My opinion is that Act No. 36 of the 2d Extra Session of 1934 is unconstitutional, for the following reasons:
First. The changing of the membership or composition of the sewerage and water board, by doing away with the seven resident taxpayers of New Orleans as members of the board and by placing on the board eight appointees of the Governor, violates one of the conditions on which the tax was levied and the bonds were issued, under the provisions of Act No. 6 of the Extra Session of 1899, which, by the constitutional amendment adopted pursuant to Act No. 4 of that session, became a part of the Constitution of 1898, and which has been expressly retained as a part of the Constitution, today, in section 23 of article 14 of the Constitution of 1921.
Second. The changing of the membership or composition of the sewerage and water board, so that some of the members — in fact a majority of the members — shall be appointees of the Governor, violates the so-called home rule clauses in section 22 of article 14 of the Constitution, which, in plain terms, declares that the electors of the city of New Orleans shall have the right to choose the municipal or local officers, and that the Legislature shall not authorize the appointment otherwise of any local board *Page 211 or commission with the authority "of controlling the ordinary governmental functions of municipal government."
Third. So far as Act No. 36 of the 2d Extra Session of 1934 attempts to place on the sewerage and water board, to be selected as members ex officio, eight members of other boards, some of whom are not required by law to be residents or electors of the city of New Orleans, and some of whom are in fact required by law to be residents and electors elsewhere in the state, the Act No. 36 violates the electoral qualifications prescribed in section 1 of article 8 of the Constitution, and violates section 13 of the same article of the Constitution (1921); which declares that no person shall be eligible to any office, state, district, parochial, municipal, or ward office, who is not a duly qualified elector of the state, district, parish, municipality, or ward, wherein the functions of the office are to be performed.
Fourth. The attempt, in Act No. 36 of the 2d Extra Session of 1934, to remove the seven resident taxpayers from membership of the sewerage and water board, is violative of section 9 of Act No. 6 of the Extra Session of 1899, which has become a part of the Constitution, and which declares, as one of the conditions on which the tax was voted and the bonds were issued: "That the members of said board shall be removed from office only in the manner and for the causes enumerated in Articles 217 and *Page 212 222 of the State Constitution." Articles 217 and 222 of the Constitution of 1898, and the corresponding articles of the Constitution of 1913, prescribed the causes for removal of a public officer from his office, and prescribed the mode of procedure. The same provisions, substantially, are retained in sections 1 and 6, respectively, of article 9 of the Constitution of 1921, the causes for removal being declared to be (1) high crimes and misdemeanors in office, (2) incompetency, (3) corruption, (4) favoritism, (5) extortion or oppression in office, (6) gross misconduct, and (7) habitual drunkenness. Inasmuch as these provisions of the Constitution would have been sufficient authority for the removal of any member or members of the sewerage and water board for malfeasance or misfeasance, without any mention of the fact in Act No. 6 of the Extra Session of 1899, it is obvious that the only purpose of section 9 of the statute was to emphasize that there should be no change made (especially without a constitutional amendment) in the membership or composition of the sewerage and water board, as fixed in the statute, and as embedded in the Constitution, as one of the conditions on which the tax was levied and the bonds were issued.
Fifth. Act No. 36 of the 2d Extra Session of 1934, in abolishing this condition on which the tax was voted and the bonds were issued — that there should be always seven resident taxpayers of *Page 213 New Orleans as members of the sewerage and water board — impairs the obligation of the contract between the city of New Orleans and the taxpayers, and of the contract between the city of New Orleans and the bondholders, and is therefore violative of section 10 of article 1 of the Constitution of the United States, as well as of section 15 of article 4 of the Constitution of Louisiana 1921.
What the Legislature has attempted to do by Act No. 36 of the 2d Extra Session of 1934 is what the Legislature attempted to do by Act No. 111 of 1902; that is to say, to amend section 8 of Act No. 6 of the Extra Session of 1899, so that a majority of the members of the sewerage and water board would be appointees of the Governor, instead of a majority of the members of the board being resident taxpayers of the city of New Orleans, appointed by the mayor. By the act of 1902 the Legislature did not attempt to do away with the seven resident property taxpayers as members of the board, but attempted merely to add, as ex officio members of the board, three members of the board of commissioners of the Orleans levee district, the chairman of the board of health, a member of the board of commissioners of the Port of New Orleans, and the commissioner of labor and statistics. Soon after the act of 1902 was passed, and before it could go into effect, a property taxpayer in New Orleans, the late Eugene D. Saunders, a distinguished member *Page 214 of the bar, obtained a writ of quo warranto against the six newly-added members of the sewerage and water board, challenging their right to take office as members of the board. The case is reported as State ex rel. Saunders v. Kohnke et al., 109 La. 838, 33 So. 793. The basis — and the only basis — of Mr. Saunders' suit was that the act of 1902 was unconstitutional, for the several reasons for which the Attorney General here, on behalf of the state and on behalf of the taxpayers and bondholders of this city, contends now that Act No. 36 of the 2d Extra Session of 1934 is unconstitutional. This court rendered a very thorough and well-considered opinion in the case of State ex rel. Saunders v. Kohnke et al., holding that the act of 1902 was unconstitutional, so far as it undertook to change the membership or composition of the sewerage and water board, for the following reasons: First, that the change was violative of one of the conditions named in the taxpayers' petition to the city council to levy the tax, which petition — with the conditions named in it — became a part of Act No. 6 of the Extra Session of 1899, and which, by virtue of the constitutional amendment adopted pursuant to Act No. 4 of that year, became a part of the Constitution itself; second, that the act of 1902 was violative of the so-called home rule clauses in the Constitution, being articles 319 and 320 of the Constitution of 1898, reserving to the inhabitants of *Page 215 the city of New Orleans the right to choose their local or municipal officers; and, third, that, inasmuch as one of the newly-added and ex officio members of the sewerage and water board was not required to be an elector of the city of New Orleans, the act of 1902 was violative of the articles of the Constitution prescribing the electoral qualifications for public officials, and particularly article 210 of the Constitution of 1898, declaring that no one should be eligible to a municipal office unless he was a qualified elector of the municipality in which the functions of the office were to be performed. As to this latter ground of unconstitutionality of the act of 1902, the court said, in 109 La. 838, on page 874, 33 So. 793, 807:
"In opposition to this contention it is said that the incumbent of the office for the time being happens to be an elector of the parish of Orleans, and that, therefore, the complaint is groundless. This reply is fallacious. It is not the present incumbent individually who is made a member [of the Sewerage and Water Board], but the incumbent of the office [as a member of the other board], whoever he might be; and to be an elector of the parish of Orleans is not prescribed among the qualifications of the incumbent of the office [as a member of the other board]. This ground of unconstitutionality must be sustained. Whether it involves the unconstitutionality of the entire act is a question the determination *Page 216 of which is not necessary to the decision of this suit."
