Opinion
Nos. 33246 and 33251.
February 4, 1935. Rehearing Denied March 4, 1935.
Appeal from Civil District Court, Parish of Orleans; Wm. H. Byrnes, Jr., Judge.
Suit by the State, on the relation of Gaston L. Porterie, Attorney General, against T. Semmes Walmsley, Mayor, and others. From a judgment entered upon defendants' return to plaintiff's rule to show cause why a preliminary injunction should not issue, perpetuating the rule, and issuing a preliminary injunction, defendants appeal.
Affirmed and cause remanded.
E.M. Robbert, B.I. Cahn, and Henry B. Curtis, all of New Orleans, for appellants T.S. Walmsley and others.
J.C. Henriques, of New Orleans, for appellant Board of Liquidation of the City Debt.
Harold A. Moise, James Wilkinson, and Huey P. Long, all of New Orleans, for appellants Board of Com'rs of the Port of New Orleans and others.
Gaston L. Porterie, Atty. Gen., and George M. Wallace and James O'Connor, Asst. Attys. Gen., for appellee.
This is a suit by the state, and by the Attorney General, in his official capacity, he being charged with the duty of representing the state in all judicial proceedings in which the state has an interest, either as plaintiff, defendant, or intervener.
It is alleged by the plaintiffs that Act No. 36 of the Second Extra Session of the Legislature, approved November 21, 1934, is unconstitutional, null, and void for the six reasons enumerated in article 13 of the petition; that if the provisions of said act are complied with, irreparable injury will be done to the state, the city of New Orleans, the property taxpayers of said city, and to certain of its bondholders; and that the several officers and boards mentioned in article 15 of the petition will comply with the provisions of said act, unless enjoined and restrained from so doing.
After praying for citation and service of the petition upon the officers and boards named therein, the continuing verbiage of the prayer is in the following words:
"That a rule issue herein commanding them and each of them to show cause on a date, not less than two nor more than ten days from service hereof, why a preliminary injunction should not issue herein without bond, restraining them and each of them from complying in any manner with the provisions of Act No. 36 of the Extra Session of 1934, approved Nov. 21, 1934; that upon the trial of said rule there be judgment in favor of the State of Louisiana and your relator and petitioner, granting said preliminary injunction, and that upon final trial hereof, said Act No. 36 of 1934, approved November 21, 1934, be declared unconstitutional, null and void, and said injunction be made permanent and perpetual; that meantime a temporary restraining order issue herein, without bond, temporarily enjoining and restraining said defendants and each of them from complying in any manner with the provisions of Act No. 36 of the Extra Session of 1934, approved November 21, 1934. Relator and petitioner further pray for all orders necessary, for costs and general relief."
A rule nisi and a temporary restraining order issued, as prayed for, and the rule was made returnable on December 11, 1934.
In a supplemental petition, relator and petitioner amended article 13 of the petition by adding thereto six additional reasons for challenging the constitutionality of Act No. 36 of the Second Extra Session of 1934, approved November 21, 1934.
In response to the rule to show cause why a preliminary injunction should not issue, all of the defendants, except the Board of Commissioners of the Port of New Orleans, the Board of Commissioners of the Orleans Levee District, Louisiana State Board of Health, and Board of Control of the New Basin Canal and Shell Road, excepted to the original and supplemental petitions upon the ground that the state of Louisiana and the Attorney General have no interest in the matters alleged in the petition, or in the amendment thereof, nor capacity to stand in judgment in this suit, or to represent the taxpayers or bondholders affected by Act No. 36 of the Second Extra Session of 1934; and, therefore, the petitions disclose no right and no cause of action.
