Section 19 of Act 95 of 1921 (Extra Sess.), the State Highway Act, provides:
"That the cost of constructing and maintaining bridges or other passageways over navigable streams, shall be paid wholly from the general highway fund."
This provision in Act 95 of 1921 (Extra Sess.) was made in obedience to the mandatory requirement of section 19 of article 6 of the Constitution of 1921 that —
"The Legislature shall provide for the building of bridges over navigable streams wholly from the general highway fund."
Section 16 of said act declares:
"That every contract for highway improvement under the provisions of this act shall be made in the name of the state of Louisiana, signed by the state highway engineer, approved by the commission, and signed by the contracting party, and no such contract shall be entered into nor shall any such work be authorized which will create a liability on the part of the state in excess of the funds available for expenditure under the terms of this act."
In other words, the Legislature of 1921, in interpreting section 19 of article 6 of the present Constitution, has declared in plain and unmistakable language that no bridge shall be built by contract over a navigable stream, unless there are funds available for that purpose. This is but a repetition of the fundamental prohibition against the building of bridges over navigable streams in any other manner than from a designated public fund.
It is a prohibitory law, embodied in the Constitution of the state, and based not only upon economic considerations, but founded also in a salutary public policy, exerted by the state for the protection of the people of the state against excessive tolls, exacted under *Page 928 bridge contracts, monopolistic in fact, if not in law.
Section 19 of article 6 of the present Constitution provides for a general highway fund for the establishment and maintenance of state highways and bridges, without any distinction as to bridges, whether built over navigable or nonnavigable streams. Section 19 provides also, without any discrimination as to bridges, that the Legislature "may require parishes, cities, towns, villages and road districts to contribute a certain proportion of the cost of construction of state highways and bridges."
When this contribution is demanded by the state from any of its local subdivisions, the fund thus derived becomes a state fund, and must be paid into the state treasury, and allocated to the general highway fund, as much so as an auto license, or gasoline tax levied by the state and collected for highway purposes.
The state is not compelled by any provision of the present Constitution to pay back to, or to credit, any of its subdivisions with such local contributions as may be exacted for building state bridges.
The proviso in the Constitution is that —
"Parishes which have completed such roads as may be a part of the state highway system shall be given credit by the state highway fund for said mileage thus completed and accepted by the state highway department as against any sums which they might be called upon to contribute for further road building therein."
The state in this case has not taken over, as a part of its highway system, any bridge constructed over Lake Pontchartrain, either by the city of New Orleans or by the parish of St. Tammany.
The writer of this opinion fails, therefore, to appreciate the force of the argument, made in the opinion of the majority of the court, that the requirement that the Legislature "shall provide for the building of bridges over navigable streams wholly from the general *Page 929 highway fund" means nothing more than "that the cost of building a bridge over a navigable stream shall not be charged, either in whole or in part, to any municipality, parish or road district in which the bridge shall be located." (Italics mine.)
This declaration is made in the very face of the express provision in section 19 of article 6 of the Constitution that the "Legislature * * * may require parishes, cities, towns, villages and road districts to contribute a certain proportion of the costof construction of state highways and bridges."
What can be more just and reasonable than that the locality receiving the immediate benefit of a bridge over a navigable stream shall pay to the state its fair proportion of the cost of construction?
It is too plain for serious argument that under the present Constitution the local subdivisions of the state may levy special taxes voluntarily for the building of local roads and bridges, and that, in addition to those special taxes, the state may require a compulsory contribution from local subdivisions for the building of roads and bridges forming a part of the state highway system. Article 10, § 10; article 14, § 14 (a); article 6, § 19, Constitution of 1921.
It jumps to the eye, from a mere reading of the provisions of section 19 of article 6 and of other provisions in the present Constitution, that It was the clear intention of the framers of that instrument that there should be established in this state for the benefit of the people a system of free public roads and bridges, maintained by public taxation, and not a system of toll bridges and turnpikes, maintained by syndicates, or private persons, to the detriment of the general welfare.
Act 141 of 1924, under which the present contract for the construction of the toll bridge over Lake Pontchartrain was made, is clearly unconstitutional, in my opinion, and *Page 930 said contract is therefore illegal, null, and void, for the reason that said act contravenes the provision of section 19 of article 6 of the present Constitution, prohibiting the Legislature from building bridges over navigable streams, unless built "wholly from the general highway fund."
It is elementary that —
"Whatever is done in contravention of a prohibitory law is void, although its nullity be not formally directed." R.C.C. art. 12.
I therefore respectfully dissent from the opinion of the majority of the court.