Jefferson Lake Sulphur Co. v. State , 213 La. 1 ( 1947 )

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 authorizing 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 opinion, 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, appellate 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 law. 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 the 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.