(107 So. 139)

No. 27114.

#### HENDERSON et al. v. CITY OF SHREVEPORT et al.

(Jan. 4, 1926.

Rehearing Denied Feb. 1, 1926.)

*(Syllabus by Bditorial Staff.)*

1. Municipal corporations &wkey;>986—Vote of special tax for specified public improvements and such “other” improvements as council considered necessary held advisory and not mandatory.-

Where citizens voted special tax for purpose of constructing public improvements including viaduct, storm sewers, and drainage, opening and paving streets, erecting additional fire stations, purchasing necessary real estate, and constructing such other permanent improvements as might be necessary and authorized by city council, with no limitation other than that no part of funds should be used for any expenses of city government, such mention of certain public improvements *held*merely advisory and suggestive and not mandatory.

2. Municipal corporations &wkey;>986—Council’s use of special tax to purchase site for auditorium held authorized, though fund was not sufficient to erect building.

Where citizens voted special tax for purpose of constructing such permanent public improvements as city council considered necessary, *held*that council was authorized to purchase site for auditorium, though funds de*361rived from special tax were sufficient to purchase site only and not erect building thereon.

3. Municipal corporations &wkey;s63(l)—Court will not control discretion of council unless manifestly abused.

Where citizens voted special tax for purpose of constructing such permanent public improvements as city council considered necessary, court *held*without authority to disturb council in exercise of authority, unless manifestly abused.

4. Schools and school districts <&wkey;69—Statute authorizing school board to change location of schoolhouse, and sell and dispose of “old site,” held to authorize sale of any property acquired for school purposes, whether or not it had ever been so used.

Act No. 100 of 1922, § 20, providing that school board may change location of schoolhouse and dispose of old site, *held*to authorize board to sell all land which it originally purchased for school purposes, but for which it had no longer any need; “old site” meaning any site, whether or not it had ever been actually used for school purposes.

5. Mandamus &wkey;>l2—Mandamus will not issue to compel public boards or officers to do that which law does not authorize them to do.

Mandamus will not issue to compel public boards or officers to do that which law does not authorize them to do.

6. Mandamus <&wkey;l2— Public boards and officers are authorized to do voluntarily that which they could by mandamus be compelled to do.

Public boards and officers must be authorized to do voluntarily that which they could by mandamus be compelled to do, though not being specially authorized so to do.

7. Schools and school districts c§=>69—Statute providing that school board may change location of schoolhouse, sell and dispose of old site, and use proceeds thereof towards procuring new one, held to vest school board with absolute discretion in such matters.

Act No. 100 of 1922, § 20, providing that school board may change location of schoolhouse, sell and dispose of old site, and use proceeds thereof towards purchasing a new one, *held*to vest school board with absolute discretion in such matters, including discretionary control of the school funds.

8. Schools and school districts <&wkey;69—When it is permitted that property dedicated to school purposes be sold, and required that proceeds thereof be used to' purchase other property to be used for same purposes, that old property was not sold simultaneously with purchase of new does not invalidate sale of old property for purchase of new.

When it is permitted that property dedicated to some school purposes be sold, and required that proceeds thereof be used to purchase other property to be used for sainé purposes, that old property was not sold simultaneously with purchase of the new does not invalidate sale of old property for purpose of purchasing new.

9. Schools and school districts &wkey;>69—Under statute providing that school board may change location of schoolhouse and sell old! site, board must sell all property which is no longer used, necessary, or suitable for school purposes.

Under Act No. 100 of 1922, § 20, providing that school board may change location of schoolhouse and dispose of old site, school board must sell all property no longer used, necessary, or suitable for school purposes.

10. Counties <&wkey;>110—Parishes; police jury is prohibited from selling or otherwise disposing of courthouse site without express authority of Legislature, because it *was*duty of parish to provide courthouse and jail.

Police jury is prohibited from selling or otherwise disposing of courthouse site without express and special authority from Legislature. because it was duty of parish, under Rev. St. 2746, to provide courthouse and jail.

11. States <$=»85—“Public things” are those the property of which is vested in a whole nation.

“Public things” are those the property of which is vested in a whole nation; i. e. in the state.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Things public.]

12. States <&wkey;>89—Public things cannot be alienated without express consent of that branch of government to which has bean given supreme lawmaking power.

Since public things are those the property of which is vested in a whole nation, they cannot be alienated without express consent of branch of government to which has been given a supreme lawmaking power.

