text:
    C. E. KOCH, Appellant, v. R. H. WICK, Chairman, and C. J. Wood, Clyde J. Keys, C. R. Fischer and S. S. Parry, Members of the Board of County Commissioners of Pinellas County, Florida, also Pinellas County, Appellees.
    Supreme Court of Florida. Special Division B.
    April 25, 1956.
    J. C. Davant, Clearwater, for appellant.
    C. Ray Smith, J. D. Hobbs, Jr., and Cra-mer, Smith & Hobbs, St. Petersburg, for appellees.
   THOMAS, Justice.

The appellant was the unsuccessful plaintiff in the chancery court. He owns 2,600 contiguous acres of land in Pinellas County which he claims contain “several hundred million gallons” of percolating water that reaches his land by rainfall, and by seepage from sources near and far rendering the land extremely fertile.

The members of the Board of County Commissioners had conducted a survey of the quality and quantity of available water underlying the lands in that part of the county where appellant’s property is situated, found that eight million gallons of potable water could be drawn daily from the area, and named the region “Mecca Well Field.” The Board then sank wells on the road right-of-way adjacent to the appellant’s property and began to pump water from these wells, but this enterprise was enjoined by the court in an action brought by the appellant to have his rights in the real property and the underlying water declared and to enjoin the Board from use of the right-of-way for any except highway purposes.

'Next the Board leased from a neighboring owner a strip of land 60 feet in width and 2,640 feet in length adjoining appellant’s property and sank wells from which is drawn a large volume of water for distribution to individuals and to municipalities in Pinellas County including the county seat, Clearwater. The project which, according to the allegations of the complaint, is purely commercial results in draining moisture from his land and will, he charges, reduce its productivity to such degree that it will become a “desert waste” causing him to suffer irreparable injury. He prayed that the operation of the pumps be enjoined and that he be awarded a judgment for the reasonable value of all water taken.

Upon motion of the appellees, the chancellor dismissed the complaint.

The appellant first presents the questions whether or not the Board of County Commissioners should be restrained from pumping daily three million gallons of percolating water from wells situated on 3.63 acres of land solely for resale, not for use on the land, thereby “depleting the percolating water supply” from the adjoining lands, and whether or not the allegations with reference to depletion disclose irreparable damage.

It seems that in judging the merits of this controversy, the appellees are not in a favorable position simply because the water drawn is to be furnished the public. Tampa Waterworks Co. v. Cline, 37 Fla. 586, 20 So. 780, 33 L.R.A. 376; Canada v. City of Shawnee, 179 Okl. 53, 64 P.2d 694. Although the court in the former case was dealing with the diminution or diversion of water from a well defined subterranean stream, while in the instant case the water appellant alleges is being taken is percolating water, the court quoted from Wheatley v. Baugh, 25 Pa. 528, this language [37 Fla. 586, 20 So. 784]: “ ‘percolations spread in every direction through the earth, and it is impossible to avoid disturbing them without relinquishing the necessary enjoyment of the land.' Accordingly, the law has never gone so far as to recognize in one man a right to convert another’s farm to his own use, for the purposes of a filter.’ ”

In Cason v. Florida Power Co., 74 Fla. 1, 76 So. 535, L.R.A.1918A, 1034, the court was considering damage to land by flooding of a stream and commented that the rights in respect of water which percolates through the land of one owner to. the land of another are correlative and each is confined to reasonable use of his property as it affects subsurface water passing to or from the land of another.

The opinions expressed in these cases harmonize with the pronouncement in Labruzzo v. Atlantic Dredging & Const. Co., Fla., 54 So.2d 673, 29 A.L.R.2d 1346, that American courts have receded from the old common law rule that an owner had an unrestricted right to draw percolating water from his land and to adopt the rule that the right is bounded by reasonableness and beneficial use of the land. Perhaps, as appellant suggests in his brief, the old rule has been modified because in the development of machinery, electricity has replaced manual power, and the amount of water that may be drawn has increased astronomically. The instant case is an illustration of the need for the modern rule. As we have written, the appellant alleges that the appellees are taking vast quantities of. water each day with pumps located on a piece of land less than four acres in area. Obviously it is not produced for the benefit of the owner of the small parcel so one of the restrictions, benefit, disappears. It remains to be decided whether or not ap-pellees’ operation is reasonable, or to be more accurate, whether the appellant should be allowed to try that issue.

In Canada v. City of Shawnee, supra, the Supreme Court of Oklahoma- not only decided that a municipality would be held to the samé- rule as an individual but also that subterranean waters are presumed to be formed by percolation unless an underground stream is shown to exist.

Appellees take the position that appellant is not entitled to relief unless he “makes a clear showing in his complaint that irreparable injury will result * * * from the pumping operations,” and they contend that the “ ‘reasonable use’ rule does not per se prohibit extraction of percolating water for distribution and sale off the premises.” To sustain their position they cite a decision of the Supreme Court of New Jersey, Meeker v. East Orange, 77 N.J.L. 623, 74 A. 379, 25 L.R.A.,N.S., 465. But in the New Jersey case the action was for damage already done, while here the plaintiff is attempting to prevent the injury to his land.

Inasmuch as the matter of benefit to appellees, is eliminated, the sole remaining. question is whether or hot the extracting of so much water is reasonable. We think that in the face of the pleadings the appellant should have been given the opportunity of producing evidence to substantiate his charge that it was not. And we do not think that this is such a case as would require the denial of remedy until such time as the damage could be ascertained. If the land should become barren, as the appellant fears, the damage to that point could be established but future damage would require an exploration into the obscure and the speculative. It would be just to try now the issues that may be formed by answer to the allegations of the complaint.

The decree is reversed with directions to reinstate the complaint and to proceed from that point.

Reversed.

DREW, C. J., ROBERTS, J., and PRUNTY, Associate Justice, concur.


source: Caselaw Access Project

author: PER CURIAM. TERRELL, Justice.

license: Public Domain

text:
    Darvell NEWMONS and Susie May Newmons, his wife, Appellants, v. The LAKE WORTH DRAINAGE DISTRICT, for the use and benefit of Minerva G. MARTIN, Appellees.
    Supreme Court of Florida. Special Division A.
    Feb. 29, 1956.
    On liehearing April 25, 1956.

      Potter, Langbein & Burdick, West Palm Beach, and Ronald J. Fruda, Boynton Beach, for appellants.
    Warwick, Paul & Warwick, West Palm Beach, for appellees.
   PER CURIAM.

Affirmed.

DREW, C. J., and TERRELL, ROBERTS and O’CONNELL, JJ., concur.

STANLY, Associate Justice, heard the argument but did not participate in the judgment.

On Petition for Rehearing

TERRELL, Justice.

This ejectment suit was instituted by ap-pellees against appellants in 1953 to recover possession of certain lands in Palm Beach County. Defendants’ answer denied the general allegations of the complaint. At the trial the court refused to submit to the jury the provisions of Section 196.06, F.S.1953 and 1955, F.S.A., being .the four-year statute of limitations under which the former owner may apply for redemption of lands sold for taxes when the tax deed holder is in possession or requires the tax deed holder to bring action to get possession within four years from the date of the tax deed when the land is in the actual adverse possession of another. The jury returned a verdict for the plaintiffs. Final judgment was entered for the plaintiffs. A new trial was denied and defendants appealed. February 29, 1956, we affirmed, per curiam, the order appealed from. We are confronted with petition for rehearing which we think should be granted because of the confusion revealed with reference to the purpose of per curiam opinions and with reference to the applicable law of the case.

In the petition for rehearing it is pointed out that per curiams “have been this court’s way of disposing of cases which this court regards as involving only attempts to review disputes of fact, disputes over the exercise of trial court discretion, or disputes over obvious applications of settled rules of law.”

Traditionally it may be pointed out that a “per curiam” is the opinion of the court in which the judges are all of one mind and the question involved is so clear that i-t is not considered necessary to elaborate it by an extended discussion. Such an opinion carries no less weight because of the nomenclature that designates it as such. 32 Words and Phrases, Per Curiam; Black’s Law Dictionary; Minor v. Fike, 77 Kan. 806, 93 P. 264; Clarke v. Western Assur. Co., 146 Pa. 561, 23 A. 248, 15 L.R.A. 127. The attribute of a per curiam, when the “question presented is so clear that it is not considered necessary to elaborate it by extended discussion,” may imply a variety of connotations. As suggested in the petition for rehearing, it may not only involve a review of questions of fact, questions that involve nothing more than the discretion of the trial court or questions that involve the application of well settled rules of law, it may be employed to dispose of cases in which we say “affirmed” or “reversed” on authority of some other decided case or cases; it may be employed to dispose of cases in which numerous questions are raised and to discuss them would require a long opinion that would serve no useful purpose. It may be employed when two or more justices have contributed to answering the points raised and all others agree. It may be employed to dispose of cases in which anything written on the points raised would add nothing to the law. In fine, there is no limit to the grounds that may prompt a per curiam opinion.

The real point for determination in this case is whether or not a deed executed by the Trustees of the Internal Improvement Fund, pursuant to Section 192.38, F.S.1953 and 1955, F.S.A., is subject to the limitations imposed for recovery of lands in possession of a tax deed holder set out in F.S. § 196.06, F.S.A., supra, which requires suit to be brought within four years from date of the tax deed on which title is predicated.

Appellants contend that this question requires an affirmative answer and rely on Deas v. Turner, Fla., 56 So.2d 337; Haynes v. Woodward, 154 Fla. 111, 16 So.2d 736; Andrews v. Andrews, 155 Fla. 654, 21 So.2d 205; Crompton v. Kirkland, 157 Fla. 89, 24 So.2d 902; Palmquist v. Johnson, Fla., 41 So.2d 313, and others to support their contention. Appellees contend on the other hand that the question should be answered in the negative and rely on June Sand Co. v. Devon Corp., 156 Fla. 519, 23 So.2d 621, and similar cases to support their contention. The confusion appears to have grown out of the interpretation and scope given Sections 192.38 and 196.06, supra, and Chapter 194, F.S.1953 and 1955, F.S.A. In our view Chapter 194 defines the law governing the sale, issuance of certificates and redemption of lands sold for nonpayment of taxes. The limitations for recovery of lands in possession of a tax deed holder as defined by F.S. § 196.06, F.S.A., supra, applies only to lands sold for nonpayment of taxes in the manner provided by F.S. Chapter 194, F.S.A., supra.

