author: McCALEB, Justice. HAMITER, Justice

text:
    ANGELLE v. STATE et al. ROY v. SAME. HARTFORD FIRE INS. CO. v. SAME.
    Nos. 38708-38710.
    Supreme Court of Louisiana.
    Jan. 12, 1948.
    Rehearing Denied Feb. 16, 1948.
    Fred S. LeBlanc, Atty. Gen., W. C. Per-rault, 1st Asst. Atty. Gen., and R. H. Lee, Sp. Asst. Atty. Gen., for defendants-appellants.

      Voorhies & Labbe, 6f Lafayette, Brea-zeale, Sachse & Wilson, of Baton Rouge, and Chaffe, McCall, Bruns, Toler & Phillips, of New Orleans, for plaintiffs-appel-lees.
   McCALEB, Justice.

The above captioned cases have been consolidated for decision. They are actions against the State of Louisiana'and the Department of Agriculture and Immigration for recovery of the value of property destroyed in a fire which resulted from certain spraying operations conducted by agents of the Department of Agriculture for the disinfection of farm produce stored upon the premises of the Texas and New Orleans Railroad Company at Carenero, Louisiana. The cases are founded upon the same facts which are not disputed and which may be briefly stated as follows:

Act No. 314 of 1926 provides that the shipment or movement of sweet potatoes, vines, plants and slips into, out of or within the State must be accompanied by a certificate of inspection signed by the State Entomologist. It also vests in 'the Commissioner of Agriculture and Immigration plenary power to deal with sweet potato insect pests and, to this end, to promulgate and enforce such rules, ordinances and regulations as in his opinion may be necessary to control, eradicate or prevent the introduction or spread of any and all contagious crop diseases and insect pests.

Pursuant to this authority, the Department of Agriculture has been conducting a systematic program for eradication of sweet potato weevils in territories declared by the State Entomologist to be control areas. In July 1944, the Parish of Lafayette was within the sweet potato weevil quarantine area and buildings and premises used in storage or handling of sweet potatoes came under the effect of the eradication program of the Department of Agriculture. Under this program, the Department maintained five or six trucks equipped with portable spraying units. Upon request, the Department would send one of the trucks to the location where the sweet potatoes were stored and its agents would spray and disinfect the entire premises. The owner of the sweet potatoes was required, under the regulations, to supply the disinfectant to be used but it was not compulsory for him to employ the facilities provided by the Department Nevertheless, it appears that the sweet potato growers of the State have invariably taken advantage of the free services supplied by the Department.

Plaintiffs, Angelle and Roy, are sweet potato growers. On July 13, 1944, they had deposited at the Texas and New Orleans Railroad freight station at Carenero, Louisiana, a quantity of sweet potatoes and certain other equipment. This railroad station was regularly used for the processing and handling of sweet potatoes for market and was the premise designated for disinfection under the rules of the Department of Agriculture. After the sweet potatoes were received for shipment, the railroad station agent contacted the Department of Agriculture and requested that it spray the sweet potatoes, the railroad premises and adjoining sheds so that certificates of inspection might be obtained. In accordance with this request, the Department sent one of its trucks, complete with spraying unit and manned by two experienced operators. Upon its arrival at the railroad premises, the station agent pointed out two metal drums which he stated contained the disinfectant and the Department’s employees filled the spray unit and commenced operations. During the course of the disinfecting work, one of the agents discovered a fire on the back end of the truck which held the mixing tank and the spraying machinery. The flames spread rapidly and, despite preventative measures, the railroad station, processing machine and sweet potatoes were destroyed.

Thereafter, Angelle, Roy and the railroad’s insurer, Hartford Fire Insurance Company, filed these actions for recovery of their respective losses occasioned by the fire. The State and the Department filed exceptions to the jurisdiction of the court, which were founded on constitutional governmental immunity from suit without legislative consent, and also interposed exceptions of no right or cause of action. These exceptions were overruled and, after issue joined and trial had, there was separate judgment in favor of each plaintiff as follows: Angelle, $13,112.08; Roy, $3,746.-34; Hartford Fire Insurance Company, $6,465.11.

The State and the Department of Agriculture have appealed from the adverse decisions.

In this court, the attorney general rests his case on the sole proposition that the exception to the jurisdiction was erroneously overruled below as the State is immune from suit in the absence of its consent given in the manner provided by Section 35 of Article III of the Constitution of 1921.

The principle that the sovereign cannot be sued in its own courts without the consent of the Legislature is so fundamental that citation of authority would be superfluous. Suffice it to say that it is the universal rule, given full recognition in our Constitution. And, by the joinder of the Department of Agriculture and Immigration as a party defendant, plaintiffs did not enhance their rights in any respect as it is merely one of the administrative state departments, see Article VI, Sections 13 and 14 of the Constitution, without separate existence from the State for purposes of suit.

Counsel for plaintiffs, fully appreciating the difficulty to be encountered by instituting suit against the State without legislative consent, have contrived the theory that the destruction of their clients’ property by fire, while it was being subjected to disinfection by state agents, was an appropriation of the property for a public purpose, violative of Article I, Section 2 of the Constitution, for which suit for compensation will lie against the State without its consent. Section 2 of Article I of the Constitution declares, in part: “* * * Except as otherwise provided in this Constitution, private property shall not be taken or damaged except for public purposes and after just and adequate compensation is paid.”

This provision, which is similar to that appearing in other State Constitutions, has been generally regarded to be self-executing. See 16 C.J.S., Constitutional Law, § 49, and authorities there cited. Hence, where private property has been appropriated by the State “for public purposes” the right of the owner to recover adequate compensation will be entertained by the courts as an exception to the principle that the sovereign cannot be sued without its consent.

In view of this, it becomes necessary to determine the meaning of the constitutional prohibition against the talcing or damaging of private property “except for public purposes”. We think that the statement refers exclusively to the power of eminent domain, i. e., the intentional or purposeful expropriation or appropriation of private property for a public use or convenience. In the instant cases, we experience great difficulty in perceiving that the destruction of the station and the sweet potatoes resulted from anything more than the negligent acts or omissions of the agents of the Department of Agriculture. The loss for which compensation is sought resulted exclusively from a fortuitous event —a fire — as far removed from a deliberate appropriation under eminent domain as anything could be; forsooth, a wholly unintentional destruction which served no public purpose whatever.

Counsel for plaintiffs argue that, since the Department of Agriculture was engaged in a systematic program for the eradication of sweet potato weevils, all acts of state agents in connection with the program were for a public purpose and that, therefore, it follows that any destruction of private property, though unintentional or unnecessary, is a taking of the property for a public purpose.

This argument is not sound because it fails to reckon a distinction between the destruction and damaging of private property by agents of the State while engaged merely in the performance of a governmental function and the deliberate taking or necessary damaging of property for the public use and benefit In the first instance, the destruction or damage occurs not for a public purpose but by reason of the negligence of the state officers or agents. In the latter, the property is taken or damaged under the power of eminent domain; it is an appropriation for public purposes for which adequate compensation is guaranteed to the owner by Section 2 of Article I of the Constitution.

A reading of the petitions in the instant cases makes manifest that the causes of action are founded on the negligence of the Department of Agriculture — (and this, despite the attempts of plaintiffs to avoid the conclusion that their claims are ex delicto) for numerous acts of fault or omissions on the part of the Department are therein charged to be the proximate cause of the fire. For example, it is alleged that the gasoline engine used in the spraying operation was old and in an unsafe running condition; that the exhaust pipe was too short and pointed downward in the direction of the wooden flooring of the body of the truck; that gasoline leaked from the carburetor and that the engine frequently backfired and emitted sparks. Many other failures are charged and it is concluded that a “tremendous fire hazard” was permitted to exist by those charged with the maintenance and operation of the spraying equipment.

Under such allegations, it becomes clear that the real basis for the asserted liability is the dereliction by state agents and.not appropriation of private property by the State. But the doctrine of respondeat superior has no application to the state and it may not be sued for torts of its agents even though it has otherwise waived its immunity to suit. Special consent, in the manner provided by Section 35 of Article III of the Constitution, must be granted to authorize the institution and maintenance of an action ex delicto.

In Hughes v. United States, 230 U.S. 24, 33 S.Ct. 1019, 1020, 57 L.Ed. 1374, 46 L.R.A,N.S., 624, the Supreme Court had for consideration an appeal by the plaintiff from a judgment of the Court of Claims rejecting her action for damages to her plantation resulting from the dynamiting, by a federal officer in an emergency, óf a levee along the Mississippi River adjacent to her property. She contended that the United States had taken her property “in the constitutional sense” and consequently, it was amenable to suit in the Court of Claims. The court, after stating the facts, dismissed the contention in the following language: “We do not stop, however, to further consider the subject, since whatever view, be taken of the finding, (Court of Claims) the fact as to the use of dynamite would not in law amount to a taking by the United States, because in any event the mere act, to meet an emergency, of the officer, conceding, under the circumstances stated, that it was a wrongful act, cannot be held to be the act of the United States, and therefore affords no ground in any event for holding that the United States had taken the property for public use.” (Words in parenthesis ours).