These respondents also pleaded the unconstitutionality of Act No. 36 of the Second Extra Session of 1934. The four defendants named supra filed a joint return to the rule, from which we quote article 9 thereof:
"Denied. And it is specially denied that the ordinances, the act of the Legislature No. 6 of 1899 Ex. Sess., and the amendment to the constitution embraced in Act No. 4 of 1899, constituted a contract with the State of Louisiana and the City of New Orleans and the taxpayers of said City, or a contract with the holders of said bonds, or that the terms and conditions under which said tax was voted preclude the Legislature from adopting Act No. 36 of the Second Extra Session of 1934, approved November 21, 1934. And further answering this article, it is alleged that:
"1. The power of the Legislature to amend said Act No. 6 of 1899 as it has done by Act No. 36 approved November 21, 1934, is specially reserved to it, both in Act No. 6 of 1899 and in the amendment to the Constitution embraced in Act No. 4 of 1899, in article 313 of the Constitution of 1913, and in sections 22 and 23 of article 14 of the Constitution of 1921, and that the amendment embraced in said Act No. 36 will not have the effect of violating in any respect the conditions upon which said 2 mill tax was voted by the property taxpayers of the City of New Orleans, and will not have the effect of impairing the vested rights or the contract rights of the holders of the bonds issued as alleged in the petition.
"2. That the electors of the State of Louisiana, by constitutional amendments to the Constitution of the State of Louisiana, and by the provisions of the Constitutions of the State of Louisiana of 1913 and 1921, including, of course, the electors of the City of New Orleans who are property taxpayers, have long since so changed, and altered the said conditions that the only right left in the taxpayer is the privilege of paying the said 2 mill tax annually as the same is assessed, which said actions have been accomplished by the electorate by the following provisions:
"(a) Act No. 19 of 1906, a constitutional amendment adopted in November, 1906;
"(b) Act No. 116 of 1908, a constitutional amendment adopted by the electors in November, 1908.
"(c) Article 315 of the Constitution of 1913, and section 23 of article 14 of the Constitution of 1921, ratifying and approving the provisions of said Acts Nos. 19 of 1906 and 116 of 1908.
"(d) Act No. 3 of the Extra Session of 1927, an amendment to the Constitution of Louisiana, adopted November, 1927.
"3. That, therefore, as all of said provisions stipulate for the disposition of the 2 mill property tax, in relation to the sewerage, water and drainage systems of the City of New Orleans, and, together with Act No. 6 of 1899 and the amendment to the Constitution embraced in Act No. 4 of 1899, provide how any funds reaching the Sewerage and Water Board shall be expended, it is no concern of the taxpayers and is not violative of any term or condition of the contract with them, just how the Sewerage and Water Board shall be composed; and that therefore said Act No. 36 is a valid exercise of the Legislative power reserved to the Legislature, and vested in it without such reservation."
The issues thus presented were taken up in due course, whereupon the learned trial judge suggested to counsel that, if they consented thereto, he would try the case on the rule and on the merits and would decide all issues presented by the pleadings at one and the same time. Counsel for the board of liquidation of the city debt, the city of New Orleans, and the city board of health objected to a trial on the merits.
The judge's proposal to hear the whole case was doubtless prompted by the showing in the record that the Federal Emergency Administration of Public Works had allocated to the city of New Orleans $2,570,000, but said allocation had been suspended pending the final determination of this suit. In view of the emergent need of the sum allocated to the city of New Orleans, we also think that this case should be finally decided on the merits as speedily as is consistent with the legal rights of all parties to this suit.
The case was tried on the rule, the exceptions pleaded were overruled, the rule was perpetuated, and a preliminary injunction issued, as prayed for in the petition. All of the respondents appealed from the judgment. The appeals were brought up to this court in two transcripts, but they were consolidated and submitted together.
