56 So. 417 | La. | 1911
Statement of the Case.
Plaintiff herein, alleging itself to be duly incorporated, brought suit in August of this year in the district court for the parish of Iberia for the expropriation of a right of way or crossing over a railroad belonging to defendant (relator) at a point within the city of New Iberia, and an order was made fixing the application for hearing upon the 21st of September. Shortly thereafter defendant filed an exception to the jurisdiction of the court ratione person®, alleging that Act No. 37 of 1877, whereby it was incorporated, establishes its domicile in the city of New Orleans, and provides that it shall be sued Only there, except in cases of trespass. It further alleged, in effect, that Act No. 182 of 1908, relied on by plaintiff as repealing the provisions of the act of incorporation thus referred to, does not so operate, and, if it does, is unconstitutional, for reasons stated. The exception was argued and submitted on September 19th, and the court adjourned until September 21st, when it was overruled, to which action counsel for defendant reserved a bill of exceptions. Counsel then filed an exception of no right of action, which, by consent, was taken up, instanter, considered, and overruled. They then filed exceptions of vagueness and no right and no cause of action, which were similarly disposed of. The court then announced that it would proceed with the hearing of the case upon the merits, whereupon counsel for defendant notified the court and the opposing counsel that they would apply to the Supreme Court for writs of certiorari and prohibition, and the court, accepting such notice as sufficient, ordered that further proceedings be stayed. The application was thereupon made to this court, and relator complains that the trial judge erred, not only in overruling the exception to jurisdiction, but also in overruling the other exceptions, and insists that this court should review the whole matter.
Opinion.
The petition for expropriation alleges that “the crossing in question” will not damage defendant to any extent, but that plaintiff is willing to pay therefor the sum of $200. On the other hand, in the petition. filed in this court on behalf of defendant, and verified by affidavit, it is alleged that the amount involved exceeds $2,000, and that the loss and damage to which defendant will be subjected by the expropriation far exceeds that amount. We therefore assume for the present that the ease is appealable to this court.
There is no doubt that section 12 of Act No. 37 of 1877, which is relator's legislative charter, establishes relator’s domicile in the city of New Orleans and further provides that relator shall not be sued elsewhere, except in cases of trespass.
“An act to amend and re-enact section 1 of Act No. 93 of 1888, entitled [and then follows the title of the act of 1888] and to repeal all general and special laws in conflict therewith.”
The act of 1888, referred to, is entitled:
“An act requiring carriers to pay, at the point of delivery, for all freight they may fail, refuse, or neglect to deliver, and for all damages arising from such failure and for all damages done to such freight while in transit, and conferring upon courts, at the point of delivery, or the courts of domicile of the public carrier, jurisdiction, at the option of the party bringing the suit, in all suits for the recovery of freight that they may fail, refuse or neglect to deliver, or for damages arising from such failure, refusal of neglect, or for damages done to freight while in transit.”
Section 1 of the act conforms to the title, and concludes:
“Provided, that suit shall not be instituted under 30 days after demand; and, provided, further, that no charge shall be made for freight not actually delivered.”
Section 2 reads:
“That all laws or parts of laws in conflict with this act be and the same are hereby repealed.”
The act of 1908 is identical in language with that of 1888, save in the following particulars, to wit: The provisos with which section 1 of the act of 1888 conclude are omitted, and section 2- reads:
“That all general and special laws or parts of laws in conflict with this act and particularly section 12 of Act No. 37 of the Regular Session of 1877 be and the same are hereby repealed.”
It will thus be seen that the object of both acts, and the only object, as declared or referred to in either of the titles, is to authorize the bringing of suits against carriers, either at the points of delivery or at the domiciles of the carriers, for the recovery of freight intrusted to them, or for damages for the nondelivery of such freight, and to repeal all laws in conflict with the law thus enacted for the accomplishment of that object. Conceding that the repealing clause of the act of 1908 applies to section 12 of Act No. 37 of 1877, in so far as that section grants defendant immunity, save at its domicile, from such suits as the acts authorize to be brought elsewhere, that clause has no application to the section in question, in so far as it grants such immunity with respect to other suits, since in that respect there is no conflict between said section and the act to which the clause refers, and, although the said clause in the act of 1908 purports to repeal said section in toto, the only object declared by the title is “to repeal all general and special laws in conflict therewith” (i. e., with the act of 1888, as amended and re-enacted), and the text of the act cannot be held to be broader than its title without bringing it in conflict with article 29 of the Constitution of 1879.
It may he remarked in conclusion upon this point that, construing the act of 1888 with reference to section 12 of the act of 1877, this court has held that, the one statute being general and the other special, they were not repugnant, and that .the later did not repeal the earlier. Hayes v. Morgan’s La. & Tex. R. R. & S. S. Co., 117 La. 593, 42 South. 150. Whether the act of
“Sec. 12. The domicile of the company shall be the city of New Orleans and citation shall be served, there, on the president of the company, or in his absence, on the secretary, and the company shall be sued only at its domicile, except in .actions of trespass, when the company may be sued in the parish in which the trespass has been committed.”
