text:
    Morris A. FISHER and State of Florida, Appellants, v. BOARD OF COUNTY COMMISSIONERS OF DADE COUNTY, Florida, et al., Appellees.
    Supreme Court of Florida. En Banc.
    Jan. 6, 1956.

      'George N. Jahn, Miami, for Morris A. Fisher.
    George ‘ A. Brautigam, Miami, for the State.
    Hudson & Cason, Francis G. Rearick, Miami, and Mitchell, Pershing, Shetterly & Mitchell, New York City, for appellee.
   THORNAL, Justice.

The State of Florida and Fisher, a taxpayer who became a party by the filing of an answer, appeal from a decree validating an issue of bonds in a special statutory proceeding. -

Ostensibly, pursuant to Chapter 27490, Laws of Florida, 1951, as amended by Chapter 28998, Laws of Florida, 1953, both local Acts, the Golden Shores Special Improvement Service District was created in a rural area of Dade County with authority to construct and maintain certain public improvements including the paving and repairing of streets and the providing, of street lighting. It was provided that construction of such street improvements would be financed from the proceeds of the sale of bonds which would be liquidated in the manner hereinafter described. The statutes mentioned authorized the creation-of “Special Improvement Service Districts” in Dade County. In accordance with requirements of the Acts, petitions were duly filed with the Board of County Commissioners of Dade County requesting the establishment of the District, describing the improvements desired and petitioning “for the levy of special assessments to pay the cost” of the improvements and special services. The County Commissioners referred the petition to the County Engineer for study and recommendations as required by the statutes. A report of the engineer was filed and the County Commissioners thereupon adopted an appropriate resolution declaring the District to be in existence, providing for the construction and maintenance of the street paving improvements, and for street lighting to be accomplished through a contract with a power company at an annual fee, and generally approving the project, including the issuance of so-called “special obligation bonds” in the amount of $75,000, all subject to the approving vote of qualified freeholders to be obtained in a referendum likewise required by the Acts. The record shows that 134 persons were qualified to participate in the referendum, that 93 actually voted and that all votes cast were in favor of the proposal.

The instant appeal is from a final decree entered in the special validation proceeding in the Circuit Court authorized by the Acts cited, and in many respects similar but in some respects dififering from the general statutory validation proceeding set out in Chapter 75, F.S., F.S.A. No .question is raised by the appeal as to the validity of the special validation proceeding outlined by the local Act. We, therefore, do not at this time subject it to the test of Section 20, Article III, of the Florida Constitution, F.S.A., which prohibits special acts “regulating the practice of courts of justice, except municipal courts”. The decree of the trial Court purporting to validate the bonds must be reversed for other reasons.' ' The questions hereafter discussed were raised by the several answers addressed to the petition by appellant.

Aside from the resolutions of the Board of County Commissioners supported by the report of the County Engineer, no testimony was offered purporting to show the need or justification for the proposed improvements nor was any evidence other than the opinion of the Engineer submitted to sustain the conclusion reached by the County Commissioners that the real property in the District would be “specially benefited” in the manner announced by the resolutions and the final decree.

The crux of the problem will be found in Sections 7 and 9 of the resolution of the Board of County Commissioners which approved the proposal and which provided for its financing as follows:

“Section 7. The maximum amount of the special obligation bonds of said special improvement service district required to pay the cost of said street paving is $75,000. The estimated amount required annually to pay the principal of and the interest on such bonds is $10,000, the estimated amount required annually to maintain and repair said street paving is $2,218.05, and the estimated amount required annually to provide said street lighting is $930.00, being a total estimated amount of $13,148.05 required to be assessed annually upon all real property within-said district (including homesteads) to finance said street paving and street lighting.
“Section 9. For the prompt payment of the principal of and the interest on such bonds, there shall be specially assessed in each year upon all real property within said Golden Shores Special Improvement Service District in Dade County, Florida (including homesteads), in proportion to the assessed valuation of such real property, an amount sufficient to pay the principal of and the interest on said bonds as the same shall fall due and to provide reserves therefor. There shall also be specially assessed in each year upon all real property within said district (including homesteads), in proportion to the assessed valuation of such real property, amounts sufficient to maintain and repair said street paving and to provide said street lighting. Such special assessments shall be extended and collected at the same time and in the same manner as County taxes are levied and collected. 'Such special assessments are hereby found, determined and declared to be in proportion to the special benefits such real property will receive from said street paving and street lighting, and such special assessments will not in any case be in excess of such special benefits.” (Emphasis added.)

While the form of the proposed bond is not included in the resolution, it should be noted that it is provided that the principal of and interest on such bonds shall be paid by a special annual levy'upon all real property within the district, including homesteads, “in proportion to the assessed valuation of such real property”. It is further provided that maintenance and repair of the street paving and provision for street lighting shall be financed by a similar annual assessment against all property, including homesteads, again “in proportion to the assessed valuation of such real property”. While the cost of annual maintenance and street lighting is “estimated” there is no restriction that it will not vary upward with a corresponding increase in the annual “assessment” based on ad va-lorem valuations in future years. Nothing could be more typical of pure ad valorem taxation. The question readily appearing is whether a special improvement district can be created with authority to pave and repair streets and provide street lighting and assess the costs and maintenance thereof against all real property within the district, including homesteads, entirely on the basis of the ad valorem valuation of such .real property without particular regard to the “special benefits” accruing to such property from the particular improvements.

Appellee attempts to justify an affirmative answer on the basis of the conclusions reached by the County Engineer which conclusions were submitted to the Board of County Commissioners in the Engineer’s report and which constituted the basis for action by the County Commissioners. The salient aspect of the report of the County Engineer will be found in Sections 6-01 and 6-02 thereof which we quote as follows :

“6.01. Distribution of Costs — The project provides for different degrees of improvement' on different streets, and therefore the costs to the individual lots abutting on some streets will be higher than the costs which should be levied against other lots not benefiting as much by the improvements. The costs of street lighting and additional storm sewer outlets should be levied principally against the lots in the project from south of 188th Street to what would normally be the depth of the first tier of lots north of 192nd Street, but not to exceed ISO feet, in-, elusive, because they will receive most of the benefit and will all be benefited equally by these facilities. It is assumed that additional storm outlets between 192nd and 195th Streets will be provided by the developers in that area which is as yet undeveloped, and will be paid for by the developers.
“An additional outlet at 188th Street will also be provided later by developers of property south of 188th Street. In general, it is assumed that costs of gutters and street work will be assessed principally against the properties directly affected, and in every case in proportion to benefits received.
“Special assessments upon all real property within the district (including homesteads) shall be in proportion to the assessed valuation of such real property, and in the opinion of the County Engineer this is in proportion to the benefit to be received.
“6-02. Estimated First Cost and Annual Charges — Estimated costs are shown in Table 1, following. No exact evaluation of benefits has been made. However, it is the opinion of the County Engineer that improvements and services petitioned for will be of special benefit to all real property within the proposed district, and that the costs of providing such improvements and special services will not be in excess of such special benefit.” (Emphasis added.)

The weakness in the position of the ap-pellees is revealed by the report upon which they rely. An examination of the quoted portions of the report shows that “the project provides for different degrees of improvement on different streets, and therefore the costs to the individual lots abutting on some streets will be higher than the costs which should be levied against other lots not benefiting as much by the improvements.” The exact nature of the difference of “degrees of improvement” on different streets is not shown, nor does the record reveal the relative ad valorem valuations on streets where the costs will be higher as contrasted to those on the streets where the costs will be lower and whether the distribution of costs has been adjusted accordingly. The report further suggests that the .costs of lighting and additional storm sewer outlets be levied principally against subdivided lots in a certain section of the district and not against an un-subdivided portion in the north end of the district known as “Government Lot 5” because the subdivided lots “will receive most of the benefit and will all be benefited equally by these facilities”. Although the County Engineer submits the “opinion” that special assessments on all real property within the district, including homesteads, should be in proportion to “the assessed valuation of such real property” because in his opinion “this is in proportion to the benefit to be received”, nevertheless, in Section 6-02 of the report it js readily admitted that “no exact valuation of benefits has been made”.

It is perfectly obvious from an examination of the record that it presents an effort to avoid the homestead tax exemption provisions of Section 7,’ Article X, of the Florida Constitution, which reads a-s follows :

“Every person who has the legal title or beneficial title in equity to real property in this State and who resides thereon and in good faith makes the same his or her permanent home, or the permanent home of another or others legally or naturally dependent upon said person, shall be entitled to an exemption from all taxation, except for assessments for special benefits, up to the assessed valuation of Five Thousand Dollars on the said home and contiguous real property as defined in Article 10, Section 1, of the Constitution, for the year 1939 and thereafter. * * * ” (Emphasis added.)

We have quoted from the Constitution as it was amended in 1938. Prior thereto and as originally approved, the phrase “except for assessments for special benefits” read “other than special assessments for benefits”. While the instant case does not require an examination into the technical differences that might result from the change in the language of the organic law in order to distinguish earlier cases, nevertheless, we must measure the proposal before us by the standard established in the Constitution as now written. In other words, in the light of the record before us, can the annual ad valorem assessments against all real property, including homesteads, be construed as assessments “for special benefits” to the homesteads involved so as to subject them to the levy provided for by the resolution of the County Commissioners and approved by the validation decree?

We are not unmindful of the conclusion submitted by the County Engineer that in his opinion the benefits to the property involved would, be in proportion to the assessed valuation of .such property. However, in the same report it is admitted that no exact evaluation of benefits has been made. In fact, except for the bald conclusion submitted there is nothing in this record to show any actual attempt to evaluate the benefits to be received by the various properties abutting the streets to be improved. The unsupported conclusion of the County Engineer under the circumstances revealed in this record regardless of his ability and integrity cannot be accepted as determinative of the constitutional' question involved.

