author: MOISE, Justice.

text:
    228 La. 1031
    Rufus W. FONTENOT, Collector of Revenue, State of Louisiana v. JOHN I. HAY COMPANY.
    No. 41858.
    Supreme Court of Louisiana.
    Dec. 12, 1955.
    Rehearing Denied Jan. 16, 1956.

      Lemle & Kelleher, Harry B. Kelleher, Thomas F. Jordan, New Orleans, for defendant-appellant.
    George C. Gibson, Baton Rouge, for ap-pellee.
   MOISE, Justice.

John I. Hay Company appeals from an adverse judgment.

The proceedings were summary. The rule was made absolute.

Rufus W. Fontenot, Collector of Revenue, State of Louisiana, instituted these proceedings under the provisions of Title 47, Section 1574, of the LSA-Revised Statutes of 1950. He sought to enforce collection of income taxes for the years 1947, 1948, 1949 and 1950, allegedly due the State of Louisiana by John I. Hay Company on that part of its net income attributable to interstate business done or performed within the State of Louisiana. The aggregate claim, for taxes, interest and attorney fees, 'was fixed at the sum of $11,638.32,

Appellant contends that these taxes violate the interstate commerce clause of the Constitution of the United States, Article 1, § 8, Clause 3, the due process clause of the Louisiana Constitution of 1921, Article 1, § 2, and the due process clause of the Constitution of the United States as found in the Fourteenth Amendment.

A stipulation of facts was filed, which, in substance, recites that John I. Hay Company is incorporated under the laws of the State of Delaware and licensed to do business only in the States of Delaware and Illinois; that it operates as a common carrier in the interstate transportation of commodities generally between ports and points on the Illinois Waterway, the Mississippi River below and including Cap au gris, Missouri, the Ohio River between Rosi-claire, Illinois and its confluence with the Mississippi River, the Tennessee River between Gilbertville, Kentucky and its confluence with the Ohio River, and the Gulf Intracoastal Waterway in Louisiana and Texas as far west as Houston, Texas and Brownsville, Texas; that it brings cargoes into and through Louisiana and takes cargoes out of Louisiana; that none of its shipments originate and terminate in the State of Louisiana; and that an office is maintained in Louisiana and employees are present in this State.

The State rests its case not only on the law, but also on the method of apportionment. Defendant admits that the apportionment made is correct — if the taxes can be constitutionally imposed.

There is no doubt that the power to regulate interstate commerce is vested solely in the Federal Government under Article 1, § 8, Clause 3, of the Constitution of the United States of America. But, do these taxes, as administered and applied, constitute an actual regulation of .interstate commerce? We believe that they do not constitute a regulation of interstate commerce. Louisiana Income Tax Laws are applicable to the defendant, for the reason that the taxes sought to be collected were imposed upon that part of defendant’s net income attributable to its interstate business done or performed within the borders of the State of Louisiana.

The constitutional authorization for income taxes is found in Article X, § 1, of the LSA-Constitution of 1921, and provides in part:

“Equal and uniform taxes may be levied upon net incomes * * * ”

Dart’s Statutes of 1939, Section 8587.1, reads:

“There shall be levied, collected and paid for each taxable year a tax upon the net income of residents and nonresidents, estates, trusts, domestic and foreign corporations, as hereinafter provided * * * Foreign Corporations shall be taxed on net income from sources within the state, * * *"

These taxes, we believe, are imposed on the net income from sources within the State.

Dart’s 8587.7 defines “net income” as follows:

“Net income means the gross income computed under Section 8 (8587.8), less the deductions allowed by Section 9 (8587.9).”

Dart’s 8587.34(b), providing for taxes from sources partly within and partly without the State of Louisiana, reads:

“Nonresident individuals and foreign ' corporations: In the case of a nonresident individual or foreign corporation, items of gross income, expenses, losses and deductions, from whatever source received or incurred, not otherwise exempted by this act, shall be included in the taxpayer’s return; but, for the purpose of this act, the amount of tax shall be computed only upon the net income earned within or derived from sources within this state. In arriving at the net income earned within or derived from sources within the State of Louisiana, items of gross income, expenses, losses and deductions, not otherwise exempted by this act,, shall be allocated or apportioned to sources within or without the State of Louisiana, under the rules and regulations prescribed by the supervisor * * * Gains profits, and income from:
“(1) Transportation or other services rendered partly within and partly without the State of Louisiana shall be treated as derived from sources within and partly from sources without the State of Louisiana, * *

The Louisiana Revised Statutes of 1950 are essentially . the same as the above quoted.

Since the statutes declare that the income shall be treated as derived from sources within and partly from sources without the State of Louisiana, certainly that part of defendant’s income which is earned within and derived from sources within the State must subject defendant to a net income tax. Defendant does not carry a load from New Orleans, Louisiana to Houston, Texas gratis, nor does it only charge to carry a load from the Louisiana state border to Houston; it charges for the whole trip. Therefore, every part of the charge on loads in Louisiana is in payment of the transportation in Louisiana. Furthermore, to make this concept perfectly clear, defendant has stipulated that these taxes are correctly computed if they can be constitutionally imposed.

A careful analysis of the complexities of the various decisions rendered by the United States Supreme Court will show us the right. The greatest exponent of the United States Constitution was Chief Justice Marshall, but, even as great as he was,, we cannot apply the principles of his time to these times. In our modern times, the United States Supreme Court must be controlled by the aspirations and changes of the present. At the time our greatest Chief Justice held sway, there was no such thing as an income tax, and we cannot pinpoint all of his magnificent rulings to cases that come under his day and time.

Along the same line of thought, in discussing the commerce clause of the Federal Constitution, Article 1, § 8, we find the following pronouncement of the United States Supreme Court in the case of Freeman v. Hewit, 329 U.S. 249, 67 S.Ct. 274, 276, 91 L.Ed. 265, to be pertinent here:

“The power of the States to tax and the limitations upon that power imposed by the Commerce Clause have necessitated a long, continuous process of judicial adjustment. The need for such adjustment is inherent in a federal government like ours, where the sanie transaction has aspects that may concern the interests and involve the authority of both the central government and of the constituent States.
“The history of this problem is spread over hundreds of volumes of our Reports. To attempt to harmonize all that has been said in the past would neither clarify what has gone before nor guide the future. Suffice it to say that especially in this field opinions must be read in the setting of the particular cases and as the product of preoccupation with their special facts.”

Shadows must not be mistaken for substance when we consider a claim of immunity from taxation. The tax here sought to be summarily collected is not in form nor in substance a tax on interstate commerce; nor is it a tax on gross income; nor is it a franchise tax. It is imposed only after defendant has ascertained all of its profits, all of its losses, and all of its expenses in the conduct of its business within the State of Louisiana. If there should be no income earned within the State, the defendant could not be taxed. In the case of State v. Albert Mackie Co., 144 La. 339, 80 So. 582, 584, the pronouncement of our own Court is in accord with the views here expressed. It states:

“ * * * It is well settled that a state tax that affects interstate or foreign commerce only incidentally and not directly, as, for example, a tax upon property that is used in such commerce, or a tax upon net incomes or profits that have been derived from such commerce, or a fixed tax levied upon a local business without discriminating against interstate business, is not repugnant to the commerce clause of the federal Constitution (article 1, § 8). * * *”

In the case of United States Glue Co. v. Town of Oak Creek, 247 U.S. 321, 38 S.Ct. 499, 501, 62 L.Ed. 1135, the United States Supreme Court went on to say:

“ * * * in Peck & Co. v. Lowe * * * 247 U.S. 165, 38 S.Ct. 432, 62 L.Ed. 1049, we held that the Income Tax Act of October 3, 1913, c. 16, * * * when carried into effect by imposing an assessment upon the entire net income of a corporation, approximately three fourths of which was derived from the export of goods to foreign countries, did not amount to laying a tax or duty on articles exported within the meaning of article 1, § 9, cl. 5, of the Constitution. The distinction between a direct and an indirect burden by way of tax or duty was developed, and it was shown that an income tax laid generally on net incomes, not on income from exportation because of its source or in the way of discrimination, but just as it was laid on other income, and affecting only the net receipts from exportation after all expenses were paid and losses adjusted and the recipient of the income was free to use it as he chose, was only an indirect burden.
“ * * * A tax upon the net profits has not the same deterrent effect, since it does not arise at all unless a gain is shown over and above expenses and losses, and the tax cannot be heavy unless the profits are large. Such a tax, when imposed upon net incomes from whatever source arising, is but a method of distributing the cost of government, like a tax upon property, or upon franchises treated as property; and if there be no discrimination against interstate commerce, either in the admeasurement of the tax or in the means adopted for enforcing it, it constitutes one of the ordinary and general burdens of government, from which persons and corporations otherwise subject to the jurisdiction of the states are not exempted by the federal Constitution because they happen to be engaged in commerce among the states.”

See, Soltero v. Descartes, 1 Cir., 192 F.2d 755.

