211 La. 603

#### STATE ex rel. TOWN OF BOSSIER CITY v. PADGETT, Sheriff.

No. 38187.

Supreme Court of Louisiana.

Nov. 12, 1946.

On Rehearing March 17, 1947.

Tooke & Tooke, of Bossier, and Booth, Lockard & Jack, of Shreveport, for relator.

L. G. Campbell and A. M. Wallace, Dist. Atty., both of Benton, for defendant and appellee and intervenor.

Ben F. Roberts, of Shreveport, Preston L. Savoy, of Lake Charles, Truett L. Scarborough, Dist. Atty., of Ruston, and Pyburn & Pyburn, of Shreveport, amicus curiae.

HAMITER, Justice.

The dispute forming the basis of this litigation is primarily between the Town of Bossier City (a municipal corporation situated in Ward Two of Bossier Parish) and the Police Jury of Bossier Parish, and it concerns the proceeds of a two mill road tax, less the cost of collection, levied on property located within the limits of the named municipality.

By Ordinance. 132 of 1944 the Police Jury ordered an election in Ward Two of the Parish to take the sense of the property tax payers on the question of-levying a special two-mill tax for a period of five years, beginning with the year 1945, for the purpose of building, constructing and repairing roads and bridges in that Ward. At the election, held on October 31, 1944, the tax was approved by 'both a popular and a property vote.

Thereafter, by Ordinance 139 of 1945, the Police Jury levied the tax as authorized, instructed the Assessor of Bossier Parish .to extend it for the year 1945 against all property located and assessed in Ward Two (including the Town of Bossier City), and ordered the Parish Tax Collector to make the collection.

Relying upon the provisions of Section 3 of Act No. 24 of 1870, but without challenging the regularity of the election held on October 31, 1944, the Town of Bossier City instituted this mandamus proceeding to compel the Tax Collector of Bossier Parish to make appropriate accounting for, and to pay to it, the proceeds of the tax levied on property located within its *556limits and collected by him. An alternative writ of mandamus issued.

On the return date of the rule to show cause the Tax 'Collector tendered exceptions of no right and no cause of action (they were referred to the merits by agreement) ; additionally, he filed an answer in which he generally denied relator’s allegations and affirmatively averred the amount of the tax collected with reference to property situated within the limits of the municipality.

Also appearing was the Police Jury of Bossier Parish, it presenting a petition of intervention and third opposition. Therein the Police Jury disputed the right of the Town of Bossier City to the proceeds claimed; it alleged that under the Constitution and laws of the State of Louisiana, particularly Act No. 2S6 of 1910, as amended, it is entrusted with the custody and control of all of the funds derived from the special two mill road tax of Ward Two; and it specially pleaded that Act No. 24 of 1870 (on which relator relies) is repugnant to provisions of the Constitution of the State of Louisiana and therefore ineffective and inoperative.

After trial on the merits, judgment was rendered in favor of the respondent tax collector maintaining his exceptions of no right and no cause of action and rejecting the demands of relator, Town of Bossier City. Further, there was judgment in favor of intervenor, Police Jury of Bossier Parish, and against the tax collector ordering him to pay to intervenor all of the proceeds of the special two mill tax levied in Ward Two. Relator is appealing.

Act No. 24 of 1870, invoked herein by relator, prohibits by its Section 1 the levying 'or collecting of a per capita tax for any purpose whatsoever. Section 2 thereof declares:

> “[That] hereafter neither police jurors nor other parish authorities shall make appropriations or expenditures for the purpose of making or repairing the public -roads or bridges in their respective parishes until provisions for the payment of such appropriations or expenditures have been made *by laying a special tax on all the real and personal property in the parish,*and payment for work performed, or material furnished, for making or repairing roads or bridges, shall not be made from or out of any other fund, or funds of the parish.” (Italics ours.)

And Section 3, on which relator relies and predicates its cause of action, provides:

> "[•77wjí] *when the police jury,*or other parish authority *of any parish in which there is a municipal corporation or corporations, shall cause to be assessed and collected a tax for road purposes, the amount of tax so collected from property situated within the limits of said municipal corporation,*less the expense of collecting the same, *shall be paid over by the collector of parish taxes, (to) the treasurer of said corporation,*and the authorities of said municipal corporation shall expend the said fund for the purpose of making or repairing the roads, streets or bridges of said municipal corporation.” (Italics ours)

Relator (Town of Bossier City) insists that this third section is still effective and that by reason thereof it is entitled to receive the tax collected, less the expense of collection, from the property-located within its limits. Intervenor (the Police Jury), on the other hand, while conceding that such section has never been expressly repealed, is equally insistent and contends that the provision has been rendered inoperative by subsequent legislation and constitutional' enactments which changed the system of taxation therein authorized and furnished a different type of tax.

