
    (99 South. 280)
    No. 25881.
    ROBERTS et al. v. EVANGELINE PARISH SCHOOL BOARD.
    (Nov. 19, 1923.)
    
      (Syllabus by Editorial Staff.)
    
    Schools and school districts <&wkey;97(4) — Taxpayers held not entitled to sue to set aside school district bond election after expiration of 60 days.
    Under Const. 1921, art. 14, § 14, providing that after 60 days from the promulgation of the result of an election no court shall have authority to inquire into the legality thereof, taxpayers could not after the expiration of 60 days sue to set' aside an election authorizing a bond issue for a school district created from parts of separate .parishes under Act No. 152 of 1920, notwithstanding Const. 189S and 1913, art. 250, and Const. 1921, art. 12, § 10.
    O’Niell, C. J., and Land and Brunot, JJ., dissenting.
    Appeal from Sixteenth Judicial District Court, Parish of Evangeline; B. H. Pavy, Judge.
    Action by N. D. Roberts and others against Evangeline Parish School Board. Judgment for defendant, and plaintiffs appeal.
    Affirmed.
    George L. Fontenot, of Ville Platte, for appellants.
    R. Lee Garland, of Opelousas, for appellee.
    By the WHOLE COURT.
   ST. PAUL, J.

Under the provisions of Act 152 of 1920, § 1, the school boards of Evangeline and Acadia parishes undertook to create the “Basile school district,” composed of adjoining parts of the two parishes, having in view a bond issue for the purpose of erecting a public school at Basile in Evangeline parish for the school children of said district. The school board of Evangeline parish was designated the governing authority for said district under the provisions of section 3 of said act.

Said governing authority thereupon authorized an election to take the sense of the qualified taxpayers of said district as to said bond issue and a property tax in support thereof, which election was held in due course and resulted in favor of said, bond issue and tax.

More than 60 clays after the promulgation of the result aforesaid, the plaintiffs (resident and taxpayers in said district) brought this suit to annul and set aside said election, as also the proposed bond issue based thereon and tax in support thereof.

I.

Plaintiffs attack Act 152 of 1920 as being in conflict with (the spirit of) article 250 of the Constitutions of 1898 and 1913, and article 12, § 10, of the Constitution of 1921; which (they claim) contemplate that, in school matters, the integrity of each parish shall be preserved, and that each parish school board, with its own parish superintendent of education, shall remain the sole authority in the school mátters of said parish, subject only to the state board of education.

Plaintiffs further urge that, in any event, said election was illegally conducted, and therefore null; for the reason that but one polling place was provided for in said district, to wit, at Basile in Evangeline parish, and that the voters of Acadia parish were required to (and did) vote outside of the parish where they resided. As to which last, see Milton v. Lincoln Parish School Board, 152 La. 761, 94 South. 386.

Whereupon defendants challenge the authority and deny the jurisdiction of the court herein, as follows;

“And the respondents now plead as a bar to plaintiffs action' herein, and as a bar to the right and authority of this honorable court to inquire into said, matters, the prescription (limitation) of sixty days as provided for in paragraph (n) of section 14 of article 14 of the Constitution of 1921.”

II.

Paragraph (n) of section 14 of article 14 pf the Constitution of 1921 (pages 105 and 106) reads as follows:

“For a period of sixty (60) days from the date of promulgation of the result of any election held under the provisions of this section, any person in interest shall have the right to contest the legality of such election, the bond issue provided for, or the tax authorized, for any cause; after which time no one shall have any 'cause or right of action to contest the regularity, formality, or legality of said election, tax provision, or bond authorization, for any cause whatsoever. If the validity' of any election, special tax or bond issue authorized or provided for, held under the provisions. of this section, is not raised within the sixty (60) days herein prescribed, the authority to issue the bonds, the legality thereof and of the taxes necessary to pay the" same shall be conclusively presumed, and no court shall have authority to inquire into such matters. * * * ”

III.

The Constitution of 1898 provided (article 270) that—

“The General Assembly shall have pow.er to enact general laws authorizing the parochial, ward and municipal authorities of the state, by a vote of the majority of the property taxpayers * * * to levy special taxes in aid of public improvements ‘ or railway enterprises; provided,” etc.

This was carried into effect by Act 202 of 1898, p. 483, amended by Act 23 of 1904, p. 26.