We are of the opinion that Judge Byrnes correctly held that the state has a sufficient interest in the matters alleged in the petition to institute and prosecute this suit; and we quote, with approval, from the opinion of the learned judge, his reasons for so holding. After incorporating in his opinion excerpts from the brief of counsel for the board of liquidation of the city debt, the judge says:
"In my opinion the word `private,' before the word `interest,' in the foregoing quotation, destroys the argument of counsel. The decision which he quotes from is not at all analogous to the suit before me. In that case no question whatever was raised as to the right of the Attorney General to represent the state if it had an interest, but the court held that in that particular case, which involved the payment of wages due to laborers, the state had no interest in that particular private litigation. A quotation of the entire excerpt which contained the quotation selected by counsel will, I believe, demonstrate this fact:
"`There was no personal liability whatever on the part of the state to these laborers, material men and sub-contractors, and as there was no lien upon the work the consequence follows that the state was without interest to file this suit, and that the exception of no cause of action should have been maintained and the suit dismissed. The state, no more than any other litigant, can maintain a suit without some pecuniary interest sought to be vindicated in the suit. The mere moral, or paternal, interest the state might have in any matter of PRIVATE INTEREST cannot serve as a basis for a cause of action.' (Capitals and italicizing mine.) `Nor can any such paternalistic interest override a contractual obligation, binding upon the state in conscience and in law, just as a like obligation would be upon a private person, to make payment in the manner and form stipulated in the contract.'
"This case merely decided that the state cannot interfere in private litigation unless the state has a pecuniary interest to be vindicated therein. It is common sense. For example, no one would urge that if Robert Brown sued his wife for a separation from bed and board on the ground of cruelty, that the Attorney General would have a right to become a party to that suit on behalf of the state and champion the cause of either spouse.
"In argument the case of Saint, Attorney General, v. Allen, 172 La. 350, 134 So. 246, was stressed by counsel for the defendant Board of Liquidation and by counsel for the City of New Orleans. I notice, however, that this particular case was not mentioned in the brief. The facts in this case were, as in the case of State v. C.S. Jackson Co., 137 La. 931, 69 So. 751, entirely different and dissimilar to the facts before me in the case at bar. In the Saint Case the Attorney General contended that the highway commission had no right to employ counsel of its own selection, but that he, as Attorney General, under the constitution and laws of the state, had the sole right to represent the boards and agencies created by the state. In this case no question whatever was raised as to the Attorney General's right to bring such a suit against the highway commission in order to have the matter in dispute litigated, and the sole question decided by the court was on the proposition whether or not the Attorney General alone had the right to represent state boards and agencies; and, contrary to the construction which counsel urged me to place upon this case, it is actually held by the Supreme Court that `Attorney General and assistants have charge of all legal matters in which state, as distinct entity, apart from other created entities or corporate agencies, has interest.' (Constitution 1921, article 7, §§ 55, 56.)
"It is true that the majority opinion of the court, written by the late and lamented Justice Overton, created some confusion and caused the writing of a dissenting opinion by the then and present Chief Justice O'Niell and also by Justice Odom, present associate justice of that court. The clause referred to is as follows:
"`It was not intended that the word "interest" used in this section should be received or interpreted in its broadest sense, in connection with the interest possessed by the State. (Constitution 1921, article 7, § 56.)'
"In justice to the distinguished jurist who wrote the opinion, it is necessary to finish the paragraph from which the above clause or sentence was taken, and it will be easily seen that all that he had in mind was to draw a distinction between the state as a distinct entity from its own boards and agencies, for he continues as follows:
"`Such an interpretation would make the accomplishment of the duties of the Attorney General and his assistants next to impossible, if not impossible. Therefore, so far as relates to the Constitution, that instrument, with reference to the duties of the Attorney General and his assistants, has confined, by implication, the duties, there demanded to be rendered, to those interests, possessed by the state, as distinct entity, and has left it to the legislature to impose such other duties upon those officials as it may deem proper to do from time to time.'
"In order however that no possible confusion could be created in our jurisprudence, Chief Justice O'Niell, in his dissenting opinion, on page 367 of 172 La., 134 So. 251, says:
"`The declaration in the prevailing opinion, in this case that, "by implication," section 56 of article 7 of the Constitution has confined the duties of the Attorney General and his assistants, "to be rendered to those interests possessed by the state as a distinct entity," is indeed a novel proposition.
"`That section of the constitution declares that the Attorney General, or one of his assistants, "shall attend to, and have charge of all legal matters in which the state has an interest," etc.
