DocketNumber: No. 4472.
Citation Numbers: 144 So. 519
Judges: DREW, J.
Filed Date: 12/7/1932
Status: Precedential
Modified Date: 1/11/2023
"By Mr. Fullilove:
"Be it resolved by the Council that the duties pertaining to the following departments of the City be referred to as follows:
"To the Mayor: Public Affairs, Public Education, Board of Health, Legal Department, City Physician, Public Property, Sanitary Regulations, Railways.
"To the Superintendent of Department of Finance and Accounts. Accounts, Finances, Secretary and Treasurer and Tax Collector, *Page 521 Auditor, Red River Bridge, Fiscal Agent, Official Printing.
"To the Superintendent of the Department of Public Safety: Fire Department, Police Department, Impounding Animals, City Jail, License Clerk, Dog Tax, City Court.
"To the Superintendent of the Department of Public Utilities: Cemeteries, Building Inspector, Plumbing Inspector, Traction Companies, Lights, Waterworks and Sewerage, Gas Inspectors, Signs, Electrical Inspection.
"To the Superintendent of the Department of Streets and Parks: City Engineer, Streets, Parks, Crematory, City Stables:, Sidewalks, Improvements.
"Adopted."
Act No.
"Be it further enacted, etc., That the said lands so conveyed to the City of Shreveport shall be used by it as a reservoir or storing basin for water to be used by said city for the purpose of supplying itself and its citizens with a good and wholesome supply of water, and should the said City of Shreveport fail to utilize the said bed of said lake for said purpose within ten years from the date of the passage of this Act or afterward should ever cease to utilize it for said purpose, then the said land shall revert back and become the property of the State of Louisiana, subject to the repayment to the City of Shreveport of the purchase price but without any interest.
"Be it further enacted, etc., That the City of Shreveport in the protection and conservation of its water supply is hereby granted full and plenary power over the said lake and may make such rules and regulations for the government thereof as its City Council may from time to time determine, and may enforce such rules and regulations by fine or imprisonment as is now provided for the enforcement of its ordinances under its charter and amendments thereto."
Act No.
"Section 3. Be it further enacted, etc., That in order to protect the public health, said lands so conveyed to the City of Shreveport shall be used by it as a reservoir or storage basin for water to be used by said City and the inhabitants thereof, for the purpose of supplying said City, its citizens and other persons visiting said City, with a good and wholesome supply of water, and should the said City of Shreveport fail to utilize the said bed of said lake for said purposes, on or before July 1, 1926, or afterwards should ever cease to utilize it for said purposes then the said land shall revert back and become the property of the State of Louisiana, subject to the repayment to the City of Shreveport of the purchase price, but without any interest."
On January 12, 1926, an ordinance designated as Ordinance No. 200 of 1925, entitled "Cross Lake Ordinance," was passed. Section 3 of that ordinance reads as follows:
"Section 3. Be it further ordained, etc., That the Department of Public Utilities shall have the right to employ one or more inspectors, for the purpose of reporting any and all violations of the city ordinances to the Department of Public Safety and to call upon said department and the City Board of Health for the enforcement of any and all ordinances of the city for the protection of Cross Lake Water Reservoir from pollution and contamination and the City Board of Health is likewise granted the same power designated herein, for the purpose of seeing that the water supply of the City of Shreveport shall be kept free of pollution and contamination at all times. The Department of Public Utilities shall have full supervision and control of all improvements and developments on the Cross Lake Water Reservoir and within the contour line below the 172 foot mean gulf level, the same as over any other property belonging to the Water Works Department, the same to be provided for out of its own revenues, unless otherwise provided by the City Council. No permits shall be issued that contravenes the provisions of this ordinance."
Act No.
"Section 1. Be it enacted by the Legislature of Louisiana, That the City of Shreveport is hereby granted full power and authority to adopt and enforce all needful police and sanitary ordinances and regulations for the protection of the bed and waters of Cross Lake purchased from the State of Louisiana for a water supply and now in use as such from pollution and contamination from any source and is likewise granted similar power and control over the area surrounding said lake for a distance of five thousand feet from the Meander Contour Line, which extends to the 172 foot mean gulf level as well as over the streams and tributaries of said lake, so as to prevent its pollution, contamination or destruction by salt water, refuse, filth, or from any other cause that would in any manner whatsoever endanger or render harmful or unsanitary the use of the waters of the Lake by the citizens of the City of Shreveport. That the City shall have the right and authority through its Board of Health, Public Safety Department, Public Utilities Department, or otherwise, to inspect all of said property and the drainage area of said Cross Lake and to enforce its ordinances *Page 522 and regulations by fine or imprisonment through the proper Courts of the State of Louisiana."
