Saint v. Allen , 172 La. 350 ( 1931 )

I cannot concur in the majority opinion. It holds that the highway commission has authority to select and employ counsel at the expense of the state without the approval of the Attorney General.

Section 55, art. 7, of the Constitution of 1921 creates a department of justice for the state consisting of an Attorney General to be elected every four years and such assistants as he may select. By section 56 of that article the Attorney General or one of his assistants "shall attend to, and have charge of all legal matters in which the State has an interest, or to which the State is a party." (Italics here and elsewhere in this opinion are the writer's.)

In the majority opinion it is said:

"Therefore, so far as relates to the Constitution, that instrument, with reference to the duties of the Attorney General and his assistants, has confined, by implication, the duties, there demanded, to be rendered, to those interests, possessed bythe state, as a distinct entity, and has left it to the Legislature to impose such other duties upon those officials as it may deem proper to do from time to time."

And again:

"If the Louisiana Highway Commission is a distinct legal entityfrom the state, then there would seem to be no reason, so far as relates to the Constitution, why the Attorney General and his assistants should be deemed to be the attorneys for the commission, and why other arrangements could not be made, under legislative authority, for the selection of attorneys by the commission."

There can be no dissent from the proposition that, as a matter of law, it is not only the prerogative but the duty of the Attorney General, who is made the head of the department of justice, to act as counsel for and represent the state in all matters wherein the state is interested or is a party "as a distinct entity."

Now, in so far as the majority opinion so hold, I unreservedly concur. But in order to reach the conclusion announced, it is held that the highway commission "is a distinct legal entity from the state." From that holding I respectfully, but most emphatically, dissent.

Section 19 of article 6, Constitution of 1921, provides that:

"The Legislature shall provide for the establishment and maintenance of a system of hard surface State highways and bridges, under the supervision of the Board of State Engineers, until otherwise provided by law, and shall provide for a general highway fund for the construction and maintenance thereof."

At its Extra Session in 1921 the Legislature adopted Act No. 95:

"To carry into effect the provisions of the Constitution of 1921 in relation to the establishment and maintenance of a system of State Highways and bridges; to create a Louisiana Highway Commission; to prescribe its duties, functions and powers."

I think it clear that the Legislature intended that the building and maintenance of the roads and bridges authorized by the Constitution was to be done by the state in its sovereign capacity "as a distinct entity." Wherever roads are mentioned, they are referred to as "state roads." Section 16 provides in precise language: "That every contract for highway improvement under the provisions of this Act shall be made in the name of theState of Louisiana."

Section 23 provides: "That the State of Louisiana, actingthrough the Commission, may acquire by purchase, lease, or donation, and may operate any gravel bed, shell or rock deposit * * * for the construction and maintenance of State Highways."

Section 27 provides that, in all cases where it is necessary to construct or widen a state highway, "the right of way therefor may be acquired by the State, road district, parish, city, town or village, either by purchase or by donation, or by expropriation, under the general laws of the State * * * in the event the owner of said property and the Commission, representingthe State, should not agree upon the price thereof. The Commission is hereby authorized and empowered to bring such expropriation proceedings in the name of the State. * * * In the event of the purchase or expropriation by the Commission, actingfor the State, of such rights-of-way, the compensation therefor, as provided herein, shall be paid from the General Highway Fund."

In section 28 of the act it is provided that "when the Statebuilds a highway across a canal the bridge should be paid for out of the General Highway Fund."

Now if the statute means what it says in plain English, every act and every move made looking to the establishment of a highway system in this state is done and made by the state in its sovereign capacity, "as a distinct entity."

The highways and bridges are not built and maintained by the highway commission, but by the state through the commission as its agent. The state does not act and cannot act except by and through its agents. In order that it might act under the constitutional mandate to build a system of hard surface state roads and bridges, the state created an agent to act for it. That agent is the Louisiana highway commission, which is constituted a body corporate in law. It is a legal entity it is true, but it is not "a distinct legal entity from the state," as the majority opinion holds.

