*1 254 So.2d JEFFERSON OF
PARISH DEPARTMENT OF
LOUISIANA
CORRECTIONS.
No. 51299. 7, 1971.
June Rehearing Nov.
On *2 100g Act 452 of and Sec. 834 of Act. unconstitutional. Chapter
Act 192 of amended of.’ Statutes, Title 15 of Louisiana Revised adding part thereto be: new Gremillion, Atty. Gen., Melvin F.P. Jack designated as Part III-A thereof to con- Dobson, Bellar, Attys. L. Asst. L. Frank through 15:839, tain 15:821 relative- R.S. Gen., defendant-appellant. for prisons and correctional institutions. provided merger the Louisiana Price, Atty., Roy S. L. James Board of Institutions and the Arceneaux, Atty., Asst. Parish Sam J. of Institutions consolidated the func- Counsel, plaintiff-ap- Chauppette, Sp. Depart- tions thereof into the Louisiana pellee. (hereinafter referred Corrections Many, Many, Hartman, Hepburn Lo- M. Department). 15:- as the LSA-R.S. Orleans, Dodd, Dwyer, Coco & part enacted to read in as follows: Wall, Hirsch, Barker, L. Avant & John de- under “Sec. 834. Lands control *3 Avant, Rouge, amicus curiae. Baton for lease, way, purchase partment; rights of “ * * * have director shall also HAMLIN, Justice: authority, approval the the with judgment of appeals from a Defendant Governor, and the of Board Corrections of of the Parish the trial court favor proper use of buy lands for to needed Sowers,1 against Louis M. and jurisdiction of any institution under ' Department of the Louisiana Director of and department; also sell and to enjoined, Corrections, re- forever real agency any to other state transfer and strained, prohibited his suc- and Sowers and under property belonging the state to purchasing the site in office cessors from department.” jurisdiction of of as “House and facilities known provides part: of Act 246 1968 containing approxi- Shepherd,” The Good Chapter of Title 15 of “To amend 7 mately on the River land acres of thirty by of 1950 Revised Road, Louisiana Statutes Jefferson, and declared of Part, be des- adding thereto new to of of of 353 sub-section 4 Sec. 902 defendant; (b) and, by petition as the Cori-ections amended 1. Plaintiff reiterated inserting place stead, by petition Louis original and allegations and of Sowers, De- of Louisiana the M. Director its en it desired to amend stated Corrections, by: deleting partment (a) defendant. original of all refer tire Department of Louisiana ence to part: provides and ignated as Part IV-A thereof to Act 353 of 1970 15:894, through contain R.S. 15:891 Chapter Title 15 of “To amend prisons relative and in- to correctional by of 1950 Louisiana Revised Statutes stitutions; the Louisiana to authorize Part to be des- adding thereto new Department to cre- of Institutions State to ignated IV-B thereof as Part juvenile correction- ate establish a 15:907, and through tain 15:901 R.S. institution, correctional al a women’s through repeal to Sections facility, institu- adult correctional through through 978 and 1011 diagnostic and treatment tion and a Title Revised Stat- the Louisiana center, provide respect to to juvenile in- utes all relative to personnel said center. for operated by the Louisiana stitutions Corrections; Department to estab- Legislature “Be enacted diagnostic juvenile reception lish a Louisiana: center; provide commitment to Chapter 7 Part IV-A of “Section 1. juveniles department said Stat- Title of the Louisiana Revised corrections; require the examination 1950, comprising utes of R.S. 15:891 juvenile re- juveniles all such at 15:894, hereby through enacted to R.S. diagnostic center; pro- ception and read as follows: assignment vide the said department of corrections ADDITIONAL “PART IV-A. juvenile insti- offenders several INSTITUTIONS department operated tutions the said institu- 891. correctional “§ provide corrections; Juvenile tion respect thereto. Louisiana State Legislature “Be it enacted hereby authorized cre-
Institutions is Louisiana: quent greater ate, under seventeen been by law, establish, or or by New Orleans shall corectional neglected juvenile operate years legally adjudged delin- juveniles, as defined institution court area for age of Louisiana maintain a who have children of Title 15 of utes follows: “Section “§ [*] “ of 1950 902. [*] [*] Juvenile the Louisiana Revised Stat- Part hereby institutions IV-B enacted to read Chapter *4 as (cid:127) shall department of corrections sitting ju- as by district courts the Lou- establish, operate maintain venile courts.” Training juveniles, isiana Institute for by tional institution pro- authorized the' following branches: visions Act No. 246 of 1968. «* [*] [*] “Section 2. The Louisiana Depart- “(4) Institute, Training the Louisiana ment of Corrections is authorized to ex- greater be located pend New Orleans out of funds available to it such (Emphasis area.” ours.) may as sums be necessary for the im- plementation of this Act. Act 452 of provides: “Section 3. All parts laws or of laws “To authorize Louisiana hereby conflict herewith are repealed. purchase Corrections to fa- the site and cilities known as House the Good “Section The necessity 4. of the im containing Shepherd, approximately passage mediate of this Act been having thirty right acres land descend- on Legis certified the Governor to the ing Mississippi session, bank of River lo- lature while in in accordance with road, ‘Bridge cated on the river near Section 27 of Article III of the Constitu City’ Jefferson, Louisiana, the Parish of State tion of this Act shall become Louisiana; said and to establish on effective immediately approval. by site the institution correctional (Emphasis Governor.2” ours.) provisions authorised No. By legislation virtue supra, of the the De- provide and otherwise to partment negotiations commenced for the respect thereto. purchase of the property herein involved— Legislature “Be enacted Shepherd,” of The “House Good located Louisiana: Parish but embraced in the Greater stipulated Area. Orleans It is Depart- The “Section 1. Louisiana that the Governor of the State of Louisiana hereby Corrections is authorized signified his negotiations consent purchase known site and facilities property. Shepherd, as the House Good n taining approximately thirty Ford, acres of land Hugh Planning Mr. Director of the on descending bank of the Department Planning, Parish of Jef- River, Mississippi ferson, located on the river testified that “House of City’ ‘Bridge near road Shepherd” originally area was zonéd Jefferson, Louisiana; State es- Family “Single Residential” when tablish said site the correc- Comprehensive first Zoning was Ordinance Governor; ; The bill was submitted vided the Constitution the bill became pro- action taken approval within the time no law without of the Governor.'" *5 1Q74 in 1958. In thorized Act No. 246 of Parish Council 1968.” It adopted also prayed parts reclassified property legislation was certain of 1959-or allowing supra of purpose be specific declared unconstitutional. “R-3” for be could not which private institution .a The Shepherd Sisters the Good inter- “R-l”— zoned site if it were located on the proceedings support vened located be single residential —to family position of the defendant who asked that reclassified in The area. plaintiff’s rejected. be demands Intervenor single family “R-2,” permits which averred agreed that it prop- had to sell its structures; church- structures; two-family erty to through the State of Louisiana exclusively es; schools; buildings used Department of Corrections on certain terms Offices, except local, State, and Federal and conditions. Present-
