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O'NIELL, C.J., and ODOM, J., dissenting. This is a suit instituted by the Attorney General in his own behalf and in the name of the state against the Louisiana highway commission and the members thereof in their official capacities. Five attorneys at law, employed by the commission, were cited, together with these defendants, to answer the suit, though no judgment is specifically asked of the court against the attorneys. *Page 353
The cause of action set forth is, substantially, that, although it is the mandatory duty of the Attorney General and his assistants to attend to and have charge of all legal matters in which the state has an interest, or to which the state is a party, under the provisions of the Constitution, the commission and its members, without authority in law, and against the provisions of the Constitution of 1921, creating the office of Attorney General, employed, without obtaining the approval of the Attorney General, if such were legally possible, the five attorneys, cited to answer the suit, as regular counsel for the commission, at salaries, aggregating some $14,000 per annum. It is also alleged that, if there should be any statute of this state, purporting to authorize such employment, such statute is in conflict with the provisions of the Constitution, creating the office of Attorney General, and defining the duties thereof, and is unconstitutional for that reason. It is further alleged that the expenditures for the salaries of the five attorneys are illegal and unconstitutional expenditures of the public funds of the state, and that, unless the commission and its members be enjoined from continuing to employ the attorneys, they will continue to do so, to the irreparable injury of the state. No injunction is asked for against the five attorneys.
Four of the attorneys filed exceptions to the jurisdiction of the court, ratione personæ, the fifth filed exceptions of misjoinder of parties defendant, and of no right or cause of action, as did also the commission and its members. These exceptions were overruled. The commission and the members thereof then filed an answer to the rule nisi, relative to the issuance of a preliminary injunction, and also to the petition. The case was submitted on the rule nisi and, on the merits, *Page 354 on an agreed statement of facts. Judgment was rendered on the rule nisi, ordering the preliminary injunction to issue against the commission and its members, and on the merits, perpetuating the injunction.
The case involves a consideration of Act No. 95 of 1921 (Ex. Sess.), creating the Louisiana highway commission, a consideration of sections 55 and 56 of article 7 of the Constitution of 1921, creating the office of Attorney General, and stating the duties and powers of that official, and Act No. 125 of 1912, as amended by Act No. 221 of 1920.
The commission was created by Act No. 95 of 1921 (Ex. Sess.) in carrying out the provisions of section 19 of article 6 of the Constitution of 1921, relative to establishing and maintaining a system of hard surface state highways and bridges. The act is quite lengthy, and it is wholly unnecessary to do more than state the substance of some of its provisions. The first section creates the commission. The third section establishes the domicile of the commission at the state capital, which is Baton Rouge, and also provides that "the Commission shall be a body corporate and as such may sue and be sued, plead and be impleaded, in any Court of Justice." The sixteenth section provides that every contract for highway improvement, under the act, must be made in the name of the State of Louisiana, be signed by the state engineer and the other contracting party, and approved by the commission, and that no such contract shall be entered into, nor shall any such work be authorized, which will create a liability on the part of the state in excess of the funds available for expenditure under the terms of the act. Section 18 provides that the cost of all highway and bridge construction, under the act, shall be paid out of the general highway fund, although local aid may be *Page 355 received. This fund, as appears from the thirty-fourth section of the act, consists of all moneys, dedicated to the construction and maintenance of highways and bridges of the state by the Constitution or the Legislature, and any moneys received from the federal government. In the twentieth section the act provides that the state, acting through the commission, may acquire by purchase, lease, or donation, and may operate gravel beds, shell or rock deposits, and the like.
Sections 55 and 56 of article 7 of the Constitution, which it is necessary to consider also, read as follows:
"Section 55. There shall be a Department of Justice consisting of an Attorney General, a First Assistant Attorney General, a Second Assistant Attorney General, and other necessary assistants and office force. The Attorney General shall be elected every four years at the general State election, and the assistants shall be appointed by the Attorney General to serve during his pleasure.
