Terrebonne Parish School Bd. v. St. Mary Parish School Bd.

• Citation: 242 La. 667,138 So.2d 104
• Decision Date: 29 December 1961
• Docket Number: No. 45797,45797
• Parties: TERREBONNE PARISH SCHOOL BOARD v. ST. MARY PARISH SCHOOL BOARD and Texaco, Inc.
• Court: Supreme Court of Louisiana

Page 104

138 So.2d 104

242 La. 667

TERREBONNE PARISH SCHOOL BOARD v. ST. MARY PARISH SCHOOL BOARD and Texaco, Inc.

No. 45797.

Supreme Court of Louisiana.

Dec. 29, 1961.

Rehearing Denied Feb. 2, 1962.

Aycock, Horne, Caldwell & Coleman, Jack C. Caldwell, Franklin, for defendant-applicant.

Claude B. Duval, Houma, for plaintiff-respondent.

McCALEB, Justice.

This action was brought by the Terrebonne Parish School Board against the St. Mary Parish School Board and Texaco, Inc., to recover proceeds from a mineral lease entered into by the two defendants and, in the alternative, to have the lease cancelled. The lease covered a Sixteenth Section of land located in St. Mary Parish, which was set aside for public school purposes by the federal land grants of 1806 and 1811. The plaintiff's claim to a portion of the revenue therefrom is based upon Article 12, Section 18 of the Louisiana Constitution, as amended by Act 743 of 1954, wherein it is provided:

'* * * The parish school boards of parishes within which there lies a township or any portion of a township containing a Sixteenth Section or any portion of a Sixteenth Section shall be entitled to a portion of the proceeds derived from the sale of said Sixteenth Section or any portion thereof, including the sale of timber thereon and revenues arising from mineral leases, contracts, royalties and all other revenues arising from said sales, leases and contracts heretofore made or which may hereafter be consummated and said proceeds and revenues shall be credited to the parish school boards in which such townships are situated in proportion to the percentage of the townships lying in each parish * * *'.

The plaintiff alleged in its petition that a portion of the township in which the leased Sixteenth Section is situated lies within Terrebonne Parish.

The defendant, St. Mary Parish School Board, filed exceptions to the jurisdiction ratione materiae and ratione personae. The exceptions were based on an amendment added as a new section to Article 19 of the Consitution in 1956 which withdraws the consent of the State to suits against certain of its agencies and subdivisions. This amendment, which is Article 19, Section 26 of the Constitution, reads in part:

'The following named commissions, boards, bodies or municipal corporations are and shall be considered special agencies of the State of Louisiana:

'* * * (7) The parish school boards of each of the parishes of the State of Louisiana, * * *

'The consent of the State of Louisiana to suits or legal proceedings against any of the above listed special agencies, (however heretofore given) is hereby expressly withdrawn and no such suit or proceeding shall be permitted except as provided in this section. * * * There is expressly excepted from the foregoing, suits for the enforcement of contracts entered into by any of the special agencies or for the recovery of damages for the breach thereof. Additionally, the Legislature of Louisiana may, in individual cases, by appropriate act grant to any party showing just and reasonable cause the right to sue any of these special agencies, in compliance with Section 35 of Article III of this Constitution. * * *'

It was St. Mary's contention that it was not amenable to suit under this Section unless permission to sue be first obtained from the Legislature. The exceptions were overruled by the district judge and St. Mary applied to the Court of Appeal, First Circuit, for supervisory writs. The writs were granted and the Court of Appeal found that the district court was correct in overruling the exceptions and the cause was remanded. The Court of Appeal deduced that Section 26 of Article 19 does not envision that the sovereign state itself was to be precluded from instituting suit against one of its agencies; that, in bringing this suit to enforce its constitutional right to a portion of the revenue derived from Sixteenth Section school lands situated in a township within its territorial borders, the plaintiff occupied the position of the sovereign and that, in the absence of an express provision to that effect, Article 19, Section 26 should not be construed as prohibiting suits between state agencies. See Terrebonne Parish Sch. Bd. v. St. Mary Parish Sch. Bd., La.App., 131 So.2d 266. From this decision, writs were applied for and were granted by this Court.

