author: HAMLIN, Justice ad hoc. HAWTHORNE, Justice

text:
    232 La. 1110
    The CITY OF NEW ORLEANS v. UNITED CAB OWNERS, Inc., et al.
    No. 43435.
    Supreme Court of Louisiana.
    May 6, 1957.
    Rehearing Denied June 10, 1957.

      Morey L. Sear, Henry B. Curtis and Ellis, Lancaster, Daly & King, for relator.
    Joseph V. Di Rosa, Leo R. Wertheimer, New Orleans, for defendants, respondents.
   HAMLIN, Justice ad hoc.

Remedial writs, accompanied by a stay order, were granted in this case (Article VII, Sec. 10, Louisiana Constitution of 1921-LSA) to review a judgment of the trial court reading as follows:

“This matter having been submitted to the Court on exceptions to its jurisdiction, ratione personae and materiae, and the Court considering the exceptions are well founded:
“It is ordered, adjudged and decreed that plaintiff’s suit be dismissed, without prejudice, at plaintiff’s cost; the temporary restraining order is dissolved, ab initio, and all pending contempt proceedings are dismissed.”

The City of New Orleans, a municipal corporation, brought injunction proceedings against United Cab Owners, Inc., Cooperative Cab Company, Inc., all officers, directors, agents, employees, and representatives of both companies, certain named individuals, and all persons, firms, associations and corporations acting in concert with them, or under or subject to their control, persuasion or influence, in which it prayed for a temporary restraining order and a preliminary injunction enjoining the defendants from—

1. Trespassing on plaintiff’s property at the Moisant International Airport;

2. Entering, and driving taxicabs, upon the Airport for any purpose other than to discharge passengers being transported by them to the Airport, or to come to the Airport to pick up Airport patrons when specifically requested to do so by said patrons;

3. Remaining on, and refusing to leave, the Airport after discharging passengers transported by them to the Airport;

4. Soliciting passengers at the Airport;

5. Laying hands on the baggage of Airport patrons unless first engaged by them;

6. Lingering or loitering on the Airport;

7. Obstructing parking areas, loading zones and roadways thereon;

8. Creating any disturbance in the parking areas, loading zones and roadways;

9. Committing any act or engaging in any activity, the purpose or effect of which is to interfere with or prevent plaintiff’s orderly and efficient operation, maintenance, administration and/or policing of the Airport, or plaintiff’s performance of any of its obligations.

The Moisant International Airport is located in Jefferson Parish, which adjoins the Parish of Orleans where the City of New Orleans is situated.

The record discloses that the City of New Orleans owns, operates, maintains, administers, and polices the Airport, through the New Orleans Aviation Board. It was constructed with public funds under the authority of LSA-R.S. 2:131-2:141, formerly Act 222 of 1936, designated as the “Uniform Airports Law”, Ordinances 15,839 CCS and 16,605 CCS, and 680 MCS, of the City of New Orleans, and Article V, Chapter 7, of the Home Rule Charter for the City of New Orleans, adopted pursuant to Article XIV, Section 22 of the 1921 Constitution of Louisiana.

The petition alleges that in December, 1956, the New Orleans Aviation Board determined that the requirements of public convenience and necessity demanded safer and more efficient and responsible transportation of passengers and their hand baggage from the Airport, and increased protection to passengers and the general public against risks resulting from the ownership, operation, maintenance and use of taxicabs, airport limousines and airport buses effecting transportation. Bids were advertised for the furnishing of such services, and the only bid submitted was that of Toye Brothers Yellow Cab Company of New Orleans. On February 8, 1957, the Board entered into a written contract with Toye Brothers for the furnishing of taxicab, airport limousine and airport bus service for transportation of passengers and their hand baggage from the Airport. There was a publication in the official journal of the City of New Orleans, to the effect that the contract would become effective on February 25, 1957; that, thereafter, only Toye Brothers would be permitted to provide taxicab and limousine ground transportation services from the Airport; but, that independent taxicab operators would be permitted to transport passengers to the Airport, and from the Airport when specifically requested to do so by Airport patrons.

The City of New Orleans alleges that the defendants, acting individually and in concert with each other and others, repeatedly trespassed upon plaintiff’s property for purposes other than to discharge passengers transported to the Airport or to pick up passengers. Besides trespassing, plaintiff alleges that defendants—

1. Solicited passengers;

2. Laid hands on baggage of airport patrons without being engaged by them ;

3. Lingered and loitered at the airport;

4. Obstructed parking areas;

5. Created disturbance;

6. Refused to comply with rules, regulations and orders of the Board; all in deliberate disregard of the rights of plaintiff, as owner and operator of the Airport.

The City of New Orleans also avers that, while it is unable to make an accurate estimate of the monetary amounts of the injury, loss and damages that may be sustained by it as a result of the defendants’ aforesaid acts and activities, they may aggregate as much as $241,500, which is the minimum amount of money that it expects to receive from Toye Brothers during the term of the contract.

The defendants filed exceptions to the jurisdiction ratione personae and materiae of the Civil District Court for the Parish of Orleans. They contend that the alleged trespass occurred in the Parish of Jefferson, and that only a district court for that parish would have jurisdiction under Article 165, Sec. 8, of the Louisiana Code of Practice, which recites:

“Trespass on Real Estate. In actions of trespass on real estate, and in all matters relating to real servitudes, be they natural or conventional, the judge of the place where the property is situated shall have cognizance of the cases.”

In sustaining the exceptions, the trial judge reasoned that Articles 162, 165(8), and 165 (9), of the Louisiana Code of Practice, should be read together. The only conclusion he could draw was that in a suit such as the present matter, the action should be brought at the situs of the Airport. He further reasoned that Article 165 (9) of the Louisiana Code of Practice should be interpreted as giving the defendant a right to be sued at his domicile when there was an action for damages as a result of a trespass.

The instant matter presents the situation of a municipality attempting to prevent any interference with the operation of a contract executed under its police powers, such interference occurring at the situs of property owned by the municipality in an adjoining parish but committed by persons the majority of whom are residents of and domiciled in the municipality.

We agree with the trial judge that all of the pertinent articles of the Louisiana Code of Practice — 162, 165(8), and 165 (9) — should be read and considered together. What is clear in one might be called in to explain what is doubtful in another. Article 165 contains the following exceptions to the general rule set forth in Article 162 that a defendant must be sued at his domicile:

Section 1 refers to partition of real property. The suit must be brought before the court of the place where the property is situated. This is mandatory.
Section 2 refers to partnership. The parties must be cited where the part-nersliip is established; or if there are several establishments, before that of the place where the obligation was entered into. Here again the word “must” is used.
Section 3 refers to matters relative to failure. All suits already commenced, or which may be subsequently instituted against the debtor, must be ■carried before the court in which the failure has been declared.
.Section 4 refers to matters relative to warranty. They must be carried on before the court having cognizance -of the principal action in which demands in warranty arise.
Section 5 refers to foreigners and those having no known place of residence. Here we first encounter the word “may”. It is provided that they may be cited wherever they are found.
Section 6 refers to joint or solidary ■obligors. Here again the word “may” is encountered. They may be cited at the domicile of any one of them.
Section 7 refers to official bonds. In •suits to enforce the collection of bonds ■of state and parish officers, the courts •of the parishes in which the officers exercise the duties of their offices shall have jurisdiction over the sureties, it matters not in what parishes they reside. Here again we encounter a mandatory provision.
Section 8, supra. This section uses the words “shall have cognizance”. It does not provide, as does Section 4, supra, that the action “must be carried before the court having cognizance”.
Section 9, supra. Here again we encounter the word “may”.
Section 10, relative to suits on policies of insurance. Here again the word “may” is encountered.

