*1
783
inconvenience, expense
with its resultant delays, particularly probate matters. William B. HAMILTON et al. years ago, one hundred Over Charles legal eloquently
Dickens crusaded CITY OF SHREVEPORT. literary among many delays. his Foremost No. 47551. House”, “Bleak accomplishments was March picture painted a word (1853), wherein he Rehearing May 3, Denied expense unhappiness, depicting misery, litiga- protracted resulting from and chaos
tion. (1564-1616) also Shakespeare
William delay. against the law’s
crusaded during opinion, always been of
I have twenty-nine years practice of that years judge, district
and ten as matter a succession that should see
courts efficiently, and completed speedily, pos- expense inconvenience little credi- interest of the in the best
sible—all decedent, even and all heirs
tors disappointed
though heirs some Rea- be handled. how the matter should this justice demands dictates and
son be so.
should favorably voted Louisiana
The to our an amendment 1, 1960, designed July eliminate
effective Courts, result and as a
delays Appellate functioning judicial system our
thereof
smoothly expeditiously.
Being of reached the view that result óf'Appeal correct, the' I re- Court'
spectfully dissent.
Wilkinson, Lewis, Carmody, Woods & W. Wilkinson, Hamilton, Scott B. William plaintiffs-petitioners. for Marcantel, Gallagher, N. Andrew J. John Gallagher, Shreveport, B. for defendant- respondent.
FOURNET, Chief Justice. granted We a writ certiorari to re judgment view the Appeal, of the Court of Circuit, Second application on the of the plaintiffs 1, sustaining plea the defendant’s immunity from tort liabil ity reversing the judgment of the trial awarding court them damages to their re spective properties as the result of the Shreveport’s raising action in the water level of Lake in Cross order to maintain an adequate supply City’s water for the water however, system, limiting, works our re Ap view of the Court of peal question of whether the liability 3„ immune of Article view Hamilton, Tracy, Margaret B. William Mrs. Lavada Smith William Scott Mrs. Wilkinson and West Wilkinson. 787 788 35 Article 3 of the as amended under Section Con- 35 of the 1921, pursuant as amended Legislature of stitution to Act 621 pursuant 1946, 8, simply it 1960. Act No. 385 of waived the 1960, by adoption on November traditional state and its See, 168 So.2d from suit and did not consti- subdivisions apt It to observe tute a of the state or its waiver adopting the aforementioned of 1960 negligence of one express did so posed amendment employees govern- in the exercise of de- nullifying of two the effect mental function. Maryland court, of this Duree cisions plaintiffs contend this Sec- Counsel Casualty Co., La. So.2d present issues” bearing tion “has 9, 1959), and denied October (rehearing any immunity and confer as it “does not Board, Stephens School v. Natchitoches power Legisla- only deals de- 793, (rehearing 238 La. 115 So.2d it ture to waive whenever holding that 1959), nied December exists;” point apply, they it but if does Legislature authorized whenever waive, empowered peremption prescription 2. "Tlie resolutions, in favor of the state laws have accrued *3 liability body immunity against any public claim or from and'from tlie suit other authorized; municipal- state, parishes, (cid:127) and of on which suit is so of the claims boards, political subdivisions, public prescription peremption ities, any or and commissions, may accrued, institutions, departments, or which have heretofore prior corporations, agencies districts, and au- to Jan- would otherwise accrue govern- against any against public uary 1, 1962, claim or and other thorities mental, by public body bodies; on which and authorization state or other each the by Legislature against the State been authorized the suit suit heretofore has waived, hereby body, Legislature, public heretofore and or such other brought granted, be on shall such claim is hereafter enacted or vided that suit January 1, prior effective and No suit au- to be and shall be to 1962. construed provi- purposes, as of and from the this constitutional for all thorized under valid any thereof, of defend- in court other sion be as waiver shall instituted date immunity from case from suit and In the than a Louisiana State court. ant’s by Legislature shall, spe- liability. any suit hereto- The such claim on which of resolutions, pre- by Legisla- general or tlie or laws fore has been authorized ture, cial including procedural rules, on the -and the suit was dismissed scribe the immunity process, ground of the defendant’s of venue and service that rules' liability waived, against govern and other not an- suits state from had been to may bodies; procedure public in filed tlie such on the claim be other suit same 1962, January 1, applicable pro- any prior suits, of to in-the-absence at time Legisla- subject by promulgated not and such suit shall be to rules cedural judicata ture, between of res based on the dis- to be the same as suits defense n (cid:127) prior litigants. private claim.” missal of the such No public body 3, any shall of the or other Article Section 35 Constitution state paid 623, payable except 1921, 1960, out of adopted as Acts No. ^xigible,. or amended be payment 8, appropriated for there-' November 1960. of fu'ndd any Legislature may waive The of. immunity by provisions Chapter out and liabili limited of both suit sued is 2, thereof, un ty expressly of defendant is waived Section 2.014 further main and Constitution, amended, Legislature as inasmuch der the intended tains “never to incorporated City impose in the right City as the eliminate the of the as to Shreveport empower language Charter of defense its as a 3, ing City per and be and also bar involving to sue sued to delictual actions its rather, plead impleaded any activity,” be and all was and formance of such but “specific problem” endeavoring cure the whatsoever. courts by by Stephens and cases created the Duree