FOLSE et al. v. POLICE JURY et al., 125 La. 603

NICI-IOLLS, J. L. N. Folse, representing himself as a resident and taxpayer of the First Ward of the parish of Iberville, joined by two private corporations representing themselves also as residents and taxpayers of said ward, brings this action. In this petition he alleged: That in the month of January, 1907, certain persons pretending to represent one-third of the taxpayers of the First Ward in said parish, but, in fact, representing a small minority thereof, and less than one-fifth, presented a petition to the police jury of said parish, and pretending to act under

article 232 of the Constitution, Act 131 of 1898, Act 214 of 1902, and Act 167 of 1904 of the Legislature of the state, requesting that a special election be held in said ward of the parish to submit to the taxpayers legally qualified to vote the levying of a tax of two mills on the dollar annually for the period of 20 years for the purpose of purchasing sites for schoolhouses and constructing and remodeling schools in said ward, and particularly described in said petition, a copy of which is annexed hereto for reference.

That on the 4th of March, 1907, the police jury of the said parish in virtue of said petition, and acting thereunder, illegally, wrongfully, and without authority in law, ordered an election to be held at the precincts in said ward according to the general election laws of the state, and the president of said police jury illegally issued a proclamation for an election to be held on April 9, 1906, in said ward to determine whether or not a special tax of two mills on the dollar annually on all the taxable property in said ward for a period of 20 years for school purposes should be levied as will appear from the proclamation annexed hereto for reference.

That on the 9th of April, 1907, in pursuance of said proclamation, a pretended election was held in said ward of the parish of Iberville at Bayou Goula and White Castle precincts for the objects and purposes mentioned in said proclamation, and on the 23d of April, 1907, the supervisors of election illegally declared that the election to determine whether or not said special tax of two mills on the dollar for a period of 20 years should be levied for school purposes had been carried-by an affirmative vote of 63 voters, representing a total assessment of $269,432.50, against 2 votes representing a total assessment of $40,945.

That on the 1st of July, 1907, the police jury of said parish illegally, and in violation of law, proceeded to adopt a resolution levying a special tax, as follows: “On motion of O. S. Templet, seconded by J. A.

Carville, and unanimously carried, a special tax of two mills on the dollar is hereby levied in the First Ward school district, to be appropriated to secure a site and to construct one three-room graded school building at or near both New Camp and Sams Town, construct an adequate graded and high school building combined in the town of White 'Castle, remodel Bayou Goula schoolhouse into an adequate three-room graded school building, or establish and maintain a transfer line from Augusta to Bayou Goula for need of the community and institute and maintain transfer lines for the school children from the store building of Berthelot Brothers to White Castle, and such other places in said First Ward as may be considered expedient.” That the resolution of the police jury of said parish on the 4th day of March, 1907, ordering said election in the First Ward for a special tax, and the proclamation of the president of the police jury in pursuance thereof, and the election pretended to have been held in said Ward on the 9th of April, 1907, for a special tax under said proclamation, and the ordinance of the police jury of said parish of the 1st of July, 1907, pretending to levy said special tax, all of which is herein set forth, are illegal and without authority in law and null and void for the following reasons: That the petition on which skid proceeding, the election, and the aforesaid ordinances of the police jury are based contains the-names of only 97 of the property tax payers of the First Ward of the said parish, which is less than one-third, or one-fifth of the taxpayers of the said ward entitled and qualified to vote for said special tax, and said ward. numbers 959 taxpayers who were qualified to vote at said election for the levy of said tax under article'232 of the Constitution and the statutes thereunder.

That the property tax payers of said ward who voted at said election failed to indicate in any manner whatever what property he voted, and failed to indorse or cause to be indorsed on the ballot he cast for or against said tax what property he Voted and assessed to him. The form of the ballot used at said election is hereto annexed as part of this petition.

That the said ordinance of the 1st of July, 1907, for the levy of a special tax is null and void for the further reason that it does not designate or fix the year or the years for which said special tax shall be levied or for what period it shall be levied annually, and the taxable property on which said tax shall be levied as required by law.

That to the great injury and wrong of petitioners the school board of the parish of Iberville is preparing and proceeding illegally and without any authority in law under said void ordinance to issue bonds for more than $40,000 payable in annual installments for a period of 20 years, and bearing interest at the rate of 5 per cent, per annum, and dedicating the proceeds of said special tax for the next 20 years for the payment or redemption of the said bonds in principal and interest, and that a writ of injunction directed to said school board prohibiting it from issuing said bonds is necessary in order to protect the rights and property of petitioners on petitioners furnishing bond and security in such sum as may be fixed by this honorable court.