We have carefully considered the authorities relied upon by the parties to this proceeding, and we find that the nearest to being applicable to the instant matter is the case of Joseph Rathborne Lumber Company v. Cooper, 164 La. 502, 114 So. 112, 114. This was a possessory action with a demand for damages for trespass and an injunction to prevent further trespass. The property involved was located partly in the Parish of Tangipahoa and partly in the Parish of St. Tammany, and the suit was brought in the Parish of Tangipahoa. The defendants were domiciled in the Parish of Tangipahoa and in the Parish of St. Tammany. In the instant case, some of the defendants are domiciled in the Parish of Jefferson and some in the Parish of Orleans.

There is no demand for damages in the case before us, but the following reservation is contained in Article 30 of plaintiff’s petition:

“By reason of the foregoing facts and circumstances, defendants are liable in solido to plaintiff for the injury, loss and damages which have been, and may in the future be, sustained by it as a result of the aforesaid acts and activities of defendants, and plaintiff expressly reserves all of its rights to assert its claims against and recover from each and all of said defendants all amounts for which they or any of them may be liable.”

In the Rathborne case, supra, this Court held:

“ * * * As a general rule, an action for damages for trespass must be brought either in the parish where the defendant has his domicile or in the parish in which the trespass was committed. Code of Practice, art. 165, subd. 8. A suit against a corporation for damages ex delicto, for any cause, must be brought either in the parish where the corporation has its domicile or in the parish where the damage was done or the cause of action arose. Ms Ms Ms »

Had plaintiff coupled its prayer for an injunction with a demand for damages, there would have been no controversy as to the jurisdiction of the Civil District Court for the Parish of Orleans. Article 165(9) of the Louisiana Code of Practice specifically states:

“ * * * where any person, firm or domestic * * * 'corporation shall commit trespass, or do anything for which an action for damage lies * * such person, firm or corporation may be sued in the parish where such damage is done or trespass committed or at the domicil of such person, firm or corporation.”

Giving the present case a reasonable consideration, it is certainly a matter in which damages could have been demanded. Article 165 (9) does not state that damages must be demanded.

We think that the present controversy, because of the existing conditions, is one falling under section 8 and section 9 of Article 165 of the Code of Practice, which must be read and considered together. Had the action been brought in Jefferson Parish, the judge of that parish could not have refused to take cognizance of the matter.

In the case of Fourth Jefferson Drainage District v. City of New Orleans, 203 La. 670, 14 So.2d 482, 485, this Court affirmed the judgment of the district court overruling the exceptions filed by the City of New Orleans to the jurisdiction of the Twenty-Fourth Judicial District Court in and for the Parish of Jefferson. We held that since the trespass to the property occurred in Jefferson Parish, said court had jurisdiction of the matter under Article 165, sec. 8, of the Louisiana Code of Practice. In that case, we said:

“The basis of the plaintiff’s cause of action is the alleged trespass by the defendant upon its real estate and its real survitudes through the alleged ultra vires and unlawful acts of the defendant in forcefully seizing and divesting the plaintiff of its real property and causing the damages alleged to have been sustained.”

In Tripani v. Meraux, 184 La. 66, 165 So. 453, 456 (cited with approval in the Fourth Jefferson case, supra), this Court differentiated sections 8 and 9 of Article 165 of the Louisiana Code of Practice as follows:

“The word ‘trespass,’ as used in the ninth paragraph of article 165 of the Code of Practice, is used in its broad sense of committing any wrongful act that injures another, and not in the technical sense of committing a trespass upon the property of another. State ex rel. Morgan’s La. & L. R. & S. S. Co. v. Judge, 33 La.Ann. 954, 955; Heirs of Gossin v. C. C. Williams et al., 36 La.Ann. 186, 187; St. Julien v. Morgan’s La. & T. R. & S. S. Co., 39 La.Ann. 1063, 1064, 3 So. 280; Caldwell v. Vicksburg, S. & P. R. Co., 40 La.Ann. 753, 754, 5 So. 17. In fact, the exception with regard to an action for damages for ‘trespass,’ in its technical sense, is provided for in the eighth paragraph of article 165 of the Code of Practice. * * * ” See also, White v. Lockhart, 229 La. 611, 86 So. 2d 397. (Italics ours.)

Even though defendants’ exceptions were averred to be filed under Article 165(8) of the Louisiana Code of Practice, we cannot find from an examination of the record that the alleged trespass is a trespass in the strict technical sense of the word. There is no trespass to or against the Airport property itself, as in the Fourth Jefferson case, supra. Here, we have alleged injurious actions to plaintiff committed by defendants 'within the confines of the property. Plaintiff does not allege that its property will be damaged or desecrated by the alleged trespass, but that it will suffer the loss of revenues because of defendants’ actions. Plaintiff is endeavoring to protect its rights under a contract.

Since the word “exclusive” cannot be read into Section 8 of Article 165 of the Code of Practice, before the word “cognizance”; and in view of the provisions of Section 9 of Article 165 of the Code of Practice; the Rathborne case, supra; and the other authorities herein-above cited (which must be read, considered and construed together), we are of the opinion that this suit could have been filed either in the Parish of Orleans or in the Parish of Jefferson, and that it was properly brought in the Civil District Court for the Parish of Orleans.

For the reasons assigned, the judgment of the district court is reversed and set aside; the temporary restraining order herein issued on March 1, 1957, is reinstated; and, the cause is remanded to the district court for further proceedings in accordance with law.

HAWTHORNE, Justice

(dissenting).

The trial judge found that plaintiff was only seeking a prohibitive injunction to restrain defendants, some of whom are residents of the Parish of Jefferson, from trespassing on plaintiff’s airport in that parish. Accordingly he sustained defendants’ plea to the jurisdiction because he was of the view that under Article 165(8) of the Code of Practice the venue was exclusively in Jefferson Parish. It is my opinion that the trial judge was correct in his findings and conclusion, all of which are set forth in his reasons for judgment.

      . “Cities, towns, parishes, and other political subdivisions of this state may separately or jointly, acquire, establish, construct, expand, own, lease, control, equip, improve, maintain, operate, regulate, and police, airports and landing fields for the use of aircraft, either within or without tire geographical limits of such municipalities, parishes, and other political subdivisions, and'may use for such purposes any available property that is owned or controlled by such political subdivisions; but no parish shall exercise the authority hereby conferred outside of its geographical limits except in an adjoining parish and this only jointly with the adjoining parish.”

      . “It is a general rule in civil matters that one must be sued before his own judge, that is to say, before the judge having jurisdiction over the place where he has his domicil or residence, and shall not be permitted to elect any other domicil or residence for the purpose of being sued, but this rule is subject to those exceptions expressly provided for by law.”

