day for each dollar of the fiiVe "imposed.” • 1
    The first section of the ordinance declared “that no building should be erected, or its erection commenced, or any alteration mad e on any building already erected or to be thereafter erected, unles s plans and specifications, or a copy thereof, together with the contract cost thereof, should have been first submitted to the City Engineer, and a certificate of approval and a permit granted by him therefor; and made it the duty of the City Engineer, without immeasurable delay, to issue such certificate, when such plans and specifications conform to the ordinance.”
    Certain rates were charged for permits, graduated according to estimated cost of building.
    The title of the ordinance is “ An ordinance for the proper construction of buildings; more effective prevention of fires, and for the better protection of life and property, and to be known as a general building ordinance for the proper construction of buildings in the city of New Orleans.” It was adopted on July 5, 1892.
    In its different sections, the Common . Council undertook to lay down and establish rules controlling and governing the erection and repairs of buildings in the city of New Orleans, designating the kind of material to be used in certain limits, the character of the roofs, the thickness and height of walls, the supports of floors, ete.
    The accused pleaded that the city of New Orleans was without power or authority to enforce any penalty for erecting a building without a permit; denied that he did at the time and place mentioned erect any building without a permit, and pleaded not guilty to the charge.
    No separate and direct action was had on the plea as to the power of the Common Council to pass the ordinance, but the case went to trial; evidence was heard and judgment was rendered, imposing a fine, with alternative imprisonment, thereby maintaining'the legality of the ordinance.
   The opinion of the court was delivered by

Nicholls, C. J.

Appellant directs our attention to the evidence, from which, he states, it would appear that he was about to build a boat for the Mexican government on the shore at the water’s edge of the Mississippi river; that he erected (one hundred and twenty feet outside of the public levee) near the water’s edge, with the permission of one Bisso, the riparian proprietor of the land fronting at that point on the river, a temporary awning or shed to protect his workmen while working from the sun and rain, and enclosd one end of the same as a small closet in which to lock up his tools, the cost of the whole not amounting to more than one hundred dollars; and he maintains that an examination of the ordinance would show that it applied only to houses in the city, and did not apply to boats on the edge of a navigable stream.

He also calls to our attention that the recorder had imposed a heavier fine than the ordinance authorized even if it was violated; that the ordinance provided a penalty against the owner of the ground of not less than five dollars nor more than twenty-five dollars, and that on failing to pay the fine he should be imprisoned one day for each dollar of fine imposed, whereas the recorder had fined him twenty-five dollars or thirty days’ imprisonment.

He argues to us, also, that nowhere has the power been given to the Common Council to prohibit the erection of a building without the permission of the City Engineer; that this would be a delegation of power not to be tolerated in a free country (citing State vs. Bright, 38 An. 1) .

- He further contends that a violation of the city ordinance could not be prosecuted in the name of the State of Louisiana, and that the police officer was without authority to advance a charge of the character which had been brought.

No brief has been filed on behalf of the city of New Orleans, nor argument made" as to the question raised of the pow%r and authority of the Oily Council to pass the ordinance in question. The City Attorney very frankly admitted, in open court, that, in his opinion, the sentence imposed by the recorder was not justified by the facts, and that the provisions of the ordinance did not extend to the acts done by the defendant. Counsel of the latter has pressed that admission upon us, as also the evidence itself in the record touching the facts, and urged that we reverse the judgment upon the merits, by reason of the facts and also upon the want of power in the recorder to pass the sentence he did (it being in excess of the penalty declared by the ordinance), independently of any question as to legality of the ordinance. The proceedings in the case are of a criminal character, and, as such, are not reviewable by the Civil District Court or Court of Appeals.

Defendant’s relief must be found in this court, if at all, either through appeal, or under our supervisory jurisdiction.