In Atlantic Coast Line R. Co. v. City of Lakeland, 94 Fla. 347, 115 So. 669 at page 675, this Court through the late Mr. Justice Ellis held:

“The question of whether property abutting upon a street is in fact specially benefited by the paving of the street does not rest exclusively in the judgment or upon the ‘ipse dixit’ of the municipal officer or officers, if there are more' than one, who asserts authority Over municipal affairs, but it is a question of fact to be ascertained and established as any other fact, and the proportion of the cost to be assessed against a particular lot must bear a reasonable and fair relation to the special benefits which actually accrued.” (Emphasis added.)

In the same opinion it was pointed out that the extent to which property abutting upon a paved street may be said to be “specially benefited” by the paving depends upon a number of circumstances such as the use to which the property is put, whether it is devoted to business or residences and the reasonable' cost of the improvement as related to the particular property. A “special benefit assessment” must be levied according to the particular benefits received by the real property in question and in order to sustain the assessment, there must be some proof of the benefits other than the dictum of the governing agency. The actual cost of the improvement must be directly related to the “special benefit” alleged to be received by the property improved.

The proposal before us involves the issuance of bonds in the total amount of $75,-000, the proceeds of the sale of which will be used for street paving and drainage. It is provided that an annual “assessment” will be levied against all real property in the district, including homesteads, on an ad valorem basis in an amount sufficient to pay $10,000 each year for principal and interest on the bonds, an estimated $2,218.05 annually to maintain and repair streets and an estimated $930 annually to be paid to the power company for street lighting. Attempt is made to justify the annual “assessment” on the opinion of the County Engineer that in his view all property in the district will benefit in proportion to the ad valorem valuation of the property as it fluctuates from year to year despite the fact that he obviously has no knowledge at all as to what such ad valorem valuations will be in future years, and without any specific determination whatsoever as to the evaluation of benefits to particular parcels that might result from the proposed improvements. In fact such evaluation admittedly was not made.

In all cases assessments against benefited property must be fairly apportioned and lawfully made. See Parrish v. Hillsborough County, 98 Fla. 430, 123 So. 830. An assessment for special benefits must be “according to” or must have a “relation to” or some “reference to” the special benefit resulting to the particular property assessed in order to bring it within the exceptions to the homestead exemption prescribed by Article X, Section 7, of the Florida Constitution.

The ad valorem valuations of the property in the district do not appear anywhere in the proceedings leading up to the authorization of the issuance of bonds nor does any reference to such valuations appear in the record in the trial Court. Furthermore, we find no detailed statement or itemization of the special benefits allegedly to result from the proposed improvement. In considering this case we, like the Court below, have before us only the abstract concepts of ad valorem valuation and alleged special benefits with which to deal and, this, based entirely on the bald opinion of the County Engineer without factual data to support the conclusion. Neither logical nor eyidentiary support for a relationship between ad valorem valuation and special benefits’ is presented by this record and the exhibits filed by the appellee reveal the weakness of its contention to the contrary. It is impossible to determine from this record the amount of the assessment against any particular property, the extent of the benefit from the improvement or the cost of installing the improvement.

Actually, the inherent inequality between ad valorem valuation and special benefits is illustrated by the report of the county official upon which the appellee relied. For example, we are not advised of the assessed valuation of so-called “Government Lot 5” which is included in the district or. the ratio between its valuation and those of the platted lots in the remainder of the district, yet, by the report of the engineer relied upon it is specifically pointed out that the “benefits” to be received by Government Lot 5 differed from the benefits to be enjoyed by the platted lots in the remainder of the district. The report recommended that it ought to be assessed on a different basis. Nonetheless, it is required that this unplatted parcel (Government Lot 5) be assessed on the identical basis as the platted lots which abut upon streets to be paved and which admittedly enjoy greater benefits from the proposed improvement. This merely illustrates the fallacy in the whole proposition.

When we subject the proposed “assessment” suggested by this record to the test announced by the precedents, we cannot avoid the conclusion that it is purely and simply an ad valorem tax and that it lacks all the elements of an “assessment for special benefits” within the contemplation of the constitutional provision that permits such a levy against homesteads although it is clothed with all of the elements of ad valorem taxation. In Klemm v. Davenport, 100 Fla. 627, 129 So. 904, 907, 70 A.L.R. 156, we distinguished a “tax” from a “special assessment” in the following language:

“A ‘tax’ is an enforced burden of contribution imposed by sovereign right for the support of the government, the administration of the law, and to execute the'various functions the sovereign is called on to perform. A ‘special assessment’ is like a tax in that it is an enforced contribution from the property owner, it may possess other points of similarity to a tax, but it is inherently different and governed by entirely different principles. It is imposed upon the theory that that portion of the community which is required to bear it receives some special or peculiar benefit in the enhancement of value of the property against which it is imposed as a result of the improvement made with the proceeds of the special assessment. It is limited to the property benefited, is not governed by uniformity, and may be determined legislatively or judicially. * * * ”

In Crowder v. Phillips, 146 Fla. 428, speaking through Mr. Justice Terrell, we observed that “assessments for special benefits” or special assessments, are peculiar to the premises benefited by some local improvement, such as, paving, draining or grading. They are direct, proximate and reasonably certain of computation and must add something to the use or sale value of the premises benefited above the ordinary value. In the same case On rehearing 146 Fla. 440, 1 So.2d 629, 631, Mr. Justice Thomas suggested a conclusion appropriate to the matter before us when he observed that “It is clear that the tax to be imposed under the provisions of the law under attack is ad valorem on all real and personal property as distinguished from assessments for special benefits to the real property located in the district.”

In Whisnant v. Stringfellow, Fla.1951, 50 So.2d 885, we held that the benefits to be enjoyed by the people of a county from the operation of a county health unit would not support an ad valorem levy against homesteads even though made under the guise of “an assessment for special benefits”.

In City of Fort Lauderdale v. Carter, Fla.1954, 71 So.2d 260, we held that the City of Fort Lauderdale could not make an ad valorem levy against homesteads to acquire revenue to defray the expenses of garbage, waste and trash collection, despite the fact that it was seriously contended that such a service was of direct and substantial benefit to the homesteads served. We cannot, with logic, distinguish between the Fort Lauderdale proposal to collect a tax from homesteads in order to raise money to dispose of garbage and the proposal before us to collect a tax from homesteads to light the streets of the community. Undoubtedly, both services are benefits to the community and to that extent all homestead owners enjoy some benefits but neither service is of a peculiar benefit to a particular homestead to the extent that it would support an ad valorem levy against the homestead in the form of a so-called “assessment” within the framework of our Constitution.

With particular reference to the provision for street lighting in the case before us, but equally applicable to the other aspects of the proposal, the following language from City of Fort Lauderdale v. Carter, Fla.1954, 71 So.2d 260, 261, is appropriate, to wit:

“In the instant case the tax is laid against all the real and personal property in the city in accordance with its value. As respects real property, no distinction is made between occupied or vacant properties, or, if occupied, whether the property is being used for commercial or residential purposes. Moreover, the tax imposed does not attempt to bear any proportionate relationship to the cost of the service to be rendered as to any particular property. Furthermore, no special or peculiar benefit results to any specified portion of the community or the property situated therein. It seems clear, therefore, that the charge levied against all real and personal property in the city is a general tax imposed for the support of the government and not an assessment against particular properties for special benefits. The levy, therefore, is without constitutional authority insofar as it applies to homestead property.” (Emphasis added.)

Perhaps' the true nature of the “assessment” here involved can best be revealed by a typical illustration of the contrast between an ad valorem tax and an assessment for special benefits. The typical ad valorem levy is the annual imposition for the operation of the government the amount of which is measured by the budget adopted, the assessed valuation of taxable property and the levy (usually in mills) against the taxable property sufficient to produce the amount necessary to meet the budget. The ad valorem tax on a particular parcel is apt to vary from year to year and it will fluctuate annually in proportion to changes in assessed valuation or the amount of the millage.

An “assessment for special benefits” ©n the other hand is customarily a fixed amount assessed against a particular parcel of land arrived at by totaling the cost of a public improvement and apportioning it against abutting property specially benefited usually on a front foot or acreage basis without regard to ad valorem valuation of the land. While it is most often payable in annual installments, the amount of such installments is usually fixed at the time the initial levy is made and they do not fluctuate from year to year as the result of changes in ad valorem valuation or increases in the cost of maintaining the improvement.

Admittedly there are variations of these typical illustrations but when the “assessment” under consideration is measured by the illustrations it becomes crystal clear that the imposition here involved is purely and simply an ad valorem tax and nothing else.

It is not to be understood from this opinion that we are holding that such homestead property as there may be in the Golden Shores Special Improvement Service District may not be assessed for special benefits in the true sense or that most of the property in the district may not receive some benefit from street improvement and street lighting, but the “special benefits” must be made to appear and there must be adequate factual data in the record to support the conclusion that the homesteads involved have received the peculiar special benefits charged against them as required by our Constitution. From the cases cited the principle is clear that the framers of the constitutional exemption and the people who approved it manifestly intended that an imposition based on assessed valuation whether for local improvement or general government is one from which homesteads are exempt, while an assessment bearing a logical relation to direct “special benefits” is one to which homesteads may be subjected. See City of Orlando v. State, Fla. 1953, 67 So.2d 673.

Holding as we do that the financing device offered by the record contravenes the organic prohibition against ad valorem levies upon homesteads, we conclude that it is unnecessary to dispose of the contention that'the title to the Act involved is defective for failing to indicate that homesteads would be affected by the body of the Act. As to the levy of the annual assessment fofc maintenance of the streets, it must lik£I wise fall for the reasons announced far invalidating the annual levy for liquidation of the bond principal and interest.

