Cobb v. Louisiana Board of Institutions , 229 La. 1 ( 1955 )

McCALEB, Justice.

Plaintiff brings this suit against the Louisiana Board of Institutions and the State of Louisiana to recover for the death of 20 registered Aberdeen Angus breeding cows which allegedly resulted from eating black strap molasses purchased by him from the Louisiana State Penitentiary, an agency under the jurisdiction of the Board of Institutions. The action is for $50,000 damages and is founded on an asserted breach of contract, the charge being that the molasses sold by the State Penitentiary was unfit for animal consumption.

In limine, the defendants interposed exceptions to the • jurisdiction of the court and of no right or cause of action. These exceptions were overruled and defendants answered, denying that the molasses was contaminated or that the death of plaintiff’s cows is attributable to it. After a trial, judgment was rendered for plaintiff as prayed for, from which defendants have appealed.

Under the exceptions to the jurisdiction and of no right of action, the Louisiana Board of Institutions maintains that it is an unincorporated administrative agency of the State and that, not being sui juris, it is incapable of standing in judgment. The plea is well taken.

The Board was created by Act 48 of 1952, which was added as Section 30 to Article 6 of the Constitution, by vote of the people on November 4, 1952. This body is merely an administrative agency having no separate existence apart from the State; it is not sui juris and any action directed against it is, in reality, a suit against the State. Angelle v. State, 212 La. 1069, 34 So.2d 321, 2 A.L.R.2d 666. Such an unincorporated body is incapable of standing in judgment. State ex rel. Dodd v. Tison, 175 La. 235, 143 So. 59.

The exception to the court’s jurisdiction filed by the State is based on the elementary principle that the State may not be sued without its consent. Counsel for plaintiff, of course, recognize this rudimentary tenet of law. But they conceive there is an exception to the rule and pro-fess the State may be sued without its con- ' sent for a breach of contract when it is acting in a proprietary capacity. It is said that, since the Louisiana State Penitentiary-is authorized to sell its surplus farm-products, R.S. 51:692.10, the proceeds of the sales to be deposited in a revolving-fund established by R.S. 51:692.9, the State is in the position of any other vendor and liable for breach of the warranty of fitness exacted by Articles 2475 and 2476 of the Civil Code. To substantiate this proposition, counsel rely upon State ex rel. Shell Oil Co. v. Register of State Land Office, 193 La. 883, 192 So. 519; Begnaud v. Grubb & Hawkins, 209 La. 826, 25 So.2d 606 and Texas Company v. State Mineral Board, 216 La. 742, 44 So.2d 841.

The contention cannot be sustained as there are no exceptions to the immunity of the State from suit without its consent. Indeed, this principle, which is given full recognition in our Constitution by Section 35 of Article 3, denies to the courts power to hear and determine suits against the State where consent has not been obtained in the manner therein provided. That Section recites in part:

“Whenever the Legislature, shall authorize suit to be filed against the State it shall provide the method for citing the State * * *

Implicit in this language is the prohibition that no suit shall be entertained unless authorized by the Legislature. Nothing is so firmly established, not only in Louisiana but throughout this country, as the doctrine of the State’s immunity from suit in its own Courts without, its consent¹ and further comment would be unnecessary but for the erroneous (albeit inconsequential insofar as the result in the case was concerned) view expressed by this Court in one of its comparatively recent opinions, Begnaud v. Grubb & Hawkins, supra, which is in plain conflict with all the jurisprudence, as we shall hereinafter demonstrate.

The trial judge accepted jurisdiction of the present case under the mistaken belief that the State’s right to claim immunity from suit depended on whether the action against it is founded on a contract or ex delicto. This view apparently resulted from confusing suits against the State without its consent on the same basis with those brought against it with its consent or against municipalities or incorporated State agencies, wherein it has been generally ruled that they may be held amenable for the enforcement or breach of their contracts but not necessarily for the torts of their employees when they are engaged in the performance of governmental functions as distinguished from private or proprietary pursuits.² But no such distinctions between suits in contract or in tort apply when the State itself, as the party defendant, has not consented to the suit. This is clearly shown by the opinion of this Court in the Landmark case of State ex rel. Hart v. Burke, 1881, 33 La.Ann. 498.

