Lewis v. State

• Decision Date: 15 January 1945
• Docket Number: 36902.
• Citation: 207 La. 194,20 So.2d 917
• Court: Louisiana Supreme Court
• Parties: LEWIS v. STATE.

20 So.2d 917

207 La. 194

LEWIS v. STATE.

No. 36902.

Supreme Court of Louisiana

January 15, 1945

Appeal from Nineteenth Judicial District Court, Parish of East Baton Rouge; Charles A. Holcombe, Judge.

Annie C. Lewis, in pro. per., for plaintiff and appellant.

Fred S. LeBlanc, Atty. Gen., and M. E. Culligan, Sp. Asst. Atty Gen., for appellee.

ROGERS Justice.

Miss Annie C Lewis sued the State of Louisiana under the authority conferred upon her by Act 273 of 1942. Plaintiff's suit is for the recovery of damages for personal injuries allegedly sustained by her in the year 1906 as the result of certain acts of cruelty and wilful neglect committed by the then employees and superintendent of the Central Louisiana State Hospital at Pineville, while she was detained in that institution.

The State of Louisiana, appearing through counsel, filed exceptions to the jurisdiction of the court ratione personae and ratione materiae, on the ground that Act 273 of 1942 is unconstitutional in that it fails to provide the method of procedure required by Section 35 of Article 3 of the Constitution of 1921. The trial judge sustained the exceptions and dismissed the suit and plaintiff has appealed from the judgment.

The Legislature, by Act 273 of 1942, authorized the plaintiff to institute a suit against the State of Louisiana upon her claim for damages resulting from the personal and permanent injuries sustained by her in the year 1906 while she was confined in the hospital operated by the State at Pineville which injuries plaintiff alleges resulted from the 'maltreatment of the employees and the malpractice and neglect of the Superintendent of the said State Hospital.' Section 2 recognizes the justness of plaintiff's claim. Section 3 of the act reads as follows: 'That the said Miss Annie C. Lewis of Iberia Parish, State of Louisiana, be and she is hereby authorized to file suit against the State of Louisiana, and that the State of Louisiana is permitted to be sued and stand in judgment in the matter of the Claims for damages due to Miss Annie C. Lewis for the permanent injuries she sustained in the State institution.' Section 4 authorizes and directs the State Treasurer to pay any judgment obtained by plaintiff against the State of Louisiana, the payment to be made out of the General Fund or any other fund especially appropriated to pay the claim. Section 5 waives prescription, and Section 6 contains the repealing clause. The title of the act is in keeping with the body of the act with the exception that it refers to the court or courts in which the suit may be filed, towit: 'The 19th Judicial District Court, Parish of East Baton Rouge, Louisiana, or in the District Court of the Parish of Rapides where the accident occurred * * *'.

Section 35 of Article 3 of the Constitution, under the authority of which Act 273 of 1942 was adopted, reads as follows: 'Whenever the Legislature shall authorize suits to be filed against the State, it shall provide a method of procedure and the effect of the judgments which may be rendered therein.'

While the venue of the contemplated suit is referred to in the title of the act, it is not referred to in the body of the act. Defendant contends that because in this respect the title is broader than the body and since the act itself is silent as to the venue and the procedure to be followed in prosecuting the suit, the act fails to meet the mandatory requirements of Section 35 of Article 3 of the Constitution and is therefore unconstitutional.

It is fundamental under our system of government that a state can not be sued in its own, or in any other courts, unless it has expressly consented to such suit, except in those cases within the original jurisdiction of the Supreme Court of the United States. State v. Liberty Oil Company, 154 La. 267, 97 So. 438; State ex rel. Louisiana Trust & Savings Bank v. Board of Liquidation, 136 La. 571, 67 So. 370; State v. Gaines, 46 La.Ann. 431, 15 So. 174; State ex rel. Cunningham v. Lazarus, 40 La.Ann. 856, 5 So. 289. From which it follows, as a necessary corollary, that a State's immunity from suit is a privilege which may be waived, and a State may be sued whenever it has consented thereto. But since the State can be sued only by its consent, it may impose such limitations and restrictions on the right of suit as it pleases. Wright v. State Board of Liquidation, 49 La.Ann. 1213, 22 So. 361.