In the year 1932, an ordinance was prepared by the mayor and defendant herein, George W. Hardy, and presented to the council for adoption, entitled, "An Ordinance to Formally Define, Determine and Assign the Powers and Duties to be Performed by Each of the Five Named Departments of the City Government under the Provisions of Law." Section 2 of said ordinance, which is No. 39 of 1932, assigns the powers and duties of the mayor as follows:
"The Mayor shall be Superintendent of the Department of Public Affairs, of Public Education, of the Legal Department, of the Health Department, of Public Property, the Municipal Library, the Municipal Auditorium, the Department of Conservation and enforcement on Cross Lake and the Department of Public Recreation. He shall make rules and fix policies for the proper conduct of all said Departments."
Section 5 of said ordinance assigns the powers and duties of the commissioner of public utilities as follows:
"That the Superintendent of the Department of Public Utilities shall be Superintendent of all Public Utilities, and shall have supervision over the following sub-departments: Cemeteries, Plumbing, Electrical, Street Lighting, Water and Sewerage, and the City Water Supply. He shall formulate general rules and policies for the proper conduct of these subordinate departments and communicate the same to the heads of all subordinate departments."
The council, by a vote of four to one, rejected the ordinance. The electorate of the city of Shreveport, availing themselves of a right the mayor claims they had, under section 14 of Act No.
On September 30, 1932, the mayor of the city of Shreveport, George W. Hardy, defendant herein, addressed the following letter to C.B. Dickson, plaintiff herein, and commissioner of public utilities:
"Honorable C.B. Dickson,
"Commissioner of Public Utilities,
"Shreveport, La.
"Dear Commissioner:
"By authority of ordinance No. 39 of 1932 passed by vote of the qualified electors of the City of Shreveport, the Mayor is designated as Superintendent of the Department of Conservation and Enforcement on Cross Lake. Under this provision he is authorized to make rules and fix policies for the proper conduct of said Department and to appoint the Superintendent of Conservation and Enforcement on Cross Lake.
"Under this authority it is my intention to assume the duties imposed upon me with reference to the supervision of Cross Lake on October 15th.
"On or before that date I will present detailed plans for the approval of the Council. Meanwhile you are advised that effective October 15th the services of those employees of your Department who have been charged with these duties will no longer be necessary under your supervision.
"I plan to place the administration of these matters under the Department of Health and all employees charged with the performance of necessary duties under this provision will hereafter come under that Department.
"In further connection with this matter you will please give me a list of all boats and other city property presently in charge of your Department which are used for the purpose of patrolling Cross Lake. On or before October 15th I will advise you of the name of the Superintendent of Conservation and Enforcement on Cross Lake, who will be authorized to receive this property from you and receipt for same.
"Assuring you in advance of my appreciation of such cooperation and assistance as you may be able to give me in future and thanking you for your immediate advice with reference to the above matters, I am
"Yours very truly, George W. Hardy, Jr., "Mayor."CC — Hon. John McW. Ford,
"Hon. T.C. Dawkins, "Hon. Chas. D. Evans, "Hon. A.M. Pyburn."On October 4, 1932, plaintiff instituted the present suit, the petition and prayer of which are as follows:
"The petition of C. Bickham Dickson, a resident of Caddo Parish, with respect represents:
"1. That petitioner is a citizen, taxpayer and duly qualified elector of the City of Shreveport, having heretofore been elected to the office of Commissioner of Public Utilities of the City of Shreveport, which he now occupies.
"2. That on September 13, 1932, there was submitted to the electorate of the City of Shreveport under the purported authority of Section 14 of Act
"3. That the Ordinance No. 39 of 1932 purports to create a department styled the `Department of Conservation and Enforcement on Cross Lake' and an office described therein as `Superintendent of Conservation and Enforcement on Cross Lake' to be elected by the Council upon the nomination of the Mayor, which department and office are by the provisions of the ordinance placed under the supervision and control of the Mayor.
