Board of Com'rs of Orleans Levee Dist. v. Department of Natural Resources

• Decision Date: 20 October 1986
• Docket Number: 85-CD-1102 and 85-CD-1107,Nos. 85-CA-1448,s. 85-CA-1448
• Parties: The BOARD OF COMMISSIONERS OF the ORLEANS LEVEE DISTRICT v. The DEPARTMENT OF NATURAL RESOURCES of the State of Louisiana.
• Court: Louisiana Supreme Court

Page 281

496 So.2d 281

The BOARD OF COMMISSIONERS OF the ORLEANS LEVEE DISTRICT v. The DEPARTMENT OF NATURAL RESOURCES of the State of Louisiana.

Nos. 85-CA-1448, 85-CD-1102 and 85-CD-1107.

Supreme Court of Louisiana.

Oct. 20, 1986.

William J. Guste, Jr., Atty. Gen., Elizabeth Megginson, David C. Kimmel, Asst. Attys. Gen., for D.N.R.

William E. Wright, David P. Banowetz, Jr., Baldwin & Haspel, James Magee, David P. LaNasa, Dale B. Morrison, New Orleans, for defendant-intervenor-appellant.

Sam A. LeBlanc, Franklin Adkins, Adams & Reese, Richard Goins, New Orleans, for Bd. of Commissioners.

Michael R. Fontham, Catherine N. Garvey, Paul L. Zimmering, Stone, Pigman, Walther, Wittmann & Hutchinson, New Orleans, for plaintiff-intervenor-appellee.

ON REHEARING

DENNIS, Justice.

This case calls upon us to decide whether an act of the legislature which declares that the public purpose which originally supported the expropriation of property for a Mississippi River spillway has ceased to exist and orders the return of the property to its former owners should be upheld as a valid act of the plenary power of the people of the state exercised through its legislature or stricken as a violation of one of the specific constitutional provisions that limits the power of the legislature. The district court granted plaintiffs' motion for summary judgment declaring the act unconstitutional and rejected defendants' motion for summary judgment to declare the act constitutional. After a trial, the district court also rendered judgment preliminarily enjoining the enforcement of the act. The defendants appealed from the declaration of unconstitutionality, La. Const. 1974, Art. V, § 5(D) We granted certiorari to review the district court's preliminary injunction and refusal to grant defendants affirmative declaratory relief. 473 So.2d 848 (La.1985).

This court after an original hearing reversed the summary judgment and preliminary injunction and declared that the act of the legislature is constitutional. Board of Commissioners of the Orleans Levee District v. Department of Natural Resources, 483 So.2d 958 (La.1986). Having granted a rehearing, we again decide that the act is constitutional; consequently, the judgments of the district court declaring the act unconstitutional are reversed. The Legislature's plenary power to enact a law providing for the divestiture of a state agency's property is not limited by any of the following constitutional restrictions: the prohibition against the taking of private property except for public purposes and with just compensation, La.Const. 1974, Art. I, § 4; the prohibition against a law impairing the obligation of contracts, Id. Art. I, § 23; the prohibition against the consolidation, division, reorganization or merger of a levee district which impairs the outstanding bonded indebtedness or any other contract of a levee district, Id. Art. VI, § 38(B); or the prohibition against the donation of property of the state or of any political subdivision to any person, association or corporation, Id. Art. VII, § 14(A).

1. Background

By Act 99 of 1924 the Legislature authorized the Orleans Levee Board to acquire land by expropriation, purchase or donation in Plaquemines Parish, and to levy such taxes as may be required, for the purpose of constructing the Bohemia Spillway. Although located in Plaquemines Parish 50 miles down river from Orleans Parish, on the site of what was formerly the Bohemia Plantation, the spillway was designed to assist in protecting the City of New Orleans from flooding by providing a rapid exit for surplus water from the Mississippi River into the Gulf of Mexico, thereby reducing the water level upstream. Of the 33,000 acres required for the creation of the spillway, which was constructed in 1924 to 1926, 3% of the land was acquired by expropriation, 48% by purchase in lieu of expropriation, and 49% by transfer of public lands from the state. The transfer of public lands was accomplished by Acts 246 of 1928 and 311 of 1942, whereby the Legislature conveyed to the Orleans Levee District from the Grand Prairie Levee District all of the state or public land in the spillway.