"`It is said in the prevailing opinion in this case that the word "interest" as here used is not to be interpreted in its broadest sense. The substance of the argument on that subject, in the prevailing opinion, is that the state has not an "interest" in the sense in which the word is used in section 56 of article 7 of the Constitution, in a case where a state board or commission is the plaintiff or defendant. I respectfully submit that it has never before been so considered, in this or any other jurisdiction in the United States. 2 R.C.L. 913; 6 C.J. 812, paragraph 18; State v. Finch, 128 Kan. 665, 280 P. 910, 911, 66 A.L.R. 1369.'
"Thereafter, in his dissenting opinion, the Chief Justice reviews the Louisiana authorities to justify his statement as quoted above.
"Ruling Case Law, Volume 2, page 918, says:
"`Obviously there can be no dispute as to the right of an Attorney General to represent the state in all litigation of a public character.
"`The Attorney General has authority to prosecute any action maintainable by the state.
"`In determining this question it should be noted that pecuniary interest on the part of the state is not decisive of the matter; for the obligation it is under to promote the interest of all and to prevent the wrongdoing of one resulting in injury to the general welfare, is often of itself sufficient to give it standing in court.' State v. Zachritz, 166 Mo. 307, 65 S.W. 999, 89 Am. St. Rep. 711; State v. Pacific Express Co., 80 Neb. 823, 115 N.W. 619, 18 L.R.A. (N.S.) 664.
"In the same discussion on the subject of the powers of the Attorney General, Ruling Case Law says:
"`It is generally acknowledged that the Attorney General is the proper party to determine the necessity and advisability of undertaking or prosecuting actions on the part of the state.'
"Two affidavits have been filed in this suit, one by Mr. Alfred D. Danziger, a lawyer of high repute, in which he states facts which show that the State of Louisiana has an interest in this litigation. His affidavit is as follows:
"`State of Louisiana, Parish of Orleans
"`A.D. Danziger, being duly sworn, deposed and said:
"`that he is a qualified voter and taxpayer, residing and domiciled in the City of New Orleans, State of Louisiana:
"`That it has been alleged herein that the faith and credit of the State of Louisiana are affected as a result of the statute whose constitutionality has been challenged herein; that the ability of the State to market its bonds and obligations and those of its agencies, with agencies of the Federal Government such as the Public Works Administration and others, has been affected by said statute and others passed at the same session of the Legislature in 1934, as shown in announcements made by or emanating from the Administrator of Public Works in Washington, with specific reference to the Sewerage Water Board of New Orleans and other public boards of this City and State; that not only are phases of public health involved herein, but also employment of thousands of citizens of New Orleans and the State of Louisiana hinges upon the speedy action of our Courts in passing upon the validity and constitutionality of said statute and others enacted in the same session; and that the interest of the City and State and the citizens thereof requires determination of these questions as matters of essential importance, with as little delay as possible.
"`[Signed] A.D. Danziger
"`Sworn to and subscribed before me, this 11th day of December, 1934.
"`[Signed] E. Jourdan, Dy. Clk.'
"Counsel for the defendants, the Board of Liquidation, the City of New Orleans and the City Board of Health, obtained permission to secure affidavits, which I understood would support their contention that the litigation concerning the constitutionality vel non of Act No. 36 of the Second Extraordinary Session of 1934 was not the cause of the withholding by the government of the allotment of $2,570,000.00 made by the Federal Emergency Administration of Public Works for the Sewerage and Water Board of this city on November 14, 1934. A copy of the original affidavit which was secured by these gentlemen from Edward H. Foley, Jr., Director of the Legal Division of the Federal Emergency Administration of Public Works, Washington, D.C., was handed to me yesterday, Saturday, December 15, 1934, the original of which will be filed in the record on Monday morning, December 17th, 1934. Because, in my opinion, Mr. Foley's affidavit substantiates, rather than contradicts, Mr. Danziger's affidavit, I am copying it in full:
"`District of Columbia, City of Washington
"`Edward H. Foley, Jr., being duly sworn deposes and says:
"`I am a member of the Bar of the State of New York and Director of the Legal Division of the Federal Emergency Administration of Public Works, Washington, D.C.