Under its contention, intervenor shows that the taxes referred to in Section 3 of the act are those levied in accordance with Section 2 thereof, i. e., parish wide taxes imposed by the police jury without action by the taxpaying voters; that when the statute was enacted (1870) there was no provision in the Constitution (1868) to protect property owners within the limits of municipal corporations from excessive taxation by the police juries.; and that the purpose, of Section 3 was merely to provide such protection and an equalization of taxes as between parochial and municipal governments. Intervenor fur*557ther shows under its stated contention that now a constitutional provision, Article XIV, Section 8, 1921 Constitution, .provides for an equalization of taxes imposed by parochial and municipal governments; another, Article XIV, Section 11, 1921 Constitution, as amended, limits the tax that can be levied by a parish authority; a third constitutional provision,' Article X, Section 10, Constitution of 1921, as amended, authorizes the levying of special taxes when and if approved by the taxpayers affected; and an act of the Legislature, No. 256 of 1910, as amended, under which the tax forming the basis of this suit was imposed, grants authority to various subdivisions, including parishes and wards, to levy special taxes for certain purposes.

It is true that the system authorized by Act No. 24 of 1870 for the raising of funds for road purposes was different from that now employed; road taxes, -at that time, were levied on a parish wide basis, and approval by the tax payers was not required as it is now. But we do not find from the authorities cited by intervenor (the above mentioned constitutional provisions and statute), or from any other laws, that the type of tax of the 1870 statute (a special tax on real and personal property for making and repairing public roads and bridges) has been changed as it insists has been done.

Sections 8 and 11, as amended, Article XIV of the 1921 Constitution deal exclusively with taxes for general parochial purposes as distinguished from special taxes, such as involved here; hence, they are inapplicable.

Section 10, Article X of the 1921 Constitution, as amended, which incorporates similar provisions of the Constitutions of 1898 and 1913, does pertain to the levying of special taxes as well as does Act No. 256 of 1910, as amended; but neither contains anything repugnant to or inconsistent with the type of special tax referred to in Section 3 of Act No. 24 of 1870. The constitutional provision authorizes the imposition of special taxes (within designated limits and when approved by the taxpayers) for carrying on certain public projects, including road work, while the statute merely purposes to prescribe the method for imposing and collecting such taxes. Indicating the purpose of the statute is its title which reads in part as follows:

> “To define the subdivisions of the State; to prescribe the mode and manner of calling, holding and promulgating the result of elections therein for the purpose of levying a special tax or forced contribution or issuing bonds; to provide for the manner of levying and collecting such tax and issuing bonds; to provide the manner of the payment of the interest and principal of such bonds; to fix the limit in which elections may be contested ;****”

In fact, the type of tax levied under Article X, Section 10 of the 1921 Constitution, as amended, and Act No. 256 of 1910 (insofar as road construction and maintenance are concerned) is identical with that under Act No. 24 of 1870. Each is a special tax, o'r in other words a tax levied specially, on property for road purposes.

That the tax in the instant case was levied only as to a single ward (as authorized by the Act of 1910), whereas under the 1870 statute the tax was necessarily parish wide, seems to be of no importance. At the time of the adoption of the 1870 statute the wards were not authorized to act individually, and the subsequent granting of such authority to them could effect no change in the rights of municipalities located therein.

Whether the expending of road tax funds obtained from property located within the limits of municipal corporations should, as a matter of policy, be performed by the police jury or by the municipal authorities, under Section 3 of Act No. 24 of 1870, cannot be decided by the courts. The determination of that question is solely within the province of the State’s lawmaking body. In this connection the observation may be made that by the adoption of Acts No. 215 of 1918 and No. 65 of 1921, Ex.Sess., the Legislature of those years apparently gave to the 1870 provision recognition and a continuing effect, thereby sanctioning the right of the municipal authorities to make the expenditures.

The purpose of the 1918 Act, to quote its title, was:

> *558“To Authorize and permit police juries throughout the State, in certain cases, to build and construct good roads, in whole or in part, through the corporate limits of villages.”