      . “In all cases where any person, firm or domestic or foreign corporation shall commit trespass, or do anything for which an action for damage lies or where any domestic or foreign corporation shall fail to do anything for which an action for damage lies, such person, firm or corporation may be sued in the parish where such damage is done or trespass committed or at the domicil of such person, firm or corporation.”

      . “Cities, towns, parishes or other political subdivisions of this state acquiring, establishing, developing, operating, maintaining, or controlling airports or landing fields, without the geographical limits of such subdivisions, under the provisions of this Part, may promulgate, amend, and enforce police regulations for such airports or landing fields.” LSA-R.S. 2:138.

      . “Laws in pari materia, or upon the same subject matter, must be construed with a reference to each other; what is clear in one statute may be called in aid to explain what is doubtful in another.” LSA-C.C. Art. 17.


source: Caselaw Access Project

author: HAWTHORNE, Justice. McCALEB, Justice HAMITER, Justice

license: Public Domain

text:
    233 La. 1
    In re Bernice Josephine Moss HARVILLE and Oscar Eugene Harville Applying for Adoption.
    No. 43142.
    Supreme Court of Louisiana.
    May 6, 1957.
    Rehearing Denied June 10,1957.

      Love & Rigby, Shreveport, for appellants.
    Morgan, Baker, Skeels, Middleton & «Coleman, Shreveport, for appellee.
   HAWTHORNE, Justice.

This case, which is a proceeding for the adoption of the two-year-old Oscar Eugene Ingram, has been consolidated in this court for the purpose of argument with two other cases — No. 43,237, State ex rel. Newton v. Harville, 233 La. IS, 96 So.2d 25, a habeas corpus proceeding for the custody of the Ingram child, and No. 43,260, State of Louisiana in the Interest of the Minor Oscar Eugene Ingram, 233 La. 16, 96 So.2d 25, juvenile court proceedings involving the alleged neglect and abandonment of the same child. Because of the close interrelation of these three cases, we have decided to write the opinion in the adoption proceeding setting forth the facts relevant to all three cases and resolving here the issues of law raised in each, and to render separate decrees in the other two appeals.

The pertinent facts are these:

On April 8, 1955, Mrs. Joan Newton Ingram, a resident of Arkansas, gave birth to the child here involved at the Highland Hospital in Shreveport, Louisiana. On the day this child was born, the mother executed a notarial surrender and consent for the adoption of the boy by Mr. and Mrs. Oscar Eugene Harville, and on the next day William Ingram, the father, executed a like consent and surrender. A few days later Ingram obtained a divorce from the child’s mother in Arkansas.

In due course Mr. and Mrs. Harville applied to the Juvenile Court for Caddo Parish for the adoption of the infant, and on May 31, 1955, an interlocutory decree granting the custody of the child to the Harvilles was rendered by that court. The infant has remained continually in the Harvilles’ home since he was a few days old, and is presently there.

On February 27, 1956, the mother of the child filed in the adoption proceeding then pending in the juvenille court a petition of opposition and withdrawal of her consent to the adoption. On July 6, 1956, after a hearing on this opposition the juvenile judge vacated and recalled his previous interlocutory decree of adoption and dismissed the adoption proceeding. From this judgment Mr. and Mrs. Harville appealed to this court. (This appeal is No. 43, 142 on our docket.)

After the judgment had been rendered in the adoption proceeding, Joan Newton, the mother of the child, filed in the First Judicial District Court for the Parish of Caddo on July 10, 1956, a petition for a writ of habeas corpus seeking the care, custody, and control of the child. In this proceeding Mr. and Mrs. Harville were made respondents. On September 20, 1956, after a hearing in the habeas corpus proceeding the district judge ordered Mr. and Mrs. Harville to deliver the child to the relatrix within 24 hours. The Harvilles appealed from that judgment. (This appeal is No. 43,237 on our docket.)

On September 20, 1956, the same day judgment was rendered in the habeas corpus proceeding, the probation officer of the Caddo Parish juvenile court filed in the juvenile court an affidavit pursuant to R.S. 13:1570(A) (1), alleging that the minor child here involved was a neglected child in that his mother, Joan Newton, had neglected and refused to provide proper and necessary support and medical and other care for his wellbeing and had abandoned him. That proceeding is No. 13422-A on the docket of the juvenile court. On October 8, 19S6, the date fixed for a hearing under the affidavit charging that the child was neglected, a representative of the Louisiana Department of Public Welfare filed in the Caddo Parish juvenile court an affidavit under R.S. 9:403(B), alleging that the child had been abandoned by his parents and requesting a hearing on this affidavit pursuant to the act. This proceeding is No. 13422-B on the docket of the juvenile court. The two proceedings were consolidated in that court. After a hearing the judge concluded that the child was not a neglected child and dismissed that proceeding. From this judgment an appeal was taken to this court. In the abandonment proceeding the trial judge refused to sign an order fixing a time and place for a hearing of the matter, and the Louisiana Department of Public Welfare applied to this court for a writ of mandamus ordering the judge of the juvenile court to fix a time and place for a hearing under the abandonment affidavit. This court refused to grant the writ (our docket No. 43,248) because no showing had been made sufficient to justify the exercise of our supervisory jurisdiction. The juvenile court then granted the Department of Public Welfare an appeal. (These two appeals are docketed in our court as No. 43,260.)

The juvenile court’s reasons for judgment indicate to us that the judge believed it was to the best interest of the child that he be adopted by the Harvilles. The judge stated, however, that he was bound by the decisions of this court in Green v. Paul, 212 La. 337, 31 So.2d 819, and In re Byrd, 226 La. 194, 75 So.2d 331, and dismissed the adoption proceeding. Those two cases are full authority for the judgment of the juvenile court in the adoption proceeding. It was held by this court in both cases that the consent of the parent or parents must be of a continuing nature, and that withdrawal of consent before rendition of the final decree is a bar to the adoption just as if consent had never been given. In Green v. Paul it was stated that the withdrawal of consent was effective even though it were founded on whim or caprice-

The Harvilles, appellants in the adoption proceeding, urge this court to reconsider and overrule its holding in the Green and Byrd cases, pointing out that Act 228 of 1948, R.S. 9:421-^441, the basic law of adoption, provides: “The basic consideration for this decree [of adoption] and all' others shall be the best interest of the child.” R.S. 9:432. They also rely upon the reasoning in the dissenting opinions, written in the two cases.

The majority of this court is of the view that the two cases cited were correctly decided and are controlling, and that the judgment of the juvenile judge in the instant case was correct.

I myself am not in accord with this view, as shown by my dissent in the Byrd case. I recognize, however, that the ruling in those cases is the established law of this state, although it is contrary to the law of many other states. See 22 Tulane L.Rev. 513 et seq. (1948); Annotation, 156 A.L.R. 1011 (1945). It is my opinion that the law should be as stated in the A.L.R. annotation cited, thus: “* * * the trend of the more recent authority is toward the position that where a natural parent has freely and knowingly given the requisite consent to the adoption of his or her child, and the proposed adoptive parents have acted upon such consent by bringing adoption proceedings, the consent is ordinarily binding upon the natural parent and cannot be arbitrarily withdrawn so as to bar the court from decreeing the adoption, particularly where, in reliance upon such consent, the proposed adoptive parents have taken the child into their custody and care for a substantial period of time, and bonds of affection, in the nature of a ‘vested right/ have been forged between them and the child.”

