46944 Precedential Processed

State Ex Rel. Sabine River Authority v. Phares

Louisiana Supreme Court · Filed December 3, 1963 · 159 So. 2d 144

Cited by

Distinguished in 1

Opinion text

HAWTHORNE, Justice (dissenting). It is my opinion that the statute here under consideration, R.S. 19:141-160, is not unconstitutional for any of the reasons given in the majority opinion. The statute does not violate Article 1, Section 2, or Article 4, Section IS, of the Louisiana Constitution, for it plainly requires the expropriating authority to make payment to the owner before possession of the property is taken. Section 145 of the statute provides: “Upon the deposit of the amount of the estimate in the registry of the court, for the use and benefit of the persons entitled thereto, the clerk shall issue a receipt showing *546 the amount deposited, the date it was deposited, the style and number of the cause, and the description of the property and property rights as contained in the petition. Upon such deposits, title to the property and property rights specified in the petition shall vest in the plaintiff and the right to just and adequate compensation therefor shall vest in the persons entitled thereto.” The constitutional provision (Article 1, Section 2) requires that the landowner receive payment for his land before he is divested of title, and this is exactly what the statute provides shall be done. Article 1, Section 2, of our state Constitution provides: “ * * * private property shall not be taken * * * except for public purposes and after just and adequate compensation is paid.” The Fifth Amendment to the Constitution of the United States requires: “ * * * nor shall private property be taken for public use, zvithout just compensation.” (All italics ours.) The federal statute authorizing the government to condemn and expropriate property is U.S.C. 40:258a. It is clear that the Louisiana and the federal constitutional provisions are identical in meaning, and that the method of expropriation in our statute and in the federal statute is the same. In numerous cases the federal statute-has been found not to violate the just compensation or due process provision of the United States Constitution. See United States v. 47.21 Acres of Land, D.C., 48 F.Supp. 73 ; United States v. 72 Acres of Land, D.C., 37 F.Supp. 297 ; Hessel v. A. Smith & Co., D.C., 15 F.Supp. 953 ; Travis v. United States, Ct.Cl., 287 F.2d 916 , cert. den. 368 U.S. 824 , 82 S.Ct. 42 , 7 L.Ed.2d 28 . Moreover, I do not consider the cases of this court relied on in the majority opinion to be apposite or controlling here.