"`An allotment in the amount of $2,570,000 by way of loan and grant has been made by the Federal Emergency Administration of Public Works to the City of New Orleans and a contract has been entered into between the United States of America and the City of New Orleans and the Board of Liquidation of the City Debt of New Orleans and the Sewerage and Water Board of New Orleans, dated November 14, 1934, pursuant to which the Government has agreed, subject to the terms and conditions contained in said contract, to aid in financing the construction of extensions and improvements to storm sewers and drainage, underground cable, sanitary sewer and water distribution facilities of said City.
"`By order of Harold L. Ickes, Federal Emergency Administrator of Public Works, advancement of all funds pursuant to said contract has been suspended until final disposition in a manner satisfactory to said Administrator of the litigation now pending in the Louisiana State and Federal Courts affecting the constitutionality of Act No. 36 of the Second Extra Session of 1934 of the Louisiana State Legislature, amending and re-enacting section 8 of Act No. 6 of the Extra Session of the Legislature of 1899, approved August 18, 1899, establishing a Sewerage and Water Board for the City of New Orleans and defining its powers, and until the legal division of the Federal Emergency Administration of Public Works has determined the scope and effect of Act No. 2 of the Second Extra Session of 1934 of the Louisiana State Legislature known as the "Debt Moratorium Act."
"`I do not consider that the faith and credit of the State of Louisiana are affected by said litigation nor are funds for projects of the State of Louisiana or of any of its Boards or Commissions being withheld by PWA because of the pendency of said litigation, but funds for projects of the State of Louisiana or any of its Boards or Commissions being withheld until the effect and scope of the "Debt Moratorium Act" are determined by said legal division and approved by said Administrator.
"`[Signed] Edward H. Foley, Jr.
"`Sworn to before me this 13th day of December, 1934.
"`[Signed] Nat Thompson, Notary Public.'
"For the foregoing reasons, there is no doubt in my mind that the Attorney General possesses the power and authority to file this suit."
The plaintiffs and all of the defendants, except those who objected to the lower court hearing the case on the merits until their exceptions were finally disposed of, have argued to this court the existing emergency for an immediate decision of the issue involving the constitutionality vel non of Act No. 36 of the Second Extra Session of 1934, approved November 21, 1934. This is the sole issue in so far as the record before us discloses, that remains to be tried in the lower court, to which the case must be remanded.
We, therefore, cannot anticipate what additional pleadings may be filed in that court, or what additional issues may be raised therein, preceding the trial on the merits, but we feel justified in saying, at this time, that on the record now before us, and with the case of State ex rel. Saunders v. Kohnke, 109 La. 838, 33 So. 793, in mind, no infringement of any provision of the Constitution of the United States is involved in this suit. We will also say that prior to the adoption of the Constitution of 1921, certain of the state's police powers were delegated to the city of New Orleans and to various state boards. Conceding that the said powers could have been thus delegated by the State Constitution, it cannot be disputed that by subsequent amendments of its constitution, or by rewriting that instrument, those powers could be, and were, thus reinvested in the state. See State v. City of New Orleans, 151 La. 24, 91 So. 533. Hence it is our opinion that Act No. 36 of the Second Extra Session of 1934, approved November 21, 1934, is a mere legislative exercise of the police powers of the state.
Upon the authority of State v. New Orleans Debenture Redemption Co. of Louisiana, 107 La. 562, 32 So. 102, the trial judge issued a preliminary injunction for the purpose of maintaining the status quo, pending a decision of the case on the merits. We see no error in the ruling.
For the reasons assigned, the judgment appealed from is affirmed and the cause is remanded to division E of the civil district court for a trial on the merits, all costs, etc., if any, to await the final decision of the case.
O'NIELL, C.J., concurs in the decree and hands down reason.
ROGERS, J., concurs in the decree for the reasons set forth in the concurring opinion of the CHIEF JUSTICE.
ODOM, J., concurs in decree.
HIGGINS, J., concurs in decree and hands down written reasons.