In Keokuk & Hamilton Bridge Co. v. United States, 260 U.S. 125, 43 S.Ct. 37, 38, 67 L.Ed. 165, the Court decided that the owner of a bridge pier which was injured by blasting by the Federal government in the bed of a river in a manner which, if the injury was caused by an individual, would be a mere tort, has no remedy against the government for the injury. In concluding thus, Mr. Justice Holmes observed: “However small the damage it may be true- that deliberate action in some cases might generate the same claim as other forms of deliberate withdrawal of property from the admitted owner. United States v. Cress, 243 U.S. 316, 329, 37 S.Ct. 380, 61 L.Ed. 746 [753]. But without considering how the line would be drawn when such action took place in the improvement of navigation, it is enough to say that this is an ordinary case of incidental damage which if inflicted by a,private individual might be a tort but which could be nothing else. In such cases there is no remedy against the United States. See Bedford v. United States, 192 U.S. 217, 224, 24 S.Ct. 238, 48 L.Ed. 414 [417].”

In cases where private property has been appropriated by the government for a public purpose, the Supreme Court of the United States has consistently held that suit for compensation will be entertained in the Court of Claims under the Tucker Act, 24 Stat. at L. 505, 28 U.S.C.A. § 41(20), on the ground that there is an implied contract on the part of the government to pay the value of the property. See Langford v. United States, 101 U.S. 341, 25 L.Ed. 1010; Bigby v. United States, 188 U.S. 400, 23 S.Ct. 468, 47 L.Ed. 519; Tempel v. United States, 248 U.S. 121, 39 S.Ct. 56, 63 L.Ed. 162; United States v. Great Falls Mfg. Co. 112 U.S. 645, 5 S.Ct. 306, 28 L.Ed. 846 and United States v. Lynah, 188 U.S. 445, 23 S.Ct. 349, 47 L.Ed. 539, and United States v. North American Transportation & Trading Co., 253 U.S. 330, 40 S.Ct. 518, 64 L.Ed. 935. But no claims are sustainable against the United States unless there is an intentional taking of the private property — that is, a taking for a public purpose unrelated to a tortious destruction or damaging by an agent of the government.

The rule applies with equal force to suits against the State. The provisions of the Fifth Amendment of the United States Constitution and Section 2 of Article I of our Constitution are practically identical in respect to payment of just compensation for private property taken for public purposes. But these guarantees are limited to appropriations of property under the power of eminent domain and cannot be utilized as a means for permitting the State to be sued for the torts of its agents.

It would not be necessary to further pursue discussion of these claims were it not for certain pronouncements of this court and our Courts of Appeal which contain language and reasoning favorable to plaintiffs' contentions. They are Green v. Board of Com’rs, 163 La. 117, 111 So. 619; McGeehan v. Board of Levee Com’rs, 165 La. 241, 115 So. 473; De Moss v. Police Jury of Bossier Parish, 167 La. 83, 118 So. 700, 68 A.L.R. 336; Booth v. Louisiana Highway Commission, 171 La. 1096, 133 So. 169; Nagle v. Police Jury of Caddo Parish, 175 La. 704, 144 So. 425; Murff v. Louisiana Highway Commission, 19 La.App. 847, 140 So. 863; Cope v. Louisiana State Livestock Sanitary Board, La.App., 176 So. 657, and Pelt v. Louisiana State Livestock Sanitary Board, La.App., 178 So. 644. We shall discuss these cases in order.

I11 Green v. Board of Commissioners, suit was brought by an owner to recover compensation for land used and destroyed for levee purposes under Section 6 of Article XVI of the Constitution. In addition, he sought redress for damage to his residence as a consequence of the negligent explosion, by employees of the Levee Board, of charges of dynamite which propelled the trunks and branches of trees through the air, causing them to fall upon the house. Obviously, the value of the land taken for levee purposes was recoverable under the specific provisions of the constitutional article. However, the court, without discussing the matter, affirmed that part of the judgment which permitted plaintiff to recover $330 for damage to his residence resulting from the negligent dynamiting of the levee!

In McGeehan v. Board of Commissioners, supra, agents of the Levee Board entered plaintiff’s land in a flood emergency and removed 300 cartloads of earth for levee purposes. When sued by the landowner, the Levee Board resisted on the ground that its agents had committed a tort and, consequently, it, being a public board, was not amenable to an action ex delicto. The District Court rejected the plea but it was sustained by the Court of Appeal. On writ of review, this court reversed the Court of Appeal and reinstated the judgment of the District Court on the ground that the action was not one sounding in tort but one under the constitutional provision rendering the Levee Board responsible for taking of private property for levee purposes.

Let us pause to consider the holdings in the Green and McGeehan cases. The ruling in the McGeehan case is in strict accord with our present views for, there, there was an intentional taking of the property for a public purpose. However, the Green case, insofar as it permitted the landowner to recover the damages resulting from the negligent dynamiting of the levee, unwittingly introduced into our jurisprudence a doctrine contrary to the fundamental principle that the state and its subdivisions may not be sued for torts committed by officers and employees.

In De Moss v. Police Jury, supra, it appeared that the police jury, in' widening and grading a parish road under the authority of Section 3369 of the Revised Statutes, found it necessary to tear down a fence situated on plaintiff’s property which abutted the road. As a direct result, cattle entered plaintiff’s land and damaged his crop of corn and cotton to the extent of $530. The District Court gave judgment in favor of plaintiff but tire Court of Appeal reversed it on the general principle that police juries are state agencies with only delegated powers and that the parish could not be held liable for the acts and omissions of its officers any more than the state itself. On writ of review, this Court reversed the Court of Appeal on two grounds, (1) that Section 3369 of the Revised Statutes made it mandatory on the police jury to assess, as a parish charge, all damages sustained by any individual through whose land a roadway may be run and (2), moreover, since the damage to plaintiff’s property was the proximate and natural result of the widening of the road, it was the taking or damaging of private property for public purposes within the meaning of Section 2 of Article I of the Constitution.

There can be no doubt as to the correctness of the decision in the De Moss case in view of Section 3369 of the Revised Statutes which makes plain the intention of the Legislature that parishes undertaking road building shall be responsible for all damages done to private property resulting from such projects. However, the dicta of the court that property damaged as a proximate result of the widening of a roadway (even though the damage results from the torts of the road contractors) is the damaging of property for a public purpose within the meaning of Section 2 of Article I of the Constitution, cannot be maintained forasmuch as we view the constitutional provision as applicable only to cases where the taking or damaging of the private property is intentional or occurs as a necessary consequence of the public undertaking. We say “necessary consequence” because we envision cases where damage might be inflicted upon private property as a necessary result of the undertaking although the doing of the damage is unintentional and may not be foreseeable by the governmental agency. In such matters, the damage is on a parity with the intentional taking or damaging under the power of eminent domain. On the other hand, damage to private property which occurs solely as a result of ■negligence and not as a necessary consequence of the public work, fits nowhere within the realm of eminent domain and the courts are without jurisdiction to entertain a suit of this sort against the sovereign.

The Booth and Murff cases, supra, are correctly decided but the reasons for the opinions are founded on the obiter dicta contained in the De Moss matter. These cases involved damage or appropriation of land in road construction projects and fall within the rule that there has been an' intentional taking or damaging for a public purpose. However, in Nagle v. Police Jury, supra, the court erroneously, we think, allowed recovery of an item for damage to trees and shrubbery on land adjoining the highway by spread of fires which had been set by employees of the police jury, on the ground that it was a taking for a public purpose and cognizable under Section 2 of Article I of the Constitution.

Expanding the doctrine of the De Moss case a step further, the Court of Appeal for the Second Circuit, in Cope v. Louisiana Livestock Sanitary Board, supra, and the Court of Appeal for the First Circuit, in Pelt v. Louisiana State Livestock Sanitary Board, supra, declared that the destruction of animals by negligent dipping under section 3 of Act No. 6 of 1930, the tick eradication law, was cognizable against the state because it was the taking, i. e., destruction, of private property for a public purpose, without just compensation, in violation of the constitutional guarantee. Plaintiffs rely heavily on these decisions but we cannot follow them — for, as we have stated above, the destruction of the animals was not for a public purpose, i. e., the tick eradication program, but was occasioned solely by the negligence of the employees of the Livestock Sanitary Board while engaged in performance of a public duty.

In concluding that plaintiffs are not entitled to maintain these actions against the State, we think it apt to remark that to permit plaintiffs’ theory to prevail would subject the State to an action for damages in all cases involving injury or destruction of private property resulting from the torts of its agents when acting in an official capacity' — thus, effectually repealing the universal rule to the contrary. We reiterate that we cannot perceive how the unintentional destruction of the station and the other property of plaintiffs by the fire was for a public purpose; the mere fact that the fire occurred whilst tire agents were engaged in performing a public duty was an incident wholly disconnected with the object of the Department of Agriculture’s program.

The judgments appealed from are reversed and the suits are dismissed.

HAMITER, Justice

(dissenting).

In the majority opinion', after the citing of numerous decisions of the U. S. Supreme Court, it is stated that “ * * * no claims are sustainable against the United States unless there is an intentional taking of the private property * * Unquestionably, the statement is correct, for the Fifth Amendment of the United States Constitution, which was construed in the mentioned decisions, provides: “ * * * nor shall private property be taken for public use, without just compensation.”