This must be true because F.S. § 192.38, F.S.A., supra, being a portion of Chapter 18296, Acts of 1937, sometime known as the Murphy Act, provides a very different means for selling and redeeming lands for nonpayment of taxes from that authorized by F.S. Chapter 194, F.S.A., supra. Under Section 192.38, Murphy Act lands sold and certificated to the state for nonpayment of taxes become the property of the state at the expiration of two years from passage of said act, the state becomes the holder of the fee simple title and every “right, title or interest of every nature or kind whatsoever of the former owner of said property, or anyone claiming by, through or under him, or anyone holding a lien thereon, ceased, terminated and ended and the state through the trustees of the internal improvement fund may sell or lease said lands to the highest and best bidder for cash at such time and after such notice and according to such rules and regulations as have or may be fixed and adopted from time to time by said trustees of the internal improvement fund.”

It is true that said Section 192.38 imposes other limitations on sale of said lands; the trustees of the Internal Improvement Fund may convey them to agencies of the United States, they may convey easements to railroad companies, power companies, withdraw them from sale, control and manage them and provide a procedure for selling them to the former owner as of June 9, 1939, the date said lands became absolutely vested in the state, “upon such terms and conditions and for such consideration as to said trustees shall seem equitable and proper.” No publication or notice of such sale is required. The proceeds derived from them shall be distributed in'the same manner that the proceeds of other sales are made under F.S. § 192.-38, F.S.A., supra. From a study of these and other provisions of Section 192.38, we are driven to the conclusion that it provides an entirely different method for the sale and disposition of lands certified to the state for the nonpayment of taxes and being so, such sales are in no wise influenced or affected by F.S. § 196.06, F.S.A., supra. The trial court properly refused consideration of said statute.

It is true that the state acquired title to lands under the Murphy Act for nonpayment of taxes and there are statements in the cited cases relied on by appellants that use the term “tax deed,” in treating them but that is in no sense conclusive or even persuasive of the answer to the question raised here. It is a matter of common knowledge that the real purpose of the Murphy Act was to restore large acreages of land to the tax rolls that had passed to the state for nonpayment of taxes, and the means provided to secure this result was a new and different means from any heretofore tried. Under the Murphy Act the sale to appellee vested an absolute and indefeasible title as of June 9, 1939. It was not based on tax title or certificate as contemplated by F.S. § 196.06, F.S.A., supra. June Sand Co. v. Devon Corp., supra.

In Milton v. Danford, 100 Fla. 761, 130 So. 435, 71 A.L.R. 586, Palmquist v. Johnson, supra, and other cases relied on by appellants, the deeds relied on were deeds issued by the Clerk of the Circuit Court on application of the tax certificate holder. They were subject to the provisions of Section 196.06. In view of the provisions of F.S. § 192.38, F.S.A., supra, and the recitations in the deed issued by the Trustees of Internal Improvement Fund to ap-pellees, the said deed has none of the in-dicia of a tax deed subject to the provisions of F.S. § 196.06, F.S.A., supra. The fee title to the property was in the state, all liens against it were extinguished, a valuable consideration was paid for it and the Circuit Court repeatedly held the deed not to be a tax deed.

The petition for rehearing is accordingly granted and our former judgment of affirmance is adhered to.

DREW, C. J., and ROBERTS and O’CONNELL, JJ., concur.


author: PER CURIAM.

text:
    Herman H. GLASSER, Appellant, v. FEINSTEIN’S, Inc., a Florida Corporation, and Sixty-Seven Hundred Collins Corp., a Florida Corporation, Appellees.
    Supreme Court of Florida. Special Division A.
    April 11, 1956.
   PER CURIAM.

Affirmed.


text:
    Willie Mae (Pilgrim) URBOWICZ, Appellant, v. Joe URBOWICZ, Appellee.
    Supreme Court of Florida. Division A.
    April 11, 1956.
   PER CURIAM.

Affirmed.


text:
    Bette Jean GAINES, Appellant, v. Gartrell GAINES, Appellee.
    Supreme Court of Florida. Division B.
    April 18, 1956.
   PER CURIAM.

Affirmed.


text:
    Arthur LITT, Morris Fox, E. L. Roberson, Jr., Sheldon Kay and Evelyn Kay, d/b/a Robart Construction Co., Appellants, v. MAULE INDUSTRIES, Inc., Appellee.
    Supreme Court of Florida. Special Division A.
    April 18, 1956.
   PER CURIAM.

Affirmed.


text:
    Shirley V. ROBERTS, Appellant, v. Eugene W. ROBERTS, Monroe W. Trelman, and Hernando State Bank, Appellees.
    Supreme Court of Florida. Special Division B.
    April 18, 1956.
   PER CURIAM.

Affirmed.


author: O’CONNELL, Justice.

text:
    Fred D. BURNHAM, Jr., and Hal K. Leggitt, Appellants, v. DAVIS ISLANDS, Incorporated, a Corporation, et al., Appellees.
    Supreme Court of Florida. Special Division B.
    March 16, 1956.
    Rehearing Denied May 22, 1956.

      Hall, Farnsworth & Rousseau, Tampa, for appellants.
    Reeves, Allen & Dell and Gibbons & Gibbons, Tampa, for appellees.
    Paul Game, Tampa, for Davis Islands Civic Association, amicus curiae.
   O’CONNELL, Justice.

The appellants, Fred D. Burnham, Jr., and Hal K. Leggitt, instituted the litigation which gives rise to this appeal, seeking to enjoin the subdivision and sale of a portion of Davis Islands, in Tampa Bay, by the owners, appellees Davis Islands, Inc., Byars-Thompson, Inc., Alfred Dana and Bernice Dana, his wife.

The property in question is that upon which Davis Islands, Inc., one of the original developers of Davis Islands subdivision, operated a golf course for many years, from the time of its construction shortly after the land was pumped from the bay in the 1920.’s until December 31, 1954. The record relied upon to establish the factual background in this case exceeds 1,000 pages, but in general outline the situation reflected is this:

From the inception of the venture it was widely publicized as offering many attractions to prospective home owners. Various advertisements and brochures pointed to the ready accessibility of recreational facilities for water sports, tennis, as well as golf, in surroundings of great beauty and permanent values.. Sales were made prior to completion of the dredging operations, and apparently before any plats were recorded. The subdivision was comprised of several sections, each covered by a separate plat. The plats covering the particular sections and area here involved were placed of record, in 1925, and upon each record plat covering this area the particular blocks in question appeared simply as open spaces marked “Reserved — See Margin.” The marginal notation was as follows:

“The owner contemplates that the blocks, marked ‘Reserved — See Margin’ may become a part of a golf course, but the owner expressly reserves the absolute right to prescribe the term of any dedication hereafter made or to subdivide or dispose of the same in such manner as it may determine.”

According to testimony of appellants themselves, the section containing the golf course was not developed to any extent until after 1951. The appellant Burnham first purchased lots in the subdivision in 1952, and Leggitt in 1954. Burnham had been familiar for several years, by virtue of his operations as a real estate broker, with the general promotional work of the Island developers, drawing attention to all the assets of the subdivision, including the golf course. But there is no testimony in the record, either from him or any other purchaser appearing as a witness, that lots were purchased in reliance upon the widespread promotional campaign or literature accompanying the initial opening of the subdivision. There is likewise no evidence from any parties purchasing from appellees that they relied upon representations emanating from Davis Islands, Inc., or successors, to the effect that the golf course would be permanent. The appellant Burnham, in fact, stated that he had heard rumors as early as 1950 concerning the possible subdivision of the golf course, prior to the time he purchased any lots, located near the golf course or elsewhere, but nevertheless made no inquiry at the time of his purchases.

On April 29,1955,.appellees placed of record a plat showing the proposed division of the area, and construction of residences thereon has since begun. The appellants brought this suit as a class action on behalf of “all persons in like situation” who have purchased lots on the Islands, either facing the streets surrounding the blocks in question, or so located in the subdivision as to have been influenced by the existence of the golf course in the area. The scope of relief sought is limited, in the language of appellants, as follows:

“There is no attempt either in argument or pleadings or evidence to require the appellees to operate a golf course. The only relief sought is to prevent the subdividers from destroying the easement and right of the purchasers of property on the island to have the area remain in its present status impressed with an easement for' their benefit consisting of all the incidents appurtenant thereto including light, air, view, trees, and a right to have the land available for a golf course.”

The main issues presented by appellant for determination upon this appeal are, first, ■“whether there was a public dedication of the golf course”; second, “whether the actions of the developers estopped them from claiming that the golf course was not dedicated to the owners of the subdivision”; and third, “whether the offers of the developers as put forth in their public advertising and sales promotion when accepted by purchasers of lots created a contract between such developers and the purchasers-that the golf course would be for the use and benefit of the subdivision and the purchasers.”

It was the opinion of the court below upon the first question that the evidence would not sustain a finding of public dedication on any theory:

“There is no conflict in the testimony but that the several owners of the Islands maintained and operated the golf course as a business venture for profit, the use of the course being made available to the public upon the payment of a ‘green fee.’ * * * This golf course was always in the possession of the owners and under their control and maintenance; neither the City of Tampa nor anyone else on the part of the public, "either took or attempted to take possession thereof. At all times the City of Tampa levied taxes against the properties, recognizing the private • ownership, and which tax was paid by the respective owners. * * * all purchasers were on notice that the golf course could be used only upon payment of the fee or charge * * *. Here every act on the part of the owners shows a clear intent to retain possession and control and never was there an abandonment or surrender of the lands in question to the ■ public. While it may not have been successful financially, it is quite clear the golf course was being operated as a business or commercial venture, with -the idea of making a profit. The golf course was in no different category than any other place of amusement or attraction being held out to the public for a fee or charge.”