Since a majority of the members of the court have concluded that the state had a sufficient interest to bring this suit, and that the Attorney General had the right to sue on behalf of the bondholders and taxpayers of the city of New Orleans, I concur in the ruling that Judge Byrnes was right in granting the preliminary injunction. I doubt that the ruling that the state has a sufficient interest to bring the suit is in accord with the rulings rendered by this court in State v. C.S. Jackson Co., 137 La. 931, 69 So. 751, and Saint v. Allen, 172 La. 350, 134 So. 246; and I doubt that the ruling that the Attorney General had the right to sue on behalf of the taxpayers and bondholders can be reconciled with the ruling made in State v. Standard Oil Co., 164 La. 334, 113 So. 867, where it was held that the Attorney General could not sue in the name of the state on a cause of action which was vested in a legal subdivision of the state.
Assuming, however, that the Attorney General had the authority to bring this suit in the name of the state, or for the protection of the bondholders and taxpayers of the city of New Orleans, it was his duty to ask the court to enjoin the carrying out of Act No. 36 of the Second Extra Session of 1934, when he (the Attorney General) came to the conclusion that the statute was unconstitutional.
Judge Byrnes was right in granting a preliminary injunction when he decided that the Attorney General had the authority to bring the suit. As a general rule, a statute is presumed to be constitutional until it has been judicially decreed to be unconstitutional. But, in this case, the state of Louisiana herself is conceding and averring that her statute is unconstitutional. The Attorney General has no cause of action unless the statute is unconstitutional, because his case is founded solely and entirely upon his contention that the statute is unconstitutional. And, in support of his contention, the Attorney General cites in his petition the decision rendered by this court in the case of State of Louisiana ex rel. Saunders v. Kohnke et al., 109 La. 838, 33 So. 793, decided on the 19th of January, 1903. In that case it was held that a statute (Act No. 111 of 1902) which undertook to amend section 8 of Act No. 6 of the Extra Session of 1899, by changing the membership or composition of the Sewerage and Water Board, was violative of two separate and distinct articles or provisions of the Constitution. The Attorney General points out in his petition that Act No. 36 of the Second Extra Session of 1934, approved November 21, 1934, attempts to do that which was attempted to be done by Act No. 111 of 1902, which was declared unconstitutional, for the two separate and distinct reasons given in the Kohnke Case. Judge Byrnes had before him also the fact that the Supreme Court of Louisiana had consistently followed and adhered to the decision in the Kohnke Case, and had expressly affirmed the decision in five cases: Saunders v. Board of Liquidation of City Debt, 110 La. 313, 34 So. 457; State ex rel. Sewerage Water Board v. Michel, Secretary of State, 127 La. 685, 53 So. 926; New Orleans Taxpayers' Protective Association v. Sewerage Water Board, 132 La. 839, 61 So. 843; State v. Billhartz, 146 La. 855, 84 So. 120; and Realty Owners' Protective Alliance v. City of New Orleans, 165 La. 159, 115 So. 444.
Relying upon this settled jurisprudence, the Attorney General averred that Act No. 36, approved November 21, 1934, was unconstitutional, for several reasons, and specifically: (1) That the change proposed to be made by this statute could not be made without the consent of the New Orleans taxpayers and bondholders; (2) that the statute undertook to impair and to violate the conditions upon which the taxpayers of New Orleans had voted the special tax, and that the statute therefore undertook to impair the vested rights and the contract rights of the holders of the bonds which were issued under the contract; (3) that, under the constitutional amendment made pursuant to Acts No. 4 and No. 6 of 1899, Ex. Sess., and under article 313 of the Constitution of 1913, and section 23 of article 14 of the present Constitution, the Legislature could not change the membership or composition of the Sewerage and Water Board; (4) that Act No. 36, approved November 21, 1934, in so far as it attempted to add to or change the membership of the Sewerage and Water Board, or the mode of selection of the members thereof, as established by section 8 of Act No. 6 of 1899, Ex. Sess., was an attempt to violate and impair the terms and conditions of the property taxpayers' petition, and to impair the vested rights and contract rights of the holders of the bonds issued under the contract. And the Attorney General concludes with this allegation in his petition, viz.:
"That said Act No. 36 impairs the obligations of said contracts with the property taxpayers and bondholders, in violation of section 15 of article 4 of the Constitution of Louisiana, and section 10 of article 1 of the Constitution of the United States, and will deprive them of their property without due process of law, in violation of section 2 of article 1 of the Constitution of Louisiana, and the Fifth and Fourteenth Amendments of the Constitution of the United States."