But, contrary to what is also said in' the majority opinion, that constitutional provision is not “practically identical” with the provision of the Louisiana Constitution on which plaintiffs rely for recovery in these cases. Our Constitution, in Section 2 of Article 1, recites that “ * * * private property shall not be taken or danu-aged except for public purposes and after just and adequate compensation is paid.” And for many years our jurisprudence has been consistent in interpreting the latter provision as being applicable to claims for damages proximately and naturally resulting from negligent acts committed in connection with the conducting of public works. Green v. Board of Commissioners, 163 La. 117, 111 So. 619; McGeehan v. Board of Levee Commissioners, 165 La. 241, 115 So. 473; De Moss v. Police Jury of Bossier Parish, 167 La. 83, 118 So. 700, 68 A.L.R. 336; Booth v. Louisiana Highway Commission, 171 La. 1096, 133 So. 169; Nagle v. Police Jury of Caddo Parish, 175 La. 704, 144 So. 425; Murff v. Louisiana Highway Commission, 2 Cir., 19 La.App. 847, 140 So. 863; Cope v. Louisiana State Livestock Sanitary Board, La.App., 2 Cir., 176 So. 657; and Pelt v. Louisiana State Livestock Sanitary Board, La.App., 1 Cir., 178 So. 644. (Emphasis ours.)

In the Green case the Levee Board was held responsible for damages caused by the negligent use of dynamite by which some treé trunks and branches were thrown upon the plaintiff’s residence. In the De Moss case this court ruled that the lessee (not the owner) of a plantation was entitled to recover damages from the defendant Police Jury that were occasioned to his crop of corn and cotton by cattle entering the field as the result of tearing down his fence by certain contractors in the performance of road work. Therein, to support our conclusion, we commented:

“Nearly every Constitution of this state has declared in positive and unequivocal language that private property shall not be taken nor damaged for public purposes without just and adequate compensation being first paid.
“Here the plaintiff’s crop was damaged as the proximate and natural result of the widening of the road, for if the width of the road had not been extended, there would have been no necessity of tearing down the fence, and if the fen'ce had not been torn down, the cattle would not have destroyed plaintiff’s crop.
“To adopt the theory of the Court of Appeal, and deny plaintiff’s right to recover for the damage to his crop, would, in the language of Justice Manning, 'convert the constitutional protection into a false pretense and practically make it only a promise to the ear which it breaks to the hope.’” [167 La. 83, 118 So. 702.]’

In the Cope case plaintiff was allowed recovery for the negligent poisoning of his mule while being dipped pursuant to the requirements of the state’s tick eradication law.

The decision in the Cope case, the opinion supporting which I wrote while a member of the Court of Appeal, was necessarily predicated on the above-mentioned jurisprudence, especially on the De Moss case. True, as the majority opinion herein points out in a footnote, Act No. 56 of 1918 provides that any person whose livestock is damaged or killed as the result of dipping for the eradication of the cattle tick, where such dipping is done under the supervision of the Livestock Sanitary Board, is entitled to recover from the parish in which the dipping takes place a reasonable compensation for the value of the animal destroyed. Further, it is true that under the provisions of Section 3 of Act No. 6 of 1930 the Livestock Sanitary Board is directed to compensate the owner of livestock for a loss of that nature. But it is also true that neither of those statutes provides a “ * * * method of procedure and the effect of the judgments which may be rendered * * * ”, as is required by Section 35 of Article 3 of the Louisiana Constitution for the filing of suits against the state or its agencies, so that such owners can obtain the enforced collection of their claims. By those statutes, in other words, the owners are granted the right to be paid; but they are without the necessary remedy to compel the payment.

In the instant case plaintiffs’ damages were the proximate and natural result of spraying operations conducted by the Louisiana Department of Agriculture under its program for the eradication of sweet potato weevils and pursuant to the provisions of Act No. 314 of 1926. And for those damages they are entitled to recover herein under the authority of Section 2 of Article 1 of the Louisiana Constitution as interpreted in the long line of jurisprudence above mentioned. But the majority opinion, together with the decision, overrules that jurisprudence and denies recovery.

Had this litigation presented that constitutional provision for our initial consideration, I should be disposed to agree with the interpretation given it in the majority opinion. Or if such an interpretation were supported by the jurisprudence of this state, except for an isolated case therein, I should gladly join in the overruling of that case in' the interest of uniformity. But I do not subscribe to the overruling of the discussed jurisprudence of this court and of our Courts of Appeal, which has been’ uniform and of long duration, when there appears no good reason for doing so. Such an act makes only for instability in the pronouncements of our judiciary.

I respectfully dissent.

       O’Neill, C. J., dissented from the allowance of this item of damage.

       The Court, in approving allowance of this item, merely states “We see no reason to make any change.” See 163 La. at page 120, 111 So. at page 620, 68 A.L.R. 336.

       The Supreme Court of the United States inferentially recognizes this in Sanguinetti v. United States, 264 U.S. 146, 44 S.Ct. 264, 265, 68 L.Ed. 608, where it remarks “It was not shown that the overflow was the direct or necessary result of the structure; nor that it was within the contemplation of or reasonably to be anticipated by the government.”

         O’Niell, O. J., dissented from the allowance of this item.

       Any person whose livestock is damaged or killed as the result of dipping for the eradication of the cattle tick, where such dipping is done under the supervision of the Livestock Sanitary Board is entitled to recover from the Parish, in which the dipping takes .place, a reasonable compensation for the value of the animal destroyed. See Act, No. 56 of 1918.


source: Caselaw Access Project

author: McCALEB, Justice.

license: Public Domain

text:
    212 La. 1092
    MARTIN v. MARTIN.
    No. 38579.
    Supreme Court of Louisiana.
    Feb. 16, 1948.
    J. Oliver Bouanchaud, of Baton Rouge, for plaintiff-appellant.
    Prejean & Gremillion, of Baton Rouge, for defendant-appellee.
   McCALEB, Justice.

Plaintiff sued her husband for a separation from bed and board, alleging that he has been guilty of cruel and outrageous treatment toward her which renders their living together insupportable. Specifically, she charged (1) that he cursed and abused her on different occasions; (2) that he failed to fix a gas heater in the house while she was sick; (3) that he failed to properly provide for her support and (4) that he was seen hugging and kissing another woman in a house located in the city of Baton Rouge.

The defendant denied all of the allegations except the one relative to his failure to fix the gas heater and, as to that charge, he declared that he tried to repair the heater but was unable to make it work.

After a hearing in the district court, there was judgment in favor of the defendant, dismissing the suit. Plaintiff has appealed.

The case presents for consideration only questions of fact. Plaintiff attempted to sustain the charges by her own testimony, which was corroborated in part by two other witnesses. This evidence was opposed by defendant’s denials. The trial judge thought that the case was with the defendant stating, in a written opinion, that he was not impressed with the testimony tendered by plaintiff and her supporting witnesses.

After a perusal of the record, we find it impossible to say that the judge was wrong in his appreciation of the weight of the evidence. In these circumstances, the judgment will not be disturbed as this court does not set aside factual findings of a district court in the absence of obvious error. Trascher v. Ducote, 178 La. 925, 152 So. 567.

The judgment appealed from is affirmed.

O’NIELL, C. J., absent


author: FOURNET, Justice.

text:
    212 La. 1095
    STATE v. VALLERY et al.
    No. 38793.
    Supreme Court of Louisiana.
    Feb. 16, 1948.

      Peterman, Grayel & Downs, of Alexandria, for defendants-appellants.
    Fred S. LeBlanc, Atty. Gen., and M. E. Culligan, Asst. Atty. Gen., and Ben F. Thompson, Dist. Atty., and Walter M. Hunter, Asst. Dist Atty., both of Alexandria, for appellee.
   FOURNET, Justice.

Jimmy and Gordon Vallery are appealing from their conviction and sentence under a bill of information charging them with contributing to the delinquency of a juvenile, as denounced by Section 7 of Article 92 of the Louisiana Criminal Code (Act 43 of 1942), relying principally for the reversal thereof on the unconstitutionality of this particular section, urged in a motion in arrest of judgment.

In Section 7 of Article 92 of the Criminal Code, contributing to the delinquency of a juvenile is defined to be “the intentional enticing, aiding, or permitting, by anyone over the age of seventeen, of any child under the age of seventeen to: * * * Perform any immoral act.”

It is the contention of the defendants that controlling here is the holding in our recent decision in the case of State v. Truby, 211 La. 178, 29 So.2d 758, wherein all of the jurisprudence was carefully reviewed and analyzed, that the word “immoral” as used in Article 104 of the Criminal Code, denouncing the keeping of a disorderly place, has a meaning of such vagueness, indefiniteness, and uncertainty that it does not define the type of action sought to be denounced, leaving it to the court to determine in any given case what constitutes “immoral,” and hence rendering the statute unconstitutional.