I respectfully submit, therefore, that, so far as Act No. 36 of the 2d Extra Session of 1934 undertakes to allow the placing upon the sewerage and water board of the city of New Orleans of nonresidents of the city, appointed by the Governor, the statute is violative of the articles of the Constitution prescribing the electoral qualifications for public officials, and particularly the provisions of section 13 of article 8 of the Constitution. I do not find a sufficient answer to that proposition in the majority opinion rendered in the present case. It is said in the majority opinion here that it seems that the operation of the sewerage and water system of the city of New Orleans is not an ordinary governmental function of municipal government, because it vitally affects the health and the lives of the people throughout the state; and because the board has extended its lines beyond the city limits, so as to furnish water in two adjacent parishes, Jefferson and St. Bernard. Hence, it is said that the functions of the sewerage and water board of the city of New Orleans are "not purely local." From these statements in the majority opinion I infer that the majority of the members of the court take the position that the members of the sewerage and water board of the city of New Orleans are not local or municipal officers, but state officers, who may, by legislative enactment, and without constitutional *Page 217 amendment, be made appointive, by the Governor, from any part of the state. Of course, if the members of the sewerage and water board of the city of New Orleans were not local or municipal officers, but state officers, the Legislature might, without violating the constitutional requirements for eligibility to public office, authorize the Governor to appoint, as some or all of the members of the sewerage and water board of the city of New Orleans, residents of the parish of Caddo, or of the parish of Cameron, or of any other parish in the state. We know very well that a Governor would never do that if he had the authority to do it, and that the Legislature would never give him the authority to do it if the Legislature could give it. But the question before the court now is whether the Legislature can, without constitutional amendment, authorize the appointment, by the Governor, as ex officio members of the sewerage and water board of the city of New Orleans, nonresidents of this city. As evidence of the importance of these safeguards in our Constitution, we had occasion very recently to observe that the Legislature, by Act No. 20 of the 1st Extra Session of 1935, changed the membership or composition of the board of commissioners of the police department of the city of New Orleans, by amending section 16 of the city charter (Act No. 159 of 1912), and by placing on the board, as ex officio members thereof, the president of the state board of *Page 218 health and the commissioner of the department of conservation. These two new members of the board of commissioners of the police department of the city of New Orleans constitute a quorum or majority of the members of the board; and neither of them is required by law to be a resident of the city of New Orleans in order to be eligible to the office which makes him, ex officio, a member of the board of commissioners of the police department of the city of New Orleans. In fact, as far as I remember, neither the president of the state board of health nor the commissioner of the department of conservation was ever a resident of the city of New Orleans until the present incumbents were appointed. Hereafter, the Governor will be compelled by law always to appoint a resident of the city of New Orleans to the office of president of the state board of health, and another resident of the city of New Orleans to the office of commissioner of the department of conservation, in order to avoid the anomaly of having the board of commissioners of the police department of the city of New Orleans composed partly — and perhaps mainly — of nonresidents of the city of New Orleans. That arrangement does not seem to me to be politically advantageous, either to the inhabitants of New Orleans or to the inhabitants of any other part of the state of Louisiana. I mention this illustration merely to demonstrate that it was to avoid the possibility of such an anomalous *Page 219 condition that the framers of the Constitution adopted the provisions requiring that, in order for a person to be eligible for any particular parochial or municipal office, he must be a resident of the parish or municipality in which the functions of the office are to be performed. That provision in the Constitution is violated by Act No. 36 of the 2d Extra Session of 1934, if the members of the sewerage and water board of the city of New Orleans are local or municipal officers, as distinguished from state officers. That the sewerage and water board is only a local or municipal board, whose members are only local or municipal officers, was decided point blank in the case of State ex rel. Saunders v. Kohnke et al. On that subject, the court, speaking through Justice Provosty, said:
"By the statute of its creation it [the Sewerage and Water Board] is given a name. It is given a domicile, since, from the force of circumstances, its domicile cannot be other than the city of New Orleans. * * *
"Since the writ of quo warranto does not issue to state officers, it becomes necessary to determine whether this board is an agency of the state or of the city of New Orleans. The matter, in our opinion, is free from difficulty. The board was created at the request of the city of New Orleans, or of the taxpayers of the city of New Orleans, for the purpose of administering affairs strictly local *Page 220 and municipal. Those of the members who are appointed receive their appointment from the mayor. The other members are mostly the officers of the city. But, apart from all this, the following excerpt from the same authoritative work [Dillon] on the law of [municipal] corporations clearly fixes the character of this board as a municipal agency, to wit:
"`Questions have arisen under special constitutional provisions respecting the authority of the Legislature over municipal offices and officers. And here it is important to bear in mind the before-mentioned distinction between state officers — that is, officers whose duties concern the state at large, or the general public, although exercised within defined territorial limits — and municipal officers, whose functions relate exclusively to the particular municipality. The administration of justice, the preservation of the public peace, and the like, although confined to local agencies, are essentially matters of public concern; while the enforcement of municipal by-laws, the establishment of gasworks, of waterworks, the construction ofsewers, and the like, are matters which pertain to the municipality, as distinguished from the state at large.' Dillon, Mun. Corp. § 58, citing a long list of authorities, at the head of which is the leading case of People v. Hurlbut, 24 Mich. 44, 9 Am. Rep. 103." (The italics are by me.)