We have on a number of occasions declared that our appellate jurisdiction, under Art. 81 of the Constitution, in cases in which the constitutionality and legality of any fine, forfeiture or penalty imposed by a municipal corporation was in contestation, was limited to determination of the question of the constitutionality or legality of the fine, forfeiture or penalty itself, and to an examination of the particular facts necessary to be considered by us, in order to reach a conclusion on that subject; that we were not, on appeal, authorized to examine into facts, which assuming the fine, forfeiture or penalty itself to be legal and constitutional, simply would go to show whether the accused was or was not guilty under the ordinance imposing the penalty; that questions of that kind, in allowable cases, could.only be brought before us under and through our supervisory jurisdiction. State vs. Callac, 45 An. 29; State vs. Courcier, 46 An. 907; State vs. Dean, 45 An. 441; State vs. Fourcade, 45 An. 722; State vs. Marshall, 47 An. 646; Suthon vs. Houma, 46 An. 1561, 1562; Pratt vs. Holmes, 48 An. 129; Breazeale vs. Frank, 42 An. 226.

We have examined the charter of the city of New Orleans (Act No. 20 of 1882) to ascertain what powers were conferred by that instrument upon the Common Council. The eighth clause of Sec. 8 authorizes the city “ to determine within what limits wooden buildings shall not be erected, and to prevent the reconstruction of old buildings within such limits.” The ninth clause of the same-section authorizes it “to regulate the safety, height and thickness of the walls and structures.”

We find nothing more in the charter bearing on the subject of buildings or structures within the city.

As matters are presented to us, we do not understand that the right of the city to pass ordinances “regulating the safety, height and thickness of the walls and structures,” as conferred by the ninth clause a'mve mentioned, is before us, nor is that of the city to exact that, prior to building or altering structures, parties proposing to do so should submit plans and specifications of the same to the City Engineer, nor is that of the city to appoint a City Engineer, and to devolve upon him the duty of inspecting the plans and specifications submitted, in order to ascertain whether the proposed building' or alteration will be in conformity to the ordinances of the city regulating structures, nor the right of the city through the City Engineer, or otherwise, to institute civil legal proceedings against owners, either by way of prevention by them of violation of the ordinances regulating structures or for punishing parties who have, in point of fact, violated the same, and forcing what has been done to be undone.

Defendant has not been charged with having erected a building or structure which does not come up to the standard requirements of the city ordinances; he has not been charged with not having, before erecting a building, submitted plans and specifications to the City Engineer. What he has been charged with, and what he has been convicted of, is, of having, without the prior approval by the City Engineer (evidenced by a permit from him), erected a building. The question, therefore, is, whether the City Council has the power and authority to impose upon owners, as a condition precedent to the exercise of a right by them of erecting buildings upon their property or of making alterations in buildings already erected that they should have the prior approval of the City Engineer to those buildings or alterations evidenced by his permit and to make the erection or repair of such buildings without such prior permit a misdemeanor punishable by fine and imprisonment. The power of the city to order an inspection, through the City Engineer, of the buildings and alterations after they are made, or as they are in progress, is not denied, nor is the liability of the owner to have civil proceedings taken against him, to compel him to conform to the regulations of the city on the subject of structures. What is denied is that the right springing from ownership to build structures upon one’s premises, or to make alterations upon the same, can be made to be held in abeyance by and subordinated to the prior consent of a city official under penalty of a criminal prosecution.

Defendant affirms that property rights are arbitrarily, unreasonably and illegally hampered by an ordinance which substantially creates a tribunal from whose decision in the premises no legal method of review has been provided, and which would force owners into affirmative, active, legal proceedings, in order to exercise rights which should be free and untrammeled, unless and until actually exercised or attempted to be exercised in violation of law. They contend that while it may be perfectly legitimate for the city to pass regulations on the subject of certain buildings within its borders, and devolve upon a particular officer the duty of seeing that the regulations made by the city are conformed to, his duty could not be made to extend beyond ascertaining whether buildingsi or alterations thereto, or proposed to be made, would be in violation of ordinances, or those actually erected were so violative, and to instituting civil legal proceedings against the parties, either by way of prevention or remedy.

