author: ROBERTS, Justice.

text:
    Dan E. ENFINGER, Petitioner, v. Loudoun Warren BAXLEY, Respondent.
    Supreme Court of Florida.
    July 31, 1957.

      Kurz, Maness & Toole, Jacksonville, for petitioner.
    Bedell & Bedell, Jacksonville, for respondent.
   ROBERTS, Justice.

We here review on certiorari an order of the lower court denying defendant-petitioner Enfinger’s motion to dismiss for improper venue. The plea of privilege was properly made by motion to dismiss, Inverness Coca-Cola Bottling Co. v. McDaniel, Fla.1955, 78 So.2d 100; and an order denying a motion to dismiss for improper venue may be reviewed by this court on certiorari. Kauffman v. King, Fla.1956, 89 So.2d 24.

The facts are that the plaintiff-respondent Baxley, a resident of Polk County, Florida, filed suit in the Circuit Court of Duval County against Enfinger, also a Polk County resident, for injuries sustained in Polk County allegedly as a result of Enfinger’s negligence. Joined as a party defendant was the Atlantic Coast Line Railroad Company, Enfinger’s employer. The railroad company, a foreign corporation, has an agent in and does business in both Polk County and Duval County.

The question here is whether in these circumstances the lower court erred in denying defendant Enfinger’s plea of privilege to be sued in Polk County, the county of his residence and where the cause of action accrued, as granted to him by Section 46.01, Fla.Stat.1955, F.S.A. The answer to this question depends upon the effect of Section 46.02 and Section 46.04 on the rights of the parties.

Sec. 46.02 provides that “Suits against two or more defendants residing in different counties * * * may be brought in any county * * * in which any defendant resides.” Sec. 46.04 provides that suits against a foreign corporation doing business in this state “shall be commenced in a county * * * wherein such company may have an agent or other representative, or where the cause of action accrued * * * »

In L. B. McLeod Const. Co. v. State, 1932, 106 Fla. 805, 143 So. 594, 596, this court applied Section 4220, C.G.L.1927 (Section 46.02, supra), in determining a venue question presented in a suit against two corporate defendants and held that “where two corporations are otherwise properly joined as defendants in an action, the action may be maintained against both corporate defendants in a county in which one of the defendants, if a domestic corporation, ‘shall have or usually keep an office for the transaction of its customary business’; or, if one of the defendants is a foreign incorporated company doing business in this state, the action may be maintained in a county wherein such codefend-ant company ‘may have an agent or other representative’.” Accord: Inverness Coca-Cola Bottling Co. v. McDaniel, Fla.1955, 78 So.2d 100.

If Section 46.02, supra, comprehends a corporate defendant and is applicable in a suit against two corporate defendants, as was held in the two cases above-cited, it is equally applicable in a suit against a corporate defendant and an individual defendant, and we so hold.

The clear import of the two cases above-cited is that a corporate defendant “resides”, within the meaning of Section 46.02, in the county or counties specified in Section 46.04, that is, if a domestic corporation “in the county (or justice’s district) where such corporation shall have or usually keep an office for the transaction of its customary business” and, if a foreign corporation doing business in this State “in a county or justice’s district wherein such company may have an agent or other representative.” Here, the Railroad Company “resides” in Polk County as well as in Duval County. So the question here is whether the individual defendant and the corporate defendant reside “in different counties” within the meaning of Section 46.02, supra. We have concluded that they do not.

Section 46.02 places a qualification upon the venue privilege granted to an individual defendant by Section 46.01 and to a corporate defendant by Section 46.04. Inverness Coca-Cola Bottling Co. v. McDaniel, supra, 78 So.2d 100, 102. It gives a plaintiff the right to make the final choice of the forum in which his suit will be tried as between the conflicting interests of defendants whose venue privileges, as granted by Section 46.01 and/or Section 46.04, do not fall within the same county. The applicability of the statute is clear where the venue privileges of the defendants are coequal and not co-existent in the same county. Here, however both defendants “reside” in Polk County, even though the corporate defendant may also be said to “reside” in Duval County. If sued alone, the defendant corporation would have no greater right, under Section 46.04, to be sued in Duval County than in Polk County since it has an agent in both counties; but the individual defendant if sued alone would have the privilege, under Section 46.01, of being sued in Polk County. In this situation, we do not think Section 46.02 should be applied to give to a plaintiff the right to choose the forum in which to bring his suit. “The right of a plaintiff to have an action tried in another county than that in which the defendant has his residence is exceptional, and, if the plaintiff would claim such right, he must bring himself within the terms of the exception.” Brady v. Times-Mirror Co., 106 Cal. 56, 39 P. 209, 210.

We hold, therefore, that where an individual defendant is joined as a party defendant with a foreign corporation defendant, and the corporate defendant has an agent in the county in which the individual defendant resides, Section 46.02 cannot be applied to defeat the individual defendant’s venue privilege granted by Section 46.01. Cf. Kauffman v. King, supra, 89 So.2d 24, holding that the joinder of non-resident individual defendants does not defeat the resident defendants’ venue privilege granted by Section 46.01.

Accordingly, the writ of certiorari is granted and the order here reviewed is quashed, with directions to sustain the individual defendant’s plea of privilege, as contained in its motion to dismiss.

It is so ordered.

TERRELL, C. J., THOMAS and O’CONNELL, JJ., and ALLEN, District Judge, concur.


source: Caselaw Access Project

author: PER CURIAM. GLENN TERRELL Chief Justice ELWYN THOMAS FRANK HOBSON B. K. ROBERTS E. HARRIS DREW CAMPBELL THORNAL STEPHEN C. O’CONNELL Justices.

license: Public Domain

text:
    ADVISORY OPINION TO THE GOVERNOR.
    Supreme Court of Florida, Bn Bane.
    July 9, 1957.
   PER CURIAM.

Supreme Court of Florida
Glenn Terrell, Chief Justice
Tallahassee
July 9, 1957
Honorable LeRoy Collins,
Governor of Florida,
State Capitol,
Tallahassee, Florida.
Dear Sir:

We have your letter of June 21, 1957, which, omitting formal parts, reads as follows:

“The State Constitution authorizes me, as Governor, to request the written opinion of the Justices of the Supreme Court as to the interpretation of any portion of the State Constitution upon any question affecting my executive duties and powers (Section 13, Article IV, State Constitution [F.S.A.]). Under Section 14, Article IV, of the said Constitution, ‘all grants and commissions shall be in the name and under the authority of the State of Florida, sealed with the Great Seal of the State, signed by the Governor, and countersigned by the Secretary of State, ’ pursuant to which it becomes my official duty to commission additional circuit judges to fill vacancies in the office of circuit judge. When such additional circuit judges are selected and appointed it will become my duty to issue them a commission. In order for me to issue such commissions it is necessary that the term for which the commission is to run be determined.

“Judicial article ‘V’ of the State Constitution was amended at the general election of 1956, and as amended will become ‘effective on the first day of July 1957, and shall replace all of Article ‘V’ and shall supersede any other provisions of the present Constitution of Florida in conflict’ (Subsection one of Section 26, of said Article ‘V’ as amended). Under the Constitution the Legislature is authorized to ‘provide for one circuit judge in each circuit for each fifty thousand inhabitants or major fraction thereof according to the last census authorized by law.’ (Section 6 of said Article V, as amended). Provision has been made in the Florida Statutes, as to several of the judicial circuits of the state, for the appointment of circuit judges to fill vacancies due to increases of population in such circuits. Provision has also been made by Chapter 31395, Laws of Florida, Acts of 1956 [F.S.A. § 26.011], for the taking of a census for any judicial circuit, in the manner therein provided, for the purpose of determining the population of such circuit and in consequence thereof whether there exists a vacancy in the office of circuit judge. Several of such censuses have been taken and others are contemplated which will authorize additional judgeships.

“Under Section 46, Article V, of the Constitution, prior to the said amendment to Article V, circuit judges were required to be elected, at the general election in 1948, for terms of six years each, and every six years thereafter. Under Section 15 of said amended Article V of the State Constitution, ‘election of circuit judges shall be held in the year 1960 and every six years thereafter.’ These constitutional provisions clearly indicate an intention to make the office of circuit judge elective and place them on a uniform six year cycle term; beginning with the general election in 1948. Prior to 1948, when the office of circuit judge became elective, such office was an appointive one (Advisory Opinion [to Governor], 152 Fla. 686, 12 So.2d 876).

“Under Section 14 of said Article V, as adopted at the general election in 1956, ‘when the office of any judge shall become vacant for any cause, the successor to fill such vacancy shall be appointed or elected only for the unexpired term of the judge whose death, resignation, retirement or other cause created such vacancy.’ This Section continued without change the provisions of Section 33, Article V of the State Constitution, as the same existed prior to the said amendment at the general election in 1956. In addition to the said Section 14, Section 6, Article .XVIII of the State Constitution provides that ‘the term of office for all appointees to fill vacancies in any of the elective offices under this constitution shall extend only to the first Tuesday after the first Monday in January next after the election and qualification of a successor.’ Section 7 of said article XVIII provides that ‘in all cases of election to fill vacancies in office such election shall be for that part of the unexpired term commencing on the first Tuesday after the first Monday in January next after such election.’ The problem presented is should appointments of circuit judges made between the first of July 1957 and the general election in 1958 be made until the first Tuesday after the first Monday in 1959 or to the same time in 1961. Or, since there is an apparent conflict, which is controlling, Section 14, Article V, as amended, or said Sections 6 and 7 of Article XVIII?

