Opinion
No. 29605.
June 17, 1929. Rehearing Denied July 8, 1929.
Appeal from Nineteenth Judicial District Court, Parish of East Baton Rouge; W. Carruth Jones, Judge.
Consolidated suits by the Bossier Parish School Board and another, and by the Caddo Parish School Board and another, against the Louisiana State Board of Education and others. From judgments of dismissal, plaintiffs appeal. Affirmed.
R.H. Lee, Dist. Atty., of Minden, L.C. Blanchard, Dist. Atty., and Aubrey M. Pyburn, Asst. Dist. Atty., both of Shreveport, C.C. Bird, Jr., of Baton Rouge, Foster, Hall, Smith Blue and Thigpen, Herold Cousin, all of Shreveport, for appellants.
Percy Saint, Atty. Gen., Peyton R. Sandoz, Asst. Atty. Gen., White, Holloman White, of Alexandria, and Burke Smith, of New Iberia, for appellees.
These consolidated suits were instituted respectively by the school boards of Bossier and Caddo parishes, and by the superintendent of schools of each of these parishes, against the state board of education, the state superintendent of education, the state auditor, and the state treasurer. The purpose of the suits is to have Acts No. 100 and No. 143 of 1928, in so far as they dedicate or appropriate any part of the severance tax fund to or for the purchase of school books for the use of the children of the state, declared unconstitutional on the same grounds as alleged in the case of Silas P. Borden et al. v. Louisiana State Board of Education et al. No. 29569, this day decided) 123 So. 655, and to enjoin defendants from using any part of the severance tax fund for such purchase. The purpose of the suits is also, in effect, to require the payment to petitioners of the $750,000, appropriated by Act No. 143 of 1928, for the purchase of school books for the use of the children of the state, and to have it decreed that all of the severance tax fund, after the deduction of the expenses of collection and the amount allocated to the parishes, is part of the current school fund of the state, and distributable as such, in the manner and form provided in the Constitution, to be expended by the parish school boards solely for the support of the public schools of their respective parishes.
Ante, p. 1005.
Defendants filed exceptions of no right or cause of action. These were sustained by the trial court, and the suits dismissed.
The only legislation that dedicates or appropriates any part of the severance tax fund to or for the public schools of the state is Act No. 100 of 1928 and Act No. 143 of the same year. The first of these acts, as we held in the Borden Case, cited supra, merely dedicates an indefinite part of the tax, after deducting funds and appropriations provided by the Constitution, and then directs that the balance shall be transferred to the public school fund. Act No. 143 of 1928, after making certain appropriations, unnecessary to mention, out of the severance tax fund, appropriates $750,000 out of that fund for the purchase of school books for the use of the children of the state.
As we held in the Borden Case, Act No. 100 of 1928 is merely an act that dedicates funds, and is not an appropriation act. Of and by itself it has no practical value, save, perhaps, to serve as a basis for future appropriations. If Act No. 143 of 1928, or, for that matter, if Act No. 100 of 1928, were declared unconstitutional, or if both of them were so declared, in so far as they relate to the purchase of text-books for the use of the children of the state, plaintiffs would gain nothing by the decree. The declaring of these acts unconstitutional, to the extent mentioned, would leave the $750,000 in the treasury, subject to appropriation by the Legislature, and would not, as urged by plaintiffs, cause this sum, or any part of it, to pass to the public school fund, subject to distribution among the parishes.
We therefore think that plaintiffs disclose no right or cause of action. They have no interest to sustain these suits, and were properly dismissed.
The judgment in each of these cases is therefore affirmed.
THOMPSON, J., concurs in decree.
I concur in the decree holding that the plaintiffs in these consolidated cases are without interest to maintain their suits.
Plaintiffs right of action is based wholly upon the provisions of Act No. 100 of 1928. In my view, that statute is unconstitutional. My reasons for this view are set forth in the dissenting opinion which I have filed in the Borden Case, 123 So. 655, decided contemporaneously with the decision in the present case. And, I may add, the statute cannot be sustained as to the public schools and annulled as to private and sectarian schools. This is so, because the statute is not only indivisible in its terms, but also because its meaning and effect is made certain by the action of the Legislature itself in expressly refusing to limit its application solely to the children attending public schools.
Ante, p. 1005.
Therefore, in no event could the plaintiffs, or the public school fund that they are seeking to protect or augment, be benefited by a judicial declaration that Act No. 143 of 1928 is invalid. It is clear that such a declaration or decree would not have the effect of transferring the severance tax fund to the public school fund, but would merely leave it in the state treasury subject to the legislative will as limited by the organic law.