And the body of the statute reads:

> “Section 1. Be it enacted by the General Assembly of the State of Louisiana, that from and after the passage of this act, all police juries throughout the State may construct good roads, in whole or in part, of the type commonly known as ‘model roads’, through the corporate limits of villages, whenever it becomes necessary to construct said roads for the purpose of forming a' connection through said villages between the ends or terminals of good roads already constructed by said police juries to the corporate limits of said villages.

> “Section 2. Be it further enacted, etc., that for the purpose of constructing said roads said police juries may either issue bonds or certificates of indebtedness under existing laws, in cases where sufficient funds cannot be provided out of either the general or road funds of the parish in which the roads may be constructed.”

The passage of this 1918 statute indicates that the Legislature took cognizance of the right of an incorporated village, under the then existing laws to receive its pro rata share of road taxes collected by the parish, and to expend the funds itself for road purposes within the corporate limits. If otherwise, its adoption of the special legislation, granting to a police jury permission to construct good roads in the corporate limits, would have been deemed unnecessary.

Later, the 1918 statute was amended and re-enacted by Act No. 65 of 1921, Ex.Sess., so as to (1) make the legislation applicable to towns as well as villages, and (2) to authorize the police juries, for the purpose of completing or connecting continuous highways, to make appropriations out of the general fund to defray a portion of the cost of constructing permanent, hard surfaced paving in the cities and towns situated in their respective parishes. And, except for its repealing clause, the statute concludes with the significant declaration that: “ * * * * provided further that this Act shall not prejudice the right of any municipality *to demand the return of any taxes for road purposes to which it:maybe entitled under existing laws."*(Italics ours)

Our search has disclosed no existing law to which this proviso can relate, and we have been cited to none, other than Section 3 of Act No. 24 of 1870, wherein the parish tax collector is directed to pay over to the municipal corporation the net road taxes-collected from property situated within the-corporate limits, the fund to be expended by the municipality in making or repairing its roads, streets or bridges. Clearly the provision can not refer to Article XIV,. Section 8 of the 1921 Constitution, as in-tervenor suggests it might. That constitutional provision deals exclusively with general parochial taxes, as above shown;, it in no manner pertains to road taxes. Moreover, it provides an exemption for municipalities, not “[a] return of any taxes for road purposes.”

In as much as the instant tax levied by !the Police Jury of Bossier Parish received the approval of the taxpayers of Ward Two, including those of the Town of Bossier City, it would seem that such body is entitled to the custody and control of the fund, along with the right to expend it. Certainly that would be true in the absence of a law to the contrary. But Section 3 of Act No. 24 of 1870, as we appreciate it, was in effect when the tax was approved and levied; the taxpayers and the police jury were charged with knowledge of its existence; and both were bound by it. Therefore, the Tax Collector of Bossier Parish must pay to the Town of Bossier-City the avails of the tax in question, less-the expense of collecting it, in accordance with that statutory provision.

For the reasons assigned it is ordered,, adjudged and decreed that the judgment of the district court be reversed, annulled and set aside, and, accordingly, the demands of intervenor, Police Jury of Bossier Parish, are rejected, and the exceptions of no right and no cause of action filed by respondent, L. -H. Padgett, Sheriff and Ex-Officio Tax Collector of Bossier Parish are-now overruled.

*559Also, it is ordered, adjudged and decreed that there be further judgment in favor of relator, Town of Bossier City, making peremptory the alternative writ of mandamus issued herein and directing the named respondent to make an appropriate accounting of, and to pay and deliver to relator pursuant to Section 3 of Act No. 24 of 1870, the funds collected from taxes levied under Ordinance No. 139 of 1945 of the Bossier Parish Police Jury against the property situated within the limits of the Town of Bossier City, less the expense of collection.

All taxable costs shall be paid by inter-venor according to law.

PONDER, J., absent.

On Rehearing

HAWTHORNE, Justice.

This is a mandamus proceeding in which the Town of Bossier City, relying on the provisions of Section 3 of Act No. 24 of 1870, seeks to compel the parish tax collect- or to pay over to it the proceeds of a special two-mill tax levied for road purposes on property located in Ward 2 of Bossier Parish, the ward in which the town is situated.

Since all parties concede that the facts of the case were correctly stated in our original opinion rendered in this matter and filed on November 12, 1946, it would serve no useful purpose to reiterate them here.