"4. That Cross Lake is the source of the water supply of the City of Shreveport basicly essential to the water system therein, the supervision and control of which system, including all things properly related thereto, were prior to the purported Ordinance No. 39 assigned to the Department of Public Utilities as the appropriate department therefor, jurisdiction and control over which, including the supervision of Cross Lake necessary to the maintenance of an adequate supply of pure water therefrom was vested in petitioner as Commissioner of Public Utilities.
"5. That George W. Hardy, Jr., Mayor of the City of Shreveport, pretending to act under the authority of the ordinance described herein, has by letter attached hereto and made part hereof, notified petitioner that he will on October 15th, 1932, assume supervision of Cross Lake legally vested in petitioner; and that after such date he will through a Superintendent of Conservation to be nominated by him take charge physically of such work and the property of the City upon the Lake, supervision of all which is legally and properly vested in petitioner as Commissioner of Public Utilities and exercised by him as such.
"6. That the action threatened by the Mayor will for the reasons hereinafter set forth constitute an unlawful and illegal usurpation of the authority legally vested in petitioner as Commissioner of Public Utilities, which is now and has heretofore at all times been exercised by him; that George W. Hardy, Mayor, will attempt the course of action indicated unless restrained by the decree of this Court."
"8. That Ordinance 39 of 1932, in so far as it purperts to create a Department of Conservation and Enforcement on Cross Lake, the office of Superintendent of Conservation and Enforcement on Cross Lake and to place the supervision thereof under the control of the Mayor is illegal and void for the following reasons:
"(a) That Act 302 of the Louisiana Legislature of the year 1910 providing for the establishment of a commission form of government for municipalities, which form of government as provided for in that statute has been adopted in the City of Shreveport delegates legislative authority to create municipal offices only to the City Council, in whose discretion alone is vested the right to create such offices as shall in the judgment of the Mayor and Councilmen be necessary to the proper and efficient conduct of the affairs of the City; that such authority is not delegated to the electorate and can not be exercised by plebiscite.
"(b) That Act
"(c) That the authority which can be delegated to the Mayor of Shreveport is limited by the provisions of Act
"9. That petitioner will be irreparably injured in his capacity as Commissioner of Public Utilities and as a taxpayer and elector of the City of Shreveport by the accomplishment of the actions threatened by the Mayor of the City of Shreveport set forth herein; that such actions will constitute an illegal usurpation of authority legally vested in the Commissioner of Public Utilities of the City and will accomplish an illegal and substantial alteration of the functions of government of the municipality as provided for by the laws of the state.
"10. That petitioner is without adequate remedy at law and that his rights in the capacity set forth can be protected only by an injunction to be issued by this Honorable Court prohibiting the said George W. Hardy, Jr., Mayor of Shreveport, from proceeding to assume supervision of Cross Lake and nominating a superintendent of Conservation therefor; and further from interfering in any manner, directly or indirectly with the control and supervision of Cross Lake as the same is now and was vested in petitioner as Commissioner of Public Utilities prior to the purported adoption of Ordinance 39 of 1932.
"Wherefore, petitioner prays that George W. Hardy, Jr., Mayor of Shreveport, be duly cited to answer hereto; that a rule be issued by this Honorable Court requiring the said George W. Hardy, Jr., to show cause at a *Page 524 time and place to be fixed by this Honorable Court why Ordinance No. 39 of 1932 of the City of Shreveport, in so far as it purports to create a Department of Conservation and Enforcement on Cross Lake, and in so far as it purports to place the supervision thereof under the control of the Mayor of Shreveport, should not be declared illegal and void and why he, George W. Hardy, Jr., should not be enjoined, restrained and prohibited from proceeding to assume supervision of Cross Lake and to nominate a superintendent of Conservation therefor; and further to show cause why he should not be enjoined, restrained and prohibited from interfering in any manner, directly or indirectly, with the control and supervision of Cross Lake as the same is now and was prior to the purported adoption of Ordinance No. 39 of 1932 vested in petitioner as Commissioner of Public Utilities; that upon the hearing of such rule the aforesaid George W. Hardy, Jr., be enjoined from such interference pending the final determination of this cause.
"Petitioner further prays that after all legal delays and hearing had the aforesaid temporary injunction be made permanent and that your petitioner do have and recover judgment against the said George W. Hardy, Jr., permanently enjoining him from interfering with the supervision of petitioner in the respects hereinabove set forth and accomplishing the acts complained of.
"Petitioner further prays for all orders necessary, general and equitable relief."
And attached to the petition a letter from defendant to plaintiff, of date September 30, 1932, and a copy of the ordinance designated as No. 39 of 1932.
