Surget v. Chase

On Application por Rehearing.

Fenner, J.

Giving all possible weight to the ingenious argument, of defendant’s counsel, so far as it sustains the proposition that, under *842the legislation in force at the date of the adoption of the Constitution! of 1879, the police juries of the parishes were vested with powers for the “ repair, preservation and protection of levees,” and that the work involved in this case fell within the proper scope of such powers, and-on these points we announce that we will not hold ourselves concluded by any dicta in the original opinion, really or apparently contrary thereto, — the argument, nevertheless, entirely fails to show that, at that date, the police juries possessed any legislative authority to levy indefinite-special taxes, in excess of ten mills for the execution of such powers.

On the contrary, by the terms of Act 96 of 1877, then in force, the-parochial power of taxation, “ for all purposes or under any pretext,” was limited to ten mills on the dollar. The proviso to that act, reciting “ that on the written application of a majority in value of the taxpayers of a parish, the police jury shall be authorized to levy additional taxes-not in excess of five mills,” is manifestly inconsistent with Art. 209, and therefore repealed.

Unless article 202 of the Constitution is to be practically nullified, the “taxing power’’can only be exercised by parishes and municipal-corporations, “ under authority granted to them by the General Assembly.” It is not necessary, under this article, that new legislative authority should be obtained in all cases. Antecedent legislative grants, not inconsistent with the Constitution, were continued in force by Art. 258; and hence police juries may continue to levy a ten mills tax without new legislative authority.

But it is imperatively necessary, that police juries, exercising the taxing power, should point to some valid “ authority granted to them, by the General Assembly,” antecedent or subsequent to the Constitution.

No such authority exists for the levy of the special tax herein contested, with or without an election.

The proposition that Art. 209 is self-operating and confers directly upon the parishes the absolute power to levy unlimited taxes for the purposes therein specified, upon the vote of a mere numerical majority of the taxpayers, without reference to the value of the property represented, is certainly startling. If that were true, the power would not only dispense with legislative authority, but would be beyond legislative control, because the Legislature could not limit, or take away, power directly and expressly conferred by the Constitution.

The deplorable abuses, which might result, will readily suggest themselves, and would not escape the anticipations of those who are-now dissatisfied with our decree, if they were not blinded by the heat of the immediate controversy.

If the theory contended for were correct, it would follow that the police juries of all the parishes are vested with irrevocable power to *843levy limitless taxes, not merely for levees, but for “ public buildiDgsr bridges ” or any other purpose falling within the broad term “ works of public improvement,” upon the vote of a mere numerical majority of infinitisimally small property taxpayers. Thinking men will not readily concede that such could be a proper construction of the Constitution.

We have not the slightest doubt that it was the intention of the framers of the Constitution that the extraordinary powers óf special taxation permitted by article 209, like all other parochial powers, should, be subjected to the direction, regulation and control of the General Assembly, which must provide the authority, mode and limit of their exercise, before they can be exerted by the parochial authorities.

We do not express or intimate any opinion hostile to the claim that the work done by the police jury in the present case, isa “work of public improvement ” within the meaning of Art. 209, and that legislation in enforcement of that article might embrace such work. On these points, we reserve our opinion, until they shall arise in a proper case.

Rehearing refused.