Cope v. Louisiana State Live Stock Sanitary Board
| Decision Date | 01 June 1937 |
| Docket Number | 5466 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | COPE v. LOUISIANA STATE LIVE STOCK SANITARY BOARD |
Isaac Wahlder, of Alexandria, for appellant.
Leo Gold, of Alexandria, for appellee.
In compliance with certain live stock regulations and laws of this state, plaintiff delivered his 5-year old mule to representatives of defendant on March 19, 1936, in order that it might be dipped in an arsenic solution. On that same date the dipping took place at Willis' vat in Rapides parish. Nine days thereafter, or on March 28, 1936, it died.
Plaintiff charges in this suit that the mule was in perfect condition and health prior to the occurrence of the dipping; that defendant's representatives, while acting in the scope of their employment, placed a rope about the mule's neck and pulled it into the vat; that the pulling and tightening of the rope caused it to strangle and to inhale and absorb quantities of arsenic solution into its lungs and stomach and that these negligent acts resulted in a poisoning of such organs, and ultimately its death.
Damages in the sum of $ 175 are sought herein. Of this amount, $ 150 is claimed as the value of the mule, while the balance is for the loss of its use.
Defendant filed pleas to the jurisdiction ratione personae and ratione materiae, and exceptions of no cause and no right of action. These were overruled.
With full reservation under its pleas and exceptions, defendant answered, generally denying the allegations of the petition.
A trial of the merits resulted in a judgment in plaintiff's favor for $ 135; this being the proven value of the animal. Defendant appealed, and plaintiff has answered the appeal asking that the judgment be increased to $ 160.
In this court, defendant again urges the above-mentioned pleas and exceptions.
The plea to the jurisdiction ratione personae presents the question of whether or not the suit should have been brought in the district court of East Baton Rouge parish the admitted domicile of defendant, instead of in Rapides parish. It is the general rule in all civil matters that one must be sued before the court having jurisdiction over the place where he has his domicile. Code Practice, art. 162. An exception to this rule, however, is that where an act is committed for which an action for damage lies, the suit may be brought in the parish where the damage is done. Code Practice art. 165, par. 9. By virtue of this last-mentioned provision, we think that the action was properly instituted in Rapides parish where the dipping and damage occurred.
Under the exceptions of no cause and no right of action and plea to the jurisdiction ratione materiae, defendant's counsel offers two objections. It is first contended that the fixing of the value of the animal by a board or commission of appraisers, pursuant to section 3 of Act No. 6 of 1930, was a condition precedent to a suit for recovery, and as the petition herein does not allege that plaintiff submitted his claim to that body for an appraisement, it was fatally defective. This contention, in our opinion, is without merit. The referred to provision reads: "All cattle, horses, mules, jacks, and jennets killed or injured in the actual process of dipping done under the supervision of the Louisiana State Live Stock Sanitary Board, or its quarantine inspector, upon satisfactory proof, shall be compensated for to the owner or owners thereof by the Louisiana State Live Stock Sanitary Board upon the value fixed by a board or commission of appraisers, which board or commission shall be the same board or commission provided for in Section 11 of this act."
According to section 11 of that act, such board or commission "shall consist of three members in each parish in each zone where tick eradication has begun, which said board shall be appointed for each parish as follows: One member shall be appointed by the Police Jury, one by the District Judge, and one by the Louisiana State Live Stock Sanitary Board."
As we view the quoted statutory provisions, the owner of stock killed or injured through the process of dipping is required to merely file his claim with the Louisiana State Live Stock Sanitary Board, and produce proof in support thereof. If the latter finds the proof to be satisfactory, payment is made on the basis of the value decided upon by the commission or board of appraisers. Should the claim be rejected, as was plaintiff's herein, there is no necessity for an appraisement to be made. Consequently, the functioning of the commission or board of appraisers is not a condition precedent to the enforced collection of a disputed claim. As a matter of fact, the evidence in the record, adduced on the trial of the merits, reveals that no board or commission of appraisers, as contemplated by sections 3 and 11, has ever been appointed in Rapides parish.
It is next urged that defendant is an arm, instrument, and agency of the state, and cannot be sued without express legislative authorization and consent; and that such has not been given. This furnishes a more serious question. It is a fundamental and well-recognized rule of constitutional law that a state may be sued in its own courts only when it has consented thereto. State ex rel. Louisiana Trust & Savings Bank v. Board of Liquidation of State Debt, 136 La. 571, 67 So. 37. And our examination of the statutes of this state has not revealed any legislative enactment which specifically authorizes the filing of suit against the Louisiana Live Stock Sanitary Board, the defendant herein, and admittedly a state agency.
However, another principle which is also firmly embedded in the basic law of Louisiana, and forms a part of the Bill of Rights of our Constitution, is: That "private property shall not be taken or damaged except for public purposes and after just and adequate compensation is paid." Section 2, article 1. And this provision is self-executing. By reason of it, an agency or political subdivision of the state which has taken or damaged private property for public purposes without paying adequate compensation may be sued therefor, irrespective of the existence or nonexistence of legislative authorization for the suit. "A constitutional prohibition against taking private property for public use without just compensation therefor is self-executing, even though the method of ascertaining such compensation is left for legislative determination." 12 Corpus Juris, verbo, "Constitutional Law," §55. "It is generally recognized that legislation is unnecessary to enable the courts to give effect to constitutional provisions guaranteeing the fundamental rights of life, liberty and the protection of property." 6 Ruling Case Law, verbo, "Constitutional Law," §55. In the case of Chick Springs Water Co. v. State Highway Department, 159 S.C. 481, 157 S.E. 842, 850, the Supreme Court of South Carolina had under consideration a provision of the constitution of that state (article 1, §17) which reads: "Private property shall not be taken for private use without the consent of the owner, nor for public use without just compensation being first made therefor." The court in its opinion said: "No valid distinction can be drawn between cities, counties, and other political subdivisions, referred to in the Faust and other cases, on the one hand, and the state highway department on the other. All are agencies of the state and all derive their immunity from the same source, the state, and upon the ground that, being agencies of the state, they are in effect the state itself. Counties, cities, and other political subdivisions are held liable where they take property, not upon the ground that they are authorized by statute to be sued, but because of the constitutional provision requiring compensation to be made for such taking. This protection is afforded to the humblest citizen by the Constitutions of the state and the United States, and neither government can itself or by any statute or through any agency take property without paying compensation. "Immunity from suit' cannot avail in this instance, and, if no statute...
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