This suit was instituted by William T. Gorham and thirteen other prominent citizens and taxpayers of Calcasieu Parish who own property abutting on Prien Lake, Indian Bay, and Lake Charles, on which they have built homes and other improvements, to have declared null and void and cancelled two contracts executed by the Department of Conservation selling, leasing, and otherwise transferring to The Mathieson Alkali Works, Inc., the exclusive right to dredge and recover oyster and clam shells from the bottoms of these waters as well as the bottoms of other navigable waters in Southwest Louisiana aggregating several thousand acres in area. Pending a determination of this litigation they sought to have the defendant enjoined from operating in these waters under these contracts. *Page 478

The Police Jury of Calcasieu Parish, as the owner of a public park on the shore of Indian Bay, intervened in the proceedings joining with the plaintiff, while the Commissioner of Wild Life and Fisheries and the Bogue Chitto Pearl River Soil Conservation District intervened resisting the claims of the plaintiffs.

The first contract sought to be annulled and cancelled was executed on October 15, 1934, by the then Commissioner of Conservation, Robert S. Maestri, leasing, selling, and granting to The Mathieson Alkali Works, Inc., the exclusive right and privilege "of taking and removing oyster shells and/or oyster shell deposits from all reefs in Calcasieu and Cameron Parishes, excepting Sabine Lake," for a period of 15 years for a consideration of $1,000 in cash and 5¢ per cu. yd. for all shells removed, regardless of the amount removed, provided the amount paid the Department of Conservation would not be less than $2,000 a year, with the right of renewal for an additional period of 10 years. This contract was duly approved by the then Governor of Louisiana, Oscar K. Allen, and the then Attorney General, Gaston L. Porterie.

The second contract was executed on September 27, 1944, by the then Commissioner of Conservation, Jos. L. McHugh, and gave to "The Mathieson Alkali Works, Inc., its successors and assigns, the exclusive right and privilege of taking and removing clam shells and shell deposits" from the waters specifically designated *Page 479 therein, including Prien Lake, Indian Bay, and Lake Charles, for a cash consideration of $1,000 and 4¢ per cu. yd. for the shells removed with a guaranteed yearly yield of $500. This contract is for a period of 5 years with the right of renewal for an additional 10 years.

In both of these contracts it is stipulated that they are executed under the authority granted the Commissioner of Conservation in Section 2 of Act 42 of 1914.

The trial judge, after overruling the exceptions of non-joinder of parties defendant and of prematurity, rendered judgment granting the preliminary injunction, and, on the merits of the case, in a well-considered opinion, rendered judgment in favor of the plaintiffs declaring the contract of 1944 to be null and void for the reason that the Department of Conservation was not authorized to execute clam shell contracts and, in any event, that such a contract is in violation of the constitutional inhibition against the alienation of the fee of the portions of the beds of these waters. He held that the contract of 1934 passed out of the case since the defendant corporation does not claim the right to dredge the waters involved in the suit for oyster shells, there being none in them.

The majority of the court concede, as they must, that the ownership and title to the navigable water bottoms of this state, including the deposits thereon of oyster and clam shells, is in the state and, subject to the limitations in the constitution, such *Page 480 property can only be disposed of or otherwise alienated by or with the authority of the legislature and that the Conservation Commissioner, other than the constitutional mandate toprotect, conserve, and replenish the natural resources of the state, has only such power and authority as has been specifically delegated to him by the legislature.

A mere reading of Act 42 of 1914, under which these contracts were executed, will show that it deals exclusively with oyster shell deposits from the shell reefs within the boundaries of the state and located in or on the borders of the Gulf of Mexico, and in no wise deals with clam shells. Obviously, therefore, in the absence of any further authority the Commissioner was without power or right to execute the contract of 1944 and it is null and void.

The majority opinion seeks to uphold the contract of 1944 under the authority of Act 127 of 1912 and the obiter dicta in the case of Irion v. Lyons, 164 La. 306, 113 So. 857, relative to the powers and duties of the Conservation Commissioner granted by that act.

A casual reading of the act of 1912 will show that the legislature in adopting it created and established a Conservation Commission (Section 1) and constituted it a department of the state government for the purpose of the"protection, management, and conservation of the oyster fieldsand water bottoms of the State; to protect the birds, fish, shell fish and wild quadrupeds *Page 481 of the State, and the natural and mineral and forestry resourcesof the State" (Section 2), and while the act authorized the commission to adopt "rules and regulations" for the control of the wild life and mineral and forestry resources and other natural resources of the state not inconsistent with or contrary to the provisions of the act, no where in any of the sections of the act is there any provision authorizing the said Commission to sell, dispose of, or otherwise alienate any of the natural resources of this state. Moreover, while the Commission in that act was charged with the duty of carrying out the provisions of Acts 172 and 196 of 1910 and any other laws on the subject of conservation of the natural, mineral, and forestry resources of this state, the act itself otherwise deals exclusively with the wild life and game and fish and oysters of the state, which forms its primary object. (Italics mine.)

In the Lyons case, as pointed out in the original opinion, the question presented for decision was whether the royalties received by the Conservation Commissioner from shells, sand, and gravel should go to the credit of the general fund or to the credit of the conservation fund. The legality of the contractsfrom which these funds were derived was not at issue. It necessarily follows that such language as may have been used by the court in that case touching upon that subject was nothing more than obiter dicta and, as is so very aptly stated in American Jurisprudence, *Page 482 "When the right to do a thing depends upon legislative authority, and the legislature has failed to authorize it, or has forbidden it, no amount of acquiescence or consent or approval of the doing of it by a ministerial officer can create a right to do the thing which is unauthorized or forbidden." Vol. 43, page 69, Section 250, n. 4. The fact that the Conservation Commissioner was granted the "management" of the natural resources of the state in the act cannot be construed as giving him the authority to sell or otherwise dispose of these natural resources any more than a Police Jury, given the control and management of the courthouse and jail in its parish, has the right to sell or dispose of these buildings.

The only authority I have been able to find under which the Conservation Commissioner might be considered to be authorized to execute leases or grants involving the removal of clam shells is Act 170 of 1940, this being an act "to allow the State and its departments, agencies, subdivisions and institutions," to lease all of the public lands owned by it for any legitimate purpose other than for oil, gas, and other mineral purposes and development, in units of not more than 640 acres and for a period of not more than 5 years to the highest bidder after due advertisement. The mere fact that Section 9 of the act makes it unlawful for anyone to knowingly trespass upon lands leased under the authority of the act to trap, hunt, graze *Page 483 stock or engage in other agricultural pursuits does not limit or circumscribe the object of this act any more than does the provisions found in Section 5 declaring any lease executed in violation of the provisions of that section to be null and of no effect or the provision that anyone violating the provisions of the act or attempting to circumvent them is to be deemed guilty of a misdemeanor, punishable as provided in Section 10. In other words, Section 9 does not in any way express or limit the object and purpose of the act, nor is it needed in aid of the interpretation or construction of any of the provisions found in its sections, for they are very clear and unambiguous.

For these reasons it is my opinion that a rehearing should be granted in this case and I respectfully dissent from the majority ruling refusing such rehearing.