In our original opinion we reversed, the judgment of the lower court, made peremptory the alternative writ of mandamus, and directed L. H. Padgett, sheriff and ex *offi-cio*tax collector of Bossier Parish, to make an appropriate accounting of, and to pay and deliver to relator, Town of Bossier City, pursuant to Section 3 of Act No. 24 of 1870, the funds collected from taxes levied under Ordinance No. 139 of 1945 of the Bossier Parish Police Jury against the property situated within the limits of the Town of Bossier City, less the expense of collecting. Our decree also rejected the demands of intervener, Police Jury of Bossier Parish, which had filed a petition of intervention and third opposition disputing .the right of the Town of Bossier City to the proceeds claimed, alleging that it, the police jury, was entrusted with the custody and control of all the funds derived from the special two-mill road tax, and praying that the demands of relator be ejected. Our decree also overruled the exceptions of no right and no cause of action filed by respondent, the sheriff and ex officio tax collector of Bossier Parish.

Counsel for respondent and intervener in their application for rehearing and in brief submitted in support thereof contended that Section 3 of Act No. 24 of 1870 is repugnant to the provisions of Article 202 of the Constitution of 1879, which article has corresponding provisions in Article 224 of the Constitutions of 1898 and 1913 and in Article X, Section 5, of the Constitution of 1921. In support of this contention they called our attention, for the first time, to the case of State ex rel. Town of Mansfield v. Police Jury of DeSoto Parish, 47 La. Ann. 1244, 17 So. 792.

They further stated that the suit was resisted in the lower court on the grounds (1) that Section 3 of Act No. 24 of 1870 was unconstitutional, and (2) that the provisions of this act, its constitutionality being conceded, could not apply to the tax in question. Counsel then said that the lower court based its judgment on their second contention, and that they, in an attempt to have this judgment sustained, failed in argument and in brief on original hearing before this court to stress adequately their contention that the act was unconstitutional.

Counsel were entirely correct in stating that they failed to urge adequately the unconstitutionality of Section 3 of the act, either in brief or in argument before this court, prior to the rendition of our original opinion herein, and, further, that they cited for the first time in their application for rehearing the Mansfield cáse, supra, which case they contended on rehearing is decisive.

As a matter of fact, a rehearing was granted in this case solely for the reason that counsel on application for rehearing stressed their contention that the act was unconstitutional, citing and calling to our attention in support of this contention the Mansfield case, a case which they had failed to cite before.

*560At the time Act No. 24 of 1870 was adopted, the Constitution of 1868 was in effect. This Constitution contained no provision authorizing the levying of a special tax by municipalities for road purposes, nor was there any prohibition contained therein to the levying of such taxes. We have been unable to find any general act applicable to all municipalities within the state passed prior to the adoption of Act No. 24 of 1870, nor has arfy been pointed out to us, authorizing and empowering municipalities of this state to levy a special tax for the building, construction, and maintenance of streets and roads. Apparently this power was exercised exclusively by the police juries of the state, for by Act No. 197 of 1867 the Legislature authorized the police juries of the several parishes throughout the state to levy and collect a road tax per capita on all male inhabitants over the age of 18 years and under the age of 45 years in the parishes, provided that this tax should not exceed $15.00 per annum on each person liable therefor, the fund arising from the collection of said tax to be exclusively applied by the police juries for the purpose of keeping the roads in the parishes in good condition. This act, however, was repealed by Section ,1 of Act No. 24 of 1870.

It is true that municipalities had the authority, under Act No. 108 of 1869, to assess the front of each owner’s property for one-third of the cost of certain pavement, known as the patent Nicolson pavement, but it can be readily seen that this act authorized an assessment against the property to be paid by the property owners and not a special tax within the meaning of Act No. 24 of 1870.

There being no general statute which authorized municipalities throughout the state to levy a special tax for road purposes at the time of the adoption of Act No. 24 of 1870, the reason for permitting municipalities to share in such a tax levied by the police juries of the state under Act No. 24 of 1870 becomes evident since the municipalities themselves could not levy taxes for road purposes. Hence they were authorized by this legislative act to use those collected by the police juries on property within their respective municipal limits, less the expense of collection. This provision of the act did not violate any provision of the Constitution of 1868.

Article 202 of the Louisiana Constitution of 1879 read as follows:

> “The taxing power may be exercised by the General Assembly for State purposes, and by parishes and municipal corporations, under authority granted to them by the General Assembly, for parish and municipal purposes.”

