Cobb v. Louisiana Board of Institutions

So.2d Lloyd COBB J.

v. OF BOARD

The LOUISIANA et al. INSTITUTIONS

No. 43632. 15, 1958.

Dec. April 27, Rehearing

On

$50,000, interest, costs, loss and twenty Angus registered Aberdeen cows, alleged breeding it wherein was consuming these met their cows death liquid purchased from the Louisiana Penitentiary. The defendants entered plea jurisdiction ex- court ceptions cause of action. of no and no exceptions plea These were overruled rendered on the merits was $50,- plaintiff in favor of the sum specially allowed costs as are appealed. law. The defendants have previously We em- entertained bracing controversy and dismissed suit because was a suit state properly and the not been au- had thorized institute suit. See Thereafter, 10. Bill No. Senate passed by was the Senate by the This bill was vetoed Governor. returned to the Senate but was never called or reconsidered. Gen., Gremil'lion, Atty. Harry P. F. Jack Bill No. 100 reads Senate as follows: Gen., Atty.

Fuller, for 2nd Asst. defendant- “By: Mr. Folkes appellants. Sachse, “An Breazeale, Hebert, Wilson & Act plaintiff-appellee. Rouge, for Baton Lloyd “To authorize Cobb file J. against State suit of Louisiana PONDER, Justice. through the Louisiana Board of Insti- upon a claim for brought against damages suit tutions aris- ing from the death of Institutions and his cattle alleged Board of Louisiana Louisiana, by have been caused under the fed ma- State bought passed at from the the 1956 ses- terial Louisiana Bill No. Board Institutions; provide legislature, sum for the method sion of 322. citing therein, designating 4. State “Sectiоn If rendered may the Court which said suit in favor against of claimant and instituted; any prescriptions waiving Louisiana, paid State of shall may have accrued in favor of revolving pur- fund established pro- State claim and 51:692.9, by said suant to or [LSA-]R.S. viding payment any judg- Louisiana, the Treasurer of the State any ment be rendered said belonging out of funds to the proposed suit. appropriated. not otherwise Legislature of J. Louisiana, through the suit tions, “Section 1. Be it enacted Cobb, a resident of Louisiana hereby of its Louisiana: State authorized to Jefferson successors, upon Board of of Louisiana That Institu- Parish, by Lloyd file This act shows that it lowing Governor on ^[******] “Approved: veto “Veto message appears Junе - “June was vetoed 1956 and the fol- 28, 1956” on the bill: damages arising his claim from the “State of Louisiana alleged death of his cattle to have been Department Executive by being bought caused fed material Rouge, Baton La. him from and delivered the Louisi- 28, 1956 June Penitentiary him at ana State his “To Honorable Marydale Farm on 3rd and February the President and Members 4th, 1953. of the Senate

“Section That said suit be in- “Gentlemen: stituted before the 19th District vetoed, “I have and return herewith Judicial Court, in and for the Parish of East my approval, bill, the following with Rouge, Louisiana, Baton and the State my objections thereto, as follows: .may of Louisiana and cited served Bill By “Senate No. Mr. 100— through Attorney Gen- Folkes. eral of Louisiana. Lloyd Aсt to “An authorize Cobb J. “Section Such suit be filed against to file suit the State of Loui- (6) months six after this within Act through the Louisiana siana Board of any prescription law and becomes Institutions, etc. have accrued favor of which the against said hereby claim is “I have vetoed this bill State for the payment that the of waived. reasons method 4, may be Constitution is not and it neces- Article Section 9 of the certain provides appropriations sary pay a time ‍​​‌‌‌‌​‌​‌​‌​​​‌​‌‌​‌​​‌‌‌​​​​​‌​​​‌​​‌​​​‌​​‌​​‍when “all other the claim at bills, separate Louisiana each em- revolving fund the shall be made the of Penitentiary jeopar- bracing object.” Defendants con- would but Heretofore, payments judg- of if bill is held consti- dized. tend that the to be tutiоnal, au- to be effect of against State had it is without because ments the appropriated by the State contains the veto of Governor since it thorized and procedure severability is not Legislature, which no clause. mandatory in this bill.