Defendant relies on the case of Spector Motor Service, Inc. v. O’Connor, 340 U.S. 602, 71 S.Ct. 508, 510, 95 L.Ed. 573, one of the. most recent cases in which the United States Supreme Court passed upon the invalidity of a tax under the Commerce Clause, U.S.C.A.Const. art. 1, § 8, cl. 3. We gather from its language that the decision in that case holds that the individual sovereign states cannot impose a franchise tax on a business which operates in interstate commerce because of its direct application to interstate trade. There a franchise tax was imposed under the Connecticut Corporation Business Tax Act of 1935, § 418c, measured on net income derived within the state and assessed in addition to the State Income Tax. We quote at length from the decision of Justice Burton, disallowing the tax, to which there were three dissents:

“The vital issue which remains is whether the application of the tax to petitioner violates the Commerce Clause of the Federal Constitution. We come to that issue now with the benefit of a statement from the state court of final jurisdiction showing exactly what it is that the State has sought to tax. The all-important ‘operating incidence’ of the tax is thus made clear. After full consideration and with knowledge that its statement would be made the basis of determining the validity of the application of the tax under the Commerce Clause, that court said:
“ ‘The tax is then a tax' or excise upon the franchise of corporations for the privilege of carrying on or doing business in the state, whether they be domestic or foreign. Stanley Works v. Hackett, 122 Conn. 547, 551, 190 A. 743. Net earnings are used merely for the purpose of determining the amount to be paid by each corporation, a measure which, by the application of the rate charged, was intended to impose upon each corporation a share of the general tax burden as nearly as possible equivalent to that borne by other wealth in the state. As regards a corporation doing business both within and without the state, the intention was, by the use of a rather complicated formula, to measure the tax by determining as fairly as possible the proportionate amount of its business done in this state. There is no ground upon which the tax can be said to rest upon the use of highways by motor trucks * * *.’ [Spector Motor Co. v. Walsh] 135 Conn. [37] at pages 56-57, 61 A.2d [89] at pages 98-99.
“The incidence of the tax is upon no intrastate commerce activities because there are none. Petitioner is engaged only in interstate transportation. Its principal place of business is in Illinois. It is authorized by the Interstate Commerce Commission to do certain interstate trucking and by the Connecticut Public Utilities Commission to do part of such interstate trucking in Connecticut. Petitioner has filed with the Secretary of State of Connecticut a certificate of its incorporation in Missouri, has designated an agent in Connecticut for service of process and has paid the state fee required in that connection. It has not been authorized by the State of Connecticut to do intrastate trucking and does not engage in it. See Terminal Taxicab Co. v. Kutz, Com’r of District of Columbia, 241 U.S. 252, 253-254, 36 S.Ct. 583, 584, 60 L.Ed. 984.
******
“The tax does not discriminate between interstate and intrastate commerce. Neither the amount of the tax nor its computation need be considered by us in view of our disposition of the case. The objection to its validity does not rest on a claim that it places an unduly heavy burden on interstate commerce in return for protection given by the State. The tax is not levied as compensation for the use of highways or collected in lieu of an ad valo-rem property tax. Those bases of taxation have been disclaimed by the highest court of the taxing State. It is not a fee for an inspection or a tax on sales or use. It is a ‘tax or excise’ placed unequivocally upon the corporation’s franchise for the privilege of carrying on exclusively interstate transportation in the State. It serves no purpose for the State Tax Commissioner to suggest that, if there were some intrastate commerce involved or if an appropriate tax were imposed as compensation for petitioner’s use of the highways, the same sum of money as is at issue here might be collected lawfully from petitioner. Even though the financial burden on interstate commerce might be the same, the question whether a state may validly make interstate commerce pay its way depends first of all upon the constitutional channel through which it attempts to do so. Freeman v. Hewit, 329 U.S. 249, 67 S.Ct. 274, 91 L.Ed. 265; McLeod v. J. E. Dilworth Co., 322 U.S. 327, 64 S.Ct. 1023, 88 L.Ed. 1304.
“Taxing power is inherent in sovereign states, yet the states of the United States have divided their taxing power between the Federal Government and themselves. They delegated to the United States the exclusive power to tax the privilege to engage in interstate commerce when they gave Congress the power ‘To regulate Commerce with foreign Nations, and among the several States * * *.’ U.S.Const. Art. I, § 8, cl. 3. While the reach of the reserved taxing power of a state is great, the constitutional separation of the federal and state powers makes it essential that no state be permitted to exercise, without authority from Congress, those functions which it has delegated exclusively to Congress. Another example of this basic separation of powers is the inability of the states to tax the agencies through which the United States exercises its sovereign powers. See McCulloch v. [State of] Maryland, 4 Wheat. 316, 425-437, 4 L.Ed. 579; Brown v. [State of] Maryland, 12 Wheat. 419, 445-449, 6 L.Ed. 678; Mayo v. United States, 319 U.S. 441, 63 S.Ct. 1137, 87 L.Ed. 1504.
“The answer in the instant case has been made clear by the courts of Connecticut. It is not a matter of labels. The incidence of the tax provides the answer. The courts of Connecticut have held that the tax before us attaches solely to the franchise of petitioner to do interstate business. The State is not precluded from imposing taxes upon other activities or aspects of this business which, unlike the privilege of doing interstate business, are subject to the sovereign power of the State. Those taxes may be imposed although their payment may come out of the funds derived from petitioner’s interstate business, provided the taxes are so imposed that their burden will be reasonably related to the powers of the State and nondiscriminatory.” [Italics ours.]
“This Court heretofore has struck down, under the Commerce Clause, state taxes upon the privilege of carrying on a business that was exclusively interstate in character. The constitutional infirmity of such a tax persists no matter how fairly it is apportioned to business done within the state. * * *
“Our conclusion is not in conflict with the principle that, where a taxpayer is engaged both in intrastate and interstate commerce, a state may tax the privilege of carrying on intrastate business and, within reasonable limits, may compute the amount of the charge by applying the tax rate to a fair proportion of the taxpayer’s business done within the state, including both interstate and intrastate. * * *
“In this field there is not only reason but long-established precedent for keeping the federal privilege of carrying on exclusively interstate commerce free from state taxation. To do so gives lateral support to one of the cornerstones of our constitutional law — Mc-Culloch v. [State of] Maryland, supra.”

We believe that the very language of the Court in the Spector case, supra, shows that the tax is entirely different from that imposed in the present matter. The incidence of the present tax is income earned in Louisiana, not the right to transport goods on waters located in Louisiana. There is no burden on nor interference with the defendant’s interstate transportation business.

Defendant further relies on the recent case of Railway Express Agency, Inc. v. Virginia, 347 U.S. 359, 74 S.Ct. 558, 563, 98 L.Ed. 757, and calls our attention to the following statement:

“ * * * It is enough to say that we recently have ruled that local incir dents such as gathering up or putting down interstate commodities as an integral part of their interstate movement are not adequate grounds for a state license, privilege or occupation tax. Spector Motor Service, Inc. v. O’Connor, 340 U.S. 602, 71 S.Ct. 508, 95 L.Ed. 573; Memphis Steam Laundry Cleaner, Inc. v. Stone, 342 U.S. 389, 72 S.Ct. 424, 96 L.Ed. 436; Michigan Wisconsin Pipe Line Co. v. Calvert, 347 U.S. 157, 74 S.Ct. 396, [98 L. Ed. 583]; New Jersey Bell Tel. Co. v. State Board [of Taxes & Assessments], 280 U.S. 338, 50 S.Ct. 111, 74 L.Ed. 463.”

The above quoted case is not apposite, in that it involved a privilege tax and the formula employed for assessment. It makes no mention of income taxes, nor does it abandon the local incident theory. It merely states that some local incidents, such as gathering up or putting down interstate commodities, are not grounds for license, privilege or occupation tax. The three cases cited therein did not involve net income taxes. In the case of New Jersey Bell Telephone Co., supra, a direct tax on gross receipts derived from interstate commerce was held invalid. The Memphis Steam Laundry case, supra, held that a Mississippi state -tax upon persons soliciting business for laundries not licensed in the state unconstitutionally burdened interstate commerce. The Michigan-Wisconsin Pipe Line Co. case, supra [347 U.S. 157, 74 S.Ct. 400], involved a Texas tax on the occupation of gathering gas measured by the entire volume of gas taken, as applied to an interstate natural gas pipeline company, where the taxable incidence was the taking of gas from the outlet of an independent gasoline plant within the state for the purpose of immediate interstate transmission. There it was held that the tax infringed the commerce clause, and the Court made the following pertinent statement:

“ * * * Under the Commerce Clause interstate commerce and its in-strumentalities are not totally immune from state taxation, absent action by Congress. Frequently it has been said that interstate business must pay its way, Postal Tel. Cable Co. v. City of Richmond, 1919, 249 U.S. 252, 259, 39 S.Ct. 265, 266, 63 L.Ed. 590 [594]; Western Live Stock v. Bureau of Revenue, 1938, 303 U.S. 250, 254, 58 S.Ct. 546, 548, 82 L.Ed. 823, [115 A.L.R. 944]; and the Court has done more than pay lip service to this idea. Numerous cases have upheld state levies where it is thought that the tax does not operate to discriminate against commerce or unduly burden it either directly or by the possibility of multiple taxation resulting- from other taxes of the same sort being imposed by other states. The recurring problem is to resolve a conflict between the Constitution’s mandate that trade between the states be permitted to flow freely without unnecessary obstruction from any source, and the state’s rightful desire to require that interstate business bear its proper share of the costs of local government in return for benefits received. Some have thought that the wisest course would be for this Court to uphold all state taxes not patently discriminatory, and wait for Congress to adjust conflicts when and as it wished. But this view has not prevailed, and the Court has therefore been forced to decide in many varied factual situations whether the application of a given state tax to a given aspect of interstate activity violates the Commerce Clause. It is now well settled that a tax imposed on a local activity related to interstate commerce is valid if, and only if, the local activity is not such an integral part of the interstate process, the flow of commerce, that it cannot realistically be separated from it. Memphis Natural Gas Co. v. Stone, 1948, 335 U.S. 80, 87, 68 S.Ct. 1475, 1478, 92 L.Ed. 1832 [1838], Western Live Stock v. Bureau of Revenue, supra, 303 U.S. at page 258, 58 S.Ct. at page 550.”

