
    (74 South. 170)
    No. 21836.
    POLICE JURY OF PARISH OF LAFAYETTE v. MARTIN et al.
    (June 30, 1916.
    On Rehearing, Feb. 12, 1917.)
    
      (Syllabus by Editorial Staff.)
    
    1. Eminent Domain <&wkey;166 — Expropriation —Highway—Proceedings—Statute.
    A parish, having converted one of its public roads into a state highway under State Highways Law (Act 49 of 1910) in a proceeding to shorten the road by expropriating right of way over defendants’ land, properly proceeded under the highway law, instead of under Rev. St. §§ 3369, 3370, prescribing special mode of proceeding for expropriating rights of way for parish roads.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 448-450, 456J
    2. Eminent Domain <&wkey;71 — Expropriation— Compensation — Constitutionality op Statute.
    State Highways Law, § 14, providing that measure of damages to owner of land expropriated for right of way shall be double the assessed value of the property per acre appearing on the last assessment roll, violates Const, art. 167, declaring that private property shall not be taken for public purpose without adequate compensation first paid, as such compensation is to be fixed by the courts according to the facts.
    [Ed. Note. — For other cases, see Eminent Domain, Cent. Dig. §§ 180-187.]
    3. Statutes &wkey;>64(5) — Partial Invalidity-Effect.'
    The unconstitutionality of State Highways Law, § 14, purporting to fix the measure of damages for land expropriated for right of way, does not invalidate the entire statute of which it is a mere detail.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 62, 195.]
    On Rehearing.
    
      (Syllabus by the Court.)
    
    4. Pleading i&wkey;245(l) — Amendment — New Cause of Action.
    An amendment changing the allegations or the prayer of a petition, so as to make it disclose a cause of action, where none was originally disclosed, should not be allowed after issue joined, and, still less, after a judgment sustaining an exception of no cause of action.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 655, 669.]
    
      Appeal from Eighteenth Judicial District Court, Parish of Lafayette; William Campbell, Judge.
    Condemnation proceeding by the Police Jury of the Parish of Lafayette against Adelma Martin and others. Judgment for defendants dismissing the suit, and plaintiff appeals.
    Affirmed in part, and in part reversed.
    C. B. De Bellevue, Dist. Atty., of Crowley (Mouton & De Baillon, of Lafayétte, of counsel), for appellant. Crow Girard and John L. Kennedy, both of Lafayette, for appellees.
   PROVOSTY, J.

[1] Sections 3869 and 3370 of the Revised Statutes prescribe a special mode of proceeding for expropriating rights of way for parish roads.

Article 2630 et seq. of the Civil Code and section 1479 et seq. of the Revised Statutes, as amended by Acts 117 of 18S6, and 96 of 1896, provide the mode of proceeding in other cases of expropriation of private property for public purposes.

Interpreting these statutory provisions, this court, in Fuselier v. Police Jury, 109 La. 551, 33 South. 597, held that the said sections 3369 and 3370 authorized the taking of only a servitude of passage, whereas these other provisions authorized the taking of the fee itself, or perfect ownership.

Act 49, p. 74, of 1910 (the State Highways Law), provides how parish public roads may become state highways, and may be constructed, improved, and thereafter maintained as state highways, at the joint expense of the state and the parish'. Its section 14 provides that:

“In all cases where it is necessary to acquire a right of way in constructing a new highway or changing the location of an old, the right of way thereof shall be acquired by the parish, city, town or village, either by purchase, donation or by expropriation under the general laws of the state relative to expropriation of private property for public purposes, in the event the owner of said property and the governing authorities of such cities, towns or villages, or the state highway engineer should not agree upon the price thereof.”

The parish of Lafayette, having converted one of its public roads into a state highway under the provisions of this Act 49, wishes to shorten this road by expropriating a right of way across the 80-acre tract of land of the defendant, along the three sides of which the road runs at present, and has filed the present suit for that purpose; and is proceeding under the said article 2630 et seq. of the Code, and section 1479 et seq. of the Revised Statutes, instead of under said sections 3369 and 3370 of the Revised Statutes.

In other words, it is proceeding “under the general laws of the state relative to expropriation of private property for public purposes,” as it is directed to do by the said Act 49.

Defendant contends it should have proceeded under the said sections 3369 and 3370, which prescribe a special mode in expropriations for parish roads. The said Act 49 says differently, and we can see no good reason why it should not be held to mean what it expressly and plainly says.

The same said section 14 of said Act 49 of 1910 provides that:

“In expropriating lands for the right of way the measure of damages to such landowner shall be double the assessed value of the property per acre, appearing on the last assessment rolls. This measure of damages shall include the price of the land and all damages that may result to the owner: Provided, however, that if any improvements of the landowner, or any crops upon the land are damaged or destroyed by the location of such highway, then he may recover additional compensation for the actual injury or destruction of such improvements or crops.”

Defendant contends that this provision by which the quantum of damages is fixed by the Legislature, or by which a standard is fixed for measuring same, instead of the matter being left to be determined by the courts according to the facts and circumstances of the case, is unconstitutional, as violative of article 167 of the Constitution, reading:

“Art. 167. Private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid.”