made certain or Under the Sec- of Article Further, set forth bill does not amended, Constitution, tion 35 of does amount be sued for nor legislature whenever authorizes suit certainty basis of said it state with state, judgment rendered no claim. for money be satis- against the state can “Respectfully, except appropriated fied out of monies purpose. An examination Long, K. “Earl petition original reveals filed in this suit Louisiana.” “Governor plaintiff his claim asked for paid revolving out of fund or Bill contend that The defendants Treasurer, belonging of funds out reasons for the is unconstitutional No. 100 appropriated. to the state not otherwise money appropriation of that it contains purposes revolving fund One by the Governor. vetoed has been purchase supplies, pay is to position that all take the defendants tools, equipment, in the etc. to be used money under appropriation of bills .for administration of Louisiana State 22 of the Section Article Penitentiary. made thr When Rep- originate the House LSA, must party Louisiana Board of Institutions a contrary to bill is resentatives, plain- appear the suit would Article Section provisions of. рaid revolving to be out tiff'desired contingent it is because Constitution penitentiary engaged fund because the specific amount. call for a does and. production ar- manufacture of position that further take Defendants ticles, goods, wares merchandise. the Consti- Article under. Otherwise, why can see reason we no money rendered judgment for tution party of Institutions was Board made a except satisfied cannot be state plain- suit. This to the indicates that the legisla- appropriated monies violates tiff at the time the suit was and that it filed intended purpose ture 325 Co., 238, revolving 855,