Thus, while there is no question that an offer of dedication can be made by a plat filed for record, or by mere permissive conduct of the owner, there was not in this case, even in the absence of the marginal reservation above, the requisite surrender of the area to public use. The court’s ruling on this issue appears to be correctly based on the general proposition, with which the decisions in this state are in accord, that “strictly speaking, there can be no dedication to private uses, or to uses public in their nature but the enjoyment of which is restricted to a limited part of the public.” 26 C.J.S., Dedication, § 8; 16 Am.Jur., Dedication, Sec. 5; Littlefield v. Hubbard, 124 Me. 299, 128 A. 285, 38 A.L.R. 1306.

The appellapts, however, claim special rights accruing to them as purchasers of lots in the subdivision where the golf course was maintained, independent of any public dedication, as hereinabove stated. It is true that the rights of abutting or adjacent purchasers have been considered as flowing from a “dedication,” and certainly the filing of a plat may constitute an offer to both purchasers and the general public. But the cases indicate, where the distinction becomes material, that such purchasers’ rights depend, not upon a true dedication, but upon a private easement implied from s.ales with reference to a plat showing streets, parks, or other areas subject to their use or enjoyment. City of Miami v. Florida East Coast Ry. Co., 79 Fla. 539, 84 So. 726; McCorquodale v. Keyton, Fla., 63 So.2d 906; Powers v. Scobie, Fla., 60 So. 2d 738. Such easements are vested or perfected in a grantee immediately upon conveyance to him, but it is clear that his rights are determined on the basis of principles of law applicable to private property interests as opposed to public dedications. Mumaw v. Roberson, Fla., 60 So.2d 741; Canell v. Arcola Housing Corp., Fla., 65 So. 2d 849, 851.

This being the case, appellants cannot rely upon an estoppel arising from conduct of appellees allegedly indicating an intent contrary to the conveyances to appellants made by reference to plats. “Inasmuch as such an easement would be an interest in land, it could be created only in one of three ways; firstly, by express grant, that is, by a deed expressly declaring it; secondly, by implication, that is, by inferring the grant from a construction of the terms and effect of an existing deed; and thirdly, by prescription, that is to say, by a grant established by evidence clearly showing a long and continuous enjoyment and user, although no deed contains the provision. Burdine v. Sewell, 92 Fla. 375, 109 So. 648; Winthrop v. Wadsworth, Fla., 42 So.2d 541.” Canell v. Arcola Housing Corp., supra. The rights of purchasers in the ordinary case of sale by reference to a plat showing public ways are created by the second means above described, that is by a grant inferred from a construction of the deed in connection with the plat to which it refers. If the terms or provisions on the face of the record plat, by reference to which appellants’ conveyances were presumably made, are such as to negative any particular easement, it is difficult to see how an easement could be implied from parol representations without violating basic rules of property law and conveyancing. Estop-pel may, of course, be relied upon to defeat title, but not to establish it. Cf. Hagan v. Ellis, 39 Fla. 463, 22 So. 727, and Coram v. Palmer, 63 Fla. 116, 58 So. 721.

Of controlling importance, then, is the construction to be placed upon the marginal notation quoted above, appearing upon the plats by which lots in the golf course area were conveyed. The court below was apparently of the opinion that the marginal notation expressed a reservation of rights in the grantor which would not expire or be defeated merely by permitting use of the area as a golf course thereafter without exercising the alternative right to prescribe a term for such use or make a grant by dedication for a specified period. An analysis of the language employed seems to sustain this conclusion. It is stated first, of course, that the owner contemplates that the area “may become part of a golf course.” This, however, amounts to nothing more than an expression of a future possibility, not a present “dedication” to such use. In the succeeding clauses the owner makes it clear that by the marginal notation he intends to expressly reserve the absolute right, with reference to the blocks indicated, to “subdivide or dispose of the same in such manner as it may determine,” unless it should elect, under the alternative provision, to grant or prescribe a “dedication” for a specified term. In the latter case the owner could not, of course, dispose of the property during the term prescribed, in any manner contrary to such “dedication.” From the. structure of the paragraph, it does not seem susceptible of any other, logical interpretation:

“Marginal Note: The Owner contemplates that the blocks marked ‘Reserved — See Margin’ may become part of a golf course, but the owner expressly reserves the absolute right
“[1] to prescribe the term of any dedication hereafter made or
“[2] to subdivide or dispose of the same in such manner as it may determine.”

The contention of appellants seems to be that by establishing and operating a golf course on the property, without prescribing a term as permitted by the first clause above, the owner estopped itself from denying that subdivision purchasers had acquired a perpetual easement in the golf course, and that it had relinquished any rights it may have had under the second reservation. Upon this theory, the only dedication or easement which could arise in favor of the abutting owners or other parties would be by permissive user, rather than by conveyance with reference to a plat. To hold that the particular use or enjoyment permitted under the circumstances of this case could give rise to a private easement as claimed would appear to be contrary to established principles of law in respect to easements generally. J. C. Vereen & Sons v. Houser, 123 Fla. 641, 167 So. 45.

There is no contention that the conduct or representations by Davis Islands, Inc., independent of the conveyances or record plats, was such as to amount to a grant of an easement, and a review of all the evidence on the issue fails' to reveal any significant grounds for raising an es-toppel against it to deny the easement claimed, if that issue should be material. The publicity relating to the Islands’ assets, stressing permanency, related solely to the general beauty and seclusion of the area, not to the perpetual maintenance of all or any recreational facilities, and the findings of the court are fully sustained, that “every act on the part of the owners shows a clear intent to retain possession and control and never was there an abandonment or surrender of the lands in‘question :to the public. While it may not have beeii successful financially, it is quite clear the golf course was being operated as a business or commercial venture.”

Insofar as appellants claim that sales by the developer with reference to sales maps showing the disputed blocks as‘ blank green areas with miniature golf players and tees, prior to recording of the plats containing the reservation, amounted to a contract or covenant that the area would always be reserved for such use, it is clear that the recording of the reservation effectively revoked any such implied offer in respect to those purchasing thereafter with reference to the record plats. City of Miami v. Florida East Coast Ry. Co., 79 Fla. 539, 84 So. 726, supra. And there is no showing in the record that any parties now interested in the land are entitled to rely upon rights which might have vested in predecessors in title purchasing prior to such revocation.

The fourth question raised by appellants relates to the trial court’s refusal to accept evidence offered and then proffered by the plaintiffs in which they sought' to show the alleged public nature of the golf course and that it was so treated' by governmental authorities for purposes of assessing and’ collecting taxes. This question also relates to the alleged error of the trial court in refusing to allow testimony regarding actions and representations of real estate agents who sold lands owned by Davis Islands, Inc. We think the court • below ruled properly on these matters.

For the reasons above cited thfe decree appealed from is affirmed.

DREW, C. J., and ROBERTS and THORNAL, JJ., concur.


author: TERRELL, Justice.

text:
    Madeline FOURNIGAULT, Petitioner, v. JACKSON MEMORIAL HOSPITAL STANDARD ACCIDENT INSURANCE COMPANY, and Florida Industrial Commission, Respondents.
    Supreme Court of Florida. Special Division A.
    April 18, 1956.
    Rehearing Denied May 25, 1956.
    Nichols, Gaither, Green, Frates & Beck-ham and Dudley Burton, Miami, for petitioner.
    Douglas M. Carlton, Dixon, Dejarnette, Bradford & Williams, Miami, Burnis T. Coleman and Rodney Durrance, Tallahassee, for respondents.
   TERRELL, Justice.

At a hearing before the Deputy Commissioner held June 17, 1955, claimant was awarded compensation plus medical expenses, attorneys fees and court costs. July 6, 1955, 19 days after copies of said order were mailed to the parties, the employer-carrier filed application for review of Deputy’s order but said application was not filed with the Commission at Tallahassee until July 8, 21 days after its entry. July 6, carrier filed carbon copy of application for review with Deputy Commissioner, 19 days after entry of said order but within 20 days provided by statute. The full Commission denied motion to dismiss application for review, holding that the copy of the application filed with the Deputy within 20 days complied with Rule 4 of the Commission.

■ We are confronted with a petition for certiorari to review the order of the full Commission vacating- the order of the Deputy Commission with directions to -make further investigation as he .may deem necessary in the light of Hardy v. City of Tarpon Springs, Fla.1955, 81 So.2d 503.

Petitioner raises two questions, viz.: (1) Is filing a carbon copy of. application for review with the Deputy Commissioner within the time required by the statute compliance with Sec. 440.25(4) (a) when the original is admittedly received in Tallahassee one day late? (2) May the Commission change the statute by rule, particularly Rule 4, the effect of which is to provide that filing with the Deputy shall constitute filing with the Commission at Tallahassee? Respondents also argue two questions, viz.: (1) Certiorari will not lie to review an order of the full -Commission which vacates an order of the Deputy Commission and remands the cause for further consideration. (2) Same as (2) raised by petitioner.

Answering respondents’ contention that constitutional or common law certiorari lies only to final judgments, decrees or orders, that the order of the full Commission is not such an order and being so petition for certiorari should be denied, it is enough to say that in our view the'order of the full Commission denying the motion to dismiss was to all intents and purposes a final order as to the time within which application for review must he filed and met, ail requirements of the rule authorizing request for certiorari.