penal institutions. and correctional permission court, With the of the trial ly, which the non-conforming use under counsel for the defendant prefatory recalled n “House The Good operates Shepherd” and peremptory exceptions previously filed. Compre- permitted by Section XIX of Counsel go consented that the issues trial Zoning lrensive Ordinance.3 on both the Preliminary Injunc- Rule for tion and on Application the Merits of the zoning ordi- Alleging violations for a Injunction. Permanent and numerous nances of Jefferson respect to the constitutional violations with Initially, we find that court trial alleged ju- purpose (establishment of a the authority try had this matter. We venile for which institution) correctional agree that, with its statement “There is Department “House of would use the no in the Court’s mind that Shepherd” purchased, The if the Par- Good duty Court has a and a invoke in- present ish of in- instituted the junctive relief in dealing cases junction prayed proceedings constitutionality The State Statutes. enjoined “(1) that the be from this, Court cites as case Purchasing the known as site and facilities Liquidation State Carso vs. Board Shepherd’ Debt, The 358; ‘House of 368, 17 and the So.2d Louisiana; Jefferson, Parish of city State Natch- Court also the case cites Louisiana, Establishing ju- and (2) on said site the Cir- itoches v. Third State of venile correctional institution that was au- [La.App.], cuit 1969 So.2d 534.” “Any part: Ordinance, may 3. Section XIX recites in law- ment to bo continued structure, permit building building although building, ful is- use such structure existing prior regulations! sued or use on or to the does not to the conform adoption Ordinance Nó. or whon- the district in which it is located.’’ changed by .ever a shall amend- district .. 1076'. judgment the trial appears its reasons court New Orleans Area. This part concerned the effect being stated that it was of ACT No. Section 3 of said 15:891, forth Act No. as set Act. Yet in LSA-R.S. the same Act under Section 1968, supra. question, “was ACT Legislature- No. 353 the *6 immediately after this 891 the law states : Department Section ‘The of Corrections establish, and im- passage operate of Act 452 of 1970 shall and maintain the- mediately passage of Act No. 353 Training after Louisiana Institutes for Ju- posed answered as following 1970?” was was veniles at the branches in Sec- 4, follows: tion Training Louisiana Institute to be- located in the Greater New Orleans quite “It clear from ACT No. 353 is 902, Area.’ Yet Section sub-section 4 of 246 of that Section ACT No. Act No. provided 353 is not for in the- repealed creation relative to the Title to Accordingly, said Act. the Court a in Correctional Institution Juvenile feels that this is broader than the Title- Orleans Area. Greater New hereby declares Section -902 ACT 1970, 4, looking “In at the No. 353 Title of ACT No. sub-section is HERE- dealing provision 353 and in for BY BE DECLARED TO UNCONSTI- offenders, assignment juvenile in TUTIONAL.” ACT 353 of the TITLE indicated found, The trial court also as stated su- juvenile that these were to be offenders pra, Act 452 of 1970 unconstitutional and assigned to the several institu- stated: Depart- tions OPERATED said opinion “It is the that Act Court’s this ment of Corrections. It did not seem authority refers to for the creation of they in the Title indicate that were re- a Correctional Institution as Juvenile ferring anything but Train- Juvenile today ACT No. 246 of As of ing were Institutes —institutes which al- law, when ACT No. 452 of 1970 became being. ready says ‘OPERATED.’ provides then ACT No. 246 of 1968which That to the Court’s mind did not refer of a Cor- CREATION Juvenile any institutions to be CREATED. longer being. rectional no Institution is Therefore, proposi- authority “Then we faced with which the Pre- [the] tion that in this same ACT No. 353 of amble of as its this Act uses legislative purchase there intention establishment or the this repeal 246 to longer Section 89.1 ACT No. au- no exists. Since this exists, thority abolish the longer CREATION of no and since the Juvenile Correctional Institution in the Greater Court found has that Section sub- provisions section 4 of No. 353 is of Act No. 246 of said act ACT UNCON- STITUTIONAL, being repealed part by the Court further Act of 1970. cludes that ACT No. 452 of 1970 UN- repealed only Act 353 part of 1970 CONSTITUTIONAL.” :891, of Act 246 su- LSA-R.S. 15 assigns pra, appellant creation, provided this Court four er- for the es- judgment tablishment, operation, rors to the of the trial court. We and maintenance of find them be with merit and shall dis- correctional institution in the n poseof them infra. Amicus briefs in curiae Greater New area Orleans for children years behalf were filed under age. defendant’s Lou- seventeen provided Department isiana and the New Or- AFL-CIO Greater shall Churches, establish, operate, the is- Federation of leans and maintain the Louisi- presented Training therein shall also be dis- ana sues Institute to be located Area, Greater cussed infra. New Orleans 15:- LSA-R.S. 902. Act 452 of 1970—it became law at submits Herein the Parish of Jefferson same time as Act 353 1970—authorized judg- should affirm Court the “House of trial and main- rendered court Shepherd” the es- The Good facilities for injunction permanent granted tain the *7 tablishment on said site of a cor- Department. against the force No. rectional institution authorized Act 1 SPECIFICATION OF ERROR NO. 246 of 1968. constitutionality asserting of the holding trial court erred that Act involved, perti- legislation defendant
452 herein of 1970 is unconstitutional the as- on nently argues: grounds serted for
operation
juvenile training
of the
institute
general
“Act 353 was a
revision of
area,
as au-
Greater New Orleans
statutory general
dealing
law
1968,
thorized
of Act 246
R.S. 15:891
a
the creation of
juvenile institutions and
repealed by
Act of 1970.”