That A. A. Browne, sheriff and tax collector of said parish, is illegally proceeding to collect said special tax under the aforesaid ordinances of the police jury on the property of petitioners in said ward, and which tax amounts to over $250, and will collect the same from petitioners to great and irreparable injury, unless restrained by a writ of injunction prohibiting him from collecting or proceeding to collect said tax, and which writ is necessary to protect and preserve the rights and property of petitioners on petitioners furnishing bond and security in such sum as may be fixed by this honorable court.

In view of the premises, they prayed that the police jury of the parish of Iberville be cited, that the ordinance of said police jury of March 4, 1907, ordering an election in the First Ward of said parish on the 9th of April and the ordinance of the 1st of July, 1907, levying a special tax on the property in said ward as set forth in the petition and the election held in said ward on the 9th of April, 1907, for the purpose of determining whether or not a special tax of two mills on the dollar for a period of 20 years should be levied, and all of the proceedings of said police jury under said ordinances and said election, may be set aside and declared and decreed to be null and void, and not binding on petitioners, and petitioners prayed that the school board of said parish be .served with a copy of this petition and cited according to law, and that a writ of injunction issue, directed to said school board, restraining and prohibiting it from issuing directly or indirectly bonds as herein set forth, and dedicating said special tax or the proceeds thereof for the payment of said bonds and after due proceedings the said injunction be perpetuated..

And that a writ of injunction issue directed to A. A. Browne, sheriff and tax collector of said parish, restraining and prohibiting him from collecting or proceeding to collect said special tax on the property of petitioners in First Ward until the further order of this honorable court, on petitioners furnishing bond and security in such sum as may be fixed by this honorable court and according to law. And in duty bound petitioners prayed for all general, special,- and equitable relief. On reading tbe petition, an injunction was ordered to issue as .prayed for.

Accompanying the petition was a copy of the ballot used at said election of April 9, 1907. The school board (as also the police jury) moved to dissolve the injunction with damages on the ground that the petition set forth neither a right nor cause of action, since on the face of the papers more than three months had elapsed since the promulgation of the election attacked in said petition, and all matters therein set out were barred and prescribed.

The parish board directors (as also the police jury) filed additionally an exception to the demand of the plaintiffs on the ground that it set forth neither a right nor cause of action and an exception of prescription of three months. Plaintiffs filed an amended and supplemental petition, in which adopting and affirming the allegations in the original petition they alleged: That the amount of taxes that petitioners will be compelled to pay during the period of the special ta-x proposed to be levied in said First Ward and as set forth in the proceedings of the police jury would exceed the sum of $2,000.

That the bonds proposed and intended to be issued by the school board to cover the whole amount of the said special tax for the period of 20 years was in pursuance of Act S4 of the Legislature of 1906. That said act was unconstitutional. That

article 232 of Constitution of 1898 did not provide for or contemplate the issuance of bonds under said article. That

article 281 of the Constitution of 1898, amended in 1904 and 1906, alone authorized the issuance of bonds by school districts or wards, and impliedly prohibited the issuance of bonds, and thereby creating a debt under any other provisions of said Constitution. That it was only recently that the said school board prepared to issue bonds,- and petitioners were informed that said bonds were being printed, but the same had not been negotiated. ..

Petitioners adopting the prayer of the original petition further prayed that Act 84 of Legislature of 1906 be declared unconstitutional, null, and void, and a copy of this amended petition served on A. H. Gay, president police jury, and G. W. McFall, president school board, and in duty bound petitioners pray for all general, special, and equitable relief.

On March 30, 1907, the court for reasons orally assigned rendered judgment adjudging and decreeing that the exceptions filed be overruled and that the ordinance of the police jury of March -4, 1907, ordering an election in the First Ward of said parish on the 9th of April, 1907, and the ordinance of the 1st of July, 1907, levying a special tax on the property in said First Ward, and the election held in said ward on the 9th of April, 1907, as set forth in the petition, and Act 84 of the Legislature of 1906 were null and void and unconstitutional, and particularly Act 84 of the Legislature of 1906.

A new trial having been refused, the parish school board has appealed! Appellees have moved to dismiss the appeal on the ground that the Supreme Court is without jurisdiction, the amount in contestation not exceeding $2,000. On Motion to Dismiss. Plaintiffs contested the legality of a tax sought to be enforced on their property, and prayed to have the statute under which the school board was alleged to be preparing to issue bonds decreed unconstitutional. They were sustained in the district court in both of the contentions made by them. Under such circumstances the party east has a right of appeal.

The application to dismiss the appeal is denied and the appeal maintained.