State Ex Rel. Hodge v. Grace , 191 La. 15 ( 1938 )

On Rehearing. It was so strongly insisted that a grave injustice had been done the relators and other similarly situated distressed property owners as a result of the interpretation placed by us upon the redemptive statutes involved herein that a rehearing was granted for the purpose of giving further consideration to the matter.

The original opinion sets forth the undisputed facts and the provisions of the statutes applicable to the case and no useful purpose will be served by again restating them. The sole issue in the case is the correct construction of the provisions of Act No. 161 of 1934 and Act No. 72 of 1928 relied upon by relators. A brief statement of the history and importance of levee boards and the functions they perform is pertinent in arriving at the proper legislative intent. Originally, protection of the inhabitants and their possessions from flood waters of the streams in this State was afforded by levees which were maintained locally. In Article 213 of the Constitution of 1879, the State Government recognized its responsibility and provided for Levee Districts with a general State tax, and Article 214 thereof made provision for levee commissioners and taxes within such districts. Article 210 of the same Constitution granted delinquent property owners one year from the date of the tax sale within which to redeem their property.

In order to carry out the provisions of the first two above mentioned Articles, the Legislature enacted Act No. 95 of 1890. This statute created the Pontchartrain Levee District, established a Board of Commissioners to govern it, gave this Board the power to levy district taxes based on value and special taxes and forced contributions, granted certain lands to the Levee District and exempted them from taxation, authorized the Board to mortgage and sell the lands and to apply the proceeds for levee purposes, authorized the Board to issue bonds, made the Board a body politic, gave it domicile, and, in general, made it an independent corporation with special duties, rights and powers.

The Constitutions of 1898, 1913 and 1921 have continued to provide a general state tax for levees and special taxes within the district. Throughout all of this period of time levee districts have been considered and treated as a thing apart from other subjects. The provisions relating thereto are treated of in special Articles of the Constitution, separate and apart from parochial, municipal or other public affairs. During the entire existence of the levee boards, citizens in every part of the State have paid taxes to support levee districts, although they did not reside within them. Throughout this period of time an additional tax has been imposed upon property within these districts which other property elsewhere has not been subjected to and the validity of such taxes has been recognized. During all these years there have been general laws pertaining to the disposal of lands adjudicated to the State for unpaid taxes and it has been consistently recognized that these general laws did not apply to lands belonging to the levee districts. These districts from the very beginning have issued bonds which have not been and are not now considered to be obligations of the State of Louisiana.

Our jurisprudence shows that both the judicial and legislative branches of our government have stressed the importance of carefully dealing with the lands granted by the State to the levee boards under the provisions of Section 12 of Act No. 95 of 1890. That this grant of lands was not lightly to be considered as revoked or repealed by the Legislature is established by a number of decisions. Various parties have used the provisions of Act No. 215 of 1908, Act No. 30 of 1915, Ex.Sess., and Act No. 230 of 1918 as a basis for arguing that the land grants to the levee boards have been revoked or repealed, but their claims were rejected. State ex rel. Atchafalaya Basin Levee Board v. Capdervielle et al., 142 La. 111, 76 So. 327; Atchafalaya Land Co., Ltd. v. Grace, Register et al., 143 La. 637, 79 So. 173; State ex rel. Board of Com'rs of Caddo Levee Dist. et al. v. Grace, Register et al., 145 La. 962, 83 So. 206; Board of Com'rs of Tensas Basin Levee Dist. v. Hardtner et al., 164 La. 632, 114 So. 494.

Our jurisprudence also shows that the courts and the members of the Legislature have consistently recognized the difference between the lands which have been granted to the levee districts and not formally conveyed to them and those lands which have been conveyed to them by the State through proper recorded instruments of conveyance signed by the register of the State Land Office and the State auditor. See the authorities cited supra and also State ex rel. Fitzpatrick v. Grace, Register et al., 187 La. 1028,175 So. 656, and State v. Board of Com'rs of Caddo Levee Dist.,188 La. 1, 175 So. 678.

