Tennessee Gas Transmission Co. v. Violet Trapping Co.

176 So. 2d 425, 248 La. 49

• Court: Supreme Court of Louisiana
• Decided: June 15, 1965
• Docket: 47556
• Status: Published

Opinions

McCALEB, Justice.

The question for decision on this writ of certiorari is whether R.S. 19:13, as last améndéd by Act 108 of I960, and Articles 2634 and 2636 of the Civil Code, as amended by Acts 92 and 93 of 1960, which abolish suspensive appeals in all expropriation cases, are violative of that part of Section 2 of Article 1 of the Louisiana Constitution providing that “ * * * private property shall not be taken-or damaged except .for public purposes and after just and adequate compensation is paid” and that part of Section 15 of Article 4 providing “ * * nor shall vested rights -be divested, unless for purposes of public utility, and for just and adequate compensation previously paid.”

Plaintiff herein (respondent in writ), having secured from the Federal Power •Commission a certificate of public convenience and necessity under authority of •U.S.C.A. Title .15, Section 717f (h) for .the. construction of an. interstate pipeline, instituted expropriation proceedings under R.S. 19:12-14 for a right-of-way 150 feet in width over the property of defendant (relator herein) with the right to dredge a 50-foot' flotation canal or ditch thereon for the purpose of laying a second high pressure gas pipeline, the first one having been previously installed by conventional agreement of the parties.

Defendant resisted the demand, filing in limine exceptions of no right or cause of action in which it attacked the certificate granted plaintiff by the Federal Power Commission on the ground that it was issued without notice or hearing and, therefore, was violative of the due process clauses of the State and Federal Constitutions.

Defendant further objected to the jurisdiction of the district court, alleging that the servitude herein sought to be expropriated was res judicata in view of a settlement between the parties made in 1958 in compromise of an expropriation suit previously brought by plaintiff against defendant under which plaintiff acquired a right-of-way across defendant’s land for the laying of two pipelines. Defendant asserted that'this compromise agreement contained a special covenant that the right-of-way therein granted ’by defendant was sufficient in area for.the construction of a second pipeline, for which the additional servitude is presently sought, as well as for the first pipeline which was installed on defendant’s property in accordance with the agreement.

In its answer, defendant reiterated that the servitude demanded in this case is not only violative of the compromise settlement but also that it far exceeds the acreage reasonably necessary for plaintiff’s purpose. Alternatively, defendant claimed compensation and damages in the sum of $100,000.00.

After a hearing on these issues in the trial court, judgment was rendered in favor of plaintiff conveying a right-of-way 150 feet in width over certain described property of defendant comprising an area of 17.056 acres, more or less, and a permanent right-of-way and servitude 50 feet in width upon completion of the pipeline extending over 5.685 acres, more or less. The judgment also granted plaintiff the right to dredge a flotation canal “approximately” 50 feet in width upon the right-of-way. The compensation awarded defendant for the property taken, including severance damages, was $2,877.19 and it was ordered that this sum be deposited by plaintiff with the Clerk of Court for the account of defendant in accordance with law and that the costs of the proceedings be paid by defendant,- Violet Trapping Company, Inc.

Defendant timely applied for a new trial and, when this was refused, it moved for a suspensive appeal. The motion was denied by the judge on the ground that, under R.S. 19:13, as amended by Act 108 of 1960, defendant was entitled to a devolutive appeal only. Thereafter defendant applied to the Court of Appeal, Fourth Circuit, for remedial writs which were refused, the Court noting “ * * * the act of the legislature in limiting appeals in expropriation cases to devolutive appeals is not unconstitutional.”

Defendant then sought relief from this Court and we granted a writ of certiorari, coupled with a rule to show cause and an order staying all proceedings. However, we restricted our review in the matter to a consideration of the constitutionality of R.S. 19:13 and Articles 2634 and 2636 of the Civil Code which, as last amended during the 1960 session of the Legislature, abolish suspensive appeals in all expropriation cases.

Before engaging in discussion of the important problem presented, we feel impelled to note that counsel for defendant initially contends that, under existing jurisprudence, R.S. 19:13 has been interpreted so as to allow suspensive appeals on substantive constitutional points which he says are presented in the instant expropriation case.

There is no merit in this contention for the statute and codal articles, as last amended, are clear in stating that their purpose is to deny suspensive appeals in all instances. R.S. 19:13, as amended by Act 108 of 1960, declares:

“No party to any expropriation proceeding shall be entitled to or granted a suspensive appeal from any order, judgment, or decree rendered in such proceeding, whether such order, judgment, or decree is on the merits, exceptions, or special pleas and defenses, or any or all of them. The whole of the judgment, however, shall be subject to the decision of the appellate court on review under a devolutive appeal.

