State v. Cusimano , 187 La. 269 ( 1937 )

The provisions of sections 4 and 6 of article 4 of the Constitution of 1921 were in articles 48 and 50, respectively, of the Constitution of 1898. My opinion once was that the court was mistaken in its original interpretation of these articles of the Constitution of 1898, in the case of State ex rel. Fortier v. Capdevielle, Mayor, et al., 104 La. 561, 29 So. 215; but the same interpretation has been given so many times, and with such deliberation, since that case was decided, that it ought to be accepted as the correct interpretation. State ex rel. Fortier v. Capdevielle, Mayor, et al., was decided in 1901, and was followed by Mulhaupt v. City of Shreveport, 126 La. 780, 52 So. 1023, which was decided the same way, in 1910. Then came State v. Landry, 139 La. 451, 71 So. 763, to the same effect, in 1916. I handed down a dissenting opinion in that case, which was concurred in by Chief Justice Monroe, but the three other members of the court, as then constituted, adhered to the two former decisions. I wrote a dissenting opinion on the subject again in Federal Land Bank v. John D. Nix, Jr., Enterprises, 166 La. 566,117 So. 720, in 1928; but to no avail. Hence I yielded to the majority opinion on the subject, in State ex rel City of New Orleans et al v. Louisiana Tax Commission, 171 La. 211,130 So. 46, 48, in 1930, where, even yet, some doubt was expressed about the correctness of the doctrine of the earlier cases "as an original proposition." Section 4 of article 4 of the Constitution enumerates the subjects on which the Legislature is forbidden to enact any local or special law. In the list of subjects which are proscribed is the creating of corporations, or amending, renewing, extending or explaining the charters thereof. In the paragraph on the subject of corporations, however, is a proviso that "this shall not apply to municipal corporations having a population of not less than twenty-five hundred inhabitants," etc. Therefore, the Legislature is not forbidden to enact a local or special law creating a corporation having a population of 2,500 or more, or amending, renewing, extending or explaining the charter of a municipal corporation of that size. But, in section 6 of this article of the Constitution, it is provided:

"No local or special law shall be passed on any subject not enumerated in Section 4 of this article, unless notice of the intention to apply therefor shall have been published," etc.

Hence, if the proposition were being presented now for the first time, I would see great force in the argument that the original meaning of these provisions in the Constitution was that the Legislature was forbidden to enact any local or special law on any of the subjects enumerated in what is now section 4 of article 4; and that, on any subject not enumerated in what is now section 4 of article 4, the Legislature might pass a local or special law, but only on compliance with what is now section 6 of that article of the Constitution. Municipal corporations having a population of 2,500 or more are not "enumerated" in section 4 of article 4, because they are in fact expressly excepted from the provisions of that section. If they were "enumerated" in section 4 the Legislature could not enact a local or special law creating a corporation of that size, or amending, renewing, extending or explaining the charter of such a corporation — even by complying with the provisions of section 6 of that article of the Constitution. However, I assume that the delegates in the Constitutional Convention of 1913 were aware of the interpretation which this court had given to articles 48 and 50 of the Constitution of 1898, in State ex rel. Fortier v. Capdevielle, Mayor, in 1901, and in Mulhaupt v. City of Shreveport, in 1910; and I assume that the delegates in the Convention of 1921 knew also of the decision that was rendered in State v. Landry, in 1916. Hence the two Constitutional Conventions must have approved of the court's interpretation of articles 48 and 50 of the Constitution of 1898, because these provisions were retained, without any change in that respect. Besides, it is not impossible for something that is originally wrong to become right by usage. For example, a manufacturer of timepieces would be an iconoclast if he should turn out a watch or a clock now with the hour IV appearing as it should have appeared on the dial of the first timepiece that was ever made; and yet it would be unpardonable to write the numeral IIII anywhere else but on the dial of a timepiece. Imagine, for example, article IIII, instead of article IV, of the Constitution. The error on the face of the timepiece is accepted as being right because it is something venerable. And so it should be with regard to a judicial pronouncement of many years standing, if it be harmless — even in a civil-law jurisdiction — where stare decisis is not overworked.