State Ex Rel. Sabine River Authority v. PharesState Ex Rel. Sabine River Authority v. Phares
- Reporters:
- ,
- Before:
- Summers
Lead Opinion
Appellant, Sabine River Authority, State of Louisiana, brought this proceeding in conformity with Title 19, Section 1 et seq,, and more particularly Sections 141-160 of the Revised Statutes of 1950, as amended, LSA, to expropriate appellees’ land for use in the dam site of the Toledo Bend Dam and Reservoir Project on the Sabine River. Appellees filed a peremptory exception and plea in bar asserting that Sections 141 through 148 of Title 19 of the Revised
The district court declared
By this appeal, appellant questions the correctness of the judgment of the district court.
The Sabine River Authority, State of Louisiana, was created by constitutional amendment in 1960 by the addition of Section 45 to Article XIV of the Louisiana Constitution, LSA. Under this enactment the Sabine River Authority was empowered to acquire land by expropriation, such power of eminent domain to be exercised “as provided for under general law.” Thereafter, by Act 40 of 1962, the benefits of the right to expropriate by ex parte orders prior to judgment in the trial court, as set forth in
By
“Upon receipt of the deposit, the clerk of court shall issue a notice to each defendant in the suit, notifying him that the property described in the petition has been expropriated for public purposes.”
Provision is made entitling plaintiff to enter upon and take possession of the property upon the deposit of the estimated compensation.
It is clear from the foregoing legislation that provision is made for the “taking” (transfer of title and possession) prior to the payment of just and adequate compensation for by the very terms of those sections (
The constitutional provisions, which it is asserted prohibit legislation permitting the taking of private property for public use ■by an ex parte order without a hearing and before just and adequate compensation has been paid, are these:.
Article I, Section 2:
“No person shall be deprived of life, liberty or property, except by due process of law. Except as otherwise provided in this Constitution, private property shall not be taken or damaged except for public purposes and after just and adequate compensation is paid.”
Article I, Section 6:
“All courts shall be open, and every person for injury done him in his rights, lands, goods, person or reputation shall have adequate remedy by due process of law and justice administered without denial, partiality or unreasonable delay.”
Article IV, Section 15:
“No ex-post facto law, nor any law impairing the obligation of contracts, shall be passed; nor shall vested rights be divested, unless for purposes of public utility, and for just and adequate compensation previously paid.”
These fundamental propositions have long been embodied in the law of this State. LSA-Civ.Code, art. 497; Police Jury of Jefferson v. D’Hemecourt,
The requirement of payment in advance seems to be an attribute of the civil law, recognized in the Code Napoleon and adopted in some of the states in conformity with the concept embodied in the Civil Code of Louisiana. Nichols, The Law of Eminent Domain, § 8.713 (3rd ed. 1950); LSA-Civil Code, art. 497; Code Napoleon, art. 545; Plañid. Vol. 1, No. 2443.
Undoubtedly the people of Louisiana have found it advisable to adopt a special constitutional provision to prevent their legislature from authorizing the taking of land for public use without the prior payment of just and adequate compensation. We can conceive of many valid reasons which would.justify this constitutional safeguard, such as the insolvency of an expropriating authority — a municipal, even a state government unable to meet its obligations — and
In 1901, this court, interpreting a provision of the Constitution of 1898 similar to that contained in Article I, Section 2, of our present constitution, said:
“The Constitution of this State declares, in Article 167, (of the Constitution of 1898), that ‘private property shall not be taken nor damaged for public purposes without just and adequate compensation being first paid.’ The retention of one’s property, even in expropriation proceedings, until just and adequate compensation should be first paid, is a right secured by express constitutional provision, and there is no legal justification for an order of court which would authorize the invasion of this right by permitting the possession of the property to be changed, pending the litigation, by giving of a bond to the owner.” State ex rel. Cotting v. Sommerville,104 La. 74 ,28 So. 977 (1901).
Thereafter this court declared that Article I, Section 2 of the Constitution of 1921 meant that property expropriated must be paid for in advance of the taking. Bickham v. City of Shreveport,
We are in accord with the interpretation contained in these cases for the words “after”, used in Article I, Section 2, and “previously paid”, as contained in Article IV, Section 15, of our constitution, are not meaningless, nor are we at liberty to say that they were inserted without design. The clear import of their meaning is that payment of just and adequate compensation must precede the taking in expropriation proceedings.
The conclusion, then, is that the legislature is powerless to enact any legislation that would permit a taking, either possession or title, from an owner until payment of just and adequate compensation has been made or at least tendered and deposited to the owner’s account in the registry of court.
Aside from these constitutional provisions which render the questioned legislation invalid, null and void, the very language of Article XIV, Section 45, of the constitution ■yvhich -created the Sabine River Authority, provides that it should exercise its power of eminent- domain “as provided for under general law.” , (Emphasis supplied.)
The general laws of expropriation in this State are embodied in Title 19, Sections 1 through 14 of the Revised Statutes, LSA, LSA-Civil Code Articles 2626 through 2641 and the pertinent jurisprudence. The law which the legislature made applicable to the Sabine River Authority, and which it has invoked here, is special in character and therefore the use of it by Sabine River Authority transcends the scope of the constitutional limitations which require the Authority to expropriate under the general law. This is an additional reason why appellant could not avail itself of
The judgment of the trial court is affirmed.
Dissenting Opinion
(dissenting).
It is my opinion that the statute here under consideration, R.S. 19:141-160, is not unconstitutional for any of the reasons given in the majority opinion. The statute does not violate Article 1, Section 2, or Article 4, Section IS, of the Louisiana Constitution, for it plainly requires the expropriating authority to make payment to the owner before possession of the property is taken. Section 145 of the statute provides:
“Upon the deposit of the amount of the estimate in the registry of the court, for the use and benefit of the persons entitled thereto, the clerk shall issue a receipt showing
The constitutional provision (Article 1, Section 2) requires that the landowner receive payment for his land before he is divested of title, and this is exactly what the statute provides shall be done.
Article 1, Section 2, of our state Constitution provides: “ * * * private property shall not be taken * * * except for public purposes and after just and adequate compensation is paid.” The Fifth Amendment to the Constitution of the United States requires: “ * * * nor shall private property be taken for public use, zvithout just compensation.” (All italics ours.) The federal statute authorizing the government to condemn and expropriate property is U.S.C. 40:258a. It is clear that the Louisiana and the federal constitutional provisions are identical in meaning, and that the method of expropriation in our statute and in the federal statute is the same. In numerous cases the federal statute-has been found not to violate the just compensation or due process provision of the United States Constitution. See United States v. 47.21 Acres of Land, D.C.,
Moreover, I do not consider the cases of this court relied on in the majority opinion to be apposite or controlling here.