“Although we find no opinion of the Supreme Court of Florida, or an advisory to the Governor, directly in point, the following may have some application to the questions hereinafter mentioned: Prior to the time the office of circuit judge became an elective one, commissions of persons appointed to the office of circuit judge, and confirmed by the Senate, extend to the end of the unexpired term (Advisory Opinion [to Governor], 45 Fla. 154, 34 So. 571; [In re] Advisory Opinion [to the Governor], 76 Fla. 649, 80 So. 519; [In re] Advisory Opinion [to Governor], 93 Fla. 1024, 113 So. 115), and such appointments, made by the Governor and confirmed by the Senate, were independent of preceding appointments to the end of the session (Advisory Opinion [to Governor], 147 Fla. 157, 2 So.2d 378). Where there was a vacancy in the office of circuit judge, the justices (Advisory Opinion [to Governor], 152 Fla. 686, 12 So.2d' 876) advised the Governor to issue a commission ‘until the end of the next ensuing session of the Senate unless an appointment should be sooner made and confirmed by the Senate.’

“The Legislature, in 1913, established Seminole County, Florida, thereby creating a vacancy in the office of county judge for said county; in an [In re] Advisory Opinion [to the Governor], 68 Fla. 560, 66 So. 1003, the justices advised that ‘Seminole County was organized under Chapter 6511, Acts of 1913, and an appointment to the office of county judge in such new county in 1913, under Section 6 of Article XVIII of the Constitution, would properly be until the qualification of a successor at the ensuing general election in 1914, and an election in 1914 to such office is under Section 33, Article V, and Section 7 of Article XVIII, for the unexpired term ending January, 1917,’ that is, for a two year period. Said Section 33, Article V, was the same as is Section 14 of Article V, as amended at the 1956 general election. In 1949 the Legislature established a criminal court of record in Broward County, thereby creating a vacancy in the office of judge of such court and raising the question of whether the Governor’s appointment and commission should be until January next after the next general election (1950) or until the end of the term (January 1953 following the 1952 general election). The justices advised that the office should be filled by election at the 1950 general election for the balance of the term (January 1953). The sum and substance of this advisory seems to have been appointment by the Governor until January following the next general election (1950) and election until the end of the term (January 1953) with election for a full four year term in 1952.

“Notwithstanding the foregoing advisory-opinions and other authorities, I am uncertain as to the following questions and request the opinion of justices, as provided by Section 13, Article IV, of the State Constitution, thereon;

“1. Where a vacancy in the office of circuit judge occurs in this State after July 1, 1957, and before the next ensuing general election, should the appointee be appointed and commissioned by the Governor until the first Tuesday after the first Monday in January next after the next general election, or until the end of the term where it extends beyond the said first Monday after the said first Tuesday next after the next general election?
“2. Where vacancies in the office of circuit judge occurred in this State prior to said July 1, 1957, but have not yet been filled by appointment should such appointments and commissions be until the first Tuesday after the first Monday in January 1959, or until the end of the term, which would seem to be the first Tuesday after the first Monday in January 1961 ?”

The question presented by the above communication is whether there is a conflict between Section 14 of revised Art. V of the Constitution and Section 6 of Art. XVIII; and if so, which is controlling?

Section 14 of revised Art. V is identical to Section 33 of Art. V, as adopted by the constitutional convention of 1885 and ratified by the people at the general election of 1886. Section 6 of Art. XVIII, which is the “Schedule” article of the constitution, was also enacted as a part of the 1885 constitution. Section 14 of Art. V, reads as follows:

“When the office of any judge shall become vacant from any cause, the successor to fill such vacancy shall be appointed or elected only for the unexpired term of the judge whose death, resignation, retirement, or other cause created such vacancy.”

Section 6 of Art. XVIII, as amended, provides that:

“The term of office for all appointees to fill vacancies in any of the elective offices under this Constitution shall extend only to the first Tuesday after the first Monday in January next after the election and qualification of a successor.”

Also pertinent here is Section 7 of Art. XVIII, reading as follows:

“In all cases of election to fill vacancies in office such election shall be for that part of the unexpired term commencing on the first Tuesday after the first Monday in January next after such election.”

When read in the light of the purpose for which Section 33 of Art. V was originally adopted, and giving full consideration to all of its terms, there is no irreconcilable conflict between it and the Schedule provisions of Art. XVIII quoted above. Section 33 of Art. V “was incorporated into the Constitution of 1885 to change the rule announced in Re Tenure of Office of Circuit Judges [1877] 16 Fla. 841, that 'where the term of an office is fixed by the Constitution, each succeeding incumbent, appointed in accordance with the Constitution, holds the office for the full period.’ ” State ex rel Landis v. Bird, 1935, 120 Fla. 780, 163 So. 248, 262. The conclusion reached in Re Tenure of Office of Circuit Judges, supra, was that a judge of a circuit court, appointed by the governor and confirmed by the senate, held his office for eight full years, and that no part of a previous eight years during which another had held the office (but who had vacated it) entered into the computation of time for which the second appointee held.

Thus, in providing in Section 33 of Art. V that “the successor to fill such vacancy shall be appointed or elected only for the unexpired term of the Judge” whose office had become vacant (emphasis added), the framers of the Constitution must have intended merely to provide a limitation “upon the power to fill the office for a new or full term upon the happening of a vacancy, which power would exist in the absence of such provisions, or of other provisions creating technical terms of office.” Simonton v. State ex rel. Turman, 1902, 44 Fla. 289, 31 So. 821, 828. Section 33 of Art. V has been so construed by this court without exception, since its adoption by the people more than seventy years ago.

Thus, as to judges who are required to be appointed by the Governor and confirmed by the Senate, this court held that the Governor’s appointment to fill a vacancy in such appointive judgeship entitled the appointee to hold office only until the end of the next ensuing session of the Legislature, and that the appointment and confirmation made by the Governor and the Senate at such ensuing session was then “for the remainder of the current term as required by section 33 of article 5 * * * State ex rel. Landis v. Bird, 1935, 120 Fla. 780, 163 So. 248, 262. Accord: State ex rel. Wynn v. Squarcia, Fla.1953, 66 So.2d 263; Advisory Opinion to Governor, 1943, 152 Fla. 686, 12 So.2d 876. And as to judges who are required by law to be elected to office, this court held that the Governor’s appointment to fill a vacancy in such elective judgeship would properly be only until the qualification of a successor at the next ensuing general election, and that such election “to such office is under section 33 of article 5, and section 7 of article 18, for the unexpired term * * In re Opinion of the Justices, 1914, 68 Fla. 560, 66 So. 1003, 1004. Accord: Advisory Opinion to the Governor, Fla.1949, 42 So.2d 170.

This construction of Section 33 of Art. V is in accord with well settled principles of construction that, where a constitutional provision will bear two con-structions, one of which is consistent with, and the other inconsistent with, an intention clearly expressed in another section, the former construction should be adopted so that “both provisions may stand and have effect.” State ex rel. West v. Butler, 1915, 70 Fla. 102, 69 So. 771, 781. “A construction that nullifies a specific clause will not be given to a Constitution unless absolutely required by the context.” State ex rel. McKay v. Keller, 1939, 140 Fla. 346, 191 So. 542, 545.

And certainly, as to elective judge-ships, this construction is required by the language used in the provision in question. Section 33 of Art. V (Section 14 of revised Art. V) expressly provides that the successor to fill a vacancy in a judgeship “shall be appointed or elected only for the unexpired term * * (Emphasis added.) If this provision were to be construed as authorizing the Governor to make an appointment to fill a vacancy in an elective judgeship for the entire remainder of the current term, rather than an ad interim appointment for the term prescribed by Section 6 of A.rt. XVIII, the italicized words providing for the election of a successor to fill a vacant judgeship would be nullified.

We have also considered the fact that the revised Article V is a complete re-statement and revision of old Article V as it appears in the 1885 Constitution, as amended, and that in the “Schedule” section of revised Article V it is provided that “(1) This Article shall become effective on the first day of July 1957 and shall replace all of Article V, and shall supersede any other provisions of the present constitution of Florida in conflict herewith, which shall then stand repealed.” (Emphasis added.)

Certainly the framers of the revised Article V, the Legislature and the people who adopted it, did not intend to repeal the provisions of Section 6 of Art. XVIII. Since the adoption of our constitution in 1885, the electors of this state have, under Sections 6, 7 and 9 of Art. XVIII, participated in the filling of vacancies in the constitutional elective offices of this state, including elective judgeships. As stated in State ex rel. Ayres v. Gray, Fla.1953, 69 So.2d 187, 199, in speaking of the right of the people to elect a Governor to fill the unexpired term of the late Governor Dan McCarty: “The electors of the State have the right to elect a Governor to fill the vacancy in an election, authorized and required by the organic law. This right can only be changed by an amendment in the manner provided for in the Constitution itself. This Court has no power to adopt such an amendment and will not usurp such power under the guise of judicial construction or interpretation.”

Nor do we think that, by the above-quoted provision of Section 26 of revised Art. V, it was intended to modify Section 6 of Art. XVIII insofar as appointments to fill vacancies in judgeships are concerned. Those responsible for the revision of Art. V and the re-adoption therein of Section 33 of Art. V (as Section 14 of revised Art. V) must be accredited with knowledge of the construction placed thereon by this court and by the state’s governmental officials throughout its history. Another principle of constitutional and statutory construction is that, where a clause has received a definite construction, the subsequent adoption of that clause by the law-making department carries with the language adopted also the construction put upon it. As stated in State ex rel. West v. Butler, 1915, 70 Fla. 102, 69 So. 771, involving an attempt by the Legislature to create an additional circuit judgeship in a judicial circuit, “The system in operation from the beginning of the state government should not be changed by strained implications sought to be drawn from language that is grammatically and legally plainly referable to and consistent with the long-existing and only system known to the state.”