The Attorney General, therefore, pleads and contends that Act No. 36 of the Second Extra Session of 1934, approved November 21, 1934, is an attempt to violate the pertinent provisions of the Constitution of the United States, as well as the pertinent provisions of the Constitution of Louisiana. That issue, however, is not before us at this time. I refer to the Attorney General's allegations on the subject, merely to show the justification for Judge Byrnes to issue a preliminary injunction in this case.
Besides, Judge Byrnes evidently had in mind, when he was asked for a writ of injunction in this case, the fact that the Supreme Court of the United States had decided, in a Louisiana case, that the construction given by the highest court of a state, to a statute or a provision of the Constitution of the state, had to be taken as correct, so far as contracts made under the construction were concerned, and that a subsequent judicial construction could not affect contracts already made. I refer to the case of State of Louisiana ex rel. Southern Bank v. Edward Pilsbury, 105 U.S. 278, 294, 26 L. Ed. 1096, where it was said:
"Whether such a construction [by the Supreme Court of Louisiana] was a sound one is not an open question in considering the validity of the bonds. The exposition given by the highest tribunal of the State must be taken as correct so far as contracts made under the act are concerned. Their validity and obligation cannot be impaired by any subsequent decision altering the construction. This doctrine applies as well to the construction of a provision of the organic law, as to the construction of a statute. The construction, so far as contract obligations incurred under it are concerned, constitutes a part of the law as much as if embodied in it. So far does this doctrine extend, that when a statute of two States, expressed in the same terms, is construed differently by the highest courts, they are treated by us as different laws, each embodying the particular construction of its own State, and enforced in accordance with it in all cases arising under it." The decisions are here cited.
The Attorney General alleged also in his petition that, if the court should refuse to issue a preliminary injunction, and if the new members provided for by Act No. 36 of the Second Extra Session of 1934, for the Sewerage and Water Board, should take office and attempt to discharge their duties under the alleged unconstitutional act, irreparable loss and injury and damage would result to the state of Louisiana and the city of New Orleans, and to the bondholders and taxpayers of the city.
The Attorney General therefore disclosed in his petition a sufficient cause for the granting of a preliminary injunction, pending a hearing of his attack upon the constitutionality of Act No. 36, approved November 21, 1934.
In the majority opinion rendered in this case, on this day, the case of State v. City of New Orleans, 151 La. 24, 91 So. 533, 537, is cited in support of the suggestion that certain police powers which were said to have been vested in the city of New Orleans could have been, and were, reinvested in the state, "by subsequent amendments of its constitution, or by re-writing that instrument." I do not concur in the suggestion that any constitutional amendment, or change in the provisions of the Constitution, made subsequent to the decision in the Kohnke Case, has altered the doctrine of the decision rendered in that case, and affirmed by the five decisions rendered since that case was decided. In the case of State v. City of New Orleans, cited in the majority opinion in this case, we said this on the subject, viz.:
"The reason why that statute [meaning Act No. 36 of 1916] was declared unconstitutional [in the case of Board of Public Utilities v. New Orleans Ry. Light Co., 145 La. 308, 82 So. 280] was that it violated the constitutional right of local self-government. It provided that a majority (four of the five) members of the local public utilities commission, thereby established, should be appointed by the Governor of the state; whereas article 319 of the Constitution of 1898 and of 1913 had reserved to the electors of the city the right to choose all public officers charged with the exercise of the police power of the city, in whole or in part. Observing that the power to fix rates for public utilities was an element of the police power, we held that the Legislature could not confer that power upon a local board, without reserving to the electors of the city the right to choose the members of the board. The convention of 1921, in reserving to the electors of this city the right to choose their public officers — which was the city's sheet anchor for home rule — also reserved to the Legislature the right to provide for local boards or commissions, without authority, however, to control the ordinary governmental functions of the municipality. Article 14, § 22." (The italics are mine.)