plaintiffs’ agreement is in Defendant providing that the could waive amended, Article, claim as has appro whenever present Legis- bearing on the issue as the priate. alternative, con In the defendant Charter, lature, granting Shreveport Ar provisions of light that in tends privileges reserved it certain and power be munities and that its to sue and ticle ferred boundaries now are in or without ble of have impleaded shall continue and “Section habitants of the by and immunities heretofore conferred said and privileges ers. The ration may soever, of the Charter consistent with this and all other government conveying property ceiving, reads as follows: Chapter Chapter being defended, impleading style state; may have and use a common seal.” city by any special perpetual *4 upon and suing shall be constitution and hereafter be or holding, 1.01. exercise all the of the in all courts and body politic, “Section 2.01. General all cities of its and a the limits immunities to be a of the powers, succession, powers pertinent City city capable Incorporation. farming, being sued, defending real or the exercise of plan 1.01 City may municipal and rights, Shreveport population act and powers, which are could personal shall Incorporation acquiring, hereafter places leasing, government; Shreveport shall the name privileges city, be The in- be con- laws of not in- rights, corpo- what- with- capa- Poio- being class shall have now be, re- 5.The good order, tution of the commissions, boards, morals be held to opinion of the government, isiana : desirable or specifically completely ticular shall be to .suits or corporations tion grant respecting “Section “(4) Any “The consent of the State of Louisiana not in connection with parks subdivision [*] [*****] applicable pertinent expressly city powers in this of its 26 are: of the taken to power.” and other recreational be in addition to this and the legal proceedings [*] 26. The enumerated in this municipal corporation, parish promote the and no enumeration are and shall be considered comfort, though thereto, inhabitants, state and operation council, provisions prohibited by the State [*] safety, bodies plan any exclusive such convenience following are general or State rule or which, health, [*] powers necessary maintenance government against in matters municipal fully but shall of Lou- facilities plan welfare regula- consti- in the named peace, were [*] par- and and any and, foregoing, it From is obvious special agency of state is
it made
argument
the de
in the case
of counsel for
such,
is immune
proposing
public
Legislature,
recreational
fendant that the
in
and
in view of the
at bar
in
in the
at
has
the amendment
issue and the
Lake
assumed
nature that Cross
it,
im
original
only
to
despite
adopting
intended to waive
past years,
its
munity
in-
its subdivisions
supply to defendant’s
state and
a water
furnish
pro
resulting
tort
from their
actions
habitants.
prietary
the tra
activities and not to waive
'
35, reported
reading
A
mere
and its sub
ditional
of the state
readily disclose
will
in
in footnote
full
in actions
on the tortious
divisions
founded
empowered to waive
Legislature is
that the
employees
and
when
conduct of
officers
political
state and
capacity,
in
is
functioning
liability,
suit and
from both
subdivisions
appre
clearly
we fail to
without merit and
“each
specifically provides that
and further
ingenious
ciate the rationale of counsel’s
for suit
by
authorization
provisions
Chapter
argument that the
body,
public
such
other
the State or
Section 2.10
Charter of
enacted
and
reported
hereafter
heretofore
in full
in
exclude
footnote
shall
be and
to
granted, shall be construed
as one of the subdivisions of
purposes
by
for all
state
35 Article 3 of
and valid
covered
effective
* * *
as amended.
of the defendant’s
as a waiver
liability.”
munity
and from
from suit
Counsel’s alternative contention
Board v.
See,
Parish School
Terrebonne
equally
it is true that
without merit. While
Board, 242 La.
Mary Parish School
St.
maintain,
Lake,
despite its
they
Cross
Construc-
Pittman
and
of it,” surrounding HAMITER, properties J.,
and commercial is recused. City agree cannot counsel that the
we park acquired position operating a a of FOR REHEARING ON APPLICATION contempla- and recreational area within Moreover, Article
tion of PER CURIAM. raised water level Lake was of Cross applicant’s find no merit in contention We insuring securing for the City holding that we erred that the supply adequate an fresh water Shreveport liability in is not immune from and its inhabitants. view 35 of the Con- stitution, by Act 621 as amended of 1960. explicit clear and In view of the Hence, application rehearing a amended, we language of Section refused. made suggestion, accede counsel’s cannot brief, orally should However, grant- since the writ of review enforcement of exempted rigid be ed herein was limited consideration per engaged in the provisions when question specific inas governmental functions formance of munity liability, judgment render- a morass plunged it will “into much as us, it affirmed decree ed insofar as petty major,” which litigation, both court, inadvertently disposed trial inescapably produce a burden on will on the merits which were neither issues so, City, we have for to do would fisc of presented Accordingly, nor discussed here. limiting it this a clause so to add to herewith decree March we correct our words, rewrite we would have no —in other read as follows: 1965 to are not which we authorized this Section authority being within the exclu do—such assigned, the judgment For the reasons Legislature to recom province of the sive Appeal, Circuit, re- the Court of Second adopt; consequent people and the mend and the to that versed case is remanded application be ad ly, any change in must proceedings further court for accordance and the dressed with law and consistent with the views
of this state. expressed. herein assigned, For reasons Circuit, HAMITER, J., Appeal, is recused. the Court Second