to collect the judgment the 298 U.S. S.Ct. Treasury, regard or, general fund or out of the State L.Ed. rule in to the words, interpreted severability portion in other he the act was the act as appropriation.. Thereafter, containing an laid down thus: petition he amended his and deleted from provision, “In the of such a absence prayer part his of it which asked presumption the is that the paid to be out of the intends an act to be effective as an revolving fund or the Treasurer. entirety say, is the rule is to —that provisions Under the of Article Sec- statute; against the mutilation and ap- of the all bills provision unconstitutional, if any the money propriating originate must in the presumption pro- remaining is that the Representatives. House of Counsel for visions fall with it. The effect of plaintiff argument his before this presumption statute to this rеverse Court admits that if Section 4 of Senate favor inseparability, create appropriation, Bill No. 100 is in fact an opposite separability. one of Under that it could not be law it after was vetoed nonstatutory rule, the burden is by the origina- Governor and without its upon supporter legislation of the Representatives, tion in the House of but separability provi- to show the argued plaintiff he has no inten- sions statutory involved. Under the satisfying any judgment might tion of rule, the burden is shifted the assail- revolving obtained out of the fund or inseparability. ant show their But specific the funds of the state without rule, determination, under either appropriation if which he will later seek end, by applying reached he is successful in the suit. namely, What same was the in- test— tent lawmakers ?” Bill not con No. 100 does severability tain a clause and in order rule of construction was This cited with uphold grants it this bill insofar as approval Court in the case of state, 4 of the sue Baggott, v. separated from the bill would have to be merely bill. cannot are not unaware that We 4 of agreeing not to enforce Section legislature .authorize bill make the bill effective. state, matters when it-contains but re approval quire evidences Governor Supreme Court of In a .legislature intention case, v. Carter Coal Carter States United de- regard for without in its or ineffective act is effective to be objectionable If invalid. clared entirеty. provisions of a unobjectionable fact also aware are separable, We statute are not distinct part and that a valid provision statute declare invalid not so parts are part the two invalid in if would be to sub- other enforceable presump intimately as to raise a connected law enacted one stitute have not would legislature that been Legislature might not have without the other. enacted the one willing to enact.” 439; 26 414, So. Cognevich, 124 La. 50 v. Flournoy, Drilling Etchison v. See also Co. 595; City v. Alexandria & of A. E. Enc. 442, pointed It also 131La. 59 So. 867. was 722; 595, v. Hall, Ricks So. La. 131 171 Wymond & of in State Chess Co. ex rel. Service, Department of State Civil 200 129, Grace, 188 175 So. Louisiana v. La. 49; City Conley 341, v. La. 8 So.2d if intended 825 had that 78, Shreveport, 223. If 216 La. 43 So.2d part that the of an act should constitutional portions act are of an the unconstitutional part regardless stand unconstitutional the con with so interrelated and connected way accomplish very simple there was a to sepa parts cannot be they stitutional that result, namely, by usual placing that man destroying intention rated without prevalent to legislation clause in modern act, passing the legislature ifested in any part the effect is de- that if of the law Stanley, v. is void. Stewart entire act unconstitutional, in- clared to that be its Close, 531; v. 146, Ricks 199 La. 5 So.2d validity remaining con- would not affect the 534; 242, Womack v. Var 201 La. expression will. legislative stitutional of the nado, 1019, 16 So.2d 825. opinion: would The court stated in that “It pointed pure part, equivalent case of Calcasieu conjecture out in the our We be on 77, Reid, judicial Leg- 146La. Long Lumber Co. v. legislating, that the Leaf hold 384, 80, provisions 385: islature act intended this So. separable.” to be 175 So. La. [188 course, are where a there cases “Of 837] respect may be valid statute they Airey But are cases In Tugwell, in another. v. La. invalid parts 99, 102, law two of the are this where So.2d Court stated: separable that the court title distinct “The of an act the Legislature so is that the label, intention of the of a purpose can conclude nature provi- that valid was give which is to notice of the legislative enforced, should purpose law be intent and in, sions of to those interested by, of the entire who he affected the terms act I is void.” am convinced act, upon prevent surprise principle fraud cause. applicable and to is to this Legislature.” In the title members of the my adopting To mind it clear is pro- that it Senate Bill we find No. 100 legislation Leg- under consideration payment judgment any vides “for the only islature intended to authorize proposed rendered in said sue, claim litigate his and to suit.” in arriv- significant We think this is against, pursuant the state to the ing at legislative intent. Since of Section Article 3 of the Louisiana Bill authorizing No. 100 objectionable Constitution. money appropriates goes state further and invalid) thereof that it was (assuming pay which would have judgment, insertеd, merely matter, as an incidental law, apparent effect the Senate forth set future the manner in which pre- entirety to be intended bill plaintiff’s paid. might favor approval. It sented Governor to the for his Surely in adopting that section there existed appear legis- does not reasonable no nullifying provi- intention of the other pre- that this bill lature should intended sions the legislation. And this approval Governor for sented to the true it proper seems to conclude that the only part can only. conclude We granted would have the au- falls separable and in bill is not therefore thority litigate to sue and the in absence entirety. the of Therefore, invalid my Section in assigned, the opinion For the reasons ‍​​‌‌‌‌​‌​‌​‌​​​‌​‌‌​‌​​‌‌‌​​​​​‌​​​‌​​‌​​​‌​​‌​​‍regarded section should be aside, set court reversed the lower is and of surplusage wholly mere unnecessary and for at his cost. is plaintiff’s dismissed the accomplishing purpose the the Legis- the

lature had in mind. HAMITER, and HAWTHORNE keeping In with this view are the follow- with written reasons. TATE, dissent JJ., ing observations contained in Lewis v. State, 194, 207 La. 921: (dissenting).