A further reason for disapproving the plan of financing presented by this appeal is that if the annual ad valorem levies proposed to be made are valid “assessments for special benefits” in the constitutional sense, then such levies could actually be made without the necessity of an approving vote of the freeholders. See City of Orlando v. State, supra. While we realize that a referendum was required and was held in the case before us, nevertheless, if the assessments proposed to be made are valid “assessments for special benefits,”1 such referendum added nothing at all to their constitutionality because a referendum is not a necessary condition precedent to a valid “assessment for special benefits” unless specifically required by statute. Therefore, if the so-called assessments before us are granted the benefit of judicial approval, such assessments generally could be made without the necessity of a referendum and this in turn would open the door to unlimited programs for financing public improvements by indirectly employing the ad valor-em taxing power under the guise of “assessments for special benefits” in direct violation of Article IX, Section 6, of the Florida Constitution. It would mean that by using the ad valorem valuation type of assessment here employed and the simple expedient of declaring all property in a municipality or other taxing unit to be “benefited” by a proposed improvement, every type of real estate, business, commercial, residential or vacant, could be subjected to the exercise of the ad valorem taxing power for the liquidation of a bonded debt without compliance with the requirements of Article IX, Section 6, regarding the necessity for the approval of freeholders affected by an issue of bonds.

We take judicial notice of the fact that Florida is one of the fastest growing states in the nation. It is consistent with the knowledge that we have that a major factor in this growth is contributed by the attractive ad valorem tax climate engendered by provisions written into our Constitution b'y the people themselves relating to controls on the funding of long range public debts, the pledging of the ad valorem taxing power and the protection of homesteads against burdensome taxation. To some it might appear that a concession should be made to those interested in the instant project regardless of its constitutionality because two-thirds of them have expressed a willingness to pay the bill. However, the fact remains that we obviously cannot place the stamp of approval on so far-reaching a proposal that is so completely inconsistent with the requirements of our Constitution, and which contains such patent potentials for literally wrecking the organic safeguards against unlimited ad valorem taxation which the people have inserted in our fundamental law.

From experience gained over the years as a City and County Attorney, the writer is thoroughly cognizant of the difficulties attendant upon financing public improvements resulting from the prohibitive provisions of our Constitution relating to the exemption of homesteads from taxation as well as the problem" of obtaining freeholder approval of general obligation bond issues. Nevertheless, we are not inclined to whittle away at the organic law by a process of judicial erosion that ultimately could completely destroy the beneficent safeguard which the people voted to themselves when they approved the constitutional amendment in question. Although admittedly from the record before us the majority of the homestead owners involved appear to be willing to pay this particular levy, nonetheless, we are compelled to observe that this is one situation where our Constitution does not permit a majority to impose its will upon a minority. Even though the proposed bond issue is relatively small, the approval of the principle of financing here suggested could, and likely would, open a floodgate of financing schemes and devices that would eventually eliminate for all practical purposes the prohibition against taxing homesteads up to a valuation of $5,000. We are bound by the organic law and it is not within our province to ignore it despite the fact that in this particular instance the people who would “pay the piper” apparently wish us so to do.

The decree appealed from is, therefore, reversed.

DREW, C. J., and THOMAS, HOB-SON, ROBERTS and BUFORD, JJ.,-concur.


source: Caselaw Access Project

author: THORNAL, Justice.

license: Public Domain

text:
    Richard Harry SNELL, Appellant, v. Nathan MAYO, as Prison Custodian of the State of Florida, Appellee.
    Supreme Court of Florida. Division A.
    Jan. 6, 1956.
    See, also, Fla., 80 So.2d 330.
    James D. Welch, Fort Lauderdale, for appellant.
    Richard W. Ervin, Atty. Gen., and Jack A. Sudduth, Asst. Atty. Gen., for appellee.
   THORNAL, Justice.

Appellant seeks reversal of an order of the Circuit Judge dismissing a writ of ha-beas corpus and remanding him to the custody of appellee as prison custodian.

Pursuant to his plea of guilty, appellant was on September 5, 1951, adjudged guilty and by the Judge of the Criminal Court of Record of Broward County sentenced to five years imprisonment in the state prison for theft of an automobile.

On November 9, 195,4, while in prison, appellant petitioned this court for a writ of habeas corpus on the ground that at the time of his trial and sentence he was a minor of fifteen years and that his parents were not notified of the charge against him prior to trial, as required by Section 932.38, Florida Statutes, F.S.A.; hence, he contends, his sentence and subsequent incarceration were illegal.

The writ issued and was made returnable before Honorable Lamar Warren, Circuit Judge, for appropriate hearing and disposition. Hearing was held. The writ was dismissed and the petitioner remanded to custody. Appeal comes to this court from this order.

The evidence developed that the Criminal Court Clerk, by regular mail, sent a notice to the father and step-mother of petitioner advising them of the charge and time and place of arraignment. The uncle of the petitioner visited him twice before arraignment and advised him that he, the uncle, had notified the father of the charge against the boy, although petitioner denies any such conversation. Petitioner says he was fifteen years old when sentenced. The prosecuting officials say he told them he was seventeen.

On appeal petitioner contends that there was non-compliance with Section 932.38, F.S., F.S.A., which reads:

“When any minor, not married, may be charged with any offense and brought before any of the courts, including municipal courts, of this state, due notice of such charge prior to the trial thereof shall be given to the parents or guardian of such minor, provided the name and address of such parent or guardian may be known to the court, or to the executive officers thereof. In the event that the name of such parent or guardian is not known or made known to the court or executive officer or cannot be reasonably ascertained by him, then such notice shall be given to any other relative or friend whom such minor may designate.
“The service of notice required by this section to be given to the parent, or guardian or other person provided herein may be made as the service of summons ad respondendum is made; or in the event such parent, or guardian or other person provided herein may be beyond the jurisdiction of the court, then, and in that event, service may be made by registered mail, or by telegram, and return of such service shall be made by the executive officer of the court in the same manner as returns are made upon summons ad responden-dum.”

It is contended that there was no proof of mailing the notice by registered mail or service thereof in the manner of service of a summons.

An examination of the cited statute will reveal that the only mandatory requirement is that due notice be given. The method of giving the notice suggested by the law is merely directory. No particular method is mandatorily prescribed. We have held that actual knowledge by the parents of the existence of the charge prior to trial is acceptable as the due notice required by the statute. See Pitts v. State, 88 Fla. 438, 102 So. 554.

In the instant case there is no doubt that the notice was mailed to the parents by the Clerk of the Court. It was correctly addressed to them at their address in Pennsylvania. It was properly posted and not returned to the Clerk’s office. Certainly, presumptively at least, the notice reached the destination to which it was addressed and sent in due course of mail.

Furthermore, the uncle communicated with the boy’s father before arraignment and he testified that he told petitioner that his father had been -notified and had responded that he could do nothing for him.

There is every evidence that the father of this unfortunate boy was notified of his plight and completely ignored the opportunity to go to his aid. The fact also remains that actually nowhere in this proceeding is there any denial that the offense was committed.

Although strict compliance with the statute in question is recommended in order to eliminate problems of the kind before us, we cannot find that there was a fatal failure to comply with its essentials in the case at bar.

The judgment is therefore affirmed.

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


text:
    THOMAS JEFFERSON, Inc., a Florida corporation, Petitioner, v. HOTEL EMPLOYEES UNION, LOCAL 255 (AFL), David Herman, as Director of Organization of said Local, Clarence L. Smith, Albert H. Berlin and Henry K. Mischel, individually and as business officers and agents of said local, Respondents.
    Supreme Court of Florida. Special Division B.
    Jan. 13, 1956.
    See also 81 So.2d 731.
    Anderson & Nadeau, Miami, for petitioner.
    Gramling & Gramling, Miami, and J. W. Brown, Cincinnati, Ohio, for respondents.
   THORNAL, Justice.

Petitioner, which is the owner of a Miami Beach hotel named the San Marino, seeks reversal of a portion of an interlocutory order of the Chancellor appointing a commissioner to hold an election of hotel employees to ascertain whether respondent Union is the designated bargaining agent of the employees.

This case is another in a series of cases resulting from the picketing of Miami Beach hotels. See Sax Enterprises, Inc., v. Hotel Employees Union Local No. 255 (A. F. of L.), Fla.1955, 80 So.2d 602; Boca Raton Club, Inc., v. Hotel Employees Union, Local No. 255 (A. F. of L.), Fla.1955, 80 So.2d 680. Typical of the other cases, petitioner filed its complaint against the respondents seeking an injunction against picketing activities of the respondents, alleging that the picketing was done for an unlawful purpose, to-wit, to compel nonunion employees to join the union and designate it as their bargaining agent in dealing with the employer hotel. Picketing started on June 15, 1955, and this is ¡the crucial date to bear, in mind. The Chancellor entered an interlocutory order enjoining picketing at the San Marino Hotel until. further order of the court. The whole problem revolves around the factual determination as to whether the respondent uniqn actually in fact represents the employees of the petitioner hotel.

