The Commissioner of Conservation is suing each of the defendants for a penalty under Section 17 of Act 157 of 1940 for producing oil in excess of the quantity allowed by the orders of the Commissioner, and for transporting the oil by way of a pipe line. One of the defendants, H. L. Hunt, domiciled in Texas, is engaged in the production of oil in Louisiana. The other defendant, the Placid Oil Company, is a Delaware corporation, owning and operating in Louisiana a pipe line transporting crude oil, and particularly the oil produced by the defendant H. L. Hunt. The Commissioner alleged in his petition in each case that the act of producing and transporting the oil in excess of the quantities allowed by his orders was not known to or discovered by the Department of Conservation or by anyone responsible for the institution of this suit until August 20, 1942. The suits were filed on May 27, 1943, that is, nine months and one week after the Department of Conservation discovered the excessive production and transportation of the oil. The defendant in each case pleaded that the suit was barred by the prescription of six months, as provided *Page 537 by Section 986 of the Revised Statutes, as amended, and that the suit was barred also by the prescription of one year under the same section of the Revised Statutes, as amended. The judge overruled the plea of prescription of one year but sustained the plea of prescription of six months, in each case, and dismissed the suits at the Commissioner's cost. The judge stated in his reasons for judgment that the plea of prescription of one year was not urged by the defendants in either case either in oral argument or in the briefs. In the judgment rendered in each case the judge declared that the plea which he maintained was the prescription of six months, as provided by section 986 of the Revised Statutes, as amended by Act 67 of 1926.
The only question is whether the prescription of six months provided for in Section 986 of the Revised Statutes, as amended by Act 67 of 1926, is applicable to a civil suit. My opinion is that the prescription provided for in this section of the Revised Statutes was and is applicable only to a criminal prosecution. The provisions of this section of the Revised Statutes of 1870 were enacted originally as Section 10 of Act 121 of 1855, generally known as the "Crimes Act," and bearing the title "An Act Relative to Criminal Proceedings." The statute was in the nature of a Code of Criminal Procedure containing 73 sections. Section 10 was as follows:
"That no person shall be prosecuted, tried, or punished for any offence, wilful murder, arson, robbery, forgery, and counterfeiting excepted, unless the indictment *Page 538 or presentment for same be found or exhibited within one year next after the offence shall have been made known to a public officer having the power to direct the investigation or prosecution. Nor shall any person be prosecuted for any fine or forfeiture, under any law of this State, unless the prosecution for the same shall be instituted within six months from the time of incurring such a fine or forfeiture. Nothing herein contained shall extend to any person absconding or fleeing from justice."
From the title of the Crimes Act, Act 121 of 1855, and from the phraseology of section 10 of the act itself, it is not reasonable to believe that this section was intended to have application to a civil suit.
Section 10 of the Crimes Act was reproduced verbatim, as Section 11, in a chapter entitled "Criminal Proceedings", in the Revised Statutes of 1856, on page 161. The reproduction of section 10 of the Crimes Act, in the Revised Statutes of 1856, is in exactly the same words as in the original Crimes Act. The chapter entitled Criminal Proceedings, commencing on page 157 of the Revised Statutes of 1856, follows immediately a chapter entitled "Crimes and Offenses", commencing on page 134. The two chapters, therefore, furnished, respectively, a criminal code and a code of criminal procedure. Section 11 of the chapter entitled "Criminal Proceedings" was not at all applicable or appropriate to a civil suit. That section was retained, verbatim, as Section 986, in the chapter entitled "Criminal Proceedings," in the Revised Statutes of 1870 — thus: *Page 539
"No person shall be prosecuted, tried or punished for any offense, willful murder, arson, robbery, forgery, and counterfeiting excepted, unless the indictment or presentment for the same be found or exhibited within one year next after the offense shall have been made known to a public officer having the power to direct the investigation or prosecution. Nor shall any person be prosecuted for any fine or forfeiture, under any law of this State, unless the prosecution for the same shall be instituted within six months from the time of incurring such a fine or forfeiture. Nothing herein contained shall extend to any person absconding or fleeing from justice."
