
    53 So.2d 128
    FOUCHAUX v. BOARD OF COM’RS OF PORT OF NEW ORLEANS.
    No. 38464.
    Jan. 9, 1951.
    On Rehearing April 23, 1951.
    Rehearing Denied May 28, 1951.
    
      Porteous & Johnson and Parnell J. Hyland, New Orleans, for plaintiff-appellant.
    Eldon S. Lazarus, New Orleans, Emero S. Stiegman, Cyrus C. Guidry, New Orleans, of counsel, for defendant-appellee.
   McCALEB, Justice.

By virtue of the authority granted by Act 365 of 1946, plaintiff brought this suit to recover damages for personal injuries sustained by him as a result of the alleged negligence of the defendant, a State agency. The defendant filed an exception of no right or cause of action to the petition in which it challenged the constitutionality of Act 365 of 1946, on the ground that the Legislature failed to comply with the requirements of Article 3, Section 35 of the. Constitution. The judge of the lower court sustained the exception and dismissed the suit. Wherefore this appeal.

Section 35 of Article 3 of the Constitution of 1921, at the time Act 365 of 1946 became effective, read as follows: “Whenever the Legislature shall authorize suit to be filed against the State, it shall provide a method of procedure and the effect of the judgments which may be rendered therein.”

Counsel for the Board of Commissioners asserts that Act 365 is vitally defective in that, in granting plaintiff authority to sue the Board for his injuries, it did not provide either a method of procedure or the effect of the judgment in the event of an adjudication in plaintiff’s favor.

An examination of the statute has been sufficient to satisfy us that the contention is not well founded. Section 1 of the Act authorizes the filing of a suit for the injuries received by plaintiff. Section 2 declares : “That, except as otherwise herein expressly provided, the procedure in said suit or suits shall be the same as in suits between private litigants.”

Manifestly, the foregoing expressly sets forth the method of procedure governing the prosecution of plaintiff’s claim. Indeed, counsel for the Board does not inform us of the respect in which the provision is purportedly inadequate.

Section 3 of the Act sets forth: “That nothing in this Act shall be construed as conferring on the said Douglas Foucheaux any different or greater claim or cause of action than he had before the passage of this Act, the purpose of this Act being merely to waive the State’s and the said Board of Commissioners’ immunity from suit insofar as the suit or suits hereby authorized are concerned.”

Counsel for the Board professes that the Act does not provide for the effect of the judgment which may be rendered in plaintiff’s favor. But it strikes us that Section 3 amply sets forth the effect of any judgment that might be obtained — for it declares that plaintiff is being conferred only a right to have the courts determine the liability vel non of the Board for his injuries and that he would have no greater claim than he had before the passage of the Act, the purpose being merely to waive the Board’s immunity from suit. Obviously, the only reason for the inclusion of Section 3 in the Act was to designate the effect of a judgment in plaintiff’s favor and it was provided by necessary implication, if not by words, that, should plaintiff obtain a judgment, it would be like all judgments against the State — that is, it would not be subject to execution, Carter v. State, 42 La.Ann. 927, 8 So. 836, and that a legislative Act, Article 4, Section 1 of the Constitution, or some other appropriation by the Board would have to be obtained for its satisfaction. It was not incumbent on the Legislature to state the effect of the judgment, exactly as we have stated it or in any other particular form, in order to fulfill the constitutional edict. It sufficed that the language employed was such that it evinced an intention to provide the effect of the judgment and that, when reasonably construed, it actually does so.

This was the rationale of our decision in Lewis v. State, 207 La. 194, 20 So.2d 917, 922, where it was contended that, -because the venue of the action was not stated in the body of Act 273 of 1942, it was violative of the mandatory provisions of Section 35 of Article 3 of the Constitution. The court rejected this argument, holding that it was evident that the Legislature intended that the articles of the Code of Practice fixing the venue in tort actions would be applicable to the case. It was stated: “It is' inconceivable that in granting Miss Lewis the right to prosecute her action against the State the members of the Legislature intended to neutralize her right and to enact legislation that would be manifestly in contradiction of the constitutional provision and of no legal force or effect whatever. It is the duty of this Court, if it may do so consistently, to interpret a legislative act in a way that will uphold its constitutionality rather than to strike it with nullity. State ex rel. Varnado v. Louisiana Highway Commission, 177 La. 1, 147 So. 361.”

