author: THOMAS, Justice. DREW, Justice

text:
    Ermine M. OWENBY, Individually and as Trustee of the real estate belonging to W. R. Ward at the time of his death, and Annie Belle Malone, Appellants, v. CITY OF QUINCY, a municipal corporation, Appellee.
    Supreme Court of Florida, En Banc.
    April 24, 1957.
    Rehearing' Denied June 13, 1957.
    See also, 84 So.2d 40.

      W. J. Oven, Jr., Tallahassee, for appellants.
    Alton M. Towles, Quincy, for appellee.
   THOMAS, Justice.

The appellants filed a bill of complaint against the appellee seeking a decree quieting title to the west half of a block in the City of Quincy alleged to have been unimproved and unpossessed.

The appellants, Ermine M. Owenby, in her individual capacity and as trustee of the real estate belonging to W. R. Ward at the time of his death, and Annie Belle Lyle Malone, alleged that in 1945 they were approached by representatives of the city who offered them $4500 for the property in question. The city had already purchased the east half of the block for a like amount. The appellants agreed to place title in the name of the city so that the land as improved would become a memorial to Arthur R. Malone, and accordingly they executed a deed to the city which contained a recital that the land was being conveyed for use by the grantee as “a park, playground or for recreational purposes for white persons only.” It was specified that by the acceptance of the deed, the grantee agreed to use the property for such purposes and that the grantors could enjoin its use for any other purpose and that in the event the property was not devoted to such purposes within five years, or its use should be discontinued for one year, it should revert to the grantors, their heirs or assigns.

According to the bill, no consideration whatever was received for the execution of the deed despite the recital that the property was bargained, granted and sold in consideration of ten dollars and other valuable considerations. It was averred that no money was paid and that the term “other valuable considerations” was meant to be a reference to the contemplated development of the land as a park and a memorial. The appellants complained that the property had never been used as a park, playground or recreational area and that its condition at the time of suit was the same as at the time of sale. So the appellants prayed that the deed be cancelled and the title confirmed in them.

The controversy culminated in a final decree dismissing the bill. The chancellor in a scholarly opinion discussed the various phases of the litigation, the recognized law governing covenants, restrictions and conditions and animadverted on the indefiniteness of the improvements contemplated by the grantors and the grantee by which the former were induced to convey.

As the chancellor wrote, the doubt about the original arrangement was not dispelled by, if indeed, it did not arise from, testimony about conversations among the grantors and the mayor at the time the negotiations were in progress. It was mentioned that the property should become a “thing of beauty”; that there would be a park and flowers, and possibly a bandshell; that a landscape architect would be engaged to supervise the beautification of the property; that a suitable marker would be erected, supposedly to show the name of the person in whose memory the gift had been made. Although none of these elements was clearly defined and adopted, it is plain to us that there was never the intention that the city could retain the property and do as little as it did in the period elapsing between the execution of the deed and the institution of the suit.

It seems to us useless now to attempt to deduce what the city was supposed to do when it did nothing, but' fill in a low spot, and we think it would he illogical to hold that the city by doing nothing, but fill the low spot, could keep the property which was given it in exchange for doing something.

Therefore, we do not feel obliged to go deeply into these facets of the litigation so thoroughly explored by the chancellor. As he observed, all parties to the transaction intended that the property should be improved. It was expressly provided in the deed that failure to carry out within five years the purposes for which the conveyance was made should work a reversion. The city had obtained the other half of the block for a considerable sum; it had obtained grantors’ half for nothing, except the promise to improve it.

The case may be decided by a comparison of the condition of the property at the time of the conveyance and at the time of suit, more than nine years later. As the chancellor commented, it would be difficult to determine precisely the nature of the improvement that was to be made in order that the property could be enjoyed by the public and would be a fitting memorial to Arthur R. Malone. But the city should not be allowed to retain the gift by doing practically nothing to make the property more useful or more attractive. Had the city attempted improvement of some sort, there would be occasion to discuss and determine the question whether or not the improvement so conformed to the intention entertained by all parties to the transaction as to defeat the plaintiffs in their suit.

“After the execution of the deed,” to quote from the decree, “the City did nothing to the property except to discontinue its use for any commercial purpose, plant a small amount of grass, keep all the grass mowed * * * [and] to fill parts of.the lot which were so low that, in times of very wet weather water accumulated and sometimes remained for a day or two.” And he found that “the property is now, except for the filling done by the City, in much the same * * * condition that it was when the deed was executed.” Upon such a feeble showing of improvement between 1 December 1945 and 6 July 1955, the city should not be allowed to retain the gift.

The decree is reversed with directions to enter one for the appellants granting the relief sought in the bill.

HOBSON, ROBERTS and O’CON-NELL, JJ., concur.

TERRELL, C. J., and DREW and THORNAL, JJ., dissent.

DREW, Justice

(dissenting).

I am unable to agree to the majority opinion. The able chancellor who heard and decided this case wrote the following able and exhaustive opinion which I hereby adopt as my views:

“On December 1, 1945, Ermine M. Owen-by, individually, Ermine M. Owenby, as ad-ministratrix d.b.n.c.t.a. of the estate of W. R. Ward, deceased, and as trustee of the real estate belonging to W. R. Ward at the time of his death, Carl L. Owenby, Annie Belle Lyle Malone, individually and Annie Belle Lyle Malone as Attorney in fact for James Lyle Malone, executed a deed to the City of Quincy, a municipal corporation. The conveyance was a gift. The granting clause of this deed is as follows: * * have bargained, granted and sold, and do, by these presents, bargain, grant, sell and convey unto the said party of the second part, its successors and assigns forever, for the purpose of being used by the party of the second part as a park, playground or for recreational purposes for white persons only, the following described property ‡ * ifc >

“After a description of a parcel of land consisting of one-half of a city block and the usual form of warranty, the deed continues :

“ ‘And the party of the second part, by the acceptance of this deed, agrees that it will use said property for a park, playground or for recreational purposes for white persons only and agrees that the parties of the first part, their heirs or assigns may enjoin them from using said property for any other purpose.

“ ‘It is further understood and agreed between the parties hereto that in the event said property is not used for the purposes for which it is conveyed, as hereinabove set forth, within five years after date hereof, or should cease for a period of one year to be used for any of said purposes, that the said property shall revert to the parties of the first part, their heirs or assigns.’

“Stated chronologically, the facts developed by the evidence are briefly as follows:

“There is in the City of Quincy a vacant lot, approximately three hundred feet square, with paved streets on each side, and located in a highly developed residential section of the city just one-half block removed from the grounds of the local public school. A number of large trees stand along the streets bordering the block. The entire block is known locally and will herein be referred to as ‘Ward’s Lot.’ For many years prior to the execution of this deed above mentioned this property was not put to any commercial use by the owners except occasional renting to small circuses, tent shows and carnivals. During this period the children of the community in substantial numbers habitually used Ward’s lot as a place for play, and to some degree the property was used by the local school as a place for supervised recreation for school children during recess periods when the schools were in operation. This was done, apparently, without any express agreement with, but without any objection from, the owners of the property.

"In 1945 the plaintiffs owned one-half of Ward’s lot and the other half was owned by Randolph Jones et al. The city purchased that half of the lot owned by Jones et al., paying therefor some $4,500.00.

“Some time during the summer, or early fall of 1945 the city, acting through its then Mayor-Commissioner, James J. Love, began negotiations for the purchase of that half of Ward’s lot then owned by the plaintiffs. Most of these negotiations were conducted with the plaintiff, Carl L. Owenby. Almost immediately Col. Owenby suggested the possibility that the property might be donated to the City as a memorial to the late W. R. Ward, who had been a prominent citizen of the community, and his nephew, Arthur Malone, a brother of Mrs. Owenby, who had lost his life in the service of his Country during the Second World War. The evidence is lengthy, but not very definite as to just what was said in these negotiations. The parties discussed beautifying the area, planting flowers, building walkways, the construction of a bandstand, the erection of a memorial fountain or plaque (even to some extent the inscription to appear on the plaque) and the employment of a landscape gardener to assist in planning the work to be done. Mr. Love used the expression ‘a place of beauty’ and ‘something of which the family would be proud’ in discussing the plans of the city. The evidence clearly establishes that it was the intention of the city, as expressed by Mr. Love, and the intention of the grantors that the city would spend substantial money and energy in making Ward’s lot more beautiful or useful or both. It is impossible for the Court to glean from the evidence any meeting of the minds of the parties upon just what would be done. Perhaps the most specific statement is to be found in the testimony of Col. Owenby:

“ ‘A. I did not return from service until the latter part of September, that is, to Quincy in 1945. Prior to that time the only thing that I recall is the letter from Mr. Love, which I make this explanation to the counsel, if I might, that only after 3 frantic weeks was it discovered night before last at 10:30. I make that remark in apology to you and Mr. Towles because it w;as something that Mr. Love did not recall at the time. When I returned to Quincy, Mr. Love, when his office was in the Wilson building over there, approached me and said that we had many conferences together but on this particular occasion he said that the Jones people, I believe Mr. Randolph and one of his brothers, had tendered the property to the City of Quincy not as a gift because they would not give anything, but that they had been tendered $4,500.00 for the east half of the Ward lot, and he, as the Mayor of the City of Quincy, tendered us the same amount, the consideration of $4,500.00 with the comment that he thought that the price was a little high but that since they had tendered Mr. Jones that, that he would tender the Ward estate the same amount. Mrs. Owenby was not present at that conference. Subsequent to that the matter was presented to Mrs. Owenby and Mrs. Malone but with only the casual observation that Mr. Love, who represented the City of Quincy at that time, that there was a possibility that the Ward estate would give the property to the City of Quincy under certain stipulated conditions. Among them were that the property would be improved and would be a “Thing of beauty”, that’s Mr. Love; that there would be parks and flowers and that it would be improved as rapidly as possible as soon as materials were available. In one of the conversations with Mr. Love there was a question of a bandshell on the northwest corner of this particular property which was 150 x 300 feet. No specific details were given in there but Mr. Love said that it was the intention of the City of Quincy to retain the services of a qualified landscape gardener or architect or whatever the professional qualifications were to put the property into such shape that it would be a thing of beauty and something that Mrs. Owenby and the estate of Arthur Malone and Mrs. Malone would be very proud of. No promises were made at this particular conference because I was not authorized by Mrs. Owenby as I was not the attorney for her estate but was merely, among other things, discussing it with Mr. Love. He approached me on it. I did not approach him. I did not offer to give the property. He tendered the $4,500.00, the same amount that Randolph Jones and his brother were tendered for the east half of the property. We did specifically go into the question at that time, or possibly at a later conference, the question of how many years would be required to do this. I recall in recent conversations this letter. No one else recalled it and when I found it, I noticed that there were 2 or 3 years mentioned in there, but the deed which was drawn, I believe by the then City Attorney, I’m not positive on this point, stipulated that it should be done within 5 years.

