State ex rel. Nicholls v. Shakespeare

41 La. Ann. 156

• Court: Supreme Court of Louisiana
• Decided: February 15, 1889
• Docket: No. 10,247
• Status: Published

Opinions

On Motion to Dismiss.

The opinion of the Court was delivered by

Poché, J.

Relators, whose object was to enforce the execution of Act No.' 63 of 1888, entitled “An Act creating a Police Board for the City of New Orleans, and defining its powers,” are appellants from a judgment which, rejected their application for a writ of mandamus to the end proposed by them.'

Appellee’s motion to dismiss the appeal is grounded as follows.:

“ That this Court is without jurisdiction ratione materia) to entertain and pass upon relators’ petition, there being no pay attached to the office of commissioner of police herein involved, and nothing to show that the amount in dispute exceeds $2000 00.”

If the controversy involved no other issue but the creation of the right to the office of commissioner of x>olice, there would be some merit in the motion. But such is not the case under a proper appreciation of the pleadings, and a due consideration of the statute sought to be enforced, which, is made part of relators’ petition in the case.

. A careful analysis of the act discloses that its true and clear purport is to provide for a complete reorganization of the entire police force of the City of New Orleans, by withdrawing from the Mayor and City Council the power of appointing and controlling the force, and by conferring that'power to the Police Board created by the statute.

And in terms, the act includes in the powers conferred to the Board, that, which might have been claimed by logical inference, of administering the fund to be appropriated by the city authorities to moot the payment of the salaries of all persons employed in, or connected with, the force.

After imposing on the Board the duty of malting ah annual estimate o.f the sums required for the expenses of maintaining the force during the ensuing year, Section 20 of the Act provides: “The Common Council shall set aside in the budget of cxx>enses, a sum equal to that required according to the estimate made as aforesaid, by the Police Board; provided, that said Council shall have 'the right to reduce said estimate to a sum not less than one hundred and fifty thousand dollars ($150,000) for the police department, including the amount to bo received” “from the wharf lessees, whenever the revenues of the city will not justify or permit a larger appropriation.”

By reference to previously existing laws, under which the compensation and the control of the police force were loft to the Mayor and City Council, it appeal’s that the widest latitude and absolute option were left to the city as to the appropriation and as to the disbursement of funds needed for the salaries of all persons employed on the force.

The only mandates of the law on the subject were to the effect of conferring the power to, surd making it the duty of, the council, “to preserve the peace and good order of the City,” * * * and “ to organize and provide an efficient police,” coupled with the general power and corresponding duty of providing pecuniary means necessary to that end.

That, under such grant of power, the City had the option to organize a small or a large police force, and by that means, as well as by the way of fixing- the salaries of all persons on the force, to determine the amount to be appropriated therefor. But under the law which the Governor is now seeking to enforce, all matters connected with the costs of providing an efficient xiolice are removed from the discretion or control of the City, and the latter is ordered, in mandatory terms, to provide annually a sum, not less than $150,000, for the purpose of maintaining the police, force. It thence follows, that a judgment which would enforce the execution of the act in question would, in its pecuniary effect or result, be tantamount to a mandamus directed to the City Council, ordering an annual ax>propriation, for an indefinite number of years, of not less than $150,000, for a designated purpose, which cannot be varied or departed from under any circumstances.

It is too x>atent to admit of any doubt or .discussion that, by such a judgment, the City, herein represented by the Mayor and Council, would be affected in her pecuniary interests in an amount exceeding $2000, and that is the matter in dispute in the controversy.

It therefore follows that, if cast in the suit, the defendant would have had the unquestioned right of ax>peal to this Court, and it is well settled in our jurisprudence, that such a feature in a cause is the proper test of jurisdiction in case of appeal by either party to the controversy.

Conceding, therefore, that the Governor has no direct or pecuniary interest in the contestation, it is quite apparent that the jungment to be rendered in the cause will affect the City of New Orleans in an amount exceeding the lower limit of our jurisdiction, and that his right of appeal to this tribunal must be recognized and enforced.

The motion to dismiss is therefore denied, at appellees’ costs.