The pertinent part of Sec. 440.25(4) (a), Florida Statutes 1953 and 1955, F.S.A., is as follows:

“The compensation order * * * shall become final twenty days after the date copies * * * are mailed to the parties * * * unless within said time any interested party shall make and file with the commission at Tallahassee an application for a review thereof by the full commission. * * ”

The pertinent part of Rule 4(a) adopted by the • Commission effective October 1, 1953,'is as follows:

“Applications for review of decisions of Deputy Commissioners must be filed with the Commission at Tallahassee within twenty days after the date copies of the Deputy’s orders are mailed * *. Filing said application with a Deputy Commissioner shall constitute filing with the Commission at Tallahassee. * ■ * * ”

There is no dispute as to the time of filing carbon copy of the application with the Deputy or the receipt of the application at Tallahassee.

An examination of the applicable provisions of Sec. 440.25(4) (a), Florida Statutes 1953 and 1955, F.S.A., and Commission Rule 4(a) quoted above discloses conflict. -The statute requires the application' for review to be filed with the Commission at Tallahassee within 20 days but Rule 4(a) permits filing with the Deputy Commissioner to have the same effect. Filing a copy with the Deputy Commissioner in Miami on the 19th day and mailing the application to the Commission where it was received on the 21st day obviously enlarged the time fixed by the statute and was a deviation from the essential requirements of law.

In H. W. Sperry, Inc., v. Matthews, Fla., 76 So.2d 487, this court held that filing an application for review 21 days after the order of the Deputy Commissioner is in violation of the statute. In that case it will be observed that the application was filed with the Deputy Commissioner 21 days after his (Deputy’s) order and did not present the question presented here, that the application was timely made to the Deputy but was too late to the full Commission.

Section 440.25(4)' (a), as amended in 1953 and 1955, provides that “any interested party shall make and file with the commission at Tallahassee an application for a review thereof by the full commission.” Pri- or to the 1953 amendment, subsection 4‘ of Sec. 440.25, Florida Statutes, read in part as follows: “Any interested party may make and file with the commission an application for review thereof by the full commission * * *.”

Workmen’s compensation is statutory, hence all rules and regulations defined by statute supersede and overrule those prescribed by the full Commission. The words “shall” and “Tallahassee” were added to the statute by the legislature of 1953. When the latter controls the place of filing, any attempted change by the Commission would unlawfully affect the jurisdictional mandate of the legislature and would in effect extend the time allowed for talcing an appeal since it is apparent that it would require one more day to file an appeal in Tallahassee than it would to file a carbon copy of it in Miami!

For the reasons so stated, certiorari is granted and the order of the full Commission is quashed.

DREW, C. J., and HOBSON and BUFORD, JJ., concur.


author: THOMAS, Justice.

text:
    Fred WRIGHT, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida. Special Division B.
    May 2, 1956.

      James T. 'Smith, St. Petersburg, for appellant.
    Richard W. Ervin, Atty. Gen., and Joseph P. Manners, Asst. Atty. Gen., for appellee.
   THOMAS, Justice.

The appellant was tried on. an information presenting the charge that he concealed or was concerned in concealing five gallons of intoxicating liquor commonly called ‘moonshine’ whiskey “for or in respect whereof a tax is imposed by the bev- ' erage law or would be imposed if such beverage were manufactured in or brought into the State in accordance with the regulcu-tory provisions thereof, with intent to defraud the State' of Florida of such tax *' * (Italics supplied.) He was found guilty and sentenced to the penitentiary.

The appellant does not attack the sentence but he contends that the act defining the offense set out in the information contravenes Section 8 of the Declaration of Rights of the Constitution of Florida, F.S. A., prohibiting excessive fines and cruel and unusual punishment, because fine and imprisonment may be imposed for failure to pay what he calls a “non-existent” tax. He objects “to the statute itself because it. inflects [sic] a penalty for the violation of a law impossible to obey.” We cannot resist the comment that this is ingenious reasoning. It may be impossible to pay a tax on ‘moonshine’ but it is certainly possible to obey the law by simply manufacturing, removing, depositing and concealing none of it. Section 562.32, infra.

In Harris v. State, 160 Fla. 720, 36 So.2d 372, 373, we approved an information which contained the' charge ■ that the appellant dealt with intoxicating liquor “ ‘in respect whereof a- tax would be imposed if such beverage-were manufactured in accordance with the- regulatory provisions of the Beverage Laws of the 'State of Florida, and on which tax was not paid, with intent * * * to defraud the State of Florida of said tax.’ ” We consider the decision ample- authority for upholding the. information in the present case.

When a person “removes, deposits, or conceals” legally manufactured liquor on which no tax has been paid, with intent to defraud the state of the revenue, he violates Section 562.32, Florida Statutes 1953, and F.S.A., and when he removes, deposits or conceals illegally manufactured liquor with such intent, he violates the same law in another way. Knowledge that a tax has not been paid and knowledge that it cannot be paid are elements of equal saliency in the basic, charge of dealing with liquor with intent to defraud the state.

The gravamen is the intent to defraud, Brown v. State, 152 Fla. 853, 13 So. 2d 458, and that may be established either by proving concealment, removal or deposit of liquor legally manufactured on which a tax has not been paid, or liquor upon which, because of its illicit origin, no tax could be paid. Harris v. State, supra.

We have held the statute constitutional, Brown v. State, supra, and we reiterate that view. For the reasons already given we do not approve appellant’s position that the statute imposes an impossible task and is for that reason unconstitutional because a penalty for ■ disobedience then becomes cruel and unusual punishment.

While considering the next question we keep before us the guaranty in Section 918.09, Florida Statutes 1953, and F.S.A., that “a defendant offering no testimony in his own behalf, except his own, shall be entitled to the concluding argument before the jury.” (Italics supplied.) By decision the defendant is granted the opening argument as well, Smith v. State, 155 Fla. 148, 19 So.2d 698, and although the court may exercise some discretion in arranging the order of addresses to the jury, he cannot deprive the defendant of the right to have his attorney deliver the closing argument when he has offered no testimony save his own.

In the instant case the defendant announced, 'after the state rested, that he had no testimony to offer. The court then stated that the defendant had the right to open and close the argument before the jury, which was quite correct, but although the judge - at one time in a colloquy between him and the attorney for the defendant said that if the defendant waived the first argument he would also waive the closing argument “unless .the state argues,” his ultimate ruling was that if the defendant’s attorney wished to make a closing argument he had to make an opening one. So the defendant waived the first address, the state argued and the defendant was deprived of .a reply. This was error because it divested the defendant of what we have termed a “substantial procedural right,” Lopez v. State, Fla., 66 So.2d 807, 809, guaranteed to him by the statute.

Had the state also waived argument, the waiver of the first address by the defendant might have properly been considered a waiver also of the last address, on the theory that there was nothing to' answer, but once the state argued the case, the defendant had the right to reply and this reply should have been the last one to be heard by the jury.

The state insists that there was no appropriate objection to the court’s ruling but that position is unsound. At least four times during the exchange of remarks between the judge and the defendant’s attorney, while the attorney was insisting that he could waive the opening argument and preserve the right to conclude, except perhaps if the state attorney chose not to argue, the judge ruled that if the defendant waived the opening argument he would not be allowed to conclude. That procedure convinces us that, the point was saved for presentation here.

If the defendant offers nothing to which the state can reply, it does not follow that the defendant will he prevented from replying to what the state offers, and especially in the face of a law securing to the defendant the “concluding” argument when he offers no testimony other than his own. The word, “concluding” means to us the last argument if any arguments at all are made.

In his final question, the appellant challenges the ruling of the court declining to suppress the evidence seized from him by the officers. Two patrolmen saw the car of the appellant enter a street from a side road. The car “swayed” and the policemen started following it. When the police were travelling at the rate of 45 or 50 miles an hour, they could not gain on appellant in an area where evidently the speed limit was restricted, and in the course of the pursuit the appellant ran past a “stop sign” without stopping. Later the officers saw a liquid that had a very strong odor escaping from appellant’s car. The chase continued several blocks, then the appellant stopped and when the officer approached him he “had his right hand on one five gallon jug of the liquid, trying to bust it against the dashboard.”

In the car, besides the unbroken five gallon jug, was a five gallon jug that was broken.

When one of the officers had testified that from experience he could identify ‘moonshine’ whiskey by the smell and taste and was asked what the jug the appellant was transporting contained, the attorney for appellant objected on the ground that the best evidence of the contents was the jug itself, and it was brought into court.

We think these circumstances considered together afforded sound basis for belief by the officers that a felony was being committed in their presence. The conduct of the driver of the car was not normal. He not only drove at excessive speed and ran a stop sign but was making frequent turns from one street into another indicating an effort to throw the officers off his trail. Liquid was seen dripping and it could be smelled by the pursuers. When the car came to a halt and the officer approached, he could see the appellant attempting to break one of the jugs. State v. Simmons, Fla., 85 So.2d 879.

We think the judge ruled correctly ini admitting this evidence which was seized! incident to a lawful arrest. State v. Simmons, supra.

Reversed for a new trial.

DREW, C. J., O’CONNELL, J., and ANDERSON, Associate Justice, concur.


text:
    P. Peter HOWLEY and Lois Howley, his wife, Appellants, v. M. V. THOMASON, Appellee.
    Supreme Court of Florida. Special Division A.
    April 11, 1956.
    Rehearing Denied May 25, 1956.
    Thomas L. Bailey, West Palm Beach, for appellants.
    Earnest, Smith, Jones, Paine & Cone, and James C. Paine, West Palm Beach, for appellee.
   PER CURIAM.