“ ‘Q. Why was a 5-year limitation put in the deed? A. Because it was necessary to get a priority from Washington at that time because it was shortly after a war and you had to get certificates of necessity for cement or for most any kind of building materials.

“‘Mr. Oven:

“ ‘Q. Was there any discussion between you and Mr. Love prior to the delivery of this deed with regard to the acquisition of playground equipment for this lot? A. Not to my knowledge, but it was to be used by the City of Quincy for a park to embrace the entire block, not the part given by the Ward estate but the entire block. He told me at the time that when it was suggested, and the suggestion came from me and not from Mr. Love, that I believed that possibly Mrs. Owenby and Mrs. Malone might consider donating the property to the City of Quincy provided certain stipulations were met; that I would approach them on the subject and obtain their comment.

“ ‘Q. Did you have a discussion with Mr. Love in regard to naming the park? A. We did; and at this juncture I might say that I have never discussed with any member of the City Commission prior to the delivery of this deed, except Mr. James J. Love, who stated at the time that he represented the City of Quincy as Mayor. That was the general understanding. The question of the hospital, the question of any other extraneous reputation was never entered into, but Mr. Love did say that that would be fine to obtain it for a park, that the City did not have a park available, that in the event that the property was obtained for a minor or nominal consideration, that the City would be in a position to spend materially much more on it since they were acquiring it absolutely free of charge.

“ ‘Q. Was there any discussion in regard to naming it? A. Yes. Mr. Love said that he thought that the name of W. R. Ward and Arthur Random Malone, his nephew, deceased November 1944, that he thought that the name would be too long, would be cumbersome, but that the park would be appropriately marked and would be called the Arthur Random Malone Memorial Park.

“ ‘Q. Was there a discussion of the erection of a plaque? A. There was. It was agreed to by him and he, in fact, suggested it.

“ ‘Q. Was there a discussion of the construction of the walks? A. Yes.

“ ‘Q. What was the extent of that discussion? A. Only the extent that they said they would put the walks and the flowers in the parkways there and beautify it, as he said, “A thing of beauty”, which Mrs. Owenby and their family would be proud of ”.

“There is no evidence as to just what transpired in connection with the drafting, execution and delivery of the deed. Neither the scrivener, nor any witness to the deed was called to testify. No contemporaneous conversations were narrated. And the record does not disclose who instructed the scrivener as to the terms of the instrument he was to prepare.

“After the execution of the deed the city did nothing to the property except to discontinue its use for any commercial purpose, plant a small amount of grass, keep all the grass mowed, and expend some $2,077.20 in hauling in earth to fill parts of the lot which were so low that in times of very wet weather water accumulated and sometimes remained for a day or two. The use of the property by the children of the city as a place for play and recreation has continued and probably increased to some extent. The use of the property by the local school as a place for supervised exercise and recreation of school children under the direction of their teachers during school recesses has materially increased and the property is now, except for the filling done by the city, in much the same physical condition that it was when the deed was executed. The County School Board installed receptacles for trash on the property.

“The record shows also that the city at one time in 1953 made plans for and contemplated the construction of sidewalks and crosswalks on the lot, but the city was requested by the County School Board to refrain from making any changes in the property for the reason that the school plant did not have sufficient playground area in relation to the size of buildings and number of pupils to meet the requirements of state law, and it was only by using this property for school playgrounds that the county could get the maximum of state aid for the school. Acceding to this request, the city did nothing more to the property. No playground equipment of any sort has been placed on the property, but the testimony of the school authorities discloses that they preferred that this not be done as, in their opinion, it tended to discourage organized games which they considered preferable for the children.

“In the light of the foregoing facts, the Court has the duty of determining whether or not the relief prayed for should be granted. In doing this the Court is bound by established rules of law and principles of equity which it is powerless to change and which it is duty bound to apply to the facts developed by the evidence.

“The Court will first consider the prayer for a reformation of the deed. The plaintiff’s contention is that by an error of the scrivener the word ‘or’ was used in the place of the word ‘and’ so as to produce an alternative instead of a conjunctive relationship between the words ‘park’, ‘playground’ and ‘recreational purposes,’ in referring to the uses to which the property was acquired to be put.

“It is apparent from an examination of the deed that this mistake, if one occurred, was not a mere inadvertence. The phrase ‘a park, playground or for recreational purposes’ appear in the granting clause preceeding the description of the land and again in a paragraph following the warranty and preceeding the paragraph providing for the reversion. It will be noted also that the reversion clause provides that ‘should (the property) cease for a period of one year to be used for ‘any of said purposes’ the reversion should take place. It is thus made clear that the sc/trivener, who must be presumed to have a working knowledge of the English language, intended the use of the alternative and intended to provide for a reversion only in the event of a failure on the part of the city to use the property for any of the purposes specified. The conclusion is inescapable that the scrivener wrote what he intended to express and the error, if any, was in a misunderstanding of the instructions given to him.

“But this alone does not solve the problem. If the scrivener misunderstood the intentions of the parties and wrote the instrument in such a way as to express something different from the contract which he had been directed to reduce to writing, a reformation may still be decree [sic] if the necessary proof is present.

“However, in order to secure a reformation, the plaintiffs must show by clear and convincing proof that the minds of the parties met on a clear, definite and specific agreement; that it was the intention of the parties to reduce this agreement to writing; that the grantor in executing and the grantee in accepting the deed intended and actually believed that the instrument delivered expressed the contract upon which their minds had met.

“Turning now to the testimony, it is evident that the Mayor-Commissioner with whom Col. Owenby discussed the transaction on several occasions contemplated that the city would beautify the property to a substantial degree and that Col. Owenby entertained the same idea during these conversations. There is no showing that any definite agreement was reached as to the nature and extent of this beautification. A bandstand was discussed. The erection of a plaque was discussed. General terms such as making the property ‘a thing of beauty’ and something of which the grantors ‘would be proud’ were rather freely used. But property may be donated to a City with the intention of the grantor and grantee that certain things will be done under at least three different legal situations: (1) the grantors may rely entirely upon the good faith of the city to carry out its expressed intentions, (2) the grant may be subject to a covenant enforceable by the grantors, or (3) the conveyance may contain a reversion clause divesting the city’s title if specified conditions are not complied with.

“The question with which the Court is confronted is this — does the evidence establish by clear and convincing proof which, if any, of these were agreed upon between the parties? To answer this question we cannot look to the deed because the contention is that the deed did not truthfully reflect the intention of the parties — did not express in writing that upon which the minds of the parties had met.

“It is readily ascertainable from the evidence that the grantors did not intend to rely solely upon the expressed intention of the city as to the use to which the property would be put. The testimony of Col. Owenby is uncontradicted that the deed would be made upon some conditions, although the exact nature of these conditions is not made clear. But whether the conditions would be in the nature of conditions precedent, restrictions, covenants or provisions for reversion cannot be ascertained from his or any other testimony in the case.

“In many of the legal writings a distinction is drawn between covenants, restrictions, and conditions and in a strict legal sense it is improper to refer to a condition in a grant unless it is a condition precedent, performance of which must precede the vesting of title or a .condition subsequent, the occurrence of which will terminate the estate granted and effect a reversion.

“If we adopt the strict legal definition of the word ‘conditions’ as used in the testimony — and this may be proper since Col. Owenby is a lawyer — it is still uncertain whether he referred to conditions precedent or conditions subsequent. It cannot be said with any assurance upon which the minds of the parties met. But even if we go further and reach the conclusion that the minds of the parties did reach an agreement that the conveyance would be made subject to some conditions subsequent, from the testimony what would these conditions be? There is testimony that the property would be made ‘a thing of beauty’, or something of which the grantors would ‘be proud’. There is also testimony with respect to the erection of a bandstand, and a plaque or drinking fountain. There were references to planting flowers, landscaping, the construction of walks. There was reference to a park and playground. Were all of these to be required of the city? If not, which of them did the minds of the parties meet upon as the conditions subsequent to be included in the deed? The Court cannot say that the evidence is clear and convincing that the parties agreed upon any definite and specific conditions subsequent to be incorporated in the deed. Certainly it cannot be said that the parties agreed that a park tmd playground would be established. From the evidence the Court is convinced that had the city built an attractive bandstand, constructed sidewalks and crosswalks, erected a plaque with suitable inscription, planted shrubbery and flowers and carefully tended and cultivated them, the grantors would not be dissatisfied or assert that a reversion had occurred. But had the city done all this, and utilized all of the property for these purposes, there would then be no playground and the terms of the phrase ‘park and playground’ would have been equally violated.

