State v. Walmsley , 183 La. 139 ( 1935 )

"I cannot agree with the decision, because, as I conceive, said act does not purport to be an amendment of the Constitution, but is simply independent legislation conferring additional powers upon the Sewerage and Water Board. I know of nothing in the Constitution to prevent the Legislature from conferring upon a board created by the Constitution additional powers, and said Act 270 does nothing more than this. If the Legislature could have validly conferred these powers upon a new board created by itself for the purpose of exercising them, I do not see why it should not be able to confer them upon some board created by the Constitution, to which these powers would be appropriate and useful, in line with its constitutional functions.

"The act creating the Sewerage and Water Board and conferring certain powers upon it is in a sense amended, since additional powers are conferred; but it is not amended by making any changes in it. It remains perfectly and absolutely intact, just as the Constitution adopted it; and article 32 of the Constitution, requiring amended acts to be re-enacted in full, has application only when some change is being made in the `amended' act. See, to that effect, 36 Cyc. 1061, citing Arnoult v. N.O., 11 La. Ann. 54; State v. Henderson, 32 La. Ann. 779; Kathman v. N.O., 11 La. Ann. 145; Moore v. N.O., 32 La. Ann. 726; Murphy v. Police Jury St. Mary Parish, 118 La. 401, 42 So. 979.

"I fail to see that any of the contractual features of the Sewerage and Water Board Act are affected in any way by said Act 270; and, if any were, the legal situation would be the same, since a state cannot contract away its police power in whole or in part, no more than a man can contract away his right of self-defense. Said act professes to have been enacted as a measure of protection against yellow fever and malaria infection by mosquitoes. The majority opinion does not profess to deny that the act is a wise and effective measure in that direction, nor that it has been enacted in the exercise of the police power, nor that the protection of the inhabitants of the city of New Orleans against yellow fever and malaria infection falls clearly within the scope of the police power; and yet it holds said act to be unconstitutional.

"The right of the judiciary to annul an act of the legislative branch of the government is contested by many; but all recognize that it should not be exercised, except sparingly, and when the doing so is unavoidable.

"I therefore respectfully dissent."

By this dissenting opinion, Mr. Justice Provosty unquestionably disagrees with the majority of the court in their interpretation of the case of State v. Kohnke which he wrote. It is notable that Mr. Justice Provosty rendered this dissenting opinion prior to the adoption of the Constitution of 1921 and under the Constitution of 1898 containing the identical "home rule" clauses which governed his decision in the Kohnke Case.

The question of whether or not a change in the membership of the sewerage and water board as prescribed by Act No. 36 of the 2d Extraordinary Session of 1934, amending and re-enacting section 8 of Act No. 6 of the Extra Session of the Legislature of 1899, as amended by Act No. 111 of 1902, would give rise to an impairment of contract has already been answered by the Supreme Court of the United States in the case of City of New Orleans v. H.W. Benjamin et al., 153 U.S. 411, 14 S. Ct. 905, 908, 38 L. Ed. 764. One of the questions certified by the Circuit Court of Appeal to the United States Supreme Court in that case was as follows:

"Second. The warrants and the certificates held by the complainant having been issued for services rendered and supplies furnished under contract with the board of Metropolitan police, when the laws required said warrants and certificates to be received by the defendants in payment of all licenses, taxes, and other dues, and all such laws having been repealed by the legislature of Louisiana without making other provision for the redemption of said warrants and certificates, was this an impairment of the obligation of the contract in relation to such warrants and certificates, within the meaning of article 1, § 10, of the constitution of the United States?"

The answer of the Supreme Court of the United States to this question was as follows (153 U.S. 411, 14 S. Ct. 905, 912, 38 L. Ed. 764):

"This conclusion covers the second question, which specifically inquires whether there was an impairment of the obligations of the contract arising upon the warrants and certificates, by reason of the repeal of laws making them receivable in payment of licenses, taxes, and other debts. Of course, there was no such impairment by the act of 1877, if that act left in force substantially the mode of payment of warrants provided by existing laws, and the bill did not attack act No. 33 of 1874, which suspended the tender of warrants and certificates for taxes except for the years prior to January 1, 1874, while under the ordinance of 1879, by Act No. 49 of 1880, the police warrants or scrip for 1874, 1875, and 1876 were made receivable for police taxes without discrimination as to the year in which the warrants were issued, or the taxes levied."

It will be noted from this case that the court held that regardless of the fact that the metropolitan police board has been legislated out of existence and the Legislature had made no provision for a successor to perform the duties and obligations of this board to holders of its warrants that this did not constitute an impairment of contract because the city of New Orleans would undoubtedly perform through one of its departments the functions heretofore performed by the metropolitan police board and that the act "left in force substantially the mode of payment of warrants provided by existing laws." In the present case, a change in the membership in the sewerage and water board does not only leave in force "substantially" the mode of payment of both interest and principal on outstanding bonds but does not disturb this method one iota.

For the reasons assigned, the rehearing applied for is refused.

O'NIELL, C.J., adheres to his dissenting opinion.

ODOM, J., dissents from the refusal to grant a rehearing.

ROGERS, J., dissents from the refusal to grant a rehearing.