author: McCALEB, Justice. MOISE, Justice MOISE, Justice PER CURIAM.

text:
    229 La. 1
    Lloyd J. COBB v. The LOUISIANA BOARD OF INSTITUTIONS et al.
    No. 42158.
    Supreme Court of Louisiana.
    Dec. 12, 1955.
    Rehearing Denied Jan. 16, 1956.
    Second Rehearing Denied Feb. 20, 1956.
    Fred S. LeBlanc, Atty. Gen., W. C. Per-rault, First Asst. Atty. Gen., W. D. Atkins, Asst. Atty. Gen., for defendants-appellants.
    Breazeale, Sachse & Wilson, Baton Rouge, for plaintiff-appellee.
   McCALEB, Justice.

Plaintiff brings this suit against the Louisiana Board of Institutions and the State of Louisiana to recover for the death of 20 registered Aberdeen Angus breeding cows which allegedly resulted from eating black strap molasses purchased by him from the Louisiana State Penitentiary, an agency under the jurisdiction of the Board of Institutions. The action is for $50,000 damages and is founded on an asserted breach of contract, the charge being that the molasses sold by the State Penitentiary was unfit for animal consumption.

In limine, the defendants interposed exceptions to the jurisdiction of the court and of no right or cause of action. These exceptions were overruled and defendants answered, denying that the molasses was contaminated or that the death of plaintiff’s cows is attributable to it. After a trial, judgment was rendered for plaintiff as prayed for, from which defendants have appealed.

Under the exceptions to the jurisdiction and of no right of action, the Louisiana Board of Institutions maintains that it is an unincorporated administrative agency of the State and that, not being sui juris, it is incapable of standing in judgment. The plea is well taken.

The Board was created by Act 48 of 1952, which was added as Section 30 to Article 6 of the Constitution, by vote of the people on November 4, 1952. This body is merely an administrative agency having no separate existence apart from the State ; it is not sui juris and any action directed against it is, in reality, a suit against the State. Angelle v. State, 212 La. 1069, 34 So.2d 321, 2 A.L.R.2d 666. Such an unincorporated body is incapable of standing in judgment. State ex rel. Dodd v. Tison, 175 La. 235, 143 So. 59.

The exception to the court’s jurisdiction filed by the State is based on the elementary principle that the State may not be sued without its consent. Counsel for plaintiff, of course, recognize this rudimentary tenet of law. But they conceive there is an exception to the rule and profess the State may be sued without its consent for a breach of contract when it is acting in a proprietary capacity. It is said that, since the Louisiana State Penitentiary is authorized to sell its surplus farm products, R.S. 51:692.10, the proceeds of the sales to be deposited in a revolving fund established by R.S. 51:692.9, the State is in the position of any other vendor and liable for breach of the warranty of fitness exacted by Articles 2475 and 2476 of the Civil Code. To substantiate this proposition, counsel rely upon State ex rel. Shell Oil Co. v. Register of State Land Office, 193 La. 883, 192 So. 519; Begnaud v. Grubb & Hawkins, 209 La. 826, 25 So.2d 606 and Texas Company v. State Mineral Board, 216 La. 742, 44 So.2d 841.

The contention cannot be sustained as there are no exceptions to the immunity of the State from suit without its consent. Indeed, this principle, which is given full recognition in our Constitution by Section 35 of Article 3, denies to the courts power to hear and determine suits against the State where consent has not been obtained in the manner therein provided. That Section recites in part:

“Whenever the Legislature shall authorize suit to be filed against the State it shall provide the method for citing the State * * * ”.

Implicit in this language is the prohibition that no suit shall be entertained unless authorized by the Legislature. Nothing is so firmly established, not only in Louisiana but throughout this country, as the doctrine of the State’s immunity from suit in its own Courts without its consent and further comment would be unnecessary but for the erroneous (albeit' inconsequential insofar as the result in the case was concerned) view expressed by this Court in one of its comparatively recent opinions, Begnaud v. Grubb & Hawkins, supra, which is in plain conflict, with all the jurisprudence, as we shall hereinafter demonstrate.

The trial judge accepted jurisdiction of the present case under the mistaken belief that the State’s right to claim immunity from suit depended on whether the action against it is founded on a contract or ex delicto. This view apparently resulted from confusing suits against the State without its consent on the same basis with those brought against it with its consent or against municipalities or incorporated State agencies, wherein it has been generally ruled that they may be held amenable for the enforcement or breach of their contracts but not necessarily for the torts of their employees when they are engaged in the performance of governmental functions as distinguished from private or proprietary pursuits. But no such distinctions between suits in contract or in tort apply when the State itself, as the party defendant, has not consented to the suit. This is clearly shown by the opinion of this Court in the Landmark case, of State ex rel. Hart v. Burke, 1881, 33 La.Ann. 498.

In that matter, the complainant, as holder and owner of coupon bonds issued by the State, instituted a mandamus proceeding coupled with a prayer for an injunction! against the State Auditor and State Treasurer to prevent them from disposing of public monies in the State Treasury and to compel them to pay him out of said monies the; amount of. -$75,000, which he alleged was due on his bonds. These State Officers appeared and pleaded that the Court was without .jurisdiction as, the action was actually. one against the .State which had not given its consent to be sued. The plea was sustained in a scholarly opinion by Chief Justice Bermudez who, after a comprehensive review of the applicable authorities on the subject, stated:

'■‘When the judiciary department of the government was instituted to expound the law and to distribute justice among individuals, the State was not subjected to its authority. She cannot be assimilated to an individual citizen. The mission of the State is to take care of the universal or the general interest. She cannot be brought to the bar of justice and sentenced like an individual, still less forced to perform what might be considered to be an obligation. Clear cases of an administrative character may sometimes be submitted to the tribunals. Officers or agents máy be arraigned for breach of actual duty, or for malfeasance in office, but only so long as the will of the State has not been expressed to the contrary. However numerous the exceptional cases may be, the fule unquestionably is that the State cannot be called without her formal consent" before civil tribunals. as' individuals are, and that the judiciary cannot take cognizance of suits the object of which is to declare the State to be a debtor and to force the State, to pay her debts, and that State officers cannot be" compelled to act against the real will of the State. There is no instance of a suit commenced on a contract, for the performance of duty or payment of a debt, in which judgment' was ever rendered against a State to coerce either.
* : * * * * * •
“So,' when a question affecting the validity even of a provision of the State Constitution itself, on the ground of conflict with- the Federal Constitution, arises in a litigation between parties amenable to judicial process, and whose rights are subject to judicial determination, courts may, and must determine such question, and deny effect to the provision, if it be found to be violative of the paramount law. But, though a State impair, nay, repudiate the obligation of her own contracts, and though if she were liable to suit, courts might annul her acts in that direction, yet, as she is not amenable to suit, it does not lie within, the sphere of judicial power to compel her to perform her obligations.” (Italics ours.)

The grave question presented in the Burke case, i. e., whether the State could be compelled to submit to the jurisdiction of its courts to litigate a claim that it was, through its officers, impairing the obligations of its contract — impelled the court to elaborate upon its views in answer to complainant’s application for a rehearing. In adhering to its original findings the Court, through Justice Fenner, declared:

“The immunity of the State of Louisiana from suit in her own courts means absolute immunity from judicial compulsion, directly or'indirectly, so far as the performance of her own contracts or obligations are concerned.
* *■ .* * * *
“The State courts, in the exercise of the powers and duties imposed upon them by the Constitution of the United States and confirmed by the Constitution of the State, have the undoubted right to pronounce the nullity of provisions of the State Constitution on the ground that they violate the paramount law, by impairing-the obligation of contracts. But-that can only-be done in suits within the jurisdiction of the court, and involving the enforcement of such contracts. As the contract of a State cannot be judicially enforced against her by her own courts, it follows that the question, whether or not a provision of her Constitution impairs the obligatiqn of her own contract, can never be the subject of judicial cognition.” (Italics ours).

It woíild serve no useful purpose to cite and discuss herein the numerous decisions written both before and after the Burke case with views in concordance with that authority. It suffices to refer to State ex rel. Cunningham v. Lazarus, 40 La.Ann. 856, 5 So. 289; State v. Liberty Oil Co., 154 La. 267, 97 So. 438 and Lewis v. State, 207 La. 194, 20 So.2d 917.

The suit herein is one for a monied judgment against the State for a breach of contract. Consent of the Legislature for the institution of the suit not having been obtained in the manner provided by Section 35 of Article 3 of the Constitution, as amended by Act 385 of 1946, the district court and this court are without jurisdiction to entertain it and it should have been dismissed.

The case of State ex rel. Shell Oil Co. v. Register of State Land Office, supra, cited by counsel for plaintiff, is not apposite. That was not a suit brought against the State without its consent but a mandamus proceeding wherein the Shell Oil Company sought an order directing the Register of the State Land Office to accept a tender of delay rentals on certain mineral leases which had been executed by the Governor in favor of the relator. The question was whether the Register of the Land Office and the State (which was not a party to the suit) were estopped from denying the validity of the lease. The Court simply-held that, when the State contracts, it is like a person; that it cannot receive the benefits of the agreement and not assume its burdens and that therefore the doctrine of estoppel applies to it to the full extent that it does to individuals.

In Begnaud v. Grubb & Hawkins, on which counsel for plaintiff strongly depend, Begnaud instituted a possessory ac-ti'on against Grubb & Hawkins and' others. Those defendants, who had acquired certain mineral rights on the land in question from the State Mineral Board, called the' latter and the State itself in warranty. The State and the Mineral Board filed exceptions of no right or cause of action to this call, contending that 'the State could not be joined as a party without its consent.