The Chancellor found that he could not determine the existence or non-existence of this fact from the evidence before him .and by his order appointed a commissioner “for the sole purpose of ascertaining the foregoing facts [whether the union was the designated bargaining agent of the hotel employees] for the benefit of this Court, within 30 days from the date of this Order [to] cause an election by secret ballot to be held by the employees of plaintiff as of June 15, 1955, who come within the jurisdiction of the defendant Union, to determine- the free choice of said employees as to their representation by defendant Union in the matter of labor-management relations ; * *

By petition for writ of certiorari the Hotel challenges the correctness of that portion of the order appointing a commissioner to hold a secret election. Our examination of the record and exhibits shows that according to petitioner’s exhibit 13, the hotel had 29 employees on June 15, 1955, that of these 29 employees, 20 were in the classification served by the respondent union, to-wit, bellmen, elevator operators, housekeepers, maids, housemen. The Union admits that it does not serve employees such as bookkeepers, typists and management employees. Respondents’ Exhibit A consists of 28 so-called “white cards” signed by various individuals designating the respondent Union as its bargaining agent. Exhibit A also includes 20 so-called “yellow cards” signed by various individuals designating the “Miami Hotel Trades Council,” allegedly consisting of affiliates of the American Federation of Labor, as their bargaining agent. A careful comparison of the names appearing on the 48 cards constituting Exhibit A shows that they include only 3 of the names of petitioner’s employees who would be served by the respondent Union appearing on plaintiff-petitioner’s Exhibit 13.

In our opinion in Sax Enterprises, Inc., v. Hotel Employees Union Local No. 255 (A. F. of L.), 80 So.2d 602, 603, we held:

“Without doubt a labor organization has the right to engage in peaceful picketing of an employer’s premises when predicated upon the refusal of the employer to recognize and negotiate with the union as the representative of such employer’s employees. In order for such picketing to be lawful, the union must establish that the employees have chosen it as their representative, Treasure, Inc., v. Hotel & Restaurant Employees and Bartenders’ Union, supra [Fla., 72 So.2d 670], and the labor organization must also inform the employer of the object to be accomplished by the picketing and afford to the employer a fair opportunity to engage in negotiations. See North East Texas Motor Lines, Inc., v. Dickson, 148 Tex. 35, 219 S.W.2d 795, [11 A.L.R.2d 1065].” (Emphasis ours.)

In the matter now before us the petitioner who sought the injunction below brought in a list of its employees as of the date the picketing started, identified them according to the ' nature of their employment and showed that only 3 of them had designated the respondent as their representative. This shifted to the respondent the burden of going forward with the evidence to establish that it was in fact the authorized representative of the employees of the petitioner in order to justify the respondent in demanding that the petitioner bargain with it as the labor management representative of the employees. In order to carry this burden the respondents then produced the 48 cards identified as Respondents’ Exhibit A and these cards show that only 3 of the employees named by petitioner are affiliated with the respondent Union, according to respondent’s own exhibit. Each party doubts the other’s records but on this appeal neither party has cited to this court any authority for the appointment of a commissioner to hold an extra-legal secret ballot in order to produce evidence for the consideration of the court in a matter pending in litigation before it.

It was the responsibility of the litigants to produce the evidence sufficient to enable the court to arrive at a proper judgment. If there is any doubt about the accurateness or authenticity of the list of employees produced in evidence below by the petitioner as its Exhibit 13, it would have been a very simple matter to have subpoenaed its payroll records and ascertain the facts from the original. The procedure that was followed, to wit, the appointment of a commissioner to hold a so-called secret election so far as we can determine has no precedent either in labor management litigation or for that matter within the traditional equity procedures heretofore recognized by this or any other court. No precedent has been cited by either party to this appeal. Such procedure obviously deprives both parties of the established right of cross-examination and the confronting of witnesses as well as the compelling of witnesses to testify under oath. If the Chancellor desires further evidence, certainly the rules make available to him appropriate processes for obtaining it either by the compulsion of the appearance of witnesses before him together with the subpoenaing of exhibits or by the reference of the matter to a Master to hear the testimony under oath in the presence of opposing counsel and parties who then have the right of cross-examination. Respondent’s claim for the desirability of secrecy to protect the Union members against alleged “black-listing” loses vitality when we note that respondents themselves have actually filed in this cause membership cards signed by their alleged members.

If facts have occurred since the filing of the complaint which were not included in the original pleadings and which constitute additional grounds either for complaint or as defenses to the complaint, our present rules make adequate provision for an orderly procedure to bring these matters to the attention of the Chancellor. The record in this. case at least indicates grounds for suspicion that all parties involved were sparring around in an effort to gain some tactical advantage rather than a straightforward procedural effort to enable the able Chancellor to arrive at the right and truth of the situation that they presented to him by their pleadings. The parties should present their own case and they should not impose upon the Chancellor the burden of presenting it for them.

It appears to us that in the series of cases involving this particular problem which has already been heard by this court on several occasions, the rules governing the presentation and disposition of the litigation have been adequately and clearly set forth and we can frankly find no justification for the continuation of tactics which can only result in delay and ultimate harm to all parties concerned, including the public which we judicially know has a vital interest in the Miami Beach hotel industry.

The decree is approved insofar as it provides “picketing at the San Marino Hotel shall be and the same is hereby enjoined until further order of this Court”.

In other respects the petition for certio-rari is granted, the decree appealed from is quashed, and the cause is remanded for further proceedings consistent with this opinion.

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

CRAWFORD, Associate Justice, heard the oral argument but did not participate in opinion or judgment.


author: TPIOMAS, Justice.

text:
    F. D. STREEP and Gwendolyn J. Hale, Appellants, v. Wallace SAMPLE, as Mayor Commissioner of the City of Fort Pierce, a Municipal Corporation, Volusia Locations, Inc., a Florida Corporation, et al., Appellees.
    Supreme Court of Florida. Division B.
    Jan. 11, 1956.
    Rehearing Denied Feb. 2, 1956.
    Raymond E. Ford and Denison & Lewis, Fort Pierce, for appellants.
    Fee, Parker & Sample and Willes & Bit-tan, Fort Pierce, for appellees.
   TPIOMAS, Justice.

The appellants filed a bill by which they attempted to secure an injunction to prevent the City of Fort Pierce from issuing a permit to the appellee, Volusia Locations, Inc., for the construction of a business building on property at one time restricted to residential use and later by ordinance de-dared usable as a site for a commercial building. The litigation ended in a decree dismissing the cause and this appeal followed.

Three questions are presented' for our study, discussion and decision. To determine the first of these requires an examination of Section 176.06, Florida Statutes 1953, and F.S.A., and Section 9(n) of Chapter 3 of Chapter 24528, Laws of Florida, Acts of 1947, the city charter. Under the latter law a majority of the five members of the city commission constitute a quorum for the transaction of business and a vote of three members is “necessary to adopt any ordinance or resolution * * The former section appears in Chapter 176, titled “Municipal Zoning.” By its provision boundaries and restrictions may be changed but if a protest against change is presented in writing “by the owners of twenty per cent or more either of the area of the lots included in such proposed change, or of those immediately adjacent in the rear thereof extending five hundred feet therefrom, or of those directly opposite thereto extending five hundred feet from the street frontage of such opposite lots” a proposed revision cannot become effectual except by an affirmative vote of “three-fourths of the governing body” of the city, Section 176.06, supra.

As a premise for the first question, the appellants state that the requisite number of protestants resisted the re-zoning and that the limitation of Section 176.06, supra, became applicable, that is, the favorable vote of four commissioners was indispensable to a change in the zoning. It appears from the record that three commissioners voted for the amendment of the zoning ordinance on first and second readings. So, conclude the appellants, the amendatory ordinance failed to pass by the majority required in Section 176.06, supra, because three-fourths of all the commissioners of the city did not vote aye.

Notice was given pursuant to Section 176.05, Florida Statutes 1953, and F.S.A., that a meeting would be held 30 August 1954, to consider an application for re-zoning. The commission met on that date but the matter mentioned in the notice was not settled. The commission met again 10 September 1954. On the latter day the appellants filed the written protest which the clerk of the circuit court later certified was signed by persons owning “more than 20% of the lots immediately adjacent in the rear” of the property sought to be re-zoned “and extending 500 feet therefrom” and was signed by “owners of 20% of the lots directly opposite” the property attempted to be re-zoned.

The appellees argue that the owners of twenty per cent of the property in any one area did not protest and that such protest as was presented was not timely. We cannot accept either position. The allegation of the bill with reference to the sufficiency of the petition was denied in the answer. This placed on the appellants the burden of proving that twenty per cent of the owners in one of the areas signed the protest. The certificate of the clerk seems to have established the sufficiency of the petition and the testimony does not impeach the certificate.

We think the filing of the petition was timely. In the minutes of the meeting of August thirtieth appears the following significant language: “Mayor-Commissioner pro-tem Harden stated that the decision of the Commission in this matter will be withheld pending further study.” At this point protests were made which were not in such form as to bring into play Section 176.06, supra, but obviously the question of changing the zoning ordinance was kept in abeyance and we think all phases of it were in the same status. It would not be logical to hold that time for protest had terminated but time for action against which objection, was directed had not.

At the meeting held 10 September the-mayor-commissioner pro-tem., who- was presiding, announced “that the purpose of the meeting was for the disposition of the request of Volusia Locations, Inc. for a zoning change * * The attorney for the protestants was then given permission- to file “new material” with reference to the opposition to the amendment of the zoning ordinance. A motion was made and carried! that the application of Volusia Locations, Inc., be granted and that the city attorney be instructed to prepare an ordinance “rezoning the property as advertised.” This was the first time the city passed upon the application. Then the commissioners voted their approval, the petition of the protestants was before them and, of course, it was before them when the amendatory ordinance, which would effectuate the commission’s approval of Volusia Locations’ application, was passed on first reading three days later, 13 September 1954.

We find nothing in the law that would render the petition worthless unless filed on 30 Aúgust, the day named in the notice. The statute simply provides that in the event of a protest in the manner prescribed, a certain vote is a prerequisite to effectiveness of the amendment of a zoning ordinance. The records of the commissioner’s meetings demonstrate that the matter was a continuing one and was not concluded until the final passage of the ordinance 27 September 1954. We understand that the ordinance was intended to become effective 28 September 1954.