Maintaining that the act of 1902 was violative of the home rule clauses of the *Page 221 Constitution, Justice Provosty, for the court, in the Kohnke Case, said:
"It is contended that it is not, because these articles [of the Constitution] do not apply to boards whose powers, like those of the sewerage and water board extend beyond the limits of the parish of Orleans. The part of the act [No. 6 of the Extra Session of 1899] conferring upon the sewerage and water board powers extending beyond the limits of the parish of Orleans is contained in section 17 of the act, and reads as follows:
"`Said board shall have authority to expropriate any property in any of the parishes adjoining the parish of Orleans that it may find convenient and necessary for the proper execution of the powers herein granted to it, and to extend its work into such parish for the benefit of the city of New Orleans, and to have jurisdiction and authority in such parish over said works therein situated.'
"It is perfectly plain that the purposes of the creation of this board pertain wholly and exclusively to the city of New Orleans; that the board is as essentially local as the citycouncil is, or any other functionary having charge of the affairsof the city; and that this authority to reach out intoneighboring parishes is merely incidental, and forconvenience. When `convenient and necessary for the proper execution of the powers herein granted,' is the language of the act. If *Page 222 this were not so, if the powers of the board were to be exercised in part for the benefit of this outside territory, the situation would be that the city of New Orleans was being taxed for the benefit of these neighboring parishes. Nobody pretends to say that the tax is not strictly and exclusively for the benefit of the city of New Orleans. This shows that the board also is, since the board is nothing more than an agency created specially to carry out the purposes of the tax.
"To say that in speaking of the boards whose powers shall extend beyond the parish of Orleans the article [320] of the Constitution [of 1898] has reference to boards of such strictly local functions as this, is palpably to misinterpret the article. The article evidently has reference to boards created as much for the benefit of the outlying territory as of the city — such boards, for instance, as the board of commissioners of the port of New Orleans. That board has jurisdiction over the port of New Orleans, and that port embraces territory outside of the city. Drainage Commission Case, 49 La. Ann. 1199, 22 So. 623 (State v. Flower), is not in point. The question there was whether the duties with which the board is charged are of mere local concern or pertain to the state at large. No one pretends that matters ofsewerage and water are not of purely local concern. Theauthorities cited hereinabove showing the municipal character ofthe sewerage and *Page 223 water board are in point also in the present connection. [The italics are by me].
"If the view contended for prevailed, the guaranties of articles 319 and 320 [the Home Rule Clauses] would amount to nothing at all; since it would always be possible to extend into the neighboring parishes the powers of any board that might be created, and thereby circumvent the article."
Inasmuch as the provisions of section 13 of article 8 of the Constitution of 1921 are the same as were the provisions of article 210 of the Constitution of 1898, in declaring that no person shall be eligible to a municipal office unless he is a duly qualified elector of the municipality in which the functions of the office are to be performed, I do not see why Act No. 36 of the 2d Extra Session of 1934 is not as violative of section 13 of article 8 of the Constitution of 1921, as Act No. 111 of 1902 was violative of article 210 of the Constitution of 1898.
It is said in the majority opinion rendered in this case that Act No. 36 of the 2d Extra Session of 1934 does not violate the home rule clauses (in section 22 of article 14) of the Constitution of 1921, because these home rule clauses in the Constitution of 1921 are not in the same language in which they were expressed in articles 319 and 320 of the Constitution of 1898. It is true that the language is not the same, but the language appears to me to be plainer and more *Page 224 emphatic and precise in the Constitution of 1921 than it was in the Constitution of 1898, so far as the language reserves to the electors of the city of New Orleans the right to choose the local or municipal officers, and forbids the Legislature to authorize the appointment of members of any local board or commission with any of the authority "of controlling the ordinary governmental functions of municipal government." In article 319 of the Constitution of 1898 it was said that the electors of the city of New Orleans should have the right to choose the public officers who should be charged with the exercise of the police power and with the administration of the affairs of the municipal corporation in whole or in part; and, in article 320 of the Constitution of 1898, it was said that article 319 should not be construed as prohibiting the establishment of boards or commissions whose members would be elected by the city council or appointed by the mayor with the consent of the council; and that the article should not be construed to prevent the Legislature from creating boards or commissions whose powers should extend in and beyond the parish of Orleans, or as affecting the then-existing boards of that character. It was with reference to the boards of that character that this court said in the Kohnke Case: "To say that in speaking of the boards whose powers shall extend beyond the parish of Orleans the article of the Constitution has reference to boards of such *Page 225 strictly local functions as this [sewerage and water board], is palpably to misinterpret the article." The manifest intention of the framers of articles 319 and 320 of the Constitution of 1898 — and of the corresponding articles in the preceding Constitutions — was to leave the Legislature free to create nonmunicipal boards or commissions that might function in the city of New Orleans as well as elsewhere throughout the state, without requiring that the members of such boards or commissions should be chosen exclusively by the electors of the city of New Orleans; and, at the same time, to forbid the Legislature to deprive the electors of the city of New Orleans of their right to choose the members of all local boards or commissions that might be created and invested with the authority "of controlling the ordinary governmental functions of municipal government." The framers of the Constitution of 1921, therefore, to make matters plain, redrafted these provisions of the Constitution of 1898 and of the Constitution of 1913; and, in section 22 of article 14 of the new Constitution, they declared again that the electors of the city of New Orleans should have the right to choose their public officers, but that this should not be construed as restricting the police power of the state, or as prohibiting the Legislature from appointing, or authorizing the appointment of, any board or commission with full authority in the city of New Orleans, other than that of controlling *Page 226 the ordinary governmental functions of municipal government.
