Could a Louisiana city use public crews to bury privately owned animals on private land at no charge?

Plain-English summary

Carencro's mayor asked if public crews could bury privately owned animals on private property at public expense, either routinely or when a carcass threatened health. In this December 2013 opinion, the AG found no statutory authority for the routine free service and concluded that a public entity could not provide it at no cost to the owner.

The answer could differ during a public-health or safety emergency. The AG said a public entity had general police power to respond when it determined that exposed remains posed a threat requiring government action. Whether a particular situation qualified, and whether the spending met the remaining constitutional conditions, were factual questions for that entity. The opinion did not treat every animal death from disease as a public obligation.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Municipal officials

The AG rejected routine, no-cost burial of a privately owned animal on private land because it identified no legal authority for the expenditure. It said an emergency public-health or safety threat could supply police-power authority for necessary spending, while leaving the actual threat and further constitutional conditions to local factual assessment.

Animal owners

The opinion distinguished an emergency government response from ordinary responsibility for a dead privately owned animal. It cited the animal-carcass statute as placing burial or cremation responsibility on the owner when no emergency existed, subject to the exception described in its footnote.

Common questions

Could a city bury a resident's dead animal for free as a normal service?

The AG said no for burial of a privately owned animal on private property. It found no statutory authority to spend public resources for that routine service.

What if an exposed carcass threatened public health?

The opinion said emergency police powers could authorize necessary public spending if the public entity determined the situation required a health or safety response. It left that determination and the remaining public-funds analysis to the entity's facts.

Did an animal's death from disease automatically make burial a city expense?

No. The AG said that outside an emergency, state law placed the task on the private owner, with a statutory exception for certain cities or towns with suitable carcass-handling facilities.

Background and statutory framework

The AG began with La. Const. Art. VII, Sec. 14(A)'s bar on gratuitous public expenditures. It found no statute authorizing routine free burial of private animals on private land. It then discussed emergency powers and La. R.S. 3:2131's treatment of animal carcasses. The opinion noted that municipal provisions about removing the dead to a cemetery concerned human remains rather than animals.

Citations

• La. Const. Art. VII, Sec. 14(A): public-funds restriction.
• La. R.S. 3:2131: animal-carcass responsibility discussed in the footnote.
• La. R.S. 29:721: emergency-powers law cited by the AG.

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/13-0139

Original opinion text

~tah~ of 1fiouisiana
DEPARTMENT OF JUSTICE
P.O. BOX 94005
BATON ROUGE
70804-9005
JAMES D. "BUDDY" CALDWEll
ATIORNEY GENERAL

December 20,2013
OPINION 13-0139

    Hon. Glenn L. Brasseaux                    90·A·2       PUBLIC FUNDS - Loan, Pledge, or Grants

Mayor, City of Carencro
La. Const. Art. VII, Sec. 14
P.O. Drawer 10
La. R.S. 3:21318:1; 29:721, et seq.; 33:4811, et seq.
210 East St. Peter Street
Pursuant to the restrictions of La. Canst. Art. VII, Sec. 14(A), public entities
Carencro, LA 70520
cannot inter privately-owned animals on private property at no cost to the
owner. In the event of a declaration of emergency, such interments may
Dear Mayor Brasseaux: be authorized, as required by the factual circumstances of the particular
emergency.

You have requested an opinion from this office regarding the "legality of allowing public forces to bury privately-owned animals on private property." Your opinion request seeks this office's opinion on whether such animals can be interred at the public entity's cost as a matter of course, as well as, if not under normal circumstances, then when such animals pose "an imminent threat of disease or other similar health hazard."

Any review of the lawful nature of the use of public things to benefit private property must begin with La. Const. Art. VII, Sec. 14. Specifically, La. Const. Art. VII, Sec. 14(A), reads:

Except as otherwise provided by this constitution, the funds, credit, property, or things of value of the state or of any political subdivision shall not be loaned, pledged, or donated to or for any person, association, or corporation, public or private. Except as otherwise provided in this Section, neither the state nor a political subdivision shall subscribe to or purchase the stock of a corporation or association or for any private enterprise.

