Dickson v. Hardy

DREW, J. The city of Shreveport, formerly governed •by the aldermanic form of government, availed itself of the provisions of Act No. 302 of 1910, and adopted the commission form of government, by which it is now governed. After adopting the commission form of government, and on November 14, 1910, in accordance with the provisions of section 4 of' Act No. 302 of 1910, the following resolution was adopted: “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, — 521 — Auditor, Red River Bridge, Fiscal Agent, Official Printing. “To the Superintendent of the Department of Public Safety: Fire Department, Police Department, Impounding Animals, Oity Jail, Dicense Clerk, Dog Tax, City Court. “To the Superintendent of the Department of Public Utilities: Cemeteries, Building Inspector, Plumbing Inspector, Traction 'Companies, Bights, 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. SI of 1910 authorized the registrar of. land office to sell and convey to the city of Shreveport the bed of what is known as Cross Lake, in Caddo parish, Da., and fixed the terms and conditions of said sale. Sections 3 and 4 of said act set out the conditions of the sale, as follows: “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. 149 of 1920 amended section 3 of Act No. 31 of 1910, as follows: “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. 39 of 1926 authorized the city of Shreveport to exercise certain regulations over Cross Lake, in the following language: “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 — 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. 302 of 1910, submitted to the council the ordinance by petition signed by the electors of the city in number to the percentage required by said act, and the ordinance was submitted to the people by referendum, to be voted on September 13, 1932. On that date a majority in number cast their votes in favor of the ordinance and the council promulgated the return, in accordance with the provisions of law. On September 30, 1932, the mayor of the. city of Shreveport, George W. Hardy, defendant herein, addressed the following letter to O. 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 bf 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 MeW. 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 res-, ident 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 302 of 1910, the proposition to vote for or against the adoption of an ordinance styled: ‘An Ordinance to formally de, fine determine-and assign the powers and duties to be performed by each of the fiv.e named departments of the city government under the provisions of law,’ a majority of persons vot — 523 — ing at such election voting in favor of the adoption of the ordinance, which had previously been presented to the City Council of the City of Shreveport and its passage there defeated by vote of four to one; that said ordinance, a copy of which is attached hereto and made part hereof, has been declared adopted and is referred to as Ordinance No. 39 of 1932. “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 basiely 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 Chat 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 May- or 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 unleés restrained by the decree of this Court.” “8. That Ordinance 39 of 1932, in so far as it purports to create a Departmént'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 ⅛⅜ 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 302 of 1910 requires that powers and duties of the municipal government shall be distributed among five departments and shall be assigned to appropriate departments ; that such provision is mandatory and that the supervision of Cross Lake, the source of water supply of the City of Shreveport, and the control of employees and property necessary therefor can be appropriately assigned only to the Department of Public Utilities. “(e) That the authority which can be delegated to the Mayor of Shreveport is limited by the provisions of Act 302 of 1910 to the superintendence of the departments of public affairs and education; and the assignment to the Mayor of the supervision of Cross Lake as provided for by Ordinance No. 39 is not appropriate to the functions which can be legally exercised by him. “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 Crqss 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 — 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 arid 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., arid 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 302 of 1910 the municipal government is divided into five departments to which must be appropriately assigned all powers and duties of government; that the right of the Council to. determine powers and duties is vested solely to carry out the legislative purpose and is restricted to administrative affairs within the separate departments; that the action of the Council under such administrative power is not subject to the referendum provided for by Act No. 302 of 1910. “(c) That Act 302 of 1910 delegates 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 cannot be exercised by plebiscite. “(d) That Act 302 of 1910 requires that powers and duties of the municipal government shall be distributed among five departments and shall be assigned to appropriate departments; that such provision is mandatory and that the supervision of Cross Lake, the source of water supply of the City of Shreveport, and the control of employees and property necessary therefor can be appropriately assigned only to the Department of Public Utilities. “(e) That, the authority which can be delegated to the Mayor of Shreveport is limited by the provisions of Act 302 of 1910 to the superintendence of the departments of Public Affairs and Education; and the assignment to the Mayor of the supervision of Cross Lake as provided for by Ordinance No. 39 is not appropriate to the functions which can be legally exercised by him.” 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 alie*-gations 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. — 525 — electorate under the valid and legal authority of Section 14 of Act No. 302 of 1910. “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. 39 of 1932. Respondent further shows that all ordinances heretofore adopted by the City Council with reference to the control and authority of the city government over the waters of Cross Lake and its drainage area have had for their intent and purpose the protection of said waters from contamination and pollution, the conservation of fish and game in and around the waters of Cross Lake, and the preservation of the general peace and safety of the people of the City of Shreveport in their use and enjoyment of said body of water and its environs. “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 Ño. 302 of 1910. “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 matérise 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 ease. The motion to dismiss is not well founded and is overruled under the authority of the following eases;. Guillotte v. Póincy, 41 La. Ann. 333, 6 So. 507, 5 L. R. A. 403; Dastugue v: Cohen, 14 La. App. 476, 131 So. 746, and authorities cited; also State ex rel. Trainor v. St. Paul, 111 La. 714, 35 So. 838. 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 th.e 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.