I do not see how it can be doubted that the writers of these provisions in the Constitution of 1921 reserved to the electors of the city of New Orleans the right to choose the members of all local or municipal boards or commissions having the authority "of controlling the ordinary governmental functions of municipal government." That the sewerage and water board is such a local or municipal board was decided definitely in the Kohnke Case, and is the unanimous opinion of the text-writers on the subject of municipal corporations. The decision in the Kohnke Case has never been overruled, or referred to with disapproval, and in fact it has been affirmed, in practically all of its aspects, by the rulings in the following five cases: Saunders v. Board of Liquidation of City Debt, 110 La. 313, 34 So. 457; State ex rel. Sewerage Water Board v. Michel, Secretary of State,127 La. 685, 53 So. 926; New Orleans Taxpayers' Protective Association v. Sewerage Water Board, 132 La. 839, 61 So. 843; State v. Billhartz, 146 La. 855, 84 So. 120; and Realty Owners' Protective Alliance v. City of New Orleans, 165 La. 159, 115 So. 444.
In the majority opinion rendered in this case it is said that, in the Kohnke Case, three earlier cases, namely, the Police Board Case (State v. Shakespeare), 41 La. Ann. 156, 6 So. 592, and the Dock *Page 227 Board Case (Duffy v. City of New Orleans), 49 La. Ann. 115, 21 So. 179, and the Drainage Board Case (State v. Flower), 49 La. Ann. 1199, 22 So. 623, were differentiated from the Kohnke Case "only on the ground of the sweeping, broad and general delegation of the police power of the state to the city of New Orleans, under articles 319 and 320 of the Constitution of 1898." It is true that the court said in the Kohnke Case that the three decisions cited were "not in point, for the reason that since they were rendered the words, `and with the administration of the affairs of said corporation in whole or in part,' have been added to the article." That was perhaps deemed a sufficient reason for dismissing from further consideration the three cases that were cited; but the fact is that, in the Police Board Case, the statute (Act No. 63 of 1888) creating the board did not deprive the electors of the city of New Orleans of their right to choose the members of the board; and the Dock Board Case and the Drainage Board Case were decided upon the fact that these boards were not municipal boards.
It is said in the majority opinion in this case that, by article 319 of the Constitution of 1898, the state of Louisiana was stripped of its police power and control over the sewerage and water board of the city of New Orleans, and was powerless to exercise it, even if the members of the board became ever so guilty of malfeasance or misfeasance in the discharge *Page 228 of their duties. A sufficient answer to that is that section 9 of Act No. 6 of the Extra Session of 1899, which was a part of the Constitution itself, declared that the members of the sewerage and water board should not be removed except in the manner stated and for the causes enumerated in the Constitution for the removal of public officers for malfeasance or misfeasance.
Reference is made, in the majority opinion, to Governor Parker's message to the Legislature, in the session of 1920, in which he expressed his determination to do all in his power for the destruction of boss rule and ringism in Louisiana and particularly in the city of New Orleans. I do not look upon this message as having much bearing upon the questions presented in this case. Gov. Parker, in his message, however, recommended"retaining a necessary autonomy for the city, the power in her people to change their administration at their will, to permit her to play her proper and legitimate part in the government of the State, but not to become a menace to the political welfare of its people." I interpret all of that to mean that, although it was deemed advisable to curtail the power of the so-called "ring," in state politics, the autonomy of the city of New Orleans should be preserved, for the benefit of the many inhabitants who were well-meaning people. That policy was carried out in the redrafting of the home rule clauses of the Constitution, in the *Page 229 Convention of 1921. If the intention had been to withdraw from the city of New Orleans all of the so-called delegated police power, and to deprive the electors in the city of their right to choose the members of the local or municipal boards having the authority "of controlling the ordinary governmental functions of municipal government," the home rule clauses would have been deleted from the Constitution. No other city or town in Louisiana is favored with a home rule clause in the Constitution. If these home rule clauses in the Constitution of 1921 do not protect the inhabitants of the city of New Orleans against legislative interference in the matter "of controlling the ordinary governmental functions of municipal government," I ask, what benefit are these home rule clauses to the inhabitants of the city of New Orleans?
Governor Parker did not suggest to the Legislature, in 1920, or to the Constitutional Convention of 1921, that any change should be made in the provisions of Act No. 6 of the Extra Session of 1899, creating and governing the sewerage and water board of the city of New Orleans.
It is said in the majority opinion in this case:
"Section 22 of article 14 of the Constitution of 1921 does not merely reinvest the state with its inherent and plenary police power, but it goes much further and prohibits the courts of the state from `construing this section' as a limitation *Page 230 upon the state's police power, in so far as the city of New Orleans is concerned. Thus the members of the Constitutional Convention of 1921 restored the state's sovereign power over the city of New Orleans and the sewerage and water board."