“When a devolutive appeal is taken by either party, payment to the owner of the amount awarded by the trial court, or the deposit thereof in the registry of the court, entitles the plaintiff to the property described in the judgment in the same manner as would a voluntary conveyance. If any change in the amount awarded is made on such appeal, the plaintiff shall pay the additional assessment or recover the surplus paid.” (Italics ours).

Article 2634, as amended by Act 92 of 1960, has been rewritten so that its provisions are now identical with R.S. 19:13, as quoted above. And Article 2636, reserving the landowner’s right to question the necessity for the taking, has been altered substantially by Act 93 of 1960;¹ its former recitals anent appeals have been eliminated and the right of appeal is now controlled by Article 2634 and R.S. 19:13.

The changes effected by the 1960 Legislature were brought about by a series of decisions beginning with Orleans-Kenner Electric Ry. Co. v. Metairie Ridge Nursery Co., 136 La. 968, 68 So. 93 (1915) wherein Article 2634 of the Civil Code (as originally written)² was construed to authorize suspensive appeals in all expropriation cases except those in which the only issue in contest was the amount of the jury’s verdict in favor of the landowner.

In Tennessee Gas Transmission Co. v. Wyatt Lumber Co., 221 La. 886, 60 So.2d 713 (1952), it was held that, in view of Article 2634 of the Civil Code and the decision in Orleans-Kenner Electric Ry. Co. v. Metairie Ridge Nursery Company construing it, the provisions of R.S. 19:13, dedaring that appeals from the judgment of the lower court do not suspend the execution of the judgment (as the statute then provided), were ineffective when the defendant was contesting either the right of expropriation or the necessity therefor. This ruling was followed in Inter-State Oil Pipe Line Co. v. Cowley, 223 La. 672, 66 So.2d 588 (1953).³

In an obvious attempt to nullify the effect of the decisions in the Wyatt Lumber and Cowley cases, the Legislature in 1954, by Acts 705 and 706, amended and reenacted R.S. 19:13 and Article 2634 of the Civil Code so as to provide in identical language that there is no suspensive appeal but only a devolutive appeal in expropriation suits. However, in Louisiana Power & Light Company v. De Bouchel, 117 So.2d 94, decided in 1959 by the then Court of Appeal for the Parish of Orleans, it was held that the Legislature’s efforts in 1954 were fruitless- — insofar as cases involving the issue vel non of the necessity for the expropriation — forasmuch as Civil Code Article 2636, providing for a review of the district court’s judgment in such cases and declaring that the question is “always subject to the decision of the Supreme Court on appeal”, clearly indicated that such an appeal may be suspensive.

After the decision in Louisiana Power & Light Company v. De Bouchel and kindred cases, in which the original opinion was reinstated and approved by per curiam on application for rehearing (see Louisiana Power & Light Company v. Meraux, La. App., 117 So.2d 101), the Legislature at its next regular session in 1960, by enactment of the amendatory laws now under consideration, abolished suspensive appeals in all expropriation cases. Accordingly, the question is squarely presented as to whether these statutes are violative of that part of Section 2 of Article 1 and the kindred provision of Section 15 of Article 4 of our Constitution declaring that private property shall not be taken or damaged except for public purposes and after just and adequate compensation is paid.

This Court has but recently held in State Through Sabine River Authority v. Phares, 245 La. 534, 159 So.2d 144, that R.S. 19:-141-160, the quick taking statute which was made applicable to the Sabine River Authority, was violative of Section 2 of Article 1 and Section 15 of Article 4 of our Constitution in that it permitted the taking of private property prior to the payment of just and adequate compensation by leaving the matter of whether the compensation is “just and adequate” to future determination. In that opinion, the author painstakingly reviewed the civil law and jurisprudence on the subject of condemnation in Louisiana and observed:.

“Undoubtedly the people of Louisiana have found it advisable to adopt a special constitutional provision to prevent their legislature from authorizing the taking of land for public use without the prior payment of just and adequate compensation. We can conceive of many valid reasons which would justify this constitutional safeguard, such as the insolvency of an expropriating authority — a municipal, even a state government unable to meet its obligations — and other evils that might ensue from a failure to provide for the payment of compensation prior to the taking. But we need not delve into the reason why. It is sufficient that the requirement is clearly set forth in the constitution.”