“Turning again to the deed itself it is observed that there is no evidence as to just what transpired in connection with the instructions to the scrivener, the drafting, execution, delivery and acceptance of the deed. The limitation of the use of the property to white persons, the term of five years allowed to begin the required uses, and the term of one year of abandonment as affecting a reversion were not mentioned in the negotiations. Where did these come from? Of particular significance is the fact that use of the property for forbidden purposes is not to work a reversion, but merely give rise to a right to enjoin such misuse whereas failure to use the property for any of the required purposes does work a reversion. Obviously someone, presumably one or more of the parties, gave the necessary instructions to the person who drafted the deed. One of the grantors is a lawyer, the head of a large and successful business, a man whose keen intellect is apparent from his testimony. He signed and delivered the deed.

“Under all these circumstances,' the sanctity which the law gives to written contracts, particularly muniments of title to land, has not been overcome by the evidence and reformation of the deed must be denied.

“Turning to the proper construction of the deed as written, giving full force to the use of the alternative word ‘or’ in the phrase under consideration the Court finds that the property in question has been used for ‘playground’ purposes and there has been no reversion to the former owners.

“Careful consideration has been given to the contention that the word ‘or’ should be construed as ‘and’ but the Court is of the opinion that this is permissible only when necessary to give effect to the intention of the parties as drawn from the instrument in the light of the circumstances under which it was executed- Such a construction in this case would do violence to the obvious intent of the instrument as drawn.

“As above stated, it was the intention of the city, as expressed by its Mayor-Commissioner, to improve the property to a substantial degree and particularly to make it more beautiful. This idea was also present in the minds of the grantors. It motivated the gift. The fact that the deed was so drafted that this was not a legal duty of the city, impels the Court to deny the relief sought in this proceeding. The extent of any moral obligation on the city, and its present officials, to carry out the intentions expressed in the negotiations leading up to the gift of valuable property to the city is a matter not within the scope of judicial determination. Nothing in this decree should be construed as a finding that such moral obligation does not exist.

“It is suggested by the city that Mr. Love, the Mayor-Commissioner, acted in a personal and individual capacity in discussing the acquisition of this property with the former owners and that nothing he said should be regarded as being binding upon the city. When the city accepted the gift of the property as fruits of Mr. Love’s activities it ratified all that he had done and said that could reasonably have been considered by the persons with whom he dealt as having been done with the authority of the city.

“It is, therefore,

“Considered, ordered, adjudged, and decreed by the Court that the complaint filed herein be and the same is hereby dismissed upon its merits.”

I am authorized to say that Mr. Chief Justice TERRELL and Mr. Justice THORNAL concur in this dissent.


source: Caselaw Access Project

author: TERRELL, Chief Justice.

license: Public Domain

text:
    STATE of Florida, ex rel. W. J. ROBINSON, defendant-intervenor, Appellants, v. NORTH BROWARD HOSPITAL DISTRICT, a political subdivision of the State of Florida, in Broward County, Florida, Appellee.
    Supreme Court of Florida, Division A.
    May 22, 1957.

      Quentin V. Long, Hallandale, for State of Florida.
    W. J. Robinson, Fort Lauderdale, for defendant-intervenor, appellants.
    Thomas O. Berryhill, Fort Lauderdale, for appellee.
   TERRELL, Chief Justice.

North Broward Hospital District, hereinafter referred to as the District, was created by Chapter 27438, Special Acts of 1951. It administers two hospitals — North Broward General Hospital and North Bro-ward Provident Hospital. The North Bro-ward Hospital District adopted a resolution authorizing the issuance of $2,500,000 in Hospital System Revenue Bonds. North Broward Provident Hospital was expressly excluded from any benefits to be provided with the proceeds of said bonds, so we are concerned at this time only with the revenues and administration of North Broward General Hospital, which is owned by the City of Fort Lauderdale but is being administered under lease agreement with the city.

In order to make improvements on North Broward General Hospital, the District issued revenue certificates, now outstanding in the sum of $530,000. It is agreed that if the revenue bonds here sought to be issued and validated are in fact issued, the revenue certificates last referred to in the sum of $530,000 will be retired and the city will then convey North Broward Hospital to the District. The purpose of issuing the $2,500,000 in Hospital Revenue Bonds is to enable the District to acquire North Broward General Hospital and make additions, extensions and improvements thereto. This appeal is from the decree of the Circuit Court validating said bonds, despite the resistance of the state and the intervenors. There is no controversy about the facts or the procedure followed.

The first question presented is whether or not the revenue bonds sought to be validated are such as require an approving vote of the freeholders as required by Section 6, Article IX of the Constitution, F.S.A.

The answer to this question is that the resolution authorizing issue of the revenue bonds, including reserves, interest, sinking fund and all other charges to service and retire them, shall be paid solely from the revenues to be derived from the operation of North Broward General Hospital. The resolution and the face of the revenue bonds further provide that the District cannot levy taxes of any nature on any real estate or personal property in the District to pay the principal or interest on the revenue bonds issued pursuant to the resolution and further that said revenue bonds shall under no circumstances constitute a lien upon any of the properties of the hospital system, or any part thereof, or other property of the District. The bonds and coupons provide in terms that they are payable solely from and secured by a lien or pledge upon the gross revenues derived from the operation of the hospital system and that said revenue bonds do not constitute an indebtedness of the District within the meaning of any constitutional, statutory or other limitation. It is expressly agreed between the holder of the bonds and coupons that such holder shall never have the right to require or compel the exercise of the taxing power of the District to pay principal or interest on said bonds.

Chapter 27438, Special Acts of 1951, in terms exempts said bonds from the requirement of. approval by the freeholders and this court has consistently held that revenue bonds of the kind in question are not bonds within the contemplation of Section 6, Article IX of the Constitution. State v. City of Winter Park, 160 Fla. 330, 34 So.2d 740; State v. City of Bartow, Fla., 48 So.2d 747, and cases cited therein.

It is next contended that the revenues of the District are not sufficient to discharge the bonds proposed to be issued and validated as they become due.

The testimony shows that appellee administers the two hospitals heretofore described, that the revenues and expenses of each are kept separate and that only North Broward General Hospital is involved in this revenue bond issue. The evidence further shows that facilities of North Broward General Hospital are entirely inadequate, that the bed capacity and other incidence of the hospital are badly in need of enlargement and betterment and that the revenues derived from administering the hospital will be ample to service the bonds, pay cost of operation and create a surplus sufficient to care for all contingencies.

It is next contended that appellee is lacking in lawful authority to issue the bonds validated by the chancellor.

Sections 4, 6 and 12 of Chapter 27438, Special Acts of 1951, answer this question contrary to the contention of appellants. As to whether or not appellee has authority to issue revenue bonds supported by gross revenues rather than net revenues, the following cases answer this question contrary to contention of appellant. Wolfe v. City of Fort Lauderdale, Fla., 47 So.2d 781; State v. City of Winter Park, supra, and Schmeller v. City of Fort Lauderdale, Fla., 38 So.2d 36.

It is last contended that the District is devoid of legal authority to issue said revenue bonds because the terms of the ratifying act as well as requirement as to appointing the commissioners of the District were not complied with.

This contention is predicated on the theory that the referendum election required was not advertised for 30 days as the ratifying act requires and that the commissioners were not appointed within 30 days as said act requires. It is true that the commissioners were not appointed for almost a year and the referendum election was advertised a few days short of the 30 day requirement but it is also true that no attack was made on the act for either of these reasons before the election, no one claimed that he was denied the right to vote, no fraud was charged or that any one qualified to vote was prevented from exercising that privilege. There is accordingly no merit to this contention. Pearson v. Taylor, 159 Fla. 775, 32 So.2d 826; Town of Baldwin v. State, Fla., 40 So.2d 348; State v. City of Port St. Joe, Fla., 47 So.2d 584; State ex rel. Morgan v. O’Brien, 134 W.Va. 1, 60 S.E.2d 722. See also Langley v. South Broward Hospital District, Fla., 53 So.2d 781, and cases there cited.

The decree appealed from is therefore affirmed.

Affirmed.

THOMAS, ROBERTS and THORN-AL, JJ., concur.


author: HAWTHORNE, Justice.

text:
    232 La. 870
    Succession of Fillippo (or Philip) QUAGLINO.
    No. 42932.
    Supreme Court of Louisiana.
    April 1, 1957.
    Rehearing Denied M.ay 6, 1957.

      James G. Schillin, George Piazza, New Orleans, for plaintiffs-appellants.
    Hammett & Bertel, Robert R. Ramos, Lawrence Hennessy, Jr., New Orleans, for defendants-appellees.
   HAWTHORNE, Justice.

Following our decree in Succession of Quaglino, 223 La. 171, 65 So.2d 127, which dismissed the suit as of non-suit but reserved to plaintiffs the right to renew the action upon certain averments and against the necessary parties, the instant suit was instituted.

In the present suit plaintiffs have appealed from the judgment insofar as it rejected their demand to set aside transfers of certain real property and also transfers of capital stock of the Philip Quaglino Tobacco Company, Inc., made by their father, Philip Quaglino, before his death to the defendants Philip Quaglino, Jr., and Joseph Quaglino, and to have these assets declared to belong to the succession of Philip Quaglino. Plaintiffs have also appealed from the judgment insofar as it rejected their claim against Philip, Jr., for the proceeds of certain insurance on the life of their father.