My opinion is that the state never at any time lost its "inherent and plenary police power" in the city of New Orleans, or its "sovereign power over the city of New Orleans and the sewerage and water board." The police power of the state has little or nothing to do with this case. Nobody can well dispute that the regulation and control of the sewerage and water board, or of any other of the governmental affairs of the city of New Orleans, is within the police power of the state — as it was in the beginning — is now — and ever shall be — world without end. Sicut erat in principio, et nunc, et semper, et in saecula saeculorum. But the question in this case is, first, whether the state's police power, in this particular instance, may be exercised by a mere act of the Legislature, or requires a constitutional amendment, and, second, whether this attempted exercise of the police power of the state tends to impair the obligation of a contract between the city of New Orleans and the taxpayers or bondholders.
Much is said in the majority opinion in this case about the authority of the Legislature to amend municipal charters. Of *Page 231 course, the Legislature has the authority to amend any municipal charter in any respect where there is no constitutionallimitation upon such authority; but where there is such a constitutional limitation the amendment of the municipal charter must be by way of an amendment of the Constitution itself.
It is said in the majority opinion in this case that the argument on behalf of the plaintiffs — the state and the taxpayers and the bondholders of the city of New Orleans — that the Legislature cannot abolish the condition (on which the tax was levied) that the members of the sewerage and water board shall be residents and electors of the city, is not sound, in that it is merely the argument that the city of New Orleans, in its public capacity as a part of the state's machinery, owes no responsibility to the state government in the performance of acts for the public benefit, and that this is merely the argument that the authority of the state is not supreme in the regulation of this responsibility, and of the manner in which these acts are to be done, and by whom. The question in this case, however, is not whether the authority of the state is superior to that of the city, but whether the authority of the Constitution is superior to that of the Legislature.
It is said in the majority opinion in this case that, in certain instances where the sewerage and water board has been *Page 232 sued for damages resulting from negligence on the part of the agents or employees of the board in the performance of their duties, the board has pleaded that it was engaged in the performance of a governmental function, as distinguished from amunicipal function. The distinction which the law makes, in that respect, as I understand it, is not between a governmental function and a municipal function. The distinction is between the two kinds of functions which a municipality performs — one kind of municipal functions being called the "governmental" functions, and the other kind of municipal functions being called the "private" or "proprietary" or "corporate" functions. That distinction has been recognized by this court, consistently, and for a long time, particularly in the following cases: Stewart v. City of New Orleans, 9 La. Ann. 461, 61 Am. Dec. 218; Lewis v. City of New Orleans, 12 La. Ann. 190; City of New Orleans v. Kerr, 50 La. Ann. 413, 417, 23 So. 384, 69 Am. St. Rep. 442; Jones v. City of New Orleans, 143 La. 1073, 79 So. 865; Joliff v. City of Shreveport, 144 La. 62, 80 So. 200.
It is plain, therefore, that, when the sewerage and water board pleads, in defense of a damage suit, that the board is engaged in a "governmental function," it means that the board is engaged in one of "the ordinary governmental functions of municipal government," as referred to in section 22 of article 14 of *Page 233 the Constitution, and as distinguished from a "private" or "proprietary" or "corporate" function. The expression in the Constitution, "the ordinary governmental functions of municipal government," sounds like tautology; but the language is really well-chosen, because, as I have pointed out, there is another class of "functions of municipal government" besides "the ordinary governmental functions of municipal government." In reserving to the electors of the city of New Orleans the right to choose the members of all local boards exercising municipal functions, the members of the Constitutional Convention of 1921 were exact in specifying "the ordinary governmental functions of municipal government." I have never heretofore heard it disputed that the maintenance and operation of a sewerage and water system is among "the ordinary governmental functions of municipal government."
It is a fact — as pointed out in the majority opinion in this case — that in the Kohnke Case the court decided only that Act No. 111 of 1906 was unconstitutional in that it undertook to make the members of certain other boards or commissions members, ex officio, of the sewerage and water board, without requiring that they should be chosen by the electors of the city of New Orleans, or elected by the municipal council or appointed by the mayor. Act No. 36 of the 2d Extra Session of 1934 undertakes *Page 234 to do the same thing, but goes further and undertakes to abolish the appointing by the mayor of seven resident taxpayers in the city of New Orleans, as members of the sewerage and water board, one taxpayer from each one of the seven municipal districts.
In attempting to make this change in the membership or composition, and in the authority and method of selecting the members, of the sewerage and water board, the Legislature of 1934 has come into conflict — more than the Legislature of 1902 came into conflict — with the constitutional requirement, as a condition on which the tax was levied and the bonds were issued for the establishment of the sewerage and water system, that there should be seven resident taxpayers as members of the sewerage and water board. That the tax was levied subject to the conditions stipulated in the taxpayers' petition to the municipal council to adopt the necessary ordinance was stated in the preamble to Act No. 6 of the Extra Session of 1899, ratifying the tax levy, subject to the conditions, thus:
"Whereas, on June 6, 1899, the property taxpayers of the city of New Orleans in due form of law voted a special tax of two mills on the dollar for forty-three years, beginning with the year 1899, upon certain conditions set forth in the propertytaxpayers' petition, made the basis of said election," etc. (I did the italicizing.) *Page 235
Section 8 of Act No. 6 of the Extra Session of 1899 is a copy of section 11 of the City Ordinance No. 15391 levying the tax; and, as one of the conditions on which the tax was levied, this section of the ordinance, and of the statute, created and provided for the membership or composition of the sewerage and water board "for the purpose of constructing, controlling, maintaining and operating the public water system and public sewerage system of the city of New Orleans."