Under the rule of law now existing in this state, persons are denied the right to adopt children because of the withdrawal of parental consent. Yet at times parents are denied custody of their own children because of moral unfitness or some other reason. See State ex rel. Deason v. Mc-Williams, 227 La. 9S7, 81 So.2d 8. It is surely most undesirable to leave a child, whose welfare is our primary concern, in such an insecure position, with the persons having custody unable to adopt him .and his parents denied his custody. Nevertheless, this is a matter that addresses itself to the Legislature.

Accordingly the judgment of the juvenile ■court in the adoption proceeding will be affirmed.

On the trial of the habeas corpus proceeding in the district court the trial judge refused to allow respondents to introduce any evidence to prove their allegations that the mother was not a fit and proper person to have the custody of the child, that she did not love the child, and that she was morally unfit and unworthy and had a bad reputation. The trial judge was of the opinion that, since the repeal of Act 79 of 1894, R.S. 9:551, 552, and 553, by Act 111 of 1956, the proper forum to hear such evidence is the juvenile court. The effect of such a ruling is that, as between the mother of a child and third parties having custody, the mother has an absolute right to the child, and that such third parties cannot show that she is morally unfit to have the child; and she would be entitled to custody regardless of the child’s best interest.

Act 79 of 1894, R.S. 9:551, 552, and 553, ■repealed by Act 111 of 1956, vested juris•diction in the district courts to determine whether the physical and moral welfare of any child was endangered by the neglect or abuse of any parent or parents or by their inability, refusal, or neglect to care properly for the child, and if the proof was sufficient, to remove the child from the custody of his parents; to punish by fine or imprisonment any parent who interfered with the child or removed the child from any place provided by the court, and, further, upon a proper showing at any time thereafter to restore the child to his parents. The jurisdiction in such cases is now vested in the juvenile courts. See R.S. 13:1570. However, just because the district courts have lost original jurisdiction to hold hearings on the issue of whether a child is neglected or abused or improperly cared for by his parents and to remove him from their custody, it does not follow that these courts cannot in a habeas corpus proceeding admit evidence of the moral fitness of the parties who are opposing each other to obtain custody of the child. In the one instance it is a matter of jurisdiction; in the other, of the admissibility of evidence. Certainly the repeal of the 1894 act could not deprivp the district courts of the right to hear such evidence.

In the recent case of State ex rel. Deason v. McWilliams, 227 La. 957, 81 So.2d 8, 9, a habeas corpus proceeding in which parents were seeking the custody of their minor child, the custody of the child was the sole issue. We said there:

“ * * * We have consistently held that, although parents have a paramount right to the custody of their minor child, this right is not an absolute one and must yield to the superior right of the State to deprive a parent of the custody of his child if the best interest and welfare of the child require it. * * * In State ex rel. Harris v. McCall, 184 La. 1036, 168 So. 291, 292, this court said:
" ‘Although parents have a natural right to the custody of their children, nevertheless the state has an interest in children which goes beyond the mere parental right. In all cases involving their custody, the welfare of the children must be considered, and should prevail over the mere parental right to their possession. * * * ’ ”

Under this principle of law evidence of the fitness of the mother to have custody of her child in the instant case was not only admissible hut necessary, and the trial judge erred in excluding this evidence. The judgment in the habeas corpus proceeding will therefore be reversed, and the case remanded.

We are of the view that the judgment of the juvenile court holding that the child was not a neglected child under R.S. 13:1570(A) (1) is correct. The affidavit filed in this proceeding under that statute avers that the child is neglected in that his mother has neglected and refused to provide proper and necessary support for him. Under this statute it is the person who is legally responsible for the child who must neglect him for the statute to- apply. In the instant case the Harvilles have had the legal custody of the infant during practically his entire life, having obtained an interlocutory decree granting to them his care and custody in the adoption proceeding. Under the facts and circumstances of this case the statute has no application, as it is fully established that the Harvilles not only love the child but have provided him with all things necessary for his care and maintenance.

As to the proceeding under the abandonment affidavit filed by a representative of the Louisiana Department of Public Welfare under R.S. 9:403(B), the statute provides that when such an affidavit is filed, “The judge shall then by order fix a time and place for the hearing of this matter not less than sixty days after the date of the order”. As we have pointed out, the hearing on this affidavit was consolidated with the hearing on the neglect affidavit. The trial judge refused to sign the order, stating that the affidavit did not present any new issues, that an inquiry into the matter could serve no purpose except delay, and that delay was not to the best interest of the child. We seriously doubt whether the refusal of the trial judge to sign the order is a final judgment from which an appeal lies to this court under the provisions of Article 7, Section 52, of the Louisiana Constitution. However, since application was made to this court for a writ of mandamus and the writ was denied for the reasons given, this ended the matter.

The judgment dismissing the adoption proceeding is affirmed.

PONDER, J., concurs.

McCALEB, J., concurs with written reasons.

HAMITER, J., concurs in part and dissents in part assigning written reasons.

McCALEB, Justice

(concurring).

While I am in accord with the rulings in this case, I do not subscribe to the personal observations and criticisms of the author of the main opinion respecting the jurisprudence of this State established in Green v. Paul, 212 La. 337, 31 So.2d 819 and In re Byrd, 226 La. 194, 75 So.2d 331. These decisions are founded on our interpretation and analysis of our own laws, of which adoption is a creature. See Owles v. Jackson, 199 La. 940, 7 So.2d 192, 194. In the first case (Green v. Paul), we gave full consideration to the jurisprudence of other states and found that our views were supported by cases from Missouri, California, Minnesota, Washington, Michigan and Mississippi, to which may be added the states of Ohio and New York. Indeed, the statement made on page 4 of the mam opinion in this case, 233 La. 8, 96 So. 2d 22, that our jurisprudence is “contrary to the law of many other states”, is not accurate in my view, unless the holdings in four states (Massachusetts, Kentucky, Oregon and Texas) are considered to be “many”.

I concur in the decree.

HAMITER, Justice

(concurring in part and dissenting in part).

I agree with the conclusions expressed in the majority opinion with respect to the habeas corpus, neglect and abandonment proceedings. However, for the reasons which I assigned in Green v. Paul, 212 La. 337, 31 So.2d 819, I must respectfully dissent from the affirmance of the judgment dismissing the adoption proceeding.

      . See also Pugh, Robert G., Juvenile Laws of Louisiana, Their History and Development, Consent to the Adoption, to be published in 1957 by Thomas J. Moran’s Sons, Inc., Baton Rouge, Louisiana (quoted in appellants’ brief).