*363Appeal from First Judicial District Court, Parish of Caddo; E. P. Mills, Judge.

Action hy W. K. Henderson and others against the City of Shreveport and the School Board of Caddo Parish to enjoin the city from buying and the School Board from selling certain land. From a judgment enjoining the city from purchasing, but refusing to enjoin School Board from selling, both parties appeal.

Judgment amended so as to reject plaintiff’s demand for injunction as to both defendants, and affirmed.

Wilkinson, Lewis & Wilkinson, of Shreveport, for plaintiffs.

■ B. F. Roberts, City Atty., of Shreveport, for defendant City of Shreveport.

Thatcher & Webb, of Shreveport, for defendant Parish School Board.

ST.

PAUL, J.

This is an action brought by two residents and taxpayers of Shreveport, to enjoin the city of Shreveport from *buying,*and the school board of Caddo parish from *selling,*a certain unimproved portion of ground, or site for a building, in said city, on the ground that the former is without authority *to buy, and the*latter without authority to sell, said *particular*building site or portion *of ground; the*said city and school board being about to consummate a purchase and sale of said property for an agreed price of $24,000.

There was judgment below enjoining the city from buying, but rejecting plaintiff’s demand for an injunction restraining the school board from selling; and plaintiffs and the city both appeal.

I.

The facts of the case are substantially these:

1. The school board purchased the property with funds dedicated to the purchase of sites for school buildihgs. It bought the property (as we understand it) in anticipation of its being needed for school purposes, but ■ did not build thereon; and it now finds that the site is not needed or suitable for said purposes, and hence desires to sell.

• 2. The citizens of Shreveport voted some two years ago a special tax for the purpose of constructing permanent public improvements in said city, *including*viaducts, storm sewers, and drainage, opening streets, paving streets fronting public property, erecting additional fire stations, purchasing necessary real estate, and construction of such other permanent public improvements as may be considered necessary and authorized by the city council; provided, however, that “no part of the same shall be used for any expenses of the city government.”

The city council thought that a public *auditwium*for the use' of the citizens of Shreveport would be a desirable public improvement for said city, and that the erection of such a building would meet with the approval of the people.

The funds derived from the special tax aforesaid would not, however, suffice for both the purchase of a site and the erection of such a building; but the council thought that, if an available site was secured, the people would authorize a further tax for the purpose of constructing the building.

Accordingly, the council proposed and authorized the purchase of the particular site herein involved, which they thought available for the purpose in mind, and which the school board desired to sell. If the people voted the additional tax, the auditorium would be built on the site thus purchased; if the people refused to vote the additional tax, then the site would be used for some other permanent public improvement, or sold again and the proceeds invested elsewhere, as circumstances might dictate; but with no purpose to use at any time any part thereof for the expenses of the city government.

That is the whole story, briefly told.

*365II.

[1] It is plain from a reading of the declared purpose for which the special tax was voted, with the express authority to use the same for the “construction of such *other*permanent public improvements as may be considered necessary and authorized by the city council,” and with no other limitation than that no part’of the same shall be used for any expenses of the city government, that a very large *discretion*was vested in the city council as to what permanent public improvements might be necessary and desirable, and that the mention of certain public improvements therein was merely general, advisory, and suggestive rather than mandatory. Had the people intended that the special tax should be used only for the public improvements named and those *of a similar nature,*it would have been easy to express themselves clearly on that subject, by merely adding, after those named, the words *“and the Mice,”*or words to that effect, instead of adding, as they did, “and (the) construction of such *other*permanent public improvements as may be considered necessary and (be) authorized by the city council.”

And, since the taxpayers have voted to vest that discretion in their own city council, and not in the court of Caddo parish or in this court, it follows that it would be a purely gratuitous and unwarranted assumption of authority on the part of either to interfere with the council in the exercise of that authority, unless *mamfestly*abused.

We see no abuse of discretion, manifest or otherwise, on the part of the city council, in what it proposes to do. The members of the council are presumably in touch and in accord with their constituents, and acquainted with needs of the community in which they reside, and with whose local government they have been intrusted by vote of the people, to whom they are responsible for their stewardship.

Manifestly, therefore, if the funds derived from the special tax had sufficed, both for acquiring a site for an auditorium and for constructing the building itself, there could be no possible ground for the interposition of any court, and the substitution of its authority and power for the discretion of the body legally charged with the expenditure of the fund to the best advantage of those who have raised it and intrusted it to that body for that purpose.