HAMITER, Justice passed “Statutes in furtherance of the majority herein is Relied on provisions of the character of those im- that, “If the un- principle recognized well posed by Article in- so portions of an act are constitutional Constitution are remedial in their constitu- with the and connected terrelated liberally and should be nature con- separated thеy cannot be parts that tional * * * strued. manifest- destroying the intention without ed legislature in passing act, the ¤ ^{[*] [*] [*] [*] [*]} Legisla- intention and this was the Legislature, the act itself “In Consequently, adopting the bill. in ture no declared for speaking appropria- assuming that Section is willing for it was terms uncertain tion, deleted I think can be State, and to sue for. Miss Lewis separability of a absence bill even judg- stand and to be sued portions remaining clause, leaving the claim of her matter ment on the carrying perfectly bill valid as at sustained alleged she damages she object itself. the bill purpose and main or em- State’s'agents hands of majority opin- cited the cases One of is in- It institution. ployees in a state ion, Long Lumber Co. v. Lеaf Calcasieu Lewis Miss granting that in conceivable authority Reid, So. her action right prosecute following very proposition. The for this Legisla- members the State the ma- quoted in the extract from case .that her to neutralize ture intended jority opinion: mani- that would legislation to enact tional ^[*] I that will rather festly in respectfully dissent. interpret ^[*] effect Court, provision ^[*] than ” contradiction whatever. uphold its if it legislative may do so strike and of It is the constitutionality it with no act in the constitu- consistently, legal duty of nullity. force way sions declared invalid. valid in another. But ute the two “Of enforced, separable course, valid parts intention of be valid without provisions, there that the the lavo are are regard they are cases court cases where * * * respect the law can so distinct ” conclude (Italics should a stat- provi- where was in- Varnado, 204

mine.) also Womack v. See HAWTHORNE, (dissenting). La. 16 So.2d 825. Justice opinion Sec- majority According to the TATE, (dissenting). Justice appro- is an Bill No. 100 4 of respectfully I dissent. given in reasons priation, act majority conclude opinion statutory A rule of con fundamental because entirety unconstitutional is in its struction is that a statute will be sustained separated from be cannot section this construction a constitutional can be when the bill. portions of remaining an against it .as unconstitutional con given Meyer urged. Board, 199 matter,, purpose struction v. La. main I view As 713; Department Williams v. to waive sover- bill was object of the La.Apр. Highways, Cir., 1 Cobb, 92 in favor So.2d suit immunity from eign 334 333 presumed being The act consti- certiorari It is true the State. denied. tutional, imply any legisla- inter- I be see no need to presently statute construed could intent “will” be preted appropriation by consid- tive that such funds as an act as paid, mandatorily providing ering as will be other than in a constitu- Section done manner; is, appro- any special favor tional after judgment rendered in revolving paid priation by legislature. "shall be out of the claimant pursuant to fund established [LSA-]R.S. might that, indicates, appellee I add as 51:692.9, or Treasurer present Section of the act is an instance any belonging Louisiana funds pro provision usually forma incor- appropriated.” the State not otherwise to porated in authorization suits introduced so, majority for the reasons stated in the If comply III, with Article Section Lou- opinion, clearly statute be such a would isiana in the thereof version appropriation an act. unconstitutional as amendment, before the 1946 it for- when merly provided: legislature “Whenever However, “shall”, although word shall authorize suit to filed against ‍​​‌‌‌‌​‌​‌​‌​​​‌​‌‌​‌​​‌‌‌​​​​​‌​​​‌​​‌​​​‌​​‌​​‍mandatory duty, usually implying also provide it proce- shall method simple futuri- is sometimes used denote dure and judgments effect of simple ty.1 Taken used in the sense as (Italics mine.) may he rendered therein.” permissiveness present futurity in the or statute, complementing interpretation Section presuming that 4— 1 au- question which in of the act Section act scheme is constitutional and was' place suit, provides merely thorizes Section intended be a legislative author- suit, provides ization of suit the State and that delay in- such suit within which shall it was not an unconstitutional act is sub- judg- simply indicates stantiated the circumstances of this case. "if stituted— claimant”, indicate,' my rendered in favor of These ment is opinion, humble paid penitenti- specific will or from the intent it that this act spe- would be ary revolving cifically fund or from funds of other authorization to file again Cf., Dictionary (3rd imperative sense, public Law Black’s Ed. where no or omitted): (citations right impaired 1933) p. private interpre- its * * * statutes, contracts, Also, As used in the “Shаll. tation other sense. generally government, like, it tois word Tie or the im- * * * ‘may,’ mandatory. contrary perative construed as unless But it * * * merely permissive intention is manifest. be construed as equivalent ‘may,’) “Although directory, (as usually the word or carry denotes an legislative implies obligation, out the intention and in also an element of * * * futurity. (Italics mine.) where no or benefit to cases depends in the on taken act, affect portions would not III, of the Article other compliance by with