He contends that the city has no ' authority to appoint a city official and to delegate to him the power of primarily determining whether the owners of property should be permitted to exercise their property rights or not under penalty of a criminal prosecution.

We have reached the conclusion in this case that the ordinance in question in so far as it seeks to create as a misdemeanor the erection by an owner of a building upon his property without having first obtained a certificate of approval or permit of the City Engineer, and to subject the owner, in case of conviction of violation of the prohibition of the ordinance, to fine and imprisonment, can not be sustained. We have examined, as we have said, the charter of the city and have failed to discover in it anything which would tend to show any delegation of .the right to impose, through criminal proceedings, a fine or imprisonment upon an owner of property for non-compliance with an ordinance requiring him to postpone the erection of a building upon his premises until he had obtained the consent of gthe Oity Engineer to the building proposed to be erected (as being in conformity to the city regulations), and obtained a certificate or permit from that officer.

In State vs. Bright, 38 An. 4, we declared that it was acknowledged by text writers and supported by abundant authorities that a municipal corporation had no right to enforce obedience to the ordinances which it has the power to pass, by fine or imprisonment, or other penalty, unless that right has been unquestionably conferred by the lawgiver; for this is inflicting a punishment for the commission or omission of an act declared an offence, a prerogative, which, as a rule, appertains to the sovereign alone (citing Dillon, par. 336, p. 553, Desty on Tax., p. 765), and that the words “shall provide for the punishment of any violation of such ordinances or-regulations by fine or imprisonment,” found in Sec. 7, referred to ordinances which the Common Council was authorized to pass and have executed as might be necessary and proper to preserve the peace and good order of the city and to maintain its cleanliness and health. This decision was in line with the eases, 6 An. 515 (Municipality vs. Pance), State vs. Manessier (Opinion Book 53, p. 237), and 34 An. 750 (State vs. Patamia).

The ninth section of the charter of the city authorizes it “ to regulate the safety, height and thickness of the walls and structures.” The ordinance we are considering was passed, presumably under that grant of power, but the council, after laying down in the ordinance specific directions as to what constitutes safe building, made the erection of buildings in contravention of these provisions a misdemeanor which would subject parties contravening the same to liability to fine and imprisonment, and created as a misdemeanor “ the erection of buildings without having first obtained the approval and permit of the City Engineer.”

Under the ordinance a person erecting a building in strict conformity to what the council had laid down as the rules of safety governing structure would, none the less, be subject to fine and imprisonment — his offence being not a violation of the rules themselves of safety, but of the violation of a rule which the council thought proper to establishin supposed incidental aid of the observance of the rules.

We do not think the city has the authority to enforce criminally this obligation incidentally imposed upon property owners by fine and imprisonment for non-observance of the same. ,

Ownership gives the right to one to enjoy and to dispose of one’s property in the most unlimited manner, provided it be not used in any way prohibited bylaws or ordinances. (C. C. 491.) So long as an owner does not use his property in a way prohibited by law or statute, he is free to act. The city of New Orleans had no authority to hamper it and make its exercise depend upon a prior permit or consent of the City Engineer under penalty of criminal prosecutien. There are ample adequate, legal remedies open to the city for the enforcement of the city rules. Opposition may be made to every species of new work from which injury is apprehended. Parties insisting upon erecting illegal or improper structures may have their work suspended by order of court if necessary. Works done in spite of opposition may be destroyed in proper cases and matters replaced in the former situation. The method selected by the council for enforcing their ordinance by subjecting property owners to a criminal liability to fine and imprisonment for the mere fact of building upon their own premises, without the prior consent and permit of the city, is, in our opinion, not only arbitrary and unreasonable, but the city is without authority to adopt it. It fetters the rights of ownership in an unwarranted degree.

