Arnold v. Board of Levee Com'rs of Orleans Levee Dist.

• Decision Date: 15 December 1978
• Docket Number: Nos. 62385,62453,s. 62385
• Parties: Henry ARNOLD and John F. Robbert v. The BOARD OF LEVEE COMMISSIONERS OF the ORLEANS LEVEE DISTRICT, Guy LeMieux, the F. Edward Hebert Foundation and Ernest A. Carrere, Jr.
• Court: Louisiana Supreme Court

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366 So.2d 1321 Henry ARNOLD and John F. Robbert
v.
The BOARD OF LEVEE COMMISSIONERS OF the ORLEANS LEVEE
DISTRICT, Guy LeMieux, the F. Edward Hebert
Foundation and Ernest A. Carrere, Jr. Nos. 62385, 62453. Supreme Court of Louisiana. Dec. 15, 1978.

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John W. Haygood, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Metairie, for F. Ed. Hebert Foundation, defendant-respondent in No. 62453 and defendant applicant in No. 62385.

Richard J. McGinity, McGinity & McGinity, New Orleans, for Bd. of Levee Com'rs, etc. defendants-applicants in No. 62453 and defendants-respondents in No. 62385.

John F. Robbert, Garon, Brener & McNeely, New Orleans, for plaintiffs-respondents in Nos. 62385 and 62453.

DIXON, Justice.

Plaintiffs Henry Arnold and John F. Robbert, residents and taxpayers in Orleans Parish, filed a taxpayer's suit seeking declaratory and injunctive relief against the Orleans Levee Board and the F. Edward Hebert Foundation. The plaintiffs contended that a lease contracted between the Board and the Foundation, in which the Foundation was to lease at a nominal sum certain lakefront property belonging to the Board for the construction of a museum and a library named for Congressman Hebert, was in derogation of statutory prohibitions and municipal ordinances of the City of New Orleans. ¹ The district court initially sustained the defendants' exception of no cause of action, but the Court of Appeal reversed the trial court on the ground that the Board was required to comply with the Public Lease Law, R.S. 41:1211 et seq., and remanded for further proceedings. 327 So.2d 495 (4th Cir. 1976). ² Application was made to this court for review, but was denied because the judgment was not final. 330 So.2d 318 (La.1976).

On remand the district court heard the case on the merits pursuant to a written stipulation of facts in which the defendants admitted that the contract did not comply with the Public Lease Law. Following the reasoning of the appellate court, the court thereafter declared the lease null and void and issued a permanent injunction against the defendants. The Court of Appeal affirmed the district court judgment on the basis of its first opinion in the matter, which it held to be the law of the case. 359 So.2d 748 (4th Cir. 1978). Defendants applied separately for writs to this court. Writs were granted and the cases consolidated to review the decisions of the lower courts. 360 So.2d 1350 (La.1978).

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Applicability of the Public Lease Law

An essential determination is the relationship of the Public Lease Law, R.S. 41:1211 et seq., ³ to the operations of the Orleans Levee Board in specified parts of Orleans Parish. Article 16, § 7(h) of the Louisiana Constitution of 1921 vested in the Orleans Levee Board all rights formerly held by the state to the bed and shores of Lake Pontchartrain within designated territorial limits which encompass the site in question. ⁴ To ensure the orderly development

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of the lakefront, the Board was granted broad powers for developing the area:

"To enable the said Board to perform the work herein provided for and to assist in defraying the cost and expenses thereof, and to carry out the purposes of existing laws and this Article of the Constitution, the State of Louisiana hereby grants and releases to said Board the title of the State in and to all public property necessary for the purposes hereof and all lands reclaimed or filled in within any levee embankments, slopes, retaining walls, sea walls, and breakwaters constructed hereunder and in and to all lands lying within the territorial limits of said project and hereby releases said land from any public trust or dedication and said Board shall have jurisdiction, power and authority to sell and lease, or otherwise dispose of such portion of the lands reclaimed and other property acquired for the purpose of said improvement, except the lands herein required to be dedicated by it for public use, together with any building, improvements or other works constructed thereon, under such terms and conditions and by such methods as said Board may deem proper . . ." Art. 16, § 7(h), 1921 La.Const.

This provision was not included in the 1974 Constitution but was continued as a statute ". . . restricted to the same effect as on the effective date of this constitution," by Article 14, § 16(A)(12). It was subsequently re-enacted by Act 729 of 1975 as R.S. 38:1235.2 with some minor stylistic changes. ⁵

It is the contention of the defendants that this provision exempts the Board from compliance with the Public Lease Law because the Board is granted discretion to dispose of the lakefront properties as it sees fit; that discretion might or might not accord with the Public Lease Law. In effect, the defendants take the position that R.S. 38:1235.2 is a special statute, the provisions of which prevail in case of any conflict with a statute of general applicability. Abbott v. Parker, 259 La. 279, 249 So.2d 908 (1971); Arata v. The Louisiana Stadium and Exposition District, 254 La. 579, 225 So.2d 362 (1969).

On the other hand, the plaintiffs are of the view that the provisions cited above have no such effect because no conflict exists between the special grant of authority to the Board and the general provisions of R.S. 41:1211 et seq. which are expressly made applicable to levee districts. They argue that the term "methods" in R.S. 38:1235.2 merely refers to the ways of disposing of the property mentioned earlier in the same sentence and has no bearing on the manner in which a specific agreement is contracted. Therefore, conclude the plaintiffs, the public policy of the state, which clearly favors competitive bidding for the lease of state property, and the legislative intent as embodied in the later enactment, the Public Lease Law, require that the differing provisions be reconciled in favor of public bidding, and that the lease in question be declared invalid.

In reaching a similar conclusion when the case was first before it, the Court of Appeal relied on the reasoning of Hall v. Rosteet, 247 La. 45, 169 So.2d 903 (1964), in which this court held that the Uniform Airport Law, R.S. 2:131 et seq. did not exempt the lease of a public airfield by the Calcasieu Parish Police Jury from the Public Lease Law. There the police jury contended that the special law exempted it from compliance with R.S. 41:1211 et seq. because no specific mention was made of public bidding and because the special law permitted longer

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leases than those allowed by the Public Lease Law. In rejecting this argument, we held the Public Lease Law applicable to leases of state property "in the absence of an express permissive provision in the special law that such leases could be negotiated without advertisement and competitive bidding." 247 La. 45, 60, 169 So.2d 903, 908.

Although we agree that Hall v. Rosteet, supra, recites the rule of law applicable to the facts before us, we believe that the Court of Appeal was in error not to view the provisions of R.S. 38:1235.2 as establishing an exemption from the Public Lease Law. In reaching this conclusion, we take note of several decisions in which appellate courts have found an exemption from the Public Lease Law on the basis of statutory language no more express than that in the instant case.

In Kliebert v. South Louisiana Port Commission, 182 So.2d 814 (4th Cir. 1966), writ refused, 248 La. 1030, 183 So.2d 652 (1966) the Court of Appeal for the Fourth Circuit construed the constitutional provisions empowering the port commission to construct and acquire structures to include "the implied authority to negotiate contracts consistent with its purpose." 182 So.2d 814, 818. ⁶ The Court of Appeal for the Third Circuit followed the reasoning of Kliebert v. South Louisiana Port Commission, supra, in Wright v. Lake Charles Harbor and Terminal District, 188 So.2d 449 (3d Cir. 1966), writ refused, 249 La. 620, 188 So.2d 922 (1966). There...