Ring v. Labranche

[306] The opinion of the Court was delivered by Todd, J. The plaintiff appeals from a judgment dissolving, with damages, an injunction to restrain the collection of licenses demanded of him for six flumes constructed by him, and inserted in the public levee on the Mississippi river, for the purpose of irrigating his plantation in the Parish of St. Charles, on which crops of rice are grown. The flumes were inserted, by permission of the proper parochial authority, prior to the year 1880. The licenses mentioned were imposed by an ordinance of the Police Jury, passed in 1881, under authority of Act of the General Assembly No. 88 of 1880. The payment of the licenses is resisted on the ground that the Act in question is unconstitutional, and the ordinance consequently illegal, null and void. The Act 88 referred to is entitled': “ An Act to provide for the-protection and preservation of completed public levees in conjunction with the Police Juries of the several parishes of the State, to prescribe the manner in which levees may be cut for rice flumes, roads and machinery, and to provide means for the expenses attending this ivorlc, and to provide penalties and punishments for the violations of the provisions of this Act, and for violations of parochial ordinances made in conformity with this Act.” The following are some of the Sections of the Act bearing on the question at issue: Section first provides : “That the Police Juries of the several parishes of this State are hereby invested with the management and control of all completed public levees of this State which may require public care, for protection and preservation, and they are hereby authorized and required to malee such laws as may be necessary and proper for their repair, preservation and protection, and to regulate the manner in which the same may be cut for rice flumes, or other purposes.” . - Section fifth provides :■ “ That tlieBoard of State Engineers shall prepare plans for rice flumes, to which all flumes must conform ; and that no one shall be permitted to insert in any public levee, any flumes or piping to be used in flushing rice fields or other purposes, unless, upon written application of the owner of the land, he shall have obtained the consent of the Police Jury, where the levee may bb located, to permit him to make or use said flume or piping.” Section 6 enacts: “ That in addition to the conditions prescribed in the preceding Section, the party applying for permission to cut the levee, and insert therein flumes or piping, shall pay previously into the .Parish Treasury an annual license on each and every flume or piping used for the cultivation of a crop, a sum not exceeding the rate [307] of two dollars and fifty cents for every perpendicular foot of levee cut, counting from the bottom of the ditch or flume to the crown of the levee; and this license shall equally apply to rice flumes already in use at the passage of this Act; and the same shall be due and payable between the first day of May and the first day of October, annually; and should any person fail to pay said license by that latter date, he shall forfeit his right to the said flume, and the same shall be closed at his expense.” Section 9 pointedly says: “ That all money paid into the Parish Treasury for license for rice flumes, and for fines arising from convictions, as provided by the preceding Section, shall be set aside and used exclusively in taking out old and abandoned flumes, and restoring the original condition of ike levee, and for expenses of superintendence, and administration.'''1 Section 10 provides for the appointment of a Levee Inspector and Superintendent of the construction of all new rice flumes and other cuts; for his services he is to receive one-half of all sums annually collected from flume licenses. Section 11 takes care to provide: “That nothing in this Act shall be so construed as to give any individual a proprietary right in any public levee of the State, by the act of his paying any license for the privilege herein granted, and if the Board of Engineers or Police Jury, at any time, should condemn as unsafe any such opening- in the levee, the license for the same shall be revoked on the return to the party of the full amount of the license which may have been paid for such privilege, and said authorities may, at any time, when any flume shall become unsafe, from decay of material or other cause, require the person using it to have same taken up and replaced in -a secure and substantial manner, and they shall also require all parties to drain off from the foot of the levee, on the land side, the .water that may accumulate there flowing from the flumes that they may use.” It is charged that, among other Articles of the State Constitution that the above Act is obnoxious to, it violates Art. 29, requiring that every law shall embrace but one object, and that object to be expressed in its title, and Art. 203, providing that taxation shall be equal and uniform. In the case of Weise vs. Thibault, 34 An. 556, where the same question was presented, we held that the Act did not contravene either of these Articles. It is also contended that the Act violates several other provisions of the Constitution, but the argument of counsel renders a consideration only of the.following additional Articles necessary. 