Further on in the opinion, the court quoted approvingly from State ex rel. Cotting v. Sommerville, 104 La. 74, 28 So. 977 (1901) where our predecessors held that the relator (the landowner) was entitled to appeal suspensively from the action of a district judge in dissolving upon bond an injunction, which had been granted in favor of relator restraining the expropriating authority from taking possession of relator’s property in advance of payment of adequate and just compensation. And, after citing Bickham v. City of Shreveport, 156 La. 648, 101 So. 8 (1924); De Bouchel v. Louisiana Highway Commission, 172 La. 908, 135 So. 914 (1931); Tolmas, Inc. v. Police Jury of the Parish of Jefferson, 231 La. 1, 90 So.2d 65 (1956); Williams v. Department of Highways, 92 So.2d 98 (La. App. 1957) and State, Through Department of Highways v. Macaluso, 235 La. 1019, 106 So.2d 455 (1958),⁴ the Phares opinion concludes:

“ * * * that the legislature is powerless to enact any legislation that would permit a taking, either possession or title, from an owner until payment of just and adequate compensation has been made or at least tendered and deposited to the owner’s account in the registry of court.”

The provisions of Section 2 of Article 1 and Section 15 of Article 4 of the Constitution are restraints on legislative power. But for these limitations, the right of the Legislature to enact expropriation laws and prescribe suitable procedure in such suits is plenary. The first constitutional restriction against the taking of private property except for public use is to be found in Article 109 of the Constitution of 1845, prohibiting the passage of ex post facto laws, any law impairing the obligation of contracts or divesting vested rights “unless for purposes of public utility, and for adequate compensation previously made.” This provision was repeated in the Constitutions of 1852 (Article 105) and 1864 (Article 109). In the 1868 Constitution, the word “previously” was omitted from Article 110 and it was under this Constitution that Article 2634 of the Civil Code was enacted upon the adoption of the Code in 1870. That Article, which had no previous counterpart in our codal law,⁵ provided for an appeal to the Supreme Court from the verdict of the jury and judgment of the lower court but that such appeal shall not suspend the execution of the judgment of expropriation and that payment of the amount of the verdict by the company to' the owner or the deposit thereof subject to the owner’s order in the hands of the Sheriff, shall entitle the corporation to the right, title and estate in and to the land described in the petition in the same manner as a voluntary conveyance would do. It is manifest that, at the time the Revised Civil Code of 1870 was adopted, this Article might not have been violative of the Constitution of 1868 as that Constitution did not require payment to be made “previously” to the taking. However, with the adoption of the Constitution of 1879, which restored the word “previously” in Article 155 to the provision that vested rights shall not be divested “unless for purposes of public utility and for adequate compensation (previously) made”, it is readily seen that the change may have cast doubt upon the validity of Article 2634 as it then stood, since the question, among others, could have arisen whether the taking prior to final judgment on appeal would divest vested rights in advance of determination that the compensation awarded by the jury or judge was just and adequate.

In the Constitution of 1879 (the first constitution after the Carpet Bag era), the prohibition against the divestation of vested rights was reinforced and extended by special declaration as to private property by Article 156. It provided that “Private property shall not be taken nor damaged, for public purposes without just and adequate compensation being first paid.” This proscription, as well as the present provisions of Section 15 of Article 4, was included in the Constitutions of 1898 and 1913 in virtually the same language and, in the Constitution of 1921, it was made part of the Bill of Rights.

Thus, it is to be observed that the Constitution of Louisiana and the construction given the fundamental law by this Court in the above cited cases, as recently stated in State Through Sabine River Authority v. Phares, reveal a strict adherence to the limitation on expropriation of property, that is, that private property may not be taken except for public purposes and then only after just and adequate compensation has been paid. However, all those cases involved situations where property was taken prior to adversary litigation in the district court.

The question before us deals with the applicability of these constitutional restrictions to matters on appeal and it differs with the above cited cases only in the circumstance that, here, there has been a determination in the court of first instance upholding the right of expropriation and fixing the compensation. Yet, these rulings are subject to review and, until a final judgment is rendered on appeal, it cannot rightly be said that defendant has had the full protection of his constitutional rights if he is to be divested of his property during the pendency of the appeal. Hence, it would seem that any law which authorizes such divestiture of property violates the constitutional restriction in the same manner — for although it may not be as flagrant an abuse as the quick-taking law involved in the Phares case, it nonetheless sanctions a taking in advance of final disposition. If the constitutional restraints are infringed, the offending law is void; the extent of the violation is immaterial.⁶

