#### Wayne B. VINSON, a Citizen and Taxpayer of the Parish of Plaquemines, Individually, and as a Class Action on Behalf of other Citizens and Taxpayers of the Parish of Plaquemines v. The PLAQUEMINES PARISH COMMISSION COUNCIL and its Members, Individually, and the Plaquemines Parish School Board and its Members, Individually.

No. 2698.

Court of Appeal of Louisiana. Fourth Circuit.

May 1, 1967.

Rehearing Denied June 5, 1967.

Duke & Porterie, Neville M. Landry, New Orleans, for plaintiff and appellee.

Leander H. Perez, New Orleans, Luke A. Petrovich, Buras, for Plaquemines Parish Commission Council and its members, individually, defendants and appellants.

Sidney W. Provensal, Jr., New Orleans, for Plaquemines Parish School Board and its members, individually, defendants and appellants.

*2Before McBRIDE, YARRUT and SAMUEL, JJ.

YARRUT, Judge.

Plaintiff, a citizen and taxpayer of Plaquemines Parish, filed this suit against the Parish Commission Council and School Board to enjoin the Commission Council from advancing, paying or transferring any monies, funds or properties to, or on behalf of, the School Board for any purposes whatsoever; and prohibiting the' School Board from paying, advancing or transferring to third parties any monies, funds and properties heretofore received, being received or to be received, directly or indirectly, from the Commission Council; and asking final judgment of the Court that the above-described acts of the Defendants are injurious to Plaintiff and other similarly situated, and an impairment of their rights as citizens and taxpayers; and perpetuating the preliminary writ of injunction in the form and substance of the temporary restraining order.

Plaintiff further seeks judgment against the School Board, in favor of the Commission Council, for all such monies and properties, or the value thereof, transferred by the Commission Council and its predecessor (the Plaquemines Parish Police Jury) to or on behalf of said School Board; or, in the alternative, if Plaintiff is not entitled to judgment on this particular issue, and if the Commission Council and its members, and the School Board and its members, do not seek judgment herein for the return of said monies, etc. then there be judgment against the individual members of said Council and School Board for their failure properly to exercise their powers and discharge their duties as public officers, and in favor of petitioners and others similarly situated for the benefit of the Parish.

By agreement the case was tried on the merits. The Commission Council submitted evidence that all monies and funds it transferred to the School Board, beginning from its first appropriation to the School Board in 1948, were all used for the purchase of lands, for the construction of school buildings, for repairs and improvements to the school buildings placed on said lands, and for equipment, furnishings and supplies placed in said school buildings. Further proof was adduced that the title to all lands, school buildings, improvements, equipment, etc., had been paid for by the Commission Council or the Police Jury, and were transferred to the Commission Council by notarial Acts of Sale dated July 15, 1966.

The District Judge gave Plaintiff judgment, against the Commission Council and its members, permanently enjoining them from “paying, advancing or transferring any money, funds or properties to, or on behalf of, the School Board for any purposes whatsoever.” The District Judge epitomized the issue as *"one dealing with an allegation of the legal right of the Plaquemines Parish Commission Council to advance funds to the Plaquemines Parish School Board,”*(emphasis added) and stated:

> “There is a specific prohibition in the Plaquemines Parish Charter and in the Louisiana Constitution. The Court is compelled to recognize these prohibitions. No matter how worthy the purpose, the end does not justify the means, and the Charter and Constitution prohibitions must be enforced.”

The Court did not order the return of the funds advanced in the past, obviously since the titles to the schools, now in the name of Council, were valid sales and, therefore, by such transfer the money spent by the Commission Council for the construction of these schools and for the school lands and facilities had, in effect, been returned to the Commission Council.

In view of this, and the fact the evidence shows that the Commission Council, as owner of the school lands, buildings and improvements leased to the School Board the properties now utilized by the School Board for school purposes, makes *3it conclusive that the leases or contracts should he confirmed. This is proper because the expenditure by the Commission Council, by transfer of the funds to the School Board, in payment of said capital investments, is at issue here, and the lease contracts are a part of the case.

