State ex rel. Brenner v. Noe

• Decision Date: 30 November 1936
• Docket Number: 34010
• Citation: 171 So. 708,186 La. 102
• Court: Louisiana Supreme Court
• Parties: STATE ex rel. BRENNER v. NOE, Gov., et al

171 So. 708

186 La. 102

STATE ex rel. BRENNER v. NOE, Gov., et al

No. 34010

Supreme Court of Louisiana

November 30, 1936

Appeal from Nineteenth Judicial District Court, Parish of East Baton Rouge; Amos L. Ponder, Jr., Judge.

Mandamus proceeding by the State, on the relation of C. M. Brenner against James A. Noe, Governor, and others, to compel the Governor to cancel certain mineral leases to William T Burton, and to execute a mineral lease to the relator. With the mandamus proceeding there was coupled an action by the relator to have the leases to Burton declared null. Exceptions filed by the Governor and Burton were sustained and relator appeals.

Judgment amended.

Breazeale & Sachse, of Baton Rouge, and C. Huffman Lewis, of Shreveport, for appellant.

Gaston L. Porterie, Atty. Gen., and George M. Wallace and Wade O. Martin, Jr., Sp. Asst. Attys. Gen., for appellee Richard W. Leche, Gov.

Cline, Thompson & Lawes, of Lake Charles, for appellee Wm. T. Burton.

FOURNET Justice. O'NIELL, C. J., dissents

OPINION

FOURNET, Justice.

This is a proceeding by mandamus to compel the Governor of the state of Louisiana to cancel two mineral leases executed by the late Gov. O. K. Allen to William T. Burton, covering the water bottoms of certain townships located in Caddo and Bossier parishes and to execute a mineral lease of the lands to appellant, C. M. Brenner. Coupled with the mandamus proceeding is an action of nullity, whereby appellant seeks to have the two leases to Burton declared null.

Both the Governor and William T. Burton filed exceptions (1) to the jurisdiction of the court ratione materiae; (2) misjoinder of parties defendants, and of causes of action or improper cumulation of actions; and (3) of no cause or right of action. Burton coupled with his exception to the jurisdiction of the court ratione materiae, an exception to the jurisdiction of the court rationae personae. With full reservation of his rights under the foregoing exceptions, the Governor, in response to the rule, filed a general denial.

The district court sustained all the exceptions, and the plaintiff has appealed.

The allegations of appellant's petition, which must be accepted as true for the purpose of disposing of the exceptions, are that the late O. K. Allen, then Governor of the state of Louisiana, pursuant to the application of W. T. Burton, and in conformity with the provisions of Act No. 30 of the Extra Session of the General Assembly of Louisiana for 1915, as amended by Act No. 315 of the Regular Session of the Legislature of Louisiana for the year 1926, issued an order for the advertisement of mineral leases on water bottoms in townships 20, 21, 22, and 23 north, ranges 14, 15, and 16 west in the parishes of Bossier and Caddo; that on the 17th of August, 1935, a mineral lease was granted on the lands to W. T. Burton, but it was subsequently discovered that the advertisement for bids had not been advertised in Caddo parish and therefore the Governor caused a new advertisement for bids to be published as the statute requires; that in accordance with the requirements of the act a short summary of the terms and conditions of the lease to be executed was incorporated in the advertisement, one of which was that the lessee must agree to drill within one year, or forfeit the lease; that he submitted a bid offering to pay $ 100 as a cash bonus and $ 100,000 in oil at the rate of $ 10,000 per producing well payable out of 7/16 of the oil produced from each well, in addition to the royalties provided by law, and agreed to drill for oil or other minerals on said lands within one year in accordance with the terms prescribed in the advertisement; that the only other bid was that of W. T. Burton, who offered a $ 250 cash bonus and $ 10,000 in oil payable out of 1/8 of 7/8 of the first oil produced, in addition to the regular royalties, but in his bid he agreed to drill a well within two years instead of one, as stipulated in the advertisement; that even though he submitted the only legal bid in accordance with the advertisement, the late Governor O. K. Allen executed a purported lease with Burton, granting him two years within which to drill, contrary to the terms prescribed in the advertisement. Appellant further alleged that he is a citizen and taxpayer of Shreveport, Caddo parish, La., and having submitted the only legal bid with the most advantageous and highest offer, he was entitled to have the lease awarded to him; that the Governor's action was not only illegal but in disregard of the rights of appellant and in violation of his constitutional rights in that it deprived him of his property without due process of law in violation of section 6 of article 1 of the Constitution of Louisiana for the year 1921, and of the Fourteenth Amendment to the Constitution of the United States. He also alleged that the lease dated August 17, 1935, was recorded in Book 343, folio 558 of Caddo parish, but the lease dated January 23, 1936, had not been recorded up to the date of the filing of the petition.