And let us bear in mind that we are not here dealing with the general powers of municipal corporations, and its authority to do this or that with the funds raised by general taxation for the ordinary purposes of government. We are dealing with the case of a body specially intrusted with the expenditure of a particular fund, not belonging to the municipality, but only held by it in trust for certain uses according to the sound discretion of a certain body; and the fact that such body is a city council is merely a coincidence, and serves only to cloud the issue.

[2, 3] Nor do we see wherein there is any abuse of that same discretion, gross or otherwise, because the city council has sought first to obtain an available site for an auditorium, before asking the people to tax themselves for the construction of such building. The site now available may not be available later on, and it may be that to secure such a site at some future time may cost many times the price for which this site may be purchased now. At any rate, the city council is acting according to its own best judgment in the matter, and this court is without right to substitute its judgment for that of the council.

We have no doubt as to the right of the city council to make this purchase.

The cases cited by plaintiffs have no application whatever to the case at bar, to wit, Sugar v. Monroe, 108 La. 677, 32 So. 961, 59 L. R. A. 723; Cruse v. Police Jury, 151 La. 1056, 92 So. 679; O’Beirne v. Police Jury, *367151 La. 1088, 92 S. 709; Id.,154 La. 329, 97 So. 461; and Young v. Bossier City, 154 La. 625, 98 So. 45. In all of those there was presented a case where a fund (or property) had been dedicated to some one particular purpose, without any discretion whatever in the trustee thereof to use saíne for any other, and of course this court held that the trustee must use it for that special-purpose only. But here we have a case where there *has*been discretion vested in the trustee, and hence of course we will not interfere unless that discretion be abused, which it has not in this instance.

III.

[4] We also think the school board has undoubtedly the right to sell land, which it originally purchased for school purposes, but for which it has no longer any need for said purposes and which is unsuitable therefor.

Manifestly the school board has no right to acquire lands for any other than school purposes, and, since it has no right to *acquire*lands for any other than school purposes, it follows that it cannot *hold*lands indefinitely for other than school purposes; and hence it is the *plain duty*of the school board to divest itself of any land which admittedly, according to the judgment of the board itself, is unnecessary or unsuitable for school purposes; and mandamus would certainly lie to compel the board to divest itself of land so held.

> “The object of this order [mandamus] is to prevent a denial of justice, or the consequence of defective police, and it should therefoi’e be issued *in all cases where the law has assigned no relief by the ordinary means, and where justice and reason require that some mode should exist of redressing a wrong, OR AN ABUSE OF AJNY NATURE*WHATEVER.” Code of Practice, art. 830. (Italics and capitals ours.)

Hence it has been held that *mmdamus*was the proper remedy to compel a parish treasurer to pay over to a school board money collected for school purposes and illegally versed into the parish treasury, notwithstanding that it was “in a general sense” correct, that the parish treasurer could pay no money out of the parish treasury except in compliance with the resolutions and warrants of the police jury of said parish. State ex rel. Leche v. Geier, 35 La. Ann. 1148.

Here, then, a parish treasurer was directed by mandamus to pay out funds which had gone into the parish treasury (and had apparently already been appropriated and paid out, in part, for other purposes), although *technically*the law forbade him to make any such payment, for—

> “no money shall be paid out of any parish treasury to any person, unless the same shall have been previously allowed by the police jury, or some court or officer lawfully authorized to make such allowance.” Rev. Stat. 1870, § 2643.

But “justice and reason” required that the *abuse*be corrected; and mandamus was held to be the proper remedy for that purpose.

[5,6] And since a mandamus will not issue to compel a public board or officer to do that which the law does not authorize him to do (State ex rel. Tebault v. Michel, 122 La. 188, 47 So. 460), it follows that a public board or officer *must*be authorized to do *voluntarily*that which it could by mandamus be compelled to do, even without being *specially*authorized to do so. Cf. State v. Geier, supra.