1. It is charged that it violates Article 206, because it is a tax on [308] agriculture, one of the occupations or pursuits exempted by said' Article; and because it contravenes a further provision of the same Article, which declares that no political corporation shall impose a greater license than is imposed by the General Assembly for State purposes. We cannot from any standpoint íegard the license in question as a tax on agriculture or rice planting, as contended. Under the general laws conferring authority on the Police Juries over public levees looking to their preservation and repair, apart from the special statute referred to, it is obvious that they, the Police Jnries, could absolutely prohibit the insertion of the flumes described in the levees. Indeed, it might be plausibly argued that the digging into the levees, necessary for the construction of these flumes, was hardly consistent with the duty imposed on the parochial authorities for their preservation. Such a process would certainly seem to weaken them, or impair the efficiency of the protection they are designed to afford; and to permit this to be done by persons engaged in rice culture, on condition even of paying a licouse, so far from affording a ground of complaint as being' a tax on agriculture or rice planting, might be reasonably viewed as a diroot encouragement of this species of agriculture. And if such a privilege is granted in favor-of this particular pursuit, at the risk, to some extent at least, of injury to the-public levees, and of lessening the protection they afford to the entire parish from inundation, it is certainly just that a charge or license should, at the same time, be imposed to provide the means for the additional supervision and expense necessary to avert any danger from the granting of the privilege, and the cutting or digging into the levees which it permits. Nor is there any more force in the proposition that the ordinance imposing the liconso is illegal, for the reason that the State has imposed no such license. In fact, the proposition is founded upon a false assumption. The license, in truth, results directly and immediately from State legislation and may be properly viewed as imposed by State authority. As already shown by the Sections of the Act quoted, the State has committed the care and protection of the levees to the parishes, and because of this has required (quoting from the Act) “ that a party applying for permission to cut the levee shall pay previously into the parish treasury an annual license on each and every flume used for the cultivation of a crop.” In other words, the State has exacted the license but directs it to be paid to the parish, in order to furnish or augment the means required to meet the expense that the increased care, vigilance and supervision over the levees make necessary./ And it must be borne in mind that in this work of protecting and repairing and [309] guarding tlie levees, the parishes are but acting as State functionaries, and discharging in part the duties resting upon the State. It is manifest, therefore, that this case does not fall within the scope and purview of that of Graves vs. New Orleans, 34 An. 840. Iii that case the State did not impose for State purposes the license therein involved, and neither directly nor indirectly delegated any power to the parishes or cities to impose such alicense, and that by reason of such non-action and silenee on the part of the State, there was no warrant for the authority exercised in that instance. We find, therefore, that the Act in question is not in conflict with either clause of Article 206 of the Constitution.' 2. It is next contended that the statute is repugnant to Articles 204, 213 and 214, limiting or restricting taxation for levee purposes. It will plainly appear, from what we have said before, that this license cannot be construed to be for levee purposes, that is, for the construction or repairs of levees, but, on the contrary, is really a charge imposed on those who, for their own benefit and private purposes, may damage the levees by digging into them and inserting their flumes therein. The license was designed to raise the means to procure the necessary additional supervision over the levees and render effective the safeguards against the dangers that might result from such injuries to them. / 3. Article 210, which the Act is also charged with violating, does not refer to licenses, but to taxes on property. There are other objections contained in the pleadings to this Act and ordinance, but as they are not urged in argument, we deem it unnecessary to notice them further than to say that, after due examination, we find them without force. The damages should not have been allowed on the dissolution of the injunction. It was not an injunction taken out against a money judgment. 29 An. 630; 30 An. 742. In this respect the judgment must be amended. v It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be amended by rejecting the damages allowed upon the dissolution of the injunction, and as thus amended it be affirmed, costs of the lower court to be paid by the plaintiff and of this appeal by the defendants.