The exceptions were properly overruled as to the State Mineral Board, the Court holding that, since the Board was .a body corporate vested with express authority to sue and be sued and with full power to lease all lands belonging to the State, there could be no doubt that it was subject to judicial process on contracts made by it in its corporate capacity. However, notwithstanding that it was entirely unnecessary to its decision in the case since the Mineral Board had already been declared to be the proper defendant, the Court proceeded to likewise overrule the exceptions insofar as the State was concerned, holding that when the State enters a contract having for its purpose a private advantage to its inhabitants and not strictly for the purpose of governing the people, it acts in a proprietary capacity and is amenable to suit without its consent. To buttress this conclusion, the Court cited the ruling in State ex rel. Shell Oil Co. v. Register of State Land Office, supra, which concerns only the question whether the equitable doctrine of estoppel is applicable to . the State. As pointed out above, the Shell Oil case is totally inappropriate to the question of the State’s-immunity from suit without its consent and,- while the pertinence of -the finding in Begnaud v. Grubb & Hawkins on this question cannot be gainsaid, the ruling therein, which is manifestly contrary to all other jurisprudence on the sybj ect, ■ cannot be perpetuated.

The other case cited by counsel for plaintiff, Texas Company v. State Mineral Board, supra, does not support their contention. There, the Texas Company instituted a declaratory judgment suit against the State Mineral Board for recognition of rights under certain mineral leases granted by the latter which had allegedly arisen by reason of a controversy between the State and the Federal Government concerning the paramount right or title to the leased property. The Mineral Board, taking the position that the suit was really one against the State, filed a plea to the jurisdiction of the Court, founded on the doctrine that the sovereign may not be sued without its consent. In affirming the overruling of these pleas, we held that, since the Mineral Board had issued the lease, it was the proper party defendant and that the suit was not one against the State. We cited Begnaud v. Grubb & Hawkins as authority for our conclusion and that authority was pertinent insofar as it upheld the right of plaintiff to sue the State Mineral Board. In all other respects, however, that decision was not appropriate to the ruling in the Texas Company case as the State was not a party defendant and so there was no reason to discuss whether it could be sued without its consent.

The judgment appealed from is reversed, the plea to the jurisdiction is maintained and plaintiff’s suit is dismissed.

HAMITER, J., concurs in the decree.

MOISE, Justice

(dissenting).

The inventions of science have changed the map of the world; the theories and aspirations of the present demand more specifically an end to idolatry worship, because so often there is a perpetuation of old mistakes stagnating progress; the citizen is presumed to be a sovereign in fact with the entire governmental trinity his agents, and the Court is his intermediary in preventing the other departments from lessening his right of sovereignty.

The so-called sovereignty of the man has now become a catchword of politics, because of the fact that governmental ad-mistrators have always had the enterprising ambition to further extend power. Now, how can we prevent such? It is by a less devotion to legal abstractions taken from inapplicable decisions, a notice of the consequences of the acts of governmental administrators, less focusing on the definition of words, and by being imbued with a spirit of justice that what is right is right.

Some philosophic writer has said that though truth is in her nature one, eternal and indivisible, truth has many similitudes which masquerade in her form and perplex and mislead her followers, even though they are sometimes Judges.

Take the instant case. The issues are joined. The pleadings are in writing. The State contends, as strongly as the truth of holy writ, that no suit for damages can be maintained without legislative consent. Art. 3, sec. 35, of the Louisiana Constitution of 1921. That is true, but the sworn allegations of the petition show the contrary, for plaintiff clearly alleges that this suit is for the violation of a contract, and that, therefore, the aforementioned article of the Constitution does not apply. Surely, neither the State nor this Court can present, in pleadings, the plaintiff’s cause of action.

The petition’s sworn allegation is that the plaintiff bought from the Louisiana State Penitentiary, which is under the control of the Louisiana Board of Institutions, a substance alleged to be molasses for cattle feed.

The Louisiana Board of Institutions was specifically authorized, by statute, to make the sale and receive the pricó, and to have a fund to the extent of a half a million dollars for the purposes designated.

The sworn petition then shows that the feed sold was not fit for consumption; that though there was a number of pastures, it was only in the pasture in which the feed was used that plaintiff lost a number of head of valuable cattle. Silent circumstances from physical, facts often have a controlling power as a means of proof that is irresistible. Silent circumstances cannot commit perjury.

A cable of circumstances is as strong as the combination of all of its strands. Proof is not a succession of links, but a combination of strands in the weaver’s hands. A round peg cannot fit in a square hole. To the facts of record, the Court proceeds to apply the law which was applied to the facts in the case of State ex rel. Hart v. Burke, 33 La.Ann. 498. The facts in that case and the facts in the instant case are as far apart as the poles of the earth, which we now proceed to demonstrate by quoting from State ex rel. Hart, supra, 33 La.Ann. at pages 503-504:

“The money which is in the State treasury, from whatever source it is derived, is money which was due, which was paid, which belongs to and which is the property of, the State. It is money which cannot be drawn from the treasury, except in pursuance of specific appropriation made by law.
“Const, of 1879, article 47, * * *
“This suit has clearly for its object the appropriation in favor of a private individual, who claims to be a creditor of the State, of money belonging to the State, which is in the State treasury, and which the State has ordered, by constitutional provision, shall not be applied to him, but shall be used to defray the general expenses of the government.” (Italics ours.)

The sworn allegations in the instant case show that this is a suit growing out of the violation of a contract of sale, Article 2475, and that as a matter of law the seller is bound for two principal obligations— that of delivering, and that of warranting the thing sold; and, whenever the seller warrants the fitness of the thing he sells, he may be sued upon his warranty. Since the legislature authorizes the penitentiary to sell its products, it authorizes it to act in a proprietary capacity to make a contract of sale, not to deposit the proceeds in the State treasury until it has built up a revolving fund of one-half of a million dollars to buy machines for replacement and to otherwise carry on the business.

In State ex rel. Shell Oil Co. v. Register of State Land Office, 193 La. 883, 192 So. 519, 521, it was correctly stated that—

“The State has two classes of powers : the one legislative, public, governmental, in the exercise of which it is a sovereignty and governs its people; the other, proprietary quasi-private, conferred upon it not for the purpose of governing its people but for the private advantage of the inhabitants of the State itself as a legal personality. Wykes v. City Water Company, C. C., 184 F. 752, affirmed 9 Cir., 202 F. 357, and cases therein cited.”

We must learn that to exchange a mistake for the real, a supposition for a fact, to ascertain the substance and the result of the decision for the future, is to progress.

I respectfully dissent, because the well-reasoned judgment of the district court should be affirmed.

On Motion for Rehearing

Rehearing denied.

HAMITER and HAWTHORNE, JJ., dissent.

MOISE, Justice

(dissenting).

The historical background of the opinion in the Cobb case was based on the law of medieval England that “the King can do no wrong”. It is because of this wrong concept that our forefathers wrote a preamble of the Constitution of the United States and promised to the citizens domestic tranquillity, a general welfare, and the blessings of liberty. In fact, in the whole instrument there is found the logical result of the liberation of a people from government. We settled this principle on the field of battle during the Revolution.

The capable Judge of the District Court overruled- the exception ratione materiae, and under . the circumstances heretofore stated this Court maintained the exception to the jurisdiction ratione materiae.

As the matter now stands we have seven judges of this Court, and one of . the District Court, and the count as to whether a rehearing should have been granted is equally divided. To my mind it is manifest that in such, a case a rehearing should have been granted. The highest Court in the world has admonished all of us that in the exercise of high power the Court must ever be on guard lest ‘we erect our prejudices into legal principles. .

The majority in the. original opinion seems to believe that we should follow the holdings of generations of long ago. Speaking only for myself; I like the form of government under which we live, the- exercise and power of protection to the citizens'from government, and not to depart to one that needs the conditions of another age for affirmance. In this progressive age we’-should-not supercede common understanding and -right. In his reasons for judgment, the Trial Judge crystalized these maxims of common sense — sometimes called the hand grenades of argument. He followed the jurisprudence of this Court in three cases. In the Cobb decision one of these cases has been expressly overruled and a feeble effort has been made to take the other two out.of the general rules .established by the decisions of this Court.

The majority decision states that there are no exceptions to the immunity of the State from suit, but, we perceive from the record in the reasons of the Trial Judge that the able Attorney General has attempted to have this action declared one in toft. Why? Because, .the immunity prevails in ah action in tort or when the State acts in a governmental capacity. The decisions quoted in the Cobb opinion are only authorities for the governmental rule. The exception to the general rule will be found in the case of Begnaud v. Grubb & Hawkins, 209 La. 826, 25 So.2d 606; State ex rel. Shell Oil Co. v. Register of State Land Office, 193 La. 883, 192 So. 519; and Texas Company v. State Mineral Board, 216 La. 742, 44 So.2d 841, 843.

Since the majority opinion states that there is no authority for the exception to the general rule, why should it then state that the ruling in the Begnaud case, supra, is manifestly contrary to all jurisprudence on this subject and that the mistake in the ruling should not be perpetuated ?

Mr. Justice McCaleb, organ of the Court in the Cobb case, was the organ of the Court in the Texas case, supra, (the last decision of this Court on the subject herein involved) decided December 9, 1949.' In that case we said:

“ * * * to say that' plaintiff is bound by the leases and yet obtains no enforceable rights thereunder (because the State as the real party at interest is exempt from suit) would provide an avenue for the State to escape its just obligations even though it be contracting in its proprietary capacity. This is exactly what this Court refused to countenance in State ex rel. Shell Oil Co. v. Register of State Land Office, 193 La. 883, 192 So. 519 and in Begnaud v. Grubb & Hawkins, 209 La. 826, 25 So.2d 606, 608.”

