Louisiana Highway Commission v. Cormier , 13 La. App. 459 ( 1930 )

MOUTON, J.

The defendants are the owners of a tract of land of 150 acres situated in the parish of St. Landry.

Plaintiff is now constructing a hard-surface state highway, being route No. 7, as designated under section 7 of Act 95, Ex. Sess. of 1921, and the amendatory Acts No. 236 of 1924, No. 330 of 1926 and No. 294 of 1928.

The tracks of the Missouri Pacific Railroad run westward from Krotz Springs in the parish of St. Landry to a railroad station called Port Barre station on the line of that railroad. The proposed highway in route No. 7, which plaintiff is building, runs north of and parallels the railroad tracks from Krotz Springs to the Port Barre Railroad Station. The tract of land of the defendants is located between Krotz Springs and the Port Barre Station. Plaintiff alleges that it must have a right of way 80 feet wide across the land of the defendants for the construction of the highway to the Port Barre Station.

The village of Port Barre is situated north of the Port Barre Station and of the line of the proposed highway which is adjacent to, and north of, the tracks of the Missouri Pacfiic Railroad. The southern corporate limits of' the Port Barre village are at a distance of half a mile north of the Port Barre Station.

The Legislature, under the Constitution of 1921, was directed to provide for the establishment and maintenance of a system of hard-surface state highways. The Legislature, acting in obedience to the constitutional mandate (art. 6, sec. 19), by Act 95 of 1921, extra session, created a system of ihard-surface state highways for the state, and at the same time a highway commission to carry out the provisions of the act which was subsequently amended but without modification of section 7 of Act 95, Ex. Sess. of 1921, with which we are presently concerned.

The part of that statute pertinent to the issue presented for solution reads as follows:

“The said Highways shall extend, as nearly as possible, along the following described routes, the more specific and detailed locations shall be determined by the Louisiana Highway Commission, and in such manner as shall be prescribed by law, but in fixing such definite and detailed routes, said Highways shall touch the various cities, towns and villages named herein as points through which such routes are to pass. Provided the location and designated routing of State Highways as herein made may he altered and amended by the Louisiana Highway Commission to such an extent and in such manner as may be necessary to meet any requirements that may be made by the Federal Government in granting aid in road construction.”

Route No. 7 is designated in the act as follows:

“Beginning on the Mississippi State line north of Angie through Bogalusa, Covington, Hammond, Albany, Holden, Livingston, Walker, Denham Springs, Baton Rouge, Port Allen, Rosedale, Livonia, Krotz Springs, Port Barre, Opelousas, Eunice, Elton, Kinder, Fulton, De Quincy, thence to Texas line.”

There is no aid granted in the instant case by the federal government for the construction of the projected highway through the land of the defendants, and the proviso in the last paragraph of the first above quotation has therefore no application.

The vital question presented for decision is as to whether or not the plaintiff highway commission has the power to expropriate defendants’ property for the construction of the proposed highway.

It may be stated here that the plaintiff commission derives its power of expropriation from the provisions of Act 95, Ex. Sess. of 1921.

In connection with the foregoing statement, it is not amiss to say that, as was said in Orleans-Kenner E. Ry. Co. vs. Metairie Ridge Nursery Co., 136 La. 968, 68 So. 93, this power of expropriation is in derogation of common right, and must be strictly construed.

When this power is granted, as is well said, in Ruling Case Law, vol 10, sec. 168, the extent to which it may be exercised is limited to the express terms or clear implication of the statute conferring the authority.

With these preliminary remarks in reference to the power of eminent domain, we shall proceed to the interpretation or construction of the provisions of section 7 of said act, hereinabove reproduced, the proviso excepted.

That section begins by saying that:

“The said Highways shall extend, as nearly as possible, along the following described routes.”

In this expression of the statute it is obvious that the Legislature did not intend that the highway commission was required to scrupulously follow the designated routes. The language used implies that some discretionary authority was vested in the commission in extending these highways, along the routes marked out in the act, “as nearly as possible.”

