Jefferson Parish v. Louisiana Dept. of Corrections

Decision Date07 June 1971
Docket NumberNo. 51299,51299
Citation259 La. 1063,254 So.2d 582
PartiesPARISH OF JEFFERSON v. LOUISIANA DEPARTMENT OF CORRECTIONS.
CourtLouisiana Supreme Court

Jack P. F. Grmillion, Atty. Gen., Melvin L. Bellar, Frank L. Dobson, Asst. Attys. Gen., for defendant-appellant.

Roy L. Price, Parish Atty., James S. Arceneaux, Asst. Parish Atty., Sam J. Chauppette, Sp. Counsel, for plaintiff-appellee.

M. Hepburn Many, Many, Hartman, LoCoco & Dwyer, New Orleans, Dodd, Hirsch, Barker, Avant & Wall, John L. Avant, Baton Rouge, for amicus curiae.

HAMLIN, Justice:

Defendant appeals from a judgment of the trial court in favor of the Parish of Jefferson and against Louis M. Sowers, 1 Director of the Louisiana Department of Corrections, which forever enjoined, restrained, and prohibited Sowers and his successors in office from purchasing the site and facilities known as the 'House of The Good Shepherd,' containing approximately thirty acres of land on the River Road, Parish of Jefferson, and declared sub-section 4 of Sec. 902 of Act 353 of [259 La. 1068] 1970, Act 452 of 1970, and Sec. 834 of Act 192 of 1968, unconstitutional.

Act 192 of 1968 amended Chapter 7 of Title 15 of the Louisiana Revised Statutes of 1950 by adding thereto a new part to be designated as Part III-A thereof to contain R.S. 15:821 through 15:839, relative to prisons and correctional institutions. It provided for the merger of the Louisiana Board of Institutions and the Department of Institutions and consolidated the functions thereof into the Louisiana Department of Corrections (hereinafter referred to as the Department). LSA-R.S. 15:834 was enacted to read in part as follows:

'Sec. 834. Lands under control of department; lease, rights of way, purchase

'* * * The director shall also have the authority, with the approval of the Board of Corrections and the Governor, to buy lands needed for the proper use of any institution under the jurisdiction of the department; and also to sell and transfer to any other state agency real property belonging to the state and under the jurisdiction of the department.'

Act 246 of 1968 provides in part:

'To amend Chapter 7 of Title 15 of the Louisiana Revised Statutes of 1950 by adding thereto a new Part, to be designated as Part IV-A thereof and to contain R.S. 15:891 through 15:894, relative to prisons and correctional institutions; to authorize the Louisiana State Department of Institutions to create and establish a juvenile correctional institution, a women's correctional facility, an adult correctional institution and a diagnostic and treatment center, and to provide with respect to the personnel for said center.

'Be it enacted by the Legislature of Louisiana:

'Section 1. Part IV-A of Chapter 7 of Title 15 of the Louisiana Revised Statutes of 1950, comprising R.S. 15:891 through R.S. 15:894, is hereby enacted to read as follows:

'PART IV-A. ADDITIONAL INSTITUTIONS

' § 891. Juvenile correctional institution

'The Louisiana State Department of Institutions is hereby authorized to create, establish, operate and maintain a juvenile correctional institution in the greater New Orleans area for children under seventeen years of age who have been or shall be legally adjudged delinquent or neglected juveniles, as defined by law, by a juvenile court of Louisiana or by the district courts sitting as juvenile courts.'

Act 353 of 1970 provides in part:

'To amend Chapter 7 of Title 15 of the Louisiana Revised Statutes of 1950 by adding thereto a new Part to be designated as Part IV-B thereof to contain R.S. 15:901 through 15:907, and To repeal Sections 891, 911 through 918, 971 through 978 and 1011 through 1018 Title 15 of the Louisiana Revised Statutes of 1950, all relative to juvenile institutions operated by the Louisiana Department of Corrections; to establish a juvenile reception and diagnostic center; to provide for the commitment of juveniles to the said department of corrections; to require the examination of all such juveniles at the juvenile reception and diagnostic center; to provide for the assignment by the said department of corrections of juvenile offenders to the several juvenile institutions operated by the said department of corrections; and to provide with respect thereto.

'Be it enacted by the Legislature of Louisiana:

'Section 1. Part IV--B of Chapter 7 of Title 15 of the Louisiana Revised Statutes of 1950 is hereby enacted to read as follows:

' § 902. Juvenile institutions

'The department of corrections shall establish, operate and maintain the Louisiana Training Institute for juveniles, with the following branches:

'(4) the Louisiana Training Institute, to be located in the greater New Orleans area.' (Emphasis ours.)