The owners of private property taken or acquired for the spillway were compensated $389,500, with funds derived from taxes as authorized by the Legislature. The Orleans Levee Board received mineral revenues from the lands in the spillway amounting to $1,734,480 between the years 1929 and 1948 and $42,921,729 between 1950 and 1981. The property within the spillway is currently yielding approximately five million dollars annually in mineral revenues. Approximately 60% of the revenues, or three million dollars annually, is derived from the property which is the subject of this dispute. Board of Commissioners, 483 So.2d at 960, n. 3.

Subsequent to the completion of the Bohemia Spillway other floodway systems were built upriver from the City of New Orleans to provide additional means of diverting water from the Mississippi. In 1983 an amendment to Article VII, § 14(B) of the Louisiana Constitution of 1974 was adopted authorizing the return of property, including mineral rights, to a former owner from whom the property had previously been expropriated, or purchased under threat of expropriation, when the legislature by law declares that the public and necessary purpose which originally supported the expropriation has ceased and orders the return of the property to the former owner under such terms and conditions as specified by the legislature. Pursuant to this authority, by Act 233 of 1984 the legislature declared that the public and necessary purpose for the expropriation of private property for the construction of the Bohemia Spillway had ceased and ordered the return of the property to the former owners or their successors. The act also vested rulemaking authority in the Department of Natural Resources to establish procedures and guidelines for the return of the property and ordered it to evaluate applications submitted by former owners or putative heirs. 483 So.2d 958, 960-61 (La.1986), on original hearing.

The levee district commissioners requested the Department to promulgate rules providing for complete payment to them for any land so returned. Finding in the act neither express nor implied provision for compensation to be paid by claimants to the property, the Department rejected the request. The levee district commissioners brought this suit to have Act 233 of 1984 declared unconstitutional and to enjoin its execution. Howard, Weil, Labouisse & Friedrichs, Inc., holder of bonds issued by the levee district intervened on the side of the commissioners. Owners and successors of owners from whom the property had been acquired intervened as defendants. Both plaintiffs and defendants moved for summary judgment on the issue of whether Act 233 of 1984 is constitutional. The trial court rendered judgments declaring Act 233 of 1984 unconstitutional and enjoining its enforcement.

In its written and oral reasons the trial court held the act unconstitutional because it failed to establish the terms and conditions for the return of land and because it effected a taking of property from the Orleans Levee District by the state other than for public purposes and without just compensation in violation of Art. I, § 4 of the 1974 Louisiana Constitution. In this court, the plaintiffs assert that the Legislature's divestitute of the spillway property is an unconstitutional taking, that the act is unconstitutional because it impairs the obligation of contract between the levee district and its bondholders, and that the act is unconstitutional because it exceeds the 1983 constitutional amendment's authorization by ordering the property returned not only to former owners but also to their successors.

2. The legislature's plenary power is subject to only specific constitutional limitations.

The legislative power of the state is vested in the Legislature. La.Const. 1974, Art. III, § 1. Except as expressly provided by the constitution, no other branch of government, nor any person holding office in one of them, may exercise the legislative power. Id. Art. II, §§ 1 and 2. Furthermore, it is a general principle of judicial interpretation that, unlike the federal constitution, a state constitution's provisions are not grants of power but instead are limitations on the otherwise plenary power of the people of a state exercised through its legislature. In its exercise of the entire legislative power of the state, the Legislature may enact any legislation that the state constitution does not prohibit. Thus, to hold legislation invalid under the constitution, it is necessary to rely on some particular constitutional provision that limits the power of the legislature to enact such a statute. New Orleans Firefighters Association v. Civil Service Commission of City of New Orleans, 422 So.2d 402 (La.1982); State ex rel Guste v. Legislative Budget Committee, 347 So.2d 160 (La.1977); Hainkel v. Henry, 313 So.2d 577 (La.1975); In re Gulf Oxygen Welder's Supply Profit Sharing Plan, 297 So.2d 663 (La.1974). See also, State v. Mallery, 364 So.2d 1283, 1284 (La.1978) ("Except as limited by the constitution its power is plenary"); Swift v. State, 342 So.2d 191, 194 (La.1977) ("Unlike Congress, our State Legislature has all powers of legislation not specifically denied it by the Louisiana Constitution").

Consequently, unless there is a particular constitutional provision which prohibits the Legislature from declaring levee district property no longer publicly useful and ordering the levee commissioners to return it to the owners from which it was taken, the lawmakers may enact legislation transferring the property. Accordingly, in an attempt to justify their claim of unconstitutionality and refusal to obey Act 233 of 1984, the levee district commissioners, joined by the bondholder intervenors, rely on several particular constitutional...