The board of commissioners of the port of New Orleans, a political corporation, created by and existing under the Constitution and laws of the state of Louisiana, purchased from New Orleans Water Supply Company a square of ground in the First district of the city of New Orleans, bounded by South Peters, Water, Orange, and Richard streets for the purpose of constructing warehouses and other structures thereon in aid of commerce in connection with its administration of the port of New Orleans. The square of ground thus acquired has always been private property, not subject to the easement or servitude as established by law on the banks of the Mississippi river. After acquiring the property the board of commissioners found that it was impractical to use it for the purpose for which it was bought, because of its remoteness from the public wharves, and for the reason that it is separated from them by roadways, railroad tracks, and other obstacles. Thereupon the board of commissioners adopted the following resolution:
"Whereas, this board is the owner in fee simple of the square bounded by S. Peters, Water, Richard, and Orange streets, city of New Orleans, which property was acquired by it on July 17, 1917, for the price and sum of $85,000; and whereas, it now develops that said property is not necessary for the purposes of this board, and that therefore it is in its interest to sell and dispose of said property: Resolved that the vice president of this board be and he is hereby authorized and empowered to offer said property to New Orleans Public Service, Inc., for the price and sum of $125,000 cash, and to enter into a contract with said New *Page 749 Orleans Public Service, Inc., for the sale of said property at said price; and resolved further that the officers of this board be and they are hereby authorized and empowered to sign all acts and execute all instruments and take all steps which may be necessary to carry into effect any agreement which may be made in pursuance of the authority hereof, and to convey free and unincumbered title to said purchaser."
In pursuance of the foregoing resolution the board of commissioners of the port of New Orleans, commonly styled the dock board, and New Orleans Public Service, Inc., entered into the following agreement:
"(1) The dock board agrees to sell and the Public Service agrees to buy the square of ground situated in the city of New Orleans, bounded by South Peters, Water, Richard, and Orange streets, and the dock board agrees to convey good, free, and unincumbered title to said property.
"(2) The consideration for said sale shall be the sum of $125,000 cash, to be paid by the Public Service to the dock board at the execution of the notarial act of sale.
"(3) This agreement is made subject to examination of title, both as to the sufficiency of title in the dock board and as to the right of the dock board to sell and dispose of said property in accordance with this agreement, and, in the event that counsel for Public Service should make any objection to the title tendered by the dock board, then the dock board will bring suit for specific performance so that the sufficiency of the title and the right of the dock board to sell may be judicially determined."
The board of commissioners tendered title to New Orleans Public Service, Inc., but the title was declined for two reasons: First, that the board of commissioners of the port of New Orleans is not authorized under the Constitution and laws of this state to sell and dispose of the property; and, second, that the title tendered is not free and unincumbered. This suit followed, and it is an action for specific performance of the agreement quoted, supra, in which plaintiffs have cited the Hibernia Bank Trust Company, trustee under a number of mortgages enumerated in the petition, and the recorder of mortgages. The prayer of the petition is for *Page 750 a judgment ordering New Orleans Public Service, Inc., to specifically perform its obligations under the contract of sale, decreeing the property covered by the contract not subject to the lien of any of the mortgages executed by the board of commissioners of the port of New Orleans now extant, and ordering the recorder of mortgages to cancel and erase from the records of his office the inscription of the mortgages appearing on his mortgage certificate set out in the petition, in so far as same affects the property involved in this suit. From a judgment in favor of plaintiff as prayed for, the New Orleans Public Service, Inc., appealed.
Prior to 1896 the state was charged with the administration of the public wharves of the port of New Orleans, and the agency through which it acted was the City of New Orleans. Act 70 of 1896 created the board of commissioners of the port of New Orleans, and appointed this board the agent of the state for the purposes of such administration. Section 2 of the act, in which the powers of the board are enumerated, was amended by Act 36 of 1900, and further amended by Act 14 of 1915, so that the section now reads as follows:
"That said board of commissioners shall have the power to regulate the commerce and traffic of the port and harbor of New Orleans in such manner as may, in their judgment, be best for its maintenance and development. They shall have and enjoy all the rights, powers and immunities incident to corporations. They shall be empowered, and it shall be their duty to have charge of, and administer the public wharves and landings of the port of New Orleans; to construct new wharves and other structures when necessary; to erect sheds and other structures on the wharves and landings; to place and keep the wharves and landings, sheds and other structures in good condition; to maintain proper depths of water at all such wharves and landings; to provide mechanical facilities for the use of such wharves, landings, sheds and other structures; to provide light, water, police protection as under existing laws and such other services for such wharves, landings and sheds as they may deem advisable; *Page 751 to finance, erect and operate all basins, locks, canals and warehouse elevators; that they shall be empowered to charge for the use of the wharves, sheds, and other structures, for the use of all facilities administered by them, and for any and all services rendered by them, such fees, rates, tariffs or other charges as may be established by the board of commissioners of the port of New Orleans: Provided that the provisions of this act shall apply only to the publicly owned wharves, docks and sheds as are now owned and operated or which may be purchased, acquired, erected or operated by the board of commissioners of the port of New Orleans, and is not intended to affect any constitutional or legal rights or the status now existing as to publicly or privately owned wharves or sheds on the river front of the port of New Orleans."
