City of New Orleans v. Treen

• Decision Date: 11 October 1982
• Docket Number: Nos. C-0139,CA-0154,s. C-0139
• Citation: 421 So.2d 282
• Parties: The CITY OF NEW ORLEANS, Honorable Ernest N. Morial, Mayor of the City of New Orleans and Gail Broussard, Jerome S. Glazer, Dr. Robert Azar, Stephen Manshel and Peter Coleman, all Commissioners of the Audubon Park Commission and Intervenors, Mitch Ledet, Joe Knecht, Brendolyn McKenna, Phil Baptiste, George Ethel Warren, Edgar Poree, Alice Mayer Katz, and Felicia Kahn v. Honorable David C. TREEN, Governor of the State of Louisiana and Mrs. Lawrence H. Fox, Secretary of Department of Culture, Recreation and Tourism and Intervenors, Friends of the Zoo, Inc., Mrs. Brooke H. Duncan, Mrs. James K. Wadick, III, Mr. Julian B. Feibelman, Jr., Ms. Elizabeth Wisdom, Mrs. George Cary, Jr., Mr. Harry B. Kelleher, Jr., Mrs. Lane T. DeBardeleben, Mr. Louis L. Frierson, Mrs. Daniel H. Walsh, Dr. David F. Bradley, Mr. J. Freyhan Odenheimer and Mrs. Hughes P. Walmsley.
• Court: Court of Appeal of Louisiana — District of US

Page 282

421 So.2d 282

The CITY OF NEW ORLEANS, Honorable Ernest N. Morial, Mayor of the City of New Orleans and Gail Broussard, Jerome S Glazer, Dr. Robert Azar, Stephen Manshel and Peter Coleman all Commissioners of the Audubon Park Commission and Intervenors, Mitch Ledet, Joe Knecht, Brendolyn McKenna Phil Baptiste, George Ethel Warren, Edgar Poree Alice Mayer Katz, and Felicia Kahn v. Honorable David C. TREEN, Governor of the State of Louisiana and Mrs. Lawrence H. Fox, Secretary of Department of Culture, Recreation and Tourism and Intervenors, Friends of the Zoo, Inc., Mrs. Brooke H. Duncan, Mrs. James K. Wadick, III, Mr. Julian B. Feibelman, Jr., Ms. Elizabeth Wisdom, Mrs. George Cary, Jr., Mr. Harry B. Kelleher, Jr., Mrs. Lane T. DeBardeleben, Mr. Louis L. Frierson, Mrs. Daniel H. Walsh, Dr. David F. Bradley, Mr. J. Freyhan Odenheimer and Mrs. Hughes P. Walmsley.

Nos. C-0139, CA-0154.

Court of Appeal of Louisiana, Fourth Circuit.

Oct. 11, 1982.

Salvador Anzelmo, City Atty., Galen S. Brown, Jack P. McNeely and T.W. Milliner, Asst. City Attys., New Orleans, for City of New Orleans, et al.

Warren Goldstein, New Orleans, for Mitch Ledet, et al.

Phillip A. Wittmann, Judy Y. Barrasso, Steven W. Usdin, of Stone, Pigman, Walther, Wittmann & Hutchinson, New Orleans, for Jerome S. Glazer.

Henry W. Kinney, III, New Orleans, for Friends of the Zoo, Inc., et al.

William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., Louis M. Jones, Asst. Atty. Gen., Maureen J. Feran, Staff Atty., Gunther R. Michaelis, Asst. Atty. Gen., La. Dept. of Justice, New Orleans, for defendants-respondents; John J. Hainkel, Jr., New Orleans, David R. Poynter, Baton Rouge, of counsel.

Harry B. Kelleher, William R. Forrester, Jr., W.L. West of Lemle, Kelleher, Kohlmeyer & Matthews, New Orleans, for Bd. of Liquidation, City Debt, of the City of New Orleans, intervenor-appellant.

WILLIAMS, Judge.

Appellants have appealed from a decision of the Civil District Court denying plaintiff's request for a preliminary injunction enjoining implementation of Act 352 of 1982 on the ground that it is unconstitutional.

Act 352 of the 1982 Regular Session of the Legislature seeks to replace the Board of Commissioners, appointed by the City Council, with a Board of Commissioners for the Park appointed by the Governor, and transfers administrative jurisdiction over the Park to the Department of Culture, Recreation and Tourism of the State. Furthermore, the statute provides that the City shall pay up to $700,000.00 to the Park, and all other appropriations and funds designated for the Park are to continue in effect.

The appellees filed exceptions to the suit, including an exception of improper venue. This exception was granted by the district court and, upon application to this Court, the district court's holding was reversed.

Upon remand to the district court, appellants added the State of Louisiana as a defendant, and the court granted a temporary restraining order enjoining the implementation of Act 352. The District Court heard argument on September 8, 1982, on the remaining exceptions, all of which were denied. At this time, the temporary restraining order was extended for an additional 10 days, or until a hearing on the preliminary injunction, or upon further order of the court.