In section 35 of Act No. 6 of the Extra Session of 1899 are the most significant and important of all of the provisions on the subject which we are dealing with in this suit. In that section of the act it was declared that, as the provisions of the act were to become a part of the Constitution, the right was reserved, nevertheless, to the Legislature, to amend the actin any respect that would not be violative of the conditions onwhich the special tax was voted by the property taxpayers, andthat would not impair the vested rights or contract rights of theholders of the bonds issued under the provisions of the act. Section 35 of the act is as follows:
"Sec. 35. Be it further enacted, etc. That, as it is proposed to have this act ratified by an amendment to the Constitution, it is hereby specially declared to be the intent of this act, and of said ratifying constitutional amendment, that the General Assembly reserves the right *Page 236 and power to amend this act in any respect not violative of the conditions upon which the said special tax was voted by the property taxpayers of the city of New Orleans, and not impairing the vested rights or the contract rights of the holders of the bonds issued under its provisions."
This reserved right of the Legislature to amend the act, with the stipulated limitation upon the right to amend, was repeated in the constitutional amendment; that is to say, in the joint resolution (Act No. 4 of the Extra Session of 1899) proposing the amendment, which was adopted, thus:
"The special tax for public improvements, voted by the property taxpayers of the city of New Orleans on June 6, 1899, is hereby ratified, and its validity shall never be questioned. The special act [No. 6] adopted by the Legislature at the Special Session held on August 8, 1899, * * * constituting the Sewerage and WaterBoard of the City of New Orleans, authorizing the city of New Orleans to issue bonds, and providing the means to pay the principal and interest thereof, and for other purposes cognate tothe purposes of the special tax aforesaid, is hereby ratified andapproved, especially including the therein reserved legislativeright to amend the same; and all provisions of the presentConstitution in conflict with the provisions of said act, andwith this amendment, are to that extent and for that purpose onlyrepealed." *Page 237
The provisions of this constitutional amendment were retained, word for word, in the Constitution of 1921, as section 23 of article 14. There was added a provision relieving the city of New Orleans of the duty of providing in its annual budget for the maintenance and operation of the sewerage and water system, and requiring the sewerage and water board to adjust its rates accordingly. There was added also a provision authorizing the board to contract with parties having franchises for that purpose to supply water to consumers in the adjoining parishes, at rates to be fixed by the board. There was added also a ratification of Act No. 19 of 1906 and Act No. 116 of 1908, relating to the issuance of $8,000,000 of new public improvement bonds of the city of New Orleans.
The result of the adoption of the municipal ordinance and the statute and constitutional amendment of 1899 was that all of the conditions on which the tax was levied, and which were stipulated in the taxpayers' petition for the levying of the tax, and which were repeated in the act ratifying the tax levy, became a part of the Constitution; and included therein was the right of the Legislature to amend the law, even though it was a part of the Constitution; provided, however, that it should not be amended in any respect that would be violative of the conditions on which the tax was levied, or that would impair the contract rights of the bondholders. That status, with *Page 238 regard to the provisions of Act No. 6 of the Extra Session of 1899, prevails today, under the exact language of section 23 of article 14 of the Constitution of 1921.
Now, here is what this court said on the subject in the Kohnke Case:
"We hardly think it would be taking a practical or sensible view of the situation to interpret the [constitutional] amendment so as to leave the matter of the bonding vel non of the avails of the tax, and the matter of the constituting vel non of the special board to administer these avails, within the discretion of the Legislature, while the tax itself was being secured hard and fast in the framework of the Constitution. We think that the practical and sensible view to take is that the agents of the taxpayers who framed the amendment did their work with a view to conserving these conditions; in other words, that the amendment means exactly and precisely what it says, namely, that `the tax voted' and `the tax levied' is ratified, and shall never be questioned; that is, the tax as voted and as levied, subject to the conditions upon which it was voted and levied. * * *
"We must hold that the conditions of the taxpayers' petition referred to in the reserve were not the rate, duration, and purposes of this tax, but were `the terms and conditions set forth in the taxpayers' petition under which the tax had *Page 239 been voted,' and that one of the chief of these conditions was the one bearing upon the manner of the organization of the board which was to administer the proceeds of the tax.
"It is argued that, if this sewerage and water board has become a constitutional board, then that during the life of this board — 43 years — it will not be possible to change the form of government of the city of New Orleans, because the mayor and the chairmen of the committees of budget, water and drainage, and finance are made members of said board; the proposition being that, in order to continue to be members of the board, the said officials will have to continue in their same functions, and under their same official titles.
"We do not think that the situation would be so serious as all this. If the city ceased to have an officer called by the official name of `mayor,' it would be forced to have some other official filling approximately the same functions, and the courts would experience no difficulty whatever in holding that this official took the place of the mayor on the board; and so with the other city officials. * * *
"It is well to note, in passing, that, while the act of 1899 is adopted into the Constitution as a whole, it is so adopted with special reservation of the right of the Legislature to amend, except in so far as might be violative of the conditions of the taxpayers' petition; and that *Page 240 the effect of this reserve was to withhold from incorporation into the Constitution all the parts of the act not covered by the conditions of the taxpayers' petition. This result follows, ex necessitate, from the legislative right to amend. Since the Legislature cannot amend the Constitution, it follows that the act, in so far as amendable by the Legislature, is no part of the Constitution, and it is amendable in all respects except in violation of the conditions of the taxpayers' petition."