Accordingly, you are advised that in all appointments to fill a vacancy in a circuit judgeship, whether the vacancy occurred prior to or after July 1, 1957, your commission should be to the first Tuesday after the first Monday in January following the next ensuing general election.

Respectfully,

GLENN TERRELL Chief Justice

ELWYN THOMAS

FRANK HOBSON

B. K. ROBERTS

E. HARRIS DREW

CAMPBELL THORNAL

STEPHEN C. O’CONNELL Justices.


author: PER CURIAM. GLENN TERRELL Chief Justice T. FRANK HOBSON E. HARRIS DREW CAMPBELL THORNAL STEPHEN C. O’CONNELL Justices

text:
    ADVISORY OPINION TO THE GOVERNOR.
    Supreme Court of Florida.
    July 10, 1957.
   PER CURIAM.

Supreme Court of Florida
Glenn Terrell, Chief Justice
Tallahassee
July 9, 1957
Honorable LeRoy Collins
Governor of Florida
Tallahassee, Florida

Dear Governor:

We have the honor to acknowledge your letter of June 21, 1957, submitting to us under Section 13 of Article IV of the Constitution of Florida, F.S.A., a request for advice relating to your executive powers and duties. Your letter reads as follows :

"Honorable Glenn Terrell, Chief Justice, and
Honorable Justices of the Supreme Court of Florida
Supreme Court Building
Tallahassee, Florida
“Re: Judicial circuits; number of judges; population of circuits, etc.

“Gentlemen:

“The State Constitution authorizes me, as Governor, to request the written opinion of the Justices of the Supreme Court as to the interpretation of any portion of the State Constitution upon any question respecting my executive duties and powers (Section 13, Article IV, State Constitution).

“Section 45, Article V, of the State Constitution, limited the number of inhabitants in a single judicial circuit to not less ‘than fifty thousand inhabitants according to the last preceding State or Federal census’ and further provides that additional circuit judges may be provided for by law as authorized by Section 43 of said Article V, ‘but the total number of circuit judges apportioned to any one judicial circuit shall not exceed one circuit judge for every fifty thousand inhabitants, or major fraction thereof.’ Said Section 43 limited the number of additional circuit judges according to the number of inhabitants of the circuit as shown by ‘the last Federal or State census occurring next before the passage of the law’ providing for such additional judge.

“By Chapter 22813, Laws of Florida, Acts of 1945 (Section 26.02, Florida Statutes [F.S.A.]) the first judicial circuit is composed of Escambia, Okaloosa, Santa Rosa and Walton Counties and it was provided by said law that until the first Tuesday after the first Monday in January, 1949, said circuit ‘shall have one circuit judge for each fifty thousand inhabitants, or major fraction thereof, * * * according to the last preceding general or special State of [sic] Federal census and after said’ last mentioned date ‘shall have two circuit judges.’

“By Chapter 29630, Laws of Florida, Acts of 1955, said Section 26.02 was amended and as so amended provides that said first circuit shall have one circuit judge for each fifty thousand inhabitants, or major fraction thereof ‘in said circuit according to the most recent official census’. Such last mentioned act became effective on January 8. 1957.

“Section 6, Article V, of the State Constitution, as amended at the general election in 1956 and therefore as the same will become effective on July 1, 1957, authorizes the establishment of not more than sixteen judicial circuits, and further provides for ‘one circuit judge in each circuit for each fifty thousand inhabitants or major fraction thereof according to the last census authorized by law.’ This section will supersede above mentioned sections 43 and 45 of present Article V of the State Constitution on July 1, 1957.

“Under Section 5, Article VII, of the State Constitution, as amended at the general election in 1950, ‘the last preceding decennial Federal census, beginning with the Federal census of 1950, shall also be the State census and shall control in all population Acts and constitutional appor-tionments, unless otherwise ordered by the Legislature.’ The last preceding decennial state-wide census of Florida was the Federal census taken in 1950. Special censuses have been authorized to be taken in some of the counties since the said regular census of 1950; for example, a special census was taken in Okaloosa County under and pursuant to Chapter 31055, Laws of Florida, Acts of 1955. These special censuses of separate counties raise the question of whether they may be taken into consideration along with previous censuses taken in other counties when determining the number of circuit judges a particular judicial circuit is entitled to.

“Specifically, the first judicial circuit so composed of Escambia County (112,700), Okaloosa County (27,533), Santa Rosa County (18,554) and Walton County (14,-725), had a combined population of 173,518 according to the Federal census of 1950. A special census of Okaloosa County was authorized and taken on September 21, 1956, under the authority of said Chapter 31055, showing a population at the time of taking of 53,014 inhabitants. This when considered with the 1950 populations of Escambia, Santa Rosa and Walton Counties show a population in excess of 175,000 for the circuit, sufficient to entitle the circuit to an additional judge (Section 26.02, Florida Statutes [F.S.A.]). If, on the other hand, population counts in all counties must be contemporaneous, then the additional population of Okaloosa County would be unavailing.

“I, therefore, request the advice of the justices of the Supreme Court of Florida upon the following question:

“May the population count of a single county under a special census be combined with the population count under the last preceding regular census of other counties in a judicial circuit in determining the number of circuit judges authorized for such circuit ?

“Respectfully,
/s/ LeRoy Collins Governor”
Your question is answered in the affirmative.

The obvious intention of Section 6(b), of Article V, is to furnish the people of each judicial circuit sufficient circuit judges to efficiently and expeditiously handle the litgation arising therein. While the case load or need for judges in a judicial circuit is not necessarily correlated to population the constitution, nevertheless, provides population to be the factor by which the number of judges in a circuit is to be determined. Under the pertinent provision of the Florida Constitution the yardstick by which population is to be measured is “the last census authorized by law.”

The basic unit in a judicial circuit is the county. The population of a circuit is the sum of the populations of the various counties, as determined by “the last census authorized by law.”

According to your request "the last census authorized by law” in Okaloosa County is the special census taken on September 21, 1956, under authority of Chapter 31055, Acts of 1955, and the population of that county as found to exist in that special census is the population thereof “according to the last census authorized by law” and should be used in determining the population of the first judicial circuit after the official publication of the results of said special census.

Therefore, it is our opinion that for the purposes of determining the population of a judicial circuit and the number of circuit judges which should be provided to serve the people thereof, the results of “the last census authorized by law” in each of the counties comprising the circuit should be used, although the censuses in the various counties may not have been taken contemporaneously.

The effect of this opinion is specifically limited to the question posed in your request.

Inasmuch as this opinion is being handed you after the effective date of Article V, Florida Constitution, as amended at the last general election, we have limited our opinion to answering your request in the light of the existing constitutional provisions.

Respectfully,

GLENN TERRELL Chief Justice

T. FRANK HOBSON

E. HARRIS DREW

CAMPBELL THORNAL

STEPHEN C. O’CONNELL

Justices


author: PEARSON, Judge.

text:
    R. G. DULANEY and Irving Kossoff, Appellants, v. The CITY OF MIAMI BEACH, Florida, a municipal corporation, Ivar Blacker and Charles H. Posner, Appellees.
    District Court of Appeal of Florida. Third District.
    Aug. 2, 1957.
    No. 57-10.
    Cypen, Salmon & Cypen, Miami Beach, for appellants.
    Joseph A. Wanick and Alex Gordon, Miami Beach, for appellee, The City of Miami Beach, Florida.
    Sibley & Davis, Miami Beach, for ap-pellees, intervenors Ivar Blacker and Charles H. Posner.
    Eaton & Achor, Miami, amicus curise.
   PEARSON, Judge.

This appeal is from a final decree denying an injunction. The plaintiffs describing themselves as citizens, taxpayers and owners of real property in the City of Miami Beach, Florida, sought a decree of the Circuit Court permanently enjoining the defendant, City of Miami Beach, Florida, from holding a special election. The decree of the chancellor is affirmed.

There is no controversy as to events set forth in the complaint as a factual basis for the injunction prayed. On March 27, 1957 the City Council of the City of Miami Beach passed upon first reading an ordinance entitled, “An ordinance amending ordinance No. 289, commonly known as the ‘Zoning Ordinance, of Miami Beach, Florida.’ ” The ordinance was passed upon the third and final reading on April 17, 1957. Immediately following the passage upon third reading of the named ordinance, there was presented to the City Council certain petitions consisting of the following words and figures:

“We the undersigned qualified electors of the City of Miami Beach, Florida, do severally and jointly petition the City Council of Miami Beach to submit to the electors of the City of Miami Beach the following measures for adoption by the electorate: ‘That all ordinances Amending ordinance number 289, commonly known as the “Zoning ordinance of Miami Beach, Florida.” Passed and enacted between the dates of March 27, 1957, inclusive, be and the same are hereby Repealed.’ ”

The City clerk of the defendant certified the petitions as bearing- the requested number of signatures of registered voters and no evidence was introduced to the contrary at the trial of the cause. These petitions were presented pursuant to Section 26 of the Miami Beach City Charter, Chapter 22400, Laws of Florida, Special Acts of 1943. This section sets out among other things a procedure for the passage of ordinances by petition of the electorate and provides that the City Council must either adopt the measure initiated by petition without alteration or submit the same to its electorate. The city council took the latter course and passed its resolution calling a special election for the purpose of submitting to the electorate the following single question:

“Shall the following ordinance be adopted?

“ ‘Be It Ordained by the City Council of the City of Miami Beach, Florida, That All Ordinances Amending Ordinance -Number 289, Commonly Known As the “Zoning Ordinance of Miami Beach, Florida.” Passed and Enacted Between the Dates of March 27, 1957, and April 17, 1957, Inclusive, Be and the Same Are Hereby Repealed.’ ”

No evidence was presented of any procedural defect in the calling of the election, although the plaintiff did challenge the propriety of the circulation of the petitions on dates prior to April 17, 1957.