This cause came on to be heard on the motion of the appellee to affirm the judgment appealed from pursuant to Rule 38 of the Rules of this Court, 30 F.S.A., and it appearing to the court from an examination of the record that said motion is appropriate and seasonably made and that it is manifest that the questions raised on appeal are without substantial merit and need no further argument;

It is, accordingly ordered, adjudged and decreed that the motion to affirm the judgment appealed from he and the same is hereby granted and the judgment is

Affirmed. ,

• DREW,' C. J., and TERRELL, HOB-SON and BUFORD, JJ., concur.


author: ' PER CURIAM.

text:
    A. C. GRANT and Sue W. Grant, his wife, Appellants, v. WINDLEY ISLAND PROPERTY, Inc., a Florida corporation, Appellee.
    Supreme Court of Florida. Division B.
    May 2, 1956.
    Rehearing Denied May 24, 1956.
    Ralph G. Jordan, Vernon W. Turner of Turner & Hodson, Flomestead, for appellants.
    M. Lewis Hall of Hall, Hedrick & Dekle, Miami, for appellee.
   ' PER CURIAM.

This cause came on to be heard on the motion of appellee to affirm the judgment appealed from pursuant to 31 F.S.A. Rule 38 of the Rules of this Court and it appearing to the- court from an examination of the record that said motion is appropriate and seasonably made and that it is manifest that the questions raised on appeal aré without substantial merit and need no further argument;

It is accordingly, ordered, adjudged and decreed that the motion to affirm the judgment appealed from be, and the same is, hereby granted, and the judgment is

Affirmed. ' '

DREW, C. J., and THOMAS, ROBERTS and O’CONNELL, JJ., concur.


author: JONES, Associate Justice.

text:
    Elsie LYNG, Appellant, v. John O. RAO, doing business as Osceola Hospital, Indemnity Insurance Company of N. A., and Florida Industrial Commission, Appellees.
    Supreme Court of Florida. Special Division A.
    May 2, 1956.

      Thacker & Thacker, Kissimmee, for appellant.
    Wilson Sanders of Sanders, McEwan & Berson, Orlando, for appellees.
   JONES, Associate Justice.

This is the second appearance of this case here. This Court has previously held that the appellant had sustained a com-pensable accident and resulting injury within the meaning of the law and was, therefore, entitled to the benefits of the Workmen’s Compensation Act, F.S.A. § 440.01 et seq. (See Lyng v. Rao, Fla., 72 So.2d 53.)

This claim arose under the statute requiring an appeal to the appropriate Circuit Court from the Florida Industrial Commission, and the mandate issuing-from the decision referred to was directed to the Ninth Judicial Circuit Court in Osceola County.

' Upon going down of the mandate the Circuit Judge entered' an order reversing in part and approving in part the original order of the Deputy Commissioner, which had denied to the appellant the benefits of the Act.

By cross assignment of error the appellee insurance company questioned the correctness of the action of the Circuit Judge in.making a finding in accordance with the mandate of this Court without first remanding the same to the Deputy Commissioner for the taking of additional evidence. The evidence on behalf of the claimant-appellant was submitted in full and the employer-carrier chose not to put on any evidence before the Deputy Commissioner. A reading of the previous opinion of this Court will show that there was nothing more to be done but to apply the law as stated therein to the facts placed into evidence and to grant to the appellant all of the benefits of the Act to which she was entitled. The cross assignments of error are, therefore, without merit.

Section 440.13(1) provides that: “The employer shall furnish to the employee such remedial treatment, care, and attendance under the direction and supervision of a qualified physician or surgeon, or other recognized practitioner, nurse or hospital, and for such period, as the nature of the injury or the process of recovery may require * *

At the hearing the claimant testified that such remedial care and treatment was rendered to her and submitted into evidence a statement rendered for such service. At the time the statement was offered and before being received, the Deputy Commissioner inquired specifically of counsel for the carrier if he had any questions about the bill. To this counsel for the carrier stated: “I have no objection to this bill being admitted in evidence as the bill that was sent there by the hospital.” If the carrier intended to contest the validity of the bill either in whole or in part that was its day and time in Court to do so.

With the evidence in this State on this point the Circuit Court in an attempt to comply with the mandate entered its order ■finding that:

“Dr. Rao and his hospital rendered medical and hospital services to claimant in the amount of $1,064.00 and has not been paid for the same. The claimant admits that she owes for the doctor and hospital expenses rendered as the result of her injuries and that demand has been made upon her for payment.
“However, inasmuch as the doctor-employer furnished the medical, hospital and doctor attention required of an employer under the Workmen’s Compensation Act, claimant, Elsie Lyng, is not indebted to the employer, Dr. John O. Rao, for medical and hospital attention and doctor’s care, and, therefore, is not entitled to be paid any monies with which to pay her employer for doctor and medical expenses. In this connection the Court does not make a determination of any equities involved between the employer and the carrier.”

This order specifically avoids passing on the responsibility of the carrier to the hospital and attending physician (simply by coincidence, also the employer). Nevertheless, it is inconceivable that any one could, as does counsel for the carrier, contend that the carrier could escape responsibility for the payment of such expenses simply because they were rendered by the employer.

Under the provision of the Act an employer may be a self-insurer or may secure the discharge of all responsibility by obtaining appropriate insurance coverage. This Court has previously held that where an insurance carrier of an employer assumes to insure payment of benefits ¡by the employer, the carrier is bound to pay whatever may be lawfully adjudged against the employer. Moody v. Baxley, 158 Fla. 357, 28 So.2d 325, 326. As stated therein “if the injury was compensable by the employer, the liability attaches to the carrier.”

The Circuit Court should have ordered the carrier to pay the bill rendered for the care and treatment of the claimant regardless of who rendered such services, provided such services were rendered in connection with the treatment and care of the injuries received in the accident, as they were proven to be in this case.

Reversed.

DREW, C. J., and TERRELL and THOMAS, JJ., concur.


author: FOURNET, Chief Justice. McCALEB, Justice

text:
    229 La. 869
    P. F. CHILDS v. Mrs. Blanche WASHINGTON et al.
    No. 42151.
    Supreme Court of Louisiana.
    March 26, 1956.

      Hobbs & Yeates, Minden, for plaintiff-appellant.
    John M. Shuey, Shreveport, for defendants-appellees.
   FOURNET, Chief Justice.

This is a suit by a landowner to have decreed extinguished, for nori-use of ten years,, a certain mineral servitude affecting his property executed on January IS, 1937; and from an adverse judgment, he prosecutes this appeal.

According to an agreed statement of facts the plaintiff, P. F. Childs, owner of an 80'acre tract of land in Webster Parish' — the N/2 of the SW/4, Section 8, T. 21 N„ R. 9 W. — on January IS, 1937, sold to C. P. Talbot, B. V. Bentley and O. V. Pickens one-half of the oil, gas and other minerals on and under the above described property. On April 12, 1941, the three last named persons sold to Robert F. Morgan 3/16ths of the oil, gas and other minerals in and under the tract, and some two weeks later the plaintiff, for a valuable consideration, executed an instrument in which he formally acknowledged Morgan’s 3/16ths interest for the stated purpose of interrupting prescription as of April 12, 1941, the date of Morgan’s acquisition. Shortly thereafter Morgan transferred a half of the interest he had acquired to Mrs. Blanche Washington, one of the defendants herein; ■ the other defendant, Mrs. Minnie E. Abshier, claims the remaining interest of Morgan (3/32nds) as universal legatee under his will — he having died, leaving neither ascendants nor descendants and no forced heirs nor surviving.spouse. It further appears from the agreed facts that while there was no drilling on any part of the tract from the date of the sale to Talbot, Bentley and Pickens, on January IS, 1937, to the time suit was filed, the Department of Conservation, following hearings held on January 11 and 12, 1950, issued its-Orders Nos. 10-W and 10-X, both dated April 15, 1950, each of which included, within producing units already established by previous Orders, a portion of the acreage affected by the mineral servitude with which we are here concerned; the former Order, pooling and consolidating productive portions of the Bodcaw Sand Reservoir, was made effective immediately, and the latter Order, affecting production in the Davis Sand, was made effective as of September 1, 1948; and accordingly, in 1953, the plaintiff and defendants each received his pro rata share of production from these respective sands and has continued to receive monthly payments. With respect to Order 10-W, affecting the Bodcaw Sand Reservoir, its provisions are implemented by the Cotton Valley Unitization and. Pressure Maintenance .Agreement which has been ratified by the plaintiff landowner and the defendants here, although as to the exact dates of such ratifications the record is not clear.

The trial judge, observing that the exact question — whether the mere inclusion in a producing unit, by. Order of the Commissioner of Conservation, of a portion of the acreage affected by a mineral servitude, prevents accrual of prescription because of non-use of the servitude — has never been squarely presented to this Court, and expressing the personal feeling that plaintiff’s position is more equitable and would perhaps be the best answer to the problem involved, yet felt constrained to find for the defendants because “The appellate courts have uniformly held that a servitude is indivisible and that production from a unit created by the Department of Conservation will affect lands both in and out of the unit, even though drilling is not conducted on the particular piece, of property in question.”

Counsel for plaintiff-appellant, citing cases in which (he says) the rulings of this Court have actually reduced or divided servitudes, likens the orders .of -the- Corn-missioner of Conservation herein to a contract between the parties by which they divide the servitude; and asserting that the Commissioner, in the exercise of his .police power to conserve .the State’s natural resources, has power to contract for the parties, contends that he, the Commissioner, simply did that which the parties could have done by contract among themselves, and unitized those minerals within the pooled lands; but that such act did not interrupt prescription as to the remainder of the tract — citing Elson v. Mathewes, 224 La. 417, 69 So.2d 734.