The authorities are agreed that- the Legislature cannot fix the amount to be paid in the forced expropriation of property or adopt an arbitrary standard for the measure of it; but that such amount must be left to be determined by the courts from the particular facts of the case. Thus:

Elliott’s work on Roads and Streets (2d Ed.) § 257:

“The value of the land is not to be measured by the appraisement put upon it for purposes of taxation.”

Lewis on Eminent Domain (2d Ed.) vol. 2, § 448:

“The assessed valuation of the land made for the purpose of taxation is not the market value, and generally it is not to be considered in determining the market value of the property.”

See Am. & Eng. Enc. of Law, vol. 10, p. 1154, Title Eminent Domain.

Yol. 15, p. 644:

“While the Legislature is judge of the expediency of the exercise of the right of eminent domain, it is not the judge of the amount to be paid for the property taken.” Monongahela Nav. Co. v. United States, 148 U. S. 312, 13 Sup. Ct. 622, 37 L. Ed. 463; Shoemaker v. United States, 147 U. S. 282, 13 Sup. Ct. 361, 37 L. Ed. 170.

St. Louis County Court v. Griswold, 58 Mo. 175:

“The act of 1874 to establish Forest Park in St. Louis county, providing that in all cases the assessment of the county assessor for the year 1873 shall be taken as a guide 'in the value of the property to be condemned or appraised, is unconstitutional in so far as it designs that the assessment of 1873 is t9 be taken as a standard in fixing the compensation, as arbitrarily fixing a value on the property which the owner shall be required to take.”

Cooley, Constitutional Limitations (4th Ed.) pp. 703, 704:

“The proceeding is judicial in its character, and the party in interest is entitled to have an impartial tribunal, and the usual rights and privileges which attend judicial investigations. It is not competent for the state itself to fix the compensation, though the Legislature, for this would make it the judge in its own cause.”

Cyc. vol. 15, p. 872:

“A condemnation proceeding is judicial in its character.”

The unconstitutionality of this provision need not, however, entail that of the entire statute, which is an elaborate piece of legislation of which this provision is a mere detail. Evidently, this provision was adopted as appearing to be an easy and practical mode of arriving at the amount to be paid to the expropriated owner. It being omitted from the statute, the ordinary and constitutional mode will be followed. Wheelwright v. City of Boston, 188 Mass. 521, 74 N. E. 937, and Edwards v. Bruorton, 184 Mass. 529, 69 N. E. 328, are eases directly in point.

The judgment appealed from is affirmed in so far as it holds the provision of said section 14 adopting a standard for ascertaining the amount to be paid defendant to be unconstitutional, but it is otherwise set aside, and the case is remanded to be proceeded with in accordance with the views herein expressed; defendant to pay the costs of this appeal.

On Rehearing.

MONROE, C. J.

The rehearing having been granted solely upon the question whether the ease should have been remanded or dismissed, we confine ourselves to that question.

The prayer of the petition is that the property sought to be expropriated be adjudged to the parish of Lafayette, upon payment into court of such damages as the owners may sustain, in consequence of the expropriation, “not to exceed $67.60, double the assessed value thereof.” The suit was met by exceptions, to the jurisdiction of the court ratione materiae, of no cause of action, and to the constitutionality of the act under which plaintiff was proceeding, all of which were sustained by the trial court, and plaintiff’s demand was rejected, at its cost. In the opinion handed down, we hold that Act 49 of 1910 is unconstitutional in so far as it purports to fix a standard for determining the amount that shall be paid for the property to be expropriated, though not unconstitutional with respect to the provision which rests jurisdiction in the district court; but we also hold that plaintiff’s petition discloses no cause of action. From which it follows that, in sustaining that exception, the trial court properly dismissed the suit, since the Code of Practice declares that peremptory exceptions tend to that result. C. P. 343; Hen. Dig. vol. 2, p. 1169, No. 2

Plaintiff made no attempt to amend either the allegations or the prayer of its petition, hut appealed directly to this court, and its learned counsel now think that the case should be remanded in order to give it an opportunity to amend, but we think not. The purpose of the amendment would, necessarily, be to “alter the substance of the demand” and make it “different from the one originally brought,” and amendments of that kind are not permitted after issue joined, and, still less, after judgment. C. P. 419; Hart & Co. v. Bowie, 34 La. Ann. 323; National Bank v. Moss & Co., 41 La. Ann. 232, 6 South. 25; Abadie v. Berges, 41 La. Ann. 281, 6 South. 529; Godchaux v. Hyde, 126 La. 187, 52 South. 269. It is hardly necessary to say that a judgment maintaining an exception of no cause of action constitutes no bar to the institution of a suit in which a cause of action is disclosed.

For the reasons thus assigned, it is ordered that the decree heretofore handed down be amended and recast so as to read as follows, and, so reading, that it constitute the final decree of the court, to wit:

The judgment appealed from is affirmed in so far as it holds the provisions of said section 14, adopting a standard for ascertaining the amount to be paid to a defendant in the proceeding authorized by the statute, to be unconstitutional, and is so far as it sustains defendants’ exception of no cause of action and dismisses its suit, and it is reversed in so far as it sustains the exception to the jurisdiction of the court, defendants to pay the costs of the appeal, and plaintiff those of the trial court.  