The right of an appeal in Louisiana is a constitutional right in most instances— for all courts of this State, those of original and appellate jurisdiction, are established by Article 7 of our Constitution, unlike the inferior Federal courts (district and circuit courts) which are established by Acts of Congress and the courts in many of our sister states which are created by legislative enactment. Accordingly, since the respective jurisdictions of the appellate courts are fixed in our Constitution (see Sections 10, 29 and 36 of Article 7), an appeal to those courts is not a matter of grace but a matter of right (see State ex rel. Boutte v. Judge of Superior District Court, 28 La.Ann. 547; State ex rel. Duffard v. Whitaker, 45 La.Ann. 1299, 14 So. 66; Succession of Damico, 161 La. 725, 109 So. 402; State v. Standard Oil Co. of Louisiana, 188 La. 978, 178 So. 601 and Harnischfeger Corp. v. C. W. Greeson Co., 219 La. 546, 53 So.2d 488) provided that the appeal is taken to the court having jurisdiction of the case.⁷

On the other hand, due process of law does not require that an appeal in a civil case or in a criminal case, for that matter, suspends execution of the judgment appealed from. Whether a suspensive appeal is permissible is a matter within the province of the Legislature⁸ provided, of course, that the Legislature may not deny a suspensive appeal in any case when such denial impinges upon the constitutional rights of the aggrieved party or otherwise violates a constitutional restraint on the power vested in that branch of the government. That is exactly the situation here, i. e., whether the legislative denial of a right to a suspensive appeal in expropriation cases divests the defendant of his property prior to a final determination that the property is being taken for a public purpose or that the plaintiff has a right to take it or that just and adequate compensation is being paid for it.

The main thrust of plaintiff’s position is that, since the Louisiana Expropriation Statute (R.S. 19:2-14) is not a quick-taking statute, the case differs from State Through Sabine River Authority v. Phares, supra, because our expropriation laws provide all the safeguards required by the due proceses clauses of both the State and Federal Constitutions. In support of this contention, much reliance is had upon McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867; Dohany v. Rogers, 281 U.S. 362, 50 S.Ct. 299, 74 L.Ed. 904 and other cases which held that, if an opportunity for a full and complete hearing has been duly afforded, due process of law does not require the grant of appellate review.

We do not dispute the principle announced in the cited cases that due process of law is satisfied when an opportunity for a complete hearing has been afforded, as stated by Nichols on Eminent Domain, Vol. I, Sec. 4.108,⁹ and that a right of appeal is not generally regarded as an indispensable part of due process. However, in Louisiana, where the State Constitution fixes appellate jurisdiction, an appeal may not be denied and is a constitutional right of the aggrieved party if the case is within the scope of the jurisdiction of the appellate court.

But, apart from this, it seems to us that the position taken by plaintiff’s counsel does not meet the issue for decision, viz., whether, in view of the constitutional restraints imposed on the Legislature by Section 2 of Article 1 and Section 15 of Article 4 of the State Constitution, that body violates the constitutional command that private property shall not be taken except for public purposes and only after just and adequate compensation is paid, when the effect of abolition of suspensive appeals in all expropriation cases is to sanction the taking of the private 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.

Let us consider, for a moment, the result which would follow in expropriation cases of this sort in the event of a reversal of the trial court’s judgment on devolutive appeal. Under the present provisions of R.S. 19:13, the judgment'of the trial court upholding the expropriation and the payment of the award into the registry of the court “entitles the plaintiff to-the property described in the judgment in the same manner as would a voluntary conveyance.” Thus, plaintiff secures title and goes into possession and has dominion and control of the property during the pendency of the appeal. But what happens if the appellate court should rule that plaintiff has no right to expropriate the property or that it is not being taken for a public purpose, or that the land sought to be expropriated is not reasonably necessary for plaintiff’s needs? Of course, the reversal of the district court’s judgment would carry with it an annulment of plaintiff’s interim title and possession. But would such a decree restore, ipso facto, the landowner to possession or would he have to sue for it? And would the landowner be entitled to indemnity for the damages he sustained during the interval when plaintiff possessed the property? Is plaintiff’s title and possession during the pendency of a devolutive appeal a legal possession ? Undoubtedly such possession is authorized by the statute, even though the appellate court may subsequently determine that the trial court’s judgment is erroneous.

Again, let us suppose that the only defect found in the judgment after review on appeal is the inadequacy of the compensation awarded the landowner. In such case, the court will increase the award by providing just compensation — but will such a decree entitle the landowner to damages or remuneration from plaintiff for its occupancy and use of the premises prior to the payment of just and adequate compensation as finally adjudicated! Allowance of such recovery may well be doubted if the assailed statutes were permitted to stand.

We hold that 'the legislative fiat abolishing suspensive appeals in all expropriation cases is violative of the limitations contained in Section 2 of Article 1 and Section 15 of Article 4 of our Constitution.