Philip Quaglino, Sr., died testate on February 23, 1942, survived by his widow in community, Mrs. Josephine Fazzio Quaglino, and eight forced heirs, his six daughters and two sons. In due course his widow was confirmed as testamentary executrix. The estate proved to be insolvent, and the ordinary creditors were paid approximately 25 per cent of their claim. The final account of the executrix was approved and homologated, and she was discharged.

Plaintiffs in the instant suit are the widow in community and four of the daughters. The principal defendants are the two sons, Joseph and Philip, Jr. The other two daughters were named as nominal defendants so that they could appear and assert any rights they might have in this litigation. The corporation, Philip Quaglino Tobacco Company, Inc., was also made defendant, as were Lloyd L. Blanchard and Eugene R. Hornot, who had purchased from the two principal defendants some of the real estate here involved.

Plaintiffs’ principal contention is that their right is based on Article 2239 of the Civil Code, which gives to forced heirs the right to annul absolutely and by parol evidence the simulated contracts of those from whom they inherit; that under the provisions of this article the sales of the real estate here involved and the capital stock of the tobacco company should, under the facts, be declared pure simulations and those assets returned to the succession of their father, which was reopened by decree of the lower court after the judgment of this court rendered when the case was first before us.

In 1922 Philip Quaglino started a tobacco peddling business from his home at 5015 •Camp Street, using a truck to solicit orders and deliver his merchandise. After this business had been conducted some 15 years, it was incorporated in June of 1937. The articles of incorporation show that the in-corporators were Philip Quaglino and his two sons, Joseph and Philip, Jr., and that the corporation was formed for the purpose of conducting a wholesale tobacco business, with a capital stock of $5,000 represented by 50 shares of the par value ■of $100 each. Philip Quaglino was issued six shares, and each of his two sons two shares. According to the charter, Philip Quaglino transferred to the corporation in payment of his shares tobacco merchandise stock, truck, automobiles, office equipment, and accounts receivable having a total value of $600. Each of the two sons, ac.cording to the charter, transferred merchandise stock worth $200 for the two shares he received. The officers of the •corporation were Philip Quaglino, president; Joseph Quaglino, vice-president, and Philip Quaglino, Jr., secretary and treasurer. After the business was incorporated, the three incorporators worked for the corporation and received monthly salaries for their services.

In January of 1939, 40 additional shares were issued to Philip Quaglino, represented by two stock certificates for 20 shares each. Thus at this time there was a total of 50 shares authorized to be issued by the articles of incorporation. In June of 1939 the capital stock of the corporation was increased to $10,000, the father voting his 46 shares and each of the two sons his two shares for the increase, and the charter was amended accordingly. Following this increase of the capital stock Philip, Jr., and Joseph were each issued six additional shares of stock. Therefore at this time the total outstanding stock of 62 shares was owned in the following proportions: Philip Quaglino, 46 shares; Joseph and Philip, Jr., eight shares each. In November of 1941, a few months before his death, Philip Quaglino transferred to his two sons his 46 shares of capital stock of Philip Quag-lino Tobacco Company, Inc.

Philip Quaglino owned certain real estate in the City of New Orleans. On November 13, 1939, he conveyed by notarial act the real estate designated as 5009-5011 Camp Street and 5015 Camp street to his two sons. The property at 5015 Camp Street was the family home. According to this act of sale the two sons assumed a balance due on a mortgage executed by their father in favor of the Home Owners’ Loan Corporation, upon which the act recited that there was "a balance due of $7,197.00. It is appellants’ contention that the sale of this real estate was a pure simulation.

As stated above, Philip Quaglino died in 1942. In his will he bequeathed the usufruct of his entire estate to his wife and bequeathed the disposable portion of his estate to his two sons, share and share alike, as an extra portion in addition to their légi-time, subject to the usufruct in favor of their mother. In this will decedent stated: “I acknowledge that the community of ac-quets and gains between my wife and myself is indebted to our sons, Philip, Jr., and Joseph, in the sum o-f two thousand ($2000.00) dollars each, for money lent to me over a period of the last three years.” The date of this will is April 20, 1936, which was about a year before the formation of the corporation.

In due course decedent’s succession was opened, and his widow qualified as executrix. In this estate there were inventoried three lots of ground appraised at $2,000 and a homestead account in excess of $2,000. Since the succession was insolvent, the real estate was sold at private sale to pay debts of the succession, and was acquired by the two sons for $2,000. The two sons were placed on the final account as creditors of the succession in the sum of $2,000 each, as acknowledged in the will, and they and the other ordinary creditors received approximately 25 per cent of their claims, each of the sons receiving $516.54 from the succession on his claim.

After the death of Philip Quaglino his widow, one of the plaintiffs, continued to live in the family home at 5015 Camp Street, receiving as her principal subsistence an old age pension of $50 a month from the state. In the course of time the house in which she resided deteriorated to such a state that she had to move to the home of one of her daughters.

In 1944, 31 shares of stock of the corporation were issued to Louis Philip Gardner, who was the owner at that time of two shares acquired from Philip, Jr., and Joseph after their father’s death. In 1947 the capital stock of the corporation was increased to $50,000 represented by 500 shares of stock, and stock certificates for 130 shares were issued to Joseph and Philip, Jr., and Louis Philip Gardner. In 1950 the stockholders voted an increase in the capital stock to the sum of $100,000 represented by 1,000 shares, and as a result of this increase each of them received an additional 80 shares. On April 5, 1951, when the first suit was filed, according to the stock records of the corporation Philip, Jr., and Joseph each had 240 shares and Gardner had 243 shares. The record further discloses that from Philip Quaglino’s death through June 30, 1955, these shareholders drew from the corporation as what they termed bonuses an amount in excess of $168,000.

In this court appellants ask that the succession of Philip Quaglino be recognized as the owner of the 480 shares of stock of the Philip Quaglino Tobacco Company, Inc., standing in the name of Joseph and Philip, Jr., and that the corporation be ordered to transfer these shares on its books to Mrs. Josephine Fazzio Quaglino as testamentary executrix.

Appellants contend that the corporation formed by the deceased and his two sons was a sham and a subterfuge, that actually the sons never contributed or paid anything for their stock, and that all of the property conveyed to the corporation at the time it was formed was owned by their father, Philip Quaglino. In short, appellants take the position that the issuance and tranfers of all the stock to these appellees are pure simulations, and that all of this stock is owned by their father’s succession. To answer this contention it is necessary that we review some of the facts and circumstances surrounding the formation of this corporation.

In June, 1937, when the corporation was formed, Joseph was 26 years of age and Philip, Jr., was 24. Ever since their father had started his tobacco peddling business, they had worked and helped him in this business. Even while they were going to school, they were working for their father after school hours. Philip, Jr., finished high school in 1933, and after working for a wholesale company for a short time, in 1935 went to work for his father. When Joseph was 19 he left high school in order to work full time with his father. The record shows that from 1922 to 1937 each of these boys gave hours of work to this business, receiving only small salaries. The tobacco peddling business appears to have been a family business, operated, conducted, and carried on by the father and his two sons. We can draw no other conclusion than that when the corporation was formed in 1937, the two shares of stock were issued to each of the sons by their father for services rendered over a long period of time. See R.S. 12:15; State ex rel. Waterman v. J. S. Waterman & Co., 178 La. 340, 151 So. 422. Since we have found that a consideration was actually given by the sons for these shares of stock, the issuance of these shares to them cannot in any sense be considered a simulated sale.

We do not agree with appellants’ contention that the corporation formed as stated above was a sham and a subterfuge. On the contrary we think that, insofar as this record shows, it was a legal and valid corporation formed under the laws of this state. Since the formation of the corporation was legal and valid, the legality of the action of its stockholders and board of directors increasing the capital stock from time to time, once before Philip Quaglino’s death and several times afterwards, followed in each instance by the issuance of additional stock to Joseph and Philip, Jr., is not before us in these proceedings. Any additional stock in the corporation received by these two appellees as a result of an increase of the capital stock of the corporation cannot be considered as a sale of stock by their father to them which the appellants can attack as being simulated.

As to the 46 shares owned by the father and transferred to these appellees a short time before his death, we think the appellants are on sound ground and have established that this sale was a pure simulation.

Appellees in brief filed in this court state that not one of the transactions here under consideration can he considered as a donation, but insist that this stock was transferred for a real and serious consideration, which was the satisfaction of a debt for money the boys had given their parents which they had earned in night employment as musicians. In support of this contention they rely on the admission in their father’s will that he owed $2,000 to each of them and on the testimony of their mother that they had given to her and her husband during her husband’s life sums of money from their 'earnings as musicians from time to time.

We have concluded that the 46 shares of stock conveyed to these appellees were not conveyed in satisfaction of the indebtedness to each of them mentioned by their father in his will. That these appellees did riot so consider this transfer is evidenced by the undisputed fact that they were shown on the executrix’ final account filed in their father’s succession as creditors for this amount, and that their claims for this sum were satisfied in the same manner as those of other ordinary, creditors. The appellees certainly cannot claim that their father’s succession owed $2,000 to each and at the same time say that the 46 shares were transferred to them in satisfaction of this same indebtedness.

Appellees have not established to our satisfaction any other indebtedness due them by their parents for which the stock could have been transferred. The endorsement on the stock certificates for these 46 shares reads that the stock is sold for value by Philip Quaglino to Philip, Jr., and Joseph, his two sons. Regardless of this recital, we are convinced that no consideration was given for the sale of this stock, and that its transfer was a pure simulation.

