Angelle v. State

Decision Date12 January 1948
Docket Number38710.,38708,38709
Citation212 La. 1069,34 So.2d 321
CourtLouisiana Supreme Court
PartiesANGELLE v. STATE et al. ROY v. SAME. HARTFORD FIRE INS. CO. v. SAME.

Rehearing Denied Feb. 16, 1948.

Appeal from Nineteenth Judicial District Court Parish of East Baton Rouge; G. Caldwell Herget, Judge.

Fred S. LeBlanc, Atty. Gen., W. C. Perrault, 1st Asst. Atty. Gen., and R. H. Lee, Sp. Asst. Atty. Gen., for defendants-appellants.

Voorhies & Labbe, of Lafayette, Breazeale, Sachse & Wilson, of Baton Rouge, and Chaffe, McCall, Bruns, Toler & Phillips of New Orleans, for plaintiffs-appellees.

McCALEB Justice.

The above captioned cases have been consolidated for decision. They are actions against the State of Louisiana and the Department of Agriculture and Immigration for recovery of the value of property destroyed in a fire which resulted from certain spraying operations conducted by agents of the Department of Agriculture for the disinfection of farm produce stored upon the premises of the Texas and New Orleans Railroad Company at Carencro, Louisiana. The cases are founded upon the same facts which are not disputed and which may be briefly stated as follows:

Act No. 314 of 1926 provides that the shipment or movement of sweet potatoes, vines, plants and slips into, out of or within the State must be accompanied by a certificate of inspection signed by the State Entomologist. It also vests in the Commissioner of Agriculture and Immigration plenary power to deal with sweet potato insect pests and, to this end, to promulgate and enforce such rules, ordinances and regulations as in his opinion may be necessary to control, eradicate or prevent the introduction or spread of any and all contagious crop diseases and insect pests.

Pursuant to this authority, the Department of Agriculture has been conducting a systematic program for eradication of sweet potato weevils in territories declared by the State Entomologist to be control areas. In July 1944, the Parish of Lafayette was within the sweet potato weevil quarantine area and buildings and premises used in storage or handling of sweet potatoes came under the effect of the eradication program of the Department of Agriculture. Under this program the Department maintained five or six trucks equipped with portable spraying units. Upon request, the Department would send one of the trucks to the location where the sweet potatoes were stored and its agents would spray and disinfect the entire premises. The owner of the sweet potatoes was required, under the regulations, to supply the disinfectant to be used but it was not compulsory for him to employ the facilities provided by the Department. Nevertheless, it appears that the sweet potato growers of the State have invariably taken advantage of the free services supplied by the Department.

Plaintiffs, Angelle and Roy, are sweet potato growers. On July 13, 1944, they had deposited at the Texas and New Orleans Railroad freight station at Carencro, Louisiana, a quantity of sweet potatoes and certain other equipment. This railroad station was regularly used for the processing and handling of sweet potatoes for market and was the premise designated for disinfection under the rules of the Department of Agriculture. After the sweet potatoes were received for shipment, the railroad station agent contacted the Department of Agriculture and requested that it spray the sweet potatoes, the railroad premises and adjoining sheds so that certificates of inspection might be obtained. In accordance with this request, the Department sent one of its trucks, complete with spraying unit and manned by two experienced operators. Upon its arrival at the railroad premises, the station agent pointed out two metal drums which he stated contained the disinfectant and the Department's employees filled the spray unit and commenced operations. During the course of the disinfecting work, one of the agents discovered a fire on the back end of the truck which held the mixing tank and the spraying machinery. The flames spread rapidly and, despite preventative measures, the railroad station, processing machine and sweet potatoes were destroyed.

