Opinion Number ( 2008 )

Dear Mayor Overton:

You have requested an opinion of this office as to whether the Town of Maringouin may legally own and operate a retail gasoline station. According to your request, there has not been a retail outlet for the sale of gasoline in the Town of Maringouin for the last five (5) years and citizens of the town must drive approximately eight (8) miles South or North to purchase gasoline.

Your question must be answered in light of Article VI, Section 23 of the Louisiana Constitution, which governs the acquisition of property by political subdivisions and which provides as follows: "Subject to and not inconsistent with this constitution and subject to restrictions provided by general law, political subdivisions may acquire property for any public purpose by purchase, donation, expropriation, exchange or otherwise". Where the state or its political subdivisions seek to acquire property the primary question is whether the acquisition is for a public purpose.

Previous opinions of this office recognized this constitutional restriction on the acquisition of property by a political subdivision. In Atty. Gen. Op. 77-596 this office opined that Art. VI, Sec. 23 prohibited a school board from purchasing school buses for resale to private bus drivers. In Atty. Gen. Op. No. 01-45 this office opined that Art. VI, Sec. 23 prohibited a police jury from purchasing a building where there was the intent of the police jury to immediately lease a portion of the property to a bank. Such intent was an admission by the police jury that a portion of the property was not being acquired for public purposes and therefore the acquisition was prohibited by Art. VI, Sec. 23.

For the Town of Maringouin to own and/or operate a retail gasoline station the Town would need to acquire or purchase property and/or gasoline not for public use by the Town but rather for the resale of gasoline to the general public. There does not appear to be any evidence that in doing so a public purpose, such as economic development, would be achieved. Rather, operating a retail gasoline station where gasoline would be sold at cost, would inhibit, not encourage, economic development, by making it impossible for other gas stations to open and successfully compete with the municipality-owned gas station selling its product at cost.

The main purpose for Maringouin owning and/or operating its own gas station would be for the convenience for its residents. While such a purpose may be noteworthy, there is no Louisiana jurisprudence to suggest that mere convenience would satisfy the public purpose requirement in Louisiana Constitution Art. VI Section 23.¹

Therefore, it is the opinion of this office that Article VI, Sec. 23 of the State Constitution prohibits the Town of Maringouin from purchasing gasoline for resale and from acquiring, operating and maintaining a retail gasoline station.

We trust this adequately responds to your request. If you have any questions or comments, please do not hesitate to contact our office.

With kindest regards,

Very truly yours,

JAMES D. "BUDDY" CALDWELL

ATTORNEY GENERAL

BY:__________________________

RICHARD L. MCGIMSEY

Assistant Attorney General

JDC/RLM/dam

¹ McQuillin Municipal Corporation § 39:27 (3^rd Ed) states that there is also no jurisprudence in any other state which would suggest convenience to residents of a town is a valid public purpose.