the State Ar- pursuant to Constitution, legislative authorization 35, Louisiana Section III, waiving the State’s ticle amended. re- suit, waiver not immunity upon this suit earlier Plaintiff-appellee’s Governor. quiring concurrence of spe- dismissed wаs action cause of same Lewis v. pur- been filed it had not cifically because State, 213 Sulphur v.Co. Lake Jefferson file authorization legislative suant 1, 34 La. 331. So.2d 1, 85 So.2d La. State. against the suit in reasons I not concur For these do Bill Thereafter, present Senate majority opinion herein. on behalf was introduced 100 of No. by passed in due course plaintiff and Rehearing On purpose the obvious with Legislature, present bring the enabling plaintiff to SIMON, If immunity. Justice. State’s by waiving suit intended as had present bill been plaintiff sued the Louisiana Board require- act, a constitutional

appropriation and the Institutions State Louisiana in the State that it be introduced ment is authority upon conferred him under daresay I Reрresentatives, Plouse Bill No. 100 of 1956. Plaintiff’s plaintiff’s counsel only not learned recovery damages is for the suit but legislature, every of the member twenty registered Angus loss Aberdeen in this State any informed citizen almost cows, breeding allegedly met their appropria- the rule with is familiar “sugared consuming death water” in lower be introduced bills must mixture, supposedly to be mill run black- present circumstance house. This molasses, purchased strap from the Louisi- was introduced instead act authorization Penitentiary, an agency State ana under would, my upper house alone jurisdiction of the Board of Institu- that this intent indicate an obvious opinion, tions. solely authoriza- as an considered

bill may be It observed that this is the sec- State against the file suit tion to by plaintiff against suit instituted these ond appropriation bill. anas The first suit defendants. involved the presented factual issues which are I above identical although think And opinion my Originally suit. plaintiff instant majority alone reasons defendants, error, I am sued without first obtain- brethren falls into esteemed authority ing Governor’s consent State believe that inclined to also provided by might to in the manner be as veto, effective however leged professed conception to have been caused on fed bought material consent from the Louisiana be sued without acting Institutions; Board of provide breach it is of contract when therein, support method for proprietary capacity. citing In theory, designating urged originally Court which said having instituted; Penitentiary, been waiving Louisiana State prod- prescriptions surplus may farm which have accrued authorized to sell its ucts,1 deposit- in favor proceeds against be of the therefrom to the State said claim and providing payment of fund,2 ed in a revolving it followed judgment any other position the which was in the of be rendered State proposed said suit.” vendor and held liable for a breach could by Ar- warranty of fitness exacted Section 1 contains the authorization for ticles 2475 LSA-Civil Code. and 2476of the prosecute his claim suit his and We refused to sustain this contention against the damages State for suffered as Legis- held that the since the consent of the cattle; result of the death of his Sec- lature for the institution suit of had tion refers to the court in which the suit by provided obtained in the manner been may be filed and manner in which the 35 Article 3 Section of of cited; State shall be served and by 1946, adopted as amended Act of prescribes the filing of within suit six 5, 1946, LSA, November the courts were months after Act this becomes law and jurisdiction without to entertain it.3 any prescriptions waives which have accrued in favor of the State and Thereafter, next regular at the session claim; provides said Section 4 for man- Legislature in bill intro- was of datory payment of the judgment which (Senate 100), Bill No. in the Senate duced might be rendered and the source from parts of which are title and substantial- payment shall made. ly follows: as adopted by This bill was the Legislature “An Act presented without amendment and to the Lloyd Governor, Cobb file “To authorize due and course was vetoed J. by the State of Louisiana and him returned to the Senate, suit from Board originated, Louisiana of Insti- with through his objec- written damages upon Upon a claim aris- tions thereto. attached receipt tutions its bill, upon of his cattle the death author, al- motion of from its ing re- was v. Louisiana Institutions, 3.Cobb Board 51:692.10. of 1. LSA-R.S. 85 So.2d 10. 51:692.9. 2. LSA-R.S. 34=0 calendar, In- subject to and the Board of all costs. State turned to ruling. appealed the adverse from never reconsidered stitutions was This bill call. effort upon by the Senate in acted set original hearing reversed and On we Governor, and veto of override judgment of lower court aside the adjourned die. subsequently sine upon relied waiv- decreed the bill immunity constitutionally invalid. of was er the instant Thereupon, plaintiff filed It is us on rehearing. now before were made allegations as with the same exception justness plaintiff’s Pretermitting suit with first suit, damages, question presented creation alleging the claim for after instant 51:692.9) granted legal is whether there (LSA-R.S. has been $500,000 to be used valid waiver the State revolving fund Penitentiary in con- immunity its suit. Under ex- the Louisiana farming agricul- ceptions the State and the general Board contend duct of thereupon proceeded to operatiоns, that: tural amount sued for in the pray for By (1) virtue of title the bill and re- paid out that the same “and mandatory of Section su-