Appellees also claim the ownership of this stock by the prescription of three years under Article 3476 of the Civil Code, which provides that the ownership of movables is prescribed for after the lapse of three years. Article 3476, however, must be read with Articles 3506 and 3509. Article 3506 provides that if a person has possessed in good faith and by a just title as owner a movable thing during three successive years without interruption, he shall acquire the ownership of it by prescription unless the thing was stolen or lost. Article 3509 provides that when the possessor of any movable whatsoever has possessed it for 10 years without interruption, he shall acquire the ownership of it without being obliged to produce a title or to prove that he did not act in bad faith. Appellees here did not acquire the 46 shares in good faith; on the contrary their acquisition was in bad faith. Consequently the prescriptive period pleaded by them as a basis for ownership is without application.

Appellees also contend that the sale of this stock, which we have found to be simulated, cannot be set aside because R.S. 12:529 provides that the endorsement of a certificate of stock is effectual though the endorser has received no consideration. As we have said, the 46 shares in question were not acquired by these appellees in good faith, and the transfer was a pure simulation and consequently can be annulled and set aside by forced heirs under the provisions of Article 2239 of the Civil Code. See also per curiam to Sentell v. Richardson, 211 La. 288, 29 So.2d 852; R.S. 12:530.

On November 17, 1939, more than two years after the formation of the corporation, Philip Quaglino conveyed the real estate at 5009-5011 Camp Street and 5015 Camp Street to his two sons. As stated previously, by this notarial act of sale the two sons assumed the balance of $7,197 due on a mortgage executed by their father in favor of the Home Owners’ Loan Corporation. It is this sale which appellants seek to have set aside on the ground that it was a pure simulation.

After this sale Philip Quaglino and his wife continued to live at 5015 Camp Street. In fact, he was living there at the time of his death, and his wife lived there for some time afterwards. Some parts of the property conveyed were occupied by tenants, and there is no evidence that either of the appellees collected these rentals, which seem to have been paid to the parents or some other relative. The income tax returns of these appellees, however, show that they, received some of these rental payments.

The mortgage which these appellees assumed was payable in monthly installments. Before the father’s death some of these installments were paid by the corporation and debited to his personal account on its books. However, after March 1, 1941, which was approximately one year before the father died, all payments made by the corporation of these monthly installments were debited on the books of the corporation one-half to the personal account of each son. In this manner the mortgage was paid in full on June 25, 1943.

Appellants rely heavily on the presumption of simulation which arises from the fact that the vendors continued to live on some of the property sold. Art. 2480, La.Civ.Code. This presumption is not conclusive or irrebuttable, but in such a case the vendee carries the burden of proving that the consideration was paid and the transaction was genuine. Succession of Combre, 217 La. 955, 47 So.2d 734, and authorities there cited; Cusimano v. Ferrara, 170 La. 1044, 129 So. 630.

It is well settled in the jurisprudence of this state that when the price, no matter how inadequate, has been paid by the purchaser in a sale, the transaction is not a simulated one. Citizens Bank & Trust Co. v. Willis, 183 La. 127, 162 So. 822, and authorities there cited; Succession of Nelson, 224 La. 731, 70 So.2d 665.

It has been clearly established in the instant case that a substantial portion of the consideration was paid by the corporation and debited against the personal accounts of the two sons. By such proof the appellees have overcome the presumption of simulation existing in this case, and the sale made by their father to them cannot be set aside under Article 2239 on the ground that it was simulated.

Appellants argue that Philip Quaglino, the decedent, “was the corporation”, that payments made by the corporation were actually payments made by him, and that therefore these appellees have not paid any portion of the consideration. This argument has no merit in the light of our finding that the corporation was legally and validly formed and was not a sham and a subterfuge.

Appellants also rely on Article 2404 of the Civil Code, which prohibits the husband from making a conveyance inter vivos by gratuitous title of the immovables of the community. Since the conveyance of the real estate to the sons was a real sale and not a conveyance by gratuitous title, this article has no application.

Appellants also cite and rely on Article 2444 of the Civil Code, which provides that “The sales of immovable property made by parents to their children, may be attacked by the forced heirs, as containing a donation in disguise, if the latter can prove that no price has been paid, or that the price was below one-fourth of the real value of the immovable sold, at the time of the sale”. This article is without application here. The property sold by the father to the sons in the instant case had a real value of $11,000 at the time of the sale, and the record shows that the sons actually paid more than one-fourth of this value by the payments made by the corporation to the mortgagee and debited to their personal accounts. See Taylor v. Brown, 223 La. 641, 66 So.2d 578; Stevens v. Stevens, 227 La. 761, 80 So.2d 399.

Also, we are of the opinion that the evidence is insufficient to justify us in disturbing the judgment of the lower court which rejected appellants’ demand for a judgment against Philip, Jr., for the proceeds of certain insurance on the life of their father.

In the alternative appellants also plead the provisions of Article 1497, which states: “The donation inter vivos shall in no case divest the donor of all his property; he must reserve to himself enough for subsistence; if he does not do it, the donation is null for the whole.”

Appellants’ argument on this point seems to be that by conveying the real estate and the 46 shares of stock to his sons Philip Quaglino divested himself of all his property and did not reserve to himself enough for subsistence because when he died there were more debts than assets in his estate. Even if these conveyances were donations, which we have found they were not, there is no evidence in this record to show that at the time these conveyances were made the father did not reserve enough property for his subsistence. On the contrary, on this question of fact the record shows that the father had his salary as president of the tobacco company, was the owner of real estate having a value of $2,000 and household furniture and an automobile, had a bank account in which there was a balance of $2,000 at the time of his death, and carried various life insurance policies. There is no merit in appellants’ alternative plea.

For the reasons assigned the sale of the 46 shares of stock in the Philip Quaglino Tobacco Company, Inc., made by Philip Quaglino to Joseph Quaglino and Philip Quaglino, Jr., is annulled, rescinded, and set aside; these shares of stock are recognized as belonging to the succession of Philip Quaglino, and Philip Quaglino Tobacco Company, Inc., is ordered to transfer on its books to Mrs. Josephine Fazzio Quaglino, testamentary executrix of the decedent’s estate, these 46 shares of stock and to issue a certificate for these shares to the testamentary executrix. Appellees Joseph Quaglino and Philip Quaglino, Jr., are to pay all costs of this suit. In all other respects the judgment appealed from is affirmed.

      . The judgment recognized certain movables, such as an automobile and liouse-hold furniture, as belonging to the succession.


author: FOURNET, Chief Justice.

text:
    232 La. 889

      In re the BOARD OF COMMISSIONERS OF ST. CHARLES PARISH HOSPITAL SERVICE DISTRICT, PARISH OF ST. CHARLES, State of Louisiana, et al.
    No. 43334.
    Supreme Court of Louisiana.
    April 1, 1957.
    Rehearing Denied May 6, 1957.
    Maurice B. Gatlin, Frank V. Zacearía, New Orleans, for appellants.
    James P. Vial, Hahnville, Eugene J. Morel, New Orleans, Thomas J. Kelly, Jr., Melvin P. Barre, New Orleans, Bryan J. Lehmann, Jr., Norco, for defendant-appel-lee.
   FOURNET, Chief Justice.

The plaintiffs — taxpayers, property owners, and qualified electors of St. Charles Parish — are appealing from a judgment dismissing on exceptions of no cause and no right of action following trial on the merits, their suit against the Board of Commissioners of the St. Charles Parish Hospital Service District and the Police Jury of St. Charles Parish in which they sought to have declared null, void, and of no effect the notice calling a special property tax election; the election held pursuant to the call on July 10, 1956; and to enjoin any and all action thereunder, including incurrence of indebtedness, issuance of bonds, obtaining of land for and provision of any hospital facilities, as well as levying taxes.

The petition is rather lengthy, inartisti-cally drawn, and confusing. It contains, also, many allegations that are mere conclusions of the pleaders predicated upon no factual specifications, and others that are totally irrelevant and immaterial to the relief sought. However, stripped of unnecessary verbosity, the allegations are, substantially, that the election held on July 10, 1956, is invalid for- the following reasons:

(1) The board is illegally constituted.

(2) The election was called in violation of R.S. 39:501 which makes it mandatory that special elections for the incurrence of bonded indebtedness be called only on petition of one-fourth of the property taxpayers eligible to vote in a hospital district.

(3) The election was called for July 10, 1956, although a regular primary was scheduled for 21 days later.

(4) The call was defective in that it failed to inform the voters (a) a hospital was to be constructed with the proceeds of the bond issue; (b) the federal government was to participate in the plan to the extent of contributing $252,000 of the estimated cost of $427,000 and in the event it did not the $175,000 voted would be totally inadequate to supply the proposed facilities; (c) the government could not participate under prevailing statutes unless provision was made for the care of charity patients and no such provision was made; and (d) the proposal depended upon the donation of land for the site and such land had not been donated.

(5) There was no adequate survey to determine the need for such a hospital and there was a lack of planning.

(6) The election was called and conducted as the result of fraud, corruption, and collusion between the police jury, the board, and other persons.

(7) Notice of the election was not published in a newspaper at least four times once a week, as required by R.S. 39:503.

(8) A sufficient number of disqualified voters cast votes in the election to insure the propositions would not have passed but for their votes.

(9) Residents of the hospital district on the East bank of the Mississippi river will be charged more for services than those on the West bank.

(10) In the alternative, the board purposes to use matching government funds made available under the Hill-Burton act, which contravenes constitutional guarantees inasmuch as its socialistic intent is to place the medical profession and medical facilities under the control of the federal government, thus depriving petitioners of their right to select doctors and hospitals of their own choice, regardless whether the hospitals are operated on a segregated basis.

A perusal of the record and the applicable law will show there is no merit to any of these allegations.