For the reasons assigned, the writ of certiorari heretofore issued is made peremptory to the extent that the district judge is ordered to forthwith grant defendant a suspensive appeal returnable to the Court of Appeal, Fourth Circuit, in accordance with law upon application made by defendant not later than five days from the finality of this decree. Meanwhile, the stay order heretofore issued is to remain in full force and effect for the period fixed by this order. The costs of the application for writs to the Court of Appeal, Fourth Circuit, and the proceedings in this Court are to be paid by plaintiff.

HAMITER, J., dissents.

1 . It now reads: “If any owner shall be of opinion that the quantity of land sought to be purchased by any corporation exceeds that which is reasonably necessary for the purpose intended by the company, it shall be lawful for him to file a special plea, setting forth this . fact, and in su'ch case the court shall determine not only the value of the land . to be expropriated, but also the extent of land over which the company may exercise the forced expropriation; the whole alioays subject to the decision of the court on appeal, which appeal, ■ however, as provided by Article 2634, shall not suspend the execution of the ■ judgment of the loioer court.” (Italics ours).

2 . This Article, which, as adopted in 1870, provides for an appeal to the Supreme Court from the judgment of the lower court which “ * * * shall not suspend the execution of such judgment * * * ”, has no counterpart in any of the prior codes or the Code Napoleon. The only corresponding article is Article 2610 of the Code of 1825 which simply provided that the verdict of the jury and the judgment founded on it are conclusive “except on appeal”.

3 . Compare State v. Central Realty Investment Company, 226 La. 1085, 78 So. 2d 182 (1955).

4 . In the Macaluso case the constitutionality of the quick-taking statute, as it applied to the Department of Highways, was upheld but only because the statute was enacted pursuant to special authority granted to the Legislature by Article VI, Section 19.1 of the Constitution by amendment ratified on November 2, 1948.

5 . See Footnote 2, supra.

6 . Indeed, it would appear that R.S. 19:13 and Article 2634, as amended, are just as objectionable as that part of Act 9 of the Extra Session of 1930, which authorized the Highway Commission “ * * * to enter the land and take possession * * * prior to the termination of said expropriation proceedings * * * ” (found unconstitutional in De Bouchel v. Louisiana Highway Commission, supra) because those statutes grant plaintiff a title to and possession of the property immediately upon deposit of the amount of compensation fixed by the trial judge which, of course, is prior to the termination of the expropriation proceedings.

7 . Counsel for plaintiff contend that there is no constitutional right of appeal in Louisiana and cite in support thereof several cases, viz., American Surety Co. of New York v. Brim, 176 La. 867, 147 So. 18; State ex rel. Ryanes v. Gleason, Supervisor, 112 La. 612, 36 So. 608 and Conerly v. Democratic Executive Committee, 130 La. 457, 58 So. 148. The authorities depended on are inapposite. The Brim ease merely states that an appeal is not necessary to due process of law; the Ryanes case involved the denial of the relator’s right to register to vote and it was held that, since such right did not have a monetary value of $2,000, this Court was without jurisdiction of his appeal. To the same effect is the Conerly case, where the defendant claimed that he was entitled to enter a third primary election for Police Juror and it was held that, since the right' to office did not involve $2,000, the Court was without appellate jurisdiction.

8 .However, our procedural law authorizes suspensive appeals save in certain special instances. See Articles 564, 565 and 575 of the Code of Practice of 1870 and Article 2123, Code of Civil Procedure of 1960. As stated in Young v. Village of Bossier City, 152 La. 18, 92 So. 719, “The suspensive appeal is the rule (C.P. art. 575); the nonsuspensive appeal the exception (C.P. art. 580).” Other than the statutes under consideration, the only special instances in which suspensive appeals are not allowable as a matter of right are judgments awarding custody of a person or alimony, C.O.P. Art. 3943; judgments appointing or removing legal representatives, C.C.P. Arts. 2122, 2974, 4068 and 4548, and from judgments issuing a preliminary or final injunction (see C.C.P. Art. 3612) in which instances the granting or refusal of a suspensive appeal rests in the sound discretion of the trial judge.

9 . Nevertheless, we are somewhat skeptical that the 1893 decision in McKane v. Durston, holding that one convicted of a criminal offense under State law is not denied due process when he is refused bail pending appeal from his conviction, will withstand the revised test of due process applied in cases like the 1956 pronouncement of the U. S. Supreme Court in Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, that indigent persons appealing from their conviction in a State court are entitled to have a full transcript of the proceedings furnished them at state expense and that denial of such rights are violative of the due process and equal protection clauses of the Fourteenth Amendment to the Federal Constitution.