The above authorities cited in the Texas case, supra, bear out our contention that a rehearing should have been granted in the Cobb case, and so does the authority cited in. Footnote No. 2 of the Texas case, supra. We quote this footnote:

“In the last-cited case the Court said:
‘The argument that because ordinarily the State as a sovereignty can not be sued in its courts except with its consent is untenable. It overlooks the fact t-hat while the State possesses legislative, public and governmental power in the exercise of which it is a sovereignty and governs its people, it also possesses proprietary and quasi private power conferred upon it not for the purpose of governing its people but for the private advantage of the inhabitants of the State itself as a legal personality. This distinction in the powers of the State was pointed out in the case of State ex rel. Shell Oil Co. v. Register of State Land Office, 193 La. 883, 192 So. 519. In that case this Court held that when the State executed a mineral lease it was acting in its proprietary or quasi private capacity and that having accepted the benefits under the lease it could not escape its obligations — among which was the obligation of warranty. And the Court properly allowed the assignees of the lessee of the State to call their lessors in warranty to protect their possession of the leased premises.’ ”

What is so striking to our minds is the fact .that in the Texas case, supra, the exception to the jurisdiction ratione materiae was overruled, and in the Cobb case the .exception ratione materiae was sustained. When we analyze these two cases, the rulings therein made, and the statement in the Cobb case that there is no authority for the position taken by Mr. Cobb, we cannot catch on to the' combination's of the law of these two cases, because the predicate 'looks one way and the conclusion another, while its syllogism fails to syllogize.

We feel that all citizens should give a loyal allegiance and a faithful service to their government; that the State should set a good example and- live'up to all of its obligations, whether expressed or implied.

A rehearing should have been granted, because the rationale of the. decision is a complete suspension of the law relating to the obligation of a contract as provided for in the Revised Civil Code of Louisiana. In fact, in providing that immunity is absolute in all cases, the decision has overlooked the fact that while the State possesses legislative, public and, governmental powers in the exercise of which it is a sovereign and governs its people, it also possesses proprietary powers conferred upon it not for the purposes of governing its people but for the private advantage of the inhabitants of the State as a legal personality.

The. original decision has built an improvident immunity of the sovereign on á false premise, which, in the interest of the conduct of affairs in.our civilization, must be recognized by such an exception as this Court has established respecting proprietary acts of the State in the cases of Begnaud, supra, Shell Oil, supra, and Texas, supra.

The Cobb decision then declares:

“It would serve no,useful purpose to cite and discuss-herein the numerous decisions written both before and after the Burke case with views in concordance with that authority. It suffices to refer to State ex rel. Cunningham v. Lazarus, 40 La.Ann. 856, 5 So. 289; State v. Liberty Oil Co., 154 La. 267, 97 So. 438, and Lewis v. State, 207 La. 194, 20 So.2d 917.”

The decision in the case of State ex rel. Hart v. Burke, 33 La.Ann. 498, (which case the Cobb decision .mainly relies on) declares:

“This suit has djearly for its object the appropriation in favor of a private individual, who claims to be a creditor of the State, pf money belonging to the State, which is in the State Treasury, and which the State has ordered, by constitutional provision, shall not be applied to 'him, but shall be used to defray the general expenses of the government.”' -

The Court itself has made the matter so clear in the above quotation, that he who runs may read and in the reading understand.

The next case we shall discuss is that of Angelle v. State, 212 La. 1069, 34 So.2d 321, in which Mr. Justice McCaleb was the, organ of the Court, and which is cited as authority in the Cobb decision. In ex-. press terms it declares that the action against the State was one ex delicto. The decision in that case was correct, because it was an action ex delicto.

The case of State ex rel. Dodd v. Tison, 175 La. 235, 143 So. 59, quoted as authority for the position taken in the Cobb decision, was an action brought against the principal of a school. . The Court held— and correctly so — that the State Board of Education should he sued and that an action would not lie against the principal of the school.

In the case of State ex rel. Cunningham v. Lazarus, 40 La.Ann. 856, 5 So. 289, proceedings were taken to compel the State to pay the cost of taking testimony. Of course, the decision in that case was correct, because no proprietary act of the State was involved.

The case of State v. Liberty Oil Co., 154 La. 267, 97 So. 438, was a tax case where the taxpayer reconvened to recover tax paid under protest. As the tax had gone into the public treasury, Article IV, § 1, of the Constitution, we held that it could not be withdrawn therefrom, except by specific appropriation. That decision - is correct, and it is certainly no authority for the conclusion reached in the Cobb opinion.

The original opinion then cites the case of Lewis v. State, 207 La. 194, 20 So.2d 917. This was a suit brought against the State in an action ex delicto for damages sustained while in the Central Louisiana State Hospital.

A slight reference should be made to the Articles of the Revised Civil Code, as well as the grant of power, which are incident to all private corporations.

Article 2475 of the Revised Civil Code provides:

“The seller is bound to two principal obligations, that of delivering and that of warranting the thing which he sells.”

We are admonished that no one can disregard an Act of the Legislature, except with its sanction and consent, and that an Article of Code adopted by the Legislature constitutes an Act of that Department of Government.

Then Article 1756 of the Revised Civil Code declares:

“An obligation is, in its general and most extensive sense, synonymous with duty.”

Article 1761 of the Revised Civil Code provides:

“A contract is an agreement, by which one person obligates himself to another, to give, to do or permit, or not to do something, expressed or implied by such agreement.”

Article 1903 of the Revised Civil Code says:

“The obligation of contracts extends not only to what is expressly stipulated, but also to everything that, by law, equity or custom, is considered as incidental to the particular contract, or necessary to carry it into effect.”

When the Louisiana Board of Institutions or the penitentiary made this sale to Mr. Cobb, it warranted the fitness of the thing sold, and it is by law a contract between the parties, enforceable, in that under Article I, Section 6 of the Bill of Rights our Courts are open to,the citizen for remedy or redress.

Now, what are the powers granted to the Board of Institutions and the penitentiary by the Legislature?

Act- 350 of 1950, Section 9, LSA-R.S. 51:692.9, gives them the power to engage in business and the necessary power to purchase the necessary machinery and materials to be used in the conduct thereof, and to enter into any agreement and contract with any person, firm or corporation for the acquisition and purchase of any such supplies, equipment, tools, machinery and materials deemed necessary and expedient to conduct the production and manufacture of articles, goods, wares and merchandise contemplated by this act.

Act 156 of 1952, Section 5(f), gives the Board of Institutions the right to lease the lands owned by the State and under the control of the Board. It further provides that:

“ * * * The Directors shall have the right to grant rights of way across State owned lands under its jurisdiction for the purpose of laying pipe lines, gas lines, water lines, and the transmission of electricity for power and light, and also for telephone and telegraph lines and to enter into the necessary contracts which shall provide for the payment of an adequate consideration. * * * to buy lands needed for the proper use of any institution and to sell and transfer real property belonging to the State and under the jurisdiction of the Board to any other State agency, with the approval of the Board of Institutions and the Governor.”

In the doing of these things the penitentiary is given the power to carry on this business of buying and selling and all that is necessary and incidental to the operation of this business. By Act 350 of 1950, Section 9, a revolving fund of five hundred thousand dollars was created, to be used for the purpose of purchase of manufacturing supplies, equipment, tools, machinery, and materials to be used in the conduct of the business. This fund is not deposited with the State. Only an amount in excess of the five hundred thousand dollars is to be deposited into the General Fund of the State.

Act 429 of 1954, LSA-R.S. 51:692.10, provides that the penitentiary can sell all fresh vegetables and all sugar on the open market; that the beef cattle raised by the penitentiary may be sold at public auction sales and the proceeds from such sales placed in a separate fund designated as the “Penitentiary Meat Fund”. The Statute further provides that the public auction barn selling such cattle shall furnish the penitentiary a list of all of the sellers of all cattle bought by the penitentiary, and the funds in the “Penitentiary Meat Fund” may be used for these purposes, and that when this fund reaches $15,000 any excess shall be deposited in the State Treasury to the credit of the Penitentiary Fund.

Could there be possible any grant of power stronger than the above ? A serious matter is involved — that under the grant of power, cattle may be sold. Under the Cobb decision, immunity is granted in all cases. Where a man purchases beef cattle for the purpose of selling to the general public, who warrants the fitness of the animal sold? As government is for the man, his life and property, that man will not be protected.

Then again, for instance, if cotton was sold for foreign export by the penitentiary and after it had gone across the water it was found that a mass of moss was in the center of the cotton, the purchaser abroad would have no warranty from the State of Louisiana because of the Cobb decision. He would first have to go to the State for permission to sue.

With all humility we say that the Legislature has put the penitentiary in business and the Court, by the Cobb decision, has taken it out of business. Under these circumstances, who would deal, citizen or foreigner, with the State ?

A rehearing should have been granted in this case, because the question for solution is now a mighty interrogation point thrown up by human progress. What will the solution be? Will it be like the pendulum of the clock — to go back and forth; or, will it be like the hands of the clock— to always go forward ?

For these reasons, I respectfully dissent to the refúsal to grant a rehearing.

On Second Application For Rehearing

PER CURIAM.

The rehearing applied for by plaintiff, Lloyd J. Cobb, was denied on January 16, 1956. A second petition for rehearing has been filed by his attorneys in which a rehash is made of the same contentions which are disposed of adversely to him in the Court’s opinion.

The Revised Rules of the Supreme Court of Louisiana, Rule XII, Sec. 3, provide that “ * * * another petition for rehearing will not be considered unless the applicant has not theretofore applied for and been granted a rehearing or unless the court, in deciding the case on rehearing, has expressly reserved to the unsuccessful party or parties the right to apply for another rehearing.” Since no such right was reserved in denying the application for rehearing, this matter is closed and there is nothing to consider.

      . See 49 Am.Jur. Yerbo “States, Territories and Dependencies” Sections OI-OS; 81 C.J.S., States, §§ 214 and 216; Annotations 42 A.L.R. 1464 — 1496 and 50 A.L.R. 1408.