We gather that it is the attitude of appel-lees as well as appellants that if the protest was timely and contained the names of twenty per cent of the owners of property in one of the three areas, Section 176.06, supra, is applicable.

We decide in appellants’ favor in respect to these two elements and now go to the question whether the language “three-fourths of the governing body,” Section 176.06, supra, means three-fourths of all commissioners or three-fourths of a quorum. As we have written, three commissioners voted for the ordinance at both readings. Four commissioners were present at each meeting. At one meeting one commissioner voted “no” and at the other meeting one commissioner abstained from casting his vote.

The appellants maintain the position that the three-fourths vote required should be computed as three-fourths of five, the whole number of city 'Commissioners, 'so that four affirmative votes would be necessary to enact the ordinance; the appellees insist, with equal vigor, that the vote should be computed on the basis of the number of commissioners present, so that but three affirmative votes would be needed.

A comparison of the two laws aligns us with the appellants. We think there is a distinction between them and a real purpose for the distinction. Under one, Section 9(n) of the charter, a majority of all members, three or more, shall constitute a quorum, but three votes are necessary to adopt an ordinance. If this section governed, then, the re-zoning ordinance was properly passed. But the provisions are not synonymous with the corresponding provisions in Section 176.06, supra. Under the former provision ordinances without end can be passed, regardless of protests and objections of citizens, so long as three commissioners approve, whether three, four or five are present.

Doubtless the legislature thought that the amendment of a zoning ordinance in the face of proper 'protest was a matter of greater moment than that affected by the usual ordinance. The difference created by the protest at once becomes a distinction. Moreover Section 176.01, Florida Statute's 1953, and F.S.A., considered with 176.06, supra, confirms the view that we should not accept appellees’ argument that in such a situation four votes would be required only if five members were present and three •votes would suffice if four were present.

To get the true formula for computing three-fourths-of the “governing body” we now consult Section 176.01, supra, and learn that the legislature defined “governing body” as “the city or town commission, council, board of aldermen, or other governing bodies of any form whatsoever by whatsoever name known.” We cannot construe these statutes to read that we should multiply the number of commissioners present by three-fourths and accept the product so long as it is not less - than three. We think the number five is the multiplicand.

Because of the views we have expressed we do not feel obliged to decide- the question challenging the adequacy of the notice on the ground that the description it contained was erroneous.

Reversed.

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


author: CRAWFORD,' Associate Justice.

text:
    SOUTHERN WOOD INDUSTRIES, Inc., a Florida corporation, Appellant, v. FLORIDA CAROLINA LUMBER COMPANY, a Florida corporation, Appellee.
    Supreme Court of Florida. Special Division B.
    Jan. 6, 1956.
    Paul L. Steiner, Miami, and Clifford S. Perlman, Miami Beach, for appellant.
    Max R. Silver, Miami, for appellee,
   CRAWFORD,' Associate Justice.

The appellant filed its amended complaint against the appellee in the circuit court below alleging that it ordered and paid for a carload of plywood of certain grade and sizes sold and delivered by the appellee. That the plywood delivered was inferior and defective in that the veneer was reversed so that the rough side was exposed, rather than the smooth side, thereby rendering the plywood worthless and causing damage to the appellant. That the defective condition did not become apparent until the plywood had been cut and manufactured into cabinets and doors and attempted to be painted.

Answer was filed by the appellee admitting the purchase transaction, denying the inferior quality. of the plywood delivered, affirmatively pleading that the plywood delivered was within the grade ordered by the appellant, that “reverse veneer” plywood was within the grade ordered and that complaint concerning the quality was not timely made in accordance with the custom of the trade.

• The appellee thereafter moved for a summary judgment in its favor. Affidavits of Jerome Cohen, the president of the appellant corporation, and William M. Dil-ley, an expert lumberman, were filed by the appellant in opposition to the motion. The motion was heard and denied by the court.

The cause was set by the court for trial by jury and brought on by the court for pre-trial conference on its own motion. A pre-trial order was entered and, in compliance therewith, each side filed a list of its several witnesses expected to be called at the trial.

The cause came on for trial before the circuit court and a jury was palled, accepted and sworn to try the case. Opening statements were made by counsel for. each side. Whereupon the appellant called in its first witness, its . president, Jerome Cohen, and commenced direct examination. Midway in the examination of this witness, the court interrupted and announced, on its own motion, that it would direct the jury to return a verdict for the appellee. The court refused requests by appellant to call an expert witness to the stand, to put the rest of its case on and a request for further argument. The jury was directed to return a verdict for the appellee which was done and duly entered. By leave of the court, a written proffer of the testimony of appellant’s five expert and two lay witnesses, who were waiting to testify at the trial, was filed in the cause and made a part of the record. A motion for new trial was denied by the court and this appeal taken.

It is argued by the appellant that the trial court erred in finding that there was no material issue of fact to be tried by the jury and in not allowing it to complete the presentation of its case. With this contention we agree.

The trial court, in previously denying appellee’s motion for summary judgment, had necessarily found that there were material issues of fact to be tried by a jury. This is borne out by the record of the testimony allowed by the court. The conclusions drawn by the court from the testimony, as stated in the transcript, were immediately traversed by answers of the witness and created material issues of fact to be decided by the jury.

Section 54.17(1), Florida Statutes 1955, F.S.A., provides:

“If, however, after all the evidence shall have been submitted on behalf of the plaintiff in any civil case, it be apparent to the judge that no evidence has been submitted upon which the jury could lawfully find a verdict for the plaintiff in such civil case, the judge shall, upon motion of the defendant, direct the jury to find a verdict for the defendant”.

Here the trial court did not allow the appellant to present all its evidence or even the complete testimony of its first witness.

The order appealed from is reversed and the cause remanded for new trial.

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


author: PER CURIAM.

text:
    Walter J. McLELLAN and Helen F. McLellan, his wife, Appellants, v. Otis J. PIERCE (J. Otis Pierce), and Alice F. Pierce, his wife, Appellees.
    Supreme Court of Florida. Division A.
    Jan. 11, 1956.
    R. J. McDermott, Clearwater, for appellants.
    Guss Wilder, Clearwater, for appellees.
   PER CURIAM.

This cause came on to be heard on the motion of the appellee to affirm the judgment appealed from pursuant to 30 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 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 be and the same is hereby granted and the said judgment is

Affirmed.

DREW, C. J., and TERRELL, HOB-SON and THORNAL, JJ., concur.


author: DREW, Chief Justice.

text:
    Betty GANZER, Appellant, v. Fred GANZER, Appellee.
    Supreme Court of Florida. En Banc.
    Jan. 13, 1956.
    Norman F. Solomon, Miami Beach, for appellant.
    Herbert H. Hutner, Miami Beach, for appellee.
   DREW, Chief Justice.

The lower court entered a final decree June 15, 1955, granting a divorce to the wife and ordering the husband to pay $10 weekly alimony and attorney’s fees. A petition for rehearing was filed July 1, 1955 and denied August 26, 1955. The notice of appeal was filed on August 31, 1955. We now consider a motion to dismiss the appeal on the ground the same was not timely filed. Appellant asserts that the pendency of her petition for rehearing tolled the time within which an appeal could be taken.

In Beck v. Littlefield, Fla. 1953, 65 So.2d 722, we stated that where an equity decree grants no affirmative relief so that there are no proceedings for a stay order to operate upon, there is nothing to stay and the timely filing of a petition for rehearing tolls the time within which appeal may be taken. And in Lauderdale by the Sea Development Co. v. Lauderdale Surf & Yacht Estate, 1948, 160 Fla. 929, 37 So.2d 364, 10 A.L.R.2d 1072, we said that if the decree grants affirmative relief, the petition for rehearing of itself will not toll the time for appeal but there must also be obtained a stay order pursuant to what is now Rule 3.16, 1954 Florida Rules of Civil Procedure.

This Court has also observed that, except where a stay order is required, a petition for rehearing operates to toll the time for appeal under a rule which is “the same as that applicable in common law * * * actions.” Redwing Carrier, Inc., v. Carter, Fla. 1953, 64 So.2d 557, 559. We have reviewed and reconsidered what was said with reference to the exception where a stay order is required. It appears that there is no basis for this distinction. The purpose of a stay order provided for in Rule 3.16, supra, is to regulate the enforcement of the decree in the trial court. It does not pertain to nor affect appellant proceedings. Therefore, we now hold that a petition for rehearing in equity timely filed has the same effect for tolling the time for appeal whether or not a stay order has been entered. A petition for rehearing in equity therefore operates to toll the time for appeal in the same manner as does a motion for new trial filed on the law side of,the court. This result establishes uniformity in procedure and eliminates uncertainty and doubt.

The purpose of tolling the time for appeal where a timely motion for a new trial is pending on the law side of the court is to avoid the necessity for taking an appeal until it is determined that there will in fact be need for that. The same reasoning is equally applicable in equity. Until a timely petition for rehearing has been ruled upon, the decree does not become final for purposes of appeal. The judicial labor has not been completed. Thus the fact that in this case no stay order was entered is immaterial even though the decree granted affirmative relief.

However, the petition for rehearing filed and served fifteen days after the date of the final decree was not timely within the requirements of Rule 3.16, supra. In the analogous situation on the law side of the Court “a motion for a new trial in a common-law action made within the time-provided by law tolls the running of the sixty day period allowed for an appeal until such motion for a new trial is disposed of by the trial judge.” (Italics added.) Kent v. Marvin, Fla.1952, 59 So.2d 791, 793. But it is only a motion for a new trial that is timely filed which tolls the time for appeal, “otherwise a motion for a new-trial could be filed at any time and thereby the time in which a writ of error could be sued out could be extended indefinitely.”' City of Orlando v. Hewitt, 92 Fla. 933, 110 So. 874, 875.