volving fund established [LSA-JR.S. designed pra, it ‍​​‌‌‌‌​‌​‌​‌​​​‌​‌‌​‌​​‌‌‌​​​​​‌​​​‌​​‌​​​‌​​‌​​‍awas bill intended the Treasurer byor 51:692.9 law, which, the- effect of and have under belonging any funds out of Louisiana 15, 5, Article Section the of State, appropriated.” not otherwise the presented must be to the Governor for his action; official Institutions the Board of The State and the jurisdiction of while exceptions (2) presented That in fact so it filed vetoed, right Senate, cause and no was returned of no never and that Court on constitu- called for reconsideration action, or the veto were founded over- of ridden, immunity suit is consequently from and ineffective and governmental tional consent. invalid. legislative valid without hand, plaintiff’s the other On contentions exceptions, plaintiff these with Faced are: petition de- supplemental

thereupon filed directing prayer (1) law,' is That the bill not a nor of the must part leting be as judgment having shall it be deemed the effect of in manner overruled, meaning and within the of exceptions'were law the Constitu- paid. tion, again Paragraph ren- hence of merits was on 'a favor, legal Article 5 of inter- of Section with Constitu- plaintiff’s dered applicable; not 1954, paid and are February until from est in; designate the or (2) Louisiana court having the-effect or being a law (2) Not the courts which suit or suits approval of law, or signature instituted; validity; (3) may any waive accrued its and necessary to Governor was prescription in favor against of the State approval (3) That the Governor’s the claim or claims on which the suit sois ab- and unnecessary, thereof his veto authorized. It is further therein declared by the Senate its reconsideration sence of procedure in such suits shall be bill ineffective, wholly was private the same as in suits between liti- consti- validly Legislature passed by as gants, money but that no judgment for authority complete grant tutes full and except the State shall be satisfied suit. filing of this to the moneys Legist appropriated by the It; purpose. ours.) lature (Italics it system government Under our provides further that: from a state is immune is fundamental any other as well as in its own “Except suit specially pro- as otherwise expressly consented courts, has unless section, vided effect of assume immunity. willWe its and waived authorization Legislature for a rudimentary of this statement bare suit against the nothing State shall be acceptance. unquestioned finds law tenet of than a waiver more im- State’s Burke, La.Ann. v. rel. Hart ex munity suit insofar Institu 498; Board of Louisiana v. Cobb so authorized concerned.” (Italics cited tions, supra, authorities therein ours.) necessary corol it is a And