Prior to the adoption of the Constitution of 1898, it does not appear that there was any constitutional or statutory provision in this State permitting the waiver of the State's exemption from suit. By Article 192 of the Constitution of 1898, which was reproduced as Article 192 of the Constitution of 1913, the Legislature was given the power to authorize a suit against the State. In those constitutional articles the procedure to be followed and the effect of the judgment to be rendered in such suits was set forth in great detail. But under Section 35 of Article 3 of the Constitution of 1921, which also empowers the Legislature to authorize suits against the State, the drastic features of the demand and of the suit and the effect of the judgment when rendered, required by Articles 192 of the Constitutions of 1898 and 1913 were eliminated and more freedom of action was allowed the Legislature in granting such authorization, for Section 35 of Article 3 of the Constitution of 1921 merely declares in general terms that whenever the Legislature authorizes a suit against the State, 'it shall provide a method of procedure and the effect of the judgments which may be rendered therein.' Under this constitutional provision, the conditions imposed upon a plaintiff authorized to sue the State may be as regards the procedure to be followed as complicated or as simple as the Legislature, in its discretion, may deem it necessary to prescribe.

We can not concur in the contention of the defendant that the Legislature's grant of authority to the plaintiff to sue the State is unconstitutional because it fails to meet the mandatory requirements of Section 35 of Article 3 of the Constitution of 1921. The contention is based upon defendant's assumption that Act 273 of 1942 is a law within the meaning and contemplation of the constitutional provisions governing legislative enactments which, with executive approval or without such approval if not disapproved within the prescribed time, are intended to permanently direct and control matters applying to persons or things in general, instead of dealing as it does, with a matter of special or temporary character. Notwithstanding a legislative act authorizing a suit to be brought against the State is of a special character, this Court has held that the waiving of immunity or exemption from suit of the State and the authorization by the Legislature to a person to sue the State is not a special or local law within the meaning of a constitutional provision requiring the publication of notice of the proposed introduction of such a law. It is simply a special act authorizing a person to sue, needing no notice to be given to authorize its enactment and being uncontrolled as to its own course. See Durbridge v. State, 117 La. 841, 42 So. 337 and Lewis v. State, 196 La. 814, 200 So. 265; see also Aguillard v. State, citing with approval Lewis v. State, decided by the Court of Appeal for the Second Circuit, in which a writ of review was refused by this Court, La.App., 7 So.2d 645.

Act 273 of 1942 did not receive executive approval, but, as disclosed by a note appended to the official publication, having been submitted to the Governor for his approval or disapproval and not having been acted upon within the time limit prescribed by the Constitution, it became a law by limitation.

Under the wording of Section 35 of Article 3 of the Constitution, the right is vested in the Legislature, and not in the Legislature with the approval of the Governor, to authorize the institution of a suit against the state. The constitutional provision reads in part: 'Whenever the Legislature shall authorize suit to be filec against the State, * * *.' (Writer's italics.) The provision does not declare that the Legislature shall, by a law formally adopted, permit suit to be brought against the State, but merely that the Legislature shall authorize such a suit, without specifying the manner in which such authorization may be given. In other words, the Legislature may, without attempting to pass a general or special law pursuant to the constitutional provision, pass a joint resolution, which, although not effective as a law, is effective as a consent of the State to subject itself to suit. Under Section 17 of Article 5 of the Constitution of 1921, such a resolution when passed by the Legislature would become effective without the approval of the Governor.

The power vested in the Legislature by the Constitution to waive the State's immunity from suit is not limited to any particular kind of rights or causes of action.

Although it is not liable therefor, unless it has voluntarily assumed such liability, the State has the capacity to commit tortious acts, and, as in other cases, where the State has failed to exercise the care required of it, and thereby an injury is sustained, it is guilty of an act of negligence. 59 C.J. States, sec. 336, pages 193, 194. The State may likewise waive its exemption from liability for the torts of its officers and agents and prescribe the conditions for recovery and where it has voluntarily assumed such liability recovery may be had against it. 59 C.J., States, sec. 339, page 195. Section 35 of Article 3 of the Constitution providing that the State may be sued only with its permission does not mean that conduct which would be tortious in others is not a...