What was said in the Kohnke Case was repeated and affirmed in State v. Billhartz, 146 La. 855, 84 So. 120, 122, thus:
"It will be seen, therefore, that the purposes, terms, and conditions for and upon which the property tax payers of New Orleans consented that their property should be subjected to the special tax, which could not have been levied without such consent, were set forth in considerable detail, in an act of the General Assembly, which, by vote of the entire electorate of the state, was incorporated in, and made part of, the Constitution, and which (it may be stated) has so been recognized by this court. State v. Kohnke, 109 La. [838] 861, 33 So. 793; Saunders v. Board, 110 La. 313, 34 So. 457; State ex rel. Sewerage Water Board v. Michel, 127 La. 685, 53 So. 926; New Orleans Taxpayers' Ass'n v. Sewerage Board, 132 La. 839, 61 So. 843." *Page 241
It is said in the majority opinion in this case that the provisions of Act No. 6 of the Extra Session of 1899 were, in part, directly contrary to the petition of the taxpayers, and in part beyond the scope of the taxpayers' petition. This court found, however, in the Kohnke Case that the slight departures from the terms of the taxpayers' petition, in the statute which made it a part of the Constitution, were unimportant, and were in fact only interpretations of the petition. Here is what the court said on the subject:
"The Legislature had faithfully accomplished that purpose, adhering strictly to the plan or scheme, except in a harmlessparticular, to which nobody objected. The drafting of the act and of the joint resolution proposing the amendment was the handiwork of the taxpayers themselves through their chosen agents, of which fact this court may take judicial notice as of a part of the public history of the state. There was no reason why the tax voted should not be adopted into the Constitution as voted; that is, with the conditions attached to it which the taxpayers had coupled with it in voting it. * * *
"It is said, also, that the suggestion of the petition with regard to the organization of the sewerage and water board was never carried out, the ordinance adopted for the purpose of carrying out the petition having provided for a differently *Page 242 constituted board, and the board so provided for not having ever organized, but having been entirely supplanted by the legislative board created by the act of 1899; and that the latter board was and remained subject to the legislative control, it being purely a legislatively created board.
"We find no force in this argument. The section 8 of the act of 1899 providing for the sewerage and water board was a verbatim copy of the section 11 of the council ordinance adopted to carry out the petition; and this ordinance, very far from seeking to violate the conditions of the petition, sought, on the contrary, to carry them out faithfully and carefully. In the petition the eventuality of the reduction of the membership of the drainage commission or of the total abolition of the commission had not been foreseen and provided for; and it became necessary to remedy this in the ordinance carrying out the petition, and provision covering this eventuality was accordingly made. But this was amere interpretation of the petition, and strictly in line withit. Nobody looked upon the matter in the light of a change in theconditions of the petition, and that idea is now suggested forthe first time. Under these circumstances, the condition of thepetition with respect to this board must be held to have beenwhat both by the ordinance and by the act of the Legislature itwas thus interpreted to have been, and it must be held to havebeen carried *Page 243 into the Constitution as thus interpreted." (Italics are mine.)
It is said in the majority opinion in this case:
"The State Constitution (Act No. 4 of 1899, Ex. Sess., article 313 of the Constitution of 1913, and section 23 of article 14 of [the Constitution of] 1921) provides that `the validity of thespecial tax shall never be questioned.'"
Hence it is said in the majority opinion in this case:
"The bondholders need never worry about the refusal of the taxpayer to pay the tax, or about any suit to prevent its levy and collection, since the validity of the tax may never bequestioned."
I have copied already the constitutional amendment ratifying the tax, which ratification is repeated in section 23 of article 14 of the Constitution of 1921, showing that the tax was ratified, as voted and as levied, and subject to the conditions stated in the statute, "including the therein reserved right to amend the same," with the limitations upon the legislative right to amend the same. And here is what this court said on the subject in the Kohnke Case, viz.:
"We think that the practical and sensible view to take is that the agents of the taxpayers who framed the [constitutional] amendment did their work with a view to conserving these conditions; in other words, that the amendment means exactly and precisely what it says, namely, *Page 244 that `the tax voted' and `the tax levied' is ratified, and shallnever be questioned; that is, the tax as voted and as levied,subject to the conditions upon which it was voted and levied." (The italics are mine.)
That means — as plainly as words can convey a meaning — that the ratification of the tax was given subject to the conditionson which the tax was voted and levied. And the condition which the court had especially in mind, in making that important declaration in the Kohnke Case, was that the composition or membership of the sewerage and water board, as fixed in the taxpayers' petition and in the ordinance and in the statute, should not be changed. The corollary of the declaration which I have just quoted from the Kohnke Case is that the validity of the tax may be questioned by the taxpayers if the conditions on which it was voted and levied are not adhered to. And, for that reason, the bondholders, as well as the taxpayers, have the right to complain now of the act of the Legislature which undertakes to impair the obligation of the contract with the city of New Orleans.
In fact, the decision rendered by this court in the Kohnke Case became a part of the obligation of the contract on the part of the city of New Orleans in favor of the bondholders. The evidence in this case discloses that $9,000,000 of the $12,000,000 of bonds were sold after the decision was rendered in the Kohnke *Page 245 Case, and were sold, presumably, on the representations made by the decision in the Kohnke Case. It is in evidence in this case that the New Orleans banks that held the $12,000,000 of bonds sent out circulars, as an inducement to the prospective bond buyers to buy the bonds, saying that all of the conditions on which the tax was voted and levied to pay the bonds were protected against legislative interference. Here is a copy of the pertinent part of the circular:
"Every condition surrounding these bonds, which are issued under authority of a constitutional amendment, is protected from legislative interference in any particular whatsoever, as announced by a decision of the Supreme Court of Louisiana, in the case of State ex rel. Saunders v. Kohnke, 109 La. 838 [33 So. 793]."