The following pronouncement made in the earlier case of Western Live Stock v. Bureau of Revenue, 303 U.S. 250, 58 S.Ct. 546, 548, 82 L.Ed. 823, is a thorough statement of the relation between interstate commerce and taxation by the sovereign states:

“It was not the purpose of the commerce clause to relieve those engaged in interstate commerce from their just share of state tax burden even though it increases the cost of doing the business. ‘Even interstate business must pay its way,’ Postal Telegraph-Cable Co. v. [City of] Richmond, 249 U.S. 252, 259, 39 S.Ct. 265, 266, 63 L.Ed. 590, 594. * * * and the bare fact that one is carrying on interstate commerce does not relieve him from many forms of state taxation which add to the cost of his business. He is subject to a property tax on the instruments employed in the commerce, Western Union Telegraph Co. v. Attorney General, 125 U.S. 530, 8 S.Ct. 961, 31 L.Ed. 790; * * - * and if the property devoted to interstate transportation is used both within and without the state, a tax fairly apportioned to its use within the state will be sustained, Pullman’s Palace-Car Co. v. [Commonwealth of] Pennsylvania, 141 U.S. 18, 11 S.Ct. 876, 35 L.Ed. 613 * * *. Net earnings from interstate commerce are subject to income tax, United States Glue Co. v. [Town of] Oak Creek, 247 U.S. 321, 38 S.Ct. 499, 62 L.Ed. 1135 * * * and if the commerce is carried on by a corporation, a franchise tax may be imposed, measured by the net income from business done,within the state, including such portion of the income derived from interstate commerce as may be justly attributable to business done within the state by a fair method of apportionment, Underwood Typewriter Co. v. Chamberlain, 254 U.S. 113, 41 S.Ct. 45, 65 L.Ed. 165; * * *."

The cases of State of Wisconsin v. J. C. Penney Co., 311 U.S. 435, 61 S.Ct. 246, 85 L.Ed. 267; Matson Nav. Co. v. State Bd. of Equalization, 297 U.S. 441, 56 S.Ct. 553, 80 L.Ed. 791, 793; and West Pub. Co. v. McColgan, 27 Cal.2d 705, 166 P.2d 861; Id., 328 U.S. 823, 66 S.Ct. 1378, 90 L.Ed. 1603, are all affirmatives of the fact that a state may collect an income tax from á corporation engaged in interstate commerce, based on its net income derived within the state.

Defendant argues that the case of Freeman v. Hewit, 329 U.S. 249, 67 S.Ct. 274, shows a change in the attitude of the United States Supreme Court. That case is not apposite. There the Court recognized an impediment upon the current of commerce, and it held that a tax imposed under the Indiana Gross Income Tax Act on gross receipts of the sale of securities by a resident owner through a nonresident bro-lcer was invalid as a tax on interstate commerce in violation of the commerce clause.

On the question of due process, the United States Supreme Court, in upholding an ad valorem tax under assessments based on the ratio between the total number of miles of appellees’ lines in Louisiana and the total number of miles of the entire line, stated in the case of Ott v. Mississippi Valley Barge Line Co., 336 U.S. 169, 69 S.Ct. 432, 434, 93 L.Ed. 585:

“ * * * The problem under the Commerce Clause is to determine 'what portion of an interstate organism may appropriately be attributed to each of the various states in which it functions.’ Nashville, C. & St. L. R. Co. v. Browning, 310 U.S. 362, 365, 60 S.Ct. 968, 970, 84 L.Ed. 1254 [1255], So far as due process is concerned the only question is whether the tax in practical operation has relation to opportunities, benefits, or protection conferred or afforded by the taxing State. See [State of] Wisconsin v. J. C. Penney Co., 311 U.S. 435, 444, 61 S.Ct. 246, 249, 85 L.Ed. 267 [270], 130 A.L.R. 1229. Those requirements are satisfied if the tax is fairly apportioned to the commerce carried on within the State.” [Italics ours.]
“ * * * interstate commerce can be made to pay its way by bearing a nondiscriminatory share of the tqx burden which each State may impose on the activities or property within its borders. * * * We can see no reason which should put water transportation on a different constitutional footing than other interstate enterprises.”

The taxes in the instant case meet the requirements set forth above, and we find no violation of the due process clause of either the State or Federal Constitution.

In the case of Best & Co., Inc. v. Maxwell, 311 U.S. 454, 61 S.Ct. 334, 335, 85 L.Ed. 275, it is stated:

“In each case it is our duty to determine whether the statute under attack, whatever its name may be, will in its practical operation work discrimination against interstate commerce.”

Immunity from nondiscriminatory taxation, sought by private corporations because they use property in interstate commerce, cannot be based on a mere theoretical concept -of interference with the commerce clause of the Federal Constitution. Under our dual system of government, the exercise of taxing power is equally essential to both. It often becomes necessary for the Court to make distinctions in the denial or assertion of the right to tax. In the instant case, the right to tax is clearly manifest.

For the reasons assigned, the judgment of the trial court is affirmed.


source: Caselaw Access Project

author: SIMON, Justice.

license: Public Domain

text:
    228 La. 1054
    SUCCESSION of Martha CERVINI, Widow of Paul Baragona.
    No. 42082.
    Supreme Court of Louisiana.
    Dec. 12, 1955.
    Rehearing Denied Jan. 16, 1956.

      Philip P. Spencer, Charles L. Rivet, New Orleans, for defendants-appellants.
    Rudolph O. Vorbusch, New Orleans, for plaintiff-appellee.
   SIMON, Justice.

This is an appeal from a judgment of the District Court, Parish of Orleans, adjudging appellant, Paul Baragona, an incestuous bastard and as such incapable of inheriting the estate of his natural mother, Ethel Dora Baragona.

Ethel Dora Baragona was the sole heir and only child of her parents, Martha Cer-vini, wife of and Paul Baragona. Paul Baragona died intestate in the year 1926. Ethel Dora Baragona, a feme sole, died intestate on September 1, 1944, survived by her mother, the said Martha Cervini Baragona, and one child, Paul Baragona, who was born out of wedlock on July IS, 1931, and who was on January 20, 1937, adjudged by the Juvenile Court for the Parish of Orleans to be feeble-minded and committed to the State Colony and Training School at Pineville, Louisiana.

On February 13, 1952, Martha Cervini Baragona caused the successions of her deceased husband and daughter to be opened, entitled “Successions of Paul Bara-gona and Ethel Dora Baragona”, Docket No. 311,741, Civil District Court, Parish of Orleans. In her petition the said Martha Cervini Baragona alleged that she was the surviving widow of the de cujus Paul Bar-agona ; that during their marriage one child, Ethel Dora Baragona, was born on October 31, 1907, who was at birth a moron or idiot; that the said Ethel Dora Bara-gona died on September 1, 1944, intestate, leaving as her sole and only issue an incestuous bastard who was also born an idiot or moron and who was at the time of this proceeding confined in a state institution for the insane. She alleged that she was the widow in community of the dece-cedent, Paul Baragona, and the sole and only heir of the second decedent, Ethel Dora Baragona, and as such entitled to all the property belonging to the community and forming the whole of their successions.

On May 10, 1952, the said Martha Cer-vini Baragqna died testate, naming Charles K. Harris universal legatee under a nun-cupative will by public act executed on March 10, 1951. This will was duly filed, probated, and registered in the proceeding entitled “Succession of Mrs. Martha Cer-vini, Widow of Paul Baragona,” No. 314,-040 of the Docket of the Civil District Court, Parish of Orleans. Subsequently Charles K. Harris filed a petition in the proceeding entitled “Successions of Paul Baragona and Ethel Dora Baragona” and therein obtained a judgment recognizing the estate of Martha Cervini as full owner and placing it in possession of all the property comprising said joint successions.

Thereafter Charles K. Harris, as universal legatee, obtained a judgment in the Succession of Martha Cervini, recognizing him as owner and placing him in possession of all the effects of said succession. Harris’, demand upon various homesteads in this city to transfer certain stocks forming part of said succession was refused. Thereupon, he brought a mandamus proceeding against said associations to compel the transfers. Pending hearing thereof, Harris filed suit against Paul Baragona to establish contradictorily his status as that of an incestuous bastard enjoying no right of inheritance. In compliance with law, a curator ad hoc was appointed to represent the said defendant.

After the trial of that issue, judgment was rendered in favor of Charles K. Harris, decreeing the defendant, Paul Bara-gona, the child of Ethel Dora Baragona, to be an incestuous bastard. The curator ad hoc perfected an appeal from said judgment to this court, and while said appeal was pending, the appellant, Paul Bara-gona, died on May 31, 1955.

Thereupon, by order of this court on October 11, 1955, the Public Administrator for the Parish of Orleans, having qualified as the administrator of the “Succession of Paul Baragona”, No. 339,301 of the Docket of the Civil District Court, was admitted as a party litigant in the instant suit. On the same day, the attorney who had served as curator ad hoc was entered as attorney for the absent heirs of the defendant-appellant herein, Paul Baragona.

This appeal presents one issue, the correctness of the trial court’s judgment decreeing Paul Baragona to be an incestuous bastard and therefore prohibited by our law from inheriting as the sole heir of his mother’s estate.

The record discloses the undisputed pertinent facts to be as follows: Ethel Dora Baragona was the only child born of the marriage between Martha Cervini and Paul Baragona. She survived her deceased father, and, as his sole and only heir, was entitled to inherit his entire estate of a one-half interest in all community effects. Approximately five years following his death, she gave birth to a child out of wedlock, giving said child her deceased father’s name, Paul Baragona. Ethel Dora Bara-gona was epileptic and notoriously imbecilic from birth, and her mental development never exceeded that of a child of seven years. However, she was never committed to an institution. She was never married. The child she gave birth to was tragically and unfortunately more afflicted than she, born an idiot whose mental processes did not develop to that of a child of three years. Because of said child’s total mental infirmities he was committed to a state institution when he was about five years old.

Notwithstanding that the heritable rights of said child flow solely from the mother’s estate and not that of the reputed father’s, the paternity of said child is vigorously disputed.

Under Chapter 3, section 2 of our LSA-Civil Code, dealing with illegitimate children, Article 209 prescribes the methods of proving paternity, which are as follows:

“1. By all kinds of private writings, in which the father may have acknowledged the bastard as his child, or may have called him so;

“2. When the father, either in public or in private, has acknowledged him as his child, or has called him so in conversation, or has caused him to be educated as such;

“3. When the mother of the child was known as living in a state of concubinage with the father, and resided as such in his house at the time when the child was conceived.”