Conceding both orally and in brief that this case cannot be distinguished from the holding in the Truby case, the state, nevertheless, asks that we reconsider our decision in that case (as did the trial judge) in the light of an article by Mr. Clarence J. Morrow, professor of criminal law at Tulane University and one of the draftsmen of the Louisiana Criminal Code, appearing in 21 Tulane Law Review 545, treating of the holding in the Truby case and the generality of the term “immoral” as used in the code.

This article is somewhat lengthy and it would serve no useful purpose to quote it in its entirety here or to comment on its many ramnifications. We think the rationale of the article may be fairly stated to be the professor’s fear that the whole project (the Louisiana Criminal Code in its entirety) will ultimately fail unless its generality of expression is upheld and this court ceases to apply to it the traditional rule of “strict interpretation” and follows, instead, the concept of our civil law tradition, suggesting that in the Truby case “in seeking a genuine interpretation of ‘immoral’ (and the obvious meaning of the legislature),” the court would have solved its problem very adequately “by making ‘immoral’ identical with what violated the well established and well accepted standards of the community. This is what ‘immoral’ means to the layman and what it meant to the draftsmen and the legislature.”

Witlí all due respect to the opinions entertained by the learned trial judge and and the author of this treatise, we think the error in their ratiocination lies in the fact that under our basic law no one can be held accountable, or subjected to criminal prosecution, for any act done by him unless and until that act has been denounced as a crime and has been made punishable in a statute that defines the act sought to be denounced with such precision the person sought to be held accountable will know his conduct is such that it falls within the purview of the act intended to be prohibited.

Courts can do no more than interpret and construe statutes. They cannot, under the guise of interpretation, assume legislative functions. For us to hold as suggested in this article would, in effect, be for us to clothe the several courts of this state with the power to not only decide what constitutes an immoral act within the concept of the community’s accepted standard of “immoral” but also to determine just what are the well established and well accepted standards of morality in the various communities of which these respective districts are composed, thus delegating to the judiciary a function that is exclusively within the province of the legislature, with the result that there would be no certain or understandable rule and no uniform standard of conduct to guide the individual in ascertaining what acts it is his duty to avoid, doing violence not only to the constitutional requirement that the ascertainable standard of guilt by which all citizens are to be guided be fixed by the legislative branch of the government but also to the equal protection and due process clauses safeguarding against discrimination.

The drafters of the code could very easily have avoided the result reached in this case and in the Truby case had they given the word “immoral” a fixed and designated meaning as they did other words and terms used generally throughout the code in Article 2, or had they defined “immoral act” and “immoral purpose” as they did “criminal intent” in Article 10 and “criminal negligence” in Article 12.

For the reasons assigned, the conviction and sentence of the defendants, Jimmy Vallery and Gordon Vallery, are annulled and set aside and it is ordered that they be discharged.

O’NIELL, C. J., absent


author: JANVIER, Justice ad hoc. PONDER, Justice

text:
    213 La. 1
    JEFFERSON LAKE SULPHUR CO., Inc. v. STATE.
    No. 38490.
    Supreme Court of Louisiana.
    Dec. 15, 1947.
    Rehearing Denied Feb. 16, 1948.

      Fred S. LeBlanc, Atty. Gen., W. C. Per-rault, First Asst. Atty. Gen., and Robert R. Reid, Second Asst. Atty. Gen., for the State, defendant-appellant.
    E. Howard McCaleb, Yarrut & Fish-man, O’Niell & O’Niell and Eugene H. Walet, Jr., all of New Orleans, for plaintiff-appellee.
   JANVIER, Justice ad hoc.

As a result of the decree rendered by this Court on July 1, 1935, in the matter ■entitled State of Louisiana v. Jefferson Island Salt Mining Co., Inc., 183 La. 304, 163 So. 145, the State of Louisiana, on March 30, 1936, recovered from the said Salt Mining Company $1,427,826.51. That suit originated in the Sixteenth Judicial District Court for the Parish of Iberia. This amount was recovered because, as was held in that case, the said Company had illegally mined and removed from beneath ■the bed of Lake Peigneur in Iberia Parish •certain quantities of salt and had sold that salt, although the bed of said lake was the property of the State of Louisiana.

The present suit is brought against the State of Louisiana by the Jefferson Lake .Sulphur Company, Inc., — in no way connected or identified with Jefferson Island Salt Mining Co., Inc., — for the recovery ■of what the said plaintiff corporation claims is its share of the amount which the State recovered from the Salt Mining Companj^.

The suit is based on thé allegation that, during the period within which the salt was illegally removed by the said Salt Mining Company, the Jefferson Lake Sul-phur Company, Inc., the present plaintiff, was the lessee in an exclusive mineral ’lease, which the State had previously granted and under which the present plaintiff was entitled to retain seven-eighths .and the State was entitled to receive payment for one-eighth of all the minerals which, during the term of the lease, might .be removed and reduced to possession.

The plaintiff alleges that, although the State actually received $1,427,826.51, which included interest, cost of mining and bad faith damages, the actual value of the salt removed was $1,165,419.34, and that, therefore, it is actually entitled to seven-eighths thereof, or $1,019,741.93. But it concedes that when the money was received by the State, it agreed on an accounting with the then Attorney General of the State under which it was to receive $897,465.72. It prays, therefore, for judgment for this smaller amount and, in the alternative, that in the event it be held that this is not the correct amount due it, then it prays for judgment for such sum as represents seven-eighths of the total amount recovered, together with legal interest from March 30, 1936.

Before filing this suit, the Jefferson Lake Sulphur Company, Inc., sought the necessary permission to sue the State — in other words, the waiver of immunity to suit, which the State, as a sovereign, enjoys and which is fundamental under our system of government, and which permission or waiver may be given under the provisions of Section 35 of Article 3 of our Constitution.

In its petition plaintiff alleged that the permission to sue the State was granted by the passage, in both Houses of the Legislature, of Senate Bill No. 281 of 1944. It averred that after the said bill had passed both Houses, it was presented to the Governor of the State and was vetoed by him, and that it was not again submitted to the Houses of the Legislature in an effort to override the said veto. But plaintiff further alleged that the Governor was without right or authority to take any action on such a bill and that, therefore, his veto was without effect.

Plaintiff also alleged that prior to the filing of the suit, in which recovery was made and in which the State was the sole plaintiff, there had been filed a similar suit in which both the State and the present plaintiff had been plaintiffs; that in this earlier suit, also filed in the Sixteenth Judicial District Court, which was based on the same cause of action and on substantially the same allegations, the State had joined in the allegation that of such amount as might be recovered the State should receive one-eighth and the Jefferson Lake Sulphur Company, Inc., seven-eighths; that after service of citation in that earlier suit, the State had discontinued the suit so far as it, the State, was concerned and had filed the later suit in which recovery was ultimately made; that this had been done as the result of an understanding between the then Attorney General of the State and the attorneys for the present plaintiff that, in the event of recovery, whether by the State in’the second suit, or by the present plaintiff in the first suit, such amount as might be recovered should be divided on the basis of one-eighth to the State and seven-eighths to the Sulphur Company.

Plaintiff further alleged, as its reasons for not itself prosecuting the first suit, that when the State withdrew from the first suit, it was intended that plaintiff would intervene in the suit which the State, as the sole plaintiff, filed, but that before it had an opportunity to so intervene, the defendant in the first suit, Jefferson Island Salt Mining Co., Inc., removed that suit to the United States District Court for the Eastern District of Louisiana, basing its petition for removal on diversity of citizenship; that later certain other persons, who claimed to own the bed of Lake Peign-eur, filed a suit in the United States District Court for the Eastern District of Louisiana in which they sought to enjoin plaintiff from trespassing upon or beneath the bed of said lake; that when notice of that suit was given to the Attorney General of the State, it was agreed that since all of the issues which were involved .in the said later suit were also involved in the suit in which the State was plaintiff in the Sixteenth Judicial District Court, there was no need for the State to intervene in the injunction suit in the United States District Court, but that the State would prosecute the suit in the State court to final conclusion, and that any recovery would be divided on the basis already referred to; that the said injunction suit in the United States District Court has been finally dismissed; that, in order to assist in the prosecution of the suit by the State in the State court in which recovery was ultimately obtained, the attorneys for plaintiff, Jefferson Lake Sulphur Company, Inc., were appointed special assistants to the Attorney General, without compensation from the State, and that they “joined in the preparation of' said suit, took an active part in the prosecution of said suit in the lower court, the Supreme Court of Louisiana [State v. Jefferson Island Salt Mining Co., 183 La. 304, 163 So. 145], the Supreme Court of the United States [297 U.S. 716, 56 S.Ct. 591, 80 L.Ed. 1001; 297 U.S. 729, 56 S.Ct. 667, 80 L.Ed. 1011],” and that “in addition, petitioner expended the sum of $74,404.28 to accumulate and prepare evidence, for expert witnesses such as geologists, engineers, and the like, and other expenses in connection with said suit * *

To the petition of plaintiff, the State filed an exception to the jurisdiction, averring that “as shown on the face of said petition, the State of Louisiana has not consented to be sued herein, and, consequently, this Honorable Court has no jurisdiction.” This plea was overruled and answer was filed on behalf of the State.