In that matter, the complainant, as holder and owner of coupon bonds issued by the State, instituted a mandamus proceeding coupled with a prayer for an injunction against the State Auditor and State Treasurer to prevent them from disposing of public monies in the State Treasury and to compel them to pay him out of said monies the amount of $75,000, which he alleged was due on his bonds. These State Officers appeared and pleaded that the Court was without jurisdiction as the action was actually one against the State which had not given its consent to be sued. The plea was sustained in a scholarly opinion by Chief Justice Bermudez who, after a comprehensive review of the applicable authorities on the subject, stated:

“When the judiciary department of the government was instituted to expound the law and to distribute justice among individuals, the State was not subjected to its authority. She cannot be assimilated to an individual citizen. The mission of the State is to take care of the universal or the general interest. She cannot be brought to the bar of justice and sentenced like an individual, still less forced to perform what might be considered to be an obligation. Clear cases of an administrative character may sometimes be submitted to the tribunals. Officers or agents may be arraigned for breach of actual duty, or for malfeasance in office, but only so long as the will of the State has not been expressed to the contrary. However numerous the exceptional cases may be, the rule unquestionably is that the State cannot be called without her formal consent before civil tribunals as individuals are, and that the judiciary cannot take cognizance of suits the object of which is to declare the State to be a debtor and to force the State to pay her debts, and that State officers cannot be compelled to act against the real will of the State. There is no instance of a suit commenced on a contract, for the performance of duty or payment of a debt, in which judgment was ever rendered against a State to coerce either

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“So, when a question affecting the validity even of a provision of the State Constitution itself, on the ground of conflict with the Federal Constitution, arises in a litigation between parties amenable to judicial process, and whose rights are subject to judicial determination, courts may, and must determine such question, and deny effect to the provision, if it be found to be violative of the paramount law. But, though a State impair, nay, repudiate the obligation of her own contracts, and though if she were liable to suit, courts might annul her acts in that direction, yet, as she is not amenable to suit, it does not lie within the sphere of judicial power to compel her to perform her obligations.” (Italics ours.)

The grave question presented in the Burke case, i. e., whether the State could be compelled to submit to the jurisdiction of its courts to litigate a claim that it was, through its officers, impairing the obligations of its contract — impelled the court to elaborate upon its views in answer to complainant’s application for a rehearing. In adhering to its original findings the Court, through Justice Fenner, declared:

“The immunity of the State of Louisiana from suit in her own courts means absolute immunity from judicial compulsion, directly or indirectly, so far as the performance of her own contracts or obligations are concerned.

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“The State courts, in the exercise of the powers and duties imposed upon them by the Constitution of the United States and confirmed by the Constitution of the State, have the undoubted right to pronounce the nullity of provisions of the State Constitution on the ground that they violate the paramount law, by impairing the obligation of contracts. But that can only be done in suits within the jurisdiction of the court, and involving the enforcement of such contracts. As the contract of a State cannot be judicially enforced against her by her own courts, it follows that the question, whether or not a provision of her Constitution impairs the obligation of her own contract, can never be the subject of judicial cognition.” (Italics ours).

It would serve no useful purpose to cite and discuss herein the numerous decisions written both before and after the Burke case with views in concordance with that authority.³ It suffices to refer to State ex rel. Cunningham v. Lazarus, 40 La. Ann. 856, 5 So. 289; State v. Liberty Oil Co., 154 La. 267, 97 So. 438 and Lewis v. State, 207 La. 194, 20 So.2d 917.

The suit herein is one for a monied judgment against the State for a breach of contract. Consent of the Legislature for the institution of the suit not having, been obtained in the manner provided by Section 35 of Article 3 of the Constitution, as amended by Act 385 of 1946, the district court and this court are without jurisdiction to entertain it and it should have been dismissed.

The case of State ex rel. Shell Oil Co. v. Register of State Land Office, supra, cited by counsel for plaintiff, is not apposite. That was not a suit brought against the State without its consent but a mandamus proceeding wherein the Shell Oil Company sought an order directing the Register of the State Land Office to accept a tender of delay rentals on certain mineral leases which had been executed by the Governor in favor of the relator. The question was whether the Register of the Land Office and the State (which was not a party to the suit) were estopped from denying the validity of the lease. The Court simply held that, when the State contracts, it is like a person; that it cannot receive the benefits of the agreement and not assume its burdens and that therefore the doctrine of estoppel applies to it to the full extent that it does to individuals.