The record reveals that plaintiff’s evidence was offered only by stipulation and was to the effect that the special election would cost “some money” and that some of the petitions were signed prior to April 17, 1957. Every other ground for the issuance of the injunction sought must appear on the face of the pleadings or patently appear from the exhibits or become solely a matter of law from the admissions in the pleadings,

The Chancellor found these insufficient to enjoin the election and made the following announcement at the conclusion of argument of counsel:

“This is a suit by a taxpayer to enjoin a pending election on the ground that he will suffer irrevocable harm and injury and pecuniary damage if the election is held. I would not attempt to and do not think I properly should determine any legality of ordinance that might result from such an election. The question before the Court is whether or not the election itself should be enjoined, and I do not believe that a showing, a sufficient showing, has been made under this case to enjoin the election. So I will deny the application. I think it should be clearly understood I am not attempting to pass upon the suit that may subsequently be brought by property owners affected by this. I do not think I should, and I do not think it is within the purview of the Court.”

The principal argument of appellants for reversal is based upon a contention that initiative laws do not apply to zoning; and therefore the election would be void or illegal. Since the chancellor expressly refused to rule upon the validity of the ordinance that might be passed by the electorate, he has in effect failed to rule upon this question. We are presented therefore with the question: Was it error for the chancellor to fail to rule on the validity of the ordinance proposed? We think that the chancellor was correct in his position.

There is a vast difference between the question of the legality of the election and the validity of the ordinance that might result. It would be true that an election held to pass an ordinance which was later held to be invalid would be useless, but it would not follow that such an election was illegal. An election should not be held if the ordinance proposed was clearly invalid on its face. In the instant case such a certainty does not exist. It follows that the validity of the proposed ordinance can best be considered not under an injunction proceeding hastily brought and defended prior to an election already called, but in a suit brought for that purpose by affected property owners. The question of the applicability of initiative laws to zoning has not been decided in this State and there are respectable authorities from other jurisdictions to be maturely considered.

We think the general rule regarding the exercise of the power of a court of equity to restrain the holding of elections is ably set forth in the case of City of DeLand v. Fearington, 108 Fla. 498, 146 So. 573, wherein the court said “A court of equity will not as a general rule restrain the holding of an election, but there are some well-known exceptions to this rule. An election held in violation of law or contrary to well-established legal requirements, or when it would result in substantial injury to any suitor or the public generally, may on proper showing be enjoined where there is no other legal remedy.”

Other than the contention of appellant that the petitions were improperly circulated as above noted the appellants urged: first, that the petitions sought the repeal of an ordinance passed between certain dates when the ordinance sought to be repealed was passed upon the terminal date to wit: April 17, 1957. This proposition does not fall within any of the recognized exceptions stated herein. It is an objection properly going to the validity of possible results of the election. Second, the appellant urges that the ballot which is to be submitted to the electorate is so vague and indefinite that it is impossible for the voters to determine what they are being asked to vote upon. This alleged infirmity does not clearly appear on the face of the ballot. The proposition does not fall within one of the enumerated exceptions and to require the chancellor to pass upon it at this stage, of the proceeding would be to anticipate a result that may never occur.

In arriving at the conclusion reached in this case we are mindful of the reluctance of courts of equity to enjoin elections legally called. “Statutes giving the power of initiative to the electors of a municipality are to be liberally construed by the courts to the ends of permitting rather than restricting the power and to attaining rather than preventing its object. McQuillan, Municipal Corporations, 3rd Ed. p. 246, Sec. 16.51.” Barnes v. City of Miami, Fla. 1950, 47 So.2d 3, 4.

“Enjoining a legal election irreparably injures the public.” Wheeler v. Meggs, 75 Fla. 687, 78 So. 685, 686. The decree appealed from is affirmed.

HORTON, J., concurs.

CARROLL, CHAS., C. J., dissents.


author: PER CURIAM.

text:
    Mary Ella VAUGHT, Appellant, v. Claude PEPPER, John B. Orr, Jr., Joe Creel, Morris Glantz and James T. Benn, Appellees.
    No. 57-25.
    District Court of Appeal of Florida. Third District.
    Aug. 7, 1957.
    Verne L. Freeland, Miami, for appellant.
    Allan Clements, Jr., Miami, for appellee Claude Pepper.
    Hilton R. Carr, Jr. and Herbert A. Warren, Jr., Miami, for appellees John B. Orr, Jr. and Joe Creel.

      Salley and Roman, Miami, for appellee James T. Benn.
   PER CURIAM.

Affirmed.

CARROLL, CHAS., C. J., HORTON and PEARSON, JJ., concur.


author: HORTON, Judge.

text:
    Rose P. GOLDNER, Appellant, v. Dennis LENTIN, a minor, by Hillman Lentin, as father and next friend, and Hillman Lentin, individually, Appellees.
    District Court of Appeal of Florida. Third District.
    Aug. 2, 1957.
    No. 57-16.
    Anderson & Nadeau, Miami, for appellant.
    F. E. Gotthardt of Morehead, Forrest, Gotthardt, Greenfield & Greenberg, Miami, for appellees.
   HORTON, Judge.

This appeal is from a final judgment entered by the lower court, after jury verdict, in favor of the Appellees for personal injuries sustained by the Appellee, a minor, while operating a motor scooter on the streets of Miami Beach, Florida. The injuries were occasioned by a collision between his motor scooter and an automobile operated by the Appellant. He was 15 years of age at the time of collision. Among the errors assigned for a reversal of the lower court judgment only three were urged by the Appellant in her brief and orally before this Court. Although the other questions raised have been considered by the Court, the only substantial point of law raised by the Appellant's assignments of error was whether the lower court committed error when, during the course of the trial, it refused to permit proffered testimony to go to the jury showing that the Appellee, minor, at the time of the collision was operating the motor scooter under a restricted driver’s license. The license restricted the Appellee, minor, to daylight driving. The question the Court feels should be answered in the negative, and, therefore, the judgment of the lower court should be affirmed.

It was undisputed that the Appellant, while proceeding in an easterly direction on 40th Street in the City of Miami Beach, where said street intersects with Prairie Avenue, decided to make a left turn north into Prairie Avenue, and that Appellee, minor, was proceeding in a westerly direction on 40th Street at the same time. The Appellant testified that she did not see the motor scooter on which the Appellee was riding as she proceeded into and was crossing his traffic lane north into Prairie Avenue. The physical evidence shows that the Appellant’s automobile was struck on the right rear fender by the motor scooter. Other than the collision itself, no act of negligence on the part of the Appellee, minor, was shown. The Court feels that this case falls squarely within the rule enunciated in 3 Fla.Juris. p. 561, “Automobiles, etc.” Sec. 92, “The weight of authority is that mere absence of an operator’s license as required by law is not in itself evidence of negligence in the operation of a motor vehicle in the absence of some causal connection between the injury and the failure to have the license; * * Lindsey v. Barton, 1954, 260 Ala. 419, 70 So.2d 633; De Vite v. Connecticut Co., 112 Conn. 670, 151 A. 320; Davis v. Gordon, 183 Md. 129, 36 A.2d 699, 156 A.L.R. 1109; Dervin v. Frenier, 91 Vt. 398, 100 A. 760; Lindsay v. Cecchi, 3 Boyce 133, 26 Del. 133, 80 A. 523, 35 L.R.A.,N.S., 699; Lutfy v. Lockhart, 37 Ariz. 488, 295 P. 975; Speight v. Simonsen, 115 Or. 618,239 P. 542, 43 A.L.R. 1149; Mahowald v. Beckrich, 212 Minn. 78, 2 N.W.2d 569; Opple v. Ray, 208 Ind. 450, 195 N.E. 81; Strandt v. Cannon, 29 Cal.App.2d 509, 85 P.2d 160; Ross v. Pennsylvania R. Co., 106 N.J.L. 536, 148 A. 741; Prichard v. Collins, 228 Ky. 635, 15 S.W.2d 497.

No error having been made to appear, the judgment appealed from should be and it is hereby affirmed.

CARROLL, CHAS., C. J., and PEARSON, J., concur.


author: HORTON, Acting Chief Judge.

text:
    John N. TOLAR et al., Appellants, v. Robert MEYER et al., Appellees.
    No. 57-2.
    District Court of Appeal of Florida. Third District.
    July 29, 1957.
    Rehearing Denied Aug. 14, 1957.

      Lilburn R. Railey, Miami, for appellants.
    Thomas H. Wakefield, and Edwin H. Underwood, Jr., Miami, for appellees.
   HORTON, Acting Chief Judge.

In applying the applicable principles of law to the facts in this case the Court is of the opinion and so holds that the lower court should be affirmed. The lower court is affirmed upon the following grounds:

a. There were restrictive covenants of record at the time appellants purchased or agreed to purchase the property in question.

b. The zoning regulations of Dade County, Florida, did not abrogate the restrictions nor impair the lawful contract rights created thereby.

The facts in this case disclose that the appellees filed a Bill of Complaint in the Circuit Court of Dade County, Florida, against the appellants alleging in substance that the appellees were owners of lots in Helms Country Estates, a subdivision in Dade County, Florida, upon which there had been placed of record certain restrictive covenants in November, 1950. The property appears to have been platted or subdivided and the plat of the subdivision accepted by the County Commission of Dade County, Florida, in June, 1950. The plat recited, substantially, that the zoning regulations of Dade County then in effect, or as they may be changed from time to time, should be observed. The appellees sought to enjoin the appellants, whom, it is alleged, intended to use certain properties purchased or about to be purchased from the appellant Ayers as a site upon which to erect and maintain a church, and that the property purchased or about to be purchased from the appellant Ayers by the appellants Trustees of the Presbytery of Southeast Florida of the Presbyterian Church, U. S. A., Inc., was covered by, and subject to, the restrictive covenants placed thereon in November, 1950.

