Hamilton v. City of Shreveport, No. 47551

CourtSupreme Court of Louisiana
Writing for the CourtFOURNET; HAMITER; PER CURIAM; HAMITER
Citation174 So.2d 529,247 La. 784
Decision Date29 March 1965
Docket NumberNo. 47551
PartiesWilliam B. HAMILTON et al. v. CITY OF SHREVEPORT.

Page 529

174 So.2d 529
247 La. 784
William B. HAMILTON et al.
v.
CITY OF SHREVEPORT.
No. 47551.
Supreme Court of Louisiana.
March 29, 1965.
Rehearing Denied May 3, 1965.

[247 La. 786] Wilkinson, Lewis, Woods & Carmody, W. Scott Wilkinson, William B. Hamilton, Shreveport, for plaintiffs-petitioners.

J. N. Marcantel, John Gallagher, Andrew B. Gallagher, Shreveport, for defendant-respondent.

FOURNET, Chief Justice.

We granted a writ of certiorari to review the judgment of the Court of Appeal, Second Circuit, on the application of the plaintiffs 1, sustaining the defendant's plea

Page 530

of governmental immunity from tort liability and reversing the judgment of the trial court awarding them damages to their respective properties as the result of the City of Shreveport's action in raising the water level of Cross Lake in order to maintain an adequate water supply for the City's waterworks system, limiting, however, our review of the judgment of the Court of Appeal to the question of whether the City is immune from liability in view of Article 3, [247 La. 787] Section 35 2 of the Constitution, as amended pursuant to Act 621 of the Legislature of 1960, by its adoption on November 8, 1960. See, 168 So.2d 380.

It is apt to observe that the Legislature of 1960 in adopting the aforementioned proposed amendment did so with the express purpose of nullifying the effect of two decisions of this court, Duree v. Maryland Casualty Co., 238 La. 166, 114 So.2d 594, (rehearing denied October 9, 1959), and Stephens v. Natchitoches School Board, 238 La. 388, 115 So.2d 793, (rehearing denied December 14, 1959), holding that whenever the Legislature authorized suit [247 La. 788] under Section 35 of Article 3 of the Constitution of 1921, as amended pursuant to Act No. 385 of 1946, it simply waived the traditional immunity of the state and its subdivisions from suit and did not constitute a waiver of the state or its agencies from liability for the negligence of one of its employees in the exercise of a governmental function.

Counsel for plaintiffs contend this Section 'has no bearing on the present issues' as it 'does not confer any immunity and deals only with the power of the Legislature to waive immunity whenever it exists;' but if it does apply, they point [247 La. 789] out the immunity from both suit and liability of the defendant is expressly waived under the Constitution, as amended, inasmuch as the Legislature incorporated in the City Charter of Shreveport language empowering the City to sue and be sued 3, and also

Page 531

to plead and be impleaded in any and all courts whatsoever.

Defendant is in agreement with plaintiffs' claim that the Article, as amended, has no bearing on the present issue as the Legislature, in granting Shreveport its Charter, reserved to it certain privileges and immunities and that its power to sue and be [247 La. 790] sued is limited by the provisions of Chapter 2, Section 2.01 4 thereof, and further maintains the Legislature 'never intended to eliminate the right of the City to impose as a defense its governmental immunity as a bar to delictual actions involving its performance of such activity,' but rather, was endeavoring the cure the 'specific problem' created by the Duree and Stephens cases by providing that the Legislature could waive immunity from liability whenever appropriate. In the alternative, defendant contends that in light of the provisions of Article 19, Section 26 5 of the Constitution, [247 La. 791] it is made a special agency of the state and, as such, is immune from liability in the case at bar in view of the public and recreational nature that Cross Lake has assumed in the past years, despite its original purpose to furnish a water supply to defendant's inhabitants.

A mere reading of Section 35, reported in full in footnote 2, will readily disclose that the Legislature is empowered to waive the immunity of the state and its political subdivisions from both suit and liability, and further specifically provides that 'each...

