State v. City of New Orleans , 15 La. Ann. 354 ( 1860 )

Land, J.

This suit was instituted for the recovery of the sum of two thousand nine hundred and fifty-live dollars, the same being one-half of the expenses incurred for the purpose of carrying into effect the provisions of the Act of the Legislature entitled “ An Act relative to elections in the parish of Orleans,” approved March the 19th, 1857.

The allegations of the petition are admitted to be true ; but it is contended that the Act of the Legislature above mentioned is contrary to and violates Art. 124- of the State Constitution.

This Article of the Constitution is in these words :

“ The citizens of the city of New Orleans shall have the right of appointing the several public officers necessary for the administration of the police of the said city, pursuant to the mode of elections which shall be prescribed by the Legislature; provided that the Mayor and Recorders shall be ineligible to a seat in the General Assembly ; and the Mayor, Recorder and Aldermen and Assistant Aldermen shall be commissioned by the Governor as Justices of the Peace, and the Legislature may vest in them such criminal jurisdiction as may be necessary for the punishment of minor crimes and offences, and as the police and good order of said city may require.”

It is supposed that the Act of the Legislature in question violates Article 124 of the Constitution, because the power to administer and to carry into effect the provisions of said Act is vested in certain State officers, and not in the police officers of the city of New Orleans.

To maintain this position, it is necessary to show that the Act of 1857, relative to elections in the parish of Orleans, enters into and forms a constituent part of the police of the city of New Orleans in the sense of Article 124 of the Constitution ; for, if said Act forms no part of the Police of the city of New Orleans, then there is no ground on which a right to the administration of said Act, through the police officers of the city, can be claimed, because the right of administration through the police officers is expressly limited, under the Constitution, to the police of the city, and does not extend to the internal regulations or police of the State.

A correct determination of this constitutional question, therefore, mainly depends on the interpretation of the words “ for the administration of the police of said city,” and especially of the word “ police ” used in Art. 124 of our Slate Constitution. And in giving- to this language its proper interpretation, we are bound by that rule of construction which declares that the words of a law are generally to be understood in their most known and usual signification, for in this sense the law-maker is presumed to have used them to express his will.

What then is the most known and usual signification of the word “ police ” used in Art. 124 of the Constitution ? It means, first, the government of a city or town ; the administration of the laws and regulations of a city, or an incorporated town or borough, as, the police of London, New York or Boston. The word is applied also to the government of all towns in New England, which are made corporations by a general statute for certain purposes. It means, secondly, the internal regulation and government of a kingdom or State; and, thirdly, it signifies a body of civil officers, especially in cities, for enforcing the laws. Webster’s Dictionary, verbo police.

It is evident that the word “ police,” as used in Art. 124 of the Constitution, does not mean the internal regulation and government of the State of Louisiana ; and it is equally evident, that it does not signify a body of civil officers for enforcing- the laws in the city of New Orleans ; and consequently, the only signification which can be given to the word as used in Art. 124 of the State Constitution is, the government, or laws and regulations established for the government of the city of New Orleans as a civil corporation.

These laws, which constitute the police of the city, form a distinct body or code of laws from those enacted for the internal government of the State, and to these laws the right of administration, through the police officers of the city, is exclusively and expressly limited by Art. 124 of the Constitution.

If the foregoing propositions are true, that is to say :

1st. That the word “ police,” used in said Article of the Constitution, signifies the laws and regulations enacted for the government of the city of New Orleans, as a civil corporation ;

2dly. That these laws and regulations, constituting the police of the city, form a distinct body or code of law’s from those enacted for the internal regulation and government of the State of Louisiana; and

3dly. That the right of administration on the part of the city, through its officers, is expressly limited by the Constitution to the laws which constitute the police of the city, or its municipal government; — ■

Then, the only remaining consideration in the decision of this question, is, whether the Act of 1857, relative to elections in the parish of Orleans, forms a part of the police or government of the city of New Orleans as a civil corporation ; or, whether the Act pertains tc and forms a part of the body of laws enacted for the internal regulation and government of the State.