The Police Jury of St. Charles Parish in creating the Board of Commissioners of the St. Charles Parish Hospital District followed meticulously the provisions of legislative enactments carrying into effect constitutional authorization for such hospital districts. Section 14(d-2[3]) of Article XIV of the Constitution as enacted in 1948, and R.S. 46:1051-1067.

The record further reveals that, pursuant to the authority of R.S. 46 :1065 the board, availing itself of the provisions set out in Part II of Chapter 4 of Title 39 of the Revised Statutes (R.S. 39:501-518) for submitting to the voters the question of incurring debt, issuing bonds, and levying taxes for hospital purposes, and, in strict conformity therewith, called the election for July 10, 1956, giving, as will be seen from Footnote No. 1 supra, full notice of the purpose of the election, and, further, specifically tracking statutory provisions requiring the inclusion of the amount of the proposed debt, rate of interest, etc., as required by R.S. 39:502, more detailed information with respect to the machinery for conducting the election as provided in R.S. 39:503, as well as other pertinent constitutional and statutory provisions. See, subparagraph (d-2[3]) of Section 14 of Article XIV of the Constitution of 1921, as enacted in 1948; R.S. 46:1065; and R.S. 39:511 and 559. And while R.S. 39:501 makes it the mandatory duty of such governing authority to call an election for these purposes when requested to do so by petition in writing of one-fourth of the property taxpayers eligible to vote at the election, that body is also vested with the discretion of calling a special election for any of these purposes at any time.

There is no provision in the law that forbids the holding of such a special election either immediately before or after a primary election, and we know of no good reason why it could not be held at such time. Indeed, it would seem that under the clear provisions of R.S. 39:503 (set out in Footnote No. 5 supra) the board had no alternative but to call the election at a different time than the primary, for this section requires that the authorities open the ballot boxes, canvass the returns, and declare the results of the election in open session, and information with respect to the hour and place when and where this will be done must be contained in the call and public notice.

Inasmuch as the election was called and held in strict conformity with requirements of the law, as above pointed out, the allegations contained in Paragraph No. 4(a), (b), (c), and (d), and also in Paragraph No. 5 state no cause of action. The same may be said with respect to the allegations of Paragraph No. 9, for the matter of the prices to be charged East and West bank residents of the district not only has no relevancy to the validity of the election, but is a matter that lies solely within the discretion of the board in the formulation of its administrative policies if and when the hospital becomes a reality and may then be attacked if discriminatory. And as for the allegations with respect to fraud and conspiracy, they state no cause of action inasmuch as they are very broad, without specification of facts on which they are predicated, and constitute, therefore, nothing more than the conclusions of the pleaders. Furthermore, not one scintilla of evidence was introduced to substantiate such charges.

The charge that if the illegal votes cast were considered the measure would have been defeated is not supported by the evidence. Plaintiffs failed to produce any evidence of specific instances where an unqualified voter cast his ballot in favor of either of the propositions submitted. They called only two witnesses on this phase of the case, and, conceding for argument that both were in fact ineligible under the provisions of R.S. 39:508, neither stated whether he voted for or against the propositions. In any event, it is clear that even had they voted favorably and their votes were added to those cast against the measure, it wortld still have had no material bearing on the ultimate results of the election. See, Sylvestre v. St. Landry Parish School Board, 164 La. 204, 113 So. 818; Blanchard v. Iberville Parish School Board, 218 La. 784, 51 So.2d 70; and Duncan v. Vernon Parish School Board, 226 La. 379, 76 So.2d 403, and the authorities therein cited.

The complaint with respect to the publication of notice of the call is apparently levelled at the legibility of the type as it appeared in the newspaper, and although plaintiffs called one witness to establish that portions of the notice were not readable, his testimony dealt with only two issues of the paper, and even in these instances the criticized portions were read by him. Furthermore, it was established that publication of the notice appeared in the parish newspaper on six succeeding weeks (the law requires only four), and that the length of time intervening between the first publication and the date of the election was more than the thirty days required by R.S. 39:503.

The alternative attack on the constitutionality of the act authorizing federal assistance in the establishment of hospitals, 60 Stat. 1041, U.S.C.A., Title 42, Section 291(f), commonly referred to as the Hill-Burton Act, is obviously without relevancy to the object of this suit, for while the board is given discretion in securing either state or federal aid in carrying out the purposes for which the districts are created, they are not required to do so. Of-necessity, therefore, any decision as to the constitutionality of this act must await the decision of the board to avail itself of the discretion given it in this respect.

Counsel for petitioners in argument here complain bitterly about the judge’s refusal to permit the ballot boxes to be opened in court for discovery of any irregularities he might find therein, whether covered by the allegations or not. This argument needs no further answer than to say that there was no showing whatsoever either in the petition or in the facts that were developed during the trial that would warrant such action by the judge.

For the reasons assigned, the judgment appealed from is affirmed, at the cost of appellants.

      . Although counsel representing the appellants claims there are over 200 petitioners, the trial judge in his written reasons for judgment states the plaintiffs are 136 in number.

      . The resolution calling the election, the public notice of that call, and the ballot used in the election placed before the people the following propositions: “Proposition No. 1 — Shall St. Charles Parish Hospital Service District incur debt and issue bonds to the amount of One Hundred seventy-five thousand ($175,000.00) Dollars, to run twenty-five (25) years from date thereof, with interest at the maximum rate of four per centum (4%) per annum, for the purpose of acquiring buildings, machinery and equipment, including both real and personal property, to be used in providing hospital facilities to said District, the title to which shall be in the public? Proposition No. 2— Proposition to levy a .0015 mill tax on all the property subject to state taxation in St. Charles Parish Hospital Service District for the period of ten years for the purpose of maintaining and operating the District’s hospital service facilities.”

      . This section provides: “Whenever an election shall be called by the governing body of the district for the purpose of submitting to the qualified electors of any hospital service district the question of incurring debt and issuing bonds for the purpose of acquiring property to be used for hospital purposes, the governing body of the district may in the same election submit to the qualified electors of the district, in the manner provided by Part II of Chapter 4 of Title 39 of the Louisiana Revised Statutes, a proposition to levy a special tax not to exceed five mills on the dollar for a period not to exceed ten years for the purpose of constructing, maintaining and operating the district’s hospital facilities.”

      . The pertinent part of R.S. 39 :502 reads: “The election shall be ordered by resolution which shall state the purpose for which it is called. * * * If the proposition is to levy a special tax under Part IV of this Chapter, the rate, object, and purpose for which the tax is to be levied, and the number of years it is to run must be stated.”

      . R.S. 39 :503 provides in part: “Notice of the election shall be given embracing substantially all matters required to be set forth in the resolution ordering the election, and shall set forth further that the authorities ordering the election will, in open session, at an hour and place named, proceed to open the ballot boxes, canvass the returns and declare the result.”

      . The pertinent part of this section reads: “The governing authority of any subdivision may call a special election for any of these purposes at any time; and it shall call an election for any of these purposes when requested so to do by the petition in writing of one-fourth of the property taxpayers eligible to vote at the election.” (Emphasis supplied.)

      . Defendants averred in answer the land had actually been donated and proved at the trial that proper deed therefor had been executed.

      . In answer defendants labeled as untrue the allegation that the district as created encompasses land lying on the Bast bank of the river, and petitioners made no attempt to disprove this.

      . It appears that while one of these witnesses qualified as a voter and owned property in the district, one parcel was not assessed in his name although he was the owner at the time of the election. It would seem, therefore, that he was, under the jurisprudence, fully qualified to vote. See, McFatter v. Beauregard Parish School Board, 211 La. 443, 30 So.2d 197; Peck v. Board of Directors, 137 La. 334, 68 So. 629. The other witness was the only plaintiff called to the stand to substantiate the allegations of the petition in this respect.

      .The pertinent provisions are as follows: “The notice shall be published for thirty days in a newspaper published in the subdivision; or if there is no newspaper published therein, in a newspaper published in the parish * * *. Four publications in a newspaper once a week. shall constitute a publication for thirty days; provided thirty days intervene between the date of the first publication and the date of the election.”

      . The provisions of R.S. 46:1066 are, in effect, that these hospital districts “shall have full power to do such things and enter into such contracts and agreements with the United States of America or with any state or federal agency or instrumentality as may be necessary to procure aids and grants to assist such districts in carrying out the purposes for which they are created.”


author: McCALEB, Justice.

text:
    232 La. 901
    Norman Glenn KIHNEMAN v. LOUISIANA STATE BOARD OF OPTOMETRY EXAMINERS.
    No. 43273.
    Supreme Court of Louisiana.
    May 6, 1957.
    For opinion of Court of Appeals see 96 So.2d 402.
    William J. Kihrieman, New Orleans, for plaintiff-appellant.
    Thompson, Thompson & Sparks, by Wood H. Thompson, Monroe, William J. Wegmann, New Orleans, for defendant-appellee.
   McCALEB, Justice.

Plaintiff, a graduate of the Monroe College of Optometry of Chicago, Illinois, is seeking a writ of mandamus ordering the Louisiana State Board of Optometry Examiners to permit him to take the examination as provided by law (Chapter 12, Title 37 of the Revised Statutes of 1950) for a certificate to practice optometry in Louisiana or, in the alternative, to issue him a license to engage in the practice of optometry without an examination. In his petition plaintiff alleges that the defendant has arbitrarily refused either to permit him to take the required examination or to issue him a license to practice his profession under waiver of examination and that R.S. 37:1049, which prescribes that an applicant for examination shall have graduated from a school or college of optometry approved by the Board, is unconstitutional in that it is unreasonable and does not afford due process.