In support of his position that the Act in the instant case is unconstitutional, counsel for defendant relies on three decisions, namely, Lewis v. State, 196 La. 814, 200 So. 265; D’Asaro v. State, 204 La. 974, 16 So. 2d 538 and Martin v. State, 205 La. 1052, 18 So.2d 613. An examination of the Acts involved in those matters discloses that, in none of them, was there any attempt on the part of the Legislature to set forth either the mode of procedure or the effect of the judgments. Consequently, they are clearly distinguishable from the matter at hand.

. Other questions have been raised by counsel relative to another suit now pending between the same parties. However, the inquiry, when our appellate jurisdiction, Section 10, Article 7, is invoked solely on the ground that a law or ordinance has been declared unconstitutional, is limited to that specific issue. State ex rel. Chehardy v. New Orleans Parkway Commission, 215 La. 779, 41 So.2d 678 and authorities there cited.

The judgment appealed from is reversed and it is ordered that the cause be remanded to the district court for further proceedings consistent with the views herein expressed.

FOURNET, Chief Justice (dissenting).

I entertain serious doubt that the Legislature of 1946, in adopting its Act No. 365 waiving the defendant’s immunity from suit and authorizing the plaintiff to sue the Board of Commissioners of the Port of New Orleans, met the constitutional requirement to give validity to the Act; but conceding its constitutionality for the purpose of disposing of plaintiff’s appeal from a judgment of the lower court dismissing his suit on exceptions of no cause or no right of action, the question is necessarily posed: Does the petition set out a cause or right of action, in the face of the specific declaration in the Act that “nothing in this Act shall be construed as conferring on the said Douglas Foucheaux any different or greater claim or cause of action than he had before the passage of this Act * * * ”, and the fact that the identical -cause alleged in this suit was dismissed on an exception of no cause or right of action filed by the defendant, see 193 La. .182, 190 So. 373 — not, as stated in a footnote in the majority opinion, because “ * * * the Board of Commissioners of the Port of New Orleans, being an agency of the State, was not amenable to suits in tort without consent of the Legislature”, but based solely upon the fact that the allegations of the petition, accepted as true, stated neither a cause nor a right of action?

While it is true ordinarily that where our appellate jurisdiction is invoked on the ground that a law or ordinance has been declared unconstitutional, we have limited our consideration to the question of constitutionality alone, such limitation is not jurisdictional. Certainly to remand this case when the cause of action has already been declared by us. to be without merit, and the act of the Legislature permitting suit against the defendant specifically confers no greater claim or cause of action than the plaintiff previously had, is a vain and useless procedure sanctioned neither by law nor by reason.

I therefore respectfully dissent.

MOISE, Justice (dissenting).

The law in every case must relate to the facts of the case and the facts of the case must be complete and comprehensive in its meaning by the law. The majority opinion, in the Footnote 1. on the first page states: “It was held in a previous action brought by plaintiff, see Fouchaux v. Board of Com’rs, La.App., 186 So. 103, affirmed in 193 La. 182, 190 So. 373, that the Board of Commissioners of the Port of New Orleans, being an agency of the State, was not amenable to suits in tort without consent of the Legislature.” This statement is correct insofar as to the grounds of dismissal of the exception of no right or cause of action by the Court of Appeal for the Parish of Orleans, but there is error in assuming that this Court affirmed the judgment on the exception on the grounds above stated. We quote our decision in full:

“Plaintiff alleges that he is an employee of the International Harvester Company. That the International Harvester Company leased a portion of a building and an elevator and a portion of the wharf from the defendant, the Board of Commissioners of the Port of New Orleans; that it was provided in the lease that the elevator and wharf would be maintained in a safe and proper condition by the defendant, the Board of Commissioners of the Port of New Orleans. Plaintiff further alleges that on the 14th day of June 1935, he was a tractor driver pulling two loaded trailers on the large elevator of the defendant, and that the elevator fell before the second trailer was completely on the elevator. When the elevator fell, the tractor and trailers fell with it and plaintiff was seriously and permanently injured.
“It is further alleged that the wharf and elevator leased to the International Harvester Company, and under the supervision and control of the defendant, should have been properly supervised and maintained by the defendant in accordance with the terms of the lease, and defendant owed petitioner the duty of properly maintaining the elevator.
“Defendant Board of Commissioners of the Port of New Orleans', filed an exception of no cause or right of action, which was maintained • in the district court, and this judgment on appeal was affirmed by the Court of Appeal for the Parish of Orleans, and plaintiff’s suit was dismissed at his costs.
“The case is now before the Supreme Court on a writ of review herein granted.
“In our opinion, the judgment of the Court of Appeal is correct for the following reasons: •
“If plaintiff, had been an employee of the Dock Board, he may have sued that Board for compensation, since the compensation statute, Act 20 of 1914, as amended [LSA -RS 23:1021 et seq.], so provides. Dourrieu v. Board of Commissioners of Port of New Orleans, La.App., 158 So. 581.
“(1) But plaintiff is not an employee of the Dock Board. On the contrary, plaintiff is an employee of the International Harvester Company, which is liable to plaintiff, as its employee, for compensation for the injuries received by him under the Compensation Statute, Act 20 of 1914, as amended, and plaintiff has a direct cause or right of action against the International1 Harvester Company, his - employer, for compensation for injuries so received.
“It, is also clear that, under its lease from the Dock Board, the International Harvester Company may sue the Dock Board for any damages resulting to that company, and arising from the unsafe and improper condition of the elevator included in the lease.
“(2) But plaintiff is not a party to this lease, and there is no privity of contract between plaintiff and the Dock Board, upon which plaintiff may base a cause of action against the Dock Board, for any breach of duty in its failure to maintain the elevator leased to the International Harvester. Company in safe and proper condition.
“The facts stated and conclusions reached in this opinion are based solely upon the assumption that the allegations in the petition are true, for the purpose of disposing of the exception of no cause or right of action.
“For the reasons assigned, it is ordered' that the judgment of the Court of Appeal for the Parish of Orleans be affirmed.”

The analysis of the facts in a lawsuit can be likened to the weaving of a design. “Each fact, like threads in the weaver’s hands, must fit its proper place.in the pattern. The false premise, like an alien thread, must be discarded, and only when the design is complete to the last elusive thread, and the pattern woven as a whole, is a correct solution of the case possible. So, in the case at bar, if certain facts have been lost to view, or if an alien thread has been inserted by mistake, the pattern which the majority opinion of the Court has considered, differs from the true case shown by the record.”

The litigant, not being satisfied with the conclusiveness of the thing adjudged and the grounds assigned by the Supreme Court, applied to the Legislature. I need not go into details as to the consequences of another department of government assuming the privileges and rights assigned to the judicial branch of the government, because I believe such was not intended, but rather content myself by mentioning .that in all of our history heretofore the Legislature has never told this Court on what grounds we must predicate a cause of .action for decision, nor has this Court ever told the Legislature how to pass a bill. Immunity from suit never was, never has 'been, and cannot be, an issue, if we are in fact a Supreme Court. Besides, Section 3 •of art. 365 of 1946 has this provision: * * * Nothing in this Act shall be construed as conferring on the said Douglas Foucheaux any different or greater claim or cause of action than he had before the passage of this Act * * *.”

The mere recital of the facts hereinabove stated, taken into consideration with' this provision of the Act protects that body from any intent to assume the rights and prerogatives assigned to the Supreme Court of Louisiana by the Constitution. In our former opinion, we did not shackle Fouchaux’s right to sue but stated that he had a right and pointed out that right, which he has exercised, and furthermore, we said that as the contract relating to the elevator, which his employers had a right to enforce and sue upon, was between the Board and the International Harvester Company and, therefore, there was no privity of contract.

All of these facts, as disclosed by the petition, are now urged in the petition on which the majority opinion of this Court has reversed the exception of no right or cause of action sustained by the district court and I cannot consent to a reversal of a judgment under the same facts and circumstances as herein outlined where the case is so earmarked by res adjudicata, and any further consideration of this matter not only does now, but in the future would lead to absurd consequences.