Training Institute.4
state-wide Louisiana
under this
in-
inappropriate
The issue to be determined
have been
would
Act 452
special provisions
of Error is whether
Specification
corporate therein the
property
dealing
of 1970 is to be rendered unconstitutional
with the
specific
it made reference to the
this branch
because
and the
location of
Training
institution authorized
Institute
correctional
of the Louisiana
providing
provided
4
for the Louis
be located
In addition to
also
for branches to
Parish,
Rapides Parish,
Training
to be located
iana
Institute
Ouachita
Area,
Rouge
Parish.
the Greater New Orleans
East Baton
purchased
harmony
to be
from the
the whole.
The intent as de
Shepherd,
sepa-
prevail
so
duced
Order
Good
from
whole will
over that
particular
part
separately;
rate Act was decided
of a
considered
—-Act
legislature could meaning
given,
possible,
In Act 452 the
if
to'
1970.
should be
pur-
every section,
refer to Act 353
1970 for
not
each and
and the construc
the institu-
pose making
placed
it clear that
portion
tion
on one
not be
should
provided
another;
was one and
so,
tion
for in Act 452
such as to obliterate
in deter
they
pre-
word,
had
mining
the same as that which
meaning
phrase
of a
viously
clause,
provided for in Act 246 of 1968
the entire statute is to be consid
greater
Muffoletto,
569,
area be-
Fruge
Orleans
ered.”
v.
242 La.
Act;
yet
336,
cause Act
so
353 was not
(1962).
So.2d
Courts should
solely
they referred to Act 246 of 1968
give
construe statutes
as
so
them
purpose
making
they
for the
it clear that
meaning
Legislature;
intended
the institution to be established on the
rigidly
should
construe them so
as
property known as the
give
preposterous
meanings.
House
them
or odd
Shepherd
Board,
was one and the same as Hayes
Parish
Orleans
School
authorized
677,
681;
institution which had been
So.2d
Webb v.
in Act 246
the authorization
Rouge,
Council of Parish of East Baton
was transferred into Act 353 of
217 La.
718. “It is well estab
So.2d
pass
1970. If Act 353 had failed
lished that
in the construction of statutes
session, Act 452
still have
avoided,
would
absurd results should
and when
badly
complete and this
produce
been whole and
literal
would
such
construction
result,
have been
way
could still
give
needed institution
the letter of the law must
brought
spirit
into existence.”
to its
and the statute should be con
produce
strued
as
so
a reasonable re
statute,
primary
construing a
“In
sult.” Bradford v. Louisiana Public Serv
and,
object
possible, give
if
is to ascertain
Commission,
ice
179 So.
purpose of the
effect
the intention and
See,
18; Frey
LSA-C.C. Art.
v. Cen
legislature
expressed
in the statute.
tral
Company, La.App.,
Mutual Insurance
meaning
Since the
determined
to be
der this
of Error —those
thereof,
sub-section 4
was unconstitutional
repealed and
effect
those
force and
violative of La.Const. Art.
Sec.
pari
—are all in
materia and must be con-
a title
Act 353 of
did not have
strued with a reference
each other.
object
indicative of its
as related to R.S.
pari
required
“Laws
materia are
to be
15:902.”
Gilfoil,
together.
construed
Abercrombie v.
La.App.,
Legislature
The constitutional narrowly (1939), broadly wherein the discussed Court rather than strued Ill, 16, effectuating, frustrating, La.Const. Art. a view of not of Sec. complish declaring general object Act 452 After unconstitutional of the act. Such did 4 of Section 902 authorization not be 1970 and sub-section have to n 1970, permit- mentioned the trial court in the title of the act. Act 353 of The au- quoted plaintiff, Specifica- thorities cited under the consent of defend- ted 2, .ant, petition supra, apposite tion Error to include No. to amend Specification to this of Error. of action insofar We con- -additional cause as Sec- 15:894, clude that Section LSA-R.S. tion of Act No. 192 1968 was Act 192 of act constitutional and alleged cerned. Plaintiff that III, violative of Article La. Section was unconstitutional on the basis Const, of 1921. (cid:127)preamble act does not mention lands the Direc- SPECIFICATION OF ERROR NO. 4 Department. tor of amendment, trial trial court erred failing pass After the above n courtstated: of law whether ordinances of the Parish of “Well, it think order I would Jefferson, as authorized Art. Const. feeling that it indicates Court 29(a) apply Sec. governmental in- of ACT Court Section 834 stitutions of the State of Louisiana.” provides insofar as No. 192 for the Director rulings, Because supra, of its and its *11 Corrections to lands on behalf findings unconstitutionality of legis- of the Department approval
of the
with the
of
involved,
lation herein
it was not incum-
Governor,
is uncon-
Board and
upon
bent
pass
the trial
upon
court to
hereby
stitutional
Court
declares
issue of zoning. However, plaintiff al-
the same
to UNCONSTITUTIONAL
leged in Article 21
petition
of its
that
provided
for it is not
for in the TITLE Act No. 452 of 1970 is unconstitutional
in
of ACT No. 192 of 1968.”
that
“permits
the act
De-
Louisiana
Supra,
partment
we discussed Act 192 of 1968.
of
change
Corrections to
a
effect
detailed, broad,
is a
act
in
lengthy
property,
use
power
of
is exclu-
prisons
relative to
Parish,
correctional
insti-
sive to
without
first
Jefferson
tutions.
find tha.
the authorizing
applying
We
change
for
a
classification
Department,
the Director
through
Planning
LSA-
Director of Jeffer-
15:834,
buy
R.S.
lands needed for the
son Parish
giving
and without
Jefferson
proper
any
use of
institution under the
opportunity
public
to have a
jurisdiction
of the
grant
a
hearing
was
before the
Parish Coun-
Jefferson
(cid:127)of power
cil,
to him which he
ac-
needed
all in
Comprehensive
of the
violation
Parish,
prohibit
Zoning
pláces
establishment of
Ordinances
equal
thereby depriving plaintiff
business
residential districts.”
depriving
protection of the law and further
The foregoing section is a constitutional
due
property right without
plaintiff of a
grant
part
police
power
of the
of the
In other articles
process of law.”