In its answer the State admitted that a mineral lease had been executed and had been properly transferred to the Jefferson Lake Sulphur Company, Inc., the present plaintiff, and that it included “all the bed of Lake Peigneur * * *.” The State denied that any trespass, which had formed the basis of the suit in which recovery had been made, was committed “upon any property held by the petitioner”, “showing on the contrary that the salt was removed from lands of the State of Louisiana not at the time under lease to anyone.” The State also denied that there had been an agreement between the then Attorney General and the attorneys for the present plaintiff that the suit, under which the recovery had been made, would be prosecuted by the State alone, but for the benefit of all parties in interest, and it averred that if there was any such agreement, neither the Attorney General nor the Governor had any authority to enter into it. The State admitted that it had received $1,427,826.51, and that no part thereof had been turned over to the present plaintiff.

The State specially denied that plaintiff is entitled to recover from it any more than it would be entitled to recover under Article 2696 of our Civil Code, based on the damage shown to have been sustained by reason of being deprived of the right to itself mine the salt which was removed by the trespasser.

In the District Court there was judgment overruling the exception to the jurisdiction, and after a trial, there was judgment in favor of the plaintiff and against the State for $897,465.72, with interest at five per cent from March 30, 1936, until paid, “with such costs as under the statutes the State is chargeable with.”

On rehearing, however, limited solely to the question of interest and .costs, the District Court eliminated the interest so that the judgment as finally rendered runs in favor of the plaintiff for $897,465.72, without interest, and with “only such costs as are legally chargeable against the State of Louisiana.” The State has appealed.

The Jefferson Lake Sulphur Company, Inc., has answered the appeal praying that the judgment be amended by the allowance of interest from March 30, 1936.

Before discussing the merits of the controversy, we shall first consider the legal questions which are presented by the exception to the jurisdiction, based on the contention of the State that there has been granted no legal waiver of its right to immunity from suit, since the bill on which the plaintiff relies, though passed by both Houses of the Legislature, was vetoed by the Governor of the State. This issue is clearly stated by the District Judge as follows :

“Plaintiff’s contentions are: (1) That the Bill is not a law within the meaning of the Constitution, hence the provisions of paragraph 1 of Section 15 of Article V of the Constitution of 1921 do not apply; (2) that not being a law within the sense and meaning of the Constitution, it was not necessary for its validity that the Governor sign it; (3) that as it was not necessary for the Governor to sign it, his veto thereof was wholly ineffective, and that the bill as passed furnishes ample evidence of the'consent of the Legislature to the filing of this suit.”

As we have said, in its contention that there has been a legal waiver of the State’s immunity, plaintiff relies upon Senate Bill No. 281 of 1944, which concededly was passed by a substantial majority of both Houses of the Legislature.

It is conceded by plaintiff that after the said Bill had passed both Houses, it was sent to the Governor of the State and in due course was vetoed by him, and that it was not again presented to the Houses of the Legislature in an effort to override the veto of the Governor.

The Constitution, in Section 35, Article 3, provides: “Whenever the Legislature shall authorize suit to be filed against the State, it shall provide a method of procedure and the effect of the judgments which may be rendered therein.”

It will be seen at once that in this Article no express reference is made to the necessity of action by the Governor, and we noted this in Lewis v. State, 207 La. 194, 20 So.2d 917, 920, in which we discussed the identical question. There we said: “Under the wording of Section 35 of Article 3 of the Constitution, the right is vested in the Legislature, and not in the Legislature with the approval of the Governor, to authorize the institution of a suit against the state. The constitutional provision reads in part: ‘Whenever the Legislature shall authorize suit to be filed against the State, * * *.’ (Writer’s Italics.) The provision does not declare that the Legislature shall, by a law formally adopted, permit suit to be brought against the State, but merely that the Legislature shall authorize such a suit, without specifying the manner in which such authorization may be given. In other words, the Legislature may, without attempting to pass a general or special law pursuant to the constitutional provision, pass a joint resolution, which, although not effective as a law, is effective as a consent of the State to subject itself to suit. Under Section 17 of Article 5 of the Constitution of 1921, such a resolution when passed by the Legislature would become effective without the approval of the Governor.”

We can think of no language which could more clearly have expressed the view that the Legislature alone, regardless of any action by the Governor, may grant such waiver of immunity.

It is true that in the opinion rendered in that case, in the paragraph immediately preceding the above quoted language, we said that, as a matter of fact, the Bill which was there involved “became a law by limitation,” since, “having been submitted to the Governor for his approval or disapproval”, it'had not “been acted upon within the time limit prescribed by the Constitution.”

It is also true that had there been no other contention made and considered in that case, it would not have been necessary for us to hold that such a Bill cannot be affected by any action of the Governor after we had already held that that particular Bill had become law because of the Governor’s failure to act on it within the time limit.

But there was another attack which was made in the Lewis case on the legality of the Bill, which had granted the permission to file that suit. That other attack was based on the fact that though the venue of the suit, which was authorized to be brought, was referred to in the title, it was not referred to in the body of the Bill. In considering that other attack, we held that it was unimportant that the body of the Bill had not referred to the venue, although it was referred to in the title, for the reason that the said Bill was merely “in the nature of a joint resolution”; that it was not a statute at all; not “a special or general law which is required to be passed in accordance with the rules and solemnities prescribed by the fundamental law * * *.”

Thus the language, which we have already quoted, was essential to the holding that the Bill was not unconstitutional because of the variance between its title and its body.

The State calls attention to some sixteen cases from other jurisdictions, referring to them as typical of the jurisprudence in practically all of the States, to the effect that such a waiver may be granted only by legislative act which must be acted upon by the Governor. We do not know what may be the provisions of the Constitutions and statutes of those other states, but in the Lewis case we interpreted the Constitution of this State as not requiring that such a waiver be submitted to the Governor.

The State also calls attention to the fact that since 1874 there have been passed by the Legislature of Louisiana some sixty bills, in each case granting waiver of the immunity and that in each of those sixty cases the Bill was submitted to the Governor for his approval or disapproval. Counsel for plaintiff say, however, that in none of those cases was the Bill vetoed and, therefore, until this case was presented, the question never arose in the courts of the State.

The doctrine of contemporaneous construction, which the State invokes in connection with the statement that each of those sixty earlier Bills was submitted to the Governor for approval, must yield to the doctrine of judicial interpretation, the interpretation being found in our decision in the Lewis case, supra,

We hold then that the plaintiff was duly authorized to bring this suit and that if the facts and the law justify, judgment may be rendered against the State, subject to such action as may be taken by the Legislature and the Governor, if and when the legislation necessary to appropriate funds to pay such judgment shall be introduced.

The plaintiff, in support of the contention that it was authorized to file this suit, presents the additional argument that the State might have been sued even without a waiver of immunity, because of the fact that, in leasing its lands for exploration for minerals, the State does not act in a governmental capacity, but in a private or quasi private one, and that, therefore, in controversies growing out of such leases, it is subject to suit even without its consent. This argument is based on what this Court said in Begnaud v. Grubb & Hawkins, 209 La. 826, 25 So.2d 606, and State ex rel. Shell Oil Co., Inc., v. Register of State Land Office, 193 La. 883, 192 So. 519, in the first of which, at page 833 of 209 La., at page 608 of 25 So.2d, we 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 that 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.”

In view of the conclusion reached on the question of the right of the Governor to veto such a Bill as was passed, we find it unnecessary to consider this second contention at this time.

We find no real dispute over the facts on which the suit is based, except upon the question of whether the Attorney General entered into an agreement for a division of the fund. The execution of the lease and its transfer to the Jefferson Lake Sulphur Company, Inc., is admitted. The amount of the recovery is admitted, and it is conceded that all of the salt which was removed was extracted within the contour lines of Lake Peigneur as follows:

tons

6 foot line above mean Gulf level — 213,225

5 foot line above mean Gulf level — 184,733

4 foot line above mean Gulf level — 157,971

3 foot line above mean Gulf level— 77,354

2 foot line above mean Gulf level— 17,094

1 foot line above mean Gulf level— 12,609

0 foot line — mean Gulf— 952

The State asserts that since the lease was executed in 1924, there was included in it only such area as was actually covered by water in that year; in other words, that when, in 1924, the State leased the “bed” of the lake, it leased only such area as was at that time covered by water, and that no former portions of the lake bed that may have become dry, whether by nature or artificial means, were included in the lease.

When, in its answer, the State advanced this contention, the plaintiff filed a special plea of estoppel in which it made the following assertions:

“That defendant herein is estopped from contending that State Mineral Lease No. 124 does not cover all of the bed of Lake Peigneur up to the 6' line above mean Gulf level as established by the Supreme Court of the State of Louisiana in the matter entitled ‘State of Louisiana v. Jefferson Island Salt Mining Company, Inc., et als.,’ No. 33,148 of said Court.”

It appears that in two prior leases, one made in 1916 and the other in 1919, the State had leased the bed of this same lake to others and that in those leases the entire leased area was termed as land. It appears also1 that in determining the area contemplated by such leases reference is made to official maps and that the only official map in the State Land Office showing the area of Lake Peigneur is what is known as the Boyd Survey of 1884, and that according to that survey the extent of the Lake was fixed as that area within the meander line six feet above mean Gulf level. Furthermore, as noted by the District Judge, in the case in which the State recovered the fund in controversy, this Court in effect fixed the area when it said: “The mean high-water mark of Lake Peigneur is hereby decreed to be the 6-foot line above mean Gulf level.”