The record is barren of proof of any acknowledgment of paternity by the reputed father so as to make applicable the provisions of subdivisions 1 and 2 of the codal article. Hence, any proof of paternity would necessarily and in this instance exclusively fall within the method prescribed by subdivision 3.

In an effort so to do, Charles K. Harris produced disinterested witnesses who were neighbors and who testified to their beliefs, undoubtedly sincere, that the father of Ethel’s child was Frank Baragona, her paternal uncle. The testimony of these witnesses establishes that Mrs. Martha Cer-vini Baragona owned a two-story house in which she rented light-housekeeping apartments. She maintained living quarters for herself and her daughter in the first floor front apartment; Frank Baragona occupied a rear room on the first floor for a period of about three or four months and enjoyed the status of a member of the family. As such, he was on several occasions entrusted with attending and supervising Ethel Dora Baragona and was often permitted to take her on long walks along the city streets. There is testimony to the effect that Ethel childishly referred to Frank Baragona as her husband.

Though it is amply established that Mrs. Cervini Baragona closely supervised and tenderly -watched the conduct of her mentally and physically infirm young daughter and provided to the best of her ability safety against injury which often occurs during the' throes of epileptic attacks, that despite these guarded efforts Ethel often appeared out of doors totally unclothed.

When her unexpected pregnancy became the subject of neighborhood gossip and consternation, the accusing finger was pointed at the uncle, Frank Baragona. Over objection of counsel that the evidence was hearsay, two of the witnesses testified that Frank Baragona • admitted ravishing the imbecilic girl, one of them testifying to having personally seen Ethel and Frank in a room unclothed. She further testified that she reprimanded Frank for such depravity; and that on the same day, he left the home. Since that date his whereabouts have been unknown.

Other evidence in the record consists of certified copies of birth and baptismal certificates, neither of which contained the name of the father, of the said child. The space reserved for the name of the father was left blank on the birth certificate and marked “unknown” on the baptismal certificate.

We attach no weight whatsoever to the testamentary declaration by the child’s grandmother declaring said child to be an incestuous bastard. Such a declaration is at the most an ex parte statement of a deceased person and does not constitute legally admissible evidence. In the case of Succession of Bourgeois, 151 La. 580, 92 So. 122, we held that the testimony of witnesses must be taken contradictorily in court, and ex parte affidavits cannot be substituted therefor.

Admittedly, the testimony of the witnesses suggests reprehensible and lustful conduct on the part of Frank Baragona toward his niece. But we are not convinced such evidence is the nature and quality of proof required to declare a child born out of wedlock to be an incestuous bastard. To stigmatize the defendant-appellant herein (now deceased) with the disreputable and degrading status of incestuous bastard, hopelessly illegitimate, and to condemn a male member of a family with the scornful guilt of paternity of the child of his imbecilic niece demand explicit and positive proof and not suspicion and idle comments, even though the latter be based upon what human experience might indicate to one of normal intelligence as being a probability.

The language of subdivision 3 of Civil Code Article 209 clearly provides that paternity may be proved by evidence that the mother of the child was known as living in a state of concubinage with the father. The word “known” unquestionably denotes conduct which is open, free from concealment, without reserve, and which is practically avowed to a casual observer, con-tradistinguished from that which is secret, clandestine, disguised, thus avoiding any necessary odious inquiry. The language of the codal article, “living in a state of concubinage with the father, and resided [residing] as such * * * when the child was conceived”, imports something more than the mere illicit commerce of a man and a woman or isolated instances of adulterous relationship. It further imports the maintenance of a status resembling marriage, the living together as husband and wife without benefit of ceremony. See, Succession of Jahraus, 114 La. 456, 38 So. 417; Gauff v. Johnson, 161 La. 975, 977, 109 So. 782; Texada v. Spence, 166 La. 1020, 118 So. 120, 62 A.L.R. 281; Succession of Lannes, 187 La. 17, 174 So. 94.

Applying, as we must, the ordinary as well as the legal sense of the language of this codal provision, we must perforce conclude that the evidence here presented, being mostly circumstantial evidence and ex parte statements, does not warrant an affirmation of the judgment rendered by the trial court.

Accordingly, for the reasons assigned, the judgment of the district court is hereby reversed, annulled and set aside, and it is ordered that this cause be remanded for proper proceedings not inconsistent with the views herein expressed.

      . LSA-C.C. Art. 920: “Bastard, adulterous or incestuous children shall not enjoy the right of inheriting the estates of their natural father or mother, in any of the cases' above mentioned, the law allowing them nothing more than a mere alimony.”


author: HAWTHORNE, Justice.

text:
    228 La. 1065
    Frank J. CIPRIANO v. SUPERIOR REALTY & CONSTRUCTION CORPORATION and Clifford W. Sherman, Jr.
    No. 41959.
    Supreme Court of Louisiana.
    Dec. 12, 1955.
    Rehearing Denied Jan. 16, 1956.

      Bienvenu & Culver, Lenfant & Villere, New Orleans, P. A. Bienvenu, New Orleans, of counsel, for plaintiff-appellant.
    Adams & Reese, New Orleans, W. Ford Reese, New Orleans, of counsel, for defendant Aetna Casualty & Surety Co.
    Deutsh, Kerrigan & Stiles, New Orleans, Gerald J. Gallinghouse and Albert J. Flett-rich, New Orleans, of counsel, for defendants-appellees.
   HAWTHORNE, Justice.

Frank J. Cipriano instituted this suit to recover an in solido judgment against defendants, alleging that a house which he purchased from one of the defendants was partially destroyed by a fire which started in a wall heater and that the heater was either defective when installed or had been improperly installed. His main demand is for $8,592.48 for breach of warranty, which he itemizes as follows: $5,021.33 as a reduction in the purchase price of the house, $1,071.15 as damages for the loss of several items of furniture destroyed by the fire, and $2,500 as legal expenses. In the alternative he prays for judgment against all defendants in solido in the sum of $6,092.48 as damages caused by the fire which he alleges resulted from the negligence of the defendants in installing a defective heater or in installing the heater in a defective manner.

It will thus be' seen that plaintiff’s main demand is one for diminution of the price of the dwelling, together with damages and repayment of expenses incurred, because of a vice in the house when sold, and that his alternative demand is one in tort to recover damages caused by the defendants’ negligence. ,

The pertinent facts in this litigation are these: In February, 1951, Superior Realty & Construction Corporation entered into a contract with Clifford W. Sherman for the construction of a house on a lot owned by Superior in the City of New Orleans. The Continental Casualty Company was surety on this contract for Sherman. The contractor built the house, installing in it a Payne Panelair Forced Air Wall Heater. Superior accepted the house when completed and sold it through a building and loan association to Cipriano. After Cipri-ano had occupied the house for about two months, the heater was lighted, and during his absence the dwelling caught fire and was damaged.

Cipriano filed this suit naming as defendants Superior Realty & Construction Corporation, which was the owner of the property at the time the house was built and which sold it to plaintiff; Clifford W. Sherman, Jr., the contractor who constructed the house for Superior prior to its sale to plaintiff; Continental Casualty Company, surety for the contractor for the faithful performance of the contract and payment of laborers, etc.; and Aetna Casualty & Surety Company, the liability insurer of Affiliated Gas Equipment Company, Inc., manufacturer of the heater.

Defendants all filed answers which are in substance general denials of the allegations of plaintiff’s petition. Several of the defendants called each other in warranty, but it is not necessary for us to set out these pleadings except to state that Superior, plaintiff’s vendor, prayed that its rights be reserved against Continental, surety on the contractor’s bond, for any loss or damage that it might sustain because of these proceedings.

After trial on the merits plaintiff’s suit was dismissed in its entirety, and he appealed.

We are convinced that the lower court erred in dismissing plaintiff’s main demand as against all defendants, for in our opinion his action for reduction of the purchase price against defendant Superior Realty & Construction Corporation, his vendor, is well founded. However, we agree that the judgment dismissing the suit as to all other defendants is correct.

Plaintiff’s main demand grows out of a contract of sale and is founded upon an alleged breach of warranty by his vendor, Superior. He has no right of recovery on this main demand against any of the other defendants because there was no relationship of vendor and vendee existing between them and him. Although his alternative demand in tort might have merit, this demand passes out of the case when we conclude that plaintiff is entitled to recover from his vendor on his main demand. An alternative demand is made only on the condition that the demand first made should not be granted. See Haas v. McCain, 161 La. 114, 119, 108 So. 305.

The law applicable to plaintiff’s main demand is found in the articles of our Civil Code under Title 7, Of Sale, Chapter 6, Of the Obligations of the Seller. Under this law the seller is obliged to warrant the thing which he sells. Art. 2475. The sale may be avoided for some vice or defect in the thing sold which renders it absolutely useless or its use so inconvenient and imperfect that it might be supposed that the buyer would not have purchased it had he known of the vice, and a suit for this purpose is called a redhibitory action. Art. 2520. This action will'not lie for apparent defects. Art. 2521. The buyer who institutes such an action must prove that the vice existed before the sale was made to him. Art. 2530. Under the provisions of Article 2541, whether a defect in the thing sold be such as to render it useless and altogether unsuited to its purpose or whether it be such as merely to diminish the value, the buyer may limit his demand to an action for re-Auction of the price, which is the action plaintiff instituted here. This action, under the provisions of Article 2544, is subject to the same rules and to the same limitations as the redhibitory action. In such an action the seller who knows of the vice of the thing he sells and omits to declare it, besides the restitution of the price and the repayment of the expenses, is answerable to the buyer in damages. It is under the provisions of this article that plaintiff in bis main demand seeks to recover damages lor the loss of the furniture and his legal expenses. This action must be instituted within one year at the furtherest commencing from the date of the sale. This limitation, however, does not apply where the seller had knowledge of the vice and neglected to declare it to the purchaser. Art. 2534.

The proof in this case is overwhelming that the fire which damaged the house purchased by plaintiff from Superior was caused by a wall heater which had been installed in a small closet in the dwelling by the vendor’s contractor before the sale of the house to plaintiff. It was also established to our satisfaction that the plaintiff himself was free of fault, and that he had not tampered with the heater.