The section which we have just quoted enumerates all of the powers of the board of commissioners, except such as are granted for particular purposes by special acts of the Legislature or by constitutional amendments.
It is seen that the statute authorizes and empowers the board to purchase and acquire private property, but there is no express or fairly implied grant to the board of power to sell property so acquired. If the board may, for the proper and necessary administration of the port, sell property it has purchased, and which is no longer useful for the purposes of the port, the power to do so must be held to be incidental to the power of the board to purchase, acquire, and mortgage property; otherwise this power does not exist, for this court has held that it is not contained in the grant, which reads:
"They shall have and enjoy all the rights, powers and immunities incident to corporations."
In Duffy v. City of New Orleans, 49 La. Ann. 114, 21 So. 179, the court said:
"The board of commissioners authorized by the Act of 1896 is not a body corporate, within the meaning of the Constitution. It is obvious that the Legislature did not intend to create a corporation. Generally, a corporation has succession in its corporate name. It may plead and be impleaded. It may hold and convey property. The board here is not invested with *Page 752 all these qualities, essential to the existence of a corporation. The act empowers this board to administer the public wharves of the port, and invests it with certain duties. The matter is, we think, one chiefly of administration. * * * There is nothing granted to the board of commissioners, save the right to administer in accordance with the terms of the act, property of which the state has the power to resume control."
When the decision in the Duffy Case was rendered the powers of the board were very limited. It was then functioning under the provisions of Act 70 of 1896. Since that time the act has been twice amended, and Act 14 of 1915 empowers the board to purchase and acquire property and to finance certain designated port facilities. It is readily seen that the present powers of the board are broader and more comprehensive than the board possessed when the Duffy Case was decided. But in State v. Board of Commissioners, 153 La. 664, 96 So. 510, decided since the promulgation of Act 14 of 1915, the court said:
"The investment in the board of `all rights, powers and immunities incident to corporations' means, not that the board has all or any of the powers that any corporation may have, but that the board has all of the incidental or implied powers that a political corporation needs to perform the duties that are expressly imposed upon it, or to fulfill the objects and purposes for which it was created. In allowing the board to do whatever is necessary for the exercise of the authority and duties expressly conferred upon it, the law does not put a very strict meaning upon what is necessary, but leaves the matter in some measure to the discretion of the board."
By a series of acts and constitutional amendments, passed for the promotion of particular purposes, the powers of the board have been further enlarged, it being now vested with all the authority formerly residing in the city of New Orleans, harbor masters, masters, wardens, wharf superintendents and other state officials concerning the territory, property, and control of the port, including the power to mortgage and *Page 753 incumber property of the board, and also the power of expropriation.
Mortgage is a species of pledge. The creditor may seize and sell the property affected by it in default of payment. C.C. arts. 3278, 3279.
Writers on the civil law declare that mortgage is a species of alienation. Under the common law this is true, for there the land is actually conveyed to the mortgagee as security for the debt, subject to the condition that the conveyance becomes void upon the payment thereof. In Duclaud v. Rousseau, 2 La. Ann. 173, the court said:
"A mortgage is the alienation of a right in the property, not the alienation of the property itself. Perfect ownership becomes imperfect when the property is mortgaged, by the alienation of that real right; but the title and the possession still remain in the owner."
In Citizens' Bank v. Armor, 11 La. Ann. 468, the court said that a "mortgage is a quasi alienation." In that case the question was whether a thing claimed by the suit could be mortgaged by the defendant, to the prejudice of the plaintiff, pending the suit. The court held that it could not, because the mortgage was a quasi alienation.
The board of commissioners of the port of New Orleans is a mere governmental agency, clothed with certain powers and charged with certain duties. Under the several statutes and constitutional provisions of the state the powers of the board have been enlarged from time to time to meet the exigencies of the expansion and growth of the commerce of the port. It owns nothing and holds nothing in a proprietary capacity, but only as a governmental agency. Its powers with reference to the port are plenary in all that concerns the territory over which *Page 754 its jurisdiction extends and over the acquisition, construction and maintenance of wharves, sheds, warehouses, locks, dams, canals and other port facilities, in the expropriation of property necessary therefor, and in the mortgaging or incumbering of the same, but we fail to find in any of the grants of power to the board the power to sell or alienate real property which it has acquired for the purposes of the port, the title to which is in the state, and of which it cannot be divested except by express grant of power so to do.
I recognize that the board has acquired a piece of property which is useless for any purpose of the port, and that it has an opportunity to dispose of the property at a profit of $40,000; that if it is compelled to hold this property it will be deprived of the use of $125,000, which might otherwise be available for the acquisition of other and needed port facilities. It is clear that the purposes of the board are commendable and consistent with a proper and economic administration of the port, but the board is only an agency of the state, and until the principal authorizes it to alienate its property the board is powerless to convey to another the title to it.
I have studied this case carefully, hopeful that I could subscribe to the opinion or concur in the decree which is handed down by a majority of the court, without setting a doubtful and dangerous precedent from which we must, sooner or later, inevitably recede.
The Legislature alone may empower the plaintiff to alienate property it has purchased for the purposes of the port.
For these reasons, I respectfully dissent. *Page 755