While it is true that in the evolution of mineral law in this State, a mineral grant or reservation came to be defined as a servitude, the rights of which, according to the provisions of the Civil Code, are not susceptible of division, and numerous cases may be found containing expressions maintaining the indivisibility of a servitude, yet in the case of Ohio Oil Co. v. Ferguson, 213 La. 183, 34 So.2d 746 (which ruling was the basis for the decision of this Court on rehearing in the case of Byrd v. Forgotson, 213 La. 276, 34 So.2d 777), it was held by a divided court that since the advantages resulting from a servitude are susceptible of division it followed that where one acquired from the owner of a l/4th mineral interest covering a 240 acre tract, that owner’s interest in a 40 acre subdivision thereof, prescription of ten years accrued and extinguished the servitude as to the 40 acre tract notwithstanding the fact -that as to the remaining 200 acres the servitude was maintained by drilling operations and production by the owner of the mineral interest therein. And, as pointed out in the recent case of Elson v. Mathewes, 224 La. 417, 69 So.2d 734, 735, “A grant by a landowner of a, mineral interest, under the established jurisprudence of this court, does create a servitude which is indivisible in the sense that the grantor thereafter cannot contract independently with a third person to effect a division of that servitude to the disadvantage of the mineral owner. But there is no law prohibiting the landowner. and the mineral owner from entering i-nto a contract with each other, as was done by and between these litigants, whereby a division or a reduction of the servitude results”; and held that whereas, due to the said agreement, the servitude was extended as to the tract incorporated in the unit, the failure of the agreement to mention the remaining acreage affected by the mineral servitude, along with failure to use the remaining acreage during the prescriptive period, resulted at the end of ten years iñ the extinguishment of the servitude to the extent of the acreage outside the unit. Cf. Spears v. Nesbitt, 197 La. 931, 2 So.2d 650.

Our conservation laws relating to minerals — their purpose being to protect, conserve and replenish the , natural resources of the State and to prohibit and prevent the waste or any wasteful use thereof—become a part of the contract between the parties when such contract 'deals with the minerals lying in and under the lands of the State. One of these laws, a comprehensive conservation statute enacted as Act 157 of 1940, now LSA-R.S. 30:2 et seq., requires that the 'Commissioner of Conservation, if he finds it necessary in order to prevent waste and to avoid drilling unnecessary wells, “shall establish a drilling unit or units for each pool”, LSA-R.S. 30:9, subd. B and contains the provision that owners may validly agree to pool their interests and to develop their lands as a drilling unit, but directs that in the absence of such agreement the Commissioner “* * * shall require them to do so and to develop their lands as a drilling unit * * *”—orders so requiring to be made after notice and hearing, and upon terms which will afford to each owner within the unit an opportunity to receive his just and equitable’ share of the •oil and gas in the pool without unnecessary expense. LSA-R.S. 30:10, subd. A.

In construing the provisions of such statutes, we must do so in the light ■of the applicable codal articles, within the framework of previous jurisprudence and pursuant to a general pattern, being not unmindful of the comprehensive scope, ■elasticity and flexibility of the civil law, so as to formulate rules which will apply in any 'case at present foreseeable in the development of our mineral law.

It logically follows, therefore, that if the landowner and the mineral owner can by agreement extend the servitude as to a portion only of the acreage without by such act interrupting the tolling of prescription as to the servitude on the remainder of the tract, as held in Elson v. Mathewes, supra, and if the mineral owner can divide the advantages of a servitude by assigning to a third person all of his interest in a designated portion of the land affected by the servitude and create a situation whereby user of a portion would not hold the remainder, as held in Ohio Oil Co. v. Ferguson, supra, and Byrd v. Forgotson, supra, then clearly when the Commissioner of Conservation, acting for the State in the exercise of its police power, by his orders and after due hearing, included within a unit or units portions of a tract as to which owners had failed to agree to pool their interests for development purposes, his act produced the same result as if the parties had formed a drill-ing unit by convention and for development purposes had reduced the servitude to that extent.

We therefore conclude, as to the portion of plaintiff’s land included in the units formed by Orders Nos. 10-W and 10-X of the Commissioner of Conservation, dated April 15, 1950, that the servitude has been kept alive and extended by production; but as to the portion not included within said units, that the servitude has become extinguished because of non-use during a period of ten years. See, also, Jumonville Pipe and Machinery Co., Inc., v. Federal Land Bank of New Orleans, 230 La. 41, 87 So.2d 721.

Two of the cases relied on by the defendants, and upon which the trial judge based his conclusions, Hunter Co. v. Shell Oil Co., 211 La. 893, 31 So.2d 10, and Le Blanc v. Danciger Oil & Refining Co., 218 La. 463, 49 So.2d 855, were decided under rules of law governing leases and clearly have no application to servitudes; other cases relied on by defendants involve different factual situations and are not controlling.

For the reasons assigned the judgment appealed from is reversed and set aside, and it is now ordered, adjudged and decreed that the servitude created on January 15, 1937, and acknowledged on April 12, 1941, affecting the N/2 of the SW/4, Section 8, T. 21 N., R. 9 W., Webster Parish, with the exception of the portions embraced within units established by Orders of the Commissioner of Conservation Nos. 10-W and 10-X, dated April 15, 1950, is extinguished by the prescription of ten years liberandi causa; and to that extent its inscription and conveyances thereunder are ordered cancelled from the public records of Webster Parish; all costs of court to be divided equally between plaintiff and defendants.

McCALEB, Justice

(concurring).

I am persuaded that the main opinion reaches a desirable result in keeping with a realistic view of the problem confronting this Court in applying the Articles of the Civil Code to mineral servitudes in conjunction with lawful orders entered by the Commissioner of Conservation pursuant to modern techniques for the efficient recovery of oil and other minerals. While it can hardly be gainsaid that the extraction of oil from the portion of the encumbered land contained in the drilling units constituted a user of the servitude in a real sense, it was only because of the unitization orders that this user was effective in law forasmuch as no drilling explorations were ever conducted on any part of the land subject to the servitude. This being so, it seems only proper to conclude that interruption of prescription extends only to that portion of the land covered by the servitude from which the oil is actually withdrawn or where the user has taken place — that is, the part included within the drilling unit.

Under ordinary conditions a servitude is a whole right incapable of division. However, as this right may be subordinated to all lawful orders made in the interest of conservation, the conclusion appears inescapable that, when drilling units are established embracing a portion of the area subject to the servitude, its area is reduced by operation of law and the area lying within the drilling units excluded therefrom as long as the unitization order remains in effect.

I concur in the decree.

      . The trial judge’s conclusion is based on the decisions of this Court in the cases of Hunter Co. v. Shell Oil Co., 211 La. 893, 31 So.2d 10; LeBlanc v. Danciger Oil & Refining, Co., 218 La. 463, 49 So.2d 855; and Sanders v. Flowers, 218 La. 472, 49 So.2d 858.

      . Sample v. Whitaker, 172 La. 722, 135 So. 38; Clark v. Tensas Delta Land Co., 172 La. 913, 136 So. 1; Patton v. Frost Lumber Industries, 176 La. 916, 147 So. 33; Childs v. Porter-Wadley Lumber Co., 190 La. 308, 182 So. 516.

      . Art. 656, LSA-Civil Code of 1870; “The . rights of servitudes, considered in them-. selves, are not susceptible of division, either real or imaginary. It is impossible. that an estate should have upon another estate part of a right of way, or of view, or any other right of servitude, and also that an estate be charged with a part of a servitude. The use of a right of servitude may be limited to certain days or hour's; but thus limited, it is an entire right, and not a part of a right. '* * *”

      . Lee v. Giauque, 154 La. 491, 97 So. 669; Patton v. Frost Lumber Industries, 176 La. 916, 147 So. 33; Connell v. Muslow Oil Co., 186 La. 491, 172 So. 763; Hodges v. Norton, 200 La. 614, 8 So.2d 618.

      . Art. 657, LSA-Civil Code of 1870: “Though the right of servitude be indivisible, and must be established for the whole, and not for a part, nothing prevents the advantage resulting from it' from being divided, if it be susceptible of division; as, for example, the right'of taking a certain number of loads of earth from the land of another, or of ¿ending to pasture a certain .number of animals on the land of another.”

      . Robinson v. Horton, 197 La. 919, 2 So. 2d 647; Johnson v. Anderson-Dunham Concrete Co., 212 La. 276, 31 So.2d 797; Williston on Contracts, Revised Ed., Yol. 3, See. 615.

      . “A drilling unit” according to the further provisions of LSA-R.S. 30:9, subd. B “as contemplated herein, means the -maximum area which may be efficiently and economically drained by one well. This unit-shall constitute a developed area as long as a well is located thereon which is capable of producing oil or gas in paying quantities.”


author: SIMON, Justice. McCALEB, Justice HAWTHORNE, Justice

text:
    229 La. 882
    STATE of Louisiana v. O. H. VIATOR and Mrs. O. H. Viator et al.
    No. 42680.
    Supreme Court of Louisiana.
    March 26, 1956.

      Gravel, Humphries, Sheffield & Mansour, Alexandria, for relators.
    Fred S. LeBlanc, Atty. Gen., M. E. Cul-ligan, Asst. Atty. Gen., Ben F. Thompson, Dist. Atty., A. M. D’Angelo, Edwin O. Ware, Asst. Dist. Attys., Alexandria, for respondent. '
   SIMON, Justice.

These cases are consolidated criminal prosecutions under the provisions of LSA-R.S. 14:91 against the therein named defendants, who are relators herein, and who were charged in separate bills of information with selling and delivering “intoxicating and spirituous liquors, to-wit: beer to * * * a person eighteen year of age”.

In response to relators’ motions for bills of particulars, the State of Louisiana voluntarily revealed that it was prosecuting these relators ' for violation of LSA-R.S. 14:91, said section being known and designated as: “Unlawful sales to minors”.

Relators each filed a motion to quash, attacking the legality and validity of the bills of information charging the offense named therein as not being in violation of LSA-R.S. 14:91, under which these prosecutions are brought.. The motions were overruled, and upon trials had each of the defendants was found guilty as charged and duly sentenced. The sentences imposed by the trial court were not such as would vest appellate jurisdiction in this court. Upon application by relators, we granted writs, with a stay order, to review the validity of the said proceedings had below.