      . See State ex rel. Scholder v. Scholder, 22 Ohio Law R. 608, 2 O.L.A. 471; In re Rubin’s Adoption, Ohio Prob.Ct., 6 Ohio Supp. 26; French v. Catholic Community League, 69 Ohio App. 442, 44 N.E.2d 113 and In re Anonymous, 178 Misc. 142, 33 N.Y.S.2d 793, 798, where the New York court cogently remarked:
      “adoption being a creature of the statute and dependent for its consummation upon approval of the court, any agreement of the parties or any one of them is necessarily conditional; the parties thereto are powerless to confer upon each other any absolute rights pertaining to the parenthood of a child without complying with the pertinent statutory requirements and securing the approval of the court.”


author: HAWTHORNE, Justice.

text:
    233 La. 15
    STATE ex rel. Joan NEWTON v. Oscar HARVILLE and Mrs. Bernice Josephine Harville.
    No. 43237.
    Supreme Court of Louisiana.
    May 6, 1957.
    Rehearing Denied June 10, 1957.
    Love & Rigby, Shreveport, for appellants.
    Morgan, Baker, Skeels, Middleton & Coleman, Shreveport, for appellee.
   HAWTHORNE, Justice.

For the reasons given in our opinion in No. 43142, In re Harville Applying for Adoption, 233 La. 1, 96 So.2d 20, the judgment of the district court is reversed and set aside, and the case is remanded for proceedings consistent with the views which we have expressed.

McCALEB, J., concurs for the reasons given in No. 43142.


text:
    233 La. 16
    In re STATE of Louisiana In the Interest of the Minor Oscar Eugene INGRAM.
    No. 43260.
    Supreme Court of Louisiana.
    May 6, 1957.
    Rehearing Denied June 10, 1957.
    Love & Rigby, Shreveport, for appellants.
    Morgan, Baker, Skeels, Middleton & Coleman, Shreveport, for appellee.
   HAWTHORNE, Justice.

For the reasons given in our opinion in No. 43142, In re Harviiie Applying for Adoption, 233 La. 1, 96 So.2d 20, the judgment of the juvenile court dismissing the petition in the neglect proceeding is affirmed.

McCALEB, J., concurs for the reasons given in No. 43142.


author: HAMITER, Justice.

text:
    233 La. 17
    Archie J. MARCHIAFAVA v. BATON ROUGE FIRE AND POLICE CIVIL SERVICE BOARD.
    No. 43287.
    Supreme Court of Louisiana.
    May 6, 1957.
    Rehearing Denied June 10, 1957.
    R. Gordon Kean, Jr., Parish Atty., John V. Parker, Asst. Parish Atty., Baton Rouge, for relator.
    Walton J. Barnes, Baton Rouge, for respondent.
   HAMITER, Justice.

On August 6, 1956 Archie J. Marchiafava was notified of his dismissal as a member of the Baton Rouge Police Department,, the written reasons given therefor by the Chief of Police being that he had participated in political activities in violation of paragraph 34, subd. a(4) (e) of the Municipal Fire and Police Civil Service Law (Article XIV, Section 15.1 of the Louisiana Constitution, as amended) in that he was-“engaged in handing out campaign literature and wearing a badge advocating the election of a candidate in the Mayor-President race on election day.” He appealed to the Baton Rouge Municipal Fire and Police Civil Service Board, and it affirmed the dismissal on a finding that there had been a participation in political activities as charged.

Marchiafava, thereupon, instituted this suit in the district court of East Baton Rouge Parish to obtain a review of the Board’s ruling. In it the defendant Board first filed an exception to the jurisdiction ratione materiae which was overruled. Later, on a hearing of the merits, the court rendered a judgment ordering that “ * * the dismissal of Archie J. Marchiafava from his position as patrolman in the classified service of the police department of the City of Baton Rouge is set aside, the said employee is restored to duty, and this matter is remanded to the Municipal Fire and Police Civil Service Board of Baton Rouge, Louisiana, which Board shall direct the suspension of said employee without pay for such period as said Board in its discretion may determine, or the said Board in its discretion may direct such other disciplinary action not inconsistent with the views herein expressed, * *

We granted writs under our supervisory powers, on the Board’s application, primarily for the purpose of reviewing the district court’s judgment on the merits.

When instituting the suit in the district court (a so-called appeal from the Board’s ruling) plaintiff complained only that the notice of dismissal given him (hereinabove described) was inadequate, his contention being that without more information he as unable to present his case properly; and he alleged that the inadequacy constituted “technical and legal bad faith and sufficient and proper cause for an appeal to this court and the reversal of the Board’s decision.” In rejecting this complaint the judge correctly reasoned and concluded: “ * * * I think this notice informed the appellant of the reason for his discharge in sufficient particularity. The only Mayor-President election at that time was on July 31, 1956. I do not believe it should be required that this notice spell -out all the details of the activity charged •against the appellant. The Chief of Police is not an attorney. This is not an indictment by a Grand Jury, and it is my opinion that sufficient information was included in the notice.”

This conclusion is sustained by the decision in State ex rel. Perez v. Whitaker, 116 La. 947, 41 So. 218, 220. Therein, this court was considering the dismissal of a member of the New Orleans Police Department under the provisions of Act 32 of 1904, and the following observations were made: “The relator complains of the charges and specifications as not sufficiently indicative of the offense, also as not being sufficiently definite as to date.

“It is well settled that these charges and specifications need not be drawn with the precision of an indictment.
“Nothing in the proceedings leads us to infer that the relator was in the least taken by surprise, or that he was made to answer for an offense which had not been sufficiently set forth to let him know in what consisted the accusation.”

The district judge set aside the dismissal of this plaintiff, directing only a suspension of the employee, under the authority of the general provisions of paragraph 30 (Article XIV, Section 15.1 of the Louisiana Constitution, as amended) which recite in part:

“30. Corrective and Disciplinary Action for Maintaining Standards of Service.
“a. The tenure of persons who have been regularly and permanently inducted into positions of the classified service shall be during good behavior. However, the appointing authority may remove any employee from the service, or take such disciplinary action as the circumstances warrant in the manner provided below for any one of the following reasons:
* * * * * *
“(15) Any other act or failure to act which the board deems sufficient to show the offender to be an unsuitable or unfit person to be employed in the respective service.
“b. Unless the cause or condition justifies an employee being permanently removed from the service, disciplinary action may extend to suspension without pay * * * reduction or demotion to a position of any lower class and to the rate of pay prevailing therefor, or such other less drastic action that may be appropriate under the circumstances. * * * ”

In so ruling the judge remarked: “The most I can get out of a careful study of the evidence in this case is that Mr. March-iafava was guilty of just about the minimum amount of political activity that could be possible. He was not in uniform at the time in question and was not on duty as a patrolman. He wore the ribbon with the candidate’s name on it and may have handed out a few campaign cards over a period not exceeding two hours, and it was probably not over half that time. He should not have done what he did at that polling place on that day. What he did does amount to some political activity even though to a very small and limited extent. Some disciplinary action must be given him. What that measure of punishment should be is within the sound discretion of the Baton Rouge Municipal Fire and Police Civil Service Board, but I certainly do not agree or believe that he should be permanently discharged from the service. In my opinion and belief, the gravity of the violation does not call for the maximum penalty. * * * ”

******
“I do not for one moment question the good faith and fairmindedness of Chief Arrighi and the Board in this matter, but I think both Chief Arrighi and the Board have been misled into believing that the only provision of the law regarding the offense of political activity by a member of the classified service is paragraph 34 of said Section 15.1 of Article 14, and that they have been misled into believing that they were compelled by the law to act under that provision alone, which carries with it an arbitrary discharge from the service of any employee who engages in any political activity whatsoever regardless of how-slight the activity. * * *
******
“I agree that appellant was guilty of poliitcal activity, but I do not agree that what he did was just cause for his dismissal from the service.”

