Louisiana Highway Commission v. Cormier

ELLIOTT, J. (dissenting). The main facts of the case will appear by reference to the opinion of the majority of - the court. The statute provides: “The said Highways shall extend, as nearly as possible, along the following described routes, the more specific and detailed locations shall be determined by the Louisiana Highway Commission, and in such manner as shall be prescribed by law, but in fixing such definite and detailed routes, said Highways shall touch the various cities, towns and' villages named herein as points through which such routes are to pass. Provided the location and designated routing of State Highways as herein made may be altered and amended by the Louisiana Highway Commission to quch an extent and in such manner as may be necessary to meet any requirements that may be made by the Federal Government in granting aid in road construction.” (Act No. 95, Ex. Sess. 1921, sec. 7.) Then follows an enumeration of the cities, towns, and villages which the created *465 and designated highways shall touch, and through which they are to pass, by directtion of the act, the one in question: “Beginning on the Mississippi State Line north of Angie, through Bogalusa, Covington, Hammond, Albany, Holden, Livingston, Walker, Denham Springs, Baton Rouge, Port Allen, Rosedale, Livonia, Krotz Springs, Port Barre, Opelousas, Eunice, Elton, Kinder, Fulton, De Quincy; thence to Texas line.” In view of this precise legislative direction, I take the position that the highway commission has no discretion as to Port Barre. The federal government is not granting any aid in the construction of this road. There are no engineering difficulties in the way. See the provision which concludes the Act 294 of 1928, on page 622. The act is clear and free from all ambiguity as to Port Barre. And, “when a law is clear and free from all ambiguity, the letter of it is not to be disregarded, under the pretext of pursuing its spirit.” Civil Code, art. 13. I am not aware of any legal writer who has handled the subject of interpreting statutes with more learning than Dwarris. The author has in mind, of course, the acts of Parliament, but the principles taught are as applicable here as in England. For the purpose of a dissenting opinion, a few words from a large subject-matter is believed to be sufficient: “In interpreting the law, judges are to explore the intentions of the Legislature; yet the construction to be put upon an act of Parliament must be such as is warranted by, or at least not repugnant to, the words of the Act.” Potters Dwarris, Subject: Construction of Words, c. 7, p. 203, et seq. The subject of construction is continued at length, in the work last cited, both before and after the quotation cited, but it may be all summed up with what has been quoted from our Civil Code. There is some difference in effect. An act of Parliament as I understand, may not be set aside on constitutional grounds, but the rule of interpretation, when it comes to giving effect to what is plainly stated in an act, is the same in this country. I think the opinion of the majority of the court fails to give effect to a legislative provision, the meaning of which is plain, that this highway is to pass through Port Barre. The power to expropriate, except for the purpose of passing through Port Barre, is not conferred on the plaintiff. It is an elementary principle that the power to expropriate, as stated in OrleansKenner E. Ry. Co. vs. Metairie Ridge Nursery Co., 136 La. 968 , 68 So. 93 , is special and exceptional in character and in derogation of common right. The lawmakers are supposed not to give the right, except when it is found necessary for the public good. Civil Code, arts. 2626, 2627. In Ruling Case Law, 10, sec. 168, we find the following statement on this subject: “A grant of the power of eminent domain, which is one of the attributes of sovereignty most fraught with the possibility of abuse and injustice, will never pass by implication, and when the power is granted, the extent to which it may he exercised is limited to the express terms or clear implication of the statute in which the grant is contained.” It appears to be the established fact that the settled purpose of the highway commission in claiming this expropriation is to not “touch” nor “pass through” Port Barre. *466 If the plaintiff commission had followed the course designated under section 7 as amended by section 1 of Act 294 of 1928, it would have the right to expropriate for that ¡purpose, but, as such is not the case, the power does not exist. Counsel for plaintiff refers to Louisiana & N. W. R. Co. v. Nelson, 128 La. 390 , 54 So. 917 . In that case the right to urge the forfeiture of the franchise granted the railroad company rested with the city which had the power to compel obedience to the ordinance, and not with the defendant. I do not think this situation the same; therefore the case, in my opinion, is not controlling. In Corpus Juris, 20, sec. 121, p. 641, it is said: “The owner of property to be taken or affected by the exercise of the power of eminent domain may raise the objection that the condemning corporation or body is exceeding its powers.” In Hennen’s Digest, vol. 2, ¡p. 1578, No. II, the right of a citizen to his property is referred to: “As the highest of all public rights, and one which all men have the deepest interest in vindicating and maintaining.” It is a fundamental right which cannot be taken from him, except under a delegation of authority from the sovereign power. ' In this case, if the commission had never been invested with the power of expropriation, it certainly could not expropriate defendants’ property, and defendants would unquestionably have had the right to urge this total want of authority. Here the Commission has authority, but only for the purpose' óf the route specially desig;-nated by' the' statute'. Evidently the duty which was imposed on the commission to build the highway so that it might “touch” or “go through” the cities, towns, or villages cannot be classified as “detailed locations,” referred to in the act. I think the judgment appealed from correct, and that it should be affirmed. I therefore respectfully dissent.