Section 35 of Article 3 of the Constitution of 1921 read at the time that Act 365 of 1946 became effective, as follows: “Whenever the Legislature shall authorize suit to be filed against the State, it shall provide a method of procedure and the effect of the judgments-which may be rendered therein.” (Italics mine.)

Testing the matter from the correct premise, Act 365 of 1946 is wholly defective, because that Act has failed to provide for either a logical method of procedure or the effect of a judgment to be rendered.

It is declared in the majority opinion that the procedure prescribed in Section 2 is sufficient. Now, let us see what Section 2 does prescribe: It is said that “the procedure in- said suit or suits shall be the same as in suits between private litigants.” When the constitutional convention ordained the Ordinance which is now art. 3, Sec. 35 of the Constitution of 1921, they well knew that procedure against the State and procedure against private litigants is as far apart as the poles of the earth. Because, on the one hand, we are dealing with a sovereign state and on the other, a private litigant. When dealing with the sovereign State, the Constitution controls. When dealing with the procedure for private litigants, the Statute, that is, the Code of Practice, controls. We ask ourselves this question: How could Article 642, which applies only to private litigants or corporations, relating to the effect of the execution of a judgment, apply to the sovereign. Article 642 of the Code of Practice provides that the litigant must apply to the clerk of court to obtain a writ of fieri facias against the property of the debtor. Here, when attempting to proceed against the sovereign, you do not apply to the clerk of the court1 but to the sovereign’s legislature. Article 642 provides that the writ is directed for execution by the civil sheriff of the parish where the property of the debtor is situated, and orders him to seize the property, real and personal, rights and credits of the debtor, and to sell them to satisfy the judgment, and that the sheriff must make returns in not less than 30 nor more than 70 days. If this litigant obtains a judgment against the State, could he proceed as a private litigant proceeds- — through the civil sheriff of the Parish of Orleans, to execute judgment against the property and effects of the State? The majority opinion, when discussing Section 3 of the Act, does what the Constitution in Article 3, Section 35 directs the legislature to do.

The Constitution provides that all monies coming out of the general funds must be made by appropriation. The only method of procedure given to a litigant against the State is to apply to the Legislature to .appropriate out. of its general fund the amount to satisfy a judgment, either in general appropriation bills or by a specific appropriation; and the provisions of the Code of Practice — Articles 643, 646, 647, 648, 649, 650, 651, 652, 653, 654, and 655 as to the notice of the advertisement for sale, must be invoked by the private litigant. The Legislature did not intend to reverse or supersede a decision of this Court; the outward show of an inward grace will be found in Sections 2 and 3 of Act 365 of 1946. These sections with the restrictions imposed when applied to the facts of this case make the unconstitutionality of Act 365 of 1946 patent on the face of the papers, but the logic employed in the arguments “ties my ’brain into bowknots.” I cannot catch on to its combinations. “Its predicate looks one way, its conclusions another, and its judicium seems to be overlooked.” It may be stated that all the opinion of the majority of the Court does is to pass on the constitutional question. That would not be a true statement, because the “alien thread”, the false premise of “immunity” has been injected into the decision as a basis of judgment, and the pattern woven differs from the true case of record. This of necessity has to be pointed out, in order to make for the future a correct solution possible. Any appearance of criticism as distinguished from earnest presentment would be an error of the mind and not of the heart. The judgment of the District Court should be affirmed. I respectfully dissent.

On Rehearing.

MOISE, Justice.

The Legislature, a department of government, did not obey the requirements of its creator in enacting Act No. 365 of 1946, as ordained by Article 3, Section 35, of the Constitution of 1921. This constitutional provision had as its objective certain exactions imposed on the Legislature for the creation of the right to be granted (1) for the waiving of the State’s immunity from suit; (2) for a method of procedure; and (3) for the effect of the judgment to be rendered. Article 3, Section 35 of the Constitution, is a true transcript of the minds of the constitutional framers, with meaning as clear as light. The district judge recognized this fact when he declared Act No. 365 of 1946 on the face of the papers unconstitutional. He sustained the exception of no right or cause of action, dismissed the suit, because the enactment did not provide for the effect of the judgment to be rendered. This court reversed the judgment of the district court. A rehearing was applied for and granted, and we have now the matter on reconsideration.