Act 452 of 1970 provides:

'To authorize Louisiana Department of Corrections to purchase the site and facilities known as the House of the Good Shepherd, containing approximately thirty acres of land on the right descending bank of the Mississippi River located on the river road, near 'Bridge City' in the Parish of Jefferson, State of Louisiana; and to establish on said site the juvenile correctional institution Authorized by the provisions of Act No. 246 of 1968, and otherwise to provide with respect thereto.

'Be it enacted by the Legislature of Louisiana:

'Section 1. The Louisiana Department of Corrections is hereby authorized to purchase the site and facilities known as the House of the Good Shepherd, containing approximately thirty acres of land on the right descending bank of the Mississippi River, located on the river road near 'Bridge City' in the Parish of Jefferson, State of Louisiana; and to establish on said site the juvenile correctional institution authorized by the provisions of Act No. 246 of 1968.

'Section 2. The Louisiana Department of Corrections is authorized to expend out of funds available to it such sums as may be necessary for the implementation of this Act.

'Section 3. All laws or parts of laws in conflict herewith are hereby repealed.

'Section 4. The necessity of the immediate passage of this Act having been certified by the Governor to the Legislature while in session, in accordance with Section 27 of Article III of the Constitution of Louisiana, this Act shall become effective immediately upon approval by the Governor. 2' (Emphasis ours.)

By virtue of the legislation supra, the Department commenced negotiations for the purchase of the property herein involved--the 'House of The Good Shepherd,' located in Jefferson Parish but embraced in the Greater New Orleans Area. It is stipulated that the Governor of the State of Louisiana signified his consent to the negotiations for the purchase of the property.

Mr. Hugh Ford, Planning Director of the Department of Planning, Parish of Jefferson, testified that the 'House of The Good Shepherd' area was originally zoned as 'Single Family Residential' when the first Comprehensive Zoning Ordinance was adopted by the Parish Council in 1958. In 1959 or 1960, the property was reclassified 'R-3' for the specific purpose of allowing a private institution which could not be located on the site if it were zoned 'R-1'--single family residential--to be located in the area. The property was reclassified in 1969 to 'R-2', which permits single family structures; two-family structures; churches; schools; buildings used exclusively by local, State, and Federal Offices, except penal and correctional institutions. Presently, the non-conforming use under which the 'House of The Good Shepherd' operates is permitted by Section XIX of the Comprehensive Zoning Ordinance. 3

Alleging violations of the zoning ordinances of Jefferson Parish and numerous constitutional violations with respect to the alleged purpose (establishment of a juvenile correctional institution) for which the Department would use the 'House of The Good Shepherd' if purchased, the Parish of Jefferson instituted the present injunction proceedings in which it prayed that the Department be enjoined from '(1) Purchasing the site and facilities known as the 'House of The Good Shepherd' in the Parish of Jefferson, State of Louisiana; and (2) Establishing on said site the juvenile correctional institution that was authorized by Act No. 246 of 1968.' It also prayed that certain parts of the legislation supra be declared unconstitutional.

The Sisters of the Good Shepherd intervened in the proceedings in support of the position of the defendant who asked that plaintiff's demands be rejected. Intervenor averred that it had agreed to sell its property to the State of Louisiana through its Department of Corrections on certain terms and conditions.

With the permission of the trial court, counsel for the defendant recalled prefatory and peremptory exceptions previously filed. Counsel consented that the issues go to trial on both the Rule for Preliminary Injunction and on the Merits of the Application for a Permanent Injunction.

Initially, we find that the trial court had the authority to try this matter. We agree with its statement that, 'There is no question in the Court's mind that the Court has a right and a duty to invoke injunctive relief in cases dealing with the constitutionality of the State Statutes. The Court cites as authority for this, the case of Carso vs. Board of Liquidation of State Debt, 205 La. 368, 17 So.2d 358; and the Court also cites the case of city of Natchitoches v. State of Louisiana, Third Circuit 1969 (La.App.), 221 So.2d 534.'

In its reasons for judgment the trial court stated that it was concerned with the effect of LSA-R.S. 15:891, as set forth in Act No. 246 of 1968, supra. The question, 'was this Section 891 the law immediately after the passage of Act 452 of 1970 and immediately after the passage of Act No. 353 of 1970?' was posed and was answered as follows:

'It is quite clear from ACT No. 353 that Section 891 of ACT No. 246 of 1968 was repealed relative to the creation of a Juvenile Correctional Institution in the Greater New...

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