The controlling issue is the legal right of the Commission Council to advance funds to the School Board. The Charter for Local Self-Government for the Parish, in accordance with Section 3(d) of Article XIV of the Louisiana Constitution (Act 631 of the 1960 Legislature, adopted as a constitutional amendment), states that no provision of the Charter shall apply, or be construed as applying, to any of the powers and functions of the School Board, in effect prohibiting the Council from exercising the powers and functions of the School Board. The Commission Council contends that the Police Jury and the Commission Council, as governing bodies of the Parish made capital investments for the Parish in school buildings, and properties to provide the physical facilities to afford the youth of the Parish the best possible educational opportunities. The Commission Council has been invested with title to all school properties in consideration of all funds channeled through the School Board in compliance with LSA-C.C. Arts. 2133 and 2138.

Plaintiff contends, however, that the greater portion of school funds have come from the Commission Council. To this, we cannot agree, as the evidence, particularly the 1965 school budget, shows an expenditure of over $2,700,000, and an advancement of funds by the Commission Council in the amount of $625,000 only.

Plaintiff further contends, however, that the supplying of funds to the School Board would, in effect, place the control of the schools in the Commission Council. However, this is specifically prohibited by the Constitution and Parish Charter for Local Self-Government.

It is true these prohibitions deny the right of the Commission Council to exercise the powers and functions of the School Board, but they do not, in any way, prohibit the Commission Council from advancing funds to the School Board, or to any other governmental agency or officer of the Parish.

Plaintiff further contends that “we are dealing with the allegation of the legal right to funds” and “there is a specific prohibition in the Charter and in the Con-, stitution which authorizes such Charter.” We can find nd specific prohibition in either the Parish Charter or the Constitution which prohibits the channeling of funds to any other Parish function, agency or office. The allocation of funds, the channeling of funds and the investment of funds by the Commission Council, in many instances, are regulated by law; but there is no law prohibiting the Commission Council from investing certain other Parish funds in building schools, auditoriums, etc. In fact, LSA-R.S. 17:100, authorizes Parishes to aid in the construction of schools; and the governing authorities of the several parishes may appropriate available funds to aid the School Boards of their respective parishes, with the consent of said School Boards, in the construction of public schools. The expenditure of these funds rests solely within, the discretion of the Commission Council. It is not within the Commission Council’s discretion to give money for school operation because of the constitutional prohibition, but there is authority for the expenditure of funds for school construction as cited above. The matter of spending funds for the construction of schools rests within the discretion of the Parish governing body. The case of Saucier v. City of New Orleans, 119 La. 179, 43 So. 999, is applicable here. The Court there held that the State could transfer ownership of certain property to the City of New Orleans which would administer it. The State of Louisiana was allowed to grant property to a corporation, *4public or private, so long as the property was set aside for public use. Emery v. Orleans Levee Board, 207 La. 386, 21 So.2d 418. Yet, Plaintiff contends that the use of lands or funds for “school purposes is not for public purposes” and that, in the Saucier case, as well as in the Emery case, the properties involved were held for the benefit of all the members of the public, whereas in the instant case the school properties directly benefit only school children and their parents.

However, the expenditure of authorized Parish fund for public schools for the education of the children of the Parish is certainly for the benefit of and in the interest of the entire public.

The judgment and injunction in favor of Plaintiff and against Defendants by the District Court is reversed; and judgment rendered in favor of Defendants and against Plaintiff dismissing his Class Action, and annulling the injunctions against Defendants; Plaintiff to pay all taxable costs in both courts.

Judgment reversed.

SAMUEL, Judge

(concurring).

I agree with the conclusion reached by the majority and write this concurrence only for the purpose of pointing out and emphasizing what to me are important considerations.

The trial court judgment permanently enjoins the Plaquemines Parish Commission Council and its individual members from “ * * * paying, advancing, or transferring any money, funds, or properties to or on behalf of the Plaquemines Parish School Boai;d for any purpose whatsoever.” The judgment is based on the trial court’s conclusion that the Plaquemines Parish Charter and the Louisiana Constitution prohibit the actions enjoined. Only the Council and the Board have appealed therefrom, plaintiff has not answered the appeal, and the sole issue before us is whether or not such enjoined actions are prohibited by our law.