The first complaint is that the court erred in sustaining the exception to the jurisdiction of the court ratione personae which was coupled with one ratione materiae in the same plea. It is unnecessary to discuss the matter, except to state that the jurisprudence of this state is so well settled that an exception to the jurisdiction of the court ratione personae must be tendered in limine and alone and that if any other issue going to the merits be conjointly raised with such exception, the exception ratione personae must necessarily fail, because defendant thereby voluntarily submits himself to the jurisdiction of the court and waives his rights under such exception. State v. Buck, 46 La.Ann. 656, 15 So. 531; Martel Syndicate v. Block et al., 154 La. 869, 98 So. 400, and other cases therein cited. The exception is therefore overruled.

The exception to the jurisdiction of the court ratione materiae, that is, whether the court has jurisdiction to pass upon the legality of a lease executed on water bottoms of the state by the Governor, is primarily based on the ground that such a suit is one against the state, not authorized by the Legislature, and also on the ground that the Governor, as the Chief Executive of the state, is not subject to a writ of mandamus.

The General Assembly of the state of Louisiana passed Act No. 30 of its Extra Session of 1915, " authorizing the Governor to lease lands, including lake and river beds and other bottoms, belonging to the State, and providing the terms and conditions of such leases." Section 1 of the act authorizes the Governor to lease these lands "under the terms and conditions hereinafter set forth." Section 2 prescribes the formalities to be followed by any one who may desire to lease any such land. (Italics ours.) By section 3 the Governor is given the discretionary power to advertise for bids when an application is made, and prescribes the procedure which he must follow if he proposes to lease the land, that is, to advertise for such bids in the official journal of the state and in the official journal of the parish where such land is located for a period of not less than fifteen days, setting forth therein "a description of the land to be leased by the State, the time when bids therefor will be received, a short summary of the terms and conditions of the lease or leases to be executed, and, in his discretion, the royalty to be demanded should he deem it to the interests of the State to call for bids on the basis of a royalty fixed by him; provided, that if such lands be situated in two or more parishes such advertisement shall appear in the official journals of all of the parishes where such lands may partly lie." (Italics ours.) Section 4, as amended by Act No. 315 of 1926, makes it the mandatory duty of the Governor to open the bids in public at the State Capitol on the date and at the hour set forth in the advertisement, and vests in him the authority to execute the leases "to the highest bidders therefor, under such terms and conditions as to him seem proper," with the right to reject any and all bids.

It was held, in the case of State ex rel. John McEnery v. Francis T. Nicholls, Governor, et al., 42 La.Ann. 209, 7 So. 738, 742, that a suit against the Governor and the register of the state land office to compel them to deliver patents for certain lands and to transfer certain swamp land indemnity certificates, authorized under Act No. 23 of 1880, was not a suit against the state. The court in that case said:

"In no proper sense is the state a party to this suit, and no judgment or relief is asked for against her. * * *

"The rights which relator seeks to enforce flow out of Act 23 of 1880, by the terms of which the governor was selected as the mandatory of legislature to carry its will into effect."

In the case of State ex rel. Higgins v. Aicklen et al., 167 La. 456, 119 So. 425, 427, it was contended, as it is in this case, that the action of the Governor was not subject to judicial investigation. It was claimed that the court had no power to review the actions of the Governor in proclaiming the village of Metairie Ridge incorporated under the authority vested in him by the eleventh section of Act No. 136 of 1898.

In discussing the right of the Legislature to prescribe rules and regulations for the creation of municipal corporations under the eleventh section of Act No. 136 of 1898, the court quoted, with approval, the following from Corpus Juris, Vol. 43, § 17, pp. 77-79, viz.:

"In a majority of the states, the creation of a municipal corporation within the territorial limits of a state is within the power of the...