But we think the school board is, as in this case, *specially*authorized by law to sell property which it has acquired for school purposes but which (in its judgment) is no longer necessary or suitable for siich purposes. ,

Act 100 of 1922, § 20, pp. 210, 211, provides that:

> “The parish school board shall determine the number of schools to be opened, the location of the schoolhouses, * * * [and] may change the location of a schoolhouse, *sell or dispose of the old site,*and use the proceeds thereof toward procuring a new one. - * * * ”

[7] This vests the school board with “absolute discretion” in such matters; and “for the exercise of this discretion, a discretionary *369control of the school funds is *absolutely necessary.”*State ex rel. Martin v. Webster Parish School Board, 126 Da. 392, 52 So. 553.

[8] And when it is permitted that property dedicated to some special purpose he sold, but required that the proceeds thereof be, in that event, used to purchase other property to be used for the same purpose, “the fact that the old property was not sold simultaneously with the purchase of the new property (or vice versa) does not alter the legal situation,” or invalidate the sale of the old property for the purpose of purchasing the new or paying the price thereof. Society of the Holy Family v. Charbonnet, 154 Da. 894, 98 So. 410.

For the rest, to get at the true meaning of a law it often suffices, “simply to read the statute intelligently” (McElveen v. Goings, 116 La. 977, 41 So. 229, 114 Am. St. Rep. 574), and give it that meaning which is “most consonant with reason” (Bermudez v. Union Bank, 7 La. Ann. 62).

[9] The authority conferred by the statute in the school. board, to “sell and dispose of the *old site”*of a schoolhouse clearly means *any site*which is no longer used, or necessary, or suitable for a school. The *plain intent*of the law was that the school board not only might, but *should,*sell any such site, and not find itself incumbered with lands no longer' useful for school purposes, since the board would have, in such cases, either to abandon the property or sell it. It certainly could not *hold*it as a permanent investment for the statute declares that its purpose is to provide “for the administration and supervision of the public schools of Louisiana”; and we may look through its provisions in vain for any authority given to the state board of education and parish school boards to *invest*any part of the school funds in lands or otherwise, or to use such funds for any other purpose than the maintenance and operation of the public schools under their jurisdiction.

And it would certainly neither be reading the statute inteRigently, nor consonant with reason, to hold that a *useless*site can only become an *old*site by first erecting a schoolhouse thereon and then discontinuing the school established therein, say for the sole purpose of being able to sell the useless site itself, or, in other words, by wasting the money intended for the support of the public schools. Hence this is an interpretation which does *not*appeal to us, nor even very strongly, we surmise, to plaintiffs herein themselves.

Parish of West Carroll v. Gaddis, 34 La. Ann. 928 (followed in Dupuy v. Police Jury, 116 La. 783, 41 So. 91), has no application here.

In that case the police jury of the parish had sold an abandoned and dilapidated courthouse, and evidently intended to use the proceeds for the payment of the debts of the parish. The court held that the police jury was without power to make a valid sale of said courthouse site, in the absence of some express authority granted by the Legislature, saying;

> “Parishes, like counties in other states, are involuntary political or civil divisions of the state, designed to aid in the administration of government, as state auxiliaries or functionaries. * * * ” °

> “They *do not acquire for themselves*as a political organization. They *acquire for the benefit of the public,*of the people, particularly the local community, which is *represented primarily by the state,*and secondarily by them, but so far only as the state has delegated to them the power to do so. As state auxiliaries, they cannot dispose of *public property,*unless with the formal sanction of the state. * * * ” (Italics ours.)

[10] And the reason why a police jury cannot sell or otherwise dispose of a courthouse site, without express and special authority from the Legislature, is that:

It was the duty of the parish to provide a courthouse and jail. Rev. Stat.. § 2476.

*371The property so expressly bought, and the buildings so erected, became public things, hors de commerce. Police Jury v. McCormack, 32 La. Ann. 624.

[11,12] And since “public things are those, *the property of which*is vested in a whole nation (i. e. in *the state), * *** ” it follows that public things cannot be alienated without the express consent of the sovereign, and hence, of that branch of the government to which has been given the supreme lawmaking power.

In the case at bar we have shown, we think, that the legislative branch of the government has expressly consented to the sale by a school board of the “old sites” of schools, and that *any site*which is unused and unnecessary or unsuitable for school purposes is an *old site,*within the meaning of the statute.

And hence our conclusion is that plaintiffs' demand for *an*injunction should have been rejected as to both defendants.

Decree.

The judgment appealed from is therefore amended so as to reject plaintiffs’ demand for an injunction as to both *defendants;*and. as thus amended, said judgment is affirmed at plaintiffs’ cost in both courts.