State Through Dept. of Highways v. Ouachita Parish School Bd.

• Decision Date: 29 December 1961
• Docket Number: No. 45845,45845
• Citation: 138 So.2d 109,242 La. 682
• Parties: STATE of Louisiana through the DEPARTMENT OF HIGHWAYS v. OUACHITA PARISH SCHOOL BOARD.
• Court: Louisiana Supreme Court

Page 109

138 So.2d 109

242 La. 682

STATE of Louisiana through the DEPARTMENT OF HIGHWAYS v. OUACHITA PARISH SCHOOL BOARD.

No. 45845.

Supreme Court of Louisiana.

Dec. 29, 1961.

Rehearing Denied Feb. 2, 1962.

George M. Snellings, Jr., McHenry, Snellings, Breard & Sartor, Monroe, for defendant-relator.

D. Ross Banister, Glenn S. Darsey, Braxton B. Croom, Chester E. Martin, Jesse S. Moore, Jr., Baton Rouge, for plaintiff-respondent.

HAWTHORNE, Justice.

This proceeding was instituted by the Department of Highways ¹ for the expropriation of a tract of land owned by the Ouachita Parish School Board, consisting of an entire square in the City of Monroe with buildings and improvements. The tract sought to be expropriated is being used by the school board in connection with a junior high school with 1200 pupils, and lies in the center of the school facility between the classroom building and the gymnasium. Plaintiff here is proceeding under the authority of Article 6, Section 19.1, of the Louisiana Constitution of 1921 as amended and Title 48 of the Revised Statutes of 1950, Sections 441--460. ²

On the filing of the petition an ex parte order of expropriation was signed by the district judge, and the plaintiff caused to be deposited in the registry of the Fourth Judicial District Court for the use and benefit of the defendant the sum of $171,600.00 alleged to be just compensation for the property ordered expropriated.

The defendant school board timely filed a peremptory exception of no right of action coupled with a motion to dismiss the proceedings and a motion for summary judgment vacating and annulling the order of expropriation. The exception and motions were overruled by the trial judge. After proper notice the defendant school board filed application for supervisory writs in the Court of Appeal, Second Circuit. Pursuant to this application the Court of Appeal in the exercise of its supervisory jurisdiction issued an alternative writ of mandamus directed to the trial judge to show cause why the judgment complained of should not be set aside, the school board's exception and motions sustained, and the order of expropriation vacated and annulled. The Court of Appeal also stayed any further proceedings in the suit, and ordered that the record in the case be forthwith transmitted to that court.

After the record was lodged in the Court of Appeal, that court, availing itself of the provisions of Section 25 of Article 7 of the Constitution, submitted to this court for instructions certain questions of law arising in this suit and transmitted the entire record to us, suggesting that we exercise the power vested by that provision of the Constitution and decide the whole matter in controversy. This we shall do.

The Ouachita Parish School Board in support of its exception and motions contends first that under Article 19, Section 26, of the Louisiana Constitution of 1921, adopted November 6, 1956, ³ the defendant Ouachita Parish School Board is immune from suit or any other legal proceeding without the specific consent and authority of the Legislature.

As far as parish school boards are concerned, this section of the Louisiana Constitution is no longer a bar to suit. This is because Article 3, Section 35, of the Louisiana Constitution, adopted November 8, 1960, empowers the Legislature to waive by special or general laws the immunity from suit and from liability of the state and of other public or governmental bodies, and on that same date the Legislature of this state passed Act 25 of the First Extraordinary Session of 1960, R.S. 17:51, which in Section 1 provides that parish school boards can sue and be sued, thus waiving their immunity from suit. The instant proceeding was filed by the Department of Highways on December 30, 1960. For a more detailed discussion of this point, see Terrebonne Parish School Board v. St. Mary Parish School Board and Texaco, Inc., 242 La. 667, 138 So.2d 104, handed down this same day, No. 45,797 on the docket of this court.

The next question for determination is whether public property devoted to a public use (as here, to a school) and owned by a public corporation (as in this case, the Ouachita Parish School Board), itself vested with the power of expropriation, ⁴ is subject to expropriation by The Department of Highways, an agency of the state created by the Legislature by Act 4 of 1942, R.S. 48:11 et seq., which also possesses the power of expropriation.

Expropriation, or eminent domain as it is called in the common law, is the power of the sovereign to take property for public use without the owner's consent. Nichol's Law of Eminent Domain, sec. 1.11, v. 1, p. 2 (3d ed. 1950). This power is inherent in all government, coming into being Eo instante with the establishment of the government and continuing as long as the government endures, and does not require recognition by constitutional provision for its existence. Ibid., sec. 1.14, pp. 13--14. It is undisputed that the sovereign may delegate the power of expropriation or eminent domain to administrative officers or other agencies of the sovereign and to public and private corporations. Ibid., sec. 3.1, pp. 188--189; see R.S. 19:2.

In determining whether property already devoted to a public use can be subjected to expropriation, the factor to be considered is the character of the condemnor. If the sovereign on its own behalf seeks to acquire such property by eminent domain, the fact that the land sought to be taken is public property generally is immaterial. Ibid., sec. 2.2, pp. 131--132; Jahr, Law of Eminent Domain, sec. 20, p. 37 (1953); Elberton Southern Ry. Co. v. State Highway Dept., 211 Ga. 838, 89 S.E.2d 645; see Township of Weehawken v. Erie Railroad Company, 20 N.J. 572, 120 A.2d 593. If, on the other hand, the sovereign has delegated the power of expropriation to one of its subdivisions or agencies, the rule is that the agency or department cannot expropriate property already devoted to a public use Unless the Legislature has authorized it to acquire public property either expressly or by necessary implication. Nichols, op. cit. supra, sec. 2.2, p. 132; Jahr, op. cit. supra, sec. 20, p. 37; Railway Co. v. Vicksburg, S. & P. Railroad Co., 49 La.Ann. 29, 21 So. 144; Borough of Barnegat Light v. Board of Chosen Freeholders of Ocean County, 44 N.J.Super. 332, 130 A.2d 409; see Canzonetti v. City of New Britain, 147 Conn. 478, 162 A.2d 695.

Counsel for the school board cites a number of cases for the proposition that an agency or department of the sovereign power cannot expropriate property already devoted to a public use and owned by some other department or agency of the state unless the Legislature has expressly delegated such power to the agency seeking to expropriate. Among these cases are Davis v. Nichols et al., School Directors, 39 Ill.App. 610; Village of Ridgewood v. Borough of Glen Rock, 15 N.J.Misc. 65, 188 A. 698; City of Edwardsville v. Madison County, 251 Ill. 265, 96 N.E. 238, 37 L.R.A.,N.S., 101; Canzonetti v. City of New Britain, 147 Conn. 478, 162 A.2d 695. Counsel quotes from Village of Ridgewood v. Borough of Glen Rock, supra (15 N.J.Misc. 65, 188 A. 699), thus:

'The lands are also devoted to a public use, and lands so devoted we think additionally are not subject to condemnation under general powers to that end, but must be specifically by the Legislature itself made subject to such proceedings. Lands so held are usually possessed by the corporations, municipal or private, having also general power of condemnation. To subject such lands to taking by one corporation from another under the general powers of condemnation would be to open the door to recriminatory condemnation litigation without end inasmuch as, if under such authority the first taking would be justified, its retaking would be equally within the power of the adverse party. ...