Indisputably, plaintiff was guilty of the charged political activity. This being true it would seem that this matter is governed exclusively by the following specific provisions contained in paragraph 34 of the mentioned Civil Service Law.

“34. Political Activities Prohibited.
“a. Political activities by and extending to employees of the classified service are hereby prohibited as follows:
******
“(4) No employee in the classified service shall * * * (e) take any part in the management or affairs of any political party or in the political campaign of any candidate for public office, except to privately express his opinion and to cast his vote.
‡ ‡ % * # ♦
“b. The appointing authority shall discharge from the service any employee whom he deems guilty of violating any one or more of the provisions of this Section. * * * If fjle f)0ar(f should find upon its investigation of any employee that he has violated any of the foregoing provisions, the board shall order the appointing authority to forthwith discharge the guilty employee from the service and the appointing authority shall forthwith discharge the employee.”

But even assuming that the charge against plaintiff might be considered in the light of the above quoted general provisions of paragraph 30 (which authorize either dismissal or suspension of the employee) unquestionably the district court was without authority to substitute, as it did, its judgment for that of the Board (changing the punishment meted out from dismissal to suspension). Paragraph 31 of the Civil Service Law provides: “Any employee under classified service and any appointing authority may appeal from any decision of the board, or from any action taken by the board under the provisions of the Section which is prejudicial to the employee or appointing authority. * * * This hearing shall be confined to the determination of whether the decision made by the board was made in good faith for cause under the provisions of this Section. No appeal to the court shall be taken except upon these grounds.”

In this instance the Board had the right to affirm the governing authority’s dismissal of plaintiff; and clearly, in so ruling, it acted “in good faith for cause” (just as the district judge found). Whether such cause was sufficient to justify the dismissal was a question determinable by the Board — not, according to the provisions of paragraph 31, by the court.

Since we have concluded that the district court exceeded its authority in setting aside the dismissal ruling of the Board a consideration of the latter’s exception to the jurisdiction ratione materiae is unnecessary.

For the reasons assigned the alternative writs granted herein are made peremptory, and it is now ordered, adjudged and decreed that the judgment of the district court be reversed and set aside and that the ruling of the Baton Rouge Municipal Fire and Police Civil Service Board be reinstated.


text:
    233 La. 26
    TOURO SYNAGOGUE v. GOODWILL INDUSTRIES OF NEW ORLEANS AREA, Inc.
    No. 43454.
    Supreme Court of Louisiana.
    May 6, 1957.
    Rehearing Denied June 10, 1957.

      Taylor Caffery, New Orleans, for defendant-appellant.
    Charles L. Rivet, New Orleans, curator ad hoc.
    Dudley Yoedicke, New Orleans, for plaintiff-appellee.
    Henry B. Curtis, City Atty., John F. 'Connolly, Asst. City Atty., New Orleans, for intervenor-appellee.
   HAWTHORNE, Justice.

Touro Synagogue instituted this suit' ■against Goodwill Industries of New Orleans Area, Inc., for specific performance of an agreement to buy a certain piece of real estate in the City of New Orleans. On April 9, 1956, Touro Synagogue agreed to sell, and Goodwill Industries agreed to buy, an abandoned cemetery at the corner of Jackson Avenue and South Saratoga 'Street in this city for $50,000. In this •agreement Touro Synagogue bound itself to remove at its own expense and in compliance with proper religious ceremony all remains and tombstones from the abandoned cemetery to a cemetery which it is presently using. Pursuant to this agreement Touro tendered title to Goodwill, but the latter refused to accept title on the ground that title was litigious and not merchantable because the property was used as a cemetery at one time and the remains of the dead had never been re- . moved. This suit followed.

The court appointed a curator ad hoc to represent the absent heirs or survivors of those persons buried in the cemetery. The curator ad hoc, who diligently and commendably discharged his duties, located 29 persons residing in the State of Louisiana who were survivors of those buried in the cemetery property. All of these persons were made parties defendant in this suit.

The City of New Orleans intervened in the suit alleging among other things that the board of health had condemned the abandoned cemetery as a nuisance and a menace to public health. In this intervention the city prayed that judgment be rendered in favor of Touro Synagogue because conversion of the cemetery to a Goodwill Industries activity would eliminate the whole problem posed by the abandoned cemetery.

In due course the lower court rendered judgment in favor of petitioner Touro Synagogue and against the defendant Goodwill Industries of New Orleans Area, Inc., the absent and unknown defendants who were survivors of the persons buried in the cemetery represented here by a curator ad hoc, and the persons who had been cited to appear in the suit as known descendants of persons buried in the cemetery. This judgment ordered the defendant Goodwill Industries to perform, within 60 days from the date the judgment is final, the agreement which it had entered into with Touro Synagogue. The judgment further ordered “ * * * that petitioner, Touro Synagogue, at its expense, and under the supervision of the Rabbinical Council of New Orleans, Louisiana, and in accordance with traditional Jewish ceremony as prescribed by the said Rabbinical Council, shall remove all remains of persons buried and all tomb stones from the Jackson Avenue Cemetery owned by petitioner, and shall reinter the said remains in Hebrew Rest Cemetery which is being presently used and maintained by petitioner, and petitioner shall thereafter erect on the site of said reinterment a suitable and appropriate monument containing thereon the names of all persons whose remains have been disinterred from the Jackson Avenue Cemetery and reinterred in the Hebrew Rest Cemetery, said removal to commence when this judgment is final and shall be completed prior to the execution of the act of sale by petitioner, to defendant, Goodwill Industries of New Orleans Area, Inc.”

The curator ad hoc and Goodwill Industries have appealed to this court.

The following pertinent facts were established and are undisputed: Appellee Touro Synagogue is a Louisiana religious corporation whose congregation professes the Reformed Jewish faith. Appellant Goodwill Industries of New Orleans Area, Inc., is a non-profit organization dedicated to the purpose of providing employment, training, rehabilitation, and opportunity for the handicapped people of this area and is a member of the New Orleans Community Chest. Appellee, incorporated by Act 84 of 1828 under the name of “Shangari Chassed” (Gates of Mercy), was the first Jewish congregation to be organized in this state. On April 26, 1828, this congregation purchased a square of ground then situated outside the limits of the City of New Orleans but now in the Fourth District of the City at 2000 Jackson Avenue, in a heavily populated area. This property is recognized as the first Jewish burial ground of record in this state. Part of this square of ground so acquired is the subject of this suit and is designated as a cemetery under the comprehensive zoning ordinance of the city. The first interment in this Jewish cemetery took place on June 2, 1828, and the last in 1872. There was never any written contract designating the property as a cemetery, there were no deeds or certificates issued to the families of the persons buried in it, and the cemetery was considered as a private cemetery with burials restricted to persons of the Jewish faith.

In 1859, the congregation Shangari Chassed acquired the site where Hebrew Rest Cemetery No. 1 is presently located, permission was granted by the city to convert that property to a burial ground, and the first interment took place there in 1866. On October 15, 1937, the charter under which appellee was then incorporated was amended to change its name to Touro Synagogue, and Touro Synagogue as successor of the congregation Shangari Chassed is- the record title holder of the Jackson Avenue property here involved.