Admitting the salient facts, defendant joined issue by denying that its action in the premises was unlawful in any respect and, after a trial, judgment was rendered rejecting plaintiff’s demands. Plaintiff has appealed and asserts jurisdiction here on the theory that the legality and constitutionality of a fine, forfeiture or penalty is in contest.

The fifth paragraph of Section 10 of Article 7 of the constitution of 1921 vests this Court with appellate jurisdiction of all cases “ * * * where the legality, or constitutionality of any fine, forfeiture or penalty imposed by a parish, municipal corporation, board or subdivision of the State shall be in contest, whatever may be the amount thereof, * * * We, however, think it clear that this provision is without pertinence to this appeal. No fine, penalty or forfeiture has been imposed upon appellant by the defendant board. Indeed, in seeking to have defendant ordered to permit him to take an examination to the end that he may obtain a certificate to practice optometry, appellant is merely pursuing enforcement of an alleged right, which he claims has illegally and unconstitutionally been denied him.

The cases cited by counsel for appellant are not authority for his contention that this Court has jurisdiction of this appeal. Those cases, excepting City of Alexandria v. Alexandria Fire Fighters Ass’n, 220 La. 754, 57 So.2d 673, wherein a statute was held unconstitutional, involve the legality or constitutionality of penalties assessed by governmental bodies.

It is ordered that this case be transferred to the Court of Appeal, Second Circuit, the transfer to be made within 30 days after this decree has become final; otherwise, the appeal is to be dismissed. Plaintiff is to pay the costs of appeal to this Court and the costs of transferring the case to the Court of Appeal.

      . Liquified Petroleum Gas Comm. v. E. R. Kiper Gas Corp., 229 La. 640, 86 So.2d 518; City of Shreveport v. Moore, 219 La. 604, 53 So.2d 783; City of Shreveport v. O’Daniel, 219 La. 613, 53 So.2d 786; State v. Bonner, 193 La. 400, 190 So. 625; Town of Springhill v. Murphy, 170 La. 1054, 129 So. 634; City of New Orleans v. Vinci, 153 La. 528, 96 So. 110, 28 A.L.R. 1382 and State v. Dunning, 224 La. 204, 69 So.2d 16.


text:
    232 La. 905
    Succession of Sibyl A. WILDER.
    No. 42928.
    Supreme Court of Louisiana.
    May 6, 1957.

      Burton & Burton, by Robert H. Burton, New Orleans, for opponent and appellant.
    Dart, Guirdy & Dart, by Henry P. Dart, III, New Orleans, for appellee.
   McCALEB, Justice.

Mrs. Margaret Cambias Bartholomew is appealing from a judgment dismissing her opposition to the final account of the executor of the succession of her aunt, Miss Sibyl A. Wilder, in which she claimed a net amount of $2,000 for personal services rendered by her to her aunt for a period of over 10 years. These services were alleged to consist of nursing decedent, doing her laundry, cleaning and keeping her house in order, driving her and attending to some of her business matters as well as doing various and sundry errands.

In her petition, opponent itemized her nursing services to be worth $3120 (312 days at $10 per day); laundry service, $468 (156 weeks at $3 per week); house cleaning, $660.80 (146 weeks at $4.30 per week) and the other various services allegedly performed at $936 (156 weeks at $6 weekly) or a total of $5184.80, which she reduced to the sum of $2,000 by allowing a credit for a legacy and an annuity received from her aunt, approximating $2911.16 and deducting seven months from the period claimed, during which time, immediately prior to her aunt’s death, she had discontinued her services.

Miss Wilder, a school teacher by profession, died at her home in New Orleans on April 26, 1955. She had never married and was survived only by collateral relations, two brothers, 13 nieces and nephews and 29 grandnieces and grandnephews. She left an estate of approximately $92,-000 which she disposed of by an olographic will dated August 9, 1954, admitted to probate in these proceedings. In this will, she left all her stocks, bonds and cash in trust for her nieces (including appellant), nephews, grandnieces and grandnephews and her real property to her two brothers. The value of appellant’s legacy is estimated to be $911.16 and her aunt also provided an annuity for her in the sum of $2,000.

In their brief to this Court, counsel for appellant say that they assume that the trial judge dismissed the opposition simply on the showing that appellant received a legacy and an annuity from her aunt and they complain that this was an erroneous legal holding as the evidence shows the value of the services rendered by her greatly exceeds the amount she is receiving from the estate.

Although the judge did not assign written reasons for his conclusion, we are satisfied that his judgment was not based on the premise assumed by counsel but, rather, it would appear from a reading of the record that the judge felt that appellant did not establish with legal certainty that the services she rendered to decedent exceeded the value of the amount of the annuity which decedent purchased for her.

At the outset, we find it somewhat difficult to determine from the brief and oral argument of her counsel whether appellant is relying on an alleged promise of the decedent to compensate her for the services rendered by provision in her will or whether she is simply seeking recovery on a quantum meruit basis. However, we presume that it is the latter because she has singularly failed to prove, in the manner prescribed by R.S. 13 :3722, that the decedent agreed, as claimed, to compensate her by testamentary provision for her services. R.S. 13:3722, which applies to suits brought within twelve months after the death of a deceased party, provides that parol evidence is incompetent to prove any debt or liability on the part of the deceased unless it consists of the testimony of at least one credible witness besides the plaintiff or unless it be to corroborate a written demand or promise to pay signed by the debtor. While appellant testified in the instant case that her aunt agreed to compenstate her by leaving her the cash money in her house (over $9,000 was found at the residence after decedent’s death) no other witness corroborated this statement. Accordingly, if appellant is to recover at all it must be on a quantum meruit.

After a careful consideration of the evidence as to the services rendered by appellant, we are satisfied that the judge did not err in evidently concluding that it was impossible to deduce that the value of these services exceeded the $2,000 annuity which she received from decedent.

The evidence shows that, for some years prior to her death, decedent suffered from diabetes and a kidney condition. Appellant stated that frequently her aunt would become ill, necessitating her remaining at home for periods of one, two or three months and that, during these periods of illness, she would come early in the morning and remain until late at night, nursing her aunt, preparing a special salt free diet, cleaning the house and generally doing all things necessary for her care and convenience; that she washed her aunt’s laundry, including her bed clothes, which was considerable because decedent’s kidney condition caused her to wet the bed frequently and that she drove decedent in her car to various places, ran numerous errands and, on occasion, attended to her business matters.

Appellant’s evidence is corroborated to some extent by Mrs. G. Katsanis, a neighbor of decedent, although this witness does not appear to have any direct knowledge of the nature of the services rendered by appellant or the hours during which the services were performed. She merely stated that she would see appellant’s car arrive at Miss Wilder’s house in the morning and that it would still be there when she returned in the evening.

On the other hand, the record shows that decedent lived in the same house with a nephew and his family with whom she took her meals and this nephew claims that it was he and his wife who cared for decedent for the last eight years of her life. And the evidence also casts some doubt as to the extent of the services rendered either by appellant or decedent’s nephew, as it appears that decedent was actively teaching school until about 3 years before her death. But, in any case, conceding that the services and companionship provided by appellant to her aunt were valuable and substantial, there is nothing in the record establishing with reasonable certainty that the $2,000 annuity is insufficient to provide adequate compensation to her.

The judgment is affirmed.

      . The record shows that appellant is neither a registered nor practical nurse. She is a housewife and, during the time she was performing services for her aunt, she and her husband lived about eight squares from decedent.

      . He likewise filed an opposition claiming compensation for the services rendered by Mm. His opposition was dismissed by the trial judge.


author: PONDER, Justice.

text:
    232 La. 911
    STATE of Louisiana v. Louis HARRIS and Rufus Chalk.
    No. 43395.
    Supreme Court of Louisiana.
    May 6, 1957.
    G. Wray Gill, Gilbert Bernstein, New Orleans, for defendants-appellants.
    Jack P. F. Gremillion, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Leon D. Hubert, Jr., Dist. Atty., Milton E. Brener and Louis Fenner Claiborne, Asst. Dist. Attys., New Orleans, for appellee.
   PONDER, Justice.

The defendant, Rufus Chalk, is appealing from a conviction and sentence imposed upon him to serve five years and one month in the penitentiary for the possession of a hypodermic needle. Pie is relying on seven bills of exception for the reversal of the conviction and sentence.

Bills of Exception Nos. 1, 2, 3, and 5 were taken to the opening statement of the district attorney and the evidence produced thereunder tending to show that the defendant was a drug addict in that he had recently taken a narcotic drug by way of a hypodermic needle. The defendant contends that the opening statement of the district attorney and the evidence offered thereunder were prejudicial to him because it was proof that he was a drug addict, a crime other than that with which he was charged, viz., possession of a hypodermic needle.

The evidence is clearly admissible to establish guilty knowledge. Evidence of the commission of similar and separate crimes related to and connected with the crime charged is admissible to show guilty knowledge. LSA-R.S. 15:445, 15:446; State v. Johnson, 228 La. 317, 82 So.2d 24; State v. Reinhardt, 229 La. 673, 86 So.2d 530. In the Reinhardt case -we quoted the following from the case of State v. Montgomery, 170 La. 203, 127 So. 601, 602: “But, whenever the evidence of the commission of another crime, other than the crime for which the defendant is on trial, is relevant to the question of his guilt or innocence of the crime charged, the evidence of the commission of the other crime should not be excluded merely because of its prejudicial effect.” [229 La. 673, 86 So.2d 531.]