The Council was created in 1961 under authority of Article XIV, Section 3(d) of the Louisiana Constitution. In accordance with that constitutional provision, which in part states the powers and functions of the Parish School Board shall not be affected by the parish charter commission plan of government, Article 1, Section 1 of the Plaquemines Parish Charter provides:

> “No provision of this Charter shall apply, or be construed as applying, to any municipalities which may be incorporated within this Parish, nor with the powers and functions of the Parish School Board.”

Plaintiff contends: As shown by the record, during the past fifteen years the Council and its predecessor, the Police Jury, have advanced and transferred to the Board millions of dollars in money and property not only for capital improvements but also to the extent of more than half the funds used by the Board during that time to maintain, operate and support the parish school system. This is inconsistent with the intent and purpose of, and in fact violates, the above mentioned constitutional and charter provisions prohibiting the commission plan of parish government from “affecting” the powers and functions of the Board. Because the Board has *become*dependent on those funds and on the Council, their source, for a major portion of its necessary revenues, and because dependency by its very nature necessarily involves control, a continuance of such contributions would have the effect of permitting the Council to control the Board.

I am unable to agree with plaintiff’s contention. Of course, there can be no question as to the fact that, with the exception of the State Board and State Department of Education in certain areas (see LSA-Const. Art. 12 § 4 et seq. and LSA-R.S. 17:1 et seq.), the Board has the exclusive power to administer, maintain and operate the public schools of *5Plaquemines Parish (LSA-R.S. 17:81 et seq.). With one exception to which reference is made in the following paragraph, the Board, as do other Louisiana School Boards, obtains its revenues from the state, which distributes state funds directly to the Board, which in turn controls and manages the same (LSA-Const. Art. 12 § 14), and from the Board’s own actions in levying parish school taxes and issuing bonds, which funds also are controlled and managed exclusively- by the Board (LSA-Const. Art. 12 § 15). It is equally true that the governing authority of Plaquemines Parish, the Council, has no authority in the field of education, cannot infringe upon the powers and functions of'the Board and does not have any duty or legal obligation to contribute any funds whatsoever to the Board for school purposes or otherwise.

However, LSA-Const. Art. 12, § 15, ninth, provides that “ * * * parish funds for the support of public schools of elementary and secondary grades shall be additionally derived from such other revenues as may be provided by law.” And Revised Statutes 17:100 reads as follows:

> “The governing authorities of the several parishes may appropriate available parish funds to aid the school boards of their respective parishes, with the consent of the said boards, in the construction and operation of parish public schools.” LSA-R.S. 17:100.

It is apparent the legislature did not consider the giving of available parish funds to school boards by the governing authorities of the parishes infringed upon the authority, powers and functions granted to the boards by our constitution and laws or gave the governing authorities control thereof. Nor do I. The Board and the Council have their own separate areas of powers and functions; and each is supported by its own sources of revenue. Under the above quoted R.S. 17:100 the Council cannot be forced to advance even available parish funds to aid the Board; whether or not it will make such advances is a matter solely within the discretion of the Council. And under that statute the Board cannot be forced to accept such advances; it must consent thereto.

The record does not establish that the Board in the instant case is, in actual fact, controlled by the Council as a result of funds advanced by the latter. Thus plaintiff’s contention essentially is to' the effect that it is not wise to permit the Council to advance large amounts to the Board because this may lead to control of the Board by the Council. In view of Constitution Article 12, Section 15, ninth, specifically permitting school boards to derive funds from “such other revenues as may be provided by law”, and in view of R.S. 17:100, under which one of such “other revenues” is available parish funds from the governing authority of the parish, plaintiff’s contention is a matter which addresses itself to the legislature and not to the courts.

I respectfully concur.

ON APPLICATION FOR REHEARING

PER CURIAM.

On application for rehearing Plaintiff correctly points out an error in the majority opinion. We stated (as was urged by the Defendant) that the 1965 school budget showed an expenditure of $2,700,000, while the advancement of funds by the Parish Commission Council amounted to $625,000. The only evidence in the record shows that the expenditure by the Commission Council for the year 1965 was $673,580, while the ad valorem revenue received by the School Board was $461,224.18. The record does not disclose the amount of the school budget. We are of the opinion that the error is immaterial to this case, the only issue here being whether the Parish Commission Council has the right to advance available money to the Parish School Board, not how much money it had advanced.

The application for rehearing is refused.

Rehearing refused.