Cobb v. Louisiana Board of Institutions

111 So. 2d 126, 237 La. 315, 1959 La. LEXIS 1004

• Court: Supreme Court of Louisiana
• Decided: April 27, 1959
• Docket: 43632
• Status: Published

Opinions

PONDER, Justice.

The plaintiff brought suit against the Louisiana Board of Institutions and the State of Louisiana, under the provisions of Senate Bill No. 100 passed at the 1956 session of the legislature, for the sum of $50,000, interest, and costs, for the loss of twenty registered Aberdeen Angus breeding cows, wherein it was alleged that these cows met their death by consuming a liquid purchased from the Louisiana State Penitentiary. The defendants entered a plea to the jurisdiction of the court and exceptions of no right and no cause of action. These exceptions and plea were overruled and a judgment on the merits was rendered in favor of the plaintiff in the sum of $50,-000 and such costs as are specially allowed by law. The defendants have appealed.

We previously entertained a suit embracing this controversy and dismissed the suit because it was a suit against the state and the plaintiff had not been properly authorized to institute the suit. See 229 La. 1, 85 So.2d 10. Thereafter, Senate Bill No. 100 of 1956 was passed by the Senate and vetoed by the Governor. This bill was returned to the Senate but was never called or reconsidered.

Senate Bill No. 100 reads as follows:

“By: Mr. Folkes

“An Act

“To authorize Lloyd J. Cobb to file suit against the State of Louisiana through the Louisiana Board of Institutions upon a claim for damages arising from the death of his cattle alleged to have been caused by being fed material bought from the Louisiana Board of Institutions; to provide the method for citing the State therein, designating the Court in which said suit may be instituted; waiving any prescriptions which may have accrued in favor of the State against said claim and providing for the payment of any judgment which may be rendered in said proposed suit.

“Section 1. Be it enacted by the Legislature of Louisiana: That Lloyd J. Cobb, a resident of Jefferson Parish, Louisiana, is hereby authorized to file suit against the State of Louisiana through the Louisiana Board of Institutions, or any of its successors, upon his claim for damages arising from the death of his cattle alleged to have been caused by being fed material bought by him from and delivered by the Louisiana State Penitentiary to him at his Marydale Farm on February 3rd and 4th, 1953.

“Section 2. That said suit may be instituted before the 19th Judicial District Court, in and for the Parish of East Baton Rouge, Louisiana, and the State of Louisiana .may be served and cited in such suit through the Attorney General of the State of Louisiana.

“Section 3. Such suit may be filed within six (6) months after this Act becomes law and any prescription which may have accrued in favor of the State and against said claim is hereby waived.

“Section 4. If judgment is rendered in favor of claimant and against the State of Louisiana, it shall be paid out of the revolving fund established pursuant to [LSA-]R.S. 51:692.9, or by the Treasurer of the State of Louisiana, out of any funds belonging to the State, not otherwise appropriated.

******

“Veto

“Approved: -

“June 28, 1956”

This act shows that it was vetoed by the Governor on June 28, 1956 and the following veto message appears on the bill:

“State of Louisiana

Executive Department

Baton Rouge, La.

June 28, 1956

“To the Honorable the President and Members of the Senate

“Gentlemen:

“I have vetoed, and return herewith my approval, the following bill, with my objections thereto, as follows:

“Senate Bill No. 100 — By Mr. Folkes.

“An Act to authorize Lloyd J. Cobb to file suit against the State of Louisiana through the Louisiana Board of Institutions, etc.

“I have vetoed this bill for the reasons that the method of payment is not certain and it may be necessary to pay the claim at a time when the revolving fund of the Louisiana State Penitentiary would be jeopardized. Heretofore, payments of judgments against the State had to be authorized and appropriated by the State Legislature, which procedure is not made certain or mandatory in this bill. Further, this bill does not set forth the amount to be sued for nor does it state with certainty the basis of said claim.

“Respectfully,

“Earl K. Long,

“Governor of Louisiana.”

The defendants contend that Senate Bill No. 100 is unconstitutional for the reasons that it contains an appropriation of money which has been vetoed by the Governor. The defendants take the position that all bills .for the appropriation of money under Article 3, Section 22 of the Constitution, LSA, must originate in the House of Representatives, and that the bill is contrary to the provisions of. Article 4, Section 10 of the Constitution because it is contingent and. does not call for a specific amount. Defendants take the further position that under. Article 3, Section 35 of the Constitution any judgment for money rendered against the state cannot be satisfied except out of monies appropriated by the legislature for the purpose and that it violates Article 4, Section 9 of the Constitution which provides “all other appropriations shall be made by separate bills, each embracing but one object.” Defendants contend that if the bill is held to be constitutional, it is without effect because of the veto of the Governor since it contains no severability clause.

Under the provisions of Article 3, Section 35 of the Constitution, as amended, whenever the legislature authorizes suit against the state, no judgment rendered for money against the state can be satisfied except out of monies appropriated for that purpose. An examination of the original petition filed in this suit reveals that the plaintiff asked for his claim to be paid out of the revolving fund or by the State Treasurer, out of funds belonging to the state not otherwise appropriated. One of the purposes of the revolving fund is to pay for the purchase of supplies, equipment, tools, etc. to be used in the administration of the Louisiana State Penitentiary. When the plaintiff made thr Louisiana Board of Institutions a party to the suit it would appear that the plaintiff'desired to be paid out of the revolving fund because the penitentiary is engaged in the production and manufacture of articles, goods, wares and merchandise. Otherwise, we can see no reason why the Board of Institutions was made a party to the suit. This indicates that the plaintiff at the time the suit was filed intended to collect the judgment out of the revolving fund or out of the State Treasury, or, in other words, he interpreted the act as containing an appropriation.. Thereafter, he amended his petition and deleted from his prayer that part of it which asked for the judgment to be paid out of the revolving fund or by the Treasurer.