A hearing was held on the preliminary injunction on September 16, 1982. Appellant's request was denied. The district court held that the Act was constitutional because the State of Louisiana owns the Park. It held that the law was not a local or special law because it merely sought to verify the State's ownership of the property. That portion of the statute that provided that the City could expend up to $700,000.00 for the Park was held to be unconstitutional in that it was a local or special law that had not been published pursuant to Article 3, Section 13 of the Louisiana Constitution of 1974. The Court held that severance of this section from the Act did not affect the constitutionality of the statute. Appellants then moved for a suspensive appeal and also requested that this court stay implementation of the Act pending the appeal. This court granted the request for a stay, and the appellants were granted an appeal.

That portion of property forming the major part of the Park as it is known today was a tract of land once known as Foucher Plantation that was purchased on August 15, 1871 for $800,000.00. This purchase was in the name of The Board of Commissioners of The New Orleans Park, an agency that was created by the Louisiana Legislature by Act 84 of 1870. Act 87 of the 1877 Extra Session of the Louisiana Legislature abolished the Commission that had been originally set up and transferred powers to the City Council of New Orleans. In 1896, Act 130 of the Louisiana Legislature transferred the administration of the Park from the City Council to The Audubon Park Association. The Association operated the Park until Act 191 of 1914. Act 191 created a Commission of twenty-four members appointed by the Mayor of the City of New Orleans subject to the approval of the City Council. This Commission was known as The Audubon Park Commission. In 1981, the Legislature passed Act 756 that allowed The Audubon Park Commission to contract with a non-profit Louisiana corporation for the operation, care, control and management of the Park. In 1982, Act 352, at issue in the instant case, was passed.

Upon our review of the record in the instant appeal, we find that the trial court carefully examined the pleadings and memoranda submitted by the parties. The trial court in its Reasons for Judgment was of the opinion that the State of Louisiana was the record owner of the land upon which Audubon Park and its other facilities have been constructed.

We agree with the trial court and find the case of City of New Orleans and The Audubon Park Commission v. Board of Commissioners of the Port of New Orleans, 148 So.2d 782 (La.App. 4th Cir.1962) is largely controlling in this matter. The decision clearly established that the State of Louisiana is the record owner of the property. Judge Julian Samuel, writing for this court, analyzed the question of ownership in his opinion. He examined the initial enabling Act, noting the purposes and powers accorded each responsible party charged with the duty to acquire, in the name of the State, the specified recreational property. The court then went on to analyze the effect of each subsequent amendment and succeeding Act up to the time of the opinion in 1963. At no point in time, in the analysis of any of these Acts of the Legislature, did title to the property pass from the State of Louisiana to the City of New Orleans. All that was conferred upon the City was the privilege of appointing the Audubon Park Commissioners, first by the City Council and later by the Mayor of the City of New Orleans with the advise and consent of the City Council. The court concluded:

We are of the opinion that the above recited legislative acts do nothing more than designate successive agencies to administer, manage and control the park property which belonged, and belongs, to the state. Although title to the property was originally taken in the name of the legislative corporation which had authority to manage and control the park, it is quite clear that the State, and not the corporation, owned the property, and this is also true in connection with the later designations of other agencies. None of the legislative acts divests the state of its original ownership nor has the defendant called to our attention any other act or action by the state which could be considered such a divestiture. None of the agencies owns or has owned the property; that ownership has remained in the state. As the court observed in the case of Saucier v. City of New Orleans, 119 La. 179, 187, 43 So. 999, 1002:

'That the state must administer its property through some agent, that it may administer such of its property as lies within a particular municipality through such municipality, and that the investiture of a municipality with control of state property, for purposes of administration, is neither the loaning, pledging, nor granting of anything, are propositions which do not admit of discussion.' (Emphasis supplied)

The trial court adopted the holding of the Board of Commissioners, supra.

While we are not bound by the common law doctrine of "stare decisis," we do recognize instead, in Louisiana, the doctrine of "jurisprudence constante." State v. Placid Oil Co. et al., 274 So.2d 402 (La.App. 1st Cir.1972); Johnson v. St. Paul Mercury Ins. Co., 256 La. 289, 236 So.2d 216, 218 (La.1970). As stated in Johnson:

Fundamental and elementary principles recognize that certainty and constancy of the law are indispensable to orderly social intercourse, a sound economic climate and a stable government. Certainty is a supreme value in the civil law system to which we are heirs. Merryman, The Civil Law Tradition 50 (1969). In Louisiana, courts are not bound by the doctrine of stare decisis, but there is a recognition in this State of the doctrine of jurisprudence constante. Unlike stare decisis, this latter doctrine does not contemplate adherence to a principle of law announced and applied on a single occasion in the past.

However, when, by repeated decisions in a long line of cases, a rule of law has been accepted and applied by the courts, these adjudications assume the dignity of jurisprudence constante; and the rule of law upon which they are based is entitled to great weight in subsequent decisions. Keller v. Haas, 209 La. 343, 24 So.2d 610 (1946); Gravier v. Gravier, 200 La. 775, 8 So.2d 697 (1942); Miami Corp. v. State, 186 La. 784, 173 So. 315 (1937); Rubin and Ponder, The Ostrich and the Arbitrator: The Use of Precedent in Arbitration of Labor-Management Disputes, 13 La.L.Rev. 208 (1953).

Thus, while this court has the power to modify and overrule its former...