Bill of Exception No. 4 was taken to the following question propounded to a state officer, “How do you know it was fresh?” — the witness answering to the effect that the defendant admitted it. This question and answer followed an interrogation of the witness relating to a puncture on the arm of defendant and a fresh spot of blood on the arm of defendant’s sport shirt. The defendant contends that it was the introduction of a confession without having first laid the foundation. This was not a confession of possession of a hypodermic needle. Moreover, the state cannot be held responsible for an answer that. is not responsive to the question. State v. Simpson, 216 La. 212, 43 So.2d 585; State v. Labat, 226 La. 201, 75 So.2d 333.

Bill of Exception No. 10 is based on the ground that one of the witnesses to the defendant’s confession was not called by the state to prove its free and voluntary character. The defendant takes the position that it is incumbent upon the state to call all of the witnesses who were present at the time the confession was made. It appears from the evidence that the state produced seven witnesses who testified that the confession was free and voluntarily made and the defendant does not allege any duress, violence, threats, or intimidation. He simply denied making the confession. In view of these circumstances, it was not necessary for the state to call all of the witnesses to the confession, especially so when the question of its free and voluntary nature is not disputed. State v. Honeycutt, 216 La. 610, 44 So.2d 313; State v. Chinn, 229 La. 984, 87 So.2d 315.

For the reasons assigned, the conviction and sentence are affirmed.

SIMON, J., concurs in the decree.


text:
    232 La. 916
    James W. FITZGERALD v. Margaret Roe FITZGERALD (Margaret R. DAUTHIER). James W. FITZGERALD v. Margaret Roe FITZGERALD (Margaret Roe DAUTHIER).
    Nos. 43076, 43239.
    Supreme Court of Louisiana.
    May 6, 1957.

      Laycock & Stewart, Baton Rouge, for plaintiff-appellant.
    Ralph L. Roy, Baton Rouge, for appellee.
   PONDER, Justice.

The only question presented in these consolidated appeals is who is entitled to the custody of Charles Wright Fitzgerald who is now 13 years of age.

The plaintiff and defendant were divorced by judgment of court sometime in 1947, at which time the six children, issue of their marriage, ranging at that time from 4 months to 9 years of age, were awarded to the father. The plaintiff and defendant have both remarried and each has issue of their second marriage. Sometime in February, Charles and his brother Richard left the home of the father and went to live with the mother. Thereafter, the custody of these two children was awarded to the mother by the family court. Subsequently, Richard returned to the home of his father, whereupon after hearing by the family court, the custody of Richard was awarded to the father but his request for the custody of Charles was denied.

The father contends that the sole influence of the judge in awarding the custody of Charles to his mother was the fact that the child preferred to live with her. In support of the contention that the child’s preference should not govern, he cites the case of Pierce v. Pierce, 213 La. 475, 35 So.2d 22. He further contends that although an award of custody is subject to modification it is incumbent upon the party requesting the modification to prove that the conditions under which the child is living are detrimental to his interest and that the applicant seeking the modification must show that a good home will be provided and better environment given. Citing Decker v. Landry, 227 La. 603, 80 So.2d 91.

It appears from the evidence that Charles was unhappy in the home of his father. He did not get along with his step-mother and his oldest brother and he quarrelled constantly with the other children. His mother has three children by her second marriage and although the record in the divorce case, which was introduced in evidence, shows that she was unfit at the time that the six children were awarded to the father, there has been no showing made that she is an unfit parent at this time. In fact, the evidence shows that she and her present husband maintain a good and respectable home.

The trial judge is evidently in a better position to determine what is the best interest of the child in a case of this nature. Both homes are respectable homes and there is nothing to show that either parent is unfit.

We cannot say from the evidence in this case that the controlling factor in the decision of the trial judge was the fact that Charles preferred to live with his mother. He apparently was of the opinion that it was for the best interest of the child as well as that of the other children for him to live with his mother where he would be contented and happy.

This court is always reluctant to upset a trial court judgment involving custody of children. The interest and welfare of the child is the primary consideration. Sampognaro v. Sampognaro, 215 La. 631, 41 So.2d 456; Decker v. Landry, 227 La. 603, 80 So.2d 91; Kieffer v. Heriard, 221 La. 151, 58 So.2d 836; Hattier v. Martinez, 197 La. 121, 1 So.2d 51.

For the reasons assigned, the judgment of the lower court, awarding the custody of Charles Wright Fitzgerald to his mother, Mrs. Margaret Roe Dauthier, is affirmed at the cost of plaintiff-appellant, James W. Fitzgerald.


text:
    232 La. 920
    STATE of Louisiana v. Louise L. HARDY.
    No. 43377.
    Supreme Court of Louisiana.
    May 6, 1957.
    Joseph S. Guerriero, for relator.
    Jack P. F. Gremillion, Atty. Gen., M„ E. Culligan, Asst. Atty. Gen., Albin P. Lassiter, Dist. Atty., Hillyer S. Parker, Asst. Dist. Atty., Monroe, for opponent and plaintiff.
   PONDER, Justice.

We issued a rule nisi in this case to inquire into the judgment of the district court wherein the defendant was found guilty- and sentenced to pay a fine of $75 and costs, and to serve thirty days in the parish prison, in default of the payment of the fine and costs to serve an additional sixty days in. jail. The jail sentence was suspended during good behavior.

The defendant was charged in a bill of' information in that she: “did entice, aid and permit Cecil Sims, under the age of seventeen years, to visit a place to-wit:. The Winnsboro Road Little Club, where spirituous or intoxicating liquors are the-principal commodity sold * * The defendant moved for a bill of particulars and in answer thereto the State averred that the defendant “suffered and permitted” the juvenile to remain in the establishment. The defendant then moved to quash the bill of information. The motion was denied by the lower court.

The defendant is contending herein that the lower court erred in refusing her motion to quash the information based on the ground that the bill of information is fatally defective because it did not allege that the defendant intentionally did entice, aid and permit the juvenile to enter the club.

It is provided in LSA-R.S. 14:92 that “Contributing to the delinquency of juveniles is the intentional enticing, aiding, or permitting, by anyone over the age of seventeen, of any child under the age of seventeen to : * * * (3) Visit any place where spirituous or intoxicating liquors are the principal commodity sold or given away * * *. Lack of knowledge of the juvenile’s age shall not be a defense. * *

Under the provisions of LSA-R.S. 15:227, “The indictment must state every fact and circumstance necessary to constitute the offense, but it need do no more, and it is immaterial whether the language of the statute creating the offense, or words unequivocally conveying the meaning of the statute, be used.”

It is provided in LSA-R.S. 14:10, subdivision (2), that: “General criminal intent is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.” LSA-R.S. 14:11 provides that “The definitions of some crimes require a specific criminal intent, while in others no intent is required. Some crimes consist merely of criminal negligence that produces criminal consequences. However, in the absence of qualifying provisions, the terms ‘intent’ and ‘intentional’ have reference to ‘general criminal intent’.”

LSA-R.S. 15:234 provides “No indictment shall be held insufficient for want of the averment of any matter unnecessary to be proved, nor for the omission of the words ‘as appears from the record,’ or of the words ‘with force and arms,’ or the word ‘intentionally,’ or of the word ‘unlawfully’ * * * ”

Enticing, aiding, and permitting are intentional acts according to the following definitions: The word “enticed” is defined in Webster’s New International Dictionary, Second Edition, as follows: to incite or instigate; to allure; attract; to lead astray, to induce to evil; to tempt. The word “aid” is defined therein as follows: to lend assistance, to avail or be of use; to help; assist. The word “permit” is defined therein as follows: to allow the act or existence of; to tolerate; to consent to expressly or formally; to grant leave for or the privilege of; to authorize; to give leave.

As we take it, the manner in which the word “intentional” is used in the statute denotes general criminal intent and under the law does not have to be alleged in the bill of information. LSA-R.S. 14:10; LSA-R.S. 14:11; State v. Howard, 162 La. 719, 111 So. 72; State v. Fulco, 194 La. 545, 194 So. 14.

Where a statute makes an act indictable without regard to guilty knowledge, intent with which the act is done is immaterial. State by Grosjean v. Standard Petroleum Products Co., 176 La. 647, 146 So. 321, 322. In that case this Court said: “Even in criminal law when a statute makes an act indictable without regard to guilty knowledge, then ignorance of fact, although sincere, is no defense, and the intent with which the act is done is of no consequence. State v. Quinn, 131 La. 490, 59 So. 913; State v. Dowdell, 106 La. [645] 650, 31 So. 151, 153; State v. Southern Ry. Co., 122 N. C. 1052, 30 S.E. 13.3, 41 L.R.A. [246] 247; Wharton’s Crim. Law, § 88; Id. Vol. 1, page 116.”

This view is fortified by the fact that under the provisions of LSA-R.S. 15:234 the bill of information cannot be held to be insufficient for the omission of the word "intentionally”. It is further fortified by the fact that the word “permit” as defined is an intentional act within itself. Furthermore, LSA-R.S. 14:92 provides that lack of knowledge of the age of the juvenile is no defense thus evidencing the fact that the intent with which the act is done is of no consequence.

The defendant contends that the lower court erred in overruling her motion for a new trial based on the ground that she was not present at the time the juvenile entered the premises. There is testimony in the record that she was present at the time the juvenile entered the premises when an employee of hers examined the drivers license of the juvenile showing him to be 16 years of age. The age of the juvenile was proven to be. 16 years. The defendant contends that the juvenile entered under a forged instrument showing his age to be over 17 years of age. Since there is evidence in the record to the contrary, this Court is prohibited from inquiring into the sufficiency of the evidence.

The defendant further contends that the court erred in overruling her motion in arrest of judgment. The motion for arrest of judgment is based on the ground that the record contains manifest errors without alleging what the errors consisted of. Upon examination, we find no errors and none have been pointed out to us.

For the reasons assigned, the rule to show cause is discharged and the writs are denied.