We see nothing in the lease which indicates that there was the slightest intention to exclude from the area leased any “land” which the State owned in the area included within the meander line six feet above mean Gulf level. We, therefore, conclude that since all the salt upon which the State recovered from the Jefferson Island Salt Mining Co., Inc., was taken from that area, all of it was taken from within the area contemplated by the lease held by the present plaintiff.

The next contention made by the State is that, although the recovery which it made was based on the sale value of the salt, nevertheless the right of the present plaintiff against it should be limited to such damage as it can show it sustained as a result of being deprived of the right to itself mine and sell the salt. This contention is based on the provisions of Article 2696 of the Civil Code, which reads as follows: “If the lessee be evicted, the lessor is answerable for the damage and loss which he sustained by the interruption of the lease.”

The contention is this; that under a mineral lease, no ownership of minerals is transferred from the owner of the lands to the lessee; that all that is conveyed is the right to explore for minerals and that the ownership of the minerals does not come into being until they are actually mined and reduced to possession. Therefore, says the State, the plaintiff never having had possession of the salt in question, can not claim its value but can only present a claim for such damage as it can show that it sustained as a result of having been deprived of the right to explore for salt and to remove and sell such salt as it might have found. It is argued that the plaintiff was not and is not in the salt mining business; that it has no equipment or facilities for mining salt and has no selling organization for putting it on the market, and that, therefore, if it had itself discovered, mined and sold the salt, the operation would have been tremendously more expensive and that, therefore, its actual profit, if any, would have been very much smaller than that which was realized by the other company, the Jefferson Island Salt Mining Co., Inc., the trespasser, regularly engaged in the business of mining and selling salt.

In the first place, in Gulf Refining Co. of Louisiana v. Glassell, 186 La. 190, 171 So. 846, 854, we said that: “We made no attempt to make an exclusive list of the remedies such a party is entitled to under the law, nor to confine the remedy to an action for damages only.”

Whatever may be the relationship between the lessor and the lessee in an exclusive mineral lease, we are unable to agree that Article 2696 of our Code has any application to facts such as are shown here, and that, because of that article, the right of the plaintiff to recover from the State is limited to such profit as it can show that it would have made had it itself mined and sold the salt.

Had the trespasser not been compelled to pay to the State the value of the salt removed by the trespasser — in other words, had the trespasser escaped with its gain, then it might have been quite proper to hold that since the lessor, the State, had made no gain on the transaction, but had merely failed in its duty to the lessee and had thereby permitted the lessee to sustain damage, its liability should be limited to the amount of that damage, i. e., the profit which the lessee would have made.

Surely, however, the State, as lessor, cannot be permitted to itself recover from the trespasser the much larger amount and then say to its lessee that the right of the lessee should be adjudicated on a different basis.

Undoubtedly the reason that prompted the State to withdraw from the first suit in which it was joined as plaintiff with the Jefferson Lake Sulphur Company, Inc., and in which the joint plaintiffs sought to recover together what the State ultimately recovered alone was the fear that a lessee might not at that time have had the right to maintain such an action against the trespasser. In Gulf Refining Co. of Louisiana v. Glassell, supra, this Court, citing earlier decisions, held that a lessee “is in the same position as an ordinary lessee of realty and is not entitled to institute a petitory action in his own right,” and that one who obtained such a lease obtains not an ownership in such minerals as may lie beneath, but only a right to attempt to find and reduce such minerals to possession.

The District Judge calls attention to the fact that as a result of this decision (Gulf Refining Co. of Louisiana v. Glassell, supra), which was rendered on November 4, 1936, the Legislature, in 1938, passed Act No. 205 in which it is provided that the rights of a lessee in such a lease “may be asserted, protected and defended in the same manner as may he the ownership or possession of other immovable property by the holder of such rights, without the concurrence, joinder or consent of the landowner, and without impairment of rights of warranty, in any action or by any procedure available to the owner of immovable property or land.”

We agree with the District Judge that:

“If this act had been in existence when the joint suit of plaintiff and defendant was filed in the 16th Judicial District Court, there would have been no question, if ever there was a question, as to plaintiff’s right to appear as a party to that suit.
“This being true, it must be conceded, it seems to me, that plaintiff’s sole remedy would not have been as the State here asserts, a suit against the lessor for damages sustained by reason of the interruption of the lease. * * * ”

Much time is devoted in the briefs as to whether such a suit as this was one for specific performance, and Gulf Refining Co. of Louisiana v. Hayne, 148 La. 340, 86 So. 891, 893, is cited as authority for the contention that it is. And it is true that where specific performance is possible, it will be ordered. We agree with the District Judge, who said:

“This case, it seems to me, is sufficient to characterize the case at bar as one for specific performance of the mineral lease contract and warrants the Court in affording the same kind of relief. At any rate, if the State has in its possession money belonging to plaintiff, whether the suit be properly called one for specific performance or not, I see no legal reason why plaintiff can not sue to recover something, the ownership of which it claims.
“Even if the so-called adjustment and agreement fixing plaintiff’s portion of the total sum recovered was proven and held to be valid, plaintiff’s action would not stem from that source, but would exist, as it does exist, by reason of its ownership of a part of the recovery.”

Under the terms of the mineral lease which the State granted, no one but the lessee had the right to mine the salt. Had the State mined the salt it would have done so for the account of the lessee. In Gulf Refining Co. of Louisiana v. Hayne, supra, we said that when the owner of the land executed a mineral lease “he divested himself fully and completely of the right to exploit this land for oil, and vested plaintiff company fully and completely with that right, in so far as his one-third interest was concerned, so that when he in conjunction with his co-owners operated on the land for oil, he was merely exercising a right belonging to plafntiff company, and necessarily the fruits of the exercise of that right must belong to the owner of the right.” When the State permitted the trespasser to mine the salt and then recovered from the trespasser, it did so for account of the lessee, and under its lease it was entitled to a royalty of one-eighth only.

Our conclusion is that the right of the plaintiff is not limited to such damages as it can show that it itself suffered, but that it should recover from the State on the same basis as that on which the State recovered from the trespasser. On this basis it is entitled to seven-eighths of the amount recovered.

We come then to a consideration of the effect of the agreement made between the then Attorney General and the attorneys for plaintiff corporation. That there was an agreement is evident from the statement of the then Attorney General, Honorable Gaston L. Porterie. But we find too that this statement does not set forth any amount nor proportion to which the plaintiff is entitled, but merely that “the Jefferson Lake Sulphur Company, Inc., would receive a portion of the money recovered by the State in said suit, due to the fact that State Mineral Lease No. 124, covering the bed of Lake Peigneur, was owned by the Jefferson Lake Sulphur Company, Inc., at the time that the trespass was committed.”

We have been shown no legislation nor other authority conferring upon the Attorney General the right to agree as to plaintiff’s share of such an amount, nor do we find any other- evidence than that statement showing- that the Attorney General attempted to do so.

Whatever may be the effect of such an agreement as is referred to by Judge Porterie, it is evident that since the plaintiff itself has alleged that the amount to which it was entitled was fixed in the agreement and that the amount is less than it might otherwise have been entitled to receive, its recovery should be limited to that sum.

We next consider the question of whether interest should be allowed on the claim against the State and note at the outset that the well established general rule is that a State, as a sovereign, is not responsible for interest unless made so by express statute or by stipulation The latest expression on the subject is found in Makofsky v. Department of Highways, 205 La. 1029, 18 So.2d 605, 606, wherein we said: “While in the modern trend there may be a gradual encroachment on the hitherto sacred domain of sovereign non-responsibility, nevertheless, as was recently pointed out in the case of Boxwell v. Department of Highways, 203 La. 760, 14 So.2d 627, 630, ‘* * * a state or its agencies cannot be compelled to pay interest • * * * unless provision is made therefor by stipulation or by a specific statute, * * ”

In Boxwell v. Department of Highways, 203 La. 760, 14 So.2d 627, 630, we said that “general laws relative to the payment of interest are not applicable.”

Counsel for plaintiff recognize this well established rule, but seek to convince us that here there is express legislative authority under which we may impose the charge of legal interest against the State. They say that in both the Boxwell case and the Makofsky case, it was the Department of Highways of the State which was the defendant and that in the legislative authority under which the Department of Highways may be sued, there is no express permission given to claim interest from that Department. And they further call attention to the fact that there is a plain distinction between the wording of that statute authorizing suits against the Department of Highways and the Bill which authorized the suit now under consideration.

It is true that in the statute which authorizes suits against the Department of Highways, it is provided that the Department may be sued in any competent court “subject to all applicable laws relative to jurisdiction,” Act No. 4 of 1942, § 8, whereas in the Bill under which this suit is brought, it is provided that the courts “shall apply the rules of law and method of procedure applicable to suits between persons involving this or similar cause or causes of action.”

The point which counsel seek to- make is that whereas in the case of the Department of Highways the waiver involved only the immunity to suit, the Bill which authorized this suit provided that we should apply such laws as are applicable in suits between private individuals.