The appellants by answer denied the material allegations of the Bill of Complaint and specifically denied that the lots which they owned and intended to use were subj ect to any restriction and particularly those restrictions referred to in the appellees’ Bill of Complaint. The answer further set out that the County Commissioners of Dade County, Florida, had zoned the property in question so that the appellees could use the same for the purposes they intended. Also, that the original owner and subdivider of the property had consented, in writing, for the use of the property for the purposes intended by the appellants. The cause was submitted to the Chancellor of the lower court upon a Stipulation of Fact, and a decree granting the injunction as prayed by the appellees was entered by the lower court. It is from the decree of the lower court that this appeal is taken.

The deed of conveyance to the appellant Ayers, as Trustee, recited, in substance, that the conveyance was made subject to “conditions, restrictions and limitations as to use, occupancy and sale of said property as appear of record * * * zoning ordinances and regulations.”

It becomes apparent from the facts that the appellant Ayers, as Trustee, at the time he received his title had constructive notice if not implied actual notice of the restrictive covenants; constructive notice by reason of the recordation of the agreement of November 13, 1950, and implied actual notice because of the statement contained in their deeds of conveyance. Allen v. Avondale Co., 135 Fla. 6, 185 So. 137; Vetzel v. Brown, Fla. 1956, 86 So.2d 138.

The appellants have urged that inasmuch as the plat that was proposed by the original owner and subdivider, Helms Construction Company, and accepted by resolution of the County Commission of Dade County, Florida, was placed of record prior to the recordation of the agreement of November 13, 1950, creating the restrictive covenants, that the restrictive covenants were abrogated or could be abrogated by subsequent action of the County Commissioners of Dade County, Florida. In this respect the Court has not overlooked the appellants’ further contention that the original owner and subdivider, Helms Construction Company, had executed a written statement consenting to the change of zoning to permit the appellants’ use of the property for their intended purposes, and the fact that the said owner-subdivider had likewise relinquished its right of reversion. The Court has carefully considered these contentions but in the light of the prevailing principles of law, which it feels apply to this case, such contentions can not be upheld. The Supreme Court of Florida, in the case of Allen v. Avondale Co., supra [135 Fla. 6, 185 So. 138], said, with respect to the effect of zoning ordinances upon restrictive covenants, “The fact that the plaintiff’s lot has been zoned by the City for business purposes does not abrogate the restriction nor impair the lawful contract rights created thereby. Ludgate v. Somerville, 121 Or. 643, 256 P. 1043, 54 A.L.R. 837; Bachman v. Colpaert Realty Corp., 101 Ind.App. 306, 194 N.E. 783, 789.” Whatever the effect of the written acquiescence made by the owner-subdivider to the County Commission of Dade County, Florida, may have been it is the opinion of this Court that such acquiescence could not and would not bind or waive the rights of the other parties to the agreement creating the restrictive covenants.

Appellants have strongly urged in their brief and before the Court that no privity of contract existed between the present owners of properties in the subdivision in question and the makers of the original agreement imposing the restrictive covenants. This contention appears to have been answered adverse to the appellants by the holding of the Supreme Court of Florida in the case of Osius v. Barton, 109 Fla. 556, 147 So. 862, 88 A.L.R. 394, and recently affirmed in Vetzel v. Brown, supra.

No error having been made to appear, the decree appealed from should be and it is hereby affirmed.

PEARSON, J., and ANDERSON, Associate Judge, concur.


author: PONDER, Justice.

text:
    233 La. 251
    Carl T. JEANSONNE et al. v. Ross E. COX et al.
    No. 42997.
    Supreme Court of Louisiana.
    June 10, 1957.
    Breazeale, Sachse & Wilson, Borron, Owen, Borron & Delahaye, Baton Rouge, for defendants-appellants.
    Burton, Roberts & Ward, Baton Rouge, for plaintiffs-appellees.
   PONDER, Justice.

In this suit the plaintiffs seek a mandatory injunction to compel the defendants to fill or close a drainage ditch or canal and, in the alternative, to recover damages occasioned to their property by virtue of the construction of the ditch or canal. After trial there was judgment denying the mandatory injunction but awarding damages to the various plaintiffs in amounts ranging from $250 to $1,000. From this judgment, the defendants have appealed and the plaintiffs answered the appeal asking for the mandatory injunction originally prayed for, and, in the alternative, for an increase in the amounts ranging from $2,500 to $4,500.

Plaintiffs are the owners of lots in a subdivision of the City of Baton Rouge known as St. Gerard Place No. 2 and the defendants are the owners of property in a subdivision known as Schorten Place, which subdivision lies immediately south of and abuts St. Gerard Place No. 2. The defendants decided to pave two streets in Sch'orten Place and in connection therewith the city required the owners to provide drainage facilities. Plans and specifications for the construction of a drainage canal were prepared by the defendants’ engineer and approved by the city. Pursuant to these plans and specifications, the defendants dug a canal along the north side of Schorten Place and up to the south line of St. Gerard Place No. 2. The canal in question is located in Schorten Place on the property of defendants but within %oths of one foot from St. Gerard Place No. 2 and is approximately 23 feet wide at some points and approximately 12 feet in depth at some points. This canal took in a strip of land of varying widths lying between the two subdivisions and designated as an alley on one of the maps offered in evidence, the remaining portion of the canal taking land forming a part of Schorten Place and belonging to the defendants. Plaintiffs seek judgment ordering the defendants to cover the canal and to restore the alleged alley to its original condition; in the alternative, they seek to recover damages alleged to have been sustained by them as a result of the unsightliness of the canal, deprivation of use and enjoyment of their property, and depreciation as a result of the canal.

It is the contention of the plaintiffs that the canal encompasses a place dedicated as an alley in addition to the property owned by the defendants. They concede that the City has authority to revoke the dedication but contend that it has not done so. At the instance of the plaintiffs, the City was made a party to the suit. The City filed an exception of no cause or right of action which was maintained by the district court and the City was dismissed from the proceedings.

Although the plaintiffs contend that the defendants had no right to place the canal in a so-called dedicated alley, yet they, contend that the City is not a party in interest in the suit, while the defendants allege that this Court cannot consider the question of whether or not they should, be compelled to fill the canal without the , City being made a necessary party to the suit.

It is admitted in the agreed stipulation ' of facts that the canal was dug by the defendants under a permit from the Directer of the Department of Public Works of the City-Parish Government of the City of Baton Rouge and Parish of East Baton Rouge to permit drainage as a condition for the paving of the streets (Beech St. and Lorraine St.) in the subdivision owned at that time by the defendants. The City has agreed to maintain this canal and it is now public property.

It is the allegation of the plaintiffs that the canal or drainage ditch has damaged their use and enjoyment of their property and that its value has been lessened. They allege that it is unsightly and that it is unprotected by fence and is a source of danger; that it is constructed in an unreasonable manner in that it is unnecessarily wide and deep and is designed to carry water contrary to the natural flow or drain.

Defendants contend that this canal or ditch is not a nuisance per se, nor is there any physical invasion of, or physical damage to, the property of the neighbor and hence recovery for damages cannot be allowed, relying upon the provisions of Article 668 of the LSA-Civil Code which reads as follows: “Although one be not at liberty to make any work by which his neighbor’s buildings may be damaged, yet everyone has the liberty of doing on his own ground whatsoever he pleases, although it should occasion some inconvenience to his neighbor.”

In support of their claim for damages, plaintiffs-appellees rely upon Article 667 of the LSA-Civil Code which provides that “Although a proprietor may do with his estate whatever he pleases, still he can not make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.” They cite the cases of Fontenot v. Magnolia Petroleum Company, 227 La. 866, 80 So.2d 845; Beauvais v. D. C, Transport, La.App., 49 So.2d 44; Galouye v. A. R. Blossman, Inc., La.App., 32 So.2d 90; Roche v. St. Roumain, La.App., 51 So.2d 666; Higgins Oil & Fuel Co. v. Guaranty Oil Co., 145 La. 233, 82 So. 206, 5 A.L.R. 411; De Voke v. Yazoo & M. V. R. Co., 211 La. 729, 30 So.2d 816.

An examination of the cases cited by the plaintiffs reveals that they are inapplicable to the present situation. All of these cases deal with nuisances or physical invasion of property. In allowing damages, the lower court cited and relied upon the case of Fontenot v. Magnolia Petroleum Company, supra, but that case involved a direct physical invasion that did physical damage .to the residences of plaintiffs therein, as a result of shock waves from an explosion. In the present case there is no claim of physical damage or physical invasion of the property of the plaintiffs nor is there any allegation that the canal is a nuisance.

Plaintiffs contend that the canal was excavated in an unreasonable manner, and, even if the canal complained of was excavated in a reasonable manner and without negligence or fault, defendants are nevertheless liable to plaintiffs for any damages they have sustained.

The testimony in the record conclusively shows that the canal was excavated in a reasonable manner without fault or negligence. The evidence shows that no odors or anything of like character have been caused by this canal, no water is carried onto plaintiffs’ properties as a result thereof, in fact in no way has this canal interfered with the full use and enjoyment of the plaintiffs’ property. Furthermore, maps introduced in evidence show that the subdivision in which the plaintiffs live is traversed by the Wildwood Canal which is 12 feet deep and 30 feet wide and that immediately north of the subdivision lies the Hollywood Canal, thus showing that the property is already embraced by much larger drainage structures than the one here complained of. Moreover, the record shows that the properties of plaintiffs are encumbered with a servitude for drainage and other purposes, which servitude lies adjacent to the canal complained of and that the construction of this canal eliminates the use of the public authorities of five feet of the lot of each of these plaintiffs-appellees for drainage.