In a basic sense, the Louisiana courts have interpreted this constitutional provision as prohibiting the gratuitous use of public funds to benefit private interests. Board of Directors of the Industrial Development Board of the City of Gonzales, Louisiana, Inc.) v.
All Taxpayers, Property Owners, Citizens of the City of Gonzales, et al., 2005-2298 (La.
9/6/06), 938 SO.2d 11 (the "Cabela's" case). This office has applied this interpretation consistently to mean that:

In light of the Cabela's case, it is the opinion of this office that in order for an expenditure or transfer of public funds or property to be permissible under Article VII, § 14(A), the public entity must have the legal authority to make the expenditure or transfer and must show: (i) a public purpose for the expenditure or transfer that comports with the governmental purpose

Page 2

OPINION 13·0139
Hon. Glenn L. Brasseaux
Page 2
for which the public entity has legal authority to pursue; (ii) that the expenditure or transfer, taken as a whole, does not appear to be gratuitous; and (iii) that the public entity has a demonstrable, objective, and reasonable expectation of receiving at least equivalent value in exchange for the expenditure or transfer of public funds. The Cabe/a's standard places a strong emphasis on the reciprocal obligations between the parties to ensure that there is not a gratuitous donation of public funds. 1

In order to use "public forces" to inter privately-owned animals on private property, some expenditure of public funds is necessary. With the threshold question of whether public funds must be expended answered in the positive, we must examine the public entity's legal authority to make such expenditures. We have reviewed the Louisiana Revised Statutes and can identify no statutory authority for authorizing a public entity to expend funds or use its resources to inter the remains of dead privately-owned animals on private property. For this reason, it is not necessary for us to examine the remaining inquiries under the Cabela's test outlined above. It is thus the opinion of this office that public entities cannot inter privately-owned animals on private property at no cost to the owner. 2

In the past, we have opined on the urgent need for governmental action in emergency situations and the interaction of that need with general constitutional guarantees and protections. 3 There is little doubt that public entities have the legal authority to respond to a situation in which the public health or safety is threatened. 4 However, what sort of event constitutes a threat to the public's health or safety is entirely factual and one that must be determined by the public entity'on a case-by-case basis. 5 In situations in which a public entity determines that the risks presented by exposed dead animals presents such a threat to the public's health or safety as to mandate a governmental response (i.e., interment of the remains at the government's cost), we are of the opinion that the government's general police powers constitute an authorization to so expend the necessary funds. 6 However, whether the particular public entity meets the additional

1 La. Atty. Gen. Op. No. 13-0117.
2 In this regard, we are cognizant of La. R.S. 33:4811, et seq., which authorizes the use of the general municipal police power to remove the "dead" from certain areas for public health and safety reasons. However, because this law contemplates the removal of such dead to a cemetery, we are of the opinion that these provisions apply only to the human dead. The reason for this is that La. R.S. 8:1 (7) defines the term "cemetery" as "a place used or intended to be used for the interment of the human dead." 3 See La. Atty. Gen. Op. No. 05-0373 (noting that due process protections may be provided on a post-hoc
basis in emergency situations).
.
4 See e.g., La. R.S. 29:721, et seq. (providing for the declaration of and response to emergencies by State, parish, and municipal officials). 5 Indeed, La. R.S. 29:724, La. R.S. 29:727, and La. R.S. 29:737 place determinations of when to declare emergencies within the province of the governor, parish president, and municipal chief executive (respectively), effectively making such determinations factual ones that are outside of the province of this opinion.
. 6 With this reality noted, in cases where there is no emergency, but an animal dies from disease, Louisiana law explicitly places the responsibility of burying or cremating the remains of that animal on the

Page 3

OPINION 13-0139
Hon. Glenn L. Brasseaux
Page 3·

requirements of the Cabela's inquiry noted above is a factual matter that must be determined by the public entity.

We hope this sufficiently answers your inquiry; however, if we may be of further assistance please do not hesitate to contact our office.

Sincerely yours,

JAMES D. "BUDDY" CALDWELL
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private owner of the animal and does not make such a job a public obligation. La. R.S. 3:2131. One exception to this caveat is that, [t]he provisions of this Part shall not apply to animal carcasses within the limits of a city or town which is provided with an incinerator or in which a rendering plant is operated, provided such incinerator or rendering plant is equipped with facilities to properly transport or handle carcasses in a manner to prevent dissemination of infection.
Id.