Where the law is clear and free from ambiguity, the letter of it should not be disregarded under the pretext of pursuing the spirit.

The title of Act No. 365 of 1946 reads:

“An Act to authorize Douglas Foucheaux to sue the Board of Commissioners of the Port of New Orleans.”

It will be observed that the method of procedure and the effect of the judgment to be rendered are omitted from the title.

Section 2 of the Act provides: “ * * * except as otherwise herein expressly provided, the procedure in said suit or suits shall be the same as in suits between private litigants.”

In our original opinion the following comment was made on this section: “Manifestly, the foregoing expressly sets forth the method of procedure governing the prosecution of plaintiff’s claim. Indeed, counsel for the Board does not inform us of the respect in which the provision is purportedly inadequate.”

But this section of the statute fails to conform to the mandate laid down by Article 3, Section 35, as it existed at the time Act 365 of 1946 was passed, i. e., that, “Whenever the Legislature shall authorize suit to be filed against the State, it shall provide a method of procedure * *

This provision is mandatory, not permissive; and the “method of procedure” must be specifically stated, not implied.

Section 3 is thereafter discussed. It reads: “That nothing in this Act shall be construed as conferring on the said Douglas Foucheaux any different or greater claim or cause of action than he had before the passage of this Act, the purpose of this Act being merely to waive the State’s and the said Board of Commissioners’ immunity from suit insofar as the suit or suits hereby authorized are concerned.”

The Court then commented on this section as follows: “Counsel for the Board professes that the Act does not provide for the effect of the judgment which may be rendered in plaintiff’s favor. But it strikes us that-Section 3 amply sets forth- the effect of any judgment that might be obtained— for it declares that plaintiff is being conferred only a right to have the courts determine the liability vel n.on of the Board for his injuries and that he would have no-greater claim than he had before the passage of the Act, the purpose being merely to waive the Board’s immunity from suit.. Obviously, the only reason for the inclusion of Section 3 in the Act was to designate the effect of a judgment in plaintiff’s favor and it was provided by necessary implication, if not -by words, that, should plaintiff obtain a judgment, it would be like all judgments against the State — that is, it would not be subject to execution (Carter v. State, 42 La.Ann. 927, 8 So. 836) and that a legislative Act (Article 4, Section 1 of the Constitution) or some other appropriation-by the Board would have to be obtained for its satisfaction." (Italics mine.)

The very language underscored makes-glaringly apparent the defect of Section. 3 of Act 365 of 1946. The original opinion indicated two possible alternative means of effecting the judgment which might be rendered; but the Constitution, Article-3, Section 35, in force at the time the Act was passed provided that “the effect of the judgments which may be rendered therein” shall be authorized by the Legislature when authorizing the filing of the suit.

A faulty premise, like a river by its own-current, creates obstructions for itself. One may have the keenest sense of mental proportions. He may know the colour of adjectives and the gradations of emphasis;, but it is difficult to see any relationship between the language used in Section 3 of Act: 365 of 1946, and the mandatory provi-sion of Article 3, Section 35, of the Constitution of 1921, as it was in effect when Act 365 of 1946 became a law, which in clear language orders that the statute authorizing the suit shall provide “the effect of the judgments which may be rendered therein.” In Section 3, quoted supra, there is not a line or scintilla of expression that relates to the effect of a judgment to be rendered. The first part of that section restricts Foucheaux’s (Fouchaux’s) right to his original cause of action (if any) ; the second part states (lest there be any doubt) that the purpose of the Act is merely to waive the State’s immunity from suit. As a matter of fact the word “judgment” is not used anywhere in the entire Act.

When a special act of the Legislature is under attack, a comparison with prior acts of a similar nature serves to indicate the respects in which the act being scrutinized follows, or fails to follow, the requirements established by the Constitution. We take as an example Act 353 of 1940.