This latter rule also applies in equity so that a petition for rehearing will toll the-time for appeal only when it is timely filed pursuant to a valid statute or rule. See O’Steen v. Thomas, 146 Fla. 73, 200 So. 230. Because the petition for rehearing in this, case was not timely filed, it did not serve to toll the time for appeal.

The motion to dismiss is hereby granted and this cause is hereby

Dismissed.

TERRELL, HOBSON, ROBERTS and’. THORNAL, JJ., concur.

THOMAS and SEBRING, JJ., agree to. conclusion.


text:
    Charles E. HORNER, Petitioner, v. Olin E. WATTS et al., Respondent.
    Supreme Court of Florida. Special Division A.
    Jan. 6, 1956.
    Thomas H. Anderson and Anderson & Nadeau, Miami, for petitioner.
    Richard W. Ervin, Atty. Gen., and Ralph M. McLane, Asst. Atty. Gen., for .respondent.
   PER CURIAM.

Upon consideration of the petition for rehearing in this cause directed to the opinion and judgment herein of September 16, 1955, it is ordered that the petition for rehearing be and the same is hereby granted and the opinion and judgment aforesaid is hereby receded from, set aside and vacated.

It is further ordered that the respondents’ motion to quash the alternative writ is denied.

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


text:
    Edgar J. LAVOIE, Appellant, v. STATE of Florida, Appellee.
    Supreme Court of Florida. En Banc.
    Jan. 13, 1956.
    William M. Cooke and Earl G. Nicholson, Palatka, for appellant.
    Richard W. Ervin, Atty. Gen., and Jos. P. Manners, Asst. Atty. Gen., for appellee.
   PER CURIAM.

We have examined and considered the record in this case in the light of briefs filed and have also, pursuant to subpara-graph 2 of Section 924.32, Florida Statutes 1941, and F.S.A., reviewed the evidence to determine if the interests of justice require a new trial, with the result that we find no reversible error is made to appear and the evidence does not reveal that the ends of justice require a new trial to be awarded.

Affirmed.

DREW, C. J., and TERRELL, THOMAS, ROBERTS, THORNAL and O’CON-NELL, JJ., and CRAWFORD, Associate Justice, concur.


text:
    In re ESTATE of Charles A. MERRILL, Deceased. Frederick B. MERRILL, Appellant, v. Mildred BOLOCK, as Executrix of the Estate of Charles A. Merrill, Deceased, Appellee.
    Supreme Court of Florida. Special Division B.
    Jan. 11, 1956.
    George K. Kickliter, St. Petersburg, Paul Kickliter (of Kickliter & Sidwell), Tampa, and T. Paine Kelly, Jr. (of Macfarlane, Ferguson, Allison & Kelly), Tampa, for appellant.
    John D. Harris (of Harris, Barrett, Mc-Glothlin & Dew), St. Petersburg, for ap-pellee.
   PER CURIAM.

Affirmed on authority of In re Eberhardt’s Estate, Fla., 60 So.2d 271; In re Garrett’s Estate, Fla., 60 So.2d 281; In re Alkire’s Estate, 144 Fla. 606, 198 So. 475; Johnston v. Johnston, 122 Fla. 372, 165 So. 698; Fred Howland, Inc., v. Morris, 143 Fla. 189, 196 So. 472, 475, 128 A.L.R. 1013.

DREW, C. J., THORNAL and O’CON-NELL, JJ., and CRAWFORD, Associate Justice, concur.


text:
    James I. BROWN, Appellant, v. Lola Estell BROWN, Appellee.
    Supreme Court of Florida. Division A.
    Jan. 6, 1956.
    Rehearing Denied Jan. 20, 1956.
   PER CURIAM.

Affirmed.


text:
    John W. O’NEAL, Appellant, v. Belle S. O’NEAL, Appellee.
    Supreme Court of Florida. En Banc.
    Nov. 18, 1955.
    Rehearing Denied Jan. 31, 1956.
   PER CURIAM.

Affirmed.


author: FOURNET, Chief Justice.

text:
    228 La. 946
    Alexander C. LOWTHER v. The FIRESIDE MUTUAL LIFE INSURANCE COMPANY.
    No. 41771.
    Supreme Court of Louisiana.
    Dec. 12, 1955.
    Vincent Hazleton, Alexandria, 'for plaintiff-appellant.
    Stafford & Pitts, Gravel, Humphries, Sheffield & Mansour, Alexandria, for ap-pellee.
   FOURNET, Chief Justice.

The plaintiff, Alexander C. Lowther, alleging that under a contract effective January 1, 1948, the defendant, Fireside Mutual Life Insurance Company, had engaged him as its General Agent and Sales Manager to promote sales of insurance policies in the casualty and burial departments of the company, that as such he was to supervise and direct all sales activities in the various branch offices where funeral directors held district agency contracts, and in lieu of a salary he was to receive a commission of 3% of the gross premiums received by the company on business done within the State of Louisiana and 2% on business done outside of the State; that the said contract by its terms was to remain in full force and effect on an annual basis and to “renew itself automatically from year to year,” but that the defendant company had, in December of 1952, breached the contract by notifying plaintiff that his agency contract was being terminated at the end of that year because he was not producing any business — whereas it was the defendant’s action in entering into a reinsurance agreement with another company (having the same officers and directors as the defendant), in discontinuing the writing of industrial life insurance and burial policies, and in inducing its various agents to disregard their agency contracts and begin to work for the other company, which had made it impossible for the plaintiff to perform under his agency contract— brought this suit for $286,160, computed on the basis of yearly earnings of $18,000 and a life expectancy of 15.62 years; and he is appealing from the judgment of the lower court dismissing his suit on an exception of no cause of action filed by the defendant.

The basis of the trial judge’s ruling was that five years having elapsed from the effective date of the contract, it was at an end in view of Article 167 of the LSA-Civil Code, declaring that “Persons who have attained the age of majority can not hind themselves for a longer term than five years.”

Appellant, conceding that the above article controls with respect to contracts ' for personal services, seeks to avoid its application by contending that there was no employer-employee relationship here and that the contract “in essence comprised a joint adventure;” that it was merely an arrangement to continue and to carry out the prior joint undertaking which (according to recitals in the petition) originated in 1932, when plaintiff was one of the parties forming the parent company, the Fireside Mutual Aid Association; that plaintiff’s work and efforts were instrumental in building up the business until, through various mergers and dissolutions, he finally owned 50% of the stock in defendant’s immediate predecessor, which interest he transferred to the defendant upon its organization in 1937 — when he was one of the incorporators, was named to the first board of directors, and held the office of secretary. To discount an employer-employee relationship, plaintiff points to the fact that the contract provided he was to receive no salary but only his. expenses, and the “commission of three per cent, on the gross premiums received by the said Company” in reality represented half of the company’s net yearly earnings, since the said net earnings were calculated at approximately 6% of the gross annual premiums.

The above contentions are totally without merit; not only does the contract clearly show that it is one simply for personal services, but the petition is so drawn that it is impossible to interpret its allegations in any way except as an action for breach of a contract of employment having an indefinite term, the first five years of which had elapsed. In view of the provisions of Article 167 of the LSA-Civil Code, quoted supra, the plaintiff has failed to state a cause of action and his suit was properly dismissed. Counsel’s assertions that Article 167 no longer fits modern living and employment situations, and has been repealed by inference and implication because the various laws having to do with teachers’ tenure and civil service have repealed all laws or parts of laws in conflict therewith, are not supported by citation of authority and do not merit serious comment.

For the reasons assigned, the judgment appealed from is affirmed.

PONDER, J., absent .


author: McCALEB, Justice.

text:
    228 La. 951
    STATE of Louisiana v. BOARD OF SUPERVISORS, LOUISIANA STATE UNIVERSITY & AGRICULTURAL & MECHANICAL COLLEGE.
    No. 42399.
    Supreme Court of Louisiana.
    Dec. 12, 1955.

      Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, for defendant-appellant.
    Fred S. LeBlanc, Atty. Gen., Joel B. Dickinson, Asst. Atty. Gen., for plaintiff-appellee.
   McCALEB, Justice.

The Commissioner of Agriculture and Immigration and the Attorney General instituted this proceeding under R.S. 13 :4231-4246 for a judgment declaring Act 230 of 1954 constitutional.

The named defendant is the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, which is authorized and directed by Act 230 of 1954 to construct, furnish and equip additional buildings on the University campus at Baton Rouge for the purpose of providing facilities to the State Chemist for performance of the duties and responsibilities imposed upon him by R.S. 3:1024, 1025, 1312, 1892 and Act 501 of 1952 and also to provide housing for the State Seed Laboratory. To enable the Board of Supervisors to erect the necessary building, Act 230 of 1954 empowers and directs-it to issue and sell bonds in an amount not to exceed the sum of $850,000, payment of which is to be secured by certain funds collected by the Commissioner of Agriculture and Immigration under R.S. 3:1317, 1897 and Act SOI of 1952, as amended.

It is alleged by the proponents of the litigation that a justiciable controversy has arisen anent the constitutionality of Act 230 of 1954, specifically as to whether the funds pledged for the payment of bonds to be issued by the Board of Supervisors of Louisiana State University are derived from charges imposed under the police power of the State, or whether they are licenses assessed and collected under the power of taxation.

The Board of Supervisors states in its answer that it is willing to perform the duties exacted of it by the statute but asserts that the bonds and obligations which it is directed to issue and sell are not merchantable because Act 230 of 1954 offends Section 18 of Article 19 of the Constitution of 1921, which declares that the police power of the State shall never be abridged. Taking the position that the funds which are to secure the payment of the bonds are authorized to be collected under the police power, the Board declares that the pledging of any such funds will effectually trammel the State in the exercise of this power.