It must be premised, that the Constitution of the State confers on the city of New Orleans no powers of government whatever, and that all the police powers of the city are exclusively derived from the enactments of the Legislature, and that no power does or can enter into and form a part of the police or government of the city, without the previous assent and sanction of the legislative department of the government.

And it must be further premised, that, as the police of the city of New Orleans is a mere creature of the statutes, that the Legislature of the State, the' sovereign law-making power, has a right to change, to modify, or to abrogate the same, if it should be pleased to exercise such a right in the interest of the commonwealth.

The object of the Act of 1851 was to regulate general elections and to support the privilege of free suffrage in the parish of Orleans; and as these powers have never been delegated to the city as a civil corporation; and as the Act itself does not purport to confer any such power, but, on the contrary, is wholly repugnant to the existence of any such power in the police or government of the city, it necessarily results, as a legal and logical conclusion, from the premises, that the Act pertains to the body of laws for the internal government of the State, and does not form a part of the police or government of the city of New Orleans, and consequently, that the asserted right of administration of the Act through the police officers of the city, does not exist under Art. 124 of the Constitution, and is entirely without any foundation whatever, either in the organic or statute law of the State.

The right of the State to administer its laws, through its own officers, at all times and in all places, within its territorial limits, is a prerogative of sovereignty, of which the State cannot be divested, without being deprived of an essential attribute of sovereign power, and the exercise of this right, it may be affirmed, is especially enjoined by the Constitution itself, which requires the Executive to take care that the laws be faithfully executed.

This right of administration has been constantly exercised by the State, through its own officers, in the city of New Orleans, without complaint or remonstrance on the part of the municipal authorities. And this suit, it is believed, affords the first instance of an objection to the exercise of such a right by the State, on constitutional ground, in the name of the city.

It is also supposed, that the Act of the Legislature in question violates Art. 123 of the Constitution, because it requires the city of New Orleans to pay one-half of the expenses incurred to carry into effect the provisions of the same. This Article of the Constitution is in these words :

“ Taxation shall be equal and uniform throughout the State. All property on which taxes may be levied in this State shall be taxed in proportion to its value, to be ascertained as directed by law. No one species of property shall be taxed higher than another species of property of equal value, on which taxes shall be levied; the Legislature shall have power to levy an income tax, and to tax all persons pursuing any occupation, trade or profession.”

The expenses incurred for the purpose of carrying into effect the provisions of the general election laws of the State, have been and are now paid by the respective parishes, under legislative enactments which have never been considered to be in violation of Art. 123 of the Constitution. And, besides, as'a mere question of fact in the case before us, there is no evidence to show that the payment of the expenses demanded in this suit, under the Act of 1851, relative to elections in the parish of Orleans, will operate, directly or indirectly, either unjustly or unequally, upon the city, and, consequently, the case on this point is against the defendant, for the want of proof to sustain it.

In the suit of St. Martin v. The City of New Orleans, 14 An. 113, this court held the defendant liable, under an Act of the Legislature, for the payment of the salary of the plaintiff, who had been appointed Register of the names and residence of all the qualified electors of the city of New Orleans ; and if the city was liable in that case, it is also liable in this, for on principle, no distinction can be made between them, favorable to this ground of the defence.

Various other constitutional objections have been made to the Act of 1857, relative to elections in the parish of Orleans; but as the members of the court are unanimously of the opinion that these objections are not tenable, it is unnecessary to give them here any further notice or consideration.

For the reasons stated, it is ordered, adjudged and decreed, that the judgment of the lower court be avoided and reversed; and it is now ordered, adjudged and decreed, that the plaintiff, the State of Louisiana, recover of the defendant, the city of New Orleans, the sum of two thousand nine hundred and fifty-five dollars, with interest thereon at the rate of five per cent, per annum, from the 30th day of December, 1858, with costs in both courts.