Its title reads: “To authorize Mrs. I. N. Cox to file suit against the State of Louisiana through the Louisiana Highway Commission upon a claim for damages result- ' ing from an accident, the result of which was the death of her husband, I. M. Cox, . said accident and death alleged to have been caused by the negligence of employees of the Louisiana Highway Commission; to provide a method of procedure and the effect of the judgment which may be rendered, to authorize the Louisiana Highway Commission to settle said claim by compromise.”

By contrast, Act 365 of 1946 did not make even a pretense of complying with Article 3, Section 16, Constitution of 1921, relative to titles of acts. Although the point was not raised, we mention it to show the meticulous care which must be exercised by legislatures in performing their constitutional duty.

Section 2 of Act 353 of 1940 reads:

“That said suit may be instituted before the District Court of the Parish of Webster, where the accident and death are alleged to have occurred; that citation to answer said suit should be served upon both the Chairman of the Louisiana Highway Commission and the Attorney General of the State. Should the final judgment be against the State, such judgment should be satisfied and paid by the Louisiana Highway Commission.” It will be observed that this section provides for the effect of the judgment to be rendered, and provides, as contradistinguished from any “necessary implication”, a definite method for its payment or execution — that the judgment shall be satisfied and paid by the Louisiana Highway Commission. To the same effect 'are other acts of 1940, as follows: Nos. 354, 355, 356, 358, 359, 360, 361, 362, 363, 365 and 366.

A re-examination of the following cases cited by defendant Board * * * Lewis v. State, 196 La. 814, 200 So. 265; D’Asaro v. State, 204 La. 974, 16 So.2d 538; and Martin v. State, 205 La. 1052, 18 So.2d 613 * * * discloses that, contrary to being “clearly distinguishable from the matter at hand”, they are strikingly similar, because, while it is true that “in none of them, was there any attempt on the part of the Legislature to set forth either the mode of procedure or the effect of the judgments”, here the Legislative authorization is defectively incomplete as to mode of procedure and non-existent as to effect of judgments.

We were not favoured with the presence of the able counsel for plaintiff when this matter was first presented; but after submission on rehearing, he has filed two briefs wherein reference is made to the amendment of Article 3, Section 35, Const, of 1921, by Act 385 of 1946, approved by the electorate on November 5, 1946, proclaimed by the Governor on November 18, 1946. The invoking of this constitutional amendment is not pertinent because (1) Act 365 of. 1946 became a law on July 19, 1946, (2) 'this suit was filed on October 2, 1946, and (3) the constitutional amendment invoked (Act 385 of 1946) only became operative as a law on December 8, 1946, twenty days after its proclamation by the Governor. Art. 21, Section 1, Const, of 1921.

In Mayor, etc. of Town of Homer v. Blackburn, 27 La.Ann. 544, we held that “the constitutionality of a law must be tested by the constitution which was in force when the law was passed.” To the same effect was our holding in Etchison Drilling Co. v. Flourney, 131 La. 442, 451, 59 So. 867, 870, where we said:

“Cooley’s Constitutional Limitations, under ‘Construction of State Constitutions,’1 p. 97, says:
“ ‘We shall venture also to express the opinion that a constitution should operate prospectively only, unless the words employed show a clear intention that it should have a retrospective effect. This is-the rule in regard to statutes, and it is. one of such obvious convenience and justice that it must always be adhered to in the construction of statutes, unless in cases where there is something on the face of the enactment putting it beyond doubt that the Legislature meant it to operate retrospectively.’
“The language used in the amendment refers to the future. It admits of no other interpretation. There is nothing whatever ambiguous in its terms in this regard. It confers certain authority upon future Legislatures. It does not control, or attempt to confirm, any act of past Legislatures. We have consistently followed the rule laid down by Judge Cooley in the work just above referred to. Among the cases are Mayor, etc. [of Town of Homer] v. Blackburn, 27 La.Ann. [544] 545; City of New Orleans v. Vergnole, 33 La.Ann. 35; Pecot et al. v. Police Jury, 41 La.App. 706, 6 So. 677; State ex rel. Recorder v. Judge, 50 La.Ann. [655], 658, 23 So. 886; Sue-cession of William Parham and Wife, 51 La.Ann. 983, 25 So. 947, 26 So. 700; State ex rel. Hart v. City, 51 La.Ann. 914, 25 So. 951.”

