Fischer Land and Improvement Co. v. Bordelon

• Decision Date: 01 January 1900
• Docket Number: 13,312
• Citation: 52 La.Ann. 429,27 So. 59
• Court: Louisiana Supreme Court
• Parties: FISCHER LAND AND IMPROVEMENT CO. v. LANDRY L. BORDELON, PRESIDENT, POLICE JURY

27 So. 59

52 La.Ann. 429

FISCHER LAND AND IMPROVEMENT CO. v. LANDRY L. BORDELON, PRESIDENT, POLICE JURY

No. 13,312

Supreme Court of Louisiana

January 1, 1900

APPEAL from the Tenth Judicial District, Parish of Avoyelles. Lafargue, J.

Saunders & Gurley and Joseph Clifton Cappel, for Plaintiff, Appellant.

Charles V. Porter, District Attorney, (Joffrion & Joffrion of Counsel) for Defendant, Appellee.

OPINION

WATKINS J.

The plaintiff seeks to recover from the Parish of Avoyelles, in its corporate capacity, the sum of seventy-five thousand dollars damages, for this, to-wit:

That it is the owner of several thousand acres of swamp land situated in said parish, which is heavily timbered with cypress and other valuable timber. That a contract was made with the Police Jury of said parish, represented by a formal resolution, whereby its transferer, Conrad B. Fischer, was granted the right to construct a dam or lock on what is known as the Old Canal, connecting Turner's Bayou with Bayou Jack; and in compliance with the provision of said resolution, Fischer furnished bond with good and solvent security in the sum of five thousand dollars, to cover any damages that might be sustained by any property owners in the vicinity of said lands from overflow or other causes attributable to the construction or operation of said dam.

That in consideration of said privilege, Fischer purchased and entered about thirty thousand acres of swamp land, with the view of manufacturing the timber thereon into lumber.

That in pursuance of said contract, Fischer constructed a dam or lock in said canal, in accordance with said resolution; and in order to successfully operate the same, built protecting wings or levees at great expense and extended them out from said locks in sufficient height and length to enable him to float and market the saw-logs cut from said timber, and that same were absolutely necessary for that purpose.

That as the water held by petitioner's dams and levees began to accumulate on petitioner's lands, sundry persons of the defendant parish, most of them residing on Bayou Jack, did during such time on divers and frequent occasions, openly threaten to destroy petitioner's property, levees and dams, and did threaten petitioner's workmen, who were engaged in working on said timber, and by intimidation and assault did drive many of them from their work; that said residents, on divers and frequent occasions, held open and public mass meetings, threatening the cutting and destruction of petitioner's property and to bodily harm the petitioner's workmen.

That all of said facts and acts were made known to the Police Jury of the defendant parish, and that instead of trying to prevent such mob violence, such officers openly encouraged said citizens to commit said acts of destruction and waste.

That notwithstanding petitioner made frequent demands of the president of the Police Jury of the defendant parish, as well as the sheriff of same, to protect its property, calling attention to the threats which had been made, and offering to advance the necessary money to guard their said property, said officers disregarded all such appeals, and encouraged said mob violence; and that said Police Jury at the most critical period of time, and in the very heat of such open threats, repealed the original resolution granting the right to build said locks and dams and without any notice to petitioner.

That on or about the 16th of April, 1897, petitioner's said locks were cut and destroyed by the mob, composed of about seventy-five citizens from the aforesaid portion of said defendant parish -- the names of several of them being enumerated, and the statement is then made that others of the party were unknown.

That the aforesaid willful destruction of their property, by such mob violence, was but the execution of previous threats, and same could not be prevented by petitioner, and was encouraged by the unwarranted action of the Police Jury in attempting to repeal the aforesaid resolution.

That having been apprised of these threats, they did all in their power to pacify the mob, offering to pay any damages shown, without resort to litigation; that these offers were repeatedly made to citizens directly and through the Police Jury.

That it was the duty and obligation of the lawful authorities of the parish of Avoyelles to protect petitioner's property and workmen, and that they could have easily done so; that they failed in their duty and that such failure caused the damages hereinbefore and hereinafter complained of; and that said parish is liable therefor.