The state has power to create, and has in many instances created, corporations to act for it with such unlimited and far-reaching powers that they may be said to be separate legal entities from the state. But the Louisiana highway commission is not one of them. It is a state agency with most limited and restricted powers. It has no general powers. It can perform no governmental functions like a levee board or commission. It does not act in its own name and capacity except in purely incidental matters. It does not and cannot contract in its corporate name and capacity. The act creating it specifically provides "that every contract for highway improvement under the provisions of this Act shall be made in the name of the State of Louisiana." Such contracts are not even signed by the commission, but by the highway engineer and approved by the commission. The commission does not acquire gravel beds, etc., for the construction of roads, but the state itself may acquire such"acting through the Commission." The state may acquire rights of way by purchase, provided the owner of the land and the commission "representing the state," not itself, can agree upon the price, and, when the land necessary for the rights of way must be acquired by the state through expropriation proceedings, the commission is authorized to "bring such proceedings in the name of the state." And in case these rights of way are acquired by the state through purchase or expropriation "by the Commission acting for the state," the price is paid out of the general highway fund.

It is thus clear that the highway commission is the agent of the state in the most limited sense. In no sense, I think, can it be said that it is a separate and distinct entity from the state.

The Legislature used unmistakable language, line upon line, to show, first, that the highways and bridges were to be built and maintained by the state in its sovereign capacity, "as a distinct entity," and, second, that the commission was to act, not in its corporate name and capacity, but always for and in the name of the state.

Now since the state makes all contracts for the building of roads in its own name, acquires rights of way and other property for that purpose for itself and in its name, and brings expropriation suits, in sum, builds the roads, it follows necessarily that it is not only interested in but is in fact a real party to every transaction had and made in connection with the building of roads, and, as the Attorney General is counsel and adviser for the state, and "shall attend to and have charge of all legal matters in which the state has an interest or to which it is a party," it is his duty to attend to all legal matters which may arise in the course of the road building now under way in this state.

The highway commission has no need for or right to employ special counsel, and certainly no right to use the funds of the state to pay attorneys' fees.

In the majority opinion it is said, speaking of the highway commission:

"In a general sense, in its relations to the state, it is not dissimilar to levee districts, which are bodies corporate, created for the purpose of constructing and maintaining levees, which are duties, devolving primarily upon the state."

As pointed out, this court held in the cases of State v. Standard Oil Co., 164 La. 334, 113 So. 867, and State v. Tensas Delta Land Co., 126 La. 59, 52 So. 216, that a levee district, though a creature of the state, has a separate existence from the state, and that the state could not sue on a cause of action accruing to such district.

The organ of the court lays down the premise that the highway commission is not dissimilar to levee districts, and from that premise it is reasoned that the highway commission also has a separate and distinct existence from the state. The reasoning is sound, but the conclusion is wholly erroneous. A correct conclusion cannot be reached by reasoning from a false premise, and I use the word "false" in the sense that the premise is incorrect.

The Legislature of 1886 by separate acts created the Tensas Basin Levee District (Act No. 59), the Fifth Levee District (Act No. 44), the Atchafalaya and Bayou des Glaize special levee district (Act No. 103), and later, by other and separate acts, created the Pontchartrain levee district, the LaFourche Basin levee district, and the Lake Borgne district. These acts are of a similar nature and contain practically the same provisions relative to the duties, rights, privileges, and powers of levee districts.

Referring to Act No. 59 of 1886, creating the Tensas Basin levee district, we find that it provides for a board of levee commissioners, which "shall be and they are hereby constituted and created into a body politic with corporate powers; they shall have power to sue and shall be sued in their corporate name, and shall have a seal, and shall have the power to do and perform all the purposes of this act." Section 3.

Section 1 of the act provides that "the purposes of this district shall be the raising, by taxation or otherwise, a revenue to protect the lands therein from inundation; said taxation to be levied on the lands and other property in said district, subject to taxation for levee purposes."

In section 5 it is provided that, for the purpose of raising revenue, the said board is authorized to levy annually such taxes as may be authorized by article 214 of the Constitution, and by section 9 the board is authorized, for the purpose of raising additional funds, to levy an annual contribution or assessment upon land, not to exceed ten cents an acre, and under section 10, for the purpose of raising further additional funds, the board is authorized and empowered to issue bonds signed by the president of the board officially under its seal.