Defendant was ruled to show cause on the 11th day of October, 1932, why temporary injunction should not issue, as prayed for, on which date plaintiff filed an amended petition wherein he amends paragraph 8 of the original petition, to read as follows:
"8. That Ordinance 39 of 1932, in so far as it purports to create a Department of Conservation and Enforcement on Cross Lake, the office of Superintendent of Conservation and Enforcement on Cross Lake and to place the supervision thereof under the control of the Mayor is illegal and void for the following reasons:
"(a) That Act 302 of the Louisiana Legislature of the year 1910 providing for the establishment of a commission form of government for municipalities, which form of government as provided for in that statute has been adopted in the City of Shreveport establishes five departments into which the powers and duties of municipal government are distributed; and that other offices are expressly limited to City Attorney, Secretary-Treasurer, Tax Collector, etc., and other similar offices; that the Council could not nor could the electorate create a Department of Conservation and Enforcement on Cross Lake, nor the office of Superintendent of Conservation and Enforcement on Cross Lake.
"(b) That under the provisions of Act
"(c) That Act
"(d) That Act
"(e) That the authority which can be delegated to the Mayor of Shreveport is limited by the provisions of Act
Defendant then filed an exception of no cause of action, which was referred to the merits, then answered as follows:
"Now comes George W. Hardy, Jr., Mayor of the City of Shreveport, made respondent herein, and reserving the benefit of the exception of no cause or right of action heretofore filed, and specifically denying all of the allegations of plaintiff's original and amended petitions, that are not hereinafter admitted, for answer to plaintiff's original and amended petitions and rule to show cause shows the Court:
"1. Article One is admitted.
"2. Article Two is admitted. Except that it is denied that the proposition to vote on the ordinance was submitted to the electorate under the purported authority of any law or statute. In this connection respondent shows that said proposition was submitted to the *Page 525
electorate under the valid and legal authority of Section 14 of Act No.
"3. Article 3 is admitted, except that part of the allegation which alleges that ordinance No. 39 of 1932, purports to create a department. In this connection respondent shows that ordinance No. 39 of 1932 did in law and in fact create a department styled the Department of Conservation and Enforcement on Cross Lake and an office described therein as `Superintendent of Conservation and Enforcement on Cross Lake' to be elected by the Council upon the nomination of the Mayor, as set forth in Article 3 of the petition.
"4. Article 4 is denied as written. However, it is admitted that Cross Lake as the source of the water supply of the City of Shreveport is essential to the water system therein. In this connection respondent avers that Cross Lake is used by the citizens of Shreveport for purposes other than that of the water supply, to-wit: Fishing, boating and other types of recreation. Prior to the adoption of Ordinance No. 39 of 1932, the general supervision and control of Cross Lake and the inspection of said lake and the drainage area contiguous thereto were vested in the Public Safety Department, the Public Utilities Department and in the Board of Health which is and has been for many years under the supervision of the Mayor, by virtue of the provisions of Act No.
"5. Article 5 is denied as written. However, respondent admits that he, as Mayor of the City of Shreveport, acting under the authority of Ordinance No. 39 of 1932, did by letter notify petitioner that on October 15th, 1932, he (respondent) would assume supervision of Cross Lake and that after said date, he would through a Superintendent of Conservation to be nominated by him as Mayor, take charge of such work and the property of the city upon the lake.
"6. Article 6 is denied. However, it is admitted that respondent as Mayor will pursue the course of action indicated in his letter, which has been referred to in the petition, unless restrained by decree of Court."
"8. Article 8 of the original petition and the amendment of said article as set forth in the supplemental and amended petition are denied.
"9. Article 9 is denied.
"10. Article 10 is denied.
"11. Further answering, respondent shows that the letter written by him to the petitioner referred to in Article 5 of the petition was and is based upon the authority of Ordinance No. 39 of 1932, which is a legal and valid ordinance legally and validly adopted by the electorate of the City of Shreveport, pursuant to the provisions of Act No.
"Wherefore, respondent prays that plaintiff's rule be recalled and the suit dismissed at his cost.
"Respondent further prays for all equitable and general relief."