By Act 50 of 1894, the Legislature amended Section 986 of the Revised Statutes so as to make the prescription of one year not applicable to cases where a person indicted for murder, arson, robbery, forgery, or counterfeiting is convicted of a less serious offense. As amended and re-enacted Section 986 was made to read as follows:
"That section nine hundred and eighty-six (986) of the Revised Statutes be, and is hereby amended and re-enacted so as to read: No person shall be prosecuted, tried or punished for any offense, wilful murder, arson, robbery, forgery and counterfeiting excepted, unless the indictment or presentment for the same be found or exhibited within one year next after the offense shall have been made known to a public officer, having the power to direct a public prosecution. Nor shall any person be prosecuted for any fine or forfeiture *Page 540 under any law of this State, unless the prosecution for the same shall be instituted within six months of the time of incurring such a fine or forfeiture. Nothing herein contained shall extend to any person absconding or fleeing from justice. Nor shall the prescription and exemption hereinbefore provided apply to any conviction of a lesser crime or offense, under an indictment for wilful murder, arson, robbery, forgery or counterfeiting, but on the contrary such prescription or exemption shall not be pleadable against such an offense."
It is not at all likely that the Legislature intended that this sentence in this re-enactment of Section 986, "Nor shall any person be prosecuted for any fine or forfeiture under any law of this State, unless the prosecution for the same shall be instituted within six months of the time of incurring such a fine or forfeiture," should be excerpted from the statute, or be extracted bodily from its appropriate surroundings, and thus be rendered applicable to a civil suit. The argument of the defendants that this sentence, concerning the prescription of six months, can be made applicable to a civil suit by shaking off all that is said before and after this sentence, in Section 986 of the Revised Statutes, is not much more plausible than their plea — which they seem to have abandoned — that the prescription of one year, provided for in the sentence preceding the one which they have excerpted, is applicable to this civil suit.
By Act 73 of 1898 Section 986 of the Revised Statutes was amended by substituting for the phrase "having the power to direct the investigation or prosecution" the *Page 541 phrase "having the power to direct a public prosecution", and by adding the following paragraph:
"In all criminal prosecutions for any crime or offense an indictment found, or an information filed, before prescription has from any cause accrued, shall have the effect of interrupting prescription; and if said indictment or information be quashed, annulled, or set aside, or a nolle prosequi entered, prescription shall begin to run against another indictment or another information based on the same facts, only from the time that said original indictment or said original information was quashed, annulled, or set aside, or a nolle prosequi entered; and the prescription and exemption hereinabove provided shall not apply to any conviction under said other indictment, but, on the contrary, said prescription or exemption shall not be pleaded against such offense."
We come now to the statute which the court is applying to this civil suit, in the prevailing opinion in this case; that is, Act 67 of 1926, amending and re-enacting Section 986 of the Revised Statutes of 1870. The title and text of Act 67 of 1926 show plainly that the excerpt which the court is applying now to a civil suit is not any more applicable than it was before 1926, — thus:
"An Act to amend and re-enact Section Nine Hundred and Eighty-six (986) of the Revised Statutes of Louisiana of the year Eighteen Hundred and Seventy (1870), as amended and re-enacted by Act No. 50 of 1894 and Act No. 73 of 1898,relative to the prescription of criminal offenses. [The italics are mine.] * * * *Page 542
"Section 986. No person shall be prosecuted, tried or punished for any offense, wilful murder, arson, rape, robbery, forgery and counterfeiting excepted, unless the indictment or presentment for the same be found or exhibited within one (1) year next after the offense shall have been made known to a public officer having the power to direct a public prosecution. Nor shall any person be prosecuted for any fine or forfeiture under any law of this State unless the prosecution for the same shall be instituted within six months of the time of incurring such fine or forfeiture.
"Provided, that in all capital cases, where an indictment or presentment has been found or exhibited, and in all cases where an indictment or presentment has been found or an information has been filed, for the commission of felonies less than capital, it is hereby made the duty of the district attorneys, or other prosecuting officers, of the State to nolle prosequi such cases if a period of six (6) years has elapsed from the date of the finding of such indictment or presentment or the filing of an information; and in the case of all lesser offenses, where a period of two (2) years has elapsed from the date of the finding of an indictment or presentment, or the filing of an information, if the accused has not been brought to trial within the aforesaid periods on such indictments, presentments or informations.
"Provided, further, that nothing herein contained shall extend to any accused person who has absconded, or who is a fugitive from justice, or who has escaped trial under any indictment, presentment or information *Page 543 for the aforesaid periods of six (6) and two (2) years, respectively, through dilatory pleas of any character, or legal continuances obtained by him for any cause whatsoever.