In the district court, it was decreed that Act 230 of 1954 is constitutional, the judge being of the opinion that the funds pledged for the payment of the bonds to be issued are derived from the exercise of the State’s power of taxation. The Board of Supervisors have appealed.

At the outset, we direct our attention, sua sponte, to the question of the jurisdiction of the district court to entertain this proceeding. Although the litigants profess that this is a justiciable controversy, it is patent on the face of the pleadings that the parties are not really seeking the declaration of a right but rather an advisory opinion that Act 230 of 1954 is constitutional.

Ever since 1810, it has been fundamental in the law of Louisiana that courts sit to administer justice in actual cases and that they do not and will not act on feigned ones, even with consent of the parties. See Livingston v. D’Orgenoy, D.C., 108 F. 469, also reported in 1 Mart.,O.S., 87. This principle has been strictly adhered to throughout the years and, in reality, is determinative of the matter of the jurisdiction of our courts, original and appellate, as defined by Sections 35, 29 and 10 of Article 7 of the Constitution.

Section 35 of Article 7 of the Constitution vests the district courts throughout the State with original jurisdiction in all civil matters * * * regardless of the amount in dispute * * * Thus, in order for the court to become seized of jurisdiction in the first instance, there must be a dispute or controversy over some matter or right in which the opposing parties have an interest. For one to sue, his interest must be real and actual, Article 15, Code of Practice, and a controversy between the suitor and the defendant must exist.

The Uniform Declaratory Judgments Act, R.S. 13:4231 et seq., has not had the magical effect of changing the above stated basic tenets. In truth, to construe the statute as extending jurisdiction to the courts to validate legislative action, or otherwise render advisory opinions, would effect an unconstitutional enlargement of the grant of judicial power which is restricted to real controversies. State ex rel. Day v. Rapides Parish School Board, 158 La. 251, 103 So. 757; Graham v. Jones, 198 La. 507, 3 So.2d 761 and State ex rel. Bussie v. Fant, 216 La. 58, 43 So.2d 217.

In our recent decision in Burton v. Lester, 227 La. 347, 79 So.2d 333, we pointed out the significant difference between our procedural system and those employed in other States, resolving that the construction of the Declaratory Judgments Act should be consistent with the distinct background found in our jurisprudence which is predicated upon the provisions of the Code of Practice. Under this jurisprudence, it is settled that courts of Louisiana are without power to render judgments over moot and abstract propositions and that a litigant not asserting a substantial existing legal right is without standing in court.

The Uniform Declaratory Judgments Act is merely a procedural device by which the courts may make a declaratory finding pursuant to the provisions of R.S. 13:4231. But, in order for an action to be entertained under the Act, it must be based on an actual controversy and, even when such a case is presented, the grant or refusal of declaratory relief is purely a matter of judicial discretion. Burton v. Lester, supra.

In the matter at hand, it is perfectly plain that neither the Attorney General nor the Commissioner of Agriculture and Immigration have any interest or right to have a State statute declared constitutional. Since all Acts of the Legislature are constitutional until declared otherwise in proceedings brought contradictorily between interested persons, it is evident that the object sought in the petition of these officers, whose duty it is to uphold the laws as written, is moot and they are without right or interest in instituting litigation to test the constitutionality of Act 230 of 1954, or any other statute. Such a suit carries an affirmative pregnant and invites an attack upon the validity of the statute.

Nor does defendant’s plea of unconstitutionality create a controversy between it and the plaintiffs when none actually exists. The Board of Supervisors states in its answer that it is willing to perform the duties imposed upon it by Act 230 of 1954 but it claims that, if it issues the bonds, they will not be merchantable because it is of the opinion that the Act is unconstitutional. The unmerchantability of the bonds might be a good defense to a mandamus proceeding taken to compel the Board to sell the bonds had it issued them and found them to be unsaleable. But the Board has no right to refuse compliance with the mandate of the law because it entertains doubt as to its validity when it is not adversely affected by its provisions and is charged merely with ministerial duties, i.e., the issuance of the bonds directed by the statute. In such circumstances, it is without interest to question. the constitutionality of the Act. See Dore v. Tugwell, 228 La. 807, 84 So.2d 199, decided on November 7, 1955 and cases there cited.

Being of the opinion that the case does not present a justiciable controversy and that the district court was without jurisdiction thereof, the declaratory judgment appealed from is annulled and set aside and the proceeding is dismissed.

      . Indeed, counsel for the Board of Supervisors of Louisiana State University, with commendable frankness, admitted during the oral presentation of the case that the litigation was of a friendly nature, instituted solely for the purpose of satisfying bond attorneys who pose questions of constitutionality and evidently demand validation of all bond legislation by the court of last resort before approving State or Municipal bond issues.

      . State ex rel. Howard v. Burbank, 1870, 22 La.Ann. 298, and Duffy v. City of New Orleans, 1896, 49 La.Ann. 114, 21 So. 179.

      . Jung v. Gwin, 174 La. 111, 139 So. 774, certiorari denied 286 U.S. 561, 52 S.Ct. 644, 76 L.Ed. 1294.

      . Straub v. Healy, 164 La. 733, 114 So. 634.

      . In a very recent case on this subject, Tugwell v. Members of the Board of Highways and the Department of Highways, 228 La. 662, 83 So.2d 893, it was stated on rehearing: “In order for courts to entertain an action for declaratory relief, however, it is well settled in other jurisdictions that there must be a justiciable controversy, and the question presented for judicial decision must be real and not theoretical, as courts do not give advisory opinions upon abstract questions. Therefore a declaratory action generally cannot be maintained unless it involves some specific adversary question or controversy asserted by interested parties and based on an existing state of facts, and a declaration of rights must be refused if the issue presented to the court is academic, theoretical, or based upon a contingency which may or may not arise.”

      . Under Section 56 of Article 7 of the Constitution, the Attorney General is given power to institute proceedings for and on behalf of the State for the assertion or protection of the rights of the State. This suit, obviously, is not concordant with that purpose.

      . The Commissioner of Agriculture and Immigration, whose duties and powers are prescribed by the Legislature, R.S. 3:1 to 3:12, under constitutional mandate, Section 13 of Article 6 of the Constitution, is an administrative officer and, insofar as Act 230 of 1954 is concerned, is charged merely with the duty of collecting the fees or assessments which are to be pledged as security for the payment of the bonds to be issued under that statute. Other than this, the statute has no effect whatever on the duties imposed on him by law.


author: SIMON, Justice. HAWTHORNE, Justice

text:
    228 La. 960
    STATE of Louisiana v. Arthur DABBS.
    No. 42444.
    Supreme Court of Louisiana.
    Nov. 7, 1955.
    Rehearing Denied Dec. 12, 1955.

      Richard Dowling, New Orleans, for appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Cul-ligan, Asst. Atty. Gen., Leon D. Hubert, Jr., Dist. Atty., Edward A. Haggerty, Jr., Asst. Dist. Atty., Peter J. Compagno, Asst. Dist. Atty., New Orleans, for appellee.
   SIMON, Justice.

The defendant, Arthur Dabbs, appeals from his conviction and sentence for the violation of LSA-R.S. 14:67, having been charged in a bill of information with the theft of three automobiles of a total value of $5275.00, property of the Jeffrey Motor Company, a commercial partnership authorized to do business in the city of Linden, Alabama.

The defendant filed a motion for a bill of particulars, which was furnished by the State in an original and supplemental answer wherein it set forth that on October 1, 1953, defendant, as the owner and operator of Arthur Dabbs Auto Sales in New Orleans, agreed to purchase three automobiles from Clyde Jeffrey, co-owner of the Jeffrey Motor Company in Linden, Alabama, for the total price of $5,275, to be paid upon delivery; that on October 2, 1953, the three automobiles were driven to New Orleans and delivered to defendant’s employee, who presented three sight drafts to one of the drivers of said cars, payable two days after sight, knowing at the time that there was not sufficient money in the bank to cover the amounts of said drafts; that this constituted fraudulent practice or false pretenses employed by the defendant in obtaining possession of said automobiles ; that the defendant subsequently sold the three automobiles, received the sales price therefrom, and has paid no part of the purchase price shown in the bill of information.

Defendant relies on six bills of exception and a motion in arrest of judgment for the annulment of the verdict and sentence.

The first bill of exception was reserved to the trial court’s ruling denying a motion to quash the bill of information. This motion was filed on the ground that the charge set forth in said information does not constitute a crime under Louisiana law, and on the further ground that said charge, as amplified by the bill of particulars, charges the defendant with having made a promise to pay by virtue of sight drafts, payable two days after date, and that this constituted a promise to pay in the future, which is not denounced as a criminal act.

Bill of Exception No. 2 was reserved to the trial court’s overruling defendant’s written objection to the impaneling of a trial jury and to the production of any evidence on the ground that the bill of information as amplified by the bill of particulars fails to charge a crime; and if any responsibility is to be attached to that transaction had between the parties, it is exclusively civil in nature. This bill reiterates the legal issue presented in the motion to quash to which Bill of Exception No. 1 was reserved. We shall, therefore, jointly consider and dispose of both bills.

An examination of the bill of information clearly reveals that on its face the defendant is charged with having committed a theft in violation of our LSA-R.S. 14:67. The subject of the theft is named, in this instance three automobiles, and their total value is therein stated, all of which is drawn according to the statutory form authorized by LSA-R.S. 15:235.