and reviewed. a matter It is sued is manifest that foregoing the consent lary that right. provisions restrictions, are in no vested limitations and sense a grace and is though waiving regаrd As suits immunity may impose other condi impose limitations restrictions, or additional tions the latter pleases itas on the restrictions cannot transcend be inconsistent with authorized Article sidt which mandatory pre limitations therein Constitution, as amended scribed. 1946, adopted November Act specifi- section must conceded that the constitutional It constitu- 1946. This amended, supra, article as cally the method and circumscribes tional does limits that, express by Legislature, any employed reference making be contain nec- to action, pro- essary any otherwise, affirmative or (1) it shall do so it shall: whenever citing In by method the State there- the Governor. recent cases we ex- vide the alone, re- authorizing person sue, a plicitly Legislature needing held that the to Governor, by the notice to gardless given action no be to authorize its immunity. In may grant waiver enactment and uncontrolled as to by Act Legislature, v. State4 the its own course.” Lewis plaintiff to file 273 of authorized We further said: against upon her claim suit the State “Under the wording 35 of of Section damages. After filed State suit was Article 3 of the jurisdiction of the court ra- questioned Legislature, vested and not in personae materiae on tione ratione Legislature approval with the that the bill was unconstitutional ground Governor, institu- authorize pro- provide method of it failed to a against tion of suit the state. The by Article 3 required 35 of cedure provision constitutional part: reads in contended The State Constitution. of the Legislature ‘Whenever the shall au- question is: the act thorize suit to be filed “ * * * * * State *.’ (Writer’s italics.) the meaning a law within provision does not contemplation declare the constitutional shall, Legislature a legislative enact- law formal- governing * * * adopted, ly permit suit to brought intended to are ments against the merely but mat- direct and control permanently Legislature shall authorize such persons things or a applying to ters suit, specifying without does, manner in dealing as it instead of general, which such authorization given. temporary special or matter of -awith words, In other may, character.” pass attempting withоut general a or that: saidWe pursuant special law to the constitu- “ * * * Notwithstanding legisla- provision, pass joint tional resolution, brought which, although authorizing a act suit not effective law, tive as a special char- is of a effective consent State of the subject acter, held this Court has itself to suit. Under Sec- exemption immunity of Article 5 tion waiving Constitution * * * the authoriza- such a resolution passed when person would Legislature to become effec- approval special or local without the is not a tive Gov- sue * * special simply a act ernor.” It is *. law