"Section 56. The Attorney General and the assistants shall be learned in the law and shall have actually resided and practiced law, as duly licensed attorneys, in the State for at least five years preceding their election and appointment. They, or one of them, shall attend to, and have charge of all legal matters in which the State has an interest, or to which the State is a party, with power and authority to institute and prosecute or to intervene in any and all suits or other proceedings, civil or criminal, as they may deem necessary for the assertion or protection of the rights and interests of the State. They shall exercise supervision over the several district attorneys throughout the State, and perform all other duties imposed by law. * * *"
Act No. 221 of 1920, amending and re-enacting Act No. 125 of 1912, § 1, which it is also *Page 356 necessary to consider, omitting the repealing clause, which repeals all laws in conflict with the act, and omitting the date the act becomes effective, which is from and after its promulgation, reads as follows:
"The Attorney General of the State of Louisiana in the Parish of Orleans and the District Attorney of the several judicial districts of the State of Louisiana, other than the Parish of Orleans, shall ex-officio and without extra compensation, general or special, be the regular attorneys and counsel for the Police Juries and School Boards within the Parish of Orleans and within their respective Districts and of every State Board or Commission domiciled therein, including Levee Boards, Hospital and Asylum Boards, Educational Boards, and all State Boards or Commissions, the members of which, in whole or in part, are elected by the people, or appointed by the Governor or other prescribed authority, except all State Boards and Commissions domiciled at the City of Baton Rouge, Parish of East Baton Rouge, and all Boards in charge or in control of State institutions; and it shall be unlawful for any Police Jury, School Board, or State Board or Commission to retain or employ for any compensation whatever any attorney or counsel to represent it generally, or except as hereinafter provided, to retain or employ any special attorney or counsel for any compensation whatever to represent it in any special matter, or pay any compensation for any legal services whatever; provided that the Board of Commissioners of the Port of New Orleans shall select its own attorney who shall also be the attorney for the Orleans Levee Board, without additional compensation from said Levee Board. Provided further that the provisions of this Act shall not apply to the Board of Assessors of the Parish of Orleans, the salary of whose attorney is *Page 357 paid by the City of New Orleans, and Board of School Directors of the Parish of Orleans, for which Boards the City Attorney of the City of New Orleans is hereby constituted ex-officio Attorney."
As the act of 1920 re-enacts only the first section of Act No. 125 of 1912, reference must be had to the remaining sections of the latter act, in ascertaining the legislative will in regard to the employment of attorneys for boards and commissions.
The second section of the act of 1912, which we find unnecessary to quote, provides, substantially, that, should it become necessary to protect the public interest, "for any State Board or Commission to retain or employ any special attorney or counsel to represent it in any special matter for which services any compensation is to be paid by it," such retention or employment may be made solely on the joint written approval of the Governor and the Attorney General of the state, showing the amount of compensation, which both agree should be paid, the approval to be given only upon the application of the board or commission, shown by resolution, setting forth fully the reasons for the proposed retention or employment, and the amount of the proposed compensation.
The third section of the act of 1912 prohibits any police jury or parish school board from retaining or employing any special attorney or counsel to represent it in any special matter or pay any compensation for legal services unless a real necessity exists therefor, made to appear by resolution, stating fully the reasons for such action and the compensation to be paid, the resolution to be spread upon the minutes and published in the official journal of the parish.
The fourth section of the act provides that it shall be malfeasance and gross misconduct, *Page 358 subjecting them to removal from office, for district attorneys to refuse or willfully fail to render faithful and efficient services in regard to the duties imposed upon them by the act, and makes it a misdemeanor for them so to fail or refuse. The section also renders members of police juries, of parish school boards, and of state boards or commissions, subject to removal from office for malfeasance and gross misconduct, and also makes it a misdemeanor, for them to violate any of the provisions of the act, and makes it a misdemeanor for an attorney or counselor at law to accept, knowingly, employment or compensation prohibited by the act.
The fifth section empowers the Governor, in his discretion, to require and direct the Attorney General to render any police jury, parish school board, or state board, special services in any matter, and when deemed necessary, in the case of a state board or commission, to assume full charge and control of all legal proceedings, relating to such matter, and the sixth section repeals all laws in conflict with the act.