On the issues as made up the case was tried below, and there was judgment for defendant, rejecting the demands of plaintiff; from this judgment plaintiff has appealed. There is no answer to the appeal; therefore, the exception of no cause of action is not before us for consideration, but in this court defendant has filed a motion to dismiss the appeal for the reason that this court is without jurisdiction ratione materiæ to hear and determine the issues in this case. The motion is based on the ground that appellant is seeking to vindicate a political right which concerns the exercise of his power as a governmental official and that appellant has not shown that he has suffered a deprivation of property or civil rights, and therefore the courts are without jurisdiction to hear and determine the case.
The motion to dismiss is not well founded and is overruled under the authority of the following cases: Guillotte v. Poincy, 41 La. Ann. 333, 6 So. 507, 5 L.R.A. 403; Dastugue v. Cohen,
Plaintiff alleged that he was rightfully exercising certain powers and duties as commissioner of public utilities, and that defendant, acting under an ordinance which was illegal, was attempting to take away from his department certain of the powers and duties that rightfully belonged to him, as commissioner of public utilities; that he was entitled to be protected in his right to exercise the alleged powers and duties until the question of who rightfully should exercise those powers and duties was established.
The lower court did not pass upon the right of plaintiff to a temporary injunction, but upon hearing of the rule nisi, passed upon the merits of the case. No objection to the manner in which the case was disposed of below has been raised here. The case in this court is treated by all parties as though it was regularly disposed of below and we will so treat it.
"(b) The right to determine and define powers under Act
Generally, the power of referendum was intended to apply solely to the legislative powers of the city, and, in the absence of a very clear declaration to the contrary, it must be presumed that the power of referendum applies only to the legislative powers of a city and not to the administrative and executive powers. Act No.
Executive or administrative matters are not subject to referendum, and not all legislative matters. See note L.R.A. 1917B, 22.
"While, as is shown below, the initiative and referendum applies only to legislative matters as distinguished from administrative or executive, not all legislative matters are within its scope. Thus, although a resolution of the board of trustees of a municipality, establishing the grades of certain streets and avenues thereof, is legislative in character, it has been held not subject to a referendum, on the theory that the inevitable effect of applying the referendum to such a matter would be greatly to impair or wholly destroy the efficacy of the statutes providing for the establishment and improvement of streets, and also upon the theory that such an improvement is of a special and local nature, in which only those interested were intended to have a voice."
We therefore construe section 14 of Act
Acts constituting a declaration of public purpose, and making provisions for ways and means of its accomplishment, may be generally classified as calling for the exercise of legislative powers. Acts which are to be deemed as acts of administration and classed among those governmental powers properly assigned to the executive department are those which are necessary to be done to carry out legislative policies and purposes already declared by the legislative body, or such as are devolved upon it by the organic law of its existence. McKevitt et al. v. City of Sacramento,
Ordinance 39 of 1932, under attack in this suit, was for the purpose of carrying out the legislative policies already declared by Act No.
1. Department of public affairs and education;
2. Department of accounts and finances;
3. Department of public safety;
4. Department of public utilities;
5. Department of streets and parks.
It then declared that the council shall determine the powers and duties to be performed by and assigned them to the appropriate department. The lawmakers declared that the councilshall, not may. It is an express declaration and is mandatory. It was the duty of the council to assign the powers and duties to be performed by each department. They were not given the right to decide whether or not they would assign the powers and duties to be performed by each department, but were obliged to do so. The assigning of the powers and duties to be performed by each of the five departments was necessary to carry out the legislative policies and purposes declared by act No. 302 of 1910, and devolved upon the council by the very act of the Legislature that authorized the existence of a commission form of government in the city of Shreveport. Ordinance No. 39 of 1932 pertains solely to facilitating the performance of the business of the city and involves only the proprietary and business functions *Page 527 of the city. It is not a declaration of public purpose and is purely an administrative matter, relating to daily administration of municipal affairs.
In Long v. City of Portland,
"Legislation as here contemplated must be considered in the sense of general laws, namely, rules of civil conduct prescribed by the lawmaking power and of general application."
The assigning of the powers and duties to the different departments was originally done by resolution on November 14, 1910. It could legally and properly be done by resolution, instead of ordinance, and this in itself is a test of whether the act of defining the powers and duties is administrative or legislative, for any matter that is legislative must be enacted by ordinance. It must be remembered that Act No.
The fact is that it could have been done by resolution and is therefore not a legislative act and not subject to referendum. McQuillin, Municipal Corporations (2d Ed.) vol. 2, pp. 523, 524, par. 663; People ex rel v. Mount,
If the electorate of the city had the right of referendum on an ordinance or resolution assigning the powers and duties of the different departments of the city government, they would likewise have the right to propose an ordinance to repeal any resolution or ordinance assigning the duties and powers and could thereby prevent the council from assigning the powers and duties in any instance, and by the exercise of the right of referendum, thereby nullify the mandatory provision of Act No.