      . See Annotation 40 A.L.R.2d 927; Rome v. London & Lancashire Indemnity Co., 181 La. 630, 160 So. 121 and particularly Manion v. State Highway Commissioner, 303 Mich. 1, 5 N.W.2d 527, certiorari denied 317 U.S. 677, 63 S.Ct. 159, 87 L.Ed. 543, noting the distinction between sovereign immunity from suit and sovereign immunity from liability.

      . It is apt to point out that, at the time the Burke case was written (1881), there was no constitutional provision setting forth the procedure in suits against the State when authorized by the Legislature. This provision first appeared in Article 192 of the' Constitution of 18£)8.

      . Exceptions to the jurisdiction, would have been the proper plea.

      . It is to be observed that, aside from the untenable holding in' the Begnaud case that the State-can be sued without its consent on contracts pertaining to the leasing of State lands as it is then acting in a proprietary capacity, the conclusion that the leasing or disposal of public property is of a quasi private character may well be doubted. Conversely, it occurs to us that the leasing or sale of public lands or other State property for the advantage of the people may well be regarded as a function of government.


source: Caselaw Access Project

author: FOURNET, Chief Justice.

license: Public Domain

text:
    229 La. 30
    Succession of Mrs. Annie Laurie Roumain MOODY.
    No. 41814.
    Supreme Court of Louisiana.
    Dec. 12, 1955.
    Rehearing Denied Jan. 16, 1956.
    See, also, 227 La. 609, 80 So.2d 93.
    Joseph A. Gladney, Baton Rouge, for plaintiff-appellant.
    Durrett & Hardin; Breazeale, Sachse & Wilson, Baton Rouge, for defendant-appel-lee.
   FOURNET, Chief Justice.

Benjamin F. Roumain having dismissed his suit to have his niece’s will set aside on grounds of forgery and insanity, at his (plaintiff’s) cost, the defendant named therein, Thomas Franklin Moody, universal legatee under the will, sought' to have various expenses incurred by him preparatory to the trial of the case fixed as costs, among which were expert witness fees paid three medical doctors and a handwriting expert whose depositions were taken; the notarial fee and reporting costs in connection with the taking of said depositions; services rendered by Hannis T. Bourgeois, C.P.A., pursuant to order of the Court; and a long distance telephone call from Baton Rouge to New York City. In his answer denying liability the plaintiff contended that in as much as the several depositions had not been used in the trial of the case, neither the fees of the witnesses nor the costs incurred in taking the depositions could be fixed as costs in view of the provisions of LSA-R.S. 13:4533, and in any event they are excessive; that much of Bourgeois’ work was not ordered by the Court, and that the amount charged'by him was excessive. The trial judge rendered judgment allowing all of the above items, in these amounts: $150 for each of the three doctors, $1,000 for the handwriting expert, $257.01 for the notarial fee, $153.45 for reporting costs, $1,050 to Han-nis T. Bourgeois for his services, and $5.20 for the long distance telephone call — a total of $2,915.66. From that judgment Roumain has appealed, and Moody has ánswered the appeal, asking that the sum allowed " for Bourgeois’ services be increased to the full amount of his charge, $3,143.75. '

Counsel for the plaintiff is still contending, primarily, that LSA-R.S. 13:4533 requires that depositions, to be chargeable as costs, must be “used on the trial,” which disposes of the first four items listed above; additional arguments as to those amounts are that (1) the testimony of the doctors was mainly in connection with medical facts concerning the last illness of the deceased for which they were not entitled to any fee, and, in any event, the fees allowed them as well as that allowed the Notary for presiding at the taking of the depositions are excessive; (2) the handwriting expert’s fee is excessive and, in fact, should not be allowed at all since he was employed and did practically all of his work before suit was filed; (3) Bourgeois’ only duty under the Court’s order was to furnish to another accountant certain books recording private business transactions of the decedent and the defendant, and the fee allowed him is excessive; (4) there is no statutory authority for fixing as a cost the long distance telephone call.

We think that counsel for the plaintiff is in error in his contention that the costs of taking the depositions of the several experts and the expenses in connection therewith are not taxable as costs because the depositions were not used on the trial. In the first place, an analysis of the statute on which he relies does not support plaintiff’s'construction. LSA-R.S. 13:4533 provides “The costs of the clerk, sheriff, witness’ fees, costs of taking depositions and copies of acts used on the trial, and all other costs allowed by the court, shall be taxed as' costs.” The phrase “used on the trial” applies to “copies of acts” and clearly does not modify nor affect “costs of the clerk,” “sheriff,” “witness fees,” or “costs of taking depositions.” In the next place, the use of the depositions was foreclosed by plaintiff’s action in dismissing his own suit (which was done over defendant’s objection) to avoid going to trial on the merits on the date fixed — the following day.

Counsel’s next contention, that the fees of the doctors cannot be taxed as expert fees because they testified to medical facts, is clearly without merit, for a perusal of their depositions shows not only that they gave expert testimony, but also that the many facts concerning the illness of the deceased which are found in the testimony appear solely because of counsel’s lengthy cross examination of the witnesses, lasting several hours. As to the fee of the handwriting expert, 'it is not "claimed that the amount of $250 per day is an excessive per di-em fee, but rather that the fee should have been allowed for one day only, the day on which the expert testified- — citing no authority in support. While the fees of these experts and the fee of the notary for his services appear at first glance to be somewhat high, we are not disposed to disturb the amounts fixed by the trial judge in this case under its facts.

The appointment of Hannis T. Bourgeois was made while the case was pending, when the trial judge issued his Order naming Bourgeois to supervise the work of Erwin A. LaRose, a certified public accountant of plaintiff’s choice, in La-Rose’s inspection and copying of books and records, to be made available in Bourgeois’ accounting offices, affecting income and expenditures of the defendant and his deceased wife over a period of some 12 years prior to her death. To facilitate this work Bourgeois devoted his time and that of several employees to making an analysis of the data so that any report called for by La-Rose could be readily produced. While the trial judge did not question that the work had been helpful, he interpreted his own order as not having contemplated such service and reduced the amount charged by Bourgeois to a sum representing compensation for the time actually spent by Bourgeois with LaRose. Plaintiff argues that the amount allowed is excessive; the defendant, that it should be increased; but in our opinion, when considered in the light of the responsibility placed upon Bourgeois and the value of his time, $150 a day is a fair award, and in view of the trial judge having construed his own order as not contemplating much of the service rendered by Bourgeois, we do not feel disposed to increase the amount.

As to the telephone call to 'New York, we think the trial judge was well within the discretion given him in LSA-R.S. 13:4533, supra, in allowing that charge.

For the reasons assigned, the judgment appealed from is affirmed.


author: HAWTHORNE, Justice.

text:
    229 La. 37
    MISSISSIPPI VALLEY ELECTRIC COMPANY v. GENERAL TRUCK DRIVERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS, LOCAL 270, AFFILIATED WITH THE A. F. OF L., et al.
    No. 42638.
    Supreme Court of Louisiana.
    Dec. 12, 1955.
    Rehearing Denied Jan. 16, 1956.

      • Henican, James & Cleveland, Murray F. Cleveland, Ne\y Orleans, for relator.:
    Dodd, Hirsch & Barker, Baton Rouge, for respondents.
   HAWTHORNE, Justice.

Mississippi Valley Electric Company, admittedly engaged in interstate commerce, brought suit in the Civil District Court for the Parish of Orleans to enjoin picketing by the General Truck Drivers, Chauffeurs, Warehousemen and Helpers, Local 270, A. F. of L. .The union picket lines consisted of one picket before each of the company’s two places of business in the City of New Orleans, and the picketing was conceded to be peaceful. The district court dismissed the company’s suit on the ground that the state court was without jurisdiction ratione materiae because the state court’s jurisdiction had been preempted by the authority vested in the National Labor Relations Board under the Labor Management Relations Act, 1947, 29 U.S.C.A. § 151 et seq. (cbmmónly' called the Taft-Hartley Act), as interpreted by recent decisions of the Supreme Court of the United States. On application of the company we granted writs to review thé holding of the court below.

The pertinent facts are these:

For the four calendar years prior to 1955, the company had a collective bargaining contract with its truck drivers represented by General Truck Drivers, Chauffeurs, Warehousemen and Helpers, Local 270, A. F. of L., popularly called the Teamsters Union. This contract was an annual one, renewable at the end of each calendar year, and during the time it was in force the company employed a minimum of two truck drivers and sometimes more. These drivers were piembers of the Teamsters Union, and during the existence of the contract the company recognized and dealt with the Teamsters Union as the collective bargaining representative of its truck drivers. In October, 1954, the union sought to negotiate for a renewal of the contract in 1955. In reply to this request the company informed ■the union that it was going to allow the existing contract to expire, and that it did not want to sign the proposed new contract, which was objectionable to it, or to enter into negotiations with the Teamsters Union. The 1954 collective bargaining contract expired on December 31. A few days later the company temporarily laid off, for lack of work, one of the two regularly employed truck drivers. The following April, after fruitless efforts by the union to obtain a contract with, the company, the single remaining truck driver, who was a member of that union, struck, and picket lines were established before the company’s places of business. The company’s electrical employees, members of the International Brotherhood of Electrical Workers, refused to cross the picket lines,’ as did other union members who worked for persons doing business with the company.'

A few days after the strike had begun and .while the picketing was going on, the company filed a petition with the National Labor Relations Board, alleging that the Teamsters Union had presented a claim to be recognized as the bargaining representative of the company’s employees (one truck driver) as defined in Section 9 of the Labor Management Relations Act, and requesting the Board to proceed under its proper authority.

