Hamilton v. City of Shreveport

• Decision Date: 29 March 1965
• Docket Number: No. 47551,47551
• Citation: 174 So.2d 529,247 La. 784
• Parties: William B. HAMILTON et al. v. CITY OF SHREVEPORT.
• Court: Louisiana Supreme Court

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.

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 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, 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 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 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 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 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, 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 authorization by the Legislature for suit against the State or other such public body, Heretofore and hereafter enacted or granted, shall be construed to be and shall be effective and valid for all purposes * * * as a waiver of the defendant's immunity both from suit and from liability.' See, Terrebonne Parish School Board v. St. Mary Parish School Board, 242 La. 667, 138 So.2d 104 and Pittman Construction Company v. Housing Authority of New Orleans, La.App., 169 So.2d 122. (Emphasis ours)

From the foregoing, it is obvious that the argument of counsel for the defendant that the Legislature, in proposing the amendment at issue and the people in adopting it, only intended to waive the immunity of the state and its subdivisions from tort actions resulting from their proprietary activities and not to waive the traditional immunity of the state and its subdivisions in actions founded on the tortious conduct of its officers and employees when functioning in a governmental capacity, is clearly without merit and we fail to appreciate the rationale of counsel's ingenious argument that the provisions of Chapter 2, Section 2.10 of the Charter of Shreveport, reported in full in footnote 4, exclude Shreveport as one of the subdivisions of the state covered by Section 35 of Article 3 of the Constitution, as amended.

Counsel's alternative contention is equally without merit. While it is true that Cross Lake, as they maintain, despite its original purpose to furnish the City with an adequate supply of fresh water, also 'provides hunting and fishing, both commercial and recreational' and has, in past years, become 'ringed with camps, cottages and many private homes,' resulting in a rise of the 'property value of the residential and commercial properties surrounding it,' we cannot agree with counsel that the City acquired a position of operating a park and recreational area within the contemplation of Article 19, Section 26. Moreover, the water level of Cross Lake was raised for the purpose of securing and insuring an adequate fresh water supply for the City of Shreveport and its inhabitants.

In view of the clear and explicit language of Section 35, as amended, we cannot accede to counsel's suggestion, made both orally and in brief, that the City should be exempted from a rigid enforcement of its provisions when engaged in the performance of governmental functions inasmuch as it will be plunged 'into a morass of litigation, both petty and major,' which will inescapably produce a burden on the fisc of the City, for to do so, we would have to add to this Section a clause so limiting it--in other words, we would have no rewrite this Section which we are not authorized to do--such authority being within the exclusive province of the Legislature to recommend and the people to adopt; consequently, any change in its application must be addressed to the Legislature and the people of this state.

For the reasons assigned, the judgment of the Court of Appeal, Second Circuit, is...