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

• Decision Date: 10 February 1976
• Docket Number: No. 7182,7182
• Citation: 327 So.2d 495
• Parties: Henry ARNOLD and John F. Robbert v. The BOARD OF LEVEE COMMISSIONERS OF, the ORLEANS LEVEE DISTRICT et al.
• Court: Court of Appeal of Louisiana — District of US

Page 495

327 So.2d 495

Henry ARNOLD and John F. Robbert v. The BOARD OF LEVEE COMMISSIONERS OF, the ORLEANS LEVEE DISTRICT et al.

No. 7182.

Court of Appeal of Louisiana, Fourth Circuit.

Feb. 10, 1976.

Rehearing Denied March 16, 1976.

Writ Refused April 27, 1976.

Garon, Brener & McNeely, John F. Robbert and Luke Fontana, New Orleans, for plaintiffs-appellants.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John W. Haygood and Lucius F. Suthon, New Orleans, for The F. Edward Hebert Foundation, defendant-appellee.

Richard J. McGinity, New Orleans, for The Bd. of Levee Commissioners of the Orleans Levee Dist., defendant-appellee.

Before REDMANN, STOULIG and BEER, JJ.

STOULIG, Judge.

Plaintiffs, Henry Arnold and John F. Robbert, filed a taxpayers' suit to enjoin the F. Edward Hebert Foundation (Foundation) from building a museum and library on lakefront property in the City of New Orleans owned by the Orleans Parish Levee Board (Board). Plaintiffs contend the defendant board and the defendant foundation, a private non-profit corporation, violated four laws in entering into a lease agreement whereby the Foundation would lease at an annual rental of $1 per acre ¹ Board property on which a public building named after Congressman Hebert would be erected. Under its provisions, the Board is obligated at the termination of the lease (30 years hence or on the contingency of Mr. Hebert's death) to maintain the museum at public expense. Defendants' exception of no cause of action was maintained and plaintiffs have appealed.

In essence plaintiffs petitioned to nullify the lease because (1) it was executed without advertising for bids, contrary to L.R.S. 41:1211 et seq.; (2) it contemplates naming a building on State owned land after a living person contrary to L.R.S. 14:316; (3) it was signed without first holding public hearings and without authorization of the City Council in violation of Comprehensive Zoning Ordinance (1970), Art. 5, § 1.4(18); and (4) it requires construction of a museum on a substandard site in violation of the zoning ordinance.

In deciding these exceptions, we deem the allegations of fact in plaintiffs' petition as true. ² These quoted allegations set forth the facts upon which plaintiffs rest their claim the Public Lease Law was violated:

'6

'In or about January, 1975, the Levee Board entered into a contract of lease with the Hebert Foundation whereby a certain portion of State owned land in the vicinity of the Lake Oaks Subdivision was leased by the Levee Commission to the Hebert Foundation for a term of 30 years. A copy of said lease is attached hereto and made a part hereof.

'7

'Petitioners allege on information and belief that the lease was privately negotiated and concluded between the parties thereto and not advertised or publically bid as required by law, more particularly, La.R.S. 41:1211 et seq.'

The pertinent part of Section 41 of the Revised Statutes regulating public lands owned by the State is found in Chapter 10, entitled 'Leases of Public Lands.' The terms and conditions under which a public agency may lease property of the State is set forth in this part. L.R.S. 41:1211 defines as a '* * * 'lessor' * * * all * * * branches, departments or agencies of the state, or any school district, Levee district, * * * or other unit or institution, deriving its authority and powers from the sovereignty of the state.' (Emphasis added.) L.R.S. 41:1212 permits the agency to leases property over which it has title for 'any * * * legitimate purposes whatsoever * * *.' L.R.S. 41:1213 gives any person the right to apply for a lease of public lands and outlines the procedure to follow, while L.R.S. 41:1214 grants the agency authority to initiate lease negotiations. In both instances the proposed lease must be advertised in the official journal of the parish where the land is located'* * * setting forth a description of the land to be leased, the time when the bids therefor will be received, and a short summary of the terms and conditions and purposes of the lease to be executed * * *.'