While there seems to be some difference in this regard between the statute in the one case and the Bill in the other, the principal difficulty which confronts the plaintiff in connection with the interest claim lies in the fact that in addition to the requirement that the allowance of interest must be “expressly” authorized, there is the further requirement that this authority must be given in a “specific statute” (Makofsky v. Department of Highways, supra), and that even “general laws relative to the payment of interest are not applicable” (Boxwell v. Department of Highways). And we remember that the entire burden of plaintiff’s argument on the exception to the jurisdiction, wherein it was shown that the Bill here involved had never become a “statute”, was that a “statute” was not necessary.

There is an alternative argument on behalf of plaintiff that interest should nevertheless be awarded because in the granting of such a lease the State, having acted in a proprietary or quasi private character and therefore being subject to suit, even without an express waiver of immunity, should be liable for interest just as a private person would be held. This argument that a waiver of immunity is not necessary in litigation growing out of a mineral lease granted by the State is based on what was said in State ex rel. Shell Oil Co. v. Register of State Land Office, 193 La. 883, 192 So. 519, and Begnaud v. Grubb & Hawkins, 209 La. 826, 25 So.2d 606. However, neither of those cases involved the payment of money by the State. In each the only question of interest there was whether or not the State could be sued in an effort to force it to permit the carrying out of lease contracts executed by it. All that we held was that since the State, in entering into those contracts, had acted in a proprietary or quasi private capacity and not as a sovereign, it was amenable to suit to enforce those contracts. Since no money demand was involved in either case, we did not consider the question of liability for interest, and we adhere to the view that the State may not be held liable for interest in any case, unless the interest is authorized by specific statute, or by agreement.

While no complaint seems to be made as to the costs, it is evident that insofar as the award of costs is concerned, the judgment is correct, since it awarded such costs as are legally chargeable against the State. Those costs are limited to “those incurred for the taking of testimony.” Makofsky v. Department of Highways, supra.

The judgment appealed from is affirmed.

O’NIELL, C. J., and McCALEB, J., re-cused.

PONDER, J., dissents and hands reasons.

BOND, J., absent

PONDER, Justice

(dissenting).

I do not believe that the State acted in a proprietary or quasi private capacity under the facts in this case. This question was not passed on in the majority opinion • and I see no reason to state my views in respect to it. The act of the Legislature which was vetoed by the Governor is treated in the majority opinion and given effect as a resolution. The conclusion is based on the premise that the right to waive the State’s immunity from suit is vested in the Legislature alone and not in the Legislature with the approval of the Governor under the provisions of Section 35 of Article 3 of the Constitution of 1921.

The first time any reference was made to the waiver of the State’s immunity from suit in the Constitution of this State was the provisions contained in Article 192 of the Constitution of 1898, which reads as follows: “Whenever the General Assembly shall authorize a suit against the State it shall provide in the act authorizing the same, that such suit be instituted before the District Court at the State Capital; that citation to answer such suit shall be served both upon the Governor and the Attorney-General; that the Supreme Court of the State shall have appellate jurisdiction in such suit, without regard to the amount involved; that the only object of such suit, and the only effect of the judgment therein, shall be a judicial interpretation of the legal rights of the parties for the consideration of the Legislature in making appropriations; that the burden of proof shall rest upon the plaintiff while claimant to show that the claim sued upon is a legal and valid obligation of the State, incurred in strict conformity to law, not in violation of the Constitution of the State or of the United States, and for a valid consideration, and that all these things shall be affirmatively declared by the Supreme Court before any judgment is recognized for any purpose against the State.” (Italics ours.)

The identical provisions are incorporated in the Constitution of 1913. In the Constitution of 1921, they were changed to read as follows: “Whenever the Legislature shall authorize suit to be filed against the State, it shall provide a method of procedure and the effect of the judgments which may be rendered therein.” Section 35, Article 3 of 1921.

In the year 1878, prior to the adoption of the Constitution of 1898, the following pronouncement was made by Justice Spencer in the case of Lord Cecil et al. v. Board of Liquidation, 30 La.Ann. 34, viz.: “A State can be sued only by its own consent, and it may therefore impose such limitations and restrictions on the right of suit as it pleases. Hence this court, in determining its powers and duties in cases against the State, must look to the act authorizing the same, in order to determine the scope and limitation of its power and jurisdiction. Outside of the act authorizing1 the suit, and beyond the limitations therein fixed, it is absolutely without authority to hear and determine; and must therefore confine its investigations within the limits and to the objects specified.” (Italics ours.)

In the case of Durbridge v. State, 117 La. 841, 42 So. 337, 343, the following observation was made: “The plaintiff conducted his case in the district court as if it were an ordinary suit between private litigants to be governed, and decided by the application to his demand of the general rules as to the admissibility of evidence; the sufficiency and weight of evidence and as to which of the parties litigant carried the burden of proof. He overlooked the fact that the suit was brought before the court under exceptional conditions which the state was free to impose, and to which he was bound to conform, and that the court itself under the statute was required to make special findings, and render a special judgment similar to that referred to in the case of Lord Cecil v. Board of Liquidation, 30 La.Ann. 35.”

It is also stated in the Durbridge case: “The right of the General Assembly to waive its right of exemption from suit, and to grant permission to sue, is not derived from article 192 of the Constitution of 1898. It antedated that Constitution. The article in question merely fixed certain features of the demand, and of the suit, and of the effect of the judgment when rendered.”

The opinion in the Durbridge case was handed down in the year 1906, after the adoption of the Constitution of 1898.

In the case of Hood v. State, 120 La. 806, 45 So. 733, 734, the following pronouncement in the Durbridge case was quoted with approval: “‘The right of the General Assembly to waive its right of exemption from suit and to grant permission to sue is not derived, from article 192 of the Constitution. The article in question merely fixed certain features of the demand under certain circumstances and of the suit and the effect of the judgment when rendered.’ ”

Immediately after this quotation, this statement was made in the Hood case: “The article in question had specially in view demands calling for the making of appropriations by the General Assembly.”

I am of the opinion that the authority to waive the State’s immunity from suit is not derived from either of the three Constitutions, but, as stated in the above quoted authorities, it antedated these Constitutions. I am also of the opinion that Section 35, Article 3 of our Constitution merely imposes limitations and restrictions on the right to sue by providing the method of procedure and the effect of judgment.

Prior to entertaining this appeal, I had occasion in another case pending before our Court to review the jurisprudence of this-State and that of many other states and found not a single authority to the effect that the Legislature alone could waive this immunity. In fact, the authorities are to the effect that the waiver must be by a constitutional provision or law enacted by the Legislature. I found one case decided' by the Supreme Court of Georgia that appeared to hold that the waiver could be-made by a joint resolution, but, upon reading the case, I found that it had to be submitted to the Governor for approval. I will cite some of the authorities which bear out these views: 13 A.L.R. 1276; 42 A.L.R. 1272 and 1464; 50 A.L.R. 1408; 49 Am.Juris., Title “States”, Sec. 96, p. 313; 59 Corp.Juris., Title “States”, Sec. 460, p. 302, and the many authorities cited thereunder.

An examination of the jurisprudence of this State shows that the Legislature has never attempted to waive the State’s immunity from suit except by an act or a statute. The statement quoted from the Lewis case and the sole authority relied on in the majority opinion is, in my opnfion, obiter. A reading of the opinion in the Lewis case reflects that a pronouncement was made therein that the act had become a law by limitation and it was pointed out that the title of the act did not violate the article of the Constitution applicable to the enactment of a law. However, if it should be considered a pronouncement, it should not be followed because it is founded on an incorrect premise, viz.: that the article of the Constitution authorized the Legislature alone to waive the State’s immunity, when, as a matter of fact, the authority to waive the immunity is not derived from the Constitution.

Moreover, the Legislature has consistently construed its own powers and has never attempted to waive the immunity of the State except by an act which they submitted to the Governor. This Court has consistently entertained appeals from lower courts where acts of this nature have been declared unconstitutional and it has applied the provisions of the Constitution applicable to the enactment of laws. Our jurisdiction undoubtedly flows from the provision in the Constitution granting us appellate jurisdiction when a law has been declared unconstitutional. The reason that the Constitution of 1921 does not provide for the appellate jurisdiction in suits of this nature is because we have already been granted, by that Constitution, appelate jurisdiction where a law has been declared unconstitutional.

Section 35 of Article 3 of 1921 simply means that when the law making body waives the immunity of the State from suit, it shall provide the law of procedure and the law governing the, effect of the judgment. I believe “a method of procedure and the effect of the judgments” must be perfected by a Itmi. There are many expressions in our Constitution that “the Legislature shall provide” where it is contemplated that it shall provide by law but does not specifically say that it shall provide by law. This, in my opinion, shows that the Constitution frequently speaks of the Legislature in the light of the law. making body, and did so in this instance. I am fortified in this belief by the fact that the Constitution of 1898 recognized the fact that the waiver must be by the enactment of a law when it said: “Whenever the General Assembly shall authorize a suit against the State, it shall provide in act authorizing the same, * * This evidently contemplates that the waiver is to be made by an act or a law and that the authority of the law making body is already vested with these powers.

