(dissenting).
The constitution is clear and free from ambiguity. It provides:
“It shall be competent for the Supreme Court to require by writ of certiorari, or otherwise, any case to be certified from the Courts of Appeal to it for review, with the same power and authority in the case as if it had been carried directly by appeal to the said court; * * * provided, however, that the Supreme Court shall in no case exercise the power conferred by this article unless the application shall have been made to the court or to one of the justices thereof within thirty days after a rehearing shall have been refused by the Court of Appeal * * * ” *63La.Const. art. 7 § 11. See also La.Civil Code arts. 13 & 14.
Article 2167 of the Louisiana Code of Civil Procedure again sets forth when a judgment of an appellate court becomes final and executory in these words: “A judgment of an appellate court becomes final and executory when the delay for applying for a rehearing has expired and no application therefor has been made.”
These provisions are the paramount and positive law of this state recognized and applied in numerous decisions by this court. Munson v. Martin, 249 La. 925, 192 So.2d 126 (1966) ; Reiley v. Atlas Construction Company, 245 La. 595, 159 So.2d 688, 690 (1964); Polizzi v. Lotz, 240 La. 734, 125 So.2d 146, 150 (1960); Blasingame v. Anderson, 236 La. 505, 108 So.2d 105, 110 (1959) ; Corkern v. Travelers, 229 La. 592, 86 So.2d 205, 207 (1956); Bertucci v. Bertucci, 224 La. 364, 69 So.2d 502, 505 (1953); Savage v. Packard, 218 La. 637, 50 So.2d 298 (1950); Succession of Babin, 213 La. 950, 35 So.2d 864 (1948) ; Betz v. Riviere, 211 La. 43, 29 So.2d 465 (1947); State v. Moore, 175 La. 607, 143 So. 707 (1932). See also Court of Appeals decisions to the same effect. Harrell v. Employers’ Liability Assurance Corporation, 197 So.2d 167, 168 (La.App.1967) ; Williams v. City of Baton Rouge, 200 So.2d 420, 426 (La.App. 1967) ; Gernon v. Buchanan, 201 So.2d 208, 209 (La.App. 1967); Hartzog v. Eubanks, 200 So.2d 303, 308 (La.App. 1967); Herman v. Jambois, 205 So.2d 63, 67 (La.App.1967); Areaux v. Maenza, 188 So.2d 633, 636 (La. App.1966); Kinchen v. Taulli, 171 So.2d 277, 279 (La.App.1965); Ballanga v. Hymel, 167 So.2d 469, 471-472 (La.App.1964) ; Bradford v. Patterson, 159 So.2d 342, 344 (La.App. 1963).
No application was made for review of the judgment of the Court of Appeal and the judgment is final. We recognized this fact, and the parties concede the issue. The majority has simply assumed the power and authority to disregard the constitution and statute law and substitute, in its stead, their individual concept of “public policy” and “equity”. This conclusion is sought to be justified because the prior judgment of this court which adjudicated the rights of these plaintiffs against the Department of Highways (250 La. 1045, 202 So.2d 24) found they were entitled to $25,265 and, therefore, they are “clearly” not entitled to the larger amount awarded by the Court of Appeal judgment against Aldrich and its surety.
The conclusion reached by the majority fails to take cognizance of the fact that Aldrich and its surety were not parties to the proceedings in which we held plaintiff was only entitled to a judgment of $25,265 against the Department; and, consequently Aldrich and its surety are not bound by that judgment. The opinion also fails to recognize that plaintiffs may be entitled to recover more against Aldrich and its surety than they recovered from the Department. This *65issue is presented by the record for Aldrich dug dirt outside the areas which the Department delineated for the digging. By doing so, Aldrich committed a trespass of its own, incurred separate liability and inflicted additional damage. In the posture in which this case has been adjudged, however, plaintiffs have had no opportunity to present this issue” to this court, because Aldrich and its surety did not apply to this court for writs to review the judgment against them and the judgment became final.
My views on constitutional interpretation are in stark contrast to the view of the majority in the instant case. I believe the constitution means what it says and this court cannot substitute its concept of “public policy” or “equity powers” for the true meaning of the constitution as actually written. La. Civil Code art. 13.
Those who framed Article 7, Section 11 of the Constitution recognized that, in some instances, due to inadvertence or neglect, hardship might result from failure to apply to this court for writs of certiorari within thirty days after a rehearing had beeti refused by the Court of Appeal. But the drafters were aware, also, of the need for finality in litigation and this latter consideration prevailed in the final draft, and a definite time was fixed for applying for certiorari. The drafters of the constitution made no exceptions to the rule. La. Civil Code art. 13.
Our function as a court is to interpret and apply the constitution and legislative enactments, that is, we must explain and expound, not alter, amend, remake or disregard. It is inconsistent with the obligation of judges to uphold and defend the constitution, to arrogate to themselves the power to disregard clear constitutional provisions because of personally conceived notions of “public policy” or “equity”. La.Civil Code arts. 20, 21.
It is my opinion that far greater harm is done by disregarding the constitution, than will result from the so-called “raid” upon the public fisc which would result if the constitution were upheld. For the judgment of the Court of Appeal in favor of plaintiffs and against Aldrich is not a “raid” on the public fisc. To the contrary, the judgment is supported by a well-reasoned opinion based upon overwhelming authority arrived at after pursuing the orderly processes of law. The opinion is, moreover, properly influenced by an abiding sense of the compelling force of constitutional, statutory and judicial authority.
If the constitution is to be changed, let it be changed by the amendatory process.
I respectfully dissent.