Following the above excerpt from section 7, a change of thought seems to appear in the act wherein it is stated that, in fixing the definite and detailed routes, the highways “shall touch the various cities, towns and villages named herein * * * through which such routes are to pass.” Here again it must be observed that, after saying these highways shall “touch” the cities, towns, and villages, the act says, “through which such routes are to pass.” The fixing of the “more specific and detailed locations” which obviously refers to the highways is, under the provisions of that section of the act, left to the determination of the highway commission. These highways, as thus fixed, are required to “touch” these various cities, towns, and villages.

The object of the Legislature in enacting Act 95, Ex. Sess. of 1921, was for the establishment of a system of hard-surface state highways. Evidently, these highways were projected principally for the benefit of the traveling public. They were certainly not intended for the development of the various cities, towns, and villages along the designated routes. The incidental benefits that might accrue to them was, no doubt, a secondary consideration with the Legislature. As the interest of the general traveling public, as we appreciate the act, was the primary consideration involved, it may be entirely safe to say that the most important factor to be taken into account was the one of speed for the convenience or interest of the traveler over these highways. To attain that purpose, it cannot be denied that these highways, if possible, should be built on straight lines. It is manifestly the evident purpose of the commission to build on a direct line, as it is proceeding straight westward immediately north of the railroad tracks to the Port Barre Station, which is located one-half mile south of the corporate limits of the village of Port Barre. The fact is that the station is so near the village that it bears the same name, and it is extremely doubtful that the Legislature knew it was outside the village.

The real issue revolves around the proper interpretation of the word “touch” used in the statute. There can be no doubt that the commission, under the “express terms” of the statute, would have the power of expropriating the defendants’ property if it deviated from a straight course, curved slightly to the northwestward, “touched” or went “through” with the highway along the southern corporate limits of the village of Port Barre.

The question then arises, What did the Legislature mean by using the word “touch”? Did it intend that its literal meaning should be applied, and that the Highway should have actual “contact” with the corporate limits of the village?

We do not believe that it had such an abortive purpose in view by thus forcing a curved highway at the expense of speed in traffic or transportation, increase in expenditure of funds, and safety in traveling. It is doubtful if the towns and villages referred to are incorporated or not. It may be that some are mere settlements. If such be the case, which is very likely, the word “touch” employed in the act becomes somewhat of a puzzle in ascertaining the legislative intent. We make this observation because if any of these villages have no corporate limits it would be rather difficult to say with any degree of certitude how they could be “touched” by the highway. This view gives additional elasticity to the application of that word, and authorized a broader meaning in the interpretation of the legislative purpose. We think that its proper application would be to say that the building of the highway in touch or in close proximity to these towns and villages so that it would be easily accessible falls within the purview of the statute.

Counsel for defendants seems to contend that the contemplated highway should follow the old road along the banks of Bayou Courtableau northwestward through the village of Port Barre, and then southwestward back to the railroad tracks which run westward to Opelousas. There is certainly nothing in the express terms of the statute nor deducible by “implication” from its provisions that could compel the commission to follow the circuitous route suggested by counsel. The power conferred on the commission to determine the “more specific and detailed locations” unquestionably carries with it the discretionary right in the commission to. build the highway on such a line as it might think proper between the points designated in the act. The privilege of so constructing a highway involves a question of mere administration with which the courts will not interfere, unless there be a gross abuse of authority. Claiborne vs. Louisiana Highway Commission, 154 La. 743, 93 So. 172.

There is also a practical view to be taken of this case from the facts which have developed during the trial.

As it appears that the commission in going to the Port Barre Station was looking to the straightest route, it is therefore apparent that, if it should be forced to a deflection of the highway, it would swerve it only a little in a northwesterly direction so as to skirt along within the corporate boundaries of the village in order to “touch” it, as provided for by the express terms of the statute.

