Gray v. State Ex Rel. Department of Highways

SUMMERS, Justice (dissenting). My principal objection to the majority opinion centers upon the holding that the action of the Department of Highways is an “appropriation”, and, because of this, the award to the landowner is to be determined by the same principles which would apply if an “expropriation” were involved. In my view, the power of the state to take private property for public purposes without the consent of the owner reposes in the Legislature. La. Const, art. 3 § 1, et seq. (1921) ; Stovall v. City of Monroe, 199 La. 195 , 5 So.2d 547 (1942); Bozant v. Campbell, 9 Rob. 411 (1845). This right is circumscribed by Article I, Section 2, of the State Constitution, which provides that “No person shall be deprived of * * * property, except by due process of law,” and “Except as otherwise provided in this Constitution, private property shall not be taken or damaged except for public purposes and after just and adequate compensation is paid.” Almost every constitution in our state’s history has embodied this guarantee. An exception which modified the due process requirement, which is pertinent here, was created by constitutional amendment in 1948. The exception, contained in Article VI, Section 19.1, confers power upon the Legislature to authorize the taking of property for highway purposes by orders rendered ex parte in expropriation suits prior to judgment and upon the deposit of an amount estimated as fair compensation. In 1954 to implement this exception, and to delegate to the Department the authority to utilize this exceptional method of expropriation, the Legislature enacted Sections 441 through 460 of Title 48 of the Revised Statutes, providing for expropriation by the Department by a “Declaration of Taking”, commonly called “quick taking”. Only a bare majority of this court, I might add parenthetically, reads these provisions of the Revised Statutes to permit the quick taking of borrow pits. Three members of the court do not, being of the opinion that only highway rights of way proper can be expropriated in this manner. See State *1069 'Through Dept, of Highways v. Bradford, 242 La. 1095 , 141 So.2d 378 (1962). Assuming the correctness of the Bradford decision, however, since it has no "bearing on the issue before the Court, the right to expropriate borrow pits is additionally authorized under the general expropriation laws (La.R.S. 48:222; La.R.S. 19:1 through 19:14; La.Civil Code art. 2626 through 2641). Under these laws, unlike the quick taking statute, title and possession to the property cannot pass until there is a finding by the court that a public necessity exists for the taking and the amount of compensation to be awarded for the taking is fixed by judgment of court and paid. Obviously, because of these requirements which are considered essential to satisfy the requirements of Article I, Section 2 of the Constitution, general expropriation laws involve numerous delays. For this reason the Department rarely proceeds under this authorization but elects instead to proceed under the exception authorized by Article VI, Section 19.1 of the constitution and contained in the quick taking statute. I am unaware of any other instance in which the Legislature has surrendered or delegated its right to expropriate which would apply to the facts of this case. No such enactment appears in the majority opinion, and, surely, the Department claims no independent authority to expropriate. It may do so only for the purposes and in the manner authorized by the Legislature. Expropriation under the quick taking statute and under the general laws of expropriation, then, are the processes ordained by the Legislature for the taking of property without the owner’s consent which are pertinent to this case. They constitute the due process requirements which must be fulfilled under the constitution before private property can be taken without the owner’s consent. Courts of law may not, therefore, usurp legislative prerogatives and devise other methods to accommodate the law to untenable positions in which administrative agencies have placed themselves. Especially is this true when the accommodation involves disregard of the constitution. It is conceded here that the quick taking statute was not complied with by the Department. There is, in fact, a final adjudication to this effect which this court approved. State Through Dept. of Highways v. Bordages, 156 So.2d 617 (La.App.1963), writs denied 245 La. 462 , 158 So.2d 612 (1963) “The judgment complained of is correct.” Because the Department sought to avail itself of the quick taking method of expropriation to acquire this property, no attempt was made to comply with the general expropriation laws. Not having complied with the quick taking method and no effort having been made to proceed under the general expropriation laws, the Department has not conformed with either of the two *1071 approved methods for expropriating. The consequence is that there has been no legally acceptable taking in keeping with the due process requirements of the law. It is a universal rule of law that a grant of the power of expropriation is one of the attributes of sovereignty most fraught with the possibility of abuse and injustice. The right, therefore, never passes by implication. To the contrary, when the power is granted, the extent to which it may be exercised is limited to the express terms or clear implication of the statute in which the grant is contained. That is to say, statutes conferring the power must be strictly construed. Clear legislative authority must be shown to justify the taking. Authority cannot be implied or inferred from vague or doubtful language. When the matter is doubtful it must be resolved in favor of the property owner. Orleans-Kenner Electric Ry. Co. v. Metairie Ridge Nursery Co., 136 La. 968 , 68 So. 93 (1915) ; 1 Nichols, The Law of Eminent Domain Sec. 3.213(1) (rev. 3rd ed. 1964); 18 Am.Jur., Eminent Domain, Sec. 26; 29A C.J.S. Eminent Domain § 22. Not having followed the legislative authorization, the Department is without any authorization and the court cannot supply it. Under these circumstances, the Department is responsible for the damage inflicted upon the owner. Its actions constitute a trespass • — a tort, nothing else, for which it must respond in damages just as an ordinary person would do. Angelie v. State, 212 La. 1069 , 34 So.2d 321 , 2 A.L.R.2d 666 (1948). See also United States v. Cress, 243 U.S. 316 , 37 S.Ct. 380 , 61 L.Ed. 746 (1917). The-measure of those damages, under well-settled rules of law, is the value of the dirt illegally removed or the cost of restoring the property to its prior condition, together with compensation for any other damages, incurred by virtue of the trespass. In short,, the owner must be made whole again. Nothing else is acceptable under Article 2315 of the Civil Code which is the basis of this suit. Angelle v. State, supra; Booth v. La. Hwy. Comm., 171 La. 1096 , 133 So. 169 (1931) and McGeehan v. Board of Levee Com’rs., 165 La. 241 , 115 So. 473 (1928). No other result gives effect to the plain language of the constitutional provision (La.Const, art. 1 § 2 (1921)) designed for the protection of the property owner. By amassing diverse and inappropriate-doctrines, theories and principles the majority has arrived at the identical result which would be reached if the Department had complied with the expropriation laws-, in every respect. The opinion, in effect, supplies another method of depriving persons of private property without their consent. What is dangerous about this is that the new method has no regard for the-specific requirements of the constitution or legislative enactments on the subject. Such: a course of judicial lawmaking is unwise- and without constitutional sanction. I respectfully dissent.