In about 10 days the regional director of the National Labor Relations Board wrote the company that its petition for investigation and certification of representation under Section 9 of the National Labor Relations Act had been carefully investigated and considered, and had been dismissed because it did not appear that further proceedings were warranted inasmuch as the unit described in the petition (one employee) was inappropriate for the purposes of collective bargaining. The regional director further informed the company in his letter that under the rules and regulations of the Board a review of this action could be obtained by filing a request for review with the National Labor Relations Board, Washington, D. C., within 10 days from the receipt of the letter.

It is proper that we digress here from our statement of the pertinent facts in order to .consider the provisions of Section 9 of the Act under which the above petition was filed and the ruling made.

Section 9(a) of the Act, 29 U.S.C.A. § 159’ (a), provides that “Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment. * * *” Under Section "9(c) (1) (B), when a petition has been filed by an employer alleging that one or more labor organizations have presented to it a claim to be recognized-as representative as defined in Section 9 (a); quoted above, the Board shall investigate the petition and, if it has reasonable cause to believe that a question of representation áfifecting commerce exists, shall ■provide for an appropriate hearing upon due notice; after such hearing, if the Board finds that such a question of representation exists, it shall direct an election by secret ballot and shall certify the results thereof.

When we consider these provisions of the Act, it is patent that in dismissing the company’s petition the Board simply found that a question of representation did not exist, under Section 9, because the unit named in the petition — one employee, a member of the union — was not such a unit as was contemplated by the provisions of the Act for which the Board could call an election by-secret ballot and certify a representative for collective bargaining. In other words, the Board found that one employee was not a unit appropriate for the purposes specified in Section 9.

The company did not seek a review within 10 days of the action of the regional director dismissing its petition for investigation and certification of representation under Section 9 of the Act, as it had a right to do, but instituted the present proceedings in the state court for injunctive relief. To the company’s suit in the state court the union filed an exception to the jurisdiction ratione materiae.

After a hearing the judge of the lower court concluded that the .exception to the jurisdiction ratione materiae filed by the union was well founded. However, he granted a preliminary injunction to maintain the status quo in order to give either party an opportunity to obtain from-the National Labor Relations Board a ruling either that the Board could not or would no.t •entertain jurisdiction or that it would entertain jurisdiction and adjudicate the matter.

The employer then filed a charge with the National Labor Relations Board, stating that the Teamsters Union was ehgaged 'in •unfair labor practices within the meaning of Section 8(b), Subsection 4, of the Labor Management Relations Act, and setting forth in detail all of the facts of this controversy. Two weeks later the National Labor Relations Board through it's acting regional -director' informed the company that its charge had been carefully investigated and considered, and that “while the investigation disclosed that the Board has jurisdiction over Mississippi- Valley Electric Company, whose operations in interstate commerce exceed the Board’s minimum jurisdictional standards, the charges that the above named Union has engaged in conduct in violation of Section 8(b) (4) of the A-ct are without merit”. (All italics in quoted material in ■this opinion are ours.)

Pursuant to the rules of the Board, the •company filed with the general counsel of •the Board in Washington a request for a review of the action of fhe regional direc■tor. However, the assistant general counsel of the Board advised the company that its appeal from the refusal of the regional director to issue a complaint, charging violations of Section 8(b) (4) of the Act had been duly considered by the general counsel, and that “the General Counsel sustains the ruling of the Regional Director. The General .Counsel concludes there is insufficient evidence .of violations to warrant further proceedings”.

Counsel for the company then requested of the general counsel a clarification of the above ruling or a reconsideration of the matter. In reply to this request and in clarification of the action sustaining the regional director, the company was told by the associate general counsel of the Board that on the basis of the facts disclosed by the investigation of the charge the conduct complained of did not constitute an unfair labor practice within the meaning of Section 8(b) (4) of the National Labor Relations Act, and that the. company’s request for a reconsideration .was denied since .no persuasive reason had been presented to alter the original decision denying the appeal.

Taking notice of all these facts, petitions, and rulings, the trial judge concluded that the National Labor Relations Board had' exercised jurisdiction of the matter and had decided that the union’s conduct complained of by the employer was not an unfair labor practice! ' For' this and other reasons- given by the judge’ in his written reasons for judgment, the application of the company for an injunction was dismissed for want of jurisdiction ratione materiae. This court granted writs to review this judgment.

._ The question which we are called upon to decide here is whether under the pertinent facts of this case the state court has jurisdiction to enjoin peaceful picketing, by the union, or whether state jurisdiction has been preempted by the authority vested in the National Labor Relations Board by Congress.

In’ support of their respective contentions both parties to this litigation cite and rely on two cases decided’ by this court, Gulf Shipside Storage Corporation v. Moore, No. 41,859 on the docket of this court, decided March 21, 1955, and Arkansas Oak Flooring Co. v. United Mine Workers, 227 La. 1109, 81 So.2d 413.

What was said by this court in the Gulf Shipside case, however pertinent it may be, cannot be relied on a-s decisive of the question here presented because that ease never became final. This court granted a rehearing in Gulf Shipside for further consideration of the issues there presented, which had the effect of setting aside the decision, and while the case was pending on rehearing it was compromised.

In the Arkansas Oak Flooring Co. case, this court affirmed a judgment of the lower court enjoining picketing. We concluded on the question of jurisdiction that such picketing was still open to control by the state courts for the reason that the union in that case was a non-complying union under the provisions of Section 9 of the Taft-Hartley Act, in that it had failed to file with the National Labor Relations Board the required non-Communist affidavits, financial data, etc.; that the services and facilities of the Board were therefore not open to this union for either representation or unfair labor practices; that under these facts there was no obligation on the employer to request the facilities or services of the Board; that the action of the employer in refusing to recognize a non-complying union was not an unfair labor practice; and that consequently the state court had jurisdiction to issue the injunction. In -short, this court reached the conclusion that the National Labor Relations Board was without jurisdiction because the union was a non-complying union under the provisions of Section 9 of the Taft-Hartley Act. In the instant case there is no suggestion made that the Teamsters Union is a non-complying union under the provisions of Section 9 of the Act. Moreover, our holding in the Arkansas Oak Flooring Co. case cannot at this time be considered decisive because certiorari has been granted by the Supreme Court of the United States to review our holding, and the case is now beforé that court for decision.

Weber v. Anheuser-Busch, Inc., 348 U.S. 468, 75 S.Ct. 480, 484, 99 L.Ed. 546, was decided by the Supreme Court of the United States in March, 1955. In that case the Supreme Court, recognizing that on numerous occasions it had to deal “with this delicate problem of the interplay between state and federal jurisdiction touching labor relations”, reviewed its decisions on that problem. The court pointed out that it had held that the state courts had jurisdiction to enjoin mass picketing, threats of bodily injury, property damage to employees, obstruction of streets, unannounced work stoppages, attempted enforcement of a maintenance of membership clause in a contract between the employer and the union, etc., as such conduct was not subject to regulation by the federal Board either by ■prohibition or by protection. The Supreme Court made it perfectly clear, however, that under its decisions the state court maj not prohibit “the exercise of rights which the federal Acts protect”, nor can the state court “enjoin under its own labor statute conduct which has been made an 'unfair labor practice’ under the federal statutes”. In other words, if the activity complained of is either protected or prohibited by the provisions of the Labor Management Relations Act, 1947, then the jurisdiction of the state court has been preempted, and primary jurisdiction is vested in the National Labor Relations Board under the authority given that Board by the Act.

It is true that in the instant case the National Labor Relations Board has ruled that the activity of the union did not constitute an unfair labor practice within the meaning of Section 8(b) (4), but this ruling is not sufficient of itself to vest jurisdiction of the controversy in the state court. The ruling of the Board was simply that there was no unfair labor practice under this designated subsection of Section 8. The Board has not ruled that no unfair labor practice exists in this controversy. It may be that the activity of the union is prohibited by some other provision of the Act, or it may well fall within the protection of Section 7.

In the Anheuser-Busch case, supra, the Board had ruled, as here, that there was no unfair labor practice under the section of the Act under which the charge of -unfair labor practice was made, but the United States Supreme Court held that regardless of this ruling the Missouri court was without jurisdiction. In that case the Supreme Court said:

* * even if it were clear that no unfair labor practices were involved, it would not necessarily follow that the State was free to issue its injunction. If this conduct does not fall within the prohibitions of § 8 of the Taft-Hartley Act, it may fall within the protection of § 7, as concerted activity for the purpose of mutual aid or protection.”

It is not our intention to hold that the peaceful picketing of which the employer complains in the instant case falls within the prohibition or protection of the Taft-Hartley Act, for we recognize that primary jurisdiction to determine these questions rests with the National Labor Relations Board, and not with the state court. Weber v. Anheuser-Busch, Inc., supra. However, we might observe that the picketing here sought to be enjoined is not restrained or prohibited by any provisions of the Taft-Hartley Act, and accordingly the statement of the Supreme Court in Garner v. Teamsters, C. & H. Local Union, 346 U.S. 485, 499, 74 S.Ct. 161, 170, 98 L.Ed. 228, quoted with approval in the Anheuser-Busch case, is pertinent:

“The detailed prescription of a procedure for restraint of specified types of picketing would seem to imply that other picketing is to be free of other methods and sources of restraint. For the policy of the National Labor Management Relations Act is not to condemn all pickéting but only that ascertained by its prescribed processes to fall within its prohibitions. Otherwise, it is implicit in the Act that the public interest is served by freedom of labor to use the weapon of picketing. For a state to impinge on the area of labor combat designed to be free is quite as much an obstruction of federal policy as if the state were to declare picketing free for purposes or by methods which the federal Act prohibits!’

