
    NO. 7703.
    GRAND ISLE NAVIGATION DISTRICT VS LOREDON G. RIGAUD.
    STATE OF LOUISIANA. COURT OF APPEAL PARISH OF ORLEANS.
   OPIUIOJJ.

Bp His Honor

John St. Paul.

Plaintiff sought to expropriate part of defendant's land and offered $25. Defendant askj}^$1500 as the ralue of the part to he taken and of the damages to the rest. The jury allowed 410 and efendant appealed.

Plaintiff now mores to dismiss for want of jurisdiotion"heeaus<-the amount involved is less than $100."

The basis of the motion is that the ralue of the land sought to he taken is admittedly less than $100, and that defendant cannot reoorer the damages to the rest of the land in the same suit.

The motion to dismiss cannot prevail; I. Eren if the point were well taken, nerertheless the claim is made in this suit and therefore this court has appellate jurisdiction to decide whether it he proper to entertain the claim now; for that rery question presents a serious ooutrorersy inrolring more than $100. In other words, where one MM&i causé of action is cumulated with another the very question whether it was properly so cumulated presents a controversy inrolring st least the amount of the claim so cumulated. And 2. The very words of the law declares that the demand for damages to the rest of the land may properly he cumulated with the claim for the value of the part to he taken, thus;"x x A jury shall he empaneled which shall x x x determine, after hearing the parties and their evidence, what is the value of the land x x x. And what -’amages, j.f any, the owner would sustain in addition to the loss &of theland x x x." C. 0. 2.262.

The motion to dismiss is therefore not v/ell founded.

notion Denied

New Orleans, La, November 1919

0 i I II I O H.

St. Paul, J;

This is a suit to expropriate a sraalj.1 portion of defendant'3 marsh land^undsr tha provisions of Act 302 of 1914; and incidently enough land on both sides thereof to old the excavations taken from the trench; the same to be thrown up as dykes to protect the canal from damage by surface drainage, and servo as a foundation for landing places ami roads or approaches thereto.

I.

Jp. The defendant challenges the constitutionality of the act of 1914 on two grounds;

1st- That it violates Art 31 of the constitution in that "it embraces more than one object, and provides for navagation canals and also for building of public roads or highways.” But we have searched the act in vain for anything that appears to authorize Navagation Commissions to undertake <U the construction of roads and highways, otherwise than^ad juncts and accessories to a navagation canal; and this only in the following wordsyvhich on their face show that the statute has but one object; viz, "They shall have the further power to improve the entire district for) by any means whatever they deem most advantageous to effect the object for which they V are formed.

2. That it violates article 210 of the constitution in that it peimits the appointment of (and there have been appoimted] Navigation Commission^ who do not reside in the district. It may be that provision of the act violates the constitution; but if so it falls of its own weight, without however affe.cting in any way the rest of the act; for this part of the law is not so essential to the main purpose that the .latter cannot stand without it. As to the fact that commissioners may not be residents of the district and therefore not qualified to hold their office, there we meet with a doctrine as old as the time of Pomponius; fo^a fugitive slave having become Traetor in Imperial Rome, that great jurisconsult first laid down the doctrine that the official acts N^of a defacto officer could not he collaterally assailed O). I. 12.2). See State vs Sadler, 51 An 1397.

II.

From a list of 48 names of apparently qualified jurors 24 wore selected according to law and summoned as special jurors herein. On the day of trial one juror failed to appear because he had not been found, another was found to be exempt by lav/, and .a third was excused by the Judge on account of illness. Thereupon the defendant by exception and objection challenged the array and objected to going to trial until sufficient jurors should be attached (summoned instantar?) to complete the array of 24 under R* S. 700. But the judge forced the trial at once and the panel CÍjL formed (apparently¡without challenges to polls in any case.

The objections were properly overruled. It is no cause, for challenging the array of jurors that the exact number required by law were not drawn or did not appear, or that some of them were not qualified; but it lies wholly within the discretion of the trial judge to order a trial to proceed when in his opinion there are *■ sufficient number present to complete the panel. C. P. 497, 501; State vs Farrer, 35 An 315. This iff being the rule criminal as in civil matters, we see no 4 reason why it should not prevail in expropriation suits; since otherwise the trial of such cases would be well nigh impossible.

III.

On the merits the situation is this. Plaintiff tendered ‡25 for the land, the evidence is conclusive that it is not worth §10, and the jury allowed only the latter sum. Defendant claims however that by reason of the canal cutting him off from his own private landing by blocking a shellroad leading thereto he will be damaged in a very large sum if the canal ahould prove a failure. He admits however, repeatedly and unqualifiedly, that if bob canal proves a success he will be damaged in no way whatever.

If the question whether the canal would or would not prove a success were one of fact we would have no difficulty whatever in concluding the affirmative; for the defendant only doubts Its success, whilst others (better qualified than he) do not hesitate to affirm their abiding faith in the complete success of the enterprise.

But in our opinion that question is nn« thnt imnrHrm. ■is not one of fact but of law; for the presumption is Juris et d£ jure that the canal Will be a success. In other words, the inauguration of a public work of any kind is a legislative function; but no ptblio work should be inaugurated by a legislative body until it has first determined that it will be a success. Hence when a legislative body has inaugurated a publio work of any kind, it has in the exercise of its proper functions determined affirmatively that the work will be a success; and it is therefore not .within the province of the judicial department to substitute its own opinion for that of the legislative finding. Const Art 17.

We therefore eoncludd that defendant is entitled only to the value of the land taken, and not to damages. But under the pleadings the award of the jury should have been for the amount tendered, towit $25. In view of the tender the trial judge properly condemned the defendant to pay the costs of the court below; but of course the plaintiff must pay the costs of appeal.

It is therefore ordered that the judgment appealed from he amended so as to increase the amount awarded defendant from len 1o twenty five dollars; and as thus amended the judgment is affirmed; defendant to pay the costs of the court below and plaintiff to pay the costs of appeal.

Mew Orleans, La, February 19E0  