In June, 1905, under authority of the police jury of Acadia parish, an election was held in the TMrd justice of the peace ward, to authorize a tax in said ward in aid of the Opelousas, Gulf & Northeastern Railroad Company, which election resulted favorably to said tax and was duly promulgated. The railroad was completed and operatéd in 1907. But when in 1908 an attempt was made by the railroad company to collect said taxes, this court held that—

“Under Article 270 of the Constitution of 1898, the Police Jury is without power to order an election for special taxes in aid of a railway enterprise in a Justice of the Peace Ward forming a part of a regular parish ward. The ‘ward’ mentioned in said article is the political subdivision of the parish commonly called a ‘police jury ward.’ ” Daigle v. Opelousas, Gulf & N. E. Ry. Co., 124 La. 1047, 50 South. 846.

Thus the railroad did not get its taxes; but the people of the “police jury ward” got the railroad, since it could' not move away.

The decision was doubtless correct; but the taxes were lost to the railroad simply because the Railway officials and attorneys, the parish officials and voters, did not understand that a “ward” did not mean a justice of the peace ward.

This opinion was handed down in December, 1909, and became final January, 1910; but at the very next session of the Legislature thereafter held, to wit, May to July, 1910, Act 256 of that year was passed on the same subject-matter, wherein was included section 17, reading as follows (page 432):

“That, for a period of sixty days from the date of the promulgation of the result of any such election, any person in interést shall have the right to contest the legality of suqh election for any cause; after which time no one shall have any cause of action to contest the regularity, formality, or legality of said election for any cause whatever. If the validity of any election held under the provisions of this act is not raised within the sixty days herein prescribed, then no governing authority of any subdivision herein named, required to levy a tax or issue bonds as authorized at an election or under this act, shall be permitted to refuse to perform that duty and urge as an excuse or reason therefor, that some provision of the Constitution or law of Louisiana has not been complied with, but it shall be conclusively presumed that every legal requirement has been complied with, and no court shall have authority to inquire into such matters after the lapse of sixty days as herein provided.” See Act 256 of 1910, § 17, p. 432.

In the same year an act relative to drainage was passed, containing a somewhat similar provision, to wit, Act 317 of 1910 (section 28).

In February, 1912, this court said:

“The prescription, of 60 days, established by section 28 of Act No. 317 of 1910, has no application to proceedings which are not only unauthorized by, but in contravention of, the law, constitutional and statutory.” St. Charles Drainage District v. Cousin, 130 La. 331, 57 South. 992.

In 1917 this court held that under section 17 of Act 256 of 1910, an attack upon a bond issue and tax came too late if made more than 60 days after the promulgation of the returns of election, even though the bond issue and tax were attacked on the ground of “unconstitutionality,” and the court said:

“The limitation was devised * * * to protect the fisc against uncertainty, and to protect the bonds to be issued from attack, after a reasonable time given to the taxpayers to contest the validity thereof.” Morgan’s La. & Tex. R. R. & S. S. Co. v. Tax Collector, 142 La. 190, 76 South. 606.

In 1918 this court said in Tremont Lumber Co. v. Police Jury, 144 La. 678, 81 South. 249:

“Defendant’s plea of 60 days’ prescription [under section 17 of Act 256 of 1910] must also be overruled. If the authority which called the election had no right to do so, then the election was so absolutely null that it amounts to nothing, and cannot be given vitality by prescription”—citing Daigle v. Opelousas, Gulf & N. E. Ry. Co., supra.

IV.

It will thus be seen that in Daigle v. Opelousas, etc., R. Co., 124 La. 1047, 50 South. 846, a tax on the faith of which a railroad had been built was set aside long afterwards on a perfectly legal but very fine ex post facto distinction between a justice of the peace ward and a police jury ward; that is, between the territory for which a justice of the peace is elected and that for which a police juror is elected (generally, coextensive).

It will further be seen that act 256 of 1910 was passed immediately afterwards; that in St. Charles Drainage District v. Cousin, 130 La. 331, 57 South. 992, this court emasculated the statute of 1910, by denying, in effect, that the limitation fixed by said statute had any application where the legality of the tax was involved; that in Morgan’s La. & Tex. R. Co. v. Tax Collector, 142 La. 190, 76 South. 606, the court in effect overruled the St. Charles Case, and reinstated the statute of 1910 in full force by holding that the limitation fixed thereby applied even when the constitutionality of the tax was involved; and, finally, that in Tremont Lumber Co. v. Police Jury, 144 La. 678, 81 South. 249, this court went back to the doctrine of the Daigle Case decided before the act of 1910, and in view of which the act of 1910 appears to have been passed.