By Act No. 77 of 1888 the Legislature donated to the board all lands belonging to the state or that it might thereafter acquire within the limits of the district which "shall be, and the same hereby are given, granted, bargained, donated, conveyed and delivered unto said board of levee commissioners." Section 2. The board was given power and authority to sell, mortgage, pledge, or otherwise dispose of said lands in such manner and at such times and for such prices as it might see fit.

This act and each of the others creating levee districts specifically provided that the title to the lands donated to them by the state should be vested in the board and owned by them absolutely.

The distinction between these boards and the highway commission, as created by Act No. 95 of 1921 (Ex. Sess.) is marked and manifest. Not only are these levee boards bodies corporate in law, but they act and make contracts, sue and may be sued, not in the name of the state, but in their own corporate names, and have a seal. They build levees, not in the name of the state, but in their own names. More than that, they are given power to levy taxes and to issue bonds, not in the name of and for the state, but in their own names, signed by the president under their own seal. They own lands under fee-simple title and have power to sell them at will and at such prices as they may fix. They have powers as drastic and as far-reaching as municipal corporations. These acts go so far as to give them police power over the levees. The state has in unequivocal terms vested in these boards all power and authority over the building of levees and put into their hands the machinery of taxation in order that they may raise the funds for that purpose.

Necessarily, therefore, the court has consistently held, in cases where the issue was raised, that these boards have rights and causes of action with which the state has nothing whatever to do, and, further, that they are in a sense separate and distinct entities from the state. But the same cannot be said of the highway commission, which, as I have already said, has but limited powers and can do nothing except in the name and on behalf of the state.

By referring to Act No. 125 of 1912, as amended by Act No. 221 of 1920, it will be found that no board or commission in this state, it matters not of what nature or character it may be, has authority to employ attorneys to represent it generally, or in special cases without the approval of both the Governor and the Attorney General. They are specially prohibited from doing so.

Section 1 of the act of 1912, as amended, provides that the Attorney General in the parish of Orleans, and the district attorneys in all other parishes of the state, shall, ex officio and without extra compensation general or special, "be the regular attorneys and counsel for the Police Juries and School Boards within the Parish of Orleans and within their respective Districts and of every State Board or Commission domiciled therein, including Levee Boards, Hospital and Asylum Boards, Educational Boards and all State Boards or Commissions * * * except all State Boards and Commissions domiciled at the City of Baton Rouge, Parish of East Baton Rouge, * * * and it shall be unlawful for any Police Jury, School Board, or State Board or Commission to retain or employ for any compensation whatever any attorney or counsel to represent it generally, or except as hereinafter provided, to retain or employ any special attorney or counsel for any compensation whatever to represent it in any special matter, or pay any compensation for any legal services whatever."

The majority opinion holds that this "provision and denunciation" is not applicable to those boards and commissions for which no provision has been made "and to which the act does not apply."

If the Legislature had intended to exempt those boards and commissions domiciled in Baton Rouge from this prohibition, it would have said so. The act, after providing that the district attorneys throughout the state should be ex officio attorneys for all state boards and commissions domiciled in their respective districts, especially relieved the district attorney of East Baton Rouge parish from the duties of representing state boards and commissions domiciled in that parish, and immediately following this exception is the statement that "it shall be unlawful for any Police Jury, School Board, or State Board or Commission to retain or employ for any compensation whatever any attorney or counsel to represent it generally, or except as hereinafter provided, to retain or employ any special attorney," etc. The clause, "or except as hereinafter provided," refers to section 2 of the act, which is to the effect that, in case it should become necessary "for any state board or commission to retain any special counsel to represent it, it shall have power and authority to do so by obtaining the approval of the Governor and the Attorney General."

It is perfectly clear to me that the lawmakers did not overlook these state boards and commissions, but especially took care of them in section 2 of the act. The state boards and commissions domiciled at Baton Rouge have their offices there and are under the eye of the Governor, who is authorized by section 5 of the act to require and direct the Attorney General to render to them any special services which they may need.