"Provided, further, in all criminal prosecutions for any crime or offense an indictment or presentment found, or any information filed, before the prescription of one (1) year herein provided for has accrued, shall have the effect of interrupting such prescription; and if said indictment, presentment, or information be quashed, or annulled, or set aside, or a nolle prosequi entered, the aforesaid prescription of one (1) year [shall] begin to run against another indictment, presentment or information based on the same facts only from the time that said original indictment, presentment or information was quashed, set aside, annulled or nolle prosequied; provided, that all felonies, capital or otherwise, shall prescribe in six (6) years from the date of the original indictment or presentment; and all lesser offenses shall prescribe in two (2) years from the date of the original indictment, presentment or information, and shall be nolle prosequied by the district attorneys, or other prosecuting officers, of the State, as hereinabove provided for, and subject to the exceptions hereinabove stipulated that such failure to prosecute shall not be attributable to the absconding or flight of the accused, or to dilatory pleas filed by him, or to legal continuance obtained by him within such periods of six (6) and two (2) years, respectively." *Page 544
I cannot imagine how the Legislature in the Session of 1926 could have intended that the last sentence in the first paragraph of Section 986 of the Revised Statutes, as amended at that session — "Nor shall any person be prosecuted for any fine or forfeiture under any law of this State unless the prosecution for the same shall be instituted within six months of the time of incurring such fine or forfeiture" — should be excerpted, or extracted bodily from its surroundings, and thus be made applicable to a civil suit.
The provisions of Section 986 of the Revised Statutes as amended by Act 67 of 1926 were reproduced, substantially, as Article 8 of the Code of Criminal Procedure, which was adopted by Act 2 of 1928. I have no doubt that the Legislature, in its session of 1928, in adopting the Code of Criminal Procedure, considered Section 986 of the Revised Statutes, as amended by Act 67 of 1926, as having reference only to criminal prosecutions. I say this because the Legislature in its session of 1928 could not have intended that the lawyers should look into the Code of Criminal Procedure for a statute of limitation having application to a civil suit.
On this subject, I respectfully dissent particularly from the following pronouncements on the last page of the prevailing opinion in this case [19 So. 2d 229]:
"Having reached the above conclusion, the point made by the plaintiff that Revised Statute 986, as amended by Act 67 of 1926, was repealed by Act 2 of 1928, *Page 545 generally known as the Code of Criminal Procedure, is without merit. Even if it be said that Article 8 of the Code of Criminal Procedure, containing similar language to that of Revised Statute 986, as amended, relates solely and exclusively to offenses prosecuted by indictment, information or affidavit, because Article 8 is found in the Code of Criminal Procedure, then it is clear that the provisions of Act 67 of 1926, amending Revised Statute 986, are broader than those contained in the Code of Criminal Procedure. Consequently, the provisions of the earlier statute are repealed by the later one only insofar as they conflict. Article 582, Code of Criminal Procedure. This leaves in effect the part of the earlier statute applicable to a civil action prosecuted for the purpose of collecting a penalty, fine or forfeiture for an offense or a violation of a penal statute."
I do not see how it can be said that, if Article 8 of the Code of Criminal Procedure relates solely and exclusively to offenses prosecuted by indictment, information or affidavit, because Article 8 is found in the Code of Criminal Procedure, then it is clear that the provisions of Act 67 of 1926 amending Section 986 of the Revised Statutes are broader than the provisions of Article 8 of the Code of Criminal Procedure; and hence that the repealing clause, being Article 582, of the Code of Criminal Procedure, leaves in effect the part of the earlier statute (meaning Section 986 of the Revised Statutes as amended by Act 67 of 1926) applicable to a civil action prosecuted for the purpose of collecting a penalty, fine or forfeiture for an *Page 546 offense or a violation of a penal statute. One reason why the provisions of Section 986 of the Revised Statutes as amended by Act 67 of 1926 cannot be broader than the provisions of Article8 of the Code of Criminal Procedure is found in the title of the act of 1926, "relative to the prescription of criminal offenses." And another reason is found in the title of the chapter, "Criminal Proceedings," in which Article 986 of the Revised Statutes of 1870 is contained. In fact, we may trace the evolution of Article 8 of the Code of Criminal Procedure all the way back to its origin — in Section 10 of Act 121 of 1855, called the Crimes Act, entitled "An Act Relative to Criminal Procedure" — only to find that the provisions of Section 986 of the Revised Statutes of 1870 as amended by Act 67 of 1926 could not have been any broader than the provisions of its replica — or reproduction — Article 8 of the Code of Criminal Procedure.
This article of the Code of Criminal Procedure was amended by Act 21 of the 2nd Extra Session of 1935, so as to omit "forgery" from the list of crimes that were excepted from the provisions of the article. That is the only change that was made. The article was amended again by Act 147 and by Act 323 of 1942, so as to reduce the six-year period to a three-year period, in the third paragraph of the article. But there is no indication in either of these amending acts of 1942 that the Legislature intended to excerpt from the article — and to make applicable to civil suits — the following provision: "Nor shall any person be prosecuted for any fine or forfeiture *Page 547 unless the prosecution for the same shall be instituted within six months of the time of incurring such fine or forfeiture."