State
noted,
of Louisiana.
It is to be
how-
allegations with
plaintiff made
petition,
ever,
grant- places
no restriction
“House of
respect
operations of the
to the
legislative power
of the State
alleged that
Shepherd.” It also
The Good
Legislature,
any
nor
relinquish
does
by Act
use of the
authorized
power
Legislature
of the State
to establish
definitely
from
different
452-
1970 was
governmental institutions
territory
zoned
presently
by the Sisters
exercised
by the Parish of Jefferson.
denied
Shepherd. Defendant
The Good
“In this connection, it is well to observe
plaintiff’s
allegations of
Article
that it is fundamental that
Legislature
petition and
in Article
averred
supreme
except
when restricted
that,
Shep-
answer
“the House of
that,
Constitution and
Congress,
unlike
operating
correctional
herd has
been
which can
nothing
do
the Federal
years
many
preceding
alleged
home-
authorize,
Constitution
may
does not
do
zoning
receiving
ordinance
commitments
everything that
the State Constitution
juveniles
various courts within the
from
* * *
prohibit.
does not
Thus,
area.”
Greater
Orleans
view of this
principle,
basic
the fact that
zoning
We conclude that the matter of
the Constitution, by special provision
at
Testimony
in the trial
issue
court.
granted to municipalities
power
respect
thereto,
was adduced with
zone their territory,
regarded
cannot be
exhibits^-zoning
offered
ordinances —were
as a tacit
restriction
on the
limitation
in evidence. Under the
of Ar
legislative power
delegate
such author-
Procedure,
ticle
the Code of Civil
ity
public
to other
Nor
subdivisions.
did
respect
shall
we.
render
decision
n
Legislature
fact that the
fit to
saw
Specification of Error
4.No.
Cf. Board
for approval
submit
oth-
electorate
Shushan,
of Com’rs of
Dist.
Orleans Levee
respect
er constitutional amendments with
to zone
to other
not
its
to create
included
districts,
commercial and
constitutional
amendments.”
industrial
Drilling
Company,
question of the interest
standing
Plebst v. Barnwell
of the
(1963).
Parish of
to
148 So.2d
question the constitu-
Jefferson
See,
tionality
on Gov-
Louisiana Com’n
of the
authorizing
Kane v.
statute
the state
Ethics,
855, 199
agency
purchase
So.2d
to
ernmental
the “House of the
(1967).
Shepherd” in
Parish and to
establish
correctional facilities on
language
non-restrictive
Because of
the site.
XIV,
29 of Article
employed in Section
issue,
zoning
As to the
not feel it
doI
su-
findings,
our
supra, and because
appropriate for
hold that a
this court to
involved
legislation herein
pra,
statute,
facto,
ipso
displaces
local
state
constitutional,
the State
we conclude that
that,
may
zoning ordinance.
well be
Legislature
to the
is not subordinated
Jef-
by
specific in-
statute
virtue of a
respect
ferson Parish Authorities
may
per-
tent,
zoning
be
aside
local
set
zoning.
not
Constitution
The State
does
operation
mit
of a state institution
prohibit
institu-
the location of correctional
doubt, however, that, here, the
vicinity.
I
Leg-
tions on the site selected
the State
legislature specifically
set aside
intended
Therefore,
Legislature
islature.
locality, where it
zoning
ordinances
supreme in its selection.8
merely
authorized
of the institu-
assigned,
For the
judgment
reasons
However,
operation
question.
tion in
of the trial
is reversed
court
and set aside.
for continued
these facilities
the state
Plaintiff’s suit is dismissed at its costs.
permitted
non-conforming
similar
use as
prohibited
the predecessor in title
not
DIXON, J., concurs in the result.
zoning
zoning
The
local
ordinance.
basis,
issues
be
should
decided on such
SUMMERS, J., dissents.
grounds
broader
relied
majority.
SANDERS, J.,
part.
takes no
The
has
interest or
sufficient
TATE,
(concurring).
Justice
standing
prevent
sue
a violation
33:4728;
zoning ordinance.
La.R.S.
The
opin-
writer
in the majority
concurs
Rathkopf,
Planning,
Law
Zoning
however,
ion. He feels,
opinion
that such
(3d
Section
1971).
66-1
ed.
grounds
broadly
too
decision
may
issue. He
it
sponte
further
feels
was raised sua
appropriate
fully
to discuss
more
whether the
also had sufficient “real
finding,
necessary
8. Because
our
is not
discuss
use to which
involved
put.
is to be
*13
1093
1094
interest”,
681,
La.
concerning
and actual
CCP Art.
of action
the local
ordi
;
bring
enjoin
purchase
action to
on
this
nance
(b)
question
that
statute in
(Act
unconstitutionality
grounds
452 of 1970) specifically affected Jefferson
enabling
alone,
act.
dif-
This latter is a more
Parish
in that it
a state
authorized
agency
purchase
ficult issue.
present juvenile
de
tention facilities in
Parish and
Jefferson
been
suffi-
taxpayer
A
has
to have
held
to establish
said
“on
site”
cor
to au-
cient interest
action as
institution;
that,
rectional
(c)
by such hold
bringing
enjoin payment
thorize his
suit to
ing,
permit speedy
we
review of the sub
allegedly
funds under
unconstitutional
stantial contentions of an
jus
active and
Liquidation,
v. Board
205
statute. Carso
controversy,
ticiable
avoiding
thus
a multi
368,
gov-
(1944).