The type of heater involved in this case is a gas-burning heater, thermostatically controlled, in which the burned gas is vented and the heat transmitted through fans which blow the heated air through a register into the area of the house to be heated. The fans are driven by electric motors, and this blower system is essential to the proper operation of the heater. If the blower system fails to function and if the heater continues to burn, there is a tremendous build-up of heat within the heater itself, sufficient to set fire to any combustible material in the area. If the motors of the fans are to operate, an electric plug must be inserted into an outlet installed in the heater enclosure.

We are convinced that on the occasion of the fire this electric plug had not been inserted in the electric outlet and that consequently the blower fans were not in operation. Moreover, for some reason the safety devices which should have cut off the main gas burner in such an emergency failed to operate, and thus there resulted a build-up of heat in the unit itself which caused the fire that damaged plaintiff’s house.

After the fire the heater was examined by an expert from Shilstone Testing Laboratory, who' found a number of defects in it. For example, the diaphragm in the low pressure regulator was ruptured and this caused it to leak gas; the vent tube from the low pressure regulator did not extend to the pilot light as it should have, but terminated an estimated 10 or 12 inches therefrom, directly over the B-60 valve; gas from the ruptured diaphragm escaped from this tube and burned over the B-60 valve, causing it to become jammed due to excess heat so that it did not turn off the flow of gas to the burners as it should have.

This expert was unable to say with any degree of certainty which, if any, of these defects existed at the time the heater was installed or whether they resulted from or were caused by the fire. We likewise cannot determine this, but in any event it is immaterial because of other evidence in the case.

The evidence in this case proves conclusively that a proper installation of the heater should have included the connection of the electric motors which operated the blower system to the electric system of the house by the insertion of the plug in the electric outlet in the closet where the heat-' er was installed. As we pointed out above, if this connection was not made, the blower system of the heater would not operate. In fact, the installation instructions furnished by the manufacturer call for making this connection. Thus the plugging in of the electric blower system is a necessary part of the permanent installation of the heater. This connection was never made. Also a correct installation of the heater calls for testing the heater in operation after it is installed to see that it is functioning perfectly. Such an inspection shows whether defects exist in the heater or in its installation. No such test was ever made in the instant case.

Installation of the heater in the instant case was therefore defective because the heater was never connected with the electrical system and no test was ever made to ascertain whether it had been correctly installed and was free from defects. The heating system in this dwelling, due to its improper installation, was therefore not free of vices and defects at the time the house was sold to the plaintiff by the defendant Superior.

When a house is sold with a heating system already installed, the heating system forms as much a part of the house as does the foundation or the roof and is covered by the vendor’s warranty. If this heating system proves to have hidden vices which existed at the time of the sale and which were such as to render it useless and unsuited for its purpose, the buyer has an action for redhibition or for diminution of the purchase price. Arts. 2520, 2521, La. Civil Code.

In the instant case we are convinced from the evidence that the defective installation of the heater could not have been ascertained by a simple inspection. Moreover, it could not be supposed that the plaintiff would have purchased the house had he known of the existence of this defective heating system. See Art. 2520, La. Civil Code. Under these circumstances we think plaintiff is entitled to a diminution of the purchase price in the sum of $5,021.33, the amount alleged and proven to have been necessary to make the repairs to the dwelling damaged by the fire.

We do not think, however, that plaintiff is entitled to recover damages for the loss of his furniture and for legal expenses. There is no proof in this record that Superior had any knowledge of the vices and defects in the heating system at the time the house was sold to plaintiff. Art. 2545, La. Civil Code. The evidence shows that this building was constructed by an independent contractor under plans and specifications, and not by the vendor itself.

Plaintiff, in support of his right to recover the entire amount claimed as well as his right to recover from the contractor Sherman and the surety on his bond, cites and relies on Tuminello v. Mawby, 220 La. 733, 57 So.2d 666, and Breaux v. Laird, 223 La. 446, 65 So.2d 907. Neither of these cases, however, is pertinent here.

In the instant case there is no presumption that plaintiff’s vendor, Superior, had any knowledge of the vices or defects existing in the thing sold, since that corporation did not construct the dwelling. This being so, plaintiff is not entitled to recover, in addition to the amount awarded him as diminution of the price, the items of damages and expenses for which he prays under Article 2545 of the Civil Code. Moreover, neither of those cases gives him the right to recover on his main demand against the contractor Sherman and Continental, surety on the building contract.

In Tuminello v. Mawby, the defendants composed an ordinary partnership. They had an arrangement by which one would purchase a lot and the other would build a house on it. The house would then be sold, and the profits, if any, divided between them. Such is not the fact in the instant case. Plaintiff alleged some such relationship between vendor and contractor here, but failed to prove it.

In Breaux v. Laird, we held that under Article 2011 of the Civil Code one who acquires immovable property will have the right to enforce a contract made for the improvement of the property by the person from whom he acquired it. In the instant case plaintiff is not attempting to enforce the building contract entered into between Superior and Sherman; that is, he is not attempting to avail himself of any right Superior may have had to enforce that contract. Here plaintiff is suing for a breach of warranty under a contract of sale between him and Superior. It is obvious, therefore, that the Breaux case and the one at bar are based on fundamentally different factual situations.

From the reasoning of the trial judge it would appear that he treated this case principally as one in tort, concluded that the doctrine of res ipsa loquitur was not applicable, and did not give much consideration to plaintiff’s main demand. In this court counsel for all litigants argued and briefed this case as if it were one principally in tort, and devoted most of their argument, oral and written, to the question of whether the doctrine of res ipsa loquitur was applicable, and they made very little mention of plaintiff’s main demand. However, since we have concluded that plaintiff is entitled to recover from Superior on his main demand, his alternative demand in tort passes out of the case.

The judgment appealed from is reversed insofar as it dismissed plaintiff’s suit against the defendant Superior Realty & Construction Corporation, and it is ordered that plaintiff have judgment against this defendant in the sum of $5,021.33 with legal interest from judicial demand until paid. In all other respects the judgment of the district court is affirmed. The rights of defendant Superior, if any, are reserved against Continental Casualty Company, surety on the contractor’s bond. All costs are to be paid by Superior Realty & Construction Corporation.

FOURNET, C. J., and PONDER, J., absent.

      . See R.S. 6:766.

      . In the instant case plaintiff instituted his suit a little more than a year from the date of the sale. However, defendants have not pleaded the prescription of one year, and it is well settled that prescription must be expressly pleaded and that such a plea cannot be supplied ex officio by this court. See Succession of Thompson, 191 La. 480, 186 So. 1.


text:
    228 La. 1078
    STATE of Louisiana on the relation of Robert R. BOUCHER, Ancil C. Wilkinson and Jules R. Gueymard v. J. Hadley HEARD, Administrator of the Division of Employment Security of the Department of Labor, State of Louisiana, Luther H. Simmons, Commissioner, and A. P. Tugwell, Treasurer.
    No. 42529.
    Supreme Court of Louisiana.
    Dec. 12, 1955.
    Rehearing Denied Jan. 16, 1956.

      James J. Morrison, New Orleans, Rudolph R. Schoemann, New Orleans, of counsel, for relators and appellants.
    Aubrey B. Hirsch, Baton Rouge, John S. Covington, Baton Rouge, of counsel, for defendant, Commissioner of Labor.
    Lewis D. Dunbar, Marion Weimer, Baton Rouge, Richard B. Montgomery, John W. Read, III, New Orleans, . of counsel, Fred S. LeBlanc, Atty. Gen., Joel B. Dickinson, Asst. Atty. Gen., for respondents-appellees.
   SIMON, Justice.

Relators, Robert R. Boucher, Ancil C. Wilkinson and Jules R. Gueymard, instituted this mandamus proceeding in the District Court of East Baton Rouge Parish against the Administrator of the Division of Employment Security of the Department of Labor, the Commissioner of Labor and the Treasurer of the State of Louisiana, seeking the recovery of back salaries for the period from June 24, 1953 to October 29, 1954, alleging improper and illegal dismissal from their Civil Service offices .on June 24, 1953. See Boucher v. Division of Employment Security, etc., 226 La. 227, 75 So.2d 343. Alternative writs of mandamus issued.

Respondent, the Commissioner of Labor, filed an exception of misjoinder of parties defendant, contending that under the law he exercises no responsibility, nor is he charged therewith, in connection with the administration of the Division of Employment Security. Though counsel for ex-ceptor has filed a brief herein, there is nothing for us to review, the merits of said exception not having been disposed of below. However, the conclusions we reach herein will not deprive exceptor of the right to reurge this exception in the district court.

Respondents, the Administrator of Division of Employment Security of the Department of Labor and the Treasurer of the State of Louisiana, filed a plea to the jurisdiction of the district court, ratione materiae, and exceptions of lis pendens, prematurity, no right or cause of action, and improper verification. The merits of the last-named exception, not having been considered by the trial- court, are not before us for review. Upon hearing, judgment was rendered maintaining the remaining exceptions, recalling and setting aside the alternative writ of mandamus, and dismissing relators’ suit. Hence this appeal.

The pleadings in connection with the exceptions sustained below presented the following pertinent facts: On June 24, 1953, relators were dismissed from their Civil Service employment in the Division of Employment Security, which action was subsequently affirmed by the Civil Service Commission. Upon appeal to this court, the judgment of the Civil Service Commission was reversed and set aside and the dismissal of these relators held to be illegal, null and void.

Pursuant to the judgment and decree of this court, as shown by a certified copy of the roster of classified state employees attached to the petition, each relator on October 8, 1954, was reinstated to his former status as to salary and classification. Notwithstanding said reinstatement, relators were again dismissed by the Division of Employment Security on October 29, 1954, the justification of which is now pending on appeal before the Civil Service Commission.