It is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby annulled, avoided and reversed; and it is now ordered, adjudged and decreed that the prosecution be dismissed.

On Application for Rehearing.

In the brief of the counsel for the city of New Orleans applying for a rehearing it is said:

“When this case was submitted to the court counsel for appellee conceded that Ordinance 6533 did not apply to the offence of which defendant was convicted, and that the action of the recorder was a manifest error. The court was asked in view of this admission to reverse the judgment without considering the legality of an ordinance which both parties to the suit declared was not applicable to the state of facts. It is true that were the court to examine this case strictly under its appellate jurisdiction it might be compelled to exclude consideration of the facts. Rut it is urged upon the court that in this case where both parties have agreed upon the facts and where both parties have urged the court to act upon the facts, it is certainly within its equity powers to treat this particular case as if it came under its supervisory jurisdiction.”

In the exercise of the powers granted to us under Art. 81 of the Constitution in the class of cases giving an appeal when the legality or constitutionality of a fine imposed by a municipal ordinance is in contestation, we are constantly called on (under the limitations of that article) to grant relief of the same character as that which we would grant in other matters through writs of prohibition — that is to say, on appeal in such cases we pass upon the powers and authority of the municipal body which enacted the ordinance complained of. It is possi le we might be authorized, in exceptional cases, to avail ourselves of our having jurisdiction of the main action to declare (as a concurrent remedy with certiorari'), under Arts. 608 and 609 of the Code of Practice, that the judgment appealed from was a “nullity” when the nullity was apparent on the face of the record. Arts. 608 and 609 of the Code of Practice declare that the nullity of a judgment may be demanded from the court which has rendered the same, or from the court before which the appeal was taken, but that the nullity can only be demanded on the appeal when the nullity is apparent on the face of the record. A practice similar to this (that is to say, throwing inside the powers of an appellate court certain matters ordinarily falling under “supervisory” jurisdiction) seems to prevail in California, though on what particular ground it is based we do not know. (See 26 Pacific, 366, 367, and cases cited.)

Counsel of the city calls our attention to the fact that'the recorder, in rendering the judgment which he- did, exceeded his jurisdiction in inflicting a heavier penalty than the law authorized, and suggests that, upon that ground, we could reverse the judgment without passing upon the legality of the ordinance. Granting that we could do so, our decree to that effect would give a very imperfect remedy, for the utmost we could do would be to send the case back for a proper sentence, leaving the judgment intact.

The party seeking relief at our hands has selected an appeal as the method of obtaining it. We can only dispose of cases as we find them. In appeals of the character of the present, we have repeatedly held that the issue before us was restricted to the question of the legality and constitutionality of the ordinance upon which the prosecution was based, and did not extend to a decision upon the correctness of the judgment appealed from. To reverse the judgment we should be able to declare, and should in fact declare, that the ordinance whose violation was sought to be punished was, or was not, constitutional or legal. The admissions made by counsel of the city in this case would lead up to no such conclusion or result; on the contrary, the character of the ordinance itself or its binding force would be left untouched, and the only matter upon which our action would be invoked would be as to whether the judgment of the recorder was correct or not. It is expressly conceded by counsel that the provisions of the ordinance do not extend to the state of facts shown. If that be true, then we are notin a position to express any opinion about the legality or constitutionality of the ordinance itself.