La.
So.2d 358
A local
17
plicity
litigation
actions and further
entity
bring
enough
ernment
has
interest to
parties
artificial
raising the same conten
enjoin
suit
en-
as unconstitutional
tions we can
here.
decide
See:
Mc
17
changing
forcement of a statute
its form
Quillin, Municipal Corporations, Section
Bailey,
government. City
141
of Gretna v.
49.57 (3d
1968);
Ed.
64
Municipal
C.J.S.
625,
rel
So. 491.
ex
75
See also State
Corporations
2190;
2186b(2)
Jaffe,
and
§§
Montgomery,
Tulane
Ass’n
Homestead
Standing
Actions,
in Public
74 Harv.L.Rev.
777,
(1936),
171
28
and Anno-
So.
(1961)
Standing
1265
in Private Ac
Here,
tation
A.L.R.
(1938).
116
1037
how-
tions,
255,
75 Harv.L.Rev.
(1961).
ever,
parish bringing
we have a
on be-
suit
taxpayers,
half
(but
of its
Art.
XIII
reasons,
respectfully
For these
I
concur.
taxpayers themselves),
as un-
enjoin
constitutional
enforcement of a statute
BARHAM,
(dissenting).
Justice
parish
(but
that affects its citizens
not the
respectfully suggest
majority,
I
that the
government,
zoning).
aside from
public
requires
concern
interest
circumstances,
present
Under all of
immediacy
this court
to act with some
my opinion,
plaintiff parish
does
us,
upon the matter before
has committed
have sufficient “real and actual interest”
grave error
will haunt the court and
which
demand,
assert its
of its citi-
behalf
perhaps
State,
great
do
harm to the
its sub-
zens,
the statute in
be en-
divisions,
litiga-
citizens in
future
joined
affecting
unconstitutionally
tion.
people
parish.
determination,
take
attempt by
I
consideration:
This suit is an
into
Parish
admittedly
(a)
Depart-
does
have
to block
Louisiana
Jefferson
bring
sufficient interest to
the related cause ment of
site
Correction’s
et
Georgetown
v. Alexandria Canal Co.
House of
facilities
1012; City
al.,
L.Ed.
as a
12 Peters
for use
Shepherd
Co.,
D. R.
New Haven v. New Haven &
court
The trial
training institution.
256; City
252, 25
L.R.A.
au- Conn.
A.
held that
No.
Contracting
Wright
Louis v.
H.
of St.
G.
and use
department’s purchase
thorized
Co.,
202 Mo.
citi
S.W. 6. When
facilities, was unconstitu-
site
private rights,
zens have distinct
an ad
tional,
un-
held two other statutes
and also
judication
proceeding
in a
where the citi
respects.
in certain
constitutional
*14
parties,
individually
zens are not
or as
held
court has
this
majority of
The
class,
members of a
pri
is not a bar to the
standing
had
the Parish
Jefferson
action,
vate citizens’
adjudication
and the
constitutionality of
challenge
to
court
is
judicata
not res
as
them.
to
Griffith v.
statutes,
reversed
has
and
all three
Vicksburg
Co.,
371,
Waterworks
88 Miss.
declaring all
trial court
holding
1011,
So.
1130;
8 Ann. Cas.
v.
James
respectfully
I
constitutional.
three statutes
City of Louisville (Ky.Ct.App.), 40 S.W.
has
the Parish
submit
Jefferson
912; Board of
Gwin,
Com’rs v.
136 Ind.
challenge the
action to
no
562,
237;
36 N.E.
Gwin,
Price v.
144 Ind.
do
stitutionality
acts which
legislative
105, 43
5;
N.E.
Smith,
Rork v.
55 Wis.
affect it.
not
67,
later, non-conforming mitted the residents use. It is for this have not had home reason that the proposed detention Parish of should Jefferson majority has not be relief The denied under its day allegation court. their that its zoning has fomented laws disposed litigation, but would be of the The con- violated. stitutionality litigation. legislative of the future is not acts reached question. resolution of this majority’s Finally, reject entirely the I Error Specification of No. discussion Moreover, majority’s answer to the patently a .as erroneous statement issue, consideration of this Legis- last of Civil Pro- The citation law. of Code lature cannot with impunity abandon and authority for the 2164 as cedure Article zoning valid violate The ordinances. courts matter in this is of this court judgment required may pronounce be in certain disregard of our Constitution total legislative cases that the or the executive misunderstanding complete reflects a branch of government state responsible is purpose that article was limited for at for may law nuisances. The courts be designed. required to find that certain violative acts zoning regulations customary or even use reached the
This court should never have neighborhood of a damaging or a constitute constitutionality in the case before issue taking property just compensa- without only justiciable question The between us. However, questions tion. those here the Louisiana Jefferson present, but neither is the of the Department of whether Corrections “supremacy” Legislature. proposed House facility Shepherd a respectfully I dissent. zoning ordinance. parish’s violation question may quickly That determined ON REHEARING Although upon the facts case. SUMMERS, Justice. parishi zoning established ordinance had prop- special of use limitations Plaintiff is the facility, erty surrounding proposed brings enjoin this action to the Louisi- existing operated pur- ana had from facility Corrections ordi- chasing correction home certain its borders within before effect, therefore a establishing nance into and was on that came site branch juve- permitted non-conforming Training use within the Louisiana Institute public granted injunc- trial change private judge niles. The from zone. *16 for, pur- prayed declaring the ownership operation and same tion unconstitutional per- legislation pose facility authorizing purchase the within the the of maintains the HQ2 operation parish of contends that and The the and establishment site Jefferson insofar constitution- Act of is unconstitutional training of institute. The the acts, authorizing of direc" quoted and 452 the the ality of these Acts 353 1970 as clause theory us on this buy of before tor to land is concerned. and Act 192 is alternatively, addition, if the act appeal. the title of position and that In of this is constitutional, the the the act authorizes assailed acts gives arc no indication de- parish contesting the the land for the director to operate act Department hence, respect, to locate partment; designated III, of the training institute in the loca- Section contravenes Article requiring alleging title-body that to so will violate the clause tion, Constitution, do title ordinance. indicative have every statute to department submits reply object. In its Act 192 title is indicative of the language for, referring to object after of its III, Acting authority under Article board, di- department, creation of the Constitution, Section authoriz- functions, rector, prescribing personnel and ing merger and of executive consolidation “ * * * states, duties, etc., the title and administrative duties are offices whose respect to lands under provide with character, legislature a similar en- * * department trol of the creating acted Act Louisi- Department ana of Corrections. The Lou- legislature are of the Where acts isiana Board of Institutions and the De- should, keeping attack, under courts partment merged were Institutions expressed, have often general policy we into consolidated the Louisiana legislative intent seek to effectuate A Corrections. Board of Corrections any in favor of constitution resolve doubt charged was established act with de- has liberal construction ality. To this end a termining department’s policies, and a applied title-body to the clause been Director of created as the Corrections was only where the variance constitution. It is department’s chief executive officer. palpable provisions the act is fixing of the director the act title, totally or where irreconcilable with set forth: director also have the shall express body two distinct both title and authority, approval Board legisla subjects, that the intention of the Governor, buy Corrections ture will be to be conflict with held any lands needed for proper use of insti- Department of State constitution. Ricks v. depart- jurisdiction tution under the Service, Civil So.2d 49 * * (1942). purpose not the of the title-