They further show that despite the fact that their dismissal on June 24, 1953, was declared by us to be illegal, and that they were at all times willing and available to perform the duties of their employment, and despite the further fact that on October 8, 1954, they were reinstated to the State Civil Service roster of classified employees with acknowledgement thereon that their dismissals on June 24, 1953, were null, void and of no effect, relators were not paid any salaries during the period from the date of their dismissal on June 24, 1953, to their second dismissal on October 29, 1954.

The right to sue for the recovery of these back salaries, as presented in this proceeding, is the sole question before us. The issues raised by the exceptions, however, are so correlated that a consideration of either involves a discussion and adjudication of all.

Respondents urge that the validity of the judgment of the district court is supported by Article XIV, § 15(O) (1) of the LSA-Constitution, which specifically vests in the Civil Service Commission original jurisdiction, and “the exclusive right to hear and decide all appeals and the legality of all removal and disciplinary cases”. This Article further provides that the decision of the Commission “shall be final on the facts” with the right of an appeal to this court on “any question of law” when timely applied for.

Thus it is apparent that respondents’ contentions involve solely the question of the proper forum in which relators are entitled to assert their respective claims.

Counsel for respondents have unwittingly fallen into error when they state that paragraph IV of relators’ petition for mandamus presents the questions of reinstatement and back pay and 'that both claims are “still pending before the State Civil Service Commission”. Said paragraph IV actually reads, “Relators show that on October 29, 1954, they were again illegally and unlawfully dismissed from the service by the said respondent from which action your relators have appealed and which proceedings are still pending’ before the State Civil Service Commission.” Clearly, the appeal referred to by relators and which is still pending before the Commission does not involve any claim whatsoever for back pay. Relators’ appeal pending before the Commission involves solely the legality of their dismissal from the service on October 29, 1954, the jurisdiction of which is vested exclusively in the Commission.

The provisions of Article XIV, § 15(0) (3), also relied upon by respondents to support their contention that the Commission is vested with the exclusive original forum to decide or resolve any claim for back pay, is not applicable here. This particular sub-paragraph becomes applicable and effective only where there has been a legal dismissal followed by a hearing and reinstatement. Upon such reinstatement the Commission may, in the exercise of its discretion, grant or refuse the award of back pay; but the predicate of a lawful dismissal or suspension, followed by a subsequent reinstatement, must exist before the discretionary power vested in the Commission by this sub-paragraph can be exercised. In the absence of a lawful dismissal there is no necessity, in law or in fact, for a reinstatement.

In the case at bar, relators were never lawfully dismissed from their Civil Service offices and their services never lawfully terminated. Until there has been a lawful removal for cause, a civil servant is legally entitled to recognition of his permanent status as such, with the corresponding right to enforce the attending emoluments, rights and benefits flowing therefrom.

We are cognizant of the basic purpose of our Civil Service laws and are .admonished to adhere to its spirit and motive, designed as they are, to guarantee the independent security and welfare of public service. We conclude that during the interim of June 24, 1953 to October 29, 1954, relators, having never been lawfully dismissed, as previously adjudged by us, retained their permanent status as Civil Service servants and are entitled to receive payment of their salaries during the period of time, and until they have been lawfully removed or suspended for cause.

In the recent case of City of New Orleans v. Jackson, 224 La. 771, 70 So.2d 679, 683, we said:

“With regard to cases of this character * * * in which the reinstated employee demands his back salary, a very pertinent observation made by this Court, is found in the case of State ex rel. Charles v. Board of Commissioners of Port of New Orleans, 159 La. 69, 77, 105 So. 228, 230. * * *
“ ‘ * * * if, * * * it is shown that he has not merited discharge, then his suspension is a mere enforced vacation for which the board must pay him as if he had never been suspended’ (Emphasis ours.)”

Under Article 834 of our Code of Practice the writ of mandamus lies to order and compel public officers to perform the mandatory duties which their offices impose upon them. State ex rel. Sonnenberg v. Board of Com’rs, 1922, 149 La. 1095, 90 So. 417; State ex rel. Hughes v. Board of Com’rs, 1922, 150 La. 1, 90 So. 419; State ex rel. Tallant v. Board, 1926, 161 La. 361, 108 So. 770; State ex rel. Pepper v. Sewerage & Water Board, 1933, 177 La. 740, 149 So. 441; State ex rel. Murtagh v. Department of City Civil Service, 215 La. 1007, 42 So.2d 65.

Accordingly, for the reasons assigned, the judgment of the district court is reversed, annulled and set aside, and it is ordered, adjudged and decreed that the exceptions discussed herein be, and the same are hereby overruled.

It is further ordered, adjudged and decreed that this cause be, and the same is hereby remanded for proceedings in the district court not inconsistent with the views herein expressed and in accordance with law.

McCALEB, J., concurs in the decree.

      . Boucher v. Division of Employment Security, etc., supra.

        . Article XIV, § 15(O) (1).

      . “If any Commission after any hearing orders a dismissal or suspended employee reinstated, it may reinstate such employee under such conditions as it deems proper and may order full pay for lost time.”

      . Boucher v. Division of Employment Security, etc., supra.

      . Article XIV, § 15 (N) (1) of the Constitution which provides that “No person * * *, having acquired permanent Civil Service status, shall be demoted, dismissed, or discriminated against, except for cause, * *


author: HARDY, Judge.

text:
    RAPIDES GROCERY COMPANY, Plaintiff-Appellant, v. Thomas L. VANN, Jr., et al., Defendant-Appellee.
    No. 8394.
    Court of Appeal of Louisiana. Second Circuit.
    Jan. 9, 1956.
    Rehearing Denied Feb. 2, 1956.
    Writ of Certiorari Granted March 26, 1956.

      Stafford & Pitts, Alexandria, for appellant.
    Earl Edwards, Marksville, for appellee.
   HARDY, Judge.

This is a suit by plaintiff, a creditor of Thomas L. Vann, deceased, in the amount of $849.68, naming as defendants Thomas L. Vann, Jr., surviving son and sole heir of the decedent, and Calvin J. Dupont, purchaser of certain real estate, belonging to the succession of the decedent, by conveyance from the defendant, Vann. Plaintiff prayed for an - inventory of the property belonging to the decedent; for judgment against the succession of said decedent recognizing plaintiff as a creditor of said succession in the amount set forth; for judgment decreeing a separation of the property of the succession from that of the heir and ordering petitioner’s claim paid out of the effects of the succession by preference to the claims of creditors of the heir and of Dupont, transferee of the property; alternatively, for recognition and reservation of its right to pursue its claims against the heir; and, finally, for judgment decreeing the sale of property from defendant, Vann, to the defendant, Dupont, to be null and void insofar as it might affect plaintiff’s rights as a creditor of the succession of the decedent.

Plaintiff filed an amended petition alleging that the defendant, Vann, had left the State of Louisiana and praying for the appointment of a curator ad hoc, which prayer was allowed and a curator appointed. The defendant, Dupont, filed an exception of misjoinder and nonjoinder - of parties defendant, an exception of no cause and no right of action, a plea of prescription, and, finally, an answer in the nature of a general denial.

Some months subsequent to the filing of the above noted pleadings by defendant, Dupont, plaintiff filed a supplemental petition against the defendant, Vann, alleging said defendant to be residing in St. Landry Parish; praying for citation and service, the issuance of writs of attachment and garnishment, and for judgment against said defendant in the full sum of $849.68 with interest, costs, etc., and recognition of plaintiff’s lien and privilege on any property seized as belonging to said defendant. Writs of attachment were issued and, subsequently, alias writs were issued, and an automobile belonging to defendant, Vann, was seized thereunder.

Defendant, Dupont, filed a call in warranty against his vendor, Thomas L. Vann, Jr-

Default was entered and confirmed against defendant, Vann, and judgment rendered and signed in favor of plaintiff in the amount claimed, recognizing plaintiff’s lien and privilege on the seized automobile. This judgment reserved plaintiff’s rights as to “the other demands” against defendant, Vann, and his co-defendant, Dupont.

The minutes of court of date December 3, 1954, record:

“Exception of no cause and no right of action taken up, evidence adduced, argued and memo briefs submitted.”

The record contains the transcript of testimony, which bears the prefatory notation:

“Testimony taken on trial of exception of no right of action.”

Counsel for plaintiff objected to the taking of any testimony on the trial of the exception, and further objected on the ground that the taking of evidence was improper and should be admitted, if at all, only on trial of the case on the merits. These objections were overruled.

On May 13, 1955, Honorable Francis J. Gremillion, Judge of the Twelfth Judicial District Court, rendered a written opinion and, pursuant thereto, signed judgment on May 17, 1955, maintaining an exception of no right of action, no cause of action and nonjoinder, and dismissing plaintiff’s suit against the defendant, Calvin J. Dupont. From this judgment plaintiff appeals.

The facts which are concerned in the instant case are undisputed. Thomas L. Vann died intestate in the Parish of Avoy-elles on December 19, 1953. The succession of the decedent was opened by Thomas L. Vann, Jr., the only son and heir, and on January 25, 1954, having unconditionally accepted the succession, he was recognized as the sole heir of the decedent and sent into possession of all property belonging to the Succession. Following the rendition of this judgment in the matter of the succession of his deceased father, and on the same date, January 25, 1954, T. L. Vann, Jr., executed a deed of conveyance covering certain property situated in the Town of Bunkie, Avoyelles Parish, which had' belonged to the succession of his father, to C. J. Dupont, for a recited cash consideration of $3,250. Plaintiff. instituted, this suit, as an ordinary creditor of decedent, on March 26, 1954.

This is a suit for the separation of patrimony and therefore is governed by the provisions of Articles 1444 — 1446, inclusive, of the LSA-Civil Code, comprising Section 4, Chapter 13, Title I of Book III.

Plaintiff-appellant argues a number of errors with respect to the judgment of the district court on the following grounds:

(1) In overruling plaintiff-appellant’s objection to the admission of evidence on trial of the exception of no cause of action. •'

(2) In the admission and use of evidence in the consideration of a purported exception of no right of action, which, in reality, was an exception of no cause of action.