From 1872, when the last interment took place in the Jackson Avenue Cemetery, until 1956, when Touro agreed to sell the property to Goodwill, the Hebrew Rest Cemetery Association acted as custodian of the Jackson Avenue Cemetery, spending various sums of money for its repair and upkeep, which, however, were not sufficiently large to maintain the place and prevent its falling into ruin. Since 1872 the Jackson Avenue Cemetery has had no income from annual fees, and there has been no fund to maintain it except $2,000 collected in 1924. This property has been neglected to the point where many graves have lost their identity; huge trees grow about the property, some of which have in their growth actually opened graves; weeds of various heights cover the entire area except for a beaten path; many tombstones have been knocked down or broken and a number of graves have been opened; bushes practically block the front gate, and much of the wall which formerly surrounded the cemetery has fallen to ruin.

Appellee has been notified by the director of health of the City of New Orleans that the cemetery was condemned as being unfit for burial, and was ordered to demolish the cemetery so as to abate any hazards which might develop from the conditions that prevail there.

Under traditional Jewish law the dead acquire possession of the place in which they are buried and should not be disturbed except when the place of burial is no longer safe from an act of desecration. The Rabbinical Council of New Orleans found that it was proper under Jewish religious law that the remains of people buried in this cemetery be removed and buried in another place. The members of this council were of the opinion that the bodies were being desecrated in this cemetery, that out of respect for the dead it was best that they be removed according to the arrangements for removal contemplated in this case, and that there was nothing in the Jewish law as understood by the rabbis composing the council which prohibited the removal of remains under such circumstances. In 1954 the council, composed of the active rabbis of all six Jewish congregations of this city, passed a resolution recommending that the bodies buried in the Jackson Avenue Cemetery be removed; that the disinterment and reinterment be under the supervision of the rabbis, who were to see that all proper religious ceremonies, requirements, and observances were complied with; that the expense of disinterment and reinterment be borne by Touro Synagogue; that at its expense also a monument be erected over the reinterred remains in the Hebrew Rest Cemetery, on which the names of all persons interred would be inscribed, and that the cost of perpetual care in the Hebrew Rest Cemetery be borne by Touro Synagogue.

In this court the curator ad hoc contends that the lower court erred in overruling the exceptions of no cause or right of action filed to the petition of intervention of the City of New Orleans.

It appears to us that the city has sufficient interest under the provisions of Article 390 of the Code of Practice to intervene in this suit. The curator ad hoc evidently overlooks the fact that the agreement between plaintiff and defendant provides for the removal of all remains and tombstones from the abandoned cemetery. In this respect certainly the city has an interest, and by its intervention it has not raised any issues between the parties which they themselves have not raised. Moreover, contrary to the view of the curator, the city in this suit is not seeking a judicial condemnation of the cemetery, but asks only that the prayer of plaintiff be granted, which simply means that the objectionable conditions presently existing in the abandoned cemetery would be eliminated.

It is also contended that the court erred in failing to recognize that the property in question has been irrevocably dedicated for purposes of burial, or, in other words, that land which has been used as a cemetery is dedicated in perpetuity and cannot be sold or used for any other purpose.

It is clearly established and proven in this case that the relatives of the persons buried in the Jackson Avenue Cemetery have abandoned it as a cemetery and failed to keep it up, that it has disintegrated to such a point that it is unfit for burials, and that the synagogue has been ordered by the board of health to demolish it as a cemetery so as to abate hazards which might develop from the conditions prevailing there.

The contention that land comprising a cemetery is not subject to alienation because it has been irrevocably dedicated was fully answered by this court in the case of City of New Orleans v. Christ Church Corporation, 228 La. 184, 81 So.2d 855, 859. In that case this court said:

“The curator-ad-hoc argues that public policy and good morals require that an area once dedicated as a cemetery should remain so dedicated and should not be expropriated.
“In the case of Humphreys v. Bennett Oil Corporation, 195 La. 531, 197 So. 222, 229, we stated:
“ ‘Regardless of the laws and rules relating to the ownership and control of real property, when a plot of ground is set apart for cemetery purposes, and burials are made in the land, the ground changes its character in the minds and feelings of the community. “It assumes a sacred quality that overrides conveyancers’ precedents and requires freedom from profanation until, by abandonment and removal of the bodies or by complete disintegration, there remains nothing to appeal to the emotions of the survivors.” ’
“We believe there are reasons why property which has been dedicated and used for public purposes does not become so dedicated in perpetuity. Particularly is this true when the ground so dedicated has become an abuse rather than a holy use. * * * ” (Italics ours.)

See also Choppin v. Dauphin, 48 La.Ann. 1217, 20 So. 681, 33 L.R.A. 133.

Since the land comprising a cemetery is not dedicated as a cemetery in perpetuity, the next question which we must answer is whether the cemetery here involved has been abandoned and the land no longer used for the purpose for which it was dedicated.

The cemetery in this case has clearly been abandoned. This burial ground has received no interment since 1872 and in its condition of disintegration is presently unfit for this purpose. In addition, the public and the survivors or others interested in its use as a cemetery have failed to keep and preserve it as a resting place for the dead. The premises have been permitted to fall into disorder, the walls to crumble, and the gravestones and monuments to be destroyed so that graves have lost their identity and nothing now remains to stir the emotions or sentiments of the relatives of the dead.

We can find no justification under the facts established for denying Touro Synagogue the right to sell the property here involved subject to the conditions imposed by the judgment of the court.

It is also argued that Touro was under a trust and duty to maintain this property which had been dedicated as a burial ground, that the cemetery disintegrated and deteriorated because of the failure of Touro to perform this trust and duty, and that it is now estopped to claim any benfits from its own acts of negligence.

The answer to this argument is that under the facts we have here we are unable to find that there was any duty imposed on Touro Synagogue to maintain this property as a cemetery at its own expense. Even though there is no obligation on the part of Touro to maintain this property, however, it is to be noted that it has agreed at its own expense, as a condition precedent to this sale, to disinter the persons buried there and to rebury them in a cemetery presently used and maintained, with proper religious rites under a suitable monument to honor their memories; and the judgment so orders.

The curator ad hoc calls our attention to a provision in the legislative charter of Shangari Chassed (see Section 5 of Ad 84 of 1828 and Act 65 of 1843 amending and reenacting that section) which he says prohibits the sale of the cemetery by Touro Synagogue. It is true that the original legislative charter of the corporation which acquired the property here involved did prohibit the sale by the congregation of its burial grounds, but that charter expired by its own terms in 25 years. The present charter of Touro Synagogue contains no such prohibition, and under this charter Touro can sell any property which its owns. The curator concedes that there is no restriction against the sale in the present charter, but argues that Touro as the successor of Shangari Chassed, the original, purchaser, is bound by the prohibition in the original charter.

