City of New Orleans v. de St. Romes

Ogden, J. (Spoffoed, J., not taking part in the case.) The Sd section of the Act of the Legislature of 1852, providing for the subscription by the parishes and municipal corporations of the State to the stock of corporations undertaking works of internal improvements, is in the following words: “That no ordinance passed under the provisions of this act, shall be valid or take effect, until it shall have been approved and ratified by a majority of the voters, on whose property the tax is proposed to be levied, at an election to be held specially for that purpose, by order of the police jury or municipal corporation passing the ordinance; and said police jury or municipal corporation shall prescribe the manner of holding such election, and shall cause to be furnished to the commissioners of the same, a properly certified list of the authorized voters; and such election shall be preceded by a notice of thirty days, published in one or more newspapers in the parish or municipal corporation where such election shall be held. Provided, however, that if such ordinance shall be rejected by the majority of the voters, it shall be lawful, at any subsequent period, again to take the sense of the voters, in the same manner as at the first election, and at intervals of not less than six months.” The defendant being sued for the tax levied on her property, to meet installments due by the city on their subscription to the stock of the New Orleans, Jackson and Great Northern Railroad Oompanjq and of the New Orleans, Opelousas and Great Western Railroad Company, in conformity with an ordinance of the common council, resists the payment on several grounds, as set forth in an original and supplemental answer. There are three grounds taken in the answer first filed, to wit: 1st. “ She denies that the- city has ever subscribed to the stock of the railroad companies aforesaid. 2d. “ That if it has so subscribed, she denies that it has any authority of law to do so, and that all its acts, in relation to said pretended subscription if made, are null and void. 3d. “ That if it has made any such subscription, that she is neither in law nor in equity liable to pay any portion thereof.” The defence, so far, extends only to a denial that there was any subscription to stock by the city, and of the existence of any law and of any ordinance of the council, authorizing such subscription. The subscriptions to the stock of both companies, by two separate ordinances, and the acceptance of those subscriptions by the companies, are shown by the evidence, and the real de-fence relied on by the council, is that contained in the supplemental answer, and is expressed in the following words: “ That under the city’s subscription alleged, if any such exist, she (the defendant) cannot in any manner or form, be held liable to the said city of New Orleans, inasmuch as it does not appear that said municipal corporation ‘ caused to be furnished to the commissioners of the election, to be held under the provisions of the Act of the Legislature, approved March 12th, 1852, a properly certified list of the authorized voters,’ as said corporation was bound to do, in order to the validity of the ordinances referred to in plaintiffs’ suit; or, in fact, that said corporation furnished any list whatever to said commissioners, that satisfied the provisions of said law, but that, on the contrary, many hundreds of persons voted at the [577] said election, who were not the owners of real estate, who were not on the assessment rolls as such, and who were not on any list, however defective, which may have been furnished to the commissioners by said corporation, and that the whole election is therefore null and void.” As it is not alleged in this answer, and is not shown by the evidence that a sufficient number of illegal votes were received to affect the result of the election, the defence may be considered as resting on the alleged failure of the municipal corporation to cause to be furnished to the commissioners of the election, a properly certified list of the voters, which it is contended was a prerequisite by the Act of the Legislature to the validity of the ordinance, and the election to be held under it. It is our duty to ascertain the intention of the Legislature, and to give effect to it; if it was their intention, according to a fair and liberal construction which we are bound to give to an act passed by them, with a view to the accomplishment of great public good, by the promotion of internal improvements, that the furnishing a properly certified list of the authorized voters to the commissioners, should be a condition precedent to the validity of the election, and such list was not furnished, then it would be our duty to pronounce the election null and void. If, on the other hand, that clause in the act, according to such construction, ought to be viewed as merely directory, we should be usurping the power of the Legislature by declaring a consequence to follow from the omission to comply with their direction, which they did not think proper to declare themselves; and which, if such had been their intention, it was their duty to have expressly declared, unless from the nature of such preceptory clause in the law, such intention was sufficiently manifest without being declared. The intention of the Legislature is expressed in this section of the act, that the ordinance shall not be valid, until it shall have been approved by a majority of the voters on whose property the tax is to be levied, at an election to be held for that special purpose, by order of the corporation ; that part of the law is prohibitory' — the corporation are prohibited from enforcing the ordinance for the collection of the tax, until they had caused the same to be approved by a majority of the authorized voters, at an election to be ordered by them — it is a prohibition made in the interest of the tax payers — and if it could be shown that at the election so held, unauthorized votes had been received to a sufficient number to have affected the result, the election, which resulted in favor of the tax, would be declared null, and a prerequisite of the law not having been complied with, the ordinance would not take effect. Is the intention expressed in the same manner, or can such intention be reasonably inferred, that a failure to comply with the formality prescribed in the subsequent part of the section, of furnishing to the commissioners a certified list of the voters, should prevent the ordinance from taking effect, although approved and ratified by a majority of the votes cast at the election. The intention is not expressed by the Legislature, and from the nature of that part of the law which appears to us to be directory, such intention cannot be inferred on legal principles, applicable to the interpretation of statutes. The rule is, that when a formality is not absolutely necessary for the observance of justice, but is introduced to facilitate-its observance, its omission, unless there is an annulling clause in the law, will not annul the act. Touillier, vol. —. The object of the Legislature was to facilitate the observance by the com [578] missioners of justice in regard to the admission or rejection of votes. The act does not say by whom the list of authorized voters should bo certified. As no registry of voters existed, such list, no matter by whom certified, would only have furnished a partial guide to the commissioners, as there would necessarily have been many persons legally entitled to vote as owners of property, on whom the tax was to be levied, and whose names were not on the last assessment roll, which was the only official document from which any list could be made. A literal compliance with the law in that respect, was impracticable. The evidence show's that copies of lists of voters from the last assessment roll were furnished, and if this part of the law, which we consider as separate from that which contains a condition precedent, was not literally complied with, either because it was impracticable, or because the proper authorities neglected their duty. Considering it to be merely directory, we cannot construe that provision into a condition precedent. See case of Whitney v. Emmet, 1 Baldwin’s C. C. R. 316. It is therefore ordered and adjudged, that the judgment of the court below be reversed ; and that there be judgment in favor of the plaintiffs for the sum of four hundred and fifty-five dollars, with eight per cent, per annum interest thereon, from the 1st of July, 1853, until paid; and also five per cent, commissions, to w’it, the sum of twenty-two dollars and seventy-five cents, to be paid to the Assistant Attorney of the city, and that the defendant pay the costs in both courts.