We say the consideration of the case from that angle presents a practical question because it is not disputed that, if the roadway would be thus deviated from its present course, the highway would, however, go through the lands of the defendants. It is therefore plain that, whether the highway is built on the line now contemplated, or be made to swerve as above indicated, it would be of the same consequence to the material interests of defendants, who therefore appear in this litigation as being prompted by capricious, whimsical, or captious objections, and, in reality have no appreciable interest at stake.

It may be said that as a general proposition judges deal with questions affecting tbe rights of the litigants in their courts, and should not look to the consequences which may result from their adjudications. This is not, however, universally true. In a case of this character involving the construction of a statute affecting the general interest of the traveling public, we think the palpable results of a judgment can legitimately be taken into account as an essential element in properly determining the controversy.

Counsel for plaintiff commission contends that in expropriation proceedings of a railroad company defendant cannot urge that it has forfeited its charter for failure to observe a city ordinance under which it holds its authority, referring in support of that contention to Louisiana & N. W. R. Co. v. Nelson, 128 La. 390, 54 So. 917. Such a defense, the court held there, belonged to the city. The franchise evidently had been granted by the city, and its forfeiture, as was held by the court, could not be claimed by defendant for the non-observance of a city ordinance. The court, however, in that case said that the railroad company had the right of expropriation.

Here the power of expropriation is in dispute as the sole issue, and we are of the opinion that the 128 La. case has no application. The contention boiled down to its real issue is as to whether the commission has exceeded its powers of expropriation.

In Corpus Juris, 20, sec. 121, p. 641, it is there stated, and we think correctly, that the owner of property may raise the objection that in exercising its powers of eminent domain the condemning corporation has exceeded its authority.

We trust that our reasonings in the foregoing consideration of the question at issue make it quite clear that our views are that the right to construct the highway through the Port Barre Station is not granted to the commission by the express terms of the statute. Our discussion has been directed altogether to the language employed in section 7 of the act, which has invested the commission with the right to expropriate. In considering that section, we have not failed, at the same time, to bear in mind the rule recognized in Orleans-Kenner E. Ry. Co. vs. Metairie Ridge Nursery Co., 136 La. 968, 68 So. 93, to which we have referred, in which it is said that the power of expropriation must be strictly construed. The rule does not mean, however, that this right must be expressly conferred. If it appears to be conferred by “clear implication,” as is stated in Ruling Case Law, above referred to, the right may be inferred without doing violence to the doctrine requiring strict construction.

In reaching our conclusions, we have not overlooked the provisions of article 13, Civil Code, which says:

“When a law is clear and free from all ambiguity, the letter of it is not to be disregarded, under the pretext of pursuing its spirit.”

The letter of the law as it is expressed in section 7 of the statute conferring on the commission the power to expropriate is certainly not clear and far from being free of all ambiguity. On the contrary, it is rather hazy, and seems to intend to confer on the commission some discretionary authority as to the location where these highways should be established to which reference is hereinabove made. Hence, in our endeavor to ascertain the Legislative purpose in the enactment of the statute, we cannot be charged with disregarding the letter of the law, “under the pretext of pursuing its spirit.” We think, as before stated, that in the construction of these roads, highways built on direct or straight lines were intended in the interest of economy, convenience, and safety, and that the Legislature was not looking primarily to the benefit of the cities, towns and villages along the proposed routes; that, if constructed in close proximity, touching and within easily accessible distances from these various towns and villages, the purpose of the law would be fulfilled. We therefore hold that plaintiff commission had the power “by clear implication” to expropriate the land of the defendants, and that the judgment below dismissing its suit is erroneous.

It is therefore ordered, .adjudged, and decreed that the judgment be annulled, avoided, and reversed; that this case be and is hereby remanded to be proceeded with according to law; cost of appeal to be paid by defendants, those of the lower court to abide the decision of the case.