We cannot subscribe to the views of the Court of Appeal because Article 19, Section 26 could not be more clear and explicit in its command that the Legislature must first be applied to and permission be granted before a suit may be entertained against a parish school board. However, we think the exceptions were properly overruled for an entirely different reason, as will be hereinafter shown.

In considering whether the parish school boards are presently immune from suit, a short review of the pertinent legislation on the subject may be helpful. In the statute (Act 100 of 1922, § 17, Par. I, now R.S. 17:51) providing for the establishment of parish school boards, pursuant to the mandate of Section 10 of Article 12 of the Constitution, these boards are made subject to suits. The statute declared that:

'There shall be a parish school board for each of the parishes, and these several parish school boards are constituted bodies corporate with the power to sue And be sued under the name and style (Name of Parish) Parish School Board * * *'. (Emphasis supplied).

Until 1956, there was this general waiver of sovereign immunity with respect to parish school boards. The adoption of Article 19, Section 26 in 1956 had the effect of deleting from R.S. 19:51 the phrase 'and be sued'. Unfortunately, the parties litigant and the courts below apparently assumed that the law rested at this point and failed to examine constitutional amendments and legislative enactments subsequent to Section 26 of Article 19 in an effort to ascertain whether its provisions, insofar as they pertain to parish school boards, are still effective. As a consequence, we have not had the benefit of argument or briefs concerning posterior laws that very definitely affect the question now before us.

In analyzing the provisions of Section 26 of Article 19 of the Constitution, we particularly note that the withdrawal of the State's consent to sue any of the special agencies enumerated therein, is subject to two exceptions, (1) in cases seeking enforcement of contracts made by any of the special agencies or for the recovery of damages for the breach thereof, and (2) 'in individual cases' whenever the Legislature has granted the right to sue, 'in compliance with Section 35 of Article III of this Constitution'.

Section 35 of Article 3 of the Constitution, as amended by Act 385 of 1946, provided merely for special legislative authorizations for a suit or suits against the State and its subdivisions in individual cases and did not comprehend a general legislative waiver of immunity which had previously existed under R.S. 17:51 as to parish school boards. However, the Legislature proposed at its regular session of 1960, by Act No. 621 thereof, a complete revision of the provisions of Section 35 of Article 3 of the Constitution ¹ which, inter alia, would vest the Legislature with more extensive powers respecting the right and authority to waive governmental immunity. This constitutional amendment was adopted by the people on November 8, 1960 and became effective on December 18, 1960. It provides, so far as pertinent here, that the Legislature is empowered to waive * * * by special or general laws or resolutions, the immunity from suit and from liability of the state, and of parishes, * * * public boards, * * * and other public or governmental bodies; * * *'.

Thus, it is seen that this constitutional amendment effectively extended the legislative power of waiver of immunity from suit against the special agencies (school boards) enumerated in Section 26 of Article 19, which was restricted therein to individual cases, so that thereafter the Legislature was empowered to waive immunity by special or general laws or resolutions. Conformably with the authority vested in it by the 1960 amendment to Section 35 of Article 3, the Legislature, by Section 1 of Act 25 of the First Extraordinary Session of 1960, amended and reenacted R.S. 17:51 providing for the establishment of a parish school board for each of the parishes, constituting the boards as bodies corporate with the power '* * * to sue and be sued under the name and style (Name of Parish) Parish School Board. * * *' Hence, by virtue of this statute, parish school boards have been restored to their original legal status of corporate entities subject to suit which had prevailed since their establishment, save for the short period of time during which Section 26 of Article 19 affected them.

In applying the legislation enacted subsequent to Section 26 of Article 19 and holding that it renders that constitutional amendment ineffective as to parish school boards, we have not overlooked the possibility that counsel for the defendant school board might have been able to present argument in opposition, had plaintiff's counsel cited and relied upon this subsequent legislation in the lower courts and here. In our study of the matter, we have conceived that there are probably two objections which might be advanced with respect to the effectiveness of the 1960 reenaction of R.S. 17:51 to the matter at hand. Therefore, anticipating that these objections will be made in an application for a rehearing (together with any other legal arguments of which we are not aware at this time) we consider it appropriate, under the circumstances of the case, to express views respecting them at this time.

First, we take cognizance of the fact that the major portion of the acts and resolutions passed by the Legislature in the First Extraordinary Session of 1960 have been declared void as contravening the Federal Constitution by a three judge United...