Under the provisions of Article 3, Section 22 of the Constitution, all bills appropriating money must originate in the House of Representatives. Counsel for the plaintiff in his argument before this Court admits that if Section 4 of Senate Bill No. 100 is in fact an appropriation, that it could not be law after it was vetoed by the Governor and without its origination in the House of Representatives, but he argued that the plaintiff has no intention of satisfying any judgment that might be obtained out of the revolving fund or the funds of the state without a specific appropriation which he will later seek if he is successful in the suit.

Senate Bill No. 100 does not contain a severability clause and in order to uphold this bill insofar as it grants a right to sue the state, Section 4 of the bill would have to be separated from the bill. The plaintiff cannot by merely agreeing not to enforce Section 4 of the bill make the bill effective.

In a Supreme Court of the United States case, Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 873, 80 L.Ed. 1160, the general rule in regard to the severability of a portion of an act was laid down thus:

“In the absence of such a provision, the presumption is that the Legislature intends an act to be effective as an entirety — that is to say, the rule is against the mutilation of a statute; and if any provision be unconstitutional, the presumption is that the remaining provisions fall with it. The effect of the statute is to reverse this presumption in favor of inseparability, and create the opposite one of separability. Under the nonstatutory rule, the burden is upon the supporter of the legislation to show the separability of the provisions involved. Under the statutory rule, the burden is shifted to the assailant to show their inseparability. But under either rule, the determination, in the end, is reached by applying the same test — namely, What was the intent of the lawmakers ?”

This rule of construction was cited with approval by this Court in the case of State v. Baggott, 212 La. 795, 33 So.2d 523.

We are not unaware that the legislature may .authorize suit against the state, but when it-contains matters that require approval of the Governor it evidences the intention of the .legislature that the act is to be effective or ineffective in its entirety.

We are also aware of the fact that a statute may be valid in part and invalid in part if the two parts are not so intimately connected as to raise a presumption that the legislature would not have enacted the one without the other. State v. Cognevich, 124 La. 414, 50 So. 439; 26 A. & E. Enc. 595; City of Alexandria v. Hall, 171 La. 595, 131 So. 722; Ricks v. Department of State Civil Service, 200 La. 341, 8 So.2d 49; Conley v. City of Shreveport, 216 La. 78, 43 So.2d 223. If the unconstitutional portions of an act are so interrelated and connected with the constitutional parts that they cannot be separated without destroying the intention manifested by the legislature in passing the act, the entire act is void. Stewart v. Stanley, 199 La. 146, 5 So.2d 531; Ricks v. Close, 201 La. 242, 9 So.2d 534; Womack v. Varnado, 204 La. 1019, 16 So.2d 825.

We pointed out in the case of Calcasieu Long Leaf Lumber Co. v. Reid, 146 La. 77, 80, 83 So. 384, 385:

“Of course, there are cases where a statute may be valid in one respect and invalid in another. But they are cases where the two parts of the law are so distinct and separable that the court can conclude that the intention of the Legislature was that the valid provisions of the law should be enforced, without regard for the provisions declared invalid. If the objectionable and the unobjectionable provisions of a statute are not distinct and separable, to declare the one provision invalid and the other enforceable would be to substitute for the law as enacted one which the Legislature might not have been willing to enact.”

See also Etchison Drilling Co. v. Flournoy, 131 La. 442, 59 So. 867. It was also pointed out in State ex rel. Chess & Wymond Co. of Louisiana v. Grace, 188 La. 129, 175 So. 825 that if the Legislature had intended that the constitutional part of an act should stand regardless of the unconstitutional part there was a very simple way to accomplish that result, namely, by placing the usual clause prevalent in modern legislation to the effect that if any part of the law is declared to be unconstitutional, that its invalidity would not affect the remaining constitutional expression of the legislative will. The court stated in that opinion: “It would be pure conjecture on our part, equivalent to judicial legislating, to hold that the Legislature intended the provisions of this act to be separable.” [188 La. 165, 175 So. 837]

In Airey v. Tugwell, 197 La. 982, 991, 3 So.2d 99, 102, this Court stated: “The title of an act of the Legislature is of the nature of a label, the purpose of which is to give notice of the legislative intent and purpose to those interested in, or who may he affected by, the terms of the act, and to prevent surprise and fraud upon members of the Legislature.” In the title of Senate Bill No. 100 we find that it provides “for the payment of any judgment which may be rendered in said proposed suit.” We think this is significant in arriving at the legislative intent. Since Senate Bill No. 100 authorizing suit against the state goes further and appropriates money to pay the judgment, which would have the effect of law, it is apparent that the Senate intended the bill in its entirety to be presented to the Governor for his approval. It does not appear reasonable that the legislature intended that this bill should be presented to the Governor for approval in part only. We can only conclude that the bill is not separable and therefore falls in its entirety.

For the reasons assigned, the judgment of the lower court is reversed and set aside, the plaintiff’s suit is dismissed at his cost.

HAMITER, HAWTHORNE and TATE, JJ., dissent with written reasons.