It is to be noted that in brief filed in this Court, the plaintiffs for the first time claim that they have been affected by erosion. No claim was made in the original petition and suffice it to say if any erosion occurred it could only affect the five foot servitude for drainage which. the City owned, insofar as the plaintiffs are concerned.

There being no physical damage, the only testimony relied upon by the plaintiffs is that of real estate men that the presence of this canal greatly depreciated the value of the property. In this respect the evidence is contradictory, some witnesses testifying that the canal did in fact depreciate the property while other witnesses testified that its presence did not depreciate the value of the property.

After considering all of the facts in this case, we have come to the conclusion that the plaintiffs have failed to establish that they have suffered any recoverable damage under the laws of this State.

For the reasons assigned, that part of the judgment of the lower court denying the mandatory injunction is affirmed, in all other respects the judgment is reversed and set aside and the plaintiffs’ suit is dismissed at plaintiffs-appellees’ cost


author: HAMLIN, Justice ad hoc.

text:
    233 La. 259
    HOUSING AUTHORITY OF NEW ORLEANS v. George WATERS et al.
    No. 41036.
    Supreme Court of Louisiana.

      June 10, 1957.
    William J. Guste, James M. Colomb, Jr., Roy F. Guste, New Orleans, for plaintiff-appellant.
    Andrew G. Búcaro, New Orleans, for defendant-appellee.
   HAMLIN, Justice ad hoc.

Acting under LSA-Revised Statutes 40 :- 381 et seq., the Blousing Authority of New Orleans brought these proceedings for the expropriation of two certain lots with all the buildings and improvements situated thereon, located in the First District of the City of New Orleans, bounded by Erato, Thalia, S. Dorgenois, and S. Rocheblave Streets.

Answering plaintiff’s petition, the defendant, George Waters, averred that the consideration offered was inadequate and inequitable and prayed for judgment of $35,000 in his favor.

From a judgment condemning the property to the Housing Authority of New Orleans and awarding $22,429.84 to the defendant, George Waters, plaintiff appealed as to the monetary award, alleging that it is excessive and contrary to the law and the evidence.

Plaintiff contends that the judgment should be reduced to $18,533, which reflects the fair market value of the property. The defendant, George Waters, prays for affirmance of the judgment.

The property herein involved, measuring 60' front by a depth of 112' 9" was purchased in 1921 and 1924 by the defendant, George Waters. During the ensuing years he built the improvements located thereon, consisting of two double houses designated as 3831-33 and 3835-37 Thalia Street and a four-tenant tenement structure in the rear. We find the following description of these improvements by one of the experts for plaintiff to be correct:

3831-33 Thalia Street

“* * * a double camel-back, weatherboards on studs, with wood ceiling on the interior papered over, containing a total of ten rooms, brick pier, — concrete block and brick pier foundation; has gas outlets and two chimneys, electricity, two tubs, two toilets, two laundry trays and two sinks.”

3835-37 Thalia Street

if* * * a (jout>ie frame dwelling weatherboards and studs, beaded ceiling interior, having a total of six rooms, two baths, has a chimney, gas outlets, electricity, one tub, two toilets, one lavatory, two sinks, foundation brick piers.”

Rear Tenement

“* * * a two-story tenement dwelling stretching over the entire width of the lot, having a total floor area of 820 square feet. It is weatherboard on stud in the front, and imitation black composition rool roofing in the rear, beaded ceiling interior, concrete chain wall foundation, has eight rooms and two garages or sheds. That could be used for either. That property has two toilets, and two slop sinks and has electricity. It is occupied by four tenants * * *”

The defendant lived on the premises and received a controlled monthly rental of $167 per month, which is conceded to be somewhat low in comparison to present day rents.

Two expert realtors, Max J. Derbes and E. Holland Johnson, testified for plaintiff as follows as to the value of the property.

3831-33 Thalia Street: $9,174.00 Value i- 2,752.00 Depreciation $6,422.00 Net Value 180.00 Shed 140.00 Fence 210.00 Paving $6,952.00
3835-37 Thalia Street: $5,841.00 Value " 1,460.00 Depreciation $4,381.00 Net Value 180.00 Shed 100.00 Fence $4,661.00
Rear Tenement: $4,920.00 Value 1,968.00 Depreciation $2,952.00 Net Value 368.00 Shed $3,320.00
Land (Valued at $60.00 a front foot) $3,600.00 Total Value . $18,533.00

Mr. Derbes stated: “I know what it would cost an ordinary person to build but the figures I gave were the figures it would cost to build, the figures as of today. It should have cost them considerably less, sir, at the time they built them.” He further stated that he. based $18,533 as the price a willing seller and willing purchaser would agree upon as of the time of trial. A price of $5.50 a square foot was used in evaluating 3831-33 Thalia Street and $6 a square foot for 3835-37 Thalia Street. Depreciation employed was 30% for 3831— 33 Thalia Street, 25% for 3835-37 Thalia Street, and 40% for the rear structure.

Cliff Probst, a licensed realtor, testified .as an expert for the defendant. His evaluation is as follows:

“The ground, I put an appraisal of $4,500.00, which is $75.00 a front foot. It is a 60 x 112 nine inches, because I ■checked it. It is a paved street and good neighborhood, with conveniences. I put a value of $4,500 for the total ground. The building, the tenement in the rear, across the rear of the lot, is two-story. I put an evaluation of four ■dollars a square foot, 1770 square feet, less 40% depreciation, making a net of $4,248.00 for the improvements across the rear of the lot. There is an extra garage. Let me get back to the tenement. There are nine rooms and a garage. There is an extra garage with a cement floor, and I valued that at $350.00. 3831-33 Thalia, that is a .double camel-back. There is slate roof ■on the two-story section, and Johns Manville roof on the one-floor. Five rooms and bath each side, a total of ten rooms two baths. One side uses the -whole upper. I put a valuation of :seven dollars a square foot on it, less ■depreciation of 33i/j%, leaving a net -valuation for the improvements of :$7,935.48, plus a practically new rear shed with paved floor, $250.00. 3835— 2>7 Thalia is one story double cottage. I used $7.00 less 33^3% depreciation, ■or $4,896.36, and $250.00 for the rear ;shed which is practically new with a ;paved floor, making a total of $22,429.-:84.” (Emphasis ours.)

We believe that the following pronouncement from the case of Housing Authority of New Orleans v. Boudwine, 224 La. 988, 71 So.2d 541, 542, is applicable ,to this controversy:

“As a general rule the measure of •compensation to be awarded in proceedings of this kind is the market value of the property — that is, the -price which would be agreed upon at a voluntary sale between an owner willing to sell and a purchaser willing to buy. And most important in determining the market value are sales of similar or comparable properties in the vicinity. Housing Authority of Shreveport v. Green, 200 La. 463, 8 So.2d 295; City of New Orleans v. Noto, 217 La. 657, 47 So.2d 36; Housing Authority of New Orleans v. Brinkmann (Young) [224 La. 262] 69 So.2d 37, and the numerous cases therein cited. Here, however, the record contains no satisfactory evidence of sales of land and improvements comparable to that involved. Hence, ascertainment of the trite or intrinsic value must be sought by a consideration of other factors and circumstances. * * *” (Emphasis ours.)

Although the instant record does contain, as evidence, two Acts of Sale, we do not find that the properties therein conveyed are comparable to the property herein involved. In our opinion, the locations are too far removed, and we do not find the descriptions similar. Therefore, as stated in the above quoted case, we must consider other factors and circumstances.

To arrive at a valuation of the property, we shall have to resort to the testimony of the expert witnesses.

“Moreover, the opinion of each witness qualified and accepted as an expert should be given effect if and when it appears to be well grounded from the standpoints of sincerity and good reasoning. City of New Orleans v. Larroux, 203 La. 990, 14 So.2d 812, State v. Landry, 219 La. 456, 53 So.2d 232, and Housing Authority of New Orleans v. Brinkmann [224 La. 262, 69 So.2d 37].” Housing Authority of New Orleans v. Boudwine, supra. (Emphasis ours.)
“ * * * the general rule pertaining in cases of this type is that * * the opinion of each witness qualified and accepted as an expert should be given effect if and when it appears to be well grounded from the standpoints of sincerity and good reasoning.’ See Housing Authority of New Orleans v. Boudwine, 224 La. 988, 71 So.2d 541 and cases there cited. * * *” State of Louisiana through Department of Highways v. Glassell, 1955, 226 La. 988, 77 So.2d 881, 884. (Emphasis ours.)
Mr. Probst testified:
“I would say that is has been a long time since I have seen colored property, colored double or colored tenement, that has been kept up as wall as it has. In fact he has zvall-paper, slate roof on the double, brick columns and cement steps on the place, and it looks like the owner has from time to time gone in to do certain improvements, and I also say that at this moment there is a terrific scarcity of places for colored people.” (Emphasis ours.)

Mr. Probst further stated that he had colored prospects that he could not handle because he did not have listings; that the prices were terrific where people were selling.

The record discloses that the property is approximately twenty years of age and is rental in character. The preponderance of the evidence shows that it is livable and desirable to the tenants it attracts, and there is no evidence of any vacancy.

Mr. Johnson did testify that the rear building was not constructed with the required size joists and that the two front buildings, as well as the rear tenement, were devoid of guttering, causing some sinkage. However, he made no statement as to how the livability of the buildings was affected by these alleged deficiencies. Thus, he has not contradicted Mr. Probst’s testimony above quoted. Neither has Mr. Derbes contradicted Mr. Probst’s testimony.