In Begnaud v. Grubb & Hawkins, on which counsel for plaintiff strongly depend, Begnaud instituted a possessory action against Grubb & Hawkins and others. Those defendants, who had acquired certain mineral rights on the land in question from the State Mineral Board, called the latter and the State itself in warranty. The State and the Mineral Board filed exceptions of no right or cause of action to this call,⁴ contending that the State could not be joined as a party without its consent.

The exceptions were properly overruled as to the State Mineral Board, the Court holding that, since the Board was a body corporate vested with express authority to sue and be sued and with full power to lease all lands belonging to the State, there could be no doubt that it was subject to judicial process on contracts made by it in its corporate capacity. However, notwithstanding that it was entirely unnecessary to its decision in the case since the Mineral Board had already been declared to be the proper defendant, the Court proceeded to likewise overrule the exceptions insofar as the State was concerned, holding that when the State enters a contract having for its purpose a private advantage to its inhabitants and not strictly for the purpose of governing the people, it acts in a proprietary capacity and is amenable to suit without its consent. To buttress this conclusion, the Court cited the ruling in State ex rel. Shell Oil Co. v. Register of State Land Office, supra, which concerns only the question whether the equitable doctrine of estoppel is applicable to the State. As pointed out above, the Shell Oil case is totally inappropriate to the question of the State’s immunity from suit without its consent and, while the pertinence of the finding in Begnaud v. Grubb & Hawkins on this question cannot be gainsaid, the ruling therein, which is manifestly contrary to all other jurisprudence on the subject, cannot be perpetuated.⁵

The other case cited by counsel for plaintiff, Texas Company v. State Mineral Board, supra, does not support their contention. There, the Texas Company instituted a declaratory judgment suit against the State Mineral Board for recognition of rights under certain mineral leases granted by the latter which had allegedly arisen by reason of a controversy between the State and the Federal Government concerning the paramount right or title to the leased property. The Mineral Board, taking the position that the suit was really one against the State, filed a plea to the jurisdiction of the Court, founded on the doctrine that the sovereign may not be sued without its consent. In affirming the overruling of these pleas, we held that, since the Mineral Board had issued the lease, it was the proper party defendant and that the suit was not one against the State. We cited Begnaud v. Grubb & Hawkins as authority for our conclusion and that authority was pertinent insofar as it upheld the right of plaintiff to sue the State Mineral Board. In all other respects, however, that decision was not appropriate to the ruling in the Texas Company case as the State was not a party defendant and so there was no reason to discuss whether it could be sued without its consent.

The judgment appealed from is reversed, the plea to the jurisdiction is maintained and plaintiff’s suit is dismissed.

HAMITER, J., concurs in the decree.

1 . See 49 Am.Jur. Yerbo “States, Territories and Dependencies” Sections 91-95; 81 C.J.S., States, §§ 214 and 216; Annotations 42 A.L.R. 1464-1496 and 50 A.L.R. 1408.

2 . See Annotation 40 A.L.R.2d 927; Rome v. London & Lancashire Indemnity Co., 181 La. 630, 160 So. 121 and particularly Manion v. State Highway Commissioner, 303 Mich. 1, 5 N.W.2d 527, certiorari denied 317 U.S. 677, 63 S.Ct. 159, 87 L.Ed. 543, noting the distinction between sovereign immunity from suit and sovereign immunity from liability.

3 . It is apt to point out that, at the time the Burke ease was written (1881), there was no constitutional provision setting forth the procedure in suits against the State when authorized by the Legislature. This provision first appeared in Article 192 of the Constitution of 1898.

4 . Exceptions to the jurisdiction would have been the proper plea.

5 . It is to be observed that, aside from the untenable holding in the Begnaud case that the State can be sued without its consent on contracts pertaining to the leasing of State lands as it is then acting in a proprietary capacity, the conclusion that the leasing or disposal of public property is of a quasi private character may well be doubted. Conversely, it occurs to us that the leasing or sale of public lands or other State property for the advantage of the people may well be regarded as a function of government.