1104 body the require clause of constitution to is a Control broad denoting term the exer- that the title be an index to the contents cise rights ownership. of the All of this is, the the title authority therefore, cognizable act. It is sufficient properly object express general the act under general the language broad necessary things proper provide terms. All to the respect title: “to to lands carry general object in the out the stated under the department.” control of the scope to within deemed be the of Thus title object title the "indicates” the of the Best, act the Hide the requires. title. Southern Co. 176 as constitution Act 192 is, therefore, (1933). 682 1968 So. constitutional. principles these we find that Under 'Act expresses language title which Later, during the same session of the “provide” legislative intention to in the legislature, Act 246 of 1968was enacted and respect act “with to lands under the con approved July 20, 1968, days twelve after ' department” scope trol of the defines the Act 192. Among things, other Act -246 general quoted of the act in terms. The authorized create, “to es- language unmistakably that- the indicates tablish, operate and juvenile maintain a' department land under its control will have greater correctional institution in the provisions and that the act will make for Orleans area.” respect” department’s “with scope Thereafter, to this it Regular those lands. Within Session, in-its proper legislature to legislature authorize enacted Act pertaining buy prop juvenile institutions, director “to needed for the repealing lands at jurisdic any er use of institution under the same time provisions of Act 246 of Likewise, department.” authorizing tion of the it is juvenile the creation of a properly scope within the title correctional institution in the Greater New authorize, does, the act as the director Orleans Act Area. 353 of 1970also directed lease, grant rights way department across state- of corrections shall establish, jurisdiction operate owned lands under and maintain the Louisi- any also to Training juveniles, sell transfer other state ana Institute for * * * real property following of the State under (4) branches: agency jurisdiction department. Training These are Louisiana Institute be located at ordinary least greater common and acts New Orleans area.” This act expected of control to depart July such became on law 1970. Another bill having lands under enacted in its “control”. same became ef- session 1JQ6 day. reception on the This was 452 establishment of a fective same authorizing- department: center, diagnostic body and the act provides for its establishment and location * * * site facilities Rouge. in Baton The title of the act also Shep- known the House the Good assignment refers to department thirty herd, approximately containing offenders “to juve- the several descending acres of land on the operated nile institutions by the said de- Mississippi River, located bank of the partment.” slightest But there is not the City” “Bridge the river road near indication that act authorizes the estab- Louisiana; Jefferson, Parish of State of *18 operation lishment juvenile training or of juvenile and to establish on said site institutions, specific localities or other- correctional instihition authorised wise. contrary, To the important pro- this provisions (Em- Act No. 246 1968. of of vision of the act is any- concealed from added.) phasis one reading the reading title, title. A parish The that Act 353 contends of 1970 therefore, gives no indication that addition- also tor is the same rea- unconstitutional al training juveniles facilities for would be argument Act advanced in their sons and, established, importantly, more the title is, 192 of 1968 was unconstitutional —that gives no indication that facilities will be object the title is not indicative of the established in the Greater New Orleans* III, again of the act. Article Section is Area. upon support relied position. Spe- Notwithstanding the attitude this Court cifically, it is of asserted Act 353 1970 has taken in applying III, Article Section establish, department directs that the “shall 16, of the Constitution to of legis- acts operate and maintain the Louisiana Train- lature, to effectuate rather than defeat their juveniles, ing Institute for with the follow- validity, may the Court disregard' not * * * ing (4) The branches: Louisi- constitutional mandate and render this con- Institute, Training ana to be located in safeguard stitutional nugatory. To accede' the greater New Orleans area.” No indi- department’s contention here would appears act, cation in the title of the have that effect. contends, parish that a training institution greater will.be created established “in the Hence is necessary to conclude And, observed, New Orleans area.” that, it is insofar purports as this act to author language is there no in the main-( Act’s title indi- establishment, ize the operation or cating that the act authorizes the estab- tenance of the Louisiana Training Insti juvenile any lishment of training at facility juveniles tute in the Greater New Or any .locality. The Area, does refer to the title leans the act is unconstitutional. -This- HQg
1107 Thus, contends, however, impair parish the val- finding-, does when Act 452 purchase Act of 1970 authorized the idity act Section otherwise. Shreveport, Shepherd House of Conley City and the es- 1970; Good 353 juvenile In other tablishment of (1949). 43 223 correctional in- So.2d 216 . stitution on that generally site act “authorized respects the deals center, 1968,” provisions of Act diagnostic commit- 246 of estab- creation of juveniles lishment of the correctional assignment of re- institution ment and ferred in Act under 452 was con- department institutions 1970 upon title as the ditioned contained supervision, Insofar etc. Therefore, argument Act the act is 1968. provisions, indicates these goes, when the 246 authorization Act stitutional. repealed by Act the condition Act 1970 predicated which Act 452 of 1970was failed —it ceased to exist —and the man- depart- authorizes Act date Act could not be executed. site and facilities Shepherd as the House known then, question, whether estab- estab- Jefferson; and to lishment of the insti- correctional juvenile correctional site the lish on said tution referred to of 1970 Act 452 provisions by the institution authorized dependent upon continuing life Act No. 246 of 1968. author- of Act Section 891 Act 452 of authorizes Since *19 create, and department to establish ized the purchase of the the the House of Good juvenile institution