V.

It wag in this condition of uncertainty, and of vacillation on the part of the court, that the convention of 1921 met. It was as well known to the members of that convention as it is to the members of this court that no bond issue by any public body in this state could be negotiated unless and until this court had passed finally upon that particular bond issue; as fully appears from correspondfence in this transcript and in others that have come before us.

Accordingly, that body, which alone had power to give jurisdiction or withold it from the courts, adopted paragraph (n) of section 14, art. 14, aforesaid. And that paragraph, in terms too plain to be mistakable, clearly withholds jurisdiction from the courts of this state after 60 days. It says:

“And no court shall have authority to inquire into such matters.”

And the matters into which “no court shall have authority to inquire” are set forth in the next preceding words of the paragraph, to wit:

“The authority to.issue the bonds, the legality thereof and of the taxes necessary to pay the same.”

All of which the paragraph declares shall be conclusively presumed and—

“After which [60 days] no' one shall hav,e any'cause or right of action to contest the regularity, formality, or legality of said election, tax provision, or bond authorization, for any cause whatsoever."

VI.

Accordingly the Constitution declares that when 60 days have elapsed after the promulgation of a tax election—

(1) The legality of the election, of" the authority to issue the bonds, and of the .taxes necessary to pay the same shall be conclusively presumed.
(2) That no person shall have any right of action to contest the legality of said election,, tax provision or bond authorization, for any cause whatsoever; and
(3) That no court shall have authority to inquire into such matters.

The Constitution: therefore declares in plain terms that after 60 days the bonds and taxes shall be conclusively held to be valid, that no one shall have the right to question their validity, that no court shall have authority to entertain any controversy over their validity.

And it seems to us that language could not be used to express more strongly the very patent intention of the constitutional convention, to wit, that after 60 days have elapsed without any attack upon a bondUssue and tax voted by property taxpayers under col- or of law, any person may safely purchase such bonds and feel secure that the taxes levied to pay them will be sustained by the courts of this state. The, constitutional convention had the right to say this; it did say it, and that is the end of the matter.

The judgment appealed from declining jurisdiction was therefore correct.

Judgment affirmed.

LAND and BRUNOT, JJ., dissent.

O-’NIELL, C. J.

(dissenting). The court’s ruling in this case is confined to the effect of the 60 days’ prescription, or limitation. There is no ruling on the question whether the Act 152 of 1920 is violative of those provisions of the state Constitution which seem opposed to the idea that the Legislature may extend the jurisdiction of a parish school board-, or of a parish school superintendent, beyond the territorial limits of the parish. Therefore I shall not express an opinion as to whether the statute is violative of the state Constitution.

The majority opinion, from which I dissent, maintains that the Constitution of 1921 (article 14, § 14, par. n) purports to validate, by the prescription or limitation of 60 days, taxes levied and bonds issued in violation of the Constitution itself. Such a provision in a Constitution would seem to me anomalous; and it seems to have been sedulously avoided by the language used in paragraph p of section 14 of article 14. What the paragraph says is that, after 60 days from the date of promulgation of the result of any election “held under the provisions of this section,” there shall be no right or cause of action, on the part of any one, to contest the regularity, formality, legality of the election, or tax provision, or bond authorization. I do not believe that the word “constitutionality” was forgotten by the authors of this paragraph, when they were using such words as “regularity,” “formality," “legality,” “validity.” There is no reason to doubt that the omission of the word constitutionality was deliberate.

The interpretation which the court is now giving to the Act 152 of 1920 makes it violate the due process clause and the equal protection clause of the Fourteenth Amendment

When a state court of last resort construes a statute so as to permit a violation of the due process clause, or of the equal protection clause,, of the Fourteenth Amendment, the Supreme Court of the United States will adjudge the statute unconstitutional, even though, under a proper construction, the statute would be valid. In Truax v. Corrigan, 257 U. S. 312, 42 Sup. Ct. 124, 66 L. Ed. 254, a statute of Arizona (section 1464, Rev. Stat. of 1913) was adjudged invalid because the Supreme Court of that state construed the statute so that, in the opinion of the Supreme Court of the United States, it worked a denial of the equal protection of the law; even though ttye statute was copied from a federal statute (section 20 of the Clayton Act, 38 Stat. at L. 738, c. 323; U. S. Comp. Stat. § 1243d; 6 Fed. Stat. Anno [2d Ed.] p. 141) which, under a proper construction, was declared valid.