The language used is certainly very broad, and, taken by itself, is no doubt susceptible of the interpretation that relator’s counsel now place on it, to wit, that relator can be made a party defendant in no suit or proceeding, other than an action for trespass, save in a court of its domicile. There were, however, at the time the act of 1877 was passed, and there are now, cases in which by necessity and by law the jurisdiction of
The Code of Practice provides that a provisional seizure may be ordered (among other cases) when a lessor prays for the seizure of property upon the premises leased by him; and when a person employed on board of a ship or water craft, navigating in this state, or a person who has furnished material or made repairs to such craft, prays that it may be seized and detained until he is paid, would it be reasonable to suppose that the General Assembly intended to deny that right by the grant to relator, contained, as it is, in an act which has no repealing clause?
Under the Constitution of 1S68, which was in force when' the act of 1877 was passed, the payment of taxes could be, and in many cases could only be, enforced by suit, and then, as now, parishes and municipalities had the right to proceed in the courts for the enforcement of their ordinances; but, if the view of the relator be correct, the parish of Sabine or the city of New Iberia could haAre proceeded against relator, for the purposes mentioned, only in the city of New Orleans.
The Civil Code declares that:
“The first law of society being that the general interest shall be preferred to that of the individual, every individual who possesses, under the protection of the laws, any particular prop-’ erty, is tacitly subjected to the obligation of yielding it to the community, wherever it becomes necessary for general use.”
And that:
“If the owner of a thing, necessary for the general use, refuses to yield it, or demands an exorbitant price, he may be divested of the property by the authority of law,” a fair price being paid.
It further declares that, when certain public service corporations (and both relator and plaintiff are among those named) cannot agree with the owner of land required by them, they may apply to the judge of the court where the land is situated, who is required to order the summoning of a jury of freeholders, “residents of the parish where the land lies,” who are to determine the value of the land and the damage which may be sustained by the owner by reason of its expropriation. If the owner be present, he is to be cited. If he be absent or unknown a curator ad hoc is to be áppointed to represent him and “all judgments directing the expropriation of lands to corporations shall be valid against all persons, including married women, minors or persons interdicted.” C. C. art. 2626 et seq.
Under our law, therefore, as in most of the other states, the proceeding to condemn or expropriate property in the public interest is essentially a proceeding in rem, and not a suit in the ordinary sense.
“Under most of the statutes,” says a late authority, “such proceedings are essentially proceedings in rem, although the methods by which the power of eminent domain is to be exercised*503 vary according to circumstances, and according to the provisions of the different state Legislatures. The proceeding is not according to the course of the common law, but is a special proceeding,” etc. 15 Cyc. p. 805 et seq.; 22 Cyc. p. 1102, note 61.
Our law upon the subject and the reason upon which it is founded render it necessary that a proceeding for the expropriation of property should be conducted at the place where the property which is to be valued and condemned is situated, and it is incredible that the General Assembly, whilst conferring upon relator the power to expropriate the property of others by a proceeding so conducted, should have intended to deny to the state, and to corporations authorized by the state, the right, in the same manner, or at all, to expropriate the property of the relator. The ease of Gossin v. Williams, 36 La. Ann. 186 (decided prior to the passage of Act No. 93 of 1888), presented the question whether defendant could be sued elsewhere than at its domicile for damages for freight.
The case of Balt. & O. Tel. Co. v. Morgan’s L. & T. R. S. S. Co., 37 La. Ann. 883, presented the question whether, in view of the fact that plaintiff was seeking to expropriate a right of way for a telegraph line from New Orleans to Lafayette the proceeding was properly brought in New Orleans. The case of St. Julien v. Morgan’s L. & T. R. S. S. Co., 39 La. Ann. 1064, 3 South. 2S0, presented the question whether an action for damages not arising from trespass could be brought against defendant in a parish other than that of its domicile. The case of Payne v. Morgan’s L. & T. R. S. S. Co., 43 La. Ann. 981, 10 South. 10, presented the same question. In each of the cases mentioned, and in others besides, this court has referred to section 12 of relator’s charter, but what was said in regard to it was so said in connection' with and for the purposes of the question to be decided, and cannot, with any propriety, be wrenched away from its surroundings, and applied in this case to the decision of a totally different question.
Returning to that question and confining ourselves to it, our conclusion is that section 12 of Act No. 37 of 1877, in providing that defendant “shall be sued only at its domicile, except in actions of trespass,” was not intended to prohibit the institution of proceedings which are not ordinary suits, but are, essentially, proceedings in rem, in parishes other than that of defendant’s domicile, for the expropriation of property there situated, and of which defendant may be the owner.
For the reasons thus assigned, it .is ordered, adjudged, and decreed that the order heretofore made be set aside, that relator’s demands be rejected, and that this proceeding be dismissed, at its cost.