The scarcity of property of the instant type, as of the time of trial, was not discussed by either Mr. Derbes or Mr. Johnson. Their testimony is more closely connected with replacement costs, and on this, point Mr. Probst’s testimony has, likewise,, not been contradicted.

Analyzing the evidence as a whole, which includes photographs, we are of the opinion that Mr. Probst’s evaluation is well grounded from the standpoint of good reasoning. It further appears, from his uncontradicted testimony, that property of the type herein involved has increased in value during the 1950’s, and it has. been held that this Court can take judicial cognizance of that fact. State v. Landry, 219 La. 456, 53 So.2d 232; Greater Baton Rouge Port Commission v. Watson, 224 La. 136, 68 So.2d 901.

For the reasons assigned, we conclude that there is no error in the judgment of the trial court awarding the defendant $22,429.84, and the judgment is affirmed.


author: HAWTHORNE, Justice.

text:
    233 La. 269
    Madie Cole McNEAL v. Murl McNEAL.
    No. 42957.
    Supreme Court of Louisiana.
    June 28, 1957.

      Philo Coco, Marksville, for defendant-appellant.
    Lloyd G. Teekell and Edwin O. Ware, Alexandria, for plaintiff-appellee.
   HAWTHORNE, Justice.

Murl McNeal, the defendant in this suit, has appealed from a judgment awarding to his wife, Mrs. Madie Cole McNeal, a separation from bed and board, custody of their four minor children, and alimony, and recognizing her as the owner of an undivided one-half interest in the community property.

In her petition plaintiff alleges numerous acts of cruel treatment and public defamation. See Art. 138, La.Civ.Code. She avers, among other things, that for some three or four months before the separation her husband often absented himself from home without explanation, frequently cursed and abused her, refused to eat at the table with her and the children, refused to sleep in the same bed with her, without justification called her a whore and a streetwalker, and in the presence of the children and a third person, a relative of his, accused her of having sexual intercourse with every man that came along. On the trial in the court below plaintiff’s testimony followed the allegations of her petition. Defendant, on the other hand, for the most part denied that he had done and said the things of which she had accused him, although he admitted that he had publicly defamed her.

Appellant argues in this court that the evidence adduced at the trial of the case is not sufficient to support a judgment of separation. As we view the matter, the question for us to decide is one of fact, and its solution depends upon which of the two witnesses, the husband or the wife, is to be believed and whose testimony can be given greater credence and weight. If the testimony of the wife is accepted, she has proven her allegations of cruel treatment and public defamation and is entitled to a judgment of separation under Article 138 of the Civil Code, Subsections 3 and 4. The trial judge, who heard and observed these witnesses, evidently believed the testimony of the wife. After reading the record we cannot say that he ererd in his conclusion.

Appellant also argues that even if this court should affirm the judgment of the lower court awarding his wife a separation from bed and board, she should not be decreed to be the owner of one-half of the community property because in her petition she failed to ask for a partition of the community.

There is no merit in this contention. Articles 136 and 155 of the Civil Code state that separation from bed and board dissolves the community of. acquets and gains existing between the husband and the wife, and we know of no law, nor does appellant cite any, to the effect that her failure to ask for a partition in this suit makes it impossible for the court to grant her prayer to be recognized as the owner of one-half of the community property.

For the reasons assigned the judgment appealed from is affirmed, appellant to pay all costs.


text:
    233 La. 273
    STATE of Louisiana ex rel. Andrew Stirling ALBRITTON v. Lucille May GRACE, Register of State Land Office, et al.
    No. 43164.
    Supreme Court of Louisiana.
    June 28, 1957.
    Jack P. F. Gremillion, Atty. Gen., George M. Ponder, 1st Asst. Atty. Gen., and John L. Madden, Sp. Asst. Atty. Gen., for defendants-appellants.
    Liskow S¿ Lewis, Lake Charles, for plaintiff-appellee.
   HAWTHORNE, Justice.

This is a mandamus proceeding by Andrew Stirling Albritton to compel the Register of the State Land Office to issue, and the Governor to sign, a patent to the SE}4 of NEJ4, Section 14 (West of Bayou), Township 14 South, Range 6 East. There was judgment for relator in accord-anee with his prayer, and respondents have appealed.

According to this record, the State of Louisiana in 1858 sold to John Laidlaw 320 acres of land at $1.25 per acre, as evidenced by Entry Certificate No. 4481 NSH. These 320 acres, among others, had been selected by the state under the Swamp Land Act of March 2, 1849. It was subsequently ascertained, however, that the State of Louisiana had no title to these 320 acres, either because the United States government had already issued a United States patent for them or because the state had previously sold them. Accordingly in 1919 the Register of the State Land Office, acting under the authority of Act 104 of 1888, issued to the heirs of John Laidlaw or his assigns In Lieu Land Warrant No. 188, which entitled the holder of it to locate upon lands of the State of Louisiana of the same class as those originally bought by Laidlaw.

In 1941 relator, Andrew S. Albritton, became the owner of In Lieu Warrant No. 188, and on April 10, 1953, he made application to the Register of the State Land Office to locate a portion of this land warrant on, and to have issued a patent to, the lands described above. These lands had been selected by the state under the Swamp Land Act of 1849, and title to them is conceded to be in the state. Thus the lands which were sold by the state to John Laid-law in 1858, but to which the state had no title, and the lands located by Albritton under the in lieu warrant were both lands selected by the state under the Swamp Land Act, and therefore, according to the records of the Register of the State Land Office, they were lands of the same class, and, according to the provisions of Warrant No. 188, “John Laidlaw, his heirs or assigns, are entitled to have this warrant located upon lands of the State of Louisiana, of the same class as that originally entered under said certificate No. 4481 NSH”.

The Register of the State Land Office refused to issue relator the patent for which he applied. The basis of this refusal was that at the time of application the tract which relator was seeking to acquire under the warrant had become potentially valuable for oil, gas, and other minerals, and that it was therefore no longer of the same class of lands as those originally sold by the state to Laidlaw.

The trial judge in his excellent reasons for judgment said:

“* * * The facts are not in dispute, and those material to the issue here involved are that prior to relator’s application for a patent to the lands in question, the state granted a mineral lease to Shell Oil Company covering these and other state lands. At the date of relator’s application a portion of the lands covered thereby was included in a drilling unit, but no drilling operations had been commenced on said unit. Other lands covered by the state’s lease to Shell, but not including any portion of the lands covered by relator’s application, had been placed in a drilling unit, and oil was being produced therefrom at the date of relator’s application, although the producing well is not on state land. Subsequent to the date of relator’s application drilling was commenced on the unit which includes a portion of the lands covered by relator’s application, and resulted in the production of oil in paying quantities.

“Defendants refused to issue the patent applied for, their contention being that at the date of relator’s application the lands in question had become recognized as being potentially valuable for oil, gas and minerals. This, they contend, took them out of the class of lands subject to location under the land warrant now before the court, [and] hence the patent could not issue because of the provisions of Act 104 of 1888. That is the sole question to be resolved here.

“In the absence of any statute or jurisprudence, defendants’ contention might be persuasive. However, we find both a statutory provision and jurisprudence on the question.

“LSA-R.S. 41:98 provides:

“ ‘The governor may withdraw from sale or entry any of the vacant and unappropriated public lands and lake beds or bottoms belonging to the state, whenever in his opinion, they appear to be more valuable for mineral than for any other purpose, and he may restore to sale or entry all withdrawn lands, at his discretion.’

“This quoted section was formerly section 1 of Act 38 of 1914.

“Defendants contend that the legislature had the quality or value of lands in mind when the word ‘class’ was used in the act of 1888. Even if that be true, and on that question this court expresses no opinion, differences of opinion and litigation would seem inevitable on the questions of quality and value. This appears particularly true with reference to highly speculative mineral values. In my opinion the legislature recognized this situation when it enacted Act 38 of 1914. Under the terms of this brief statute, the governor, guided by his opinion only, is authorized to remove state lands from their original class and place them in the class of lands valuable for minerals, withdrawing them from sale or entry. A compliance with the statute eliminates all doubt and difference of opinion, and leaves no basis for litigation. It is further my opinion that by the enactment of this statute the legislature provided the exclusive method by which state lands may be removed from their original class and classed as lands valuable for minerals.

“The case of Douglas v. State, 208 La. 650, 23 So.2d 279, is discussed in the briefs filed herein. In my opinion that decision is authority for the proposition just stated. There no proclamation of the governor in compliance with the provisions of Act 38 of 1914 was in evidence. No such proclamation is in evidence here, and it is not contended that any proclamation was issued.

“In support of their contention defendants have cited several decisions of the United States Supreme Court. These decisions deal with particular federal laws affecting known mineral lands, and with the authority of certain officials of the national government. For these reasons I am of the opinion they have no application to the question here involved.

“Despite the existence of the mineral lease to Shell Oil Company at the date of relator’s application, it is my opinion that at that date the lands in question remained in their original class, subject to location under the land warrant here involved.

“It is admitted by relator that the title conveyed to him by the patent sought will be subject to the mineral lease heretofore granted by the state to Shell Oil Company.

“For these reasons it is ordered that the alternative writ of mandamus issued herein be made peremptory ordering and commanding the Register of the State Land Office to issue and the Governor to sign the patent in favor of relator as prayed for.”