I do not see how the act that has been vetoed by the Governor can be given the effect of a resolution. When the act was vetoed it was killed for all intents and purposes and cannot be revived as a resolution. How can it be said that the Legislature was willing to waive the State’s immunity without the approval of the Governor when it made no attempt to do so? Moreover, the Legislature made no attempt to override the veto of the Governor and this, in my opinion, amounts to an acquiescence on the part of the Legislature in the Governor’s action.

It does not appear reasonable to me that .the framers of our Constitution would authorize the Legislature to waive the State’s immunity from suit by a resolution of a mere majority of its members and at the same time require thq approval of the Governor of any appropriation that might be made to pay any judgments rendered in the suit.

The chief executive of the State has often been referred to as the “watchdog” over the State’s finances. It is his duty to pass on all appropriations and each item thereof. It is equally his duty to protect the credit of the State. His approval or authorization of suits against the State is as essential to the maintaining of the credit of the State as his approval of appropriations to pay any judgments rendered in such suits.

Prior to the Constitutions of 1898, 1913 and 1921, the Legislature had authority to pass any law that was not prohibited by the Constitution. It had the right to pass a law waiving the State’s immunity from suit. The provisions in these three Constitutions merely limits and restricts the right. It has been stated in some of the cases that an act waiving the State’s immunity from suit is a special act and not a local or special law in the contemplation of the Constitution requiring publication, but it is a law nevertheless.

For the foregoing reasons, I respectfully dissent.


author: PONDER, Justice.

text:
    213 La. 38
    STATE v. PATTERSON et al.
    No. 38600.
    Supreme Court of Louisiana.
    Feb. 16, 1948.
    Fred S. LeBlanc, Atty. Gen., M. E. Cul-ligan, Asst Atty. Gen., and Herve Raci-vitch, Dist. Atty., Guy Johnson, 1st Asst. Dist. Atty., and Robert E. Le Corgne, Jr., Asst. Dist. Atty., all of New Orleans, for appellant.
    Henry J. Voss and Alex W. Swords, both of New Orleans, for appellees.
   PONDER, Justice.

The State is appealing from the judgment of the lower court sustaining a plea of former jeopardy and discharging the defendants.

The defendants were charged with operating a place of public entertainment in which lewd dancing is permitted. The offense is denounced by Act No. 241 of 1942.. The offense is a misdemeanor and the penalty provided for in the act does not authorize the imposition of imprisonment at: hard labor.

Under the provisions of Section 10 of' Article 7 of the Constitution, our appellate jurisdiction does not extend to misdemeanors, where imprisonment at hard labor cannot be imposed, except where a fine exceeding $300, or imprisonment exceeding-six months, has actually been imposed.

For the reasons assigned, the appeal is. dismissed.

O’NIELL, C. J., absent.


author: McBRIDE, Judge.

text:
    PANNAGL et ux. v. STOUDER.
    No. 18877.
    Court of Appeal of Louisiana. Orleans.
    March 1, 1948.
    Rehearing Denied April 12, 1948.

      Dart, Guidry & Price, of New Orleans (Louis C. Guidry and Edward F. Weg-mann, both of New Orleans, of counsel), for plaintiffs and appellants.
    Nicholas G. Carbajal and Arthur Landry, both of New Orleans, for defendant and .appellee.
   McBRIDE, Judge.

Mr. and Mrs. Louis S. Pannagl have prosecuted this appeal from a judgment maintaining exceptions leveled at their petition by the defendant.

On October 1, 1947, plaintiffs filed suit against defendant seeking to evict him from the premises No. 3714 Johnson Street in Jefferson Parish, Louisiana, which they ■allege had been leased to him in writing on a sixteen months basis at a monthly rental of $40 payable in advance. The petition avers that plaintiffs desire possession of the premises for their own use and occupancy; that the lease expired on September 30, 1947, and that defendant, although duly notified to do so, refused to vacate. A rule ordering defendant to show cause why there should not be judgment in favor of plaintiffs as prayed was duly issued.

On the day fixed for the trial of the rule, defendant interposed several exceptions, one of which is the exception of no cause of action, which was maintained by the lower court and the suit was dismissed. We are informed by counsel that the exception was based on the failure of plaintiffs to allege that they were in good faith in seeking possession of the premises.

Section 209 of Public Law No. 129, 80th Congress, 50 U.S.C.A.Appendix, § 1899, provides in part as follows:

“(a) No action or proceeding to recover possession of any controlled housing accommodations with respect to which a maximum rent is in effect under this title shall be maintainable by any landlord against any tenant in any court, notwithstanding the fact that the tenant has no lease or that his lease has expired, so long as the tenant continues to pay the rent to which the landlord is entitled unless—
* * . * * * *
“(2) the landlord seeks in good faith to recover possession of such housing accommodations for his immediate and personal use and occupancy as housing accommodation;” (Italics ours.)

No appeal was taken, and on October 10, 1947, plaintiffs filed another suit seeking to dispossess defendant, in which they alleged that occupancy was sought by them in good faith.

Again a rule to show cause was issued on defendant, and on the return day defendant filed several exceptions, among which were those of res judicata and no right of action, which the trial court maintained and the suit was dismissed.

Counsel for appellee argues that the judgment rendered in the original proceedings, dismissing the suit because plaintiffs had failed to allege that they were in good faith, constituted res judicata as to the second suit, since both parties were the same and since the issues were identical.

That the judge of the lower court was in error in sustaining the plea of res judi-cata is evident from a mere reading of Art 539 of the Code of Practice, which provides:

“Definitive or final judgments are such as decide all the points in controversy, between the parties.
“Definitive judgments are such as have the force of res judicata.”

The trial court has never decided any of the points in controversy between the parties to this action, as there has never been a trial upon the merits. A judgment maintaining an exception of no cause or. no right of action based on insufficiency of allegations cannot form the basis of a plea of res judicata. Williams et al. v. Missouri Pacific R. Co. et al., La.App., 6 So.2d 79; Arceneaux v. Louisiana Highway Commission, La.App., 5 So.2d 20; Schneckenberger v. John Bonura & Co., Inc., 14 La.App. 692, 130 So. 870; O’Hanlon v. Phoenix Bldg. & Hmstd. Ass’n, 17 La.App. 673, 137 So. 223; Cornish v. Chaney et al., 177 La. 10, 147 So. 363; Interdiction of Giacoma, 158 La. 148, 103 So. 721.

We said in Arceneaux v. Louisiana Highway Commission, supra [5 So.2d 23]:

“All that a plaintiff, whose suit had been so dismissed, would have to do would be to file a new suit. * * * ”

Our brothers of the Second 'Circuit, in the case of Williams et al. v. Missouri Pacific R. Co., supra, said [6 So.2d 82]:

“ * * * When this exception is directed against the efficacy of the petition and is sustained, without right to amend, and no amendment is tendered, the judgment thereon, will be one of nonsuit. * H=

Code of Practice, Art. 536, in treating of a nonsuit, provides:

“If, after the cause has been set down on the docket for trial, the plaintiff does not appear, either in person of by attorney, to plead his cause, on the day fixed for trial, the defendant may require that judgment of nonsuit be rendered against such plaintiff, with costs.
“But such judgment can not be pleaded, as res judicata, or in bar of another suit, for the same cause of action, provided the plaintiff show that he has paid the costs of the first suit.”

In support of the exception of no right of action, counsel for defendant argues that the vacate notice used as the basis-for the prior suit could not successfully serve as a predicate for the second suit. However, counsel has not favored us with authorities so holding, and we have been unable to locate any.

The second suit effectively alleges that on August 19, 1947, defendant was notified to quit the premises at the expiration of the lease, and we know of no reason why that notice cannot be used, as-the judgment dismissing the first action must be treated as one of nonsuit. The allegations of the petition, for the purpose of hearing the exceptions, must be taken as true, and the allegation that the notice was duly served more than thirty days before the expiration of the lease is one of compliance by the landlords with Sec. 2155 of the Revised Statutes, as amended by Act 55 of 1926, Sec. 6597, Dart’s La.Gen.Stat, which in part reads:

“ * * ‡. jf tjje owner or his agent shall be desirous of obtaining the possession of the said leased premises for any other reason or cause, such as, for the purpose of leasing the said premises to- another tenant or otherwise, he shall give to the tenant a notice in writing to vacate, * * * thirty days before the expiration of the said lease, if the said lease be in writing, and for a term of one or more years or otherwise, other than by the month.”

Plaintiffs were entitled to bring their suit anew when the original one was dismissed on the exception, and the notice to vacate did not lose its efficacy.

The other exceptions were not passed upon by the lower court, and for that reason cannot be considered by us. See Dart’s Louisiana Digest, Second Series, verbum, “Appeal,” Sec. 197.

For the reasons assigned, the judgment appealed from is annulled, and it is now 'ordered that the exceptions of res judicata and no right of action filed by defendant are overruled, and this case is remanded to the district court for further proceeding's according to law and the views herein expressed. Defendant-appellee is to pay the costs of this appeal — all other costs to •await final determination hereof.

Reversed and remanded.