The prohibition of LSA-R.S. 14:91 insofar as applicable and pertinent herein and under which convictions were obtained against relators, is: “ * * * the selling, or otherwise delivering for value by anyone over the age of seventeen of any intoxicating or spirituous liquors, * * * to any person under the age of twenty-one. ijí %

In each of the bills of .information, rela-tors are charged that they “ * * * did * * * sell and deliver for money * * * intoxicating and spirituous liquors, to-wit: beer to * * * a person eighteen (18) years of age”.

Relators contend (1) that there is no provision of law nor any jurisprudence of this state which provides or holds that beer is an intoxicating or spirituous liquor, the sale of which to persons under the age of 21 is prohibited by LSA-R.S. 14:91; arid (2) that no evidence whatsoever was presented by the State to show that the particular beverage sold by relators to the State’s witnesses was intoxicating or spirituous liquor, or of low or high alcoholic content or of any alcoholic content whatsoever.

The initial question presented to us is not whether beer is an intoxicant or an alcoholic beverage—a question of fact determinable only by the trial court—bpt whether it is an intoxicating or spirituous liquor, the sale of which to any person under the age of 21 is violative of the provisions of LSA-R.S. 14:91.

LSA-R.S. 26:285 specifically prohibits the sale of beverages of low alcoholic content to persons under the age of 18 years, and reads:

“No person holding a retail dealer’s, permit and no servant, agent, or employee of the permittee shall do any of the following acts upon the licensed premises:

“(1) Sell or serve beverages of low alcoholic content to any person under the age of eighteen years.” (Emphasis ours.)

Thus we have two prohibitive laws designating the ages of the persons to whom the sale of intoxicating or spirituous liquors and beverages of low alcoholic content cannot be sold. Both statutes are penal.

It has long been the unshaken rule of this State that penal statutes must be strictly construed and cannot be extended to cases not included within the clear import of its language.

In the case of State v. Truby, 211 La. 178, 29 So.2d 758, 767, with Justice Hawthorne as the organ of the court, we said:

“ ‘Unless an act can be brought within the meaning of the words of a criminal statute, it is not a crime, though it comes within the mischief sought to be remedied, and is of equal atrocity with the acts enumerated and denounced by the statute. State v. Fontenot, 112 La. 628, 36 So. 630; State v. Brinson, 149 La. 320, 89 So. 18.’”

In State v. Vallery, 212 La. 1095, 34 So. 2d 329, 331, with Chief Justice Fournet as the author, we said:

“ * * * ■ no, one can be held accountable, or subjected to criminal prosecution, for any act done by him unless and until that act has been denounced as a crime and has been made punishable in a statute that defines the act sought to be denounced with such precision’ the person sought to be held accountable -will know his Conduct is such that it falls within the purview of the act intended to be prohibited.” See, also, State v. Whitlock, 193 La. 1044, 192 So. 697; State v. Penniman, 224 La. 95, 68 So.2d 770.

It is equally well recognized that where there exists any doubt as to the interpretation of a statute upon which a prosecution is based, such doubt must be resolved .in favor of the accused. State v. Bowden, 220 La. 13, 55 So.2d 764.

In the enactment of our Revised Statutes the Legislature adopted certain principles of interpreting penal statutes as set forth in LSA-R.S. 14:3:

“The articles of this Code cannot be extended by analogy so as to create crimes not provided for herein; however, in order to promote justice and to effect tbe objects of the law, all of its provisions shall be given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision.” (Italics ours.)

Accordingly, to interpret intoxicating or spirituous liquor, “according to the fair import of their words, taken in their usual sense, in connection with the context,” we must examine the context and laws in pari materia upon the subject matter dealing with liquors. This practice of codal and statutory construction is in line with the spirit of our law as found in Article 17, LSA-Civil Code, which provides:

“Laws in pari materia, or upon the same subject matter, must be construed with a reference to each other; what is clear in one statute may be called in aid to explain what is doubtful in another.”

And LSA-R.S. 1:3 provides:

“Words and phrases shall be read with their context and shall be construed according to the common and approved usage of the language. Technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.
“The word ‘shall’ is mandatory and the word ‘may’ is permissive.”

In the recent case of State ex rel. Fudickar v. Heard, 223 La. 127, 65 So.2d 112, 114, Chief Justice Fournet, as the organ of the court, pointedly declared:

“It is to be remembered that the Revised Statutes constitute a single act of the Legislature, adopted as a whole; different sections should be regarded not as separate acts, but as simultaneous expressions of the legislative will, and all provisions should be construed together and reconciled whenever possible. In adopting the [LSA-] Revised Statutes of 1950, the Legislature incorporated both LSA-R.S. 42:371 and 42:373, giving equal dignity to each; we must take them as written, and not search through the history of the acts carried into the Revised Statutes for defects, when reading of the sections, disassociated from their history, presents no insuperable difficulty of construction. * * * ” See, also, City of Alexandria v. La Combe, 220 La. 618, 57 So.2d 206; Chappuis v. Reggie, 222 La. 35, 62 So.2d 92; State ex rel. LeBlanc v. Democratic State Central Committee, 229 La. 556, 86 So.2d 192.

Our law treating the subject matter of liquors and alcoholic beverages is found in Title 26 of our LSA-Revised Statutes, entitled “Liquors — Alcoholic Beverages”. The preliminary definition provision of LSA-R.S. 26:2, entitled “Alcoholic Beverage Control Law” provides in part:

“(1) ‘Alcoholic beverages’ means any fluid or solid capable of being converted into fluid, suitable for human consumption and having an alcoholic content of more than six per cent by volume, including alcohol.
“(2) ‘Liquor’ means any distilled or rectified alcoholic beverage.”

In the definition provision of LSA-R.S. 26:241, entitled “Collector of Revenue”, a clear distinction is made between liquor and malt beverage:

“(1) ‘Alcoholic beverages’ means any fluid or any solid capable of being converted into fluid, suitable for human consumption, and containing more than one-half of one per-cent alcohol by volume, including malt, vinous, spiritous, alcoholic or intoxicating liquors, beer, porter, ale, stout fruit juices, cider, or wine.
“(a) ‘Beverages of low alcoholic content’ means alcoholic beverages containing not more than six per cent alcohol by volume.
“(b) ‘Beverages of high alcoholic content’ means alcoholic beverages containing more than six per cent alcohol by volume.
“(2) ‘Liquors’ means all distilled or rectified alcoholic spirits, brandy, whiskey, rum, gin, and all similar distilled alcoholic beverages, including all dilutions and mixtures of one or more of the foregoing, such as liquors, cordials, and similar compounds.
s¡e ^ s]c #
“(5) ‘Malt beverages’ means beverages obtained by alcoholic fermentation of an infusion, or concoction, of barley or other grain, malt, and hops in water, including, among other things, ale, beer, stout, porter, and the like.”

For the purpose of levying taxes on alcoholic beverages a distinction is made between liquors and malt beverages in LSA-R.S. 26:341 as follows :

“(1) Liquors: at the rate of one dollar and fifty-eight cents per standard wine gallon.
* * * * * *
“(4) Malt beverages: at the rate of ten dollars per barrel containing not more than thirty-one standard gallons and at a like rate for fractional parts of a barrel.”

Thus we see that the words “alcoholic beverage” as defined by LSA-R.S. 26:241 are employed in Title 26 of the Revised Statutes to designate an all-inclusive term covering all alcoholic beverages. 'Manifestly, the Legislature intended a definite meaning to be ascribed to the term “beer” as op-posed to “intoxicating or spirituous liquor”, and when an all-inclusive term was necessary it employed the term “alcoholic beverages”. It is equally manifest that when the Legislature adopted LSA-R.S. 14:91, the term “beer” was and is intended to be exclusive of intoxicating or spirituous liquor.

In other sections of Title 26 of our LSA-Revised Statutes there are laws relating and pertaining to alcoholic beverages which include all beverages of every nature, kind and description containing alcohol of more than 3.2% by weight. From these sections it is clear that the words “alcoholic beverages” include beer as well as intoxicating or spirituous liquors. It is equally clear that the terms “beer” and “intoxicating or spirituous liquor” are mutually exclusive.

As aforestatéd, the sale of beverages of low alcoholic content to persons under the age of 18 years is specifically prohibited. LSA-R.S. 26:285. The penalty for violating this prohibition of our law is set forth in LSA-R.S. 26:521, which violation is sufficient cause for the suspension or revocation of a retail dealer’s permit.

It is apparent, therefore, that there is a specific prohibition against and the penalty is provided for those cases where a beer dealer, his servant, agent or employee sells beer to a person under the age of 18 years. Conversely, there is no violation of the specific law dealing with the specific offense of selling beer to a person under the age of 18 and, therefore, no penalty can be imposed when beer is sold to persons 18 years of age or over.

We therefore conclude that the prohibition against the sale of liquors con-’ tained in LSA-R;S. 14:91 does not include the sale of beer, a malt beverage, to a person 18 years of age or over. It necessarily follows that the bill of information charges no offense denounced by our statutes.

In view of the foregoing conclusions reached by us, there is no necessity to consider or determine the second issue raised by relators as to the nonexistence of evidence.

Accordingly, it is ordered, adjudged and decreed that the convictions and sentences in these consolidated cases are reversed and set aside and the respective defendants discharged.

McCALEB, Justice

(concurring).

I entertain doubt that the definitions set forth in R.S. 26:2 and R.S. 26:241 can be employed for the purpose of determining the scope and meaning of the phrase “of any intoxicating or spirituous liquors” as used in the penal'law, R.S. 14:91. Since the definitions set forth in the Alcoholic Beverage Control Law, R.S. 26:1-191, and those of Chapter 2 of Title 26 of the Revised Statutes are specifically restricted “for the purposes of this Chapter”, the doctrine that laws in pari materia must be construed together may not be applicable.