The doctrine that the construction which the highest court of a state gives to a statute of the state becomes a part of the statute itself is so well settled that perhaps I should refrain from further lengthening this dissenting opinion by quoting the decisions which have been cited on behalf of the taxpayers and bondholders. The most pertinent of these decisions is the one which was rendered in the case of State of Louisiana ex rel. Southern Bank v. Edward Pilsbury, Mayor of New Orleans, et al.,105 U.S. 278, 294, 26 L. Ed. 1090, from which I take this excerpt, viz.: *Page 246
"From the extended reference to the adjudications of the Supreme Court of Louisiana, upon the Constitution of 1845, requiring uniformity and equality in taxation, there can be no serious question as to the validity of the act of 1852, so far as the consolidated bonds of the city of New Orleans are concerned, and the provisions made by it and the supplementary act for the annual levy of a tax of $650,000 to pay the interest and reduce the principal. The decisions upon the clause in the Constitution of 1852 are corroborated by the correctness of the construction originally placed upon the clause of the Constitution of 1845.Whether such a construction was a sound one is not an openquestion in considering the validity of the bonds. The expositiongiven by the highest tribunal of the State must be taken ascorrect so far as contracts made under the act are concerned.Their validity and obligation cannot be impaired by anysubsequent decision altering the construction. This doctrineapplies as well to the construction of a provision of the organiclaw, as to the construction of a statute. The construction, sofar as contract obligations incurred under it are concerned,constitutes a part of the law as much as if embodied in it. So far does this doctrine extend, that when a statute of two States, expressed in the same terms, is construed differently by the highest courts, they are treated by us as different laws, each embodying the particular construction of its *Page 247 own State, and enforced in accordance with it in all cases arising under it. Christy v. Pridgeon, 4 Wall. [71 U.S.] 196 [18 L. Ed. 322], and Shelby v. Guy, 11 Wheat. 361 [367] [6 L. Ed. 495]. The statute as thus expounded determines the validity of all contracts under it. A subsequent change in its interpretation can affect only subsequent contracts. The doctrine on this subject is aptly and forcibly stated by the Chief Justice in the recent case of Douglass v. Pike Co., 101 U.S. 677 [686], 687 [25 L. Ed. 968]. `The true rule,' he observes, `is to give a change of judicial construction in respect to a statute the same effect in its operation on contracts and existing contract rights that would be given to a legislative amendment; that is to say, make it prospective, not retroactive. After a statute has been settled by judicial construction, the construction becomes, so far as contract rights acquired under it are concerned, as much a part of the statute as the text itself, and a change of decision is, to all intents and purposes, the same in its effect on contracts as an amendment of the law by means of a legislative enactment.'" (I supplied the italics.)
Applying that doctrine to this case, the decision rendered by this court in the case of State ex rel. Saunders v. Kohnke, in January, 1903, became as much a part of Act No. 6 of the Extra Session of 1899, and particularly of sections 8 and 35, as the text itself. According to the *Page 248 rule announced by the Supreme Court of the United States, the decision which is now rendered in the present case, in respect to Act No. 6 of the Extra Session of 1899 and its interpretation in the Kohnke Case, is to be given the same effect in its operation on contracts and existing contract rights that would be given to a legislative amendment; that is to say, make it prospective, not retroactive.
We had occasion to apply the rule in Straus v. City of New Orleans, 166 La. 1035, 1046, 118 So. 125, 129, in July, 1928, thus:
"That decision [referring to a decision which had been rendered by this court] established a rule of property, over 18 years ago; and it is only fair to assume that investors who have bought or taken mortgages upon manufacturing or industrial establishments in this state, including the bondholders represented by the trustee in this case, acted upon the faith of the construction which this court put upon the Act 30 and the Act 187 of 1904, in the decision quoted. If we doubted the correctness of that construction now, we would not change it, so as to impair the obligations of contracts presumed to have been made on the faith of it. Southern Grocer Co. v. Adams, 112 La. 60, 36 So. 226; Maxwell-Yerger Co. v. Rogan, 125 La. 1, 51 So. 48. The Supreme Court of the United States treats the construction which the highest court of a state has given to a statute of the state as a part of the statute itself; and *Page 249 if different constructions are given to the same statute at different times, it will not follow the latest decision if thereby contract rights which have arisen under the earlier ruling would be injuriously affected. Douglass v. Pike County, 101 U.S. (11 Otto) 677, 25 L. Ed. 968."
It will not do to say that the composition or membership of the sewerage and water board of the city of New Orleans, especially with regard to the statutory and constitutional requirement of having seven resident taxpayers as members of the board, is a matter of no importance or concern to the taxpayers generally, or to the holders of the bonds, of the city of New Orleans. The composition or membership of the board was the only subject-matter of the litigation in the Kohnke Case; and it was decided there that the composition or membership "of the board which was to administer the proceeds of the tax" was one of the essential and vital conditions on which the tax was voted by the taxpayers and levied by the city. The court said:
"We must hold that the conditions of the taxpayers' petition referred to in the reserve were not the rate, duration, and purposes of this tax, but were `the terms and conditions set forth in the taxpayers' petition under which the tax had been voted,' and that one of the chief of these conditions was the onebearing upon the manner of the organization of the board whichwas to administer the proceeds of the tax." (Italics are mine.) *Page 250
My opinion, therefore, is that Act No. 36 of the 2d Extra Session of 1934 violates not only the several provisions which I have referred to of the Constitution of Louisiana, but also the declaration in section 10 of article 1 of the Constitution of the United States, that no state shall pass any law impairing the obligation of contracts.