In recognition of this legislative policy of treating lands to which the levee districts have perfected title, different from those in which it had an inchoate right or title, this Court held, in the instant case, that the two Acts in question did not divest the levee board of its "absolutely vested" title to the property in controversy but, on the contrary, that the Acts had reference to redemptions of property only when the title thereto was in the State or in some subdivision of the State to which the lands had been adjudicated in the first instance. Relators admit that the interpretation given by this Court to the provisions of Act No. 161 of 1934 is at least "possible", or strictly in accord with the wording of the Act, but they state that the same construction cannot be given to the provisions of Act No. 72 of 1928. However, the relators concede that the Act of 1934 substantially copies the Act of 1928 and grants more liberal terms of redemption and payment. One of the methods of determining what the Legislature meant by an ambiguous clause in a statute is to consider what the Legislature has done in subsequent acts on the same subject. We reiterate that it is our opinion that Act No. 72 of 1928 refers to those subdivisions to which properties were adjudicated for taxes. We think that the Act furnishes intrinsic evidence of this by its own words and that search elsewhere for a pretended spirit is neither necessary nor proper. But, if any doubt did exist as to this meaning, the Legislature resolved that doubt and clarified the matter by the provisions of Act No. 161 of 1934, which clearly and unequivocably state the law to be as we interpreted the provisions of Act No. 72 of 1928.

At the time we decided this case, the Legislature was in session and it again provided a redemptive statute, i.e., Act No. 47 of 1938. The language used therein specifically refers to those political subdivisions to which property is adjudicated for taxes and the statute again fails to mention levee boards directly and also fails to make reference to levee boards by implication, because it does not refer to subdivisions to which properties have been transferred by the adjudicatee. Furthermore, the members of the Legislature showed that by "political subdivisions" they meant towns, villages and cities — for the statute expressly and specifically exempted the City of New Orleans, a municipal corporation and a political subdivision of the State, from its effect. If the members of the Legislature had not been satisfied with the judgment of this Court in this case, Act No. 47 of 1938 might readily have reflected its dissatisfaction by clearly and unequivocably extending the provisions of the law to lands, the titles of which are "vested absolutely" in the levee boards, and transferred to them by the State.

The significant point is that when three Constitutional Conventions have sought specifically to provide special laws to strengthen the control of floods and when for over a half century this system has been in effect, it is not to be presumed that the Legislature would strike down this system by implication but, rather that, if such a result were intended, it would expressly so state. While we are not concerned with the wisdom of the Legislature, its actions bespeak its interest in the welfare of the levee boards which it created for the purpose of protecting the people, and we feel certain that the Legislature would not in its wisdom destroy or injure these institutions without taking the trouble even to mention them.

Act No. 95 of 1890 expressly authorized the levee boards to sell, mortgage and use the lands which they have title to for the purposes which the board was created. If the contention of the relators is accepted, then these lands to which the levee boards have absolute title would be subject to redemption by the former owner, even though the board had placed a mortgage, lease or improvements thereon, for the titles remain in the boards. The statute is silent as to what will become of the mortgage, lease or building and improvements placed thereon by the levee board and what the rights of the respective parties involved would be. To carry out relators' interpretation, the courts would have to legislate to a greater extent on this subject than the Legislature itself has done, for it by no means has enacted a comprehensive Act showing that it intended to deal with lands held by levee boards under absolute titles.

It is said that the author of the bill was an experienced legislator and familiar with this subject matter, and intended to affect the lands of the levee boards to which they had vested titles. We feel certain that if the learned author of the bill had intended the results contended for by relators, it would have been a simple matter for him to have used appropriate language to carry out that intention. But he signally failed to do that and one must, therefore, conclude that he did not intend to divest the levee boards of these lands.

Act No. 88 of 1928, called a validating statute, and the companion measure, Act No. 72 of 1928, both failed to refer to levee boards by name and expressly to lands acquired by the State through tax sale and formally transferred by it to the levee boards. The record shows that the Register of State Lands, in acting upon applications for the redemption of lands, accepted the opinion of the Department of Justice, presided over by the Attorney General. The letter by him to the Register of State Lands shows that there had been a difference of opinion among his assistants as to the correct construction of the redemptive statutes and due to the importance of the matter, he finally concluded to let the courts settle it. While the trial judge ruled that the exhibits offered for the purpose of showing contemporaneous construction were not admissible, nevertheless, they are in the record and, under the circumstances above stated, even though considered, are of little or no value to the court in deciding the question. In any event, the opinions of these officers under the facts of this case are not binding upon the court, particularly where the relator has not shown that he acted upon an opinion of the Attorney General or the Register of State Lands to his detriment.

The case of State v. The Board of Com'rs of Caddo Levee Dist.,188 La. 1, 175 So. 678, which deals with the subject of repeal by implication is not in point, because there the court concluded that the early legislation and later statute occupied the same field and were hopelessly irreconcilable. Such is not the case here, as we have already explained.

For the reasons assigned, our original opinion and decree are reinstated.

O'NIELL, C.J., adhers to his dissenting opinion.

ODOM, J., dissents.

LAND, J., absent.