maintain a correctional Shepherd, the act contains because for chil- Area Orleans in the New Greater authorization, independent direction and years age ad- of seventeen dren under juvenile correctional to establish a mandate the delinquent neglected judged site, the on that hold that institution we courts. merely a is reference to Act 246 of 1968 legislative intention reference in aid of the were enacted Acts 452 1970 353 be estabished that such an institution became effective the session and in- same effect, Area. In the New Orleans day. to its other Greater addition In same by refer incorporation it amounts to repealed 891 of Section provisions, Act 353 pro “authorized ence. The clause 1968, authorizing the establish- Act 246 of does of 1968” not of Act 246 visions juvenile correctional institution of a contained the authorization require that Area. New Orleans Greater 1109 HI© Mississippi erty on the west bank in order act existence in that continue neces- designation is No further River. effective. for Act 452 of 1970 to ..be needed, definitely sary, if more were that the fact This result is indicated proposed train- establish the location enacted Acts 353 and of 1970 were 452 ing school. attributing an simultaneously. It would legislature to futility upon exercise the attack In our review of purchase that it authorized the acts, hold constitutionality of these we 452 Shepherd in Act House the Good properly au- 452 clude Act 1970 repealed simultaneously by Act 353 purchase department thorizes the Act 246 which Act to es- Shepherd and Flouse of the Good predicated. holding the reference facility thereon such training tablish a merely to Act 246 of is in aid of 246- of Act that referred to in Section type legislature’s intention to describe facility administered of 196S—the to be au- facility under the to be established according to the authorizations and limi- thority Act 452 of 1970 and of 1970. tations contained in Act 353 continuing life Act 246 of 1968is unnec- Moreover, authority delegated general essary give effect to Act 452 of department by Act to the materia, pari we read these acts as laws purchase the.de- would also authorize giving to each the that results from sense training or partment juvenile of sites for the whole. La. Civil Code art. From institutions, long as the correctional so inescapable legisla- it whole that the property acquired put to an author- were ture intended train- to establish a use, ized being the difference that Act 192 facility ing Greater Orleans contains legislative requiting" no mandate Area, and our decision effectuates purchase or designating the purpose. specific locations. unnecessary consider the Zoning
contention that the term “Greater New The trial Orleans Area” as used in Act 246 of court found these acts to he vague and in is too unconstitutional and did it consider necessary adjudicate indefinite. No reliance or need be zoning ques- can However, placed by department language tion. on this since we find the acts validly Acts. Act 452 of 1970 contains its authorize the independent, specific designation House of Shepherd Good the es- tablishment training location for the school of a correctional institution Shepherd juveniles, prop- necessary —the there for House becomes *20 H12 lili proposed that the stitution since its establishment in the contention resolve to operating vio- since that institution will time in violation of juvenile correctional parish ordinance, zoning prop- the zoning ordinance force and the late the Jef- erty involved enjoys in the violation the ferson Parish. legal enjoyed by property same status to the granted been has Power with uses nonconforming by made Article XIV o'f Section of Jefferson adoption zoning restrictions. territory; to “zone Of Constitution in and residential, commercial to create Since its establishment as a in- Catholic es districts, prohibit to dustrial and stitution Shep- Sisters the Good resi of business places tablishment herd, Shepherd the House of the has Good pursuant to Acting dential districts.” been conducted a school correctional Compre a parish enacted authority, junior girls high high for school Zoning in 1958 where hensive Ordinance pro- age groups. In addition to the school surrounding in1 the House the’ area treat- gram, counseling psychiatric “R-l”, a sin Shepherd was zoned' 'Good special provided. service is It is By this ;gle-family district. residential existing to accommo- type institution surrounding the 'classification the rehabilitate, date, give service to and which Shepherd House of Good problem girls, have been most of whom re a use subject it was located was adjudged delinquent neglected or chil- “except permitting institutions striction that a When the determine dren. Sisters hospi or mental institutions correctional respond program does to their student zoning classification Though tals.” rehabilitation, child is returned re for less providing changed to R-3 was cus- reassignment the court to other 1959, and requirements use strictive is owned Though the institution todians. re R-2, re-imposing other use then to organizations, religious Catholic in permitted strictions, each classification girls placed the court commitment “except institutions correctional stitutions regard religion. without hospitals.” mental House beginning, the House of Good parish asserts religious designed to accom- institu- Shepherd Shepherd is a built Good but, rigid operation girls, due to the more establishment date 100 tion and its subsequently they in violation of to which were standards have not been hand, shortage of and the required the other State adhere ordinances. On necessary Shep- funds, has Sisters been I-Iouse contends been, in- of students is, a correctional reduce number and has .herd *21 XH4 that the Although was unable to state part, by he Cath- supported, school is would be anticipated use by paid Charities; per diem is a olic Jeffer- “ * * * stated, future, changed in he girl sent the for each and Orleans son the need for a school in the the from Greater received there; are contributions desperate Area is that I cannot organization Orleans so fund-raising Fund, a United causes; change visualize that there ever be a would and other charitable supporting by the further of the school.” He was provided are and, funds since opinion that the and Federal funds State State. allocated to the establishment of the school Sowers, Direc- by Louis M. As related required it to be used for a train- Corrections, if the tor of ing only. school proper- the acquire department should the by the occupied ty, now premises the support These facts a conclusion be Shepherd will the House of Good Shepherd that the House the has Good year boys the by populated operated since aas correctional insti by been determined age group have who girls junior high high tution for subjects commit- proper a court to be age groups. school also find that the We account of training to a school on proposed by use department the will con delinquence other reasons. or Students form with this use. This use has been prior assigned the would be on basis contrary pro to the terms of the ordinance Recep- diagnosis department’s made at the hibiting correctional institutions in that Rouge. Diagnostic in Baton tion and Clinic And, zone. since has con this violation junior be conducted high school would A years, prop tinued for more than the two primary emphasis by department the erty, buildings appurtenances its have type training than vo- academic rather acquired nonconforming a La. R.S. use. cational. may brought Thus no action 9:5625. parish require differ- enforcement of testified was little Sowers there zoning against restriction conducting girls the House in the manner of ence school, Shepherd Department of Cor except in voca- Good or the boys training property and acquire rections should it training The basic tional courses offered. non essentially keeping continue its with the use offerings are academic conforming the House use established Having same. visited House supported Shepherd. opinion We Shepherd, was of Good he authority by the conclusions operated in much the in these being the school was of' the Revised way department operates Title same Section Statutes. training schools. H1Q unnecessary standing for the court to challenge result makes
This
consti-
may,
tutionality
of those
to decide
State
whether
statutes.