Thereafter, Angelle, Roy and the railroad's insurer, Hartford Fire Insurance Company, filed these actions for recovery of their respective losses occasioned by the fire. The State and the Department filed exceptions to the jurisdiction of the court, which were founded on constitutional governmental immunity from suit without legislative consent, and also interposed exceptions of no right or cause of action. These exceptions were overruled and, after issue joined and trial had, there was separate judgment in favor of each plaintiff as follows: Angelle, $13,112.08; Roy, $3,746.34; Hartford Fire Insurance Company, $6,465.11.

The State and the Department of Agriculture have appealed from the adverse decisions.

In this court, the attorney general rests his case on the sole proposition that the exception to the jurisdiction was erroneously overruled below as the State is immune from suit in the absence of its consent given in the manner provided by Section 35 of Article III of the Constitution of 1921.

The principle that the sovereign cannot be sued in its own courts without the consent of the Legislature is so fundamental that citation of authority would be superfluous. Suffice it to say that it is the universal rule, given full recognition in our Constitution. And, by the joinder of the Department of Agriculture and Immigration as a party defendant, plaintiffs did not enhance their rights in any respect as it is merely one of the administrative state departments, see Article VI, Sections 13 and 14 of the Constitution, without separate existence from the State for purposes of suit.

Counsel for plaintiffs, fully appreciating the difficulty to be encountered by instituting suit against the State without legislative consent, have contrived the theory that the destruction of their clients' property by fire, while it was being subjected to disinfection by state agents, was an appropriation of the property for a public purpose, violative of Article I, Section 2 of the Constitution, for which suit for compensation will lie against the State without its consent. Section 2 of Article I of the Constitution declares, in part: '* * * 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.'

This provision, which is similar to that appearing in other State Constitutions, has been generally regarded to be self-executing. See 16 C.J.S., Constitutional Law, � 49, and authorities there cited. Hence, where private property has been appropriated by the State 'for public purposes' the right of the owner to recover adequate compensation will be entertained by the courts as an exception to the principle that the sovereign cannot be sued without its consent.

In view of this, it becomes necessary to determine the meaning of the constitutional prohibition against the taking or damaging of private property 'except for public purposes'. We think that the statement refers exclusively to the power of eminent domain, i. e., the intentional or purposeful expropriation or appropriation of private property for a public use or convenience. In the instant cases, we experience great difficulty in perceiving that the destruction of the station and the sweet potatoes resulted from anything more than the negligent acts or omissions of the agents of the Department of Agriculture. The loss for which compensation is sought resulted exclusively from a fortuitous event--a fire--as far removed from a deliberate appropriation under eminent domain as anything could be; forsooth, a wholly unintentional destruction which served no public purpose whatever.

Counsel for plaintiffs argue that, since the Department of Agriculture was engaged in a systematic program for the eradication of sweet potato weevils, all acts of state agents in connection with the program were for a public purpose and that, therefore, it follows that any destruction of private property, though unintentional or unnecessary, is a taking of the property for a public purpose.

This argument is not sound because it fails to reckon a distinction between the destruction and damaging of private property by agents of the State while engaged merely in the performance of a governmental function and the deliberate taking or necessary damaging of property for the public use and benefit. In the first instance, the destruction or damage occurs not for a public purpose but by reason of the negligence of the state officers or agents. In the latter, the property is taken or damaged under the power of eminent domain; it is an appropriation for public purposes for which adequate compensation is guaranteed to the owner by Section 2 of Article I of the Constitution.

A reading of the petitions in the instant cases makes manifest that the causes of action are founded on the negligence of the Department of Agriculture--(and this, despite the attempts of plaintiffs to avoid the conclusion that their claims are ex delicto) for numerous acts of fault or omissions on the part of the Department are therein charged to be the proximate cause of the fire. For example, it is alleged that the gasoline engine used in the spraying operation was old and in an unsafe running condition; that the exhaust pipe was too short and pointed downward in the direction of the wooden flooring of the body of the truck; that gasoline leaked from the carburetor and that the engine frequently backfired and emitted sparks. Many other failures are charged and it is concluded that a 'tremendous fire hazard' was...

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