In the Anheuser-Busch case the Supreme Court conceded that “ * * * it is not easy for a state court to decide, merely on the basis of a complaint and answer, whether the subject matter is the concern exclusively of the federal Board and withdrawn from the State”. However, in that case the court made it perfectly clear that “ * * * where the moving party itself alleges unfair labor practices, where the facts reasonably bring the controversy within the sections prohibiting these practices, and where the conduct, if not prohibited by the federal Act, may be reasonably deemed 'to come within the protection afforded by that Act, the state court must decline jurisdiction in deference to the tribunal which Congress has selected for determining such issues in the first instance”.

This test is helpful to us in deciding the case at bar. The type of picketing here complained of is not prohibited by the Act and in our opinion may be reasonably deemed to come within the protection afforded by the Act. Consequently the judgment of the district court sustaining the exception to the jurisdiction ratione mate-riae is correct.

If upon the filing of the unfair labor practice charge by the employer in the instant case the National Labor Relations Board had issued a complaint against the union, it would be obvious that the state court lacked jurisdiction of this controversy. However, the refusal of the Board in this case to issue a complaint did not automatically vest jurisdiction of the controversy in the state court. The National Labor Relations Board appears to us to have accepted jurisdiction of the instant suit. After careful investigation into the charge made by the employer the Board made its ruling on the ground that there was not sufficient evidence to issue an unfair labor complaint. In other words, it decided the case on its merits.

Both parties to this litigation concede that the instant 'case is a labor dispute in interstate commerce, and that, if the activity here complained of, peaceful picketing, is either prohibited or protected under the provisions of the Taft-Hartley Act, the state court‘is without jurisdiction. Counsel for the com-' pany say, however, that, since the National Labor Relations Board has ruled that the activity of the union is hot an unfair labor practice, it is,not prohibited by the Act, and,' further, that such activity, being for an unlawful purpose, is not protected by the Act, and thus, being neither prohibited nor protected, it is open to state control.

As-we have heretofore pointed out, the National Labor, Relations Board has not ruled that, no unfair labor practice exists in- this controversy. It did rule that the activity of the union did not constitute an unfair labor practice within the meaning of. Section 8(b) (4). It may be that the activi-. ty of the union is prohibited by some other provisions of the Act, or it well may be that the employer is engaged in an activity prohibited by the Act; but neither of these’ questions has been passed upon by the National Labor Relations Board. Its ruling that there was no' unfair labor practice under a, designated section of the Act, therefore, is not sufficient of itself to vest jurisdiction in the state court. Weber v. Anheuser-Busch, Inc., supra.

Moreover, there is no merit to the company’s contention that the picketing of its plants was unlawful and hence not protected by the Act because its purpose was to force the company to recognize a union as the bargaining representative of a single employee not constituting an appropriate unit. The fact that the National Labor Relations Board has ruled’that a single employee is not an appropriate unit does' not necessarily make the picketing unlawful or for an unlawful purpose. As we have already pointed out, what the National Labor Relations Board held was that a question of representation did not exist under Section 9 of the Act, or that one employee was not a! unit for which the Board could call an election by secret ballot and certify a representative for collective bargaining. The company does not point out any provision of the Taft-Hartley,Act which makes unlawful the peaceful picketing conducted here, nor. do we know of any such provision. However, if we should assume, as contended by the company, that this picketing is prohibited by the Act and consequently is unlawful, or is in violation of the ruling of the National Labor Relations Board,’ this would constitute conduct prohibited by the Act, and the Board alone', and not the state court, is vested with jurisdiction to enter the necessary restraining order.'

The judgment of the lower court sustaining the exception to the jurisdiction ratione materiae, and dismissing relator’s suit is affirmed at relator’s costs.

FOURNET, C.: J., concurs in the decree.

      . Formerly known as the National Labor Relations Act.

       Dismissed in open court.

      . It is clear that the instant case does not fall within any of these various classes of cases in which the state court may exercise jurisdiction.


author: MOISE, Justice.

text:
    229 La. 55
    STATE of Louisiana v. Artie MARSHFIELD.
    No. 42556.
    Supreme Court of Louisiana.
    Jan. 16, 1956.

      Joseph S'. Cuerriero, Monroe, Warren Hunt, Rayville, for appellant.'.
    Fred S. LeBlanc, Atty. Gen., M. E. Cul-ligan, Asst. Atty.' Gen.,' Albín P. Lassiter, Dist. Atty., Monroe, for appellee. ' '
   MOISE, Justice.

Artie Marshfield was charged by Bill of Information with the possession of a- narcotic drug, toAvit: “5 grains of pure marijuana in the form of a cigarette, and 270 grains' of pure marijuana in bulk 'in- a pint fruit jar.”

The filing of a Bill of Particulars bronght out The additional fact that the Information charged two distinct acts, .of possession without the use of separate counts; that the two acts of possession were in different places — that the possession of the cigarette was on- the pérson of the accused, 'and the possession of bulk marijuana was constructive, being at a place where the State contended the accused maintained his living quarters. Be that as it may, Bills of Exceptions Nos. 1 and 2 were not sustained, and as far as this case is concerned they are not necessary for decision.

Bill of Exceptions No. 3 was reserved when defendant’s counsel offered to the Trial Judge, at the proper time, written request for a special charge to the jury of the law of attempt — that is, attempted possession. The written charge is attached to and made a part of Bill of Exceptions.No. 3. The Judge refused to give the charge requested, and a Bill .Exceptions was properly reserved and perfected.'

There is.crystallized in our jurisprudence, as a maxim of common sense, that each case must stand or fall on its own peculiar facts and circumstances.

In his per curiam the Trial Judge stated:

“The request for a special charge of Attempt to commit the crime of Possession of a narcotic drug was refused for the reason that there was no evidence adduced ás to any attempt to commit the crime. State v. Espinosa, 223 La. 520, 66 So.2d 323.”

The learned Judge has fallen into error. The case of State v. Espinosa, 223 La. 520, 66 So.2d 323, has its own facts, which will constitute the hand grenades for argument. At the time of that decision, the penalties for a violation of the Narcotics Law-were the same for “obtaining” or “attempting to obtain” a narcotic drug. In that case the, defendant was; charged with obtaining a narcotic drug. He made a confession, .in which he admitted that he did obtain the drug through fqrgery, and it was received in evidence. We held that the Trial Judge was not in error in refusing to rule that the jury could bring in a verdict of “attempt”. However, in that decision we recognized that Article 27 of the Revised Statutes, LSA-R.S. 14:27, included the crime ,of attempting to possess a narcotic drug as had been .set out in the case of State v. Broadnax, 216 La. 1003, 45 So.2d 604.

At the time of the trial of the instant case, the decision of State of Louisiana v. Nicolosi, 228 La. 65, 81 So.2d 771, 775, had not 'been rendered. In that case this Court set 'at rest the doctrine of “attempt” and explained in detail the decision in the Espinosa case, supra. We stated:

“Bill No. 12 was taken to the overruling of a motion in arrest of judgment. The only alleged error patent on the face of the record relied on by appellant in this bill is that the jury in the instant case returned a verdict of guilty of attempted possession of narcotic drugs, and this was not a responsive verdict to the charge of possession of narcotic drugs. This contention has been fully answered in the case of State v. Broadnax, 216 La. 1003, 45 So.2d 604.
******
“ * * * Thus it is clear that the Espinosa case in no way affected or overruled the holding of this court in State v. Broadnax, supra. Moreover, as the crime charged in the instant case is the same as the one charged in the Broadnax case, i. e., unlawful possession of narcotic drugs, our holding in the Broadnax case on the issue of attempt as a responsive verdict is controlling here, and the case of State v. Espinosa is clearly inapposite.”

In the Broadnax case, supra [216 La. 1003, 45 So.2d 609] it was stated:

“ * * * The ^934 acf-( as amended, makes it unlawful for any person to possess a narcotic drug, and Article 27 makes it unlawful for any person to attempt such possession. By the provisions of Article 27, an attempt is made a separate but lesser grade of the intended crime, and that this article is broad enough to include the crime charged in this case is evidenced by the penal provisions of Article 27, as follows: ‘Whoever attempts to commit any crime shall be punished as follows * * *3 -pijg punishment is then set out where the offense is punishable by death or life imprisonment, etc., and, in Paragraph 3 it is provided: ‘In all other cases he shall be fined or imprisoned, or both, in the same manner as for the offense attempted, but such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both.’
“This court has previously pointed out that the comments to the various articles of the Criminal Code, printed as footnotes, have legislative sanction, and that it is appropriate and proper to take into consideration these comments in endeavoring to interpret and construe the provisions of the articles found therein. * * *
“Under Article 27 (the attempt article) we find the following comments:
“ ‘Louisiana statutes covered: Before the adoption of the Criminal Code Louisiana had no general statute punishing all attempts to commit crimes.
******
“ ‘Scope: The article is in accord with the general common law concept of attempt. An attempt to commit any crime is an offense whether the offense attempted be a felony or merely a misdemeanor. * * *

LSA-Revised Statutes, 15:386 states:

“Whenever the indictment sets out an offense including other offenses of less magnitude or grade the judge shall charge the jury the law applicable to all offenses of which the accused could be found guilty under the indictment. The only responsive verdicts which may be rendered, and upon which the judge shall charge the jury, where the indictment charges the following offenses are: * *

A violation of the narcotic statute is not included, but we conclude that, as a result of the Broadnax and Nicolosi cases, supra, the statute is applicable to the crime of possession of narcotics.

Therefore, because of our ruling in the Nicolosi case, supra, it becomes necessary for us to find that defendant’s Bill of Exceptions No. 3 is with merit.

For the reasons assigned, the conviction and sentence are set aside and the defendant is granted a new trial consistent with the views herein expressed.

HAWTHORNE, J., concurs in the decree.