The Public Lease Law originated with Acts 1940, No. 70. The legislature, cognizant of the propensity of some elected officials to exercise a 'spoils system' approach to leasing state owned property, moved to curb abuses by introducing the public bid concept to leasing as it had previously done in the area of public contracts. ³ In Ellis v. Acadia Parish School Board, ⁴ the Supreme Court noted a three-fold purpose for the Public Lease Law, namely:

'* * * The object and intent of the Legislature in adopting Act No . 170 of 1940 was to give all persons a chance to bid on leases of the public lands, to prevent boards and other authorities from favoring one person over others, and to produce to the various agencies of the State named therein larger revenues by requiring competitive bidding for the leases. * * *' 29 So.2d at 465.

In the past when certain agencies have been challenged in court for failure to comply with its provisions prior to negotiating a lease, the defense raised is their powers, conferred by special statute, cannot be curbed, controlled or in any way modified by the general provisions of L.R.S. 41:1211 et seq. And so it is in this case. Defendants' position on the public lease issue is that its power to lease, conferred by LSA-Const. Art. 16, § 7(h) (1921), gives the Board absolute power to negotiate any lease on any terms and conditions it deems proper. We quote that part of the 1921 Constitution that the Board urges confers unrestricted authority:

'(h). State land grants. 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 * * *.'

LSA-Const.1974, Art. 14, § 16(A)(12) changed the partially quoted amendment to the status of statute. We note this in passing because plaintiffs and defendants both argue it is significant to support their respective positions. From the standpoint of the result we reach, the change is academic.

In any event, we cannot accept defendants' contention the words, '* * * said Board shall have * * * power * * * to * * * lease * * * under such terms and conditions and by such methods as said Board may deem proper * * *,' exempt it from compliance with L.R.S. 41:1211 et seq. We find the situation before us analogous to that considered by the Supreme Court in Hall v. Rosteet, ⁵ which held the Calcasieu Parish Police Jury could not lease a public airfield, under the jurisdiction of an airport authority, without first complying with the Public Bid Law. The Airport Authority, created pursuant to L.R.S. 2:601 et seq. is regulated by the Uniform Airports Law (L.R.S. 2--131 et seq.). L.R.S. 2:135(3) permits the local Airport Authority to lease property for a term not exceeding 25 years to private parties and is silent as to competitive bidding. The Police Jury contended this special law exempted it from the applicability of the general public lease law, because it did not contain the advertisement for bids proviso and because it was permitted to execute leases for a maximum 25-year period, whereas L.R.S. 41:1211 et seq. limits the duration to 10 years. Where the laws were in conflict (on duration), the Court held the special law superceded the general provision, but where they could be construed harmoniously, both were applied. Thus the Police Jury was enjoined from negotiating private leases without first complying with the Public Lease Law.

One of the principles enunciated by Hall is that the revised statutes were enacted by the legislature as a complete body of law adopted as a whole, thus all provisions should be read together and reconciled where possible. The statutes in question were all part of this act. In the case before us, we are dealing with what was a constitutional grant of power at the time L.R.S. 41:1211 was enacted; however the difference in status between LSA-Const. 1921 Art. 16, § 7(h) and the revised statutes do not change the result. L.R.S. 41:1211 expressly provides levee districts are included within its purview as one of the agencies '* * * deriving its authority and powers from the sovereignty of the state.' A constitutional grant of power has as its source the sovereignty of the state, just as the revised statutes do, and in the absence of conflict between these enactments, both must be recognized. Thus, the Public Lease Law is inoperative only if the constitutional or statutory grant of power may be construed to Expressly exempt the agency from its operation.

Defendants argue that L.R.S. 38:1244 and 1246, quoted below, manifest a legislative intent to exempt it from control of the Public Bid Law:

'All public levees and embankments constructed by the Board of Commissioners of the Orleans Levee District in and on the water of Lake Pontchartrain and shore adjacent thereto, full charge and control of the levees and embankments shall vest in the board until otherwise provided by law. The board shall have plenary powers for the maintenance...