According to section 14 of article 14 of the Constitution, the school board, in order to issue the bonds and levy the tax, had to be authorized “by a vote of a majority, in number and amount, of the property taxpayers qualified to vote under the Constitution and laws of this state,” voting at an election called for that purpose, throughout the whole school district.

The school board of Evangeline parish called the election ostensibly for the taxpayers throughout the whole district — for those residing in Acadia parish as well as for those residing in Evangeline parish — although the proceeds of the bonds to be issued and of the tax to be levied were to be appropriated entirely to the building of a schoolhouse in Evangeline parish. A voting precinct was established in Evangeline parish, so that the taxpayers residing in that parish could vote for or against the proposition; but the taxpayers residing in Acadia parish were not allowed to vote. There was no voting precinct in that part of the school district which is in the parish of Acadia; and the taxpayers residing in that parish, of course, were forbidden by the Constitution to vote outside of the parish. Section 3 of article 8 of the Constitution declares—and section 13 of Act 46 of 1921 (page 52) repeats—that, in an election called for the taxpayers of any subdivision of the state to vote on a proposition to incur a debt, to issue bonds, or to levy a tax, the qualifications of the taxpayers to vote shall be the same, as to age, residence, poll tax payments, and registration, as the qualifications prescribed for electors to vote in a general election. And paragraph (a) of section 1 of the same article of the Constitution requires that, to be an elector, a citizen must have been an actual bona fide resident “of the precinct, in which he offers to vote, three months next preceding the election,” and must have been an actual bona fide resident of the parish for a year.

It is conceded, in the majority opinion, that this is a case of taxation without representation. The court now affirms the doctrine announced in Milton v. Lincoln Parish School Board, 152 La. 761, 94 South. 386, which I approve, viz.:

“Under Const. 1913, art. 197, § 1, and article 199, requiring an elector to have been a resident of the parish for one year, and'of the precinct for six months, where there was only one voting precinct in a school district embracing territory lying in two parishes, and voters from one parish went to the precinct in the other parish and votect at a bond election, their votes were improperly counted.”

Therefore, in this case, if the taxpayers residing in that part of the school district that is in Acadia parish had gone and voted at the voting precinct in Evangeline parish—which was the only voting precinct provided for the election—their votes would not have been counted.

It is therefore conceded that the privilege of voting on the proposition to incur the debt of $50,000 and to issue the bonds, to be paid by a special tax on all taxable property in the school district, was afforded to the taxpayers residing in that part of the district that is in Evangeline parish, but was denied the taxpayers residing in that part of the district that is in Acadia parish.

In lieu of the privilege of voting on the proposition — which was guaranteed to all of the taxpayers by the Constitution, and which was accorded only to the taxpayers in Evangeline parish — the taxpayers in Acadia parish had the right merely to sue to annul the result of 'the election, within 60 days after, it was promulgated. And the majority opinion expressed in this ease — and from which I respectfully dissent — is that, because the taxpayers residing in Acadia parish had the right to sue to annul the result of this election at any timfe within 60 days after it was promulgated, therefore they were given due process of law, and the same protection of the law that was enjoyed by the taxpayers residing in Evangeline parish.

The Constitution does not say how the result of an election held under the provision of section 14 of article 14 shall be promulgated. Paragraph (n) merely declares:

“Eor a period of sixty (60) days from the date of promulgation of the result of. any election held under the provisions of this section,” etc.

The authors of the clause left it to the Legislature to say what should constitute promulgation. And the Legislature, in section 22 of Act 46 of the Extra Session of 1921 (page 54), has declared that promulgation of the result of an election held under the provision of section 14 of article 14 of the Constitution shall be a publication in one issue of a newspaper published in the subdivision in which the election was held, if there be a newspaper published in the subdivision, and, if there be none, then in a newspaper published in the parish, or, if there be no newspaper published in the parish, then in a newspaper published in an adjoining parish.

My purpose in referring to the law saying what shall constitute promulgation is merely to show that it does not guarantee due process of law. It is from the date of promulgatipn that the 60 days’ prescription or limitation of the right of a taxpayer to sue to annul the result of such an election begins to run. The taxpayer who does not read the promulgation published once in a country newspaper — perhaps not in the parish where the taxpayer lives — loses his right, in 60 days, to complain of the tax imposed upon him by the vote of his neighbors, without his knowledge.