Article 209 of that Constitution provided:

> “* * * no parish or municipal tax for all purposes whatsoever shall exceed ten mills on the dollar of valuation; *provided*that for the purpose of erecting and constructing public buildings, bridges and works of public improvement in parishes and municipalities, the rates of taxation herein limited may be increased when the rate of such increase and the purpose for which it is intended shall have been submitted to a vote of the property taxpayers of such parish or municipality entitled to a vote under the election laws of the State, and a majority of same .voting at such election shall have voted therefor.”

Pursuant to these provisions of that Constitution, the General Assembly in 1882 adopted Acts Nos. 41 and 126, which authorized and permitted municipalities and police juries to levy taxes for public improvements, such as roads, etc. Since by these acts the municipalities could levy their own taxes for road purposes, the need for Section 3 of Act No. 24 of 1870 no longer existed.

Article 202 of the Constitution of 1879, quoted hereinabove, the provisions of which were not found in the Constitution of 1868, clearly separated the taxing powers of parishes and municipalities, and under its provisions neither political subdivision could tax for the benefit of the other. This being so, Section 3 of Act No. 24 of 1870 is repugnant to the provisions of Article 202 of the 1879 Constitution, and is now without force and effect, since the provisions of this article, as pointed out herein-above, are found in the Constitutions of 1898, 1913, and 1921.

Respondent and intervener, cite and rely on the case of State ex rel. Town of Mansfield v. Police Jury of DeSoto Parish, *56147 La.Ann. 1244, 17 So. 792. In that case, the Town of Mansfield was seeking a writ of mandamus directing and commanding the Police Jury of DeSoto Parish to comply with the provisions of Act No. 165 of 1894, and directing it to require the collector and treasurer and other officers therein named to keep a separate record of the taxes, licenses, and other moneys collected by the parish on all properties, businesses, trades, professions, and occupations situated in or carried on within said town, and to keep a separate record of the expenses of the town, as specified in the act.

The act provided that any incorporated city or town of the state, through its mayor or any other person authorized by its council, should have the right to demand and have paid over to it by the police jury of the parish all the licenses collected annually by the parish on all businesses, trades, professions, and occupations carried on within said city or town, less the criminal and public school expenses paid out by the parish on account of the city or town. The act further provided that, upon demand of the mayor, or of any other person authorized by the council, made to the police jury of the parish, the police jury should grant the demand and should advise its collector and treasurer of the demand and instruct them that all taxes, licenses, and other moneys collected by the parish on all properties, businesses, trades, professions, and occupations situated in or carried on within said city or town should be kept separate from all other funds and not paid out except as provided in the act; and provided also that the police jury should p&y the criminal and other expenses named in the act, which were occasioned by the municipality, out of the taxes collected on properties situated in said city or town; or, if these amounts were not sufficient, a sufficient amount should be taken from the license fund collected from the city or town to make up the deficit, and the police jury should pay the balance, if any, of the licenses collected to the municipality.

The police jury in that case answered, alleging that Act No. 165 of 1894 could not be enforced because it was in direct conflict with Articles 56, 202, and 204 of the (1879) Constitution.

The lower court held that the act m question was violative of, and contrary to, the provisions of Article 202 of the Constitution, refused to grant the mandamus, and rendered judgment setting aside the alternative writ. This court in affirming the judgment stated:

> “The District Judge, in rendering his opinion, said: ‘The only question under this article (202) would seem to be whether the grant of power to the parishes and municipal corporations, for parish and municipal purposes means that they can exercise this power for each other and each for itself. Can the parishes exercise the taxing power for municipal purposes and municipal corporations exercise it for parish purposes ? Such, I think, was not the intention of the framers of the organic law. It is such an extraordinary proposition that each could be authorized by the General Assembly to exercise the taxing power for the benefit of the other, that such a conclusion could only be reached when supported by a plain and unambiguous provision of the Constitution. It seems to the court that the contrary is the plain meaning of the article above quoted, and that the Legislature is without warrant or right, under the Constitution, to require or authorize the police jury to exercise the taxing power for the use of municipal corporations of the parish as is evidently the purpose and effect of this Act, No. 165, under discussion. The taxing power is a most important one, and should be guardedly kept within the Constitutional limitations, and perhaps one of the best protections, both to the public service on the one hand, and to the taxpayer on the other, is the rule firmly imbedded in our constitutions for many years, that the same power should impose the tax and control its expenditure.’