The constitutional framers, to equipoise all of the departments of government so that no one of them should feel an undue pressure from another, provided that each of these agencies of the people should exercise separate and distinct powers. In the combination of the three repose the elements of a democracy. The judicial department acts as an intermediary of the people to keep the executive and legislative departments within the limitations of their authority. When we ourselves are, or permit others to be, unmindful of this fact, we weaken the supremacy of the Constitution itself, and give to what it has ordained no more, no stronger, durability than “a rope of sand.” On the other hand, when we construe its language which is clear and unambiguous just as written, the organic law is forged into “a chain of gold” which neither legal tensions can break nor time itself corrode.

For the reasons assigned, the judgment of the district court is affirmed; there is reserved to plaintiff the right to apply for a rehearing.

FOURNET, C. J., absent.

LE BLANC, J., concurs.

HAMITER, J., concurs in the decree.

HAWTHORNE, J., dissents adhering to the views expressed in the original opinion.

McCALEB, Justice (dissenting).

A reading of the decision on rehearing has served only to strengthen my conviction of the correctness of the original opinion. And, being of the belief that the views expressed therein amply withstand the criticisms of the opinion on rehearing, added comment on this phase of the case would be redundant.

On the first hearing, the constitutionality of Act 365 of 1946 was tested solely by the requirements of Article 3 of Section 35 of the Constitution, as that article read prior to its amendment by Act 385 of 1946, which was adopted by the people at the general election held on November 5, 1946. However, on the rehearing, counsel for plaintiff have argued with great force that the constitutional amendment, even though it was adopted subsequent to the effective date of Act 365, is controlling for the reason that its provisions are remedial in nature and are therefore to. be applied retrospectively. If this argument is sound, and I believe it is, there can be no doubt about the constitutionality of Act 365 as it is not in anywise inimical to Section 35 of Article 3, as amended by Act 385 of 1946.

This important point, as to whether the constitutional amendment operates retroactively, has been summarily dismissed in the opinion on rehearing by a citation of the well-recognized general rule that the constitutionality of a law must be tested by the constitution in force at the time of its enactment and by a quotation from authorities expressing the accepted general doctrine that the constitution and laws operate prospectively.

No one contests these rudimentary principles but, in applying them here, the majority completely ignore the equally well-established rule that statutes, or provisions of constitutions for that matter see State v. Alden Mills, 202 La. 416, 12 So.2d 204, purely remedial in nature, are retroactive in their operation unless their language plainly shows a contrary intention. Paulsen v. Reinecke, 181 La. 917, 160 So. 629, 97 A.L.R. 1184; Geddes & Moss Undertaking & Embalming Co. v. First Nat. Life Ins. Co., La.App., 177 So. 818, affirmed in 189 La. 891, 181 So. 436; Oil Well Supply Co. v. Red Iron Drilling Co., 210 La. 222, 26 So.2d 726 and State v. Alden Mills, supra. Since it has already been determined by this Court in Lewis v. State, 207 La. 194, 20 So.2d 917 that legislation relative to the waiver by the State of its immunity from suit is remedial, it is difficult to perceive why the majority finds that the ■constitutional amendment of 1946 is inapplicable.

I respectfully dissent.- 
      
      . It was held in a previous action brought by plaintiff, seo Fouchaux v. Board of Com’rs, La.App., 186 So. 103, affirmed in 193 La. 182, 190 So. 373, that the Board of Commissioners of the Port of New Orleans, being an agency of the State, was not amenable to suits in tort without consent of the Legislature.
     
      
      . Defendant sought to have the appeal transferred to the Court of Appeal on the ground that this court is without jurisdiction ratione materiae because a resolution, rather than a law, has been held unconstitutional. The motion was denied. See Fouchaux v. Board of Com’rs of Port of New Orleans, 213 La. 803, 35 So.2d 738.
     
      
      .It has since been amended by Act 385 of 1946, which was adopted on November 5th, 1946.
     