If that process of taxing and taking private property is due process of law, it is not easy to imagine a process that would be not due process of law.

The provision in the Fourteenth Amendment which forbids a state /to deny to any person the equal protection of the laws guarantees something more than what we mean usually when we speak of due process of law.

“The due process clause requires that every man shall have the protection of his day in court, and the benefit of the general law — a law which hears before it condemns, which proceeds not arbitrarily or capriciously, but upon inquiry, and renders judgment only after trial, so that every citizen shall hold his life, liberty, property, and immunities under the protection of the general rules which govern society. Hurtado v. California, 110 U. S. 516, 535, 28 L. Ed. 232, 238, 4 Sup. Ct. Rep. 111, 292. It, of course, tends to secure equality of law in the sense that it makes a required minimum of protection for every one’s right of life, liberty, and property, which the Congress or the Legislature may not withhold. Our whole system of law is predicated on the general fundamental principle of equality of application of the law. * * * But the framers and adopters of this amendment were not content to depend on a mere minimum secured by the due process clause, or upon the spirit of equality which might not be insisted on by local public opinion. They therefore embodied that spirit in a specific guaranty.
“The guaranty was aimed at undue favor and individual or class privilege, on the one hand, and at hostile discrimination or the oppression of inequality, on the other. It sought an equality of treatment of all persons, even though all enjoyed the protection of due process.'” Truax v. Corrigan, 257 U. S. 332, 42 Sup. Ct. 129, 66 L. Ed. 263.

I do not doubt that, if a taxpayer residing in that part of the school district that is in Acadia parish should take this question to the Supreme Court of the United States by writ of error, contending that the construction which the Supreme Court of Louisiana has put upon the Act 152 of 1920, and upon paragraph (n) of section 14 of article 14 of the state Constitution, is violative of the due process clause and of the equal protection clause of the Fourteenth Amendment, the ruling now made would be reversed.

I do not believe that the constitutional convention intended to do or say anything so incongruous, after prescribing, in IS long paragraphs covering 5 pages of the Constitution, the limitations and restrictions upon the right of the governing authorities of the municipalities and other subdivisions of the state to issue bonds and levy special taxes, as to say, in the nineteenth paragraph, that, after 60 days from promulgation of the result of an election held for that purpose, it would not matter whether any of the requirements of the Constitution were complied with, or whether all of the constitutional limitations and restrictions were violated.

Much is said, in the majority opinion in this ease, in criticism of the rulings of our predecessors, to show that the writers of the Constitution of 1921 intended that the 60 days’ prescription or limitation should bar an action founded upon a violation of the Constitution itself, as well as an action founded upon any other illegality, or an irregularity or informality. My answer to the argument is that the writers of the Constitution of 1921 must have meant what they said.

It matters not, in this case, how far the pendulum has swung in the way of our keeping the governing authorities of the municipalities and other subdivisions of the state within the constitutional limits, in the issuing of bonds and levying of special taxes. It must not swing too far the other way. It matters not how bad has been — what is called in the majority opinion — “this condition of uncertainty and of vacillation on the part of the court,” composed of the predecessors of most of us. It matters not now how unfortunate for the Opelousas, Gulf & Northeastern Railway Company was the court’s ruling in the Daigle Case; or how improper was the court’s citation of that case in the Tremont Lumber Company’s Case. It matters not that the then chief justice, for the court, “emasculated the statute of 1910,” in the case of the St. Charles Drainage District v. Cousin; or that the court overlooked the distinction between the imeonstitutionality and any other illegality of a tax, in the Morgan’s Louisiana & Texas Railroad & Steamship Company’s Case. We must not imagine that the constitutional convention of 1921 was so anxious to correct the supposed blunders of our predecessors that the convention was willing to abolish the requirement of due process of law, and the equal protection of the laws, in the matter of issuing bonds and levying special taxes, by municipalities and other subdivisions of the state.

I agree with the majority opinion that the ruling in the case of Morgan’s L. & T. R. R. & S. S. Co. v. Tax Collector, 142 La. 198, 76 South. 606, was wrong in so far as the court then failed to distinguish between the uneoivstituiionaUty and any other illegality of a tax or bond issue. I dissented from the decision in that respect, as the official report of the case shows.

It would please me very much to concur in the opinion that these bonds are valid, if I could do it without having to reconcile my mind to the doctrine announced. We always enjoy upholding taxes levied for public.education. But the end never justifies the means. And I doubt that the end will come in this case until the federal question is decided.  