"It was in obedience to the mandatory terms of that section of the law that the city council, by the resolution of the 14th of November, 1910, assigned the superintendence of the police department to the superintendent of the department of public safety."
Our finding on this question will alone dispose of this case, but due to the fact that the case involves other questions of considerable public interest, we prefer to pass on them.
The next attack on the ordinance is as follows:
"(c) Act
Section 5 of Act
This is an express mandate to the mayor and council to elect the necessary officers for the proper and efficient conduct of the affairs of the city. The text of the act leaves no doubt in our mind that the Legislature intended that this mandatory provision be carried out, for it actually fixed the time when it should be done, at the first meeting of the council or as soon thereafter as practicable. If it was necessary to elect officers not named in the act, as a superintendent of conservation and enforcement on Cross Lake, and to do so was not violative of Act No.
It therefore follows that the authority to create a department of conservation and enforcement on Cross Lake could not be delegated by the council to the people under the referendum. Furthermore, the creation of such a department, if allowed by law, was strictly an administrative matter, the same as creating an assistant city attorney, or any other officer necessary to the efficient conduct of the business of the city, and was not subject to referendum. The act gives the right to the council to create the necessary subordinate offices and necessarily carries with it the right to abolish the offices so created, when such offices become unnecessary. This administrative power which is given to the council by the act would be annulled if the electorate by referendum were allowed to create subordinate offices, as the act specifically declares that any ordinance voted in referendum election cannot be repealed, except by vote in a referendum election.
We therefore find that Ordinance 39 of 1932, of the city of Shreveport, passed by referendum vote, is illegal and void wherein it created the subordinate office of superintendent of conservation and enforcement on Cross Lake.
The next two attacks on the ordinance are as follows:
"(d) The Act of 1910 requires the functions of municipal government to be appropriately assigned among five departments and the supervision of Cross Lake, as a source of water supply, cannot be appropriately assigned to a department other than the Department of Public Utilities"; and
"(e) The supervision of Cross Lake cannot, under the Act of 1910, be appropriately assigned to the Mayor of the City, whose authority is restricted by the Act of 1910 to Public Affairs and Education."
Our finding under attack (d) necessarily disposes of the other attack. We will therefore treat them together.
Act No.
The one most important duty the commissioner of public utilities has to perform is not only to see that the inhabitants of the city are supplied with water, but to know that they are supplied with pure, wholesome water and in the quantity necessary for their needs. To take from him and his department the superintendence of Cross Lake, the only source of supply of water for the city, would prevent him from performing the most important duty of his office and of his department. The superintendence of Cross Lake necessarily must be in the commissioner of public utilities, in order for him to properly perform the duties the law requires of him.
Appellee, in brief, contends that it is not mandatory that the supervision of Cross Lake be assigned to the department of public utilities merely because the city charter authorized the duties of the municipal government assigned to appropriate departments, and that the superintendence of the water supply and drainage area can be and is an appropriate function of the board of health. He further contends that Act No.
The acts of the Legislature quoted in stating the case provide for the transfer of the basin of Cross Lake to the city of Shreveport and define the purposes for which it is to be used and the conditions. The purpose for which it is to be used is fixed in Act No.
Act No.
Section 4 of Act No.
The sole delegation of power to the city to make laws and enforce them on Cross Lake, which is outside the city limits, is given it by the acts above enumerated. The city can only exercise those powers outside the territorial limits of the city that are expressly granted to it and which are necessarily incidental to such expressed grant. McQuillin, Municipal Corporations (2d Ed.) vol. 1, p. 703, par. 279, citing cases from Alabama, Colorado, Georgia, Illinois, Kentucky, Maryland, Michigan, Minnesota, Oregon, Pennsylvania, South Carolina, Texas, West Virginia, and Virginia.
It therefore follows that the city of Shreveport can only make such ordinances and enforce them on Cross Lake as are needful for the protection of the waters of the lake from pollution and contamination, and that are necessary to maintain a sufficient supply of water, such as to prevent the destruction of the dike or the damming up of the tributaries within the boundaries of the grant, etc. Its authority extends no farther. It therefore follows that the jurisdiction of the council to enforce regulations upon Cross Lake is incidental to the satisfactory functioning of the municipal water system; that the lake is the only source of water supply and is the most important part of the water system and cannot be divorced from it.