(3) In sustaining the exception of non-joinder on the ground that the creditors of an heir must be joined as parties defendant under the provisions of Civil Code Articles, 1444, et seq.

On the basis of these allegations of error and the detailed development thereof, plaintiff-appellant strenuously contends that it has been deprived of a trial on the merits, to which it is entitled.

By way of preface to our discussion of the issues raised, we observe that this case, in our opinion, constitutes a classic illustration of the awkward and misleading dichotomous pleading which has been developed and permitted under the various uncertain and indefinite denominations of “the exception of no right and no cause of action” or “the exception of no no right or no cause of action,” and numerous variants of the quoted phrasing. It seems to be a somewhat well established practice to plead this nature of double-bar-relled exception even in cases where one of the stated grounds is clearly inappropriate and inapplicable, and, in all probability, many times in instances where neither ground is justified.

We proceed to a consideration of appellant’s specifications of error. It is too well established to require more than passing observation that the exception of no cause of action does not admit of the taking of evidence, hut must be decided upon the face of the petition by the resolution of the alleged facts in the light of the principles of law which are applicable thereto.

It therefore follows that if the exception of no cause and no right of action which was interposed on behalf of the defendant, Dupont, is to be considered in reality as constituting only an exception of no cause of action, the admission of evidence constituted error.

This leads us to the necessary examination of defendant’s pleading as constituting an exception of no right of action, for it is also well established by our jurisprudence that evidence may be, and in most instances must be, adduced in order to justify a conclusion as to the validity of such exception.

Concededly, both defendant’s cause and right of action in the instant case are governed by the codal provisions relating to what is called the separation of patrimony, and we turn to an examination thereof in search of guidance to the resolution of the proposition urged.

Article 1444 of the LSA-Civil Code not only defines separation of patrimony but specifically provides the parties by whom and against whom such action may be taken:

“The creditors of the succession may demand, in every case and against every creditor of the heir, a separation of the property of the succession from that of the heir. This is what is called the separation of patrimony.”

Article 1445 plainly declares the purpose of the action in the following words:

“The object of a separation of patrimony is to prevent property, out of which a particular class of creditors have a right to be paid, from being confounded with other property, and by that means made liable to the debts of another class of creditors.”

The effect of the action is declared in Article 1446:

“The effect of this demand, on the part of the creditors of a succession, is to cause them to be paid from the effects of the succession in preference to the creditors of the heir.”

We are at a loss to conceive how the action of separation of patrimony could be more simply and understandably regulated than by the pronouncements of the above quoted articles. In our opinion the only possibility of encountering difficulty in construction would derive from the tendency to read into the plain provisions of the articles some unnecessary and unintended purpose which might be assumed to have influenced the thinking of the redactors of the Code. Applying the facts of the instant case to the plain provisions of the articles set forth, we think it evident that there can be no question as to the right of this plaintiff to have instituted this action for the separation of patrimony. But we think it equally clear that this right in turn must be exercised against the creditors of the heir and it therefore follows that unless creditors, whether one or more, of the heirs are made parties, plaintiff is without right to maintain the demand for a separation of patrimony. Distinguished counsel for plaintiff earnestly and persuasively argues that this requirement goes to the cause rather than the right of plaintiff’s action. The acceptance of this position, of course, would necessitate the reversal of the judgment dismissing plaintiff’s demands against the defendant, Dupont, which judgment can only be sustained under the evidence adduced on trial of the exception. Since, as we have above noted, the taking of evidence on the exception of no cause of action is not permitted, it would be necessary to relegate defendant to a trial on the merits.

Counsel further argues that an exception of no right of action touches only the question of the capacity of plaintiff to institute and maintain the action. With this argument we do not believe we are prepared to concur.

We have considered with sincere interest and admiration the scholarly development of this conclusion by Professor Henry George McMahon in his work on Louisiana Practice, Volume 1, page 457, et seq., which was further meticulously considered by the same author in 11 T.L.R. 527. We are in complete accord with Professor McMahon’s conclusion that the exception of no right of action as employed in Louisiana Practice is identical in purpose with the exception of want of interest. If it be considered that the testing of the capacity and interest of plaintiff is the only objective, then it follows, in the instant case, that the exception was improperly sustained, for, as we have above pointed out, it is clear that plaintiff as a creditor of the decedent’s succession is clothed with both the capacity and interest to demand a separation of patrimony under the specific provisions of LSA-Civil Code Article 1444.

However, reverting to Professor McMahon’s erudite discussion, we are impressed with his tracing of the genealogy of the exception back to the exception libelli ob-scuri, generalis et inepti, on which he comments as follows:

“At the very threshold of this task, however, the writer finds himself forced to make the admission that he cannot distinguish the exception of no right of action from that of want of interest. Both appear to him to perform exactly the same function, both appear to be peremptory exceptions relating to law, and both appear to operate in modern Louisiana procedure in exactly the same manner. The exception of no right of action appears to the writer to be that of want of interest under a new guise.
“Similarly to the exception of want of interest, the exception of no right of action appears to have had its analogue in civil law procedure. Thus, one of the fomctions of the exception libelli obscuri, generalis et inepti of Romano-canonical law was to challenge the plaintiff’s right of action against the defendant. But when we turn to French civil procedure of the early nineteenth century, we cannot find the exception libelli obscuri, generalis et inepti, although we do find the per-emptor exception as to form, one of whose functions was to challenge the lack of interest or quality of the plaintiff. On this point Professor Millar observes that ‘the French procedure came to speak here of peremptory exception to the form, but this was merely the ex-ceptio libelli obscuri, generalis et inepti under a new classification.’ Spanish procedure of the latter eighteenth century retained the Romano-canonical exception in question as the exception libelo inepto, ’u obscuro, but there is some doubt as to whether it had not yielded the particular function in question to the exception tua non interest, retaining only its primary function of complaining of the generality or obscurity of allegations in the petition.’
"Turning now to Louisiana law, no case was found which attempted either to reconcile or to differentiate the functions of the two exceptions in question. In at least three cases the exception of no right of action has been' employed to challenge specifically the plaintiff’s interest in the litigation; and in'all of the cases where the exception of no right of action has been used, it would appear that the identical issue of law could have been raised Ihrough the exception of want of interest. Two rather noteworthy facts are to be observed from a close examination of the cases. The first is that while the exception of want of interest is to be found established in our procedure quite early in the legal history of the State, that of no right of action is, relatively speaking, a parvenu. The second is that while we find the former lapsing into obsolescence, a tremendous increase in the use of the latter is associated with the advent of the present decade.” (Emphasis supplied).

We are impressed with the belief that the exception of no right of action not only calls into question the capacity and interest of the plaintiff but should also be considered as raising the question of the right of plaintiff to assert his demand against a particular defendant. The use, in modern practice and pleading, of the exception of no right of action as a’ substitute for the exception of want of interest does not, per se, logically support the restriction of the exception to this sole purpose. The point was tendered for the consideration of our brethren of the Orleans Court in the case of Duplain v. Wiltz, La.App., 174 So. 652, 655.

In the cited case plaintiff, as tenant of certain premises located in the City of New Orleans, brought suit against defendant, as the alleged owner of the property, for damages resulting from an accidental fall sustained on the occupied premises. Defendant interposed an exception of no right of action based upon* the contention that she was not the owner of the property upon which the plaintiff sustained her injury. The majority opinion, written by Mr. Justice McCaleb, then a member of the Orleans Court of Appeal, expressed the determination of this point in the following language:

"This question is purely one of fact and does not militate against plaintiff’s legal right to maintain the action. If, on the trial of the merits of the case, it is decreed that, as a matter of fact, the defendant is not the owner of the premises, and therefore not responsible for the injuries resulting from its vices and defects, such finding will not be destnictive of plaintiff’s inherent right to sue the defendant, but will serve to show that the plaintiff was without justification or cause to enforce her right against the defendant. In other words, we think that there is a vast difference between the right of action, to which plaintiff is entitled as a matter of law, and the resultant liability vel non of the person against whom she causes this right to be asserted. The right to sue is conferred either by statute or the jurisprudence, whereas the cause to sue is legally determined after investigation of the facts presented. Here, the real challenge is not made to plaintiff’s right to sue but is truly aimed against the legal lack of cause or reason for the action. “As was said by the Supreme Court in Commercial Nat. Bank v. Sanders, et al., 132 La. 174, 61 So. 155, 156, in reversing the action of the lower court in allowing the defendants to introduce evidence to controvert the allegations of the petition on the trial of an exception of no right of action: ‘Defendants did not offer any evidence going to show that the plaintiff was not the present holder and owner of the note sued upon, or that it had no authority to sue and stand in judgment, or that it had no right of action; the exception should have been overruled.’
“Hence, it is our view that the exception filed by the plaintiff is not really an exception of no right of action but an exception of no cause of action.”

