State ex rel. Fitzpatrick v. Grace
| Decision Date | 24 May 1937 |
| Docket Number | 34118 |
| Citation | 187 La. 1028,175 So. 656 |
| Court | Louisiana Supreme Court |
| Parties | STATE ex rel. FITZPATRICK v. GRACE, Register of State Land Office, et al |
Original Opinion November 30, 1936, Reported at 187 La. 1028 175 So. 656.
WESTERFIELD Judge ad hoc. O'NIELL, C. J., and LAND and ODOM, JJ dissent.
Relator seeks by mandamus to compel Lucille May Grace, the register of the state land office, and L. B. Baynard, the state auditor, to transfer to the Atchafalaya Basin Levee District certain lands which, it is alleged, were adjudicated to the State of Louisiana in the year 1895, in the name of W. S. Lovell, in order to remove a cloud upon the title of relator who claims to have acquired an interest in the Lovell lands from the Houma National Bank on August 18, 1911. The Houma National Bank acquired at a foreclosure sale from the Caillon Manufacturing Company, the preceding vendors being James W. Martin, Edward Wisner, and the Atchafalaya Basin Levee District. It does not appear that the property was ever transferred by the State of Louisiana to the Atchafalaya Basin Levee District, relator's author in title, by any formal conveyance, though there is a note on the books of the state land office opposite a description of the property "Atchafalaya Basin Levee Fund."
The respondents filed exceptions of non-joinder of parties defendant and of no cause of action, averring that the petition of relator sought to coerce the transfer of certain lands to his author in title, in addition to those acquired through W. S. Lovell to which the state had no title, and that, therefore, relator's suit was one for the reformation of an instrument, a proceeding which required that all parties interested should be impleaded with the result that complicated issues of fact were raised not reviewable on mandamus. Answering to the merits, respondents justified the refusal to transfer the lands to the levee district on the ground that Act No. 97 of 1890, relied upon by relator, had been repealed by Act No. 237 of 1924, and that this contention was fortified by contemporaneous construction of the statute by the present administrative officer, the Attorney General, and his predecessors in office, covering a period of twelve years.
The exceptions were referred to the merits, and following a trial below judgment was rendered dismissing relator's demand, from which judgment relator appealed.
The original hearing in this court resulted in a judgment of affirmation with Justice ODOM dissenting, Justice BRUNOT being the organ of the court. Thereafter, a rehearing was granted and the writer called in to sit in the place of Justice PONDER, who had been recused because of his having been the trial judge when sitting as district judge for the parish of East Baton Rouge.
As appears from the records of the state land office, the following property, once owned by W. S. Lovell, was adjudicated to the State of Louisiana:
Article 3 of relator's petition reads as follows:
"That on June 8th, 1895, lands owned by W. S. Lovell, situated in the Parish of Terrebonne, embraced within the limits of the Atchafalaya Basin Levee District and described as Sections 23, 24, 25, 26, 27, 28, 29 and 30; Lots two, three, and four of Section 69; and fractional section 74; and E 1/2 of E 1/2 of Sec. 75, and SE 1/4 of SE 1/4 of Section 77, and SW 1/4 of NE 1/4 and S 1/2 of Section 76, T. 19 S.R. 17 E were sold to the State of Louisiana for unpaid taxes."
Contrasting the description given in article 3, with that of the Lovell land acquired by the state, results in the following discrepancy: In article 3 we find the "E 1/2 of E 1/2 of Section 75" instead of the "E 1/2 of E 1/2 of Section 73," as appears in the records of the State Land Office. Perhaps, this difference may be accounted for as a clerical error in the numbering of the section.
In article 11 of the petition, which describes the property relator obtained from the Houma National Bank, the following, which appears in article 3, is omitted:
And there is included the following which does not appear in article 3 or in the records of the state land office:
"Lots 5, 6, and 7 and the S 1/2 of Section 78, containing 220.28 acres, South 1/2 of Lot No. 2 of Section 78 containing 41.24 acres."
The description of the property as contained in the prayer of relator's petition, with the exception of two small differences, apparently clerical errors, is the same as is found in article 11 of the petition. There is also a discrepancy in the acreage as described in article 11 and the prayer of the petition with the acreage obtained by the state from Lovell. The records of the state land office show that 1,792 acres in all were acquired, in which relator claims only a one-half interest, yet the acreage mentioned in article 11 of the petition is 1,712.48 and in the prayer 1,712, an area approximately as large as the entire Lovell tract.
It might well be said that this suit, as drawn, contains a cumulation of summary and ordinary proceedings or, in other words, an action for reformation of title coupled with a mandamus. See State ex rel. Higgins v. Aicklen et al., 167 La. 456, 119 So. 425; State ex rel. Brenner v. Noe, 186 La. 102, 171 So. 708.
Since this is a mandamus proceeding and since it appears that the description of the property which relator seeks to have conveyed to his author in title embraces lands which had never been acquired by the State of Louisiana by adjudication through W. S. Lovell or any other tax debtor, or otherwise, it would seem that there is much merit in both exceptions filed by respondents.
"A writ ofmandamus will not lie unless the action desired is an absolute obligation on the part of the person sought to be coerced, and the relator must show not only a clear legal right to have the thing done, but to have it done in the manner and form in which he desires the respondent to perform it." State ex rel. v. Smith, 104 La. 370, 29 So. 40 (syllabus).
See, also, State ex rel. v. Clancy, 166 La. 810, 118 So. 28; State ex rel. v. Bailey, 168 La. 688, 689, 123 So. 125.
"Mandamus will not issue commanding a state officer to do that which the law does not authorize him to do." State ex rel. v. Michel, 122 La. 188, 47 So. 460 (syllabus).
See, also, Henderson v. Shreveport, 160 La. 360, 368, 107 So. 139.
Relator devotes very little attention to the questions of law raised by the exceptions. He contents himself with pointing out that at least a part of the land to which he seeks to perfect his title is properly described as having been acquired by the State of Louisiana from W. S. Lovell, and that as to this property, at least, he is entitled to have a mandamus issue to compel the proper officers to convey the land to his author in title, the Atchafalaya Basin Levee District, with reservation of his right to take appropriate action for the establishment of the validity of his title to the other property claimed.
We have serious doubt as to the propriety of this procedure, but in view of the conclusion which we have come to and considering also the time and labor expended by counsel in the preparation of numerous and able briefs and learned and exhaustive arguments upon the merits, we have concluded to consider that feature of the case as well, rather than to dispose of the matter as we believe we might well do upon the exceptions.
Section 11 of Act No. 97 of 1890, which created the Board of Commissioners of the Atchafalaya Basin Levee District, an act similar in its provisions with other acts creating other boards for other levee districts throughout the state, reads as follows:
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