Irrespective of what may be contained or set forth in the bill of particulars relied on by the defendant to support his contention presented by these bills, we are not concerned therewith. The prosecution was conducted exclusively on what was contained within the four comers of the bill of information, and we cannot, look beyond its four comers to determine its validity. There can‘be no prosecution on a bill of particulars. Nor can the contents of a bill of particulars, whatsoever is set forth therein, alter, change, amend or affect the bill of information. A bill of particulars can neither create a defect in a bill of information nor remedy a defective one. Neither can it serve as a vehicle to afford a defendant a right of de-mvrring — in this instance a motion to quash- — -where the bill of information on its face is not demurrable.

The settled jurisprudence of this state is expressed in the case of State v. Varnado, 208 La. 319, at page 380, 23 So.2d 106, at page 126, which in part is as follows :

“ ‘ * * * The office of a bill of particulars is to supply the accused and the court additional information concerning an accusation that the defendant has committed an act or acts constituting a criminal offense. In so far as its purpose is concerned a bill of particulars is in the nature of a pleading, and, when furnished, operates to limit the prosecution in its proof to the specifications thereon contained * * * ’ but CA bill of particulars cannot create or cure a defect in the indictment or information. It cannot be furnished the accused to enable him to demur to the indictment; nor, if the indictment is not demur-rable on its face, can the furnishing of a bill of particulars make it so. A bill of particulars is not an amendment of the indictment or information, and cannot change the offense charged in the indictment or in any way aid an indictment fundamentally bad. Furthermore, it is not a remedy or cure for an indictment so defective that it charges no offense.’ 27 Am.Jur. 672, Section 112. * * * (Italics ours.)” See, also, State v. Bienvenu, 207 La. 859, 22 So.2d 196; State v. Pettifield, 210 La. 609, 27 So.2d 424; State v. Espinosa, 223 La. 520, 66 So.2d 323.

The following observation of this court in the Bienvenu case, supra, is most pertinent to the case at bar [207 La. 859, 22 So.2d 198]:

“ * * * nevertheless the fact remains that defendant is not being prosecuted on the bills of particulars, but solely on the informations. A bill of particulars can never take a criminal prosecution ■ out of the statute on which the indictment or information is based.”

Counsel for the defendant cites three Louisiana cases to support the contention that the defendant was not charged with a criminal act.

These cases relied upon by the defendant are clearly inapplicable. They dealt with false representations as to past events or existing-facts, contradistinguished from representations in regard to a future transaction. In the latter instance such representations were deemed to be promises made without intentions of performing the thing promised. We held that such representations were not pretenses as denounced by the then existing criminal laws. These cases were decided prior to the legislative enactment of LSA-R.S. 14:67 (1942) which broadened the concept of theft to include all offenses of larceny, embezzlement and obtaining by false pretenses, and thereby abolished the distinction between these common law concepts. Prior to 1942 the false pretenses statute applied only to representations as to past and present facts and did not apply to representations as to future events. The legislature enacted LSA-R.S. 14:67 so that it would include not merely representations, but any “fraudulent conduct, practices or representations”. The theft statute was thus designed to enlarge its scope from that of representations only as a basis for theft by fraud and to extend the concept so as to include fraudulent conduct or practice. The determination of the guilt or innocence of the accused of theft as denounced by LSA-R.S. 14:67 and as charged in the bill of information rested exclusively within the province of the jury.

We find no merit in Bills of Exception Nos. 1 and 2.

Bill of Exception No. 3 was taken to the court’s refusal to give a special charge to the jury relating to customary practice between persons in the used car business.- The requested charge is as follows:

“If you find that' in the automobile business and in the transaction of buying and selling used cars, that it is customary to give drafts and checks and that the parties knowing that the drafts or checks are not covered at the time they receive them, but are expected to be covered at a future time and then they are not covered, there is no violation of the Criminal Law but a Civil . Transaction only, and a defendant under such circumstances should be found ‘Not guilty’.”

In his Per Curiam the trial judge states that he refused to give this charge because it had no application to the case at bar. Suffice it to say, no custom is a justifiable . defense for violation of the criminal code of this state. Our criminal laws are statutory, and those acts which are expressly denounced as criminal cannot be nullified or deemed excusable by virtue of custom or prevailing practices. We find no merit in Bill of Exception No. 3.

Bill of Exception No. 4 was reserved to the trial court’s refusal to permit counsel for the defendant to read to the jurors on their voir dire examination the law as expressed in the above cited cases.

The- district attorney’s objection to this procedure was sustained, and correctly so. From the trial court’s Per Curiam we observe that at the time said objection was sustained counsel for the defendant was .informed that he would be permitted to read the decisions of the Supreme Court and any other law that he deemed persuasive to the jury after the close of the taking of testimony or during his summation. We further learn from the trial court’s Per Curiam that, at the conclusion of the taking of -testimony, counsel for defendant was permitted to argue his version of the law, which included the citing and reading of the same decisions he had attempted to read to the prospective jurors. Defendant complains of the privilege allowed the district attorney to read to the jury the statute under which this prosecution was being conducted, intimating a prejudicial discrimination. Under LSA-R.S. 15:333 of the Louisiana Code of Criminal Procedure the district attorney is required to explain the nature of the charge. The language of this article is mandatory and sacramental. Manifestly, there can be no more accurate explanation of the nature of the charge against the accused than the reading of the statute which defines the law of the offense charged. Certainly before the jury retired it was aware of and was given the benefit of the jurisprudence of this state, not only by closing argument of counsel for defense, but also by all the ramifications and refinements of the law governing this procedure contained in the trial judge’s charge.

In the case of State v. Brown, 172 La. 121, 133 So. 383, 384, this court held that the examination of the qualifications of jurors and their voir dire was not the proper stage of a trial for the explanation of legal-points and theories. We said:

“ * * * It is not the duty of the trial judge to go into detail and explain to a prospective juror who is being examined on his voir dire all of the different phases of the law which may be applicable to the case on trial. The time for him to do that is after the testimony is closed, and the case is argued and submitted by the state and the accused. This identical question was before the court in the case of State v. Sinigal, 138 La. 469, 70 So. 478, where it was held, to quote paragraph 3 of the syllabus written by the court:
“ ‘A request on behalf of defendant that the judge charge the juror, who is under examination on his voir dire, as to the law of self-defense, was properly refused; the charge should be made after the case has been tried, and the arguments heard.’ ”

Furthermore, LSA-R.S. IS :357 of our Code of Criminal Procedure expressly provides:

“The purpose of the examination of jurors is to ascertain the qualifications of the juror in the trial of the case in which he has been tendered, and the examination shall be limited to that purpose.”

There is no merit to Bill of Exception No. 4.

Bill of Exception No. 5 was reserved to the trial court’s ruling sustaining the State’s objection to a question propounded to three witnesses on behalf of defendant as to whether it is customary in the automobile business to buy automobiles with drafts payable two or three days after date. Counsel for the defendant does not discuss this bill of exception in his brief, and there was no oral argument of its merits. We must necessarily conclude that he has abandoned this bill of exception. State v. Hendon, 170 La. 488, 128 So. 286; State v. Weaver, 222 La. 148, 62 So.2d 255.

The motion for a new trial, which was overruled and to which ruling, counsel reserved Bill of Exception No. 6, and the motion in arrest of judgment were properly overruled by the trial court, each being a summation of the errors previously complained of and which were disposed of in our considerations arid rulings on the other bills.

Accordingly, for the • reason's assigned, the conviction and sentence are affirmed.

HAMITER and McCALEB, JJ., concur in the result.

HAWTHORNE, Justice

(concurring, in part).

I concur in the majority holding on Bills of Exception Nos. 1 and 2. I subscribe to the holding on all other bills.

      . State v. Colly, 39 La.Ann. 841, 2 So. 496, decided in 1887. State v. Antoine, 155 La. 120, 98 So. 861, decided in 1924; State v. Ritchie, 172 La. 942, 136 So. 11, decided, in 1931.

      . Act 107 of 1902.

      . Note No. 1.

      . State v. Ducre, 173 La. 438, 137 So. 745; State v. Killgore, 186 La. 233, 172 So. 2; State v. Childers, 196 La. 554, 199 So. 640; State v. Simpson, 216 La. 212, 43 So.2d 585.


text:
    228 La. 973
    Patricia HOPPER v. Clifford FOLSOM.
    No. 41872.
    Supreme Court of Louisiana.
    Dec. 12, 1955.

      Richard Dowling, New Orleans, for plaintiff-appellant.
    Coe, Nowalsky & Lambert, John D. Lambert, Jr., New Orleans, for defendant-ap-pellee.
   FOURNET, Chief Justice.

Patricia Hopper is appealing from the judgment of the lower court dismissing her suit against her husband, Clifford Folsom, for a separation from bed and board on the ground that he had “conducted himself in such a manner to render further living together with him unsupportable” in that (1) he had “refused to perform the duties of a husband” and (2) he had threatened and abused her for refusing to surrender all of her separate property, he having already managed to secure control of a large part of the income derived therefrom — yet had failed to provide for her support and maintenance and that of the child born of their union, and had even threatened to leave with the child unless she turned over to him the title to her separate property, all of which caused her mental anguish.

The trial judge, at the conclusion of the trial and when the matter was submitted, observed that: “The principal testimony in this case is given by the plaintiff wife and defendant husband, in which there are allegations and charges and assertions by one, the plaintiff, which are emphatically denied by the defendant.” The judge found as a fact that the difficulty between the two arose at the time the wife inherited a large sum of money from her father; also, that on the basis of the evidence, not only had the husband administered the revenues from plaintiff’s separate property with her full consent, and properly accounted therefor, but he had kept records which were brought into court and not successfully challenged showing amounts spent, including his entire salary, in the maintenance of the family.

After reviewing the evidence we are convinced of the correctness of the trial judge’s findings, and his conclusion that the plaintiff had totally failed to sustain the burden of proof that is hers in this case.

For the reasons assigned, the judgment appealed from is affirmed.