Under the law and the evidence submitted to the trial judge, we think he decided this case correctly. However, respondents filed in this court after the case had been argued and submitted for our decision a motion seeking to have filed and considered in this court a proclamation issued on March 20, 1917, by Ruffin G. Pleasant, then Governor of the State of Louisiana. To this motion is attached a certified copy of the proclamation, which reads as follows:

“State of Louisiana
“Executive Department
“Baton Rouge
“Executive Order
“Be It Known that, under the authority in me vested by House Concurrent Resolution No. 36, being Act No. 258 of the General Assembly for the year 1912, and by Act No. 38 of the General Assembly for the year 1914, being House Bill No. 124, I hereby withdraw from sale or entry all the vacant and unappropriated public lands of the State of Louisiana, including the beds and bottoms of present and of former bodies of water. The said public lands, withdrawn from sale or entry, do not include redeemable lands forfeited to the State for the non-payment of taxes, lands applied for prior to this date, or lands owned by any political subdivision of the State.
“It is my opinion that the .lands hereby withdrawn are more valuable for minerals than for any other purpose.
“The Register of the State Land Office and all others in authority are hereby directed to take notice of this order and act in accordance therewith.
“Given under my hand and seal of office on this the Twentieth (20th) day of March, 1917.
s/d “Ruffin G. Pleasant “(Seal) “Governor”

In this motion respondents request that we give consideration to this proclamation because “this cause was decided adversely to mover solely on the grounds that the land in question was not withdrawn from sale or entry by the Governor. In fact, the Trial Court ruled that the classification of lands as contemplated in Act 104 of 1888 could be changed only by the Governor withdrawing same from sale or entry”. They seek to have us consider this proclamation although it was not offered in evidence in the trial court or even mentioned there. Respondents contend here that the proclamation was issued pursuant to an act of the Legislature, and that this court can take judicial cognizance of it. However, they cite no authority in support of this proposition.

Counsel for relator have filed opposition to this motion, setting forth among other objections that the proclamation is not in accordance with the act under which it was purportedly issued, that the proclamation has been set aside by subsequent actions of the Governor on many occasions since 1917, and, further, that the proclamation has never been made effective.

Under the provisions of Articles 894 and 895 of our Code of Practice we cannot consider as new evidence the proclamation which respondents seek to file in this court. There appears, however, to be considerable merit in their contention that we should take judicial cognizance of this proclamation. See 31 C.J.S. Evidence § 41, p. 604; cf. Art. 422, La.Code Crim.Proc., R.S. 15:422.

If we take cognizance of the existence of this proclamation and give it effect, under the facts of this case we should have to reverse the judgment and dismiss relator’s suit since by the proclamation the Governor withdrew from sale or entry all vacant and unappropriated public lands of the State of Louisiana with certain exceptions. Relator, however, has raised serious questions as to the legality and effect of this proclamation which we do not think should be decided originally in this court. Accordingly in the interest of justice we have concluded to remand the case to the district court under the authority of Article 906 of the Code of Practice. In that court respondents may file and urge the proclamation as a defense to relator’s suit, and relator may urge any defense he may have to the legality and effect of this proclamation, offer evidence, and file any exceptions or pleas he may deem necessary.

For the reasons assigned the judgment appealed from is reversed and set aside, and the case is remanded to the district court for further proceedings consistent with the views here expressed. All costs are to await final determination of the cause.

FOURNET, C. J., concurs in the result.

      . The lands in controversy are shown to have a value of over $3000.00, and the purpose of this suit is to compel the execution of a patent to the lands, or to compel a conveyance of title to the lands to relator. See State ex rel. Hyams’ Heirs v. Grace, 197 La. 428, 1 So.2d 683. We therefore have appellate jurisdiction of this case.

      . Act 104 of 1888 is an act “To authorize the register of the State land office, where it is made to appear that dual or double entries have been made, to cancel the invalid and erroneous entry and to issue a warrant therefor, loeatable on other State lands of the same class as was originally entered”.


text:
    233 La. 284
    STATE of Louisiana v. William S. ROWAN and Herbert Ray Mears.
    No. 43474.
    Supreme Court of Louisiana.
    June 28, 1957.

      Jack P. F. Gremíllion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., J. St. Clair Fav-rot, Dist. Atty., Scallan E. Walsh, and Thomas B. Pugh, Asst. Dist. Attys., Baton Rouge, for relator.
    Major & Ponder, Kantrow, Spaht, West & Kleinpeter, Baton Rouge, for respondents.
   HAWTHORNE, Justice.

We granted writs in this case solely for the purpose of reviewing a ruling of the district court ordering the State to elect and inform the defendants whether it intended to prosecute them under Subsection (1) or under Subsection (2) of Article 30 of the Louisiana Criminal Code, and if under Subsection (2), then to elect and inform the defendants whether the State would contend that both defendants were engaged in the perpetration or attempted perpetration of simple robbery or armed robbery.

Defendants-respondents, William S. Rowan and Herbert Ray Mears, were charged with murder in the short-form indictment authorized by Article 235 of the Code of Criminal Procedure. After defendants’ motion to quash the indictment was overruled, they filed a motion for a bill of particulars, in which the State was called upon, among other things, to inform the defendants whether they were being prosecuted under Subsection (1) or under Subsection (2) of Article 30 of the Louisiana Criminal Code, and if under Subsection (2), to state the felony the defendants were allegedly perpetrating when the killing occurred. In answer to the motion for a bill of particulars the State informed the defendants that they were being prosecuted for the crime of murder under both Subsection (1) and Subsection (2) of the article-under Subsection (1) in that the offense was committed while the defendants had the specific intent to inflict great bodily harm, and under Subsection (2) in that the offense was committed while the defendants were engaged in the perpetration of both armed and simple robbery. Counsel for defendants objected to this answer and called upon the State to elect. Pursuant to this objection-the lower court entered the order set forth above.

It is averred by the State that these two defendants conceived the plan of allowing themselves to be picked up by an alleged homosexual whom they intended to beat and rob, that in the course of this venture they actually robbed and beat the deceased with their fists and with a large, heavy metal flashlight, and that as a result of this he died.

In the State’s answer to the motion for a bill of particulars it informed the defendants that they “had the specific intent to inflict great bodily harm upon the person o-f the Deceased”; that the defendants “were at the time of the alleged offense [murder], engaged in the perpetration of simple robbery and armed robbery, both of which alleged crimes were actually consummated” and, further, that “the simple robbery and' armed robbery were accomplished by the-Accused while committing a battery upon the Deceased with the use of their hands, and fists and subsequently by committing a. battery upon the person of the Deceased while armed with a dangerous weapon, to-wit: a large, heavy metal flashlight and battery case, with which the Deceased was struck”.

Article 30 of the Louisiana Criminal Code describes two sets of circumstances under which the crime of murder can be committed, but it is obvious that this crime can be committed under any one of the two sets of circumstances, and also under a combination of the circumstances, set out in Subsections (1) and (2). The State’s answer to the motion for a bill of particulars shows that the crime in the instant case is alleged to have been committed under circumstances set out in both subsections of the article. In short, murder can be committed under Subsection (1) or under Subsection (2) of the article or under both subsections at the same time, which is exactly what is alleged to have happened in the instant case. Consequently the judge erred in ordering the State to elect.

The cases of State v. Prince, 216 La. 989, 45 So.2d 366, and State v. Jackson, 227 La. 642, 80 So.2d 105, are complete authority for the conclusion that in the instant case the State should not be forced to elect.

Respondents say that if the answer of the State to their motion for a bill of particulars stating that they were being prosecuted for the crime of murder committed under both Subsection (1) and Subsection (2) of Article 30 be deemed sufficient and the State is not required to elect, then they cannot adequately prepare their defense to the charge since they are not sufficiently informed of the nature and ■cause of the accusation against them as guaranteed by Article 1, Section 10, of the Louisiana Constitution of 1921.

It has been said by this court that “The purpose of a bill of particulars is to afford an accused a reasonable amount of information in order that he may properly prepare his defense, and to limit the scope of proof and restrict the introduction of evidence”. State v. Dugan, 229 La. 668, 86 So.2d 528, 529, and authorities there cited. The bill of particulars in this case certainly affords respondents ample information to properly prepare their defense, and their complaint that it does not is without merit.

Their real complaint seems to us to be that the bill of particulars affords them too much information ! In fact, respondents by their objection to the State’s answer to their motion for a bill of particulars and by their motion to elect are not seeking information in order to prepare their defense, but are seeking to limit the State in its proof and restrict the introduction of evidence. If they can compel the State to elect as they here seek to do, then the evidence will be so restricted and limited that the State cannot show all the facts and circumstances surrounding the crime charged even though these facts and circumstances constitute only one continuing transaction. We cannot subscribe to the ruling of the lower court which produces such a result.

Respondents rely principally on the case of State v. Holmes, 223 La. 397, 65 So.2d 890. In that case we held that it was error for the State to refuse to give by bill of particulars the specific felony which the defendant, who was charged with simple burglary, intended to commit when he entered the dwelling. That case has no application here and cannot be construed to mean that if the offense there charged, simple burglary, had been committed under one or more of the circumstances set forth in the statute defining that offense, the State would have had to elect under which circumstances it was prosecuting the defendant.

For the reasons assigned the ruling of the trial judge ordering the State to elect in the instant case is annulled, reversed, and set aside, and the case is remanded to the district court to be proceeded with according to law.

      . Article SO of the Crimial Code, R.S. 14:30, reads:
      “Murder is the killing of a human being,
      “(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
      “(2) When the offender is engaged in the perpetration or attempted perpetration of aggravated arson, aggravated burglary, aggravated kidnapping, aggravated rape, armed robbery, or simple robbery, even though he has no intent to kill. * * * ”

      . The correctness of the ruling on the motion to quash is not before us in these proceedings. Respondents may obtain a review of the lower court’s ruling on it on appeal in the event of conviction.

      . R.S. 14:62.