The opposed view was asserted by Judge Janvier in a dissenting opinion, from which we quote:

“I cannot concur in the view that the exception of no right of action may be availed of only where there is involved the question of the right of the plaintiff to assert the cause of action because I feel that, where it is contended that a cause of action which admittedly exists may not be asserted against a particular defendant, the exception of no right of action is equally available. The exception of no right of action is afforded by the Code of Practice to a defendant as a means of challenging preliminarily either the right of the plaintiff to assert the cause of action against any one or the right of any one to assert the cause of action against the defendant.
“In either case the question of whether a ‘cause’ of action is stated is not raised, but there is put at issue the status of the plaintiff toward the ccmse of action, or the status of the cause of action toward the defendant. If a plaintiff sues as widow and asserts a cause of action which a widow may not assert, for instance, under the Federal Employers’ Liability Act (45 U.S.C.A. §§ 51-59), she shows herself to be without ‘right’ of action because only the personal representative of the deceased and not the widow may sue in such case. La Casse v. New Orleans, T. & M. R. Co., 135 La. 129, 64 So. 1012; Penny v. New Orleans G. N. R. Co., 135 La. 692, 66 So. 313. Similarly, if a plaintiff admittedly with a right to sue and admittedly with a cause of action to sue the administra-trix of an estate sues the widow of the' deceased, she is without right to sue thé widow, though she may háve a perfectly good cause of action against the administratrix. The -exception of no ‘r-ight’ of action in such situation is, I think, available.
“Mr. McMahon, in his interesting and exhaustive study of the exception of no cause of action (Tulane Law Review, vol. IX, p. 17), has this to say concerning the distinction between the exception of no ‘cause’ of action and the exception of no ‘right’ of action: ‘From the foregoing illustrations we may .readily discern the distinction in the respective functions of the exception of no cause of action and that of no right of action. The former is used to raise the issue as to whether the law affords a remedy to anyone for the particular grievance alleged by plaintiff ; the latter is employed (in cases where the law affords a remedy) to raise the question as to whether plaintiff belongs to the particular class in whose exclusive favor the law extends the remedy. * * * ’
"I agree fully with what he has said, but I feel that he has inadvertently failed to notice the situation to which I now direct attention. Had he done so, he would have s.aid that ‘the latter (no “right” of action) is employed (in cases where the law affords a remedy) to raise the question as to whether plaintiff belongs to the particular class in whose exclusive favor the law extends the remedy, or to raise the question as to whether the defendant belongs to the particular class against whom the remedy may be sought.’
* * * * * *
"Article 346 of the Code of Practice was designed to meet just such a situation as is presented here. That article reads as follows: ‘Peremptory exceptions, founded on law, may be pleaded in every stage of the action, previous to the definitive judgment; but they must be pleaded specially, and sufficient time allowed to the adverse party to bring his evidence.’
“Here it is contended that defendant is owner of the premises and that he, by reason of that ownership, is liable to plaintiff. If the relationship of owner does not exist, there can be no recovery. Therefore, as a preliminary question, independent of the issues of fact which are involved in the question of fault, it should be determined whether or not defendant is the owner of the premises. That issue is tendered by the exception of no ‘right’ of action. If the defendant is not owner, there can be no recovery. There should be no necessity, then, to try the case on the merits — to adduce testimony concerning the facts of the accident, the evidence concerning fault of negligence — since, if, as a matter of fact, defendant is not owner, there cannot be recovery.
“Therefore, when defendant, by exception of no right of action, tendered that issue, i. e., the ownership of the premises, she was authorized by article 346 of the Code of Practice to go to trial on that issue as a preliminary matter and the judge of the trial court was justified in admitting evidence on that issue and in dismissing the suit on that issue when the evidence showed that defendant was not the owner of the property.” (Emphasis supplied.)

With the utmost respect we are of the opinion that both Professor McMahon in his discussion and Judge McCaleb in the opinion in the Duplain case quite understandably erred in placing such a narrow stricture upon the intent, purpose and proper use of the exception of no right of action. It would appear that this error, if it be such, resulted from the acceptance of the accustomed use of the pleading to the exclusion of a consideration of the broader purpose. In the Duplain opinion Judge McCaleb referred to

“ * * * plaintiff’s inherent right to sue the defendant * *

While we may go so far as to concede that an individual has an inherent right to assert a cause of action, we cannot conceive that any person possesses an inherent, that is a fixed or inalienable, right, to assert a cause of action, no matter how justifiable, against any defendant.

The first article of the Code of Practice defines an action as follows:

“An action is the right given to every person, to claim judicially what is due or belongs to him.
“Action means also the exercise of that right, that is to say, a judicial demand founded on a contract, or given by law, by which the plaintiff prays that the person against whom he proceeds be ordered to do that which he has bound himself towards him to perform.”

It is abundantly clear from the above definition that an action is a right to assert a cause, and further that an action is the exercise of the right to claim relief from "the person against whom [a plaintiff ] proceeds

A commentator approved the holding of the court in the Duplain case in excluding evidence on the exception, predicating his conclusion upon the necessity for limitations on exceptions which would dispose of issues in advance of trial on the merits. 12 T.L.R. 315, et seq.

With respect to this conclusion, while we think the general liberal principle, now so well established and universally observed by our appellate courts, which discourages the use of highly technical exceptions in favor of permitting trial on the merits is most praiseworthy, we think it equally desirable that litigants be protected against the inconvenience and expense of unnecessary trials on the merits when pertinent exceptions would eliminate the necessity therefor.

We think it cannot be denied that one of the fundamental purposes of a peremptory exception is designed to permit the disposition of litigation without the necessity for trial on the merits. Issues either as to form or substance which are appropriately raised by peremptory exceptions should be disposed in advance of trial in the interest of all of the parties litigant. The use of the exception of no right of action for such purpose should not be circumscribed but, rather, should be encouraged.

The opinion in the Duplain case quoted from the opinion of the Supreme Court in Commercial National Bank v. Sanders, 132 La. 174, 61 So. 155, 156, as follows:

“Defendants did not offer any evidence going to show that the plaintiff was not the present holder and owner of the notes sued upon, or that it had no authority to sue and stand in judgment, or that it had no right of action; the exception should have been overruled.” (Emphasis supplied.)

If, in the contemplation of the court, the exception of no right of action should be confined exclusively to the testing of the capacity and interest of the plaintiff, why did the court use the phrase “ * * * or that it had no right of action”? The preceding clauses of the same sentence had definitely ruled out the questions of lack of interest and capacity to sue on the part of plaintiff, but it is obvious from the wording of the opinion that there still remained other considerations which would have been pertinent under the plea of no right of action.

The propriety of the issue of the exception of no right of action as a special plea even beyond the questioning of the capacity of plaintiff and his right to sue a particular defendant may be considered as having been indirectly sanctioned by our Supreme Court. In the case of Jones v. Shehee-Ford Wagon & Harness Co., Inc., 183 La. 293, 163 So. 129, 131, the opinion observes:

“But the so-called exception of no right of action, in this case, was in fact a special plea that the insurer was not liable because of the alleged breach of the contract of insurance. Hence it was inmmbent upon the Continental Casualty Company to offer proof of the alleged breach of the contract, if the company intended to insist upon the plea. When the plea was submitted without any evidence to support it, the judge had no alternative but to overrule it.” (Emphasis supplied.)

While the above observation is purely obiter, -we question whether the point would have justified any such serious expression unless the court intended some definite purpose in its pronouncement.

In the instant case the evidence adduced on trial of the exception established the fact that the heir had no creditors and therefore the action for the separation of patrimony, which is a demand by creditors of a succession against creditors of the heir, as specifically and plainly declared in Article 1444, would not lie. In other words, plaintiff was without any right to the relief which he sought against this defendant. We say this because that part of plaintiff’s demand which concerns his relief against the defendant, Dupont, seeks judgment delaring the alienation of the property of the succession by the heir to be a nullity. This demand is predicated upon the provisions of Article 1458 of the LSA-Civil Code which reads as follows:

“In the interval between the opening of the succession and the three months allowed for the institution of the suit for the separation of the patrimony, the heir can not alienate, affect nor (or) sell the effects of the succession, nor (or) any of them to the prejudice of the creditors; and if he does it, the creditors may cause the acts to be declared null, as done in fraud of their rights.”

Again, the plain meaning of the wording of the codal article is inescapable. The prohibition against alienation of succession property by an heir during a period of three months following the opening of the succession is allowed only in order to permit the institution of a suit for the separation of patrimony. Since we have held that the instant suit does not comply with the codal requirements governing the institution of a suit for separation of patri mony, it follows that plaintiff cannot claim the relief accorded under Article 1458.

It may be urged that the effect of our conclusion is equivalent to that which would result from the maintenance of an exception of non-joinder. In the instant case, indubitably, this conclusion is correct. But we see nothing injurious in such a concept. If, as Professor McMahon has ably demonstrated in his thorough consideration of the matter, the exception of no right of action, by recent and common practice, has been substituted for the exception of want of capacity, we do not think it can be considered unreasonable that it should also be interpreted as effecting the same purpose as a plea of-nonjoinder. One exception is directly aimed at the capacity and interest of the plaintiff and the other at the plaintiff’s right to join a defendant in a given action. If both can be accomplished, as we think should be the case, by combining both purposes in the exception of no right of action, we think the result would be to add dignity and importance to such pleading.

Plaintiff’s third complaint of error, as first above stated, is based upon the contention that the wording of Article 1444 does not require the suit to be directed against the creditors of the heir. We think this contention has been disposed by our reasons above stated in connection with the requirements of Article 1444. The article appears to us to plainly contemplate the assertion of a demand by succession creditors against the creditors of the heir.

We think the case of Beck v. Beck, La.App., 181 So. 635, is authority for this conclusion. In Rochelle v. Russ, La.App., 54 So.2d 856, we approved the rejection of plaintiff’s demands by way of a separation of patrimony on the ground that the prescribed requirements as to the existence of creditors of the estate and another class of creditors did not exist. It follows that the plea of nonjoinder was properly sustained.

Counsel for plaintiff urgently contends that the purpose of Article 1458 of the Civil Code is aimed at the protection of creditors of a succession against the fraudulent or evasive actions of an heir, citing Succession of Hart, 52 La.Ann. 364, 27 So. 69. The holding in the cited case appears to us to be sound authority for the proposition that creditors are accorded the right to bring action at any time during the period of three months following the unconditional acceptance of a succession by the heirs and to demand security or exact an administration. This holding has no bearing upon the question that is here tendered and the cited case did not pronounce upon the point which has been raised in the instant case.

Counsel for plaintiff-appellant further urges that the denial of plaintiff’s right to maintain his action would result in opening the door to fraud through the unconditional acceptance of a succession by the heirs. We can only answer that the right which plaintiff seeks to assert in the instant suit is only one of a number of rights guaranteed to him, and since it is governed by specific and, so we believe, plain and unambiguous codal requirements, the failure to fulfill such essentials serves to deprive plaintiff of this particular remedy.

We think it unnecessary to discuss other contentions of counsel inasmuch as we consider them to be simply ramifications and enlargements of the principal issues which we have above enumerated.

For the reasons assigned the judgment appealed from is affirmed at appellant’s cost.