I have italicized the qualifying words in section 22 of article 14 of the Constitution, because it cannot be disputed that the function "of controlling" the water and sewerage system of a city is one of "the ordinary governmental functions of municipal government," as the Constitution says. However, the violation of the home-rule clauses of the Constitution was only one of the violations for which Act No. 111 of 1902 was declared unconstitutional in the Kohnke Case. And these home-rule clauses in section 22 of article 14 of the Constitution of 1921 are as formidable now as they were when the Kohnke Case was decided, as far as "the ordinary governmental functions of municipal government" are concerned. It is not contended that the other unconstitutional feature of Act No. 111 of 1902, which was found in the Kohnke Case, has been abolished by any subsequent change in the organic law.
For these reasons I concur in the decree affirming the judgment granting a preliminary injunction in this case.
I concur in the view expressed by our learned brother below and affirmed by this court in the majority opinion, to the effect that the Attorney General of the State of Louisiana has the right to bring this action.
The trial judge in his reasons for judgment expressly states that he was not passing upon the constitutionality of the statute in question i.e., Act No. 36 of the Second Extra Session of the Legislature of 1934. Therefore, the case must be remanded to the lower court for the purpose of having that issue decided.
As to the issuance of preliminary writ of injunction the record shows that when the case was called for trial on the rule nisi, the district judge, observing that the question of the constitutionality of the statute must necessarily be considered at that time, suggested that since that identical question was involved on the merits of the case, the whole matter should be considered at once on the merits. Counsel for the city of New Orleans, the board of liquidation of the city debt of New Orleans, and the city board of health of New Orleans objected, insisting that the only matter before the court on the rule nisi was the question of the Attorney General's right and interest to bring the suit. Counsel representing all other parties agreed to have the matter taken up on the merits immediately. The trial judge was of the opinion that he could not consider the merits without the consent of all parties to the suit, citing Agricultural Supply Co. v. Livigne, 177 La. 15, 147 So. 365. He, therefore, expressly refrained from giving his views as to the constitutionality vel non of the statute in question.
The only reason assigned for the issuance of the preliminary writ of injunction is as follows: "Under the specific authority of State v. New Orleans Debenture Redemption Co. of La., 107 La. 562, 32 So. 102, I have no hesitancy in issuing this preliminary injunction."
An examination of the cited case shows that it holds that the Attorney General of Louisiana has an interest in bringing a suit against a group of individuals who allegedly assumed an illegal corporate status and that the court had discretion to issue an injunction under the circumstance to maintain the status quo. The constitutionality vel non of a statute was not involved.
The law is clear that a legislative act is presumed to be constitutional and that this presumption will be indulged in by the courts until the contrary is clearly shown and the statute declared unconstitutional by a court of competent jurisdiction. The burden of showing that an act of the Legislature is unconstitutional is on the party asserting it. Every doubt concerning the validity of a statute is resolved in favor of its constitutionality. State ex rel. Fortier et al. v. Capdevielle et al., 104 La. 561, page 564, 29 So. 215; City of New Orleans v. Chappuis, 105 La. 179, 29 So. 721; Grinage v. Publishing Co., 107 La. 121, 31 So. 682; New Orleans Baseball A. Co. v. City of New Orleans, 118 La. 228, 42 So. 784, 7 L.R.A. (N.S.) 1014, 118 Am. St. Rep. 366, 10 Ann. Cas. 757; Murat v. City of New Orleans, 119 La. 505, 514, 44 So. 279; State v. City of New Orleans, 141 La. 788, 75 So. 683.
The learned judge a quo having expressly stated that he was not "passing upon the constitutionality of this Act," the presumption of constitutionality necessarily was never overcome. I, therefore, doubt the correctness of the trial judge issuing the preliminary writ of injunction unless it can be said that from the statements dictated into the record by counsel, it was practically agreed by them that matters should be held status quo until the controversial question has been decided.