4. 207 La. 346 345 State, Sulphur v. the State from the revolving In Lake Co. fund Jefferson 331, 336, recognized 1, Penitentiary of the State any we or of So.2d out the belonging funds plaintiff’s right that suit and to the State to file “not other- appropriated.” judgment, its enforce- wise The use event of a favorable of the word must, action “shall” “subject under 1:3, ment would be to LSA-R.S. be con- and “mandatory” strued to be by “per- be taken and nec- legislation missive” in Governor, when accord with ap- its and common if proved siich pay usage. to appropriate to essary funds introduced(Italics judgment shall It must be that conceded had Legis- ours.) approved lature a bill the nature of a joint resolution, in accord with Section 35 it is observed instant case In 3, of Article and had limited its contains No. 100 Bill of Senate the title 1, to Sections it and would have been * * provid- and the clause: part effective as a valid consent of the State to any judgment payment of ing for subject itself to suit without approval suit.” proposed said rendered in may be of the Governor. broader Act title To avoid detailing properly purpose after obvious provisions, of inserting Section than its called procedure only 3 the was not attempt and an to add to to in Sections and simple 3 of the Consti- broaden procedural Article pre- by Section method inserted, by and scribed 4 was tution, Section 35 of Article but was attempt also to avoid the necessity of reads: obtaining subsequent a appropriation from favor rendered in judgment is “If Legislature, requiring approval against the State and of claimant Governor, pay any judgment which Louisiana, paid out shall be might have been obtained the State: pursuant established revolving fund Being component subdivision, a Section 4 51:629.9, Treasurer or R.S. inseparable part became an of the whole Louisiana, out of act. Thus the bill lost its identity as a State, not other- belonging funds immunity mere waiver and ours.) (Italics appropriated.” wise legislative statute became embracing one with a object indicative of very object title its provisions, their These clearly mandatory intended have the effect, and force and constitute and nature of law.5 judgment payment of effect order object, “Every but shall 3: stat- .brace have a Article 16 of 5. Sеction ” * * * object. its em- indicative of shall title enacted ute plaintiff explicit so in- significant mandatory It 'the under language, terpreted construed effect it is manifest legal would en- original in his filed titled to petition payment Section 4 for demand of his alleged prayed judgment out ‘herein he of the revolving peni- fund * * * tentiary, paid aforestated, revolving fund and as “be relieve him of necessity of Louisi- the Treasurer of the State of obtaining Legis- from the lature, any funds at belonging session, ana out of some specific future ap- appropriated.” propriation not otherwise for the payment thereof. It is every fundamental that bill which is we that Were to conclude to have the force and effect of law must question im bill in is a waiver of valid passed by Houses, be both and under Sec- suit, munity we first would have to presented Article 3 be must to constitu hold that the had the Upon Governor. receipt, its he re- provide by right to in the tional mandate quired by Section 15 of Article 5 to ei- body of resolution title and the the bill or (1) Approve ther: bill as a whole as suit, authorizing the manner in which the presented; (2) Allow the same to become paid particular be judgment would and the by law failing upon to act it within the n fundor levy upon source of revenue which prescribed limit;- time (3) Veto the n payment shall be hold made. To so whole bill and return same with his ob- n would prohibition contained fall within jections to House in which it origina- which, Section 35 as afore in Article ted. It required is further that should the stated, only expressly limits re bill be vetoed must, both by Houses a two- ¡stricts procedure to in be observed ob vote, thirds override the veto before it can immunity, but which taining mere waiver be effective as a law. that such provides an authorization likewise “nothing more than a waiver of be shall observed, previously upon As receipt-of * * immunity from suit 'the State’s with the bill the attached veto message of jurisprudence requires our which under Governor, it was returned to the calen- Legislature, an act enactment author, dar motion of its on and was never Governor, appro- of the approval with presented thereafter called оr for recon- necessary pay funds to what- priating the during sideration the remainder of the Leg- must have been rendered. ever neecssarily islative session. It follows embryonic state, hold that no to constitutional in Were we Leg- when the bill, by adjourned virtue objections die, to in- islature sine potential validly urged can legal of Section force and perished. effect clusion rewritten constitu- 1946. As conclusions vember contends Plaintiff supra case, spelled explicit Lewis lan- [207 in the us tional section out reached clearly anala- 919], are 194, 20 So.2d guage simple procedure La. to be followed here. In the case decisive to gous obtaining immunity, but a waiver of immunity con- waiving bill case struck out and omitted therefrom the clause 4) authoriz- (Section subdivision tained providing judgments for “the effect of the directing Treasurer ing and Hence, therein.” rendered by plaintiff, the obtained any judgment pay fully justified upholding we were General made payment validity waiving immunity of the bill appro- especially fund Fund or other light existing of the then constitutional urged The State the claim. priated pay .provision granting to the the effect objections as the same right of providing judg- the effect of We contended. provision as is here such a ment might be rendered against the granting Legislature, held power longer prevails Such no State. power to nor sue, the unrestricted had procedure enjoyed and the provide Legislature by a method virtue of may be ren- judgment which “effect of the amending 1946, ap- Act No. 385 of ** dered proved by the electorate on November holding. are in full with this We accord decided, case, supra, was the Lewis

When For these reasons those set forth in 15, 1945, 35 of January Article opinion, original our it is ordered that that read as follows: of the Constitution opinion and decree be reinstated as the final legislature au- “Whenever shall judgment in ‍​​‌‌‌‌​‌​‌​‌​​​‌​‌‌​‌​​‌‌‌​​​​​‌​​​‌​​‌​​​‌​​‌​​‍case. to be filed the. thorize provide pro- it shall a method HAMITER, J., dissents, adhering to his judgments and the cedure effect of previously assigned reasons. may be rendered therein.” ours.) (Italics HAMLIN, JJ., HAWTHORNE dis-

This section was rewritten the enact- adopted ment Act 385 No- sent.

Case Details

Case Name: Cobb v. Louisiana Board of Institutions

Court Name: Supreme Court of Louisiana

Date Published: Apr 27, 1959

Citation: 111 So. 2d 126

Docket Number: 43632

Court Abbreviation: La.