It is certainly not one of the exclusive appropriate functions of the board of health to see that the supply of water is sufficient in quantity to provide for the needs of the citizens of the city, and not one of its functions to protect the dike from being destroyed. This is an appropriate function of the department of public utilities. Act No.
The question of the duties of the superintendent and enforcement officer on Cross Lake, as to the enforcement of the game and fish laws, we will pass as unnecessary to be discussed, due to our finding that the city of Shreveport can only make such ordinances and enforce them on Cross Lake as are needful for the protection of the waters of the lake from pollution and contamination, and that are necessary to maintain a sufficient quantity of water supply.
The Supreme Court of this state, in the case of Dawkins v. Bazer,
"Our opinion is that the city council could not, without doing violence to the requirements of section 4 of Act
Ordinance No. 39 of 1932, section 2, provides, among other things, that the mayor shall be superintendent of the department of conservation and enforcement on Cross Lake and that he shall make rules and fix policies for the proper conduct of said department. It further provides that a superintendent of conservation and enforcement on Cross Lake shall be elected by the city council, on the nomination of the mayor, and he shall be under the supervision and control of the mayor. It further provides that the superintendent of conservation and enforcement on Cross Lake shall have full charge of the patrolling of Cross Lake and of the enforcement of laws and ordinances with reference thereto which have been or may be adopted by the council.
On September 30, 1932, the mayor, defendant herein, by letter to plaintiff, stated as follows:
"Under this authority, it is my intention to assume the duties imposed upon me with reference to supervision of Cross Lake on October 15th. * * *
"On or before that date, I will present detailed plans for the approval of the council. Meanwhile you are advised, that effective October 15th, the services of those employees of your department who have been charged with these duties will not longer be necessary under your supervision. * * *
"I plan to place the administration of these matters under the Department of Health, and all employees charged with the performance of necessary duties under this provision will hereafter come under that department."
On trial of the case, the mayor testified that he wrote the letter for the purpose as set forth therein and that he intended to do the things stated in the letter, and would do them unless he was enjoined by the court. He further testified that his intended acts would take from the department of public *Page 531
utilities supervision and enforcement of the ordinances and regulations now existing. It is clear that Ordinance 39 of 1932, and as interpreted by the mayor, and his intended acts, if carried out, as disclosed by his letter and his testimony, would deprive the commissioner of public utilities of entire supervision and control of Cross Lake, the source of the water supply of the city of Shreveport, and a component part of the water system, a public utility belonging to the department of public utilities, and is in direct conflict with the provisions of Act No.
We see no necessity for discussing and passing on the other attacks made on the ordinance by plaintiff, that is, that the council was without power to create the department of conservation and enforcement on Cross Lake.
The judgment of the lower court is incorrect and is therefore reversed. The plaintiff is entitled to the relief prayed for; and injunction should have issued, as prayed for, enjoining, restraining, and prohibiting defendant from proceeding to assume supervision of Cross Lake and to nominate a superintendent of conservation and enforcement on Cross Lake; and from interfering with the commissioner of public utilities in exercising the power of superintendence of Cross Lake.
It is therefore ordered, adjudged, and decreed that the judgment of the lower court refusing to issue the injunction in this case be annulled and set aside, and it is now ordered that the injunction issue, as prayed for, enjoining, restraining, and prohibiting defendant, George W. Hardy, Jr., mayor of Shreveport, from proceeding to assume supervision of Cross Lake, and to nominate a superintendent of conservation and enforcement on Cross Lake, and from interfering with the plaintiff, commissioner of public utilities, in exercising the right of superintendence of Cross Lake; and this case remanded to the lower court for that purpose.
Hopping v. Council of City of Richmond , 170 Cal. 605 ( 1915 )
Chase v. Kalber , 28 Cal. App. 561 ( 1915 )
McKevitt v. City of Sacramento , 55 Cal. App. 117 ( 1921 )
Dawkins v. Bazer , 172 La. 327 ( 1931 )
Oakman v. City of Eveleth , 163 Minn. 100 ( 1925 )
Murphy v. Gilman , 204 Iowa 58 ( 1927 )
Brazell v. Zeigler, County Clerk , 26 Okla. 826 ( 1910 )
Dallas Railway Co. v. Geller , 114 Tex. 484 ( 1925 )