The very foundation of the right of the city to insist that the judgment of a recorder’s court, in the matter of the conviction under a municipal ordinance, should remain untouched under an issue as to the legality of the ordinance, would be to insist not that the ordinance did not extend to the facts shown, but, on the contrary, that the ordinance did extend and was intended to extend thereto, and that so extending and so intended to extend the ordinance was still legal. On the other hand, the foundation of the right of the party who had been convicted under the ordinance to have the judgment appealed from reversed would be the counter claim made by him that granting, as a conceded fact, that his acts, such as they were charged or shown, fell under the precise terms of the ordinance, none the less he could not be convicted under it, because if held to so apply the ordinance would be unconstitutional or illegal. Were this ease before us under a contention of that precise character between the parties, we might be justified in determining- and declaring whether the ordinance was legal or constitutional or reasonable or not; but if we were to give effect to the admission of counsel of the city we could not reverse the judgment, as they ask us to do on rehearing. We would have to dismiss the appeal. Appellant necessarily objects to admissions which would affirm the judgment. He contends that granting that he actually did what the city charges him with having done, and granting that his case fell under the precise terms of the ordinance as charged in the complaint against him, he none the less could not be fined or imprisoned, because the directions of the ordinance that he should, through criminal proceedings, be fined for doing the act for which he stood charged and convicted were illegal. The question comes back to us: what was the particular act which under the ordinance was made a “misdemeanor,” and what the particular act for which he was prosecuted, and what the powers of the city in respect to it. An examination of the complaint shows that independently of any question whether the constructions which appellant had put up conformed to the requirements of the regulations of the city in respect to constructions, and independently of any question as to whether he had obeyed the provisions of the ordinance requiring him prior to making the same to have submitted the plans of the same to the Oity Engineer, he was charged as for a criminal offence, because he had, in violation of the terms of the ordinance, put up his constructions before having obtained a permit-from the City Engineer. A simple failure to have done this could not, in our opinion, be by the City Council, under its powers, made a “misdemeanor,” punishable by fine or imprisonment.

Unless we could have either said this or could have announced that we upheld “ the legality of the ordinance,” we would have been forced to dismiss the appeal.

Rehearing refused.

Mr. Justice Miller dissents.


author: MoEneby, J.

text:
    No. 12,406.
    William Coach vs. William Hake.
    A partition by licitation can not be ordered against the prayer oí one of the co-proprietors, when it is shown that a division in kind is not practical, or that loss and inconvenience would b'e suffered by one of the co-proprietors by a division in kind. Where all the co-owners would fare alike a division in kind must be ordered.
    A PPEAL from the Fourth Judicial District Court for the Parish of Grant. Machen, J.

      John C. Ryan and W. C. Roberts for Plaintiff, Appellee.

      R. J. Bowman for Defendant, Appellant.
    Submitted on briefs February 18, 1897.
    Opinion handed down March 1, 1897.
    Rehearing refused March 29, 1897.
   The opinion of the court was delivered by

MoEneby, J.

The plaintiff and defendant own in common six thousand four hundred and fifty-six 79-100 acres of pine lands, valuable for the timber upon them for saw-mill purposes.

The plaintiff brought suit to partition these lands, and prayed for a partition by licitation. The defendant asked for a partition in kind. In his answer he prayed for an injunction, staying the order for a partition, on the ground that a suit was pending in another State to settle certain partnership affairs between them. The injunction was dissolved, with fifty dollars damages as attorney fees, and a partition by licitation ordered.

The defendant appealed.

The partition proceedings seem to present the sole issue.

The testimony in the record is meagre, and does not impress us that a partition by licitation would be beneficial to both parties.

R. W. Bringhart, the parish surveyor, says he is well acquainted with the lands, and that, in his opinion, the lands should be sold to make a just partition between the parties. His belief is based on the fact that the land would bring more in money if sold at public sale (we infer that he means the lands would be more valuable if in one ownership), and in his opinion the lands could not be divided in kind without diminution in value, because they are in alternate sections, some convenient to railroad and water transportation, and others are not. That the sections are not uniformly timbered. The main reason assigned for the impractical division in kind is that the land is not in a solid body.

Another witness in general terms corroborates this testimony. It is stated by both that in building trams to reach the timber in some localities, circuitous routes would have to be adopted, and some localities over hill lands.

But witnesses and the single witness for defendant say, that if sold without benefit of appraisement, as ordered, the co-owners without money would be at a disadvantage.