However, I am convinced that R.S. 14:91 does not make it unlawful to sell beer to minors under the age of 21. The conduct denounced, so far as applicable here, is the sale to a minor “of any intoxicating or spirituous liquors”. It is my opinion that the conjunction "or”, as used in the statute, is synonymous with “to wit” and that, therefore, the word “spirituous” which follows it is descriptive ,of , the kind of intoxicating liquors the sale of which to minors is forbidden. And clearly beer is not a spirituous liquor. If the Legislature had intended to make criminal the sale to minors of all intoxicating liquors, including those of small alcoholic content, such as beer, there was no reason for the insertion of the words “or spirituous” between the words “intoxicating liquors” as it is undeniable that the term “intoxicating liquors” embraces spirituous liquors. Thus, the conjunction “or”, as used in the statute, cannot be viewed as an alternative, i. e., as defining another illegal type of sale, but rather as a disjunctive particle employed to clarify the meaning of tlie word “intoxicating”, as applied to liquors. Used in this sense, “or” means “in other words”, “to wit” or “that is to say”. See Black’s Law Dictionary, 3rd Ed., page 1296 and Peck v. Board of Directors, 137 La. 334, 68 So. 629.

I concur in the decree.

HAWTHORNE, Justice

(dissenting).

The holding of the majority of the court that beer is not an intoxicating liquor within the meaning of Article 91 of the Criminal Code, R.S. 14:91, is clearly erroneous, and I cannot subscribe to it. Article 91 provides :

“Unlawful sales to minors is the selling, or otherwise delivering for value by anyone over the age of seventeen of any intoxicating or spirituous liquors * * * to any person under the age of twenty-one. * * ” (All italics in quoted matter are mine.)

The majority evidently believe that the phrase “any intoxicating or spirituous liquors” as used in this statute has a doubtful meaning; otherwise they would have no right, in order to determine the meaning of the phrase, to invoke Article 17 of the Civil Code, which provides:

“Laws in pari materia, or upon the same-subject matter, must be construed with a reference to each other; what is clear in one statute may be called in aid to explain what is doubtful in another.”

To determine the so-called doubtful meaning of the phrase “any intoxicating or spirituous liquors”, however, the majority do not apply the rule of interpretation found in Article 3 of the Criminal Code, R.S. 14:3, although professing to do so. Instead they depart entirely from the Criminal Code itself and proceed to examine Chapters 1 and 2 of Title 26 of the Revised Statutes, particularly R.S. 26:2 and 26:241, which they say are in pari materia with Article 91 of the Criminal Code.

It is quite true that under R.S. 26:2 and 26:241 the definition of the term “liquor” does not include beer, for liquor is defined as “any distilled or rectified alcoholic beverage”, and “malt beverages” are defined as “beverages obtained by alcoholic fermentation of an infusion, or concoction, of barley or other grain, malt, and hops in water, including, among other things, ale, beer * * * and the like”. The majority, however, do not mention the fact that in each of the very sections in which these definitions are given the statute says "For the purposes of this Chapter, the following terms have the respective meanings ascribed to them in this Section * * * ”, which obviously means that these definitions of the terms “liquor” and “malt beverages” are restricted to Chapters 1 and 2 of Title 26 of the Revised Statutes and cannot be used in interpreting the articles of the Criminal Code and other statutes of this state.

Moreover, even if the definitions of the terms found in R.S. 26 :2 and 26:241 were not restricted by the very provisions of these sections, it would-be improper to apply the rule of interpretation set forth in Article 17 of the Civil Code. Article 91 of the Criminal Code is not in pari materia with Chapters 1 and 2 of Title 26 of the Revised Statutes of 1950, because' the scope, aim, and purpose of Article 91 and of these chapters of Title 26 are distinct and unconnected. Article 91 is found in the Criminal Code and 'deals with offenses affecting the liealth and morals of minors. As the State in brief aptly says, Chapter 1 of Title 26 “has for its purpose the granting of authority to the Alcohol Beverage Control Board, now transferred to the Department of' Revenue, to regulate and supervise the traffic in alcoholic beverages. Chapter 2 •of said Title 26 has for its purpose the regulation of traffic in alcoholic beverages, the issuance of permits and license for the sale thereof, the collection of tax on the sale of alcoholic beverages, the causes for the suspension or revocation of licenses and permits and restrictions under which the dealer may operate”.

An act which incidentally refers to the subject dealt with in another act is not in pari materia with that other act if its scope and aim are distinct and unconnected. Malone v. Cannon, 215 La. 939, 41 So.2d 837.

The only rule needed for the interpretation of the phrase “any intoxicating or spirituous liquors” is that found in Article 3 of the Criminal Code itself, which provides :

“The articles of this Code cannot be extended by analogy so as to create crimes not provided for herein; however, in order to promote justice and to effect the objects of the law, all of its provisions shall he given a genuine construction, according to the fair import of their words, taken in their usual sense, in connection with the context, And with reference to the purpose of the provision.”

With this rule in mind let us now see what is a fair import of the words “intoxicating or spirituous liquors”, taken in their usual sense, in connection with the context, and with reference to the purpose of the provision of the statute.

Black’s Law Dictionary defines “intoxicating liquor” as follows:

“Any liquor used as a beverage, and which, when so used in sufficient quantities, ordinarily or commonly produces entire or partial intoxication; any liquor intended for use as a beverage or capable of being so used, which contains alcohol, either obtained by fermentation or by the additional process of distillation, in such proportion that it will produce intoxication when imbibed in such quantities as may practically be drunk.”

In defining “beer” this dictionary notes:

“In its ordinary sense, it denotes a beverage which is intoxicating * * * ; and is within the fair meaning of the words ‘strong or spirituous liquors,’ used in the statutes on this subject. * * * ”

See also State v. Coco, 152 La. 241, 92 So. 883; cf. State v. Scott, 221 La. 643, 60 So.2d 71.

To me it clearly follows that the phrase “intoxicating or spirituous liquors” means any beverage or liquid capable of producing ■intoxication; and this is a question of fact rather than ah issue of law. In the instant case evidence was introduced in the trial court to show that the beer sold by these defendants was in fact intoxicating, and that should end the matter.

The conclusion of the majority that beer is not included in the term “intoxicating or spirituous liquors” as used in Article 91 has a far reaching effect. 'There are numerous •articles of the Criminal Code and other statutes which use the term “intoxicating liquor”, and this decision will partially or completely destroy the object and effectiveness of these statutes. See, for example, Articles 92 and 98 of the Criminal Code, R.S. 14:92 and 14:98; R.S. 18:333, 366, 367, and Í181; R.S. 23 :311; $.S. 29:30.

To illustrate, Article 92 of the Criminal Code includes in the definition of contributing to the delinquency of juveniles the permitting óf any child under the age of 17 to “Visit any place where spirituous or intoxicating liquors are the principal commodity sold or given away”. Where beer only is sold, under the majority holding in the present case there would be no violation of this statute.

Article 98 of the Criminal Code makes it an offense for a person to operate a vehicle while “under the influence o¡f intoxicating liquor”. .Under the majority holding, no offense would be committed if someone operated a vehicle while intoxicated on beer.

R.S. 18:333 provides that no polling place shall be established or election held “in any place where intoxicating liquors are dispensed”. R.S. 18:366 provides that “All places where liquors are kept, within one mile of a ward or precinct wherein an election is being'held, shall be closed during the day of the election until twelve midnight”. R.S. 18:367 provides that “No one shall have in his possession any intoxicating liquor in a polling place”. Under the majority holding beer would be excluded from the purview of these election statutes.

R.S. 23:311 prohibits the employment of ■ a female in “any place of amusement where intoxicating, liquors are made or sold”, and R.S. 29:30 permits the commanding officer of military forces of this state on active duty to “order the .closing of any place where * * * intoxicating liquors are sold”. Apparently the majority opinion would permit women to be employed where beer alone is sold, and would prohibit the commanding officer of the military from ordering the closing of an establishment which sells only beer.

These illustrations make it abundantly clear why the lawmakers expressly limited the definition of “liquor” given in Chapters 1 and 2 of Title 26 to the provisions of those chapters.

As to the concurring opinion in the in'stant case, its reasoning is ingenious, but in my opinion it is overly technical and fundamentally unsound, Moreover it violates the rule of interpretation set out in Article 3 of the Criminal Code. In its usual sense the conjunction “or” is a disjunctive particle used to express an alternative or to give a choice of one among two or more, things. See Black’s Law Dictionary, 3rd Ed., page 1296.

Furthermore, the reasoning in the concurring opinion can easily be reduced to an absurdity. The very next article of the Criminal Code, Article 92, which defines the crime of contributing to the delinquency of juveniles, contains the phrase “spirituous, or intoxicating liquors” in paragraph (3). Following the reasoning of the concurring opinion, are we to deduce that this means-“spirituous, to-wit intoxicating liquors” ? If so, then apparently the Legislature thinks the two terms are synonymous, and therefore the term “spirituous liquor” must include beer.

I respectfully dissent.

      . State of Louisiana v. O. H. Viator and Mrs. O. H. Viator; State of Louisiana v. O. H. Viator and Mrs. O. H. Viator; State of Louisiana v. M. J. Langdon and Mrs. Viola M. Langdon; State of Louisiana v. M. J. Langdon and Mrs. Viola M. Langdon; State of Louisiana v. Joe Carlino, Mrs. Joe Carlino and Delois Meshell; State of Louisiana v. Joe Carlino, Mrs. Joe Carlino, and Delois Meshell.

      . R.S. 26:641, 681, 682, 683, 711, 712, 713, 714, 715, 741.

      . “ * * * whoever violates any provision of this Chapter shall, for the first offense, be fined not less than one hundred dollars nor more than five hundred dollars or imprisoned for not less than thirty days nor more than six months, or both. * * *»

      . Defined in LSA-R.S. 26:241 to be a malt beverage of low alcoholic content.

      . As defined in LSA-R.S. 26:241.

      . Ibid Note 5.

      . R-S. 26:2(2).

      . R.S. 26:241(5).