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33 practice notes
  • Board of Com'rs of Port of New Orleans v. Splendour Shipping & Enterprises Co., Inc., No. 52156
    • United States
    • Supreme Court of Louisiana
    • January 15, 1973
    ...shows that it was intended to have the powers of a corporation to sue and be sued, and, therefore, under Hamilton v. City of Shreveport, 247 La. 784, 174 So.2d 529, the immunity from suit was Act 70 of 1896 created the Board of Commissioners of the Port of New Orleans. Section 2 of that act......
  • Austin v. City of Baltimore, No. 132
    • United States
    • Court of Appeals of Maryland
    • September 13, 1979
    ...Carroll v. Kittle, 203 Kan. 841, 457 P.2d 21 (1969); Haney v. City of Lexington, 386 S.W.2d 738 (Ky.1964); Hamilton v. City of Shreveport, 247 La. 784, 174 So.2d 529 (1965); Davies v. City of Bath, 364 A.2d 1269 (Me.1976); Pittman v. City of Taylor, 398 Mich. 41, 247 N.W.2d 512 (1976); Will......
  • Gray v. State Through Dept. of Highways, No. 1698
    • United States
    • Court of Appeal of Louisiana (US)
    • November 3, 1966
    ...Court's recent construction of the 1960 amendment of Article III, Section 35, Louisiana Constitution in Hamilton v. City of Shreveport, 247 La. 784, 174 So.2d 529 as effectuating such waiver so as to obviate special legislative permission to sue for injuries caused subsequent to the Legal t......
  • Jones v. State Highway Commission, No. 60017
    • United States
    • Missouri Supreme Court
    • September 12, 1977
    ...738 (Ky.1964); Board of Commissioners v. Splendour Shipping & Enterprises Co., 273 So.2d 19 (La.1973); Hamilton v. City of Shreveport, 247 La. 784, 174 So.2d 529 (1965); Morash & Sons, Inc. v. Commonwealth, 363 Mass. 612, 296 N.E.2d 461 (1973); Myers v. Genesee County Auditor, 375 Mich. 1, ......
  • Request a trial to view additional results
33 cases
  • Board of Com'rs of Port of New Orleans v. Splendour Shipping & Enterprises Co., Inc., No. 52156
    • United States
    • Supreme Court of Louisiana
    • January 15, 1973
    ...shows that it was intended to have the powers of a corporation to sue and be sued, and, therefore, under Hamilton v. City of Shreveport, 247 La. 784, 174 So.2d 529, the immunity from suit was Act 70 of 1896 created the Board of Commissioners of the Port of New Orleans. Section 2 of that act......
  • Austin v. City of Baltimore, No. 132
    • United States
    • Court of Appeals of Maryland
    • September 13, 1979
    ...Carroll v. Kittle, 203 Kan. 841, 457 P.2d 21 (1969); Haney v. City of Lexington, 386 S.W.2d 738 (Ky.1964); Hamilton v. City of Shreveport, 247 La. 784, 174 So.2d 529 (1965); Davies v. City of Bath, 364 A.2d 1269 (Me.1976); Pittman v. City of Taylor, 398 Mich. 41, 247 N.W.2d 512 (1976); Will......
  • Gray v. State Through Dept. of Highways, No. 1698
    • United States
    • Court of Appeal of Louisiana (US)
    • November 3, 1966
    ...Court's recent construction of the 1960 amendment of Article III, Section 35, Louisiana Constitution in Hamilton v. City of Shreveport, 247 La. 784, 174 So.2d 529 as effectuating such waiver so as to obviate special legislative permission to sue for injuries caused subsequent to the Legal t......
  • Jones v. State Highway Commission, No. 60017
    • United States
    • Missouri Supreme Court
    • September 12, 1977
    ...738 (Ky.1964); Board of Commissioners v. Splendour Shipping & Enterprises Co., 273 So.2d 19 (La.1973); Hamilton v. City of Shreveport, 247 La. 784, 174 So.2d 529 (1965); Morash & Sons, Inc. v. Commonwealth, 363 Mass. 612, 296 N.E.2d 461 (1973); Myers v. Genesee County Auditor, 375 Mich. 1, ......
  • Request a trial to view additional results

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