In ascertaining whether or not the Louisiana highway commission has authority to employ counsel to act for it generally and specially, it is necessary to interpret sections 55 and 56 of article 7 of the Constitution of 1921, which we have quoted above. Section 55 merely creates the department of justice, which is to consist of an Attorney General, and a first and second assistant, and other necessary assistants and office force, and provides for the election of the Attorney General, and fixes his term of office, and provides for the appointment of his assistants. What the office of Attorney General may imply at common law by the mere mention of its name is not important here. The duties and powers of the office are defined in section 56 of *Page 359 article 7 of the Constitution, and the acts of the Legislature, not inconsistent with it.
Section 56 of article 7 of that instrument, as we have seen, defines the duties of the Attorney General and his assistants to be to "attend to, and have charge of all legal matters in which the State has an interest, or to which the State is a party, with power and authority to institute and prosecute or to intervene in any and all suits or other proceedings, civil or criminal, as they may deem necessary for the assertion or protection of the rights and interests of the State," and requires them to exercise supervision over district attorneys throughout the state, and to perform all other duties imposed by law.
Under this provision it is the duty of the Attorney General and his assistants to prosecute and defend all suits or other legal proceedings to which the state is a party, and to have charge of all legal matters in which the state, as a distinct entity, apart from other entities or corporate agencies it may create, has an interest. It was not intended that the word, "interest," used in this section, should be received or interpreted in its broadest sense, in connection with the interests, possessed by the state. Such an interpretation would make the accomplishment of the duties of the Attorney General and his assistants, next to impossible, if not impossible. Therefore, so far as relates to the Constitution, that instrument, with reference to the duties of the Attorney General and his assistants, has confined, by implication, the duties, there demanded to be rendered, to those interests, possessed by the state, as a distinct entity, and has left it to the Legislature to impose such other duties upon those officials as it may deem proper to do from time to time. *Page 360
If the Louisiana highway commission is a distinct legal entity from the state, then there would seem to be no reason, so far as relates to the Constitution, why the Attorney General and his assistants should be deemed to be the attorneys for the commission, and why other arrangements could not be made, under legislative authority, for the selection of attorneys by the commission.
The commission, in our opinion, is a distinct legal entity from the state. Section 3 of Act No. 95 of 1921 (Ex. Sess.) makes it a body corporate, with power as such to sue and be sued. It is an agency of the state, and not the state itself, created for the purpose of executing certain duties, devolving primarily upon the state. In a general sense, in its relations to the state, it is not dissimilar to levee districts, which are bodies corporate, created for the purpose of constructing and maintaining levees, which are duties, devolving primarily upon the state. It was held in State v. Standard Oil Co., 164 La. 334, 357, 113 So. 867, and in State v. Tensas Delta Land Co., 126 La. 59, 52 So. 216, that a levee district, though the creature and an agency of the state, had, as long as it was permitted to exist, a separate existence from the state, and that the state could not sue on causes of action accruing to the district. Nor, in a general sense, is the commission dissimilar, in its relations to the state, to the board of commissioners of the port of New Orleans, concerning which it was held that the board, as a body corporate, had a separate existence from the state, and, though an agency thereof, did not enjoy the immunity from the prescription, liberandi causa, enjoyed by the sovereign. Board of Commissioners of Port of New Orleans v. Toyo Kisen Kaisha, 163 La. 865, 113 So. 127. These cases are pertinent here for the purpose of showing that the *Page 361 Louisiana highway commission is a separate legal entity from the state.
However, it may be said that the ruling, as to the separate existence of the commission, is not well taken here, because the act, creating it, provides that all contracts for highway improvement shall be made in the name of the state, and that the state, acting through the commission, may acquire gravel beds, and the like, by purchase, lease, or donation, and that the state provides the commission with funds with which to discharge the purposes of its creation. Sections 16, 23, 34, Act No. 95 of 1921 (Ex. Sess.). These facts, however, are insufficient to make the commission and the state one and the same. They merely show that the commission is an agency of the state. It does not even follow that, because contracts for highway improvements must be entered into in the name of the state, suits on such contracts should be brought by the state or against it, for the commission, as a body corporate, is given express power to sue and be sued, which shows that such suits (which might be reasonably expected to constitute the greater part of the litigation in which the commission might become involved) should be instituted by the commission, and not by the state.