The rule is for a division in kind when it can be made. If by a division in kind the co-owners can be justly dealt with, and each share equally alike, the mere fact that a possible higher price for the land may be obtained by a public sale is not sufficient to overcome the demand of one co-owner for a division in kind. He is entitled to his part of specific property, if it can be given to him without imposing loss or inconvenience on his co-owner.

The land can be divided into two parts. There are no physical objections of such character that the owner of one of the shares would be subjected to great inconvenience or appreciable loss.

The judgment so far as it dissolves the injunction with damages is affirmed; that part of the judgment ordering a partition by public sale is avoided and reversed, and it is ordered that on this part of the case it be remanded to be proceeded with in due course of law, the defendant to pay all costs of the injunction, and the plaintiff to pay costs of appeal in the matter of the partition.


author: Miller, J.

text:
    No. 12,396.
    Commercial Soap Works, Limited, et als. vs. F. A. Lambert Company, Limited, et als.
    -Courts have no power to enjoin the creditor from suing his debtor, merely because the suit is brought in another State to subject to the creditor’s demand the debt contracted here by the corporation domiciled in that State with an agent here to represent it, and because this is the domicile of the debtor.

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

      E. Evariste Moise for Plaintiffs, Appellants.

      Chaffe <& Bowers, Saunders & Miller and Dinhelspiel & Hart for Defendants, Appellees.
    Submitted on briefs March 4, 1897.
    Opinion handed down March 15, 1897.
   The opinion of the court was delivered by

Miller, J.

The plaintiffs seek an injunction to restrain creditors from prosecuting suits in New York to subject to execution a fund there belonging to the debtor, also the debtor of the plaintiffs.

The allegations of the petition are that the debtor is insolvent; that the creditors suing in New York are citizens of Louisiana; that our law makes the property of the debtor the common pledge of his creditors; that the object of the creditors in seeking the New York courts is to obtain an unjust preference over other creditors here; that the debtor and those holding the fund in New York are combining with the debtor to secure that preference for those he proposes to favor, prejudicial to the rights of petitioners. The lower court refused the injunction and plaintiffs appeal.

The proposition of the petition is, that the courts, under the circumstances alleged, have the power to enjoin the creditor from obtaining judgment against his debtor. Whether the creditor sues here or in another State, his right of action, except under well defined conditions arising out of positive restrictions in the Code, or our jurisprudence, can not be questioned. We can not perceive that the petition states any case to authorize the denial of defendants’ right of suing their debtor. That he is insolvent furnishes usually the cause for suit, and that advantage the creditor who sues promptly is apt to secure over the less active creditor furnishes him no cause of complaint. The alleged attempt of the creditors in the New York courts to secure an unjust preference, suggests the remedy our law prescribes to secure equality of the.rights of creditors of an insolvent debtor. R. S., Sec. 1781 et seq. When the debtor makes a cession voluntary or forced, our courts, to secure an equal distribution, exert a jurisdiction to enforce from our own citizens the respect due to our laws and will restrain them from bringing suits in another jurisdiction against the insolvent debtor which they could not bring here, and thereby by attachments or judgments obtain preferences or advantages as creditors of the insolvent. The plaintiffs are not in position to invoke that relief. Hayden, Syndic, vs. Yale & Bowling, 45 An. 362, and authorities there cited.

We have given attention to the plaintiffs’ argument that the debt in New York sought to be reached by the creditors’ suits there is due by a foreign corporation doing business here; that in a double aspect our courts should control the application of the debt for the satisfaction of all the creditors here: first, because the situs of the debt is here; second, because here contracted by the agent of the foreign corporations to be deemed subject to our laws, and because it is due here, the domicile of the debtor. We think, if the corporation was here, our courts could not exert that control sought by the injunction to restrain the creditor from suing his debtor.

In no aspect of the case can we perceive the basis for the relief sought.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed with costs.