Court
depart-
of its
through
of one
the action
Any questioning
ments,
enact-
ordinance
violate
parish to
constitutionality
contest
under
ed
these statutes must be
based
rule
29, of
XIV,
Article
Section
announced in Article 681 of the
Code
Constitution.
Civil
that "Except
Procedure
as otherwise
provided by law, an action
brought
can be
Action
Right of
only by
person
having a real and actual
adjudicated
have considered
We
interest which he
asserts.” The
plead-
by the
presented
of the issues
each
may
be raised
mo-
Court on
own
*22
have
briefs,
parties
all
because
ings
tion. La. Code
927(5).
Civ.P. art.
further
so,
the
and for
tts to do
ttrged
de-
been
have
statutes
that
the
reason
The suit before
us is a suit
the
court.
trial
the
unconstitutional
clared
parish
Jefferson,
not a class action.
party
aggrieved
this has occurred
Once
parish
The
right.
sues to assert its
That
appeal di-
an
right to
constitutional
has a
right is a right
enjoin
to
the violation of
question—
that
to this
rectly
Court
zoning
its
ordinance. The action which
constitutional
the statutes
whether
will
zoning
constitute the
ordinance viola
The
[1]).
art.
(La.Const.
7 §
not.
by,
tion is
upon,
authorized
and based
stat
moreover,
links
are,
essential
statutes
utes
permit
which
department
will
to
upon the
conferring
authority
the chain
buy
and establish the institu
the cor-
right to establish
department
legislative
tion.
If
enactments authorize
seeks to
parish
institution
rectional
actions which would result in violations of
However,
question
enjoin.
ordinances,
parish may
its
properly
the constitution-
parish’s right
to contest
constitutionality
of those stat
in this
has been raised
ality of these acts
utes in
enjoin
aid of
right
its undoubted
to
time,
exists
no doubt
At the same
Court.
zoning
violations
its
ordinances.
In es
injunc-
right
parish
a
that the
has
seek
parish may
sence this
ques
means
zoning
of its
ordi-
tions
violations
tion the right
department
to violate
Rathkopf,
; 3
nances. Cf. La.
33:4728
R.S.
zoning
just
enjoin
its
may
ordinance
as it
(3d
Zoning
Planning,
Law of
66-1
§
the violation itself.
1971).
ed.
There is little difference
between
rehearing
to the
result and
On this
we adhere
the cases which accord a local
the parish
government entity
right
bring
view
has
suit
Jefferson
BARHAM,
enjoin
(dissenting).
as unconstitutional
enforce-
Justice
changing
gov-
form
ment of
statute
is
the Parish
attempt
This suit
ernment.
O’Niell stated
Mr. Chief Justice
Depart-
to block the Louisiana
Jefferson
controlling
principle
here:
which
purchase
of Correction’s
site
and facilities of
Plouse of the
absurdity
It would be an
to hold that
Shepherd in
for use
as a
corporation
Legislature,
created
juvenile training
The
institution.
trial
prosecute and
defend
court held
Act
No. 452
courts,
suits in the
cannot
invoke the
authorized the department’s
protection
by the
afforded
Constitution
facilities,
use of the site and
was unconsti-
prevent
rights
a violation of
tutional, and
other statutes
also held two
granted
(City
Bailey,
to it.
Gretna
respects.
unconstitutional
in certain
La.
[1917]).
question. dismissal, could concur decree of I hearing majority part this but decree is on a original since that based
On pass upon judgment constitutionality whether on court failed to note statutes, ac- reasons right had a must dissent for the I hearing constitutionality original assigned my tion to dissent opinion of concurring expressed. statutes. and those here See my opin- dissenting Mr. Tate and Justice in that this court’s
ion. noted dissent I
apparent urgency adjudicate feeling of The constitutionality of these statutes. reach
majority persists attempt in its
that issue. dispose and must
Since we can
The in a final tify ques- reaching constitutional Nov. 1971.
tions trial court has stated since the Rehearing Denied Dec. unconstitutional, we declared statutes constitutionality. must their pass totally
This without merit. appeal declaring from a law a decision
unconstitutional does not dictate we issue. If
must the constitutional reach it on the case before
this court decides plaintiff’s proper ground and dismisses
action, no judgment is of the trial court’s
effect, decision of unconstitution- and its
ality just effectively as if falls