Tennessee Gas Transmission Co. v. Violet Trapping Co.

HAWTHORNE, Justice (dissenting). R.S. 19:13 as amended by Act 108 of 1960 and Articles 2634 and 2636 of the Civil Code as amended by Acts 92 and 93 of 1960 are not violative of Section 2 of Article 1 and Section 15 of Article 4 of our state Constitution because they deny a suspensive appeal in expropriation proceedings conducted under these statutes. At the inception it should be noted that there is no constitutional right to a suspensive appeal, and the majority opinion does not hold that there is. The majority opinion does hold, however, that the provisions of the statutes denying a suspensive appeal have the effect, insofar as the defendant is concerned, of taking his property before final determination on appeal “that the plaintiff has the right to expropriate; that the expropriation is for a public purpose and that the amount of compensation awarded by the trial court is just and adequate”, and concludes that this violates the above cited constitutional provisions. The statutes in question afford the defendant a hearing or trial in the district court for a determination of whether the plaintiff has the right to expropriate, whether the expropriation is for a public purpose, and whether the amount of compensation is just and adequate, and all these questions are determined prior to the taking. If the district court finds that plaintiff has the right to expropriate, that the expropriation is for a public purpose, and that the amount of compensation is just and adequate, even then the plaintiff before taking possession must pay to the defendant the amount of the award or must deposit it in the registry of the court subject to defendant’s order. The statutes provide that if a devolutive appeal is taken, “The whole of the judgment * * * shall be subject to the decision of the appellate court on review * * * Thus it is clear that under the provisions of the statutes when a devolutive appeal has been taken by the defendant, there is no final or absolute taking of the property until final determination of the case on appeal; *75 and, even then, to make the taking absolute the plaintiff must pay any increase in the amount of the award found to be due by the appellate court. If the appellate court finds that the plaintiff does not have the right to expropriate or that the expropriation is not for a public purpose, the plaintiff which has taken possession then becomes a trespasser, and in that event the law provides to defendant adequate remedies. Though there can be no final or absolute taking until after the case becomes final on appeal, even then the taking is not final and absolute until the plaintiff pays just and adequate compensation. How, then, can it be said that defendant’s property is being taken before the payment of just and adequate compensation? The courts of many states have passed upon the constitutionality of statutes permitting an expropriating authority to take possession and remain in possession pending appeal. See Annotation, 55 A.L.R. 201 , and supplemental decisions thereunder. The vast majority of cases in this annotation hold that just compensation provisions of the Constitutions have been complied with, and that the expropriating authority may possess the property for the purpose o£ carrying out the expropriation pending the appeal, if the value of the property (having been ascertained in a reasonable manner) is made available to the owner- — by tender, deposit in court, etc. They negative the contention that the constitutional guarantee of just compensation previously paid requires that the expropriating authority wait until final determination of the case. In my view the majority in this case are giving a very strict and narrow interpretation to the constitutional provisions relied upon, and in doing so they completely overlook the damage that may come to the economy and progress of this state by a landowner’s use of dilatory tactics to delay final determination on appeal of the right of possession in expropriation cases. The majority opinion cites and quotes at length from State Through Sabine River Authority v. Phares, 245 La. 534 , 159 So.2d 144 , and relies on that case as authority for its holding here. I dissented from the decision of the majority in that case, and the reasons for that dissent are applicable here. See State v. Moity, 245 La. 544 , 159 So.2d 148 . In conclusion, as I view the matter, the purpose of the provisions of our Constitution requiring just and adequate compensation is to assure the landowner that his property will not be expropriated without payment first being made to him for it; and once he has been paid for it a value ascertained by reasonable process, the constitutional protection to him is fully complied with.