We confess that this argument gives us some concern and would appear to have merit were it not for the fact that the survivors or relatives of those interred in the burial ground have abandoned it and permitted it to disintegrate and become unfit for burials to such an extent that the board of health of New Orleans has condemned and ordered it demolished to abate public hazards which might develop from conditions existing there. Under these facts the survivors or relatives or any of those represented by the curator ad hoc have no right to invoke against Touro the provisions found in the charter of its predecessor, in the absence of any such restriction in the charter under which it now exists and in the absence of any obligation or duty on it to maintain and care for the cemetery.

For the reasons assigned the judgment appealed from is affirmed.

      . The original charter was for 25 years. In May, 1852, before the expiration of this charter, Shangari Chassed enrolled a perpetual charter with the Secretary of State. This enrollment was lost, but there was a reinscription of it in March, 1853.

      . Article 456 of the Civil Code provides: “The provisions of the ancient laws concerning the distinction of things into things holy, “acred, and religious, and the nature and inalienability of these kinds of things, are abolished; and nothing prevents the corporations or congregations to which these things belong, from alienating them, provided it be done in the manner and under the restrictions prescribed by their acts of incorporation.”


author: McCALEB, Justice.

text:
    233 La. 40
    STATE of Louisiana v. D. C. BAILEY.
    No. 43379.
    Supreme Court of Louisiana.
    May 6, 1957.
    Rehearing Denied June 10, 1957.

      Edgar H. Lancaster, Jr., Tallulah, Burton L. Wade, St. Joseph, for appellant.
    Jack P. F. Gremillion, Atty. Gen., M. E, Culligan, Asst. Atty. Gen., Thompson L. Clarke, Dist. Atty., St. Joseph, for appellee.
   McCALEB, Justice.

On the afternoon of December 27, 1955, appellant, a 21 year old Negro farmhand, shot and killed two white men, Jesse Nelson and E. C. Montgomery, at Holly Ridge, a small community located in Madison Parish. Nelson, an elderly man, was the first victim, appellant shooting him in the back of the head shortly after 2:00 p.m. with a shotgun he had borrowed from Nelson for the alleged purpose of shooting a “coon”. Montgomery was killed with the same gun shortly after 6:00 p.m. at the general store which he operated. The object of the crimes was robbery, a small amount of change being taken from Nelson’s body by appellant immediately after the shooting (he overlooked a billfold containing $400 in cash) and approximately $32 in cash and other personal articles being taken by appellant from Montgomery’s store following the shooting of the proprietor. Between 9:00 and Í0:00 o’clock on the evening of the crimes, appellant was apprehended by police officers and, after being questioned he orally confessed. The next day a formal confession was given which was recorded by a stenographer and later transcribed.

In due course, separate indictments were returned against appellant for the murder of his victims. He was brought to trial for the murder of E. C. Montgomery and having been convicted and sentenced to death by electrocution, he prosecuted this appeal relying on ten bills of exceptions for a reversal.

Bill of Exceptions No. 1 was reserved to the rulings of the judge on a hearing involving the present sanity of appellant. After the indictments were returned, counsel were appointed to defend appellant in accordance with law. On April 9, 1956, upon oral motion of these counsel, appellant’s previous plea of not guilty was withdrawn and request was made for a hearing to determine his present sanity as provided by Article 267 of the Code of Criminal Procedure (R.S. 15:267). This request was granted and the judge, on April 18, 1956, appointed a commission, composed of Drs. E. Otis Edgerton, Coroner of Madison Parish, W. R. Morris, a local physician and' surgeon and C. E. Sturm, Acting Director of the East Louisiana State Hospital, to inquire into the present sanity of appellant and report its findings within 30 days. On May 8th, the commission met and examined appellant in the Madison Parish Jail and, on the same day, reported to the judge its opinion that appellant was not capable of assisting in his defense and that, his mental deficiency being severe, it would be advisable to send him to the East Louisiana State Hospital for observation and testing for a period not to exceed 30 days. Conformably with the commission’s report, the judge caused appellant to be taken to the East Louisiana State Hospital for observation and diagnosis and, later, it was reported from the hospital that appellant was suffering from severe mental illness which should have further treatment. When the contents of this communication were made known to the district attorney, he informed the judge that he felt that appellant was misleading the staff of the State Hospital as. to his true mental capabilities and he accordingly sent to each of the members of the sanity commission a copy of appellant’s detailed confession in which he names dates, times, places, physical facts and persons, all of which evidence indicated that he possessed greater mental faculties than he displayed to the doctors. Following a consideration by the Commission of appellant’s confession and discussion between the District Attorney (who was convinced that appellant’s placement in the mental hospital was premature), the judge and defense counsel, it was mutually agreed that a hearing was mandatory in view of the provisions of Article 267 of the Code of Criminal Procedure to determine appellant’s present mental condition. This hearing was held on June 30, 1956, at which time the three doctors composing the commission appeared and gave testimony, all of them reversing their previous findings as to appellant’s present sanity. At the conclusion of the testimony counsel for the defense, faced with the unanimous testimony of the doctors that appellant was presently sane, moved that the sanity commission be discharged and that a new commission be appointed by the judge to inquire into appellant’s mental condition. This motion was overruled by the judge who; being of the opinion that appellant was fully able to understand the proceedings and to assist in his defense, ordered, over objection of his counsel, that he stand trial.

In their argument in this court, counsel for appellant complain, among other things, of the reversal by two members of the sanity commission of their previous opinions as to appellant’s present sanity, these reversals being predicated on appraisals of the statements made by appellant in his confession, rather than from subsequent personal examinations.

We do not think the judge erred in his ruling on the issue of present insanity. Appellant’s subnormal intelligence, while a factor to be considered, does not in itself support a holding of legal insanity. State v. Chinn, 229 La. 984, 87 So.2d 315 and cases there cited. Indeed, as the law presumes that every man is sane, it should appear by a clear preponderance of evidence “that the accused is so mentally deficient that he lacks capacity to understand the nature and object of the proceedings against him and to assist in the conducting of his defense in a rational manner”. State v. Rivier.e, 225 La. 114, 72 So.2d 316, 317. The fact that two of the physicians composing the sanity commission, after considering appellant’s confession, felt that they were mistaken in the impressions they 'had formed from a previous personal interview with him furnishes no basis for a deduction that appellant is presently insane nor does it place the issue of his sanity in such a state of uncertainty as to warrant a ruling that the judge abused his discretion in not appointing a new commission to reexamine the matter. Accordingly, since there is no evidence to sustain the conclusion that appellant was insane at the time of the trial, we find no merit in Bill of Exceptions No. 1.

On the first day of trial, after some of the members of the venire had been examined on their voir dire, the court recessed for lunch. During this recess the jury box was left by the Clerk unlocked and unattended on a table in the courtroom. Upon reconvening, defense counsel moved to have the petit jury venire quashed on the ground that, since the jury box had been left unlocked and unattended, it could have been tampered with and the names rearranged. When the judge overruled the motion to quash, counsel reserved Bill No. 2.

There is no merit in the bill. The judge states in his per curiam that he delayed ruling on the motion until the venire of 30 names had been exhausted and that the slips on which the names were written were collated and reconciled by him with the list of jurors appearing on the proces verbal of the jury commission. Nevertheless, defense counsel argue that the leaving of the jury box unlocked and unattended was violative of the provisions of Article 182 of the Code of Criminal Procedure (R.S. IS :182) and that this alone was a sufficient irregularity to warrant a mistrial