Our conclusions therefore are that the Constitution, in defining the duties of the Attorney General and his assistants, confines those duties, by implication, to the state, as a distinct entity from its corporate agencies, and to the duties imposed upon those officials by law, and that the Louisiana highway commission is one of those agencies, and hence the duties and powers of the Attorney General and his assistants do not, by virtue of the Constitution, save as some of those duties may be prescribed by statute, attach to the commission. *Page 362
Having reached these conclusions, the question arises whether any statute of the state imposes upon the Attorney General and his assistants the duty of representing the commission, and this, to the exclusion of the right, on the part of the commission, to employ other counsel.
The only statute that throws any light on the question, in our opinion, is Act No. 125 of 1912, as amended by Act No. 221 of 1920, relied upon by defendants, the amendatory act, with the exception of the repealing clause, and the clause, relating to the date the act became effective, being quoted in full in the first part of this opinion, and the unamended part of the amended act being there fully outlined. This act, in our view, supports the contention of the commission and its codefendants that the Attorney General and his assistants are not the legal representatives of the commission, and that the district attorney of the parish of East Baton Rouge, in which the board is domiciled, is not such representative.
Section 1 of the amendatory act, to repeat it here, in part, for the purpose of convenience, provides:
"That the Attorney General * * * in the Parish of Orleans and the District Attorney[s] of the several judicial districts of the State of Louisiana, other than the Parish of Orleans, shall ex-officio and without extra compensation, general or special, be the regular attorneys and counsel for the Police Juries and School Boards within the Parish of Orleans and within their respective Districts and of every State Board or Commission domiciled therein, including Levee Boards, Hospital and Asylum Boards, Educational Boards, and all State Boards or Commissions, the members of which, in whole or in part, are elected by the people, or appointed by the *Page 363 Governor or other prescribed authority, except all State Boards and Commissions domiciled at the City of Baton Rouge, Parish of East Baton Rouge, and all Boards in charge or in control of State institutions. * * *"
The act, as appears from the foregoing excerpt, makes the Attorney General, in the parish of Orleans (evidently because his office is located there) the regular attorney and counsel for certain boards, domiciled in that parish, and the district attorneys of the several judicial districts of the state, the parish of Orleans excepted, the regular attorneys and counsel of certain boards, domiciled in their respective districts, except all state boards and commissions, domiciled in the city of Baton Rouge. Obviously, as to state boards and commissions, domiciled in the city of Baton Rouge, which is the capital of the state, the district attorney of East Baton Rouge is not required to represent them, as he comes within the exception, and, as to the Attorney General, the act excludes him, if not otherwise, by limiting his duties, as counsel for such boards, to boards domiciled in the parish of Orleans, for his services are to be rendered to boards domiciled therein, with certain exceptions, later named in the act, and unnecessary to mention.
It has been suggested, however, that this construction cannot be correct, because the amendatory act prohibits the employment of any attorney by any police jury, school board, or state board or commission to represent it, for any compensation whatever, except as provided by the act as amended, which is upon the joint approval of the Governor and the Attorney General, and only in special matters, and because the amended act, namely Act No. 125 of 1912, in the fourth section thereof, makes it a misdemeanor to violate any of the provisions of the act. This prohibition and the denunciation that follows, however, *Page 364 in the very nature of things, are not applicable to those boards and commissions for which no provision has been made and to which the act does not apply.
The commission is domiciled in the city of Baton Rouge, and is therefore excluded from the operation of the act. There is nothing, in our view, in the act, in conflict with sections 55 and 56 of the Constitution of 1921, nor in violation of article 97 of the Constitutions of 1898 and 1913, under which, respectively, the original and amendatory acts were passed, and hence these acts constitute valid legislation.
The commission has the implied power to employ counsel, under section 3 of Act No. 95 of 1921 (Ex. Sess.), arising out of the power to sue and be sued, there conferred upon it.
For the reasons assigned, the judgment appealed from is set aside, the injunction issued is dissolved, and plaintiffs' demands are rejected.