> *“We agree in opinion with the District Judge that the framers of the Constitution intended to keep separate and distinct the taxing power of the State, that of the parishes and that of the ,municipal corporations; that they never intended, in declaring that this power should be exercised by the parish and municipal corporations ‘under authority granted to them by the General Assembly,’ that this authority should extend to empowering either of them to do*
>       *562
>       *so for purposes other than those in which each was directly concerned. It is easy to see that through this act the taxing power of the towns could be supplemented by that of the parishes for town*purposes.” (Italics- ours.)

In Webster v. Police Jury of the Parish of Rapides, 51 La.Ann. 1204, 25 So. 988, 989, this court in discussing the decision in the Mansfield case had this to say:

> “* * * In that case the questions to be determined were whether article 202 of the constitution of 1879 should be construed as authorizing the parish to collect taxes for the purposes of the parish, and also for the purposes of municipal corporations within the parish, or whether, that article meant that the parish should levy and collect parish taxes for parish purposes alone. And, the court having reached the conclusion that the article meant that the parish should collect taxes for parish purposes alone, the next and only remaining question was, whether it was competent for the general assembly, in view of such a constitutional provision, to require that parish taxes thus collected for parish purposes should be turned over to a municipality for municipal purposes, which question was decided in the negative.”

An annotation appearing in 46 A.L.R. 609, published in 1927, shows at page 664 that the editors of this text recognized the Mansfield case as authority for the proposition that “Art. 202, La.Const. 1879, was designed to keep separate and distinct the taxing power of the state, of the parishes, and of municipal corporations, and parish officers cannot, it seems, under the article, be either authorized or compelled to levy and collect taxes which may be used for the purposes of municipal corporations within them.” See also comments on this case at pages 656 and 678 of the same annotation.

In our opinion the Mansfield [47 La.Ann. 1244, 17 So. 792] case is decisive of the question presented in the case now before us. It is true that counsel for the Town of Bossier City attempt to distinguish the two cases, seizing upon the sentence quoted by this court from the district judge’s opinion in that case that “It will be observed that the statute does not contemplate that any portion of the *taxes*derived from town property should ever be turned over to the town”. The district judge in that sentence was merely commenting on the provisions of the particular statute there under consideration and was not attempting to distinguish that case from one in which taxes from town -property are involved, as shown by the statement of this court in that opinion that “We agree in opinion with the district judge that the framers of the constitution intended to keep separate and distinct the taxing power of the state, that of the parishes, and that of the municipal corporations”.

Counsel for the Town of Bossier City point out that certain language found in Act No. 65 of the Extra Session of 1921 must have reference to Act No. 24 of 1870. Counsel no doubt allude to that portion of the 1921 act which reads as follows: “Provided further that this Act shall not prejudice the right of any municipality to demand the return of any taxes for road purposes to which it may be entitled under existing laws.” Even if the Legislature were referring to Act No. 24 of 1870, it is of no consequence to us in this decision, for in our opinion Section 3 of Act No. 24 of 1870 was rendered unconstitutional and inoperative by Article 202 of the Constitution of 1879, and the Legislature could not, even if it had been referring to the 1870 act, breathe life into a statute which is clearly unconstitutional.

For the reasons assigned, it is now ordered .that our original decree rendered herein be recalled and set aside, and that the judgment of the district court be affirmed. Costs of these proceedings insofar as allowed by law are to be paid by relator, Town of Bossier City. The right to apply for a rehearing is reserved to all litigants.

HAMITER, J., concurs and assigns written reasons.

HAMITER, Justice

(concurriqg).

In the absence of Article 202 of the Constitution of 1879 (and similar provisions of subsequent Constitutions), Section 3 of Act No. 24 of 1870 would still be in full *563force and effect and our opinion and decree on the original hearing of this case would be entirely correct.

Article 202 of the Constitution of 1879, which was interpreted and applied in State ex rel. Town of Mansfield v. Police Jury of DeSoto Parish, 47 La.Ann. 1244, 17 So. 792, rendered that statutory provision unconstitutional, null and void, however, as is ably pointed out in the opinion on rehearing to which I fully subscribe. In this connection it is only fair to state that the mentioned constitutional provision and cited case were not relied on or argued in this court by the respondent and the intervenor until after our decision on the original hearing.