We must bear in mind that the six months prescription provided for in Article 8 of the Code of Criminal Procedure commences from "the time of incurring such fine or forfeiture." The prescription of one year, provided for in the same paragraph, for more serious offenses, commences from the time when the offense is made known to the judge, district attorney or grand jury having jurisdiction. But there is no such limitation on the commencement of the prescription of six months. Hence, according to the prevailing opinion in this case, the oil companies and pipe line companies may run any quantity of hot oil or gas out of the State of Louisiana, and thus deprive her of her most vital resources, with impunity, so long as the running of the hot oil is not discovered by the Department of Conservation in time to institute a suit, under the provisions of Section 17 of Act 157 of 1940, within six months from the time of running or producing the hot oil or gas.
The quotation in the prevailing opinion in this case, taken from the opinion rendered by Chief Justice Marshall in Adams, qui tam v. Woods, 2 Cranch 336, 6 U.S. 336, 2 L. Ed. 297, is apt to be misunderstood unless it is confined to the facts of the case of Adams, qui tam v. Woods. From the title of that case it is obvious that the suit was brought by an informer to collect his share of a fine to which the defendant was subject for having violated a criminal statute. The statute was the Act of Congress *Page 548 of March 22, 1794, 1 Stat. 347, "to prohibit the carrying on the Slave Trade from the United States to any foreign place or country." The penalty prescribed by the act was a forfeiture of $2,000, one-half of which was to go to the United States and one-half "to the use of him or her who shall sue for and prosecute the same." The defendant pleaded that the action of Adams to recover the forfeiture was barred by the prescription of two years under the Act of Congress of April 30, 1790, vol. 1, p. 113, which provided that no person should be prosecuted for any fine or forfeiture under any penal statute unless the indictment or information for the same should be found or instituted within two years from the time of committing the offense or incurring the fine or forfeiture. The qui tam proceeding is defined in Ballentine's Law Dictionary as an action brought by a common informer to recover a statutory penalty, one part of which is given by the statute to the informer or prosecutor. It is said to be called a qui tam action because it is brought by a person who prosecutes the suit as well for the king as for himself. The theory on which the qui tam proceeding brought by Adams against Woods was held to be barred by the prescription of two years was that the right of the Government to prosecute Woods by means of an indictment or bill of information in the criminal court was barred by the prescription of two years, and hence that the right of the informer to recover a share of the forfeiture prescribed by the penal statute was also barred by prescription. The difference between that *Page 549 case and this case is that the crime for which Woods was liable for a penalty or forfeiture of $2,000 was the violation of a criminal statute, for which he was subject to indictment and prosecution in the criminal court; and when the right of the Government to institute a prosecution in the criminal court became barred by prescription, the right of the informer, Adams, to recover a share of the penalty or forfeiture to which Woods was subject, was also, as a logical consequence, barred by the prescription of two years. That is what Chief Justice Marshall had in mind when he said [2 Cranch 341, 2 L. Ed. 297]: "It would be singular if the one remedy should be barred and the other left unrestrained." There is no provision for a criminal prosecution in the statute on which the present suit is founded, Act 157 of 1940; hence a statute such as Section 10 of Act 121 of 1855, or Section 11 of the Revised Statutes of 1856, or Section 986 of the Revised Statutes of 1870 either as originally adopted or as amended by Act 50 of 1894 or by Act 73 of 1898 or by Act 67 of 1926, or Section 8 of the Code of Criminal Procedure, either as originally adopted or as amended by Act 21 of the 2nd Extra Session of 1935 or as amended by Act 147 or by Act 323 of 1942, is not applicable to this case.
Until the Legislature sees fit to adopt a statute of limitation upon the right of action conferred upon the Conservation Department by Section 17 of Act 157 of 1940, we should adhere to the provision in Section 16 of Article XIX of the Constitution — "Prescription shall not run against *Page 550 the State in any civil matter, unless otherwise provided in this Constitution or expressly by law."
I put the emphasis on the phrase "in any civil matter," and upon the word "expressly," in the declaration that prescription shall not run against the State in any civil matter, unless it be so provided in the Constitution, or be expressly so provided by a statute.
Unless we can find a statute of limitation — or the Legislature will make one — more appropriate than Section 986 of the Revised Statutes, as amended by Act 67 of 1926, we should adhere to Section 16 of Article XIX of the Constitution "in any civil matter."