Thereupon, plaintiff's petition circumstantially recites the various particulars of the damages it alleges it sustained, and aggregating the sum mentioned.

The petition concludes with the following averment, to-wit:

"That said parish of Avoyelles is directly responsible for all loss and damages occasioned by the unlawful and violent destruction of petitioner's property by the mob of citizens as above set forth, and is, therefore, indebted unto petitioner in the amount claimed."

Without answering to the merits, the defendant tendered a plea of no cause of action; and said exception having been sustained and suit dismissed, the plaintiff prosecutes the present appeal from a judgment of dismissal.

In the argument of plaintiff's counsel at the submission of the cause, and in their brief as well, the statement is made that this suit is instituted under Section 2453 of the Revised Statutes, which provides:

"The different municipal corporations in this State shall be liable for the damages done to property by mobs or riotous assemblages in their respective limits."

And, thereupon, the further statement is made that the defendant's exception "proceeds upon the theory that this section applies to cities and towns only, and that the words 'municipal corporations' do not embrace parishes."

The argument on the part of the defendant is, that a parochial corporation is not liable in damages because of the wrongful performance, by its officers, of such duties as pertain to the police or public powers of the State, or for the negligent failure of its officers to perform such duties, in the absence of a statute creating liability.

That there is a marked distinction between the powers and duties and the resultant liability of municipal corporations, proper, such as chartered cities, towns and villages, and quasi or involuntary corporations, such as counties, parishes, etc.

That Section 2453 of the Revised Statutes does not apply to, or include parochial corporations; that in the sense of that statute a parochial corporation is not a municipal corporation.

That the legislation of the State as well as the jurisprudence of this court, have always preserved a distinction between municipal and parochial corporations; that consequently, the parish of Avoyelles is not liable to the plaintiff for the causes assigned.

Presumably, it was upon this ground that the district judge sustained the defendant's exception of no cause of action and dismissed its suit.

Consequently, the limit of our decision must be restricted to the definition of that term; that is to say, whether the term "municipal corporations" is to be restricted to cities and towns only, or so construed as to embrace parishes.

This court had under consideration a question of damages ex delicto against a municipality, in the case of City of New Orleans vs. Kerr, 50th Ann., 413; and we there decided that the powers and obligations of municipal corporations like the city of New Orleans, are two fold in character: those that are of a public nature, and those of a private nature -- citing various decisions of this court.

We further held that in respect "to the first or public character of its powers and obligations, the municipal corporation represents the State -- discharging duties incumbent on the State. As to the second, or private character of its powers and obligations, the municipal corporations represents the pecuniary and proprietary interests of individuals. As to the first, where a municipal corporation acts as the agent of the State, it becomes a representative of the sovereignty, and is not answerable for the nonfeasance or malfeasance of its public agents.

"As to the second, the rules which govern the responsibility of individuals are properly applicable" -- citing various authorities.

It is the duties and obligations of the second character which plaintiff, in this case, seeks to enforce against the parochial corporation of Avoyelles -- treating it as a municipal corporation, and demanding damages arising from the alleged tort.

But, the insistence of counsel for the defendant is, that a parish is not a municipal corporation per se, but is only a political division of the State, and, as such, is but the agent of the State, and the representative, in part, of its sovereignty, and is not, therefore, answerable in damages to the plaintiff; and that no liability attaches to the defendant on account of the alleged acts of nonfeasance of her officers.

In other words, that a parish possesses and exercises no powers of a private character, such as those incident to a municipal corporation, and, therefore, does not represent the pecuniary and proprietary interests of the individual citizens of the parish.

This court recently had, also, under consideration a case in damages ex delicto, against a parochial corporation in Sherman vs. Parish of Vermillion, 51st Ann., 880 -- the case being that of a party serving on a jury in a criminal case, and receiving injuries while in the care of the sheriff from which he died, and the charge being that the sheriff "was culpably negligent in giving their son and other...