FOURNET, C. J., absent.


author: McCALEB, Justice.

text:
    229 La. 61
    Mrs. Mary L. Schneider WINSBERG, Administratrix of the Estate of Hermand Woodward Winsberg, v. Mrs. Sarah Silverman WINSBERG, Mrs. Stella Winsberg Levy, Mrs. Jessie Winsberg Bluhm and Winfred J. Winsberg.
    No. 42187.
    Supreme Court of Louisiana.
    Jan. 16, 1956.
    Solomon S. Goldman, New Orleans, for defendants-appellants.
    Arthur B. Hammond, Jr., New Orleans, for plaintiff-appellee.
   McCALEB, Justice.

The administratrix of the Succession of Hermand W. Winsberg and tutrix of his only child, Kathleen Hilda Winsberg, brought this suit in the Civil District Court for the Parish of Orleans’against the widow and other heirs of Jacob Winsberg, the deceased father of Hermand W. Winsberg, for an accounting of his estate. •

Jacob Winsberg died testate on May 8, 1937, being survived by his widow, Mrs. Sarah Winsberg, and four children, Her-mand, Winfred, Jessie and Stella, who were placed in possession of his estate by judgment of court in the proportions of %2ths to Mrs. Sarah Winsberg and %2th each to the four children.

Following the death of Hermand Wins-berg in 1948 and the birth of his posthumous child, the administratrix brought the instant proceeding in which she alleged, in substance, that, notwithstanding the judgment placing her late husband in possession of a Jiath part of his father’s estate, the affairs of the succession had continued under the management of his mother, brother and sisters and that he “ * * * never received his proportionate share of the incomes, emoluments, salaries and other perquisites of the estate * * * ” and, particularly, his share from Winsberg’s Store, an enterprise left as a going concern by his late father; that a complete accounting was due by the other heirs for the period from May 8, 1937 through December, 1945 and that it is believed that the interest of the estate of Hermand Winsberg in the estate of his father is worth over $2,000. It was accordingly prayed that an accounting be ordered and further that ’there 'be judgment rendered against the defendants for whatever sum the account showed as existing' in favor of petitioner. ’

The trial judge, after a hearing on the question of plaintiff’s right to an accounting, being apparently of the opinion that no accounting was due from the business known as “Winsberg’s Store”, ruled that defendants should only account for the rents and revenues received from the real property. Conformably with this order, defendants filed an account and, subsequently, the parties stipulated that, if .anything was - due plaintiff, the amount would be $1,460. Thereafter, a judgment was signed ordering defendants to pay plaintiff that sum.

Defendants appeal from this judgment to the Court of Appeal for the Parish of Orleans and plaintiff • answered the appeal, contending that, the Judge should have ordered defendants to account for their operations'of the personal property (Wins-berg’s Store) as well as the realty. Defendants moved to strike this answer on the ground that plaintiff should have appealed from the judgment denying her the right to an accounting for the personal property. The Court of Appeal rejected defendant’s motion and, in the same opinion, came to the conclusion that it was without appellate jurisdiction of the case inasmuch as plaintiff had alleged in her petition that the interest of the .Succession of Her-mand W. Winsberg in the estate of Jacob Winsberg is worth over $2,000. It accordingly transferred the appeal here. See 75 So.2d 542.

When the- appeal was lodged in this Court, defendants moved that it be re-transferred to the Court of Appeal, contending that that court is vested with jurisdiction. The motion was submitted' for our consideration in conjunction with the merits of the case.

It is our opinion that the motion is well founded as plaintiff has not affirmatively shown that the amount in dispute exceeds $2,000, which is requisite under Section 10 of Article 7 of the Constitution when the appellate jurisdiction of this Court is based upon that ground.

At the outset, it seems manifest that an action for an accounting is not primarily a monetary demand but rather the assertion of a.justiciable right which may or may-not become the subject of a monied judgment, depending upon whether the district judge upholds or denies the claim. In the case at bar, the judge granted plaintiff only the right to a partial accounting-which showed that thefe was $1,460 due by defendants. Hence, the appellate jurisdiction of the case is to be gauged by that amount, as it was the only monetary sum in dispute at the time the case was submitted to the judge for his decision. The other right in controversy, i. e. — for an accounting of the revenues and profits derived from the personal property of Jacob Winsberg’s estate — which was rejected by the judge, is, as we have above stated, incapable of measure in dollars and cents and, unless and until an accounting is ordered; cannot be considered in determining appellate jurisdiction. ■

The Court of Appeal erroneously, we think, took the position that- plaintiff’s averment, that the interest of the Succession of Hermand Winsberg in his father’s estate exceeded $2,000, was determinative of appellate jurisdiction. In view of the recent authorities of this court that the record must affirmatively show that the amount in dispute .exceeds $2,000, an allegation in the petition to that effect will not suffice to vest jurisdiction here, save in cases for recovery of money or property susceptible of accurate monetary appraisement which have been dismissed on exceptions in advance of a trial on their merits.

The Court of Appeal was also mistaken in its belief that our decision in Thalheim v. Gruhler, 216 La. 502, 43 So.2d 907, supported its conclusion that the bare allegation that the interest of the Succession of Hermand Winsberg in Jacob Winsberg’s estate exceeded $2,000 could be accepted as controlling the question of appellate jurisdiction. In that case, which was also an action for an accounting, there was no affirmative showing of any amount in controversy but appellant nevertheless sought to confer jurisdiction, by filing an affidavit in this Court to the effect that the amount involved exceeded $2,000. We refused to accept this affidavit, holding that the statement therein was merely a legal conclusion, such as we find to be the similar allegation contained in plaintiff’s petition in this case. See State ex rel. Roussel v. Grace, 219 La. 1000, 54 So.2d 428.

Plaintiff contends that, since the record shows that the property owned by the survivors of Jacob Winsberg, in which the Succession of Hermand Winsberg has an undivided JRth interest, is presently valued at $234,995.27, the appellate jurisdiction of this Court is affirmatively established.

The point is not well taken. Plaintiff is not praying for a partition of the property owned in indivisión, by the defendants and the succession of her late husband; she seeks only an accounting from the defendants for the amount of the interest of Her-mand Winsberg’s succession in the revenues and profits produced by'the property.owned in indivisión, which have accrued ■ .since 1937 when defendants assumed its administration.

For the foregoing reasons, this case is ordered retransferred to the Court of Appeal for the Parish , of Orleans, the transfer to be made within 30 days from the finality of this decree, otherwise, the appeal shall be dismissed. The costs incurred in transferring the case from the Court of Appeal to this Court and in retransferring it' from this Court to the Court of Appeal are to be borne by plaintiff-appellee. Taxation of all other costs áre to abide the final disposition of the cause.

      . This procedure was approved in Richardson v. Charles Kirsch & Co., 191 La. 991, 187 So. 1.

      . State v. Cook, 197 La. 1027, 3 So.2d 114; Walker v. Fitzgerald, 214 La. 293, 37 So.2d 712; Kennedy v. Perry Timber Co., 217 La. 401, 46 So.2d 312 and Ledet v. Rodgers, 220 La. 650, 57 So.2d 217.

      . Succession of Wesley, 222 La. 411, 62 So.2d 625; State ex rel. Davis v. Oaklawn Land & Improvement Co., 223 La. 7, 64 So.2d 623; Duplantis v. Locascio, 223 La. 11, 64 So.2d 624; Beene v. Pardue, 223 La. 417, 65 So.2d 897; Castleberry v. Ethridge, 223 La. 466, 65 So.2d 138; Lerner Shops of Louisiana, Inc., v. Reeves, 224 La. 33, 68 So.2d 748 and City of New Orleans v. Ryman, 225 La. 1092, 74 So.2d 386.


author: HAMITER, Justice.

text:
    229 La. 69
    James E. KALSHOVEN v. LOYOLA UNIVERSITY.
    No. 41495.
    Supreme Court of Louisiana.
    Jan. 16, 1956.
    John P. Dowling, Leonard L. Dreyfus, ¡New Orleans, for appellant
    Charles I. Denechaud, Jr., John T. Char-bonnet, Frank D. Tournier, New Orleans, for defendant-appellee.
   HAMITER, Justice.

James E. Kalshoven, alleging a breach by Loyola University of his two written contracts of employment, seeks a judgment against such defendant for $38,837.80, this amount representing claimed salaries due and resulting damages. The petition recites, among other things, that “in discharging your petitioner the defendant acted in an arbitrary, capricious and summary manner”. The suit was dismissed by the district court, after a trial on the merits, and plaintiff is appealing.

On April 11, 1949 plaintiff, who had been employed by the defendant since 1945 as a teacher, executed the two contracts with the university. In one he engaged to: “Teach in the Department of English and Speech of the College of Arts and Sciences; to serve as technical supervisor of the weekly newspaper of the party of the first part [defendant] which is known as the Loyola Maroon.” In the other he agreed to: “Provide publicity service, and public relations service to the extent possible under his other obligations to the university.” The engagements were to commence on September 1, 1949 and to endure for terms of four years and of three years and ten months, respectively. (Brackets ours.)

Paragraphs 3 and 7 of both contracts contained identical provisions, as follows: “(3) * * * The University shall, at all times be the judge of the competency, ethics, and conduct of the party of the second part, and may terminate this agreement at any time for serious failure in any of the foregoing by the party of the second part. Should such termination of this agreement be determined upon by the University it shall so notify the party of the second part of the termination of this agreement and pay to him his earned salary to date, and unearned salary for one month.

******

“(7) In the event that the party of the second part wishes to terminate this agreement, he must notify his dean and regent in writing at least six months in advance of the date on which he wishes this to terminate. In the event that the University wishes to terminate this agreement becmise of organisational adjustment or of circumstances deemed by the University to be grave, except as provided for in paragraph (3) of this agreement, written notice must be given to the party of the second part at least six months in advance of the date on which the University wishes this to terminate. * * * ” (Italics ours.)

In January, 1951 (evidently January 16), in a letter written by Reverend Thomas J. Shields, S. J., President of the University, the plaintiff was requested to resign. On January 18, 1951, he (apparently after having orally contacted university officials concerning the request and the reasons therefor) addressed a lengthy communication to Father Shields outlining his position on some of the complaints made against him and declining to tender his resignation. To it the president replied on January 29, 1951 that plaintiff appeared to consider the request to resign as having been based on paragraph 3 of the contracts (this provided for immediate dismissal), whereas, actually, it was predicated on paragraph 7 thereof; and that plaintiff, in accordance with the latter paragraph, was thereby notified of the university’s intention to terminate the two employment agreements on July 31, 1951 (six months from the date of the notice).

Approximately a month later (February 28, 1951) plaintiff, on the written request of his attorney, was furnished in writing by Father Shields definite specifications of the dismissal grounds; also, his salary for the mentioned six months’ period was sent to him. This suit followed.

The defendant seems to admit that the contracted publicity service was satisfactorily rendered. As shown by Father Shields’ letter of February 28, 1951, which furnished definite specifications of the dismissal grounds, the defendant complained that plaintiff, by his own admissions, had experienced personal difficulties in working with certain university officials. Also in that letter charges were set forth which reflected on plaintiff’s capacity as a teacher and on his capability in performing his work in public relations. And during the course of the trial much evidence was introduced for the purpose of showing such personal difficulties and, further, that the plaintiff had improperly conducted his classes and public relations assignments and was otherwise incompetent and negligent in the performance of his duties in connection therewith.

Our careful examination of the record presented reveals complete sincerity in the testimony ef the witnesses for the defendant and also in that of plaintiff’s witnesses. It furnishes the conviction that all of those testifying, for both litigants, were attempting to give a true and fair picture of the situation as they saw it.

Be that as it may, on our analysis of the evidence we cannot conclude that the charges of incompetence and negligence in the performance of plaintiff’s duties have been preponderated substantiated. However, as already indicated, the dismissal was not based on paragraph 3 (of the contracts) which provided for an immediate termination of the employment and related to a serious failure in “competency, ethics and conduct”; it was predicated on paragraph 7. The latter afforded plaintiff the right, on giving six months’ notice, to cancel the agreements for any reasons, or for no reason at all. Likewise, the university could terminate them, on giving the same notice, “because of organizational adjustment or of circumstances deemed by the University to be grave, except as provided for in paragraph (3).” (Italics ours.)

Plaintiff concedes that there existed a serious conflict between himself and Father George T. Bergen who became Dean of the School of Arts and Sciences, and also plaintiff’s immediate. superior, a short time after the commencement of the terms provided for in the agreements. The journalism course which plaintiff taught originally, as well as the Department of Journalism which he subsequently headed, were under the administration of Father Bergen as dean of the mentioned school; therefore, he was directly responsible to Father Bergen in the performance of his journalism’ assignments. And the conflict became irreconcilable in spite of the efforts of others (primarily Father Shields) to placate the situation. It even proceeded to the point of “open antagonism”. Likewise, plaintiff admits that in the field of public relations he had a. series of personal conflicts with certain other deans and department heads.

It is shown by the record also that the action of the university, in requesting-' the plaintiff to resign and in later dismissing Him on six months’ notice, did not occur hastily and without due consideration.' It was taken' only after defendant’s board of directors had made a thorough investigation and'had considered the matter on numerous occasions.

As pointed out above, plaintiff could terminate the contracts at will and 'the university was given the privilege of ending them for circumstances which it deemed to be grave. The determination made by the defendant after considerable investigation and deliberation, that the personal difficulties shown above (the existence of which plaintiff admitted) were of a grave nature and not to the -best interest of the school, does not appear to have been an arbitrary and capricious act as plaintiff contends. This conclusion seems inescapable, particularly since it is generally known that conflicts and antagonisms of that nature within an educational institution adversely affect the morale of both the student body and faculty and could eventually lead to a lowering of scholastic standards.

Most assuredly, we are not warranted in this cause, in view of the circumstances mentioned, in substituting our judgment for that of the members of the .board of directors of Loyola University who undoubtedly acted in the utmost good faith and whose prerogative it was to make the determination under the provisions of the contracts.

For the reasons assigned the judgment appealed from is affirmed. ¡


author: PONDER, Justice.

text:
    229 La. 76
    STATE of Louisiana ex rel. HEIRS OF Michael BEAUBOEUF v. Lucille May GRACE, Register, et al.
    No. 40132.
    Supreme Court of Louisiana.
    Jan. 16, 1956.

      Vincent Hazleton, Alexandria, for plaintiff-appellant.
    Fred S. LeBlanc,1 Atty. Gen., John L. Madden, Asst. Atty. Gen., for defendants-appellees.
   PONDER, Justice.

The relators, heirs of Michael Beau-boeüf, brought this mandamus proceeding against the Governor and the Register of State Land Office, seeking to compel' the issuance of a patent to 132.23 acres of land situated in Catahoula Parish.

Michael Beauboeuf made application, on September 20,. 1883, to enter the lands in controversy under the provisions of Act 21 of 1871. See LSA-R.S. 41:501 to 41:509. He resided on the land until he died in 1916 and thereafter his heirs, some of whom were residing on the land, made application for a patent by submitting affidavits to the Register of State Land Office on September 7, 1926. The-application was refused on the ground that the affidavits did not show residence and cultivation and the heirs again applied for a patent on July 24, 1948 and the’patént was refused on the ground that the lands had been transferred to the Board of Commissioners of the Tensas -Basin Levee District on February- 9, 1-948 and that the original application had been cancelled previously thereto. On hearing, the rule, issued in this case, was recalled, mandamus denied and the suit -was dismissed at - re-lators’ cost. The relators have appealed.

The relators contend that th.e cancellation of the homestead entry without notice was unlawful, that Act 215 of 1908, LSA-R.S. 41:131 to 41:136, and Act 283 of 1914, see -LSA-R.S. 41:131 note, 41:134, providing for the, reinstatement of applications for homestead entry, superseded Act 42 of 1886; that Act 42 of 1886 violates Article 1, § 10 of the Federal Constitution and Article 1, § 2 of the State .Constitution; that the homestead entry and settlement by Michael Beauboeuf constituted a severance of the lands from the public domain investing title in Beauboeuf and his heirs and that the transfer of the lands to the. Tensas Levee District was ’null and void.

. While, on the other hand, the respondents contend that no proof of actual residence and cultivation of the lands was ever submitted, either by Michael Beauboeuf or his heirs, as required by Act 21 of 1871, as amended, and that the evidence in this case fails to establish such facts; that no effort was made to submit such proof until many years after the time permitted by law for offering final proof had elapsed and that therefore the action of the Register of State Lands in cancelling the application for homestead entry and transferring the lands to the Tensas Levee District was fully authorized.

Under the provisions of Section 2 of Act 21 of 1871, a patent cannot issue until there is proof of actual settlement and cultivation. This proof must be submitted five years after the date of the entry or at any time within two years thereafter. No affidavits were submitted as final -proof in this case until 1926, forty-three years after the original entry, and the Register refused to issue a patent on the ground that the proof of residence and cultivation was not sufficient. The evidence shows, and it was so concluded by the trial judge, that there was no continuous residence on the land and that it was never cultivated as required by Act 21 of 1871. Under the provisions of Act 21 of 1871, notice to the entryman was required if the issuance of the patent was to another person. Act 42 of 1886 authorized the Register of State Land Office to cancel all homestead entries where final proof had not been made and no notice was required to be given to the entryman. Although the Register of the State Land Office was fully authorized to cancel the entry after the passage of this act, the entry was not cancelled until after 1920.

Insofar as the relators’ contention that Act 215 of 1908 and Act 283 of 1914 supersede Act 42 of 1886, providing for reinstatement of an application for entry, it is sufficient to say that the entry was not cancelled until after the relators failed to submit the timely proof required by law. Relators’ contention, that Act 42 of 1886, authorizing the Register of State Lands to cancel entries when proof had not been made, violates the Federal and State Constitutions by failing to require notice to the entryman, can afford the relators no comfort because the entry was cancelled many years thereafter on the failure of the relators to timely submit sufficient proof for the issuance of a patent. Moreover, it has been held that under Act 42 of 1886 an entry may be cancelled by default without notice to the entryman -and that an entry confers no title when the entry is cancelled for failure of the entryman to make the statutory proof. Babington Bros. v. Thomas & Williams, 131 La. 684, 60 So. 77.

We cannot accept relators’ contention that the entry of Michael Beau-boeuf constituted a severance of the lands from the public domain and invested title in Beauboeuf and his heirs. Neither an entryman on public lands nor his heirs acquire any vested interest therein until final proof is made and final certificate is issued. Brewer v. Hill, 178 La. 533, 152 So. 75. See also Gibson v. Pickens, 187 La. 860, 175 So. 600, and Wadkins v. Producers Oil Co., 130 La. 308, 57 So. 937.

In the case of Broussard v. Broussard, 43 La.Ann. 921, 9 So. 910, cited and relied upon by the relators, it was held that as to third persons the issuance of a certificate of entry is sufficient evidence of title to support an action. To the same effect is the cited case of La Terre Co., Inc., v. Billiot’s Shell Island, Inc., 5 Cir., 103 F.2d 53. But as between the entryman and the sovereign power the certificate of entry is only an inchoate or equitable title and does not become perfected until the requisites of law are fully complied with. La Terre Co., Inc., v. Billiot’s Shell Island, Inc., supra.

Counsel for the relators have cited language used in cases which might give the impression that lands are severed from the public domain by the entry certificate but a careful reading of the cases and jurisprudence shows this is not true where the final proof does not comply with the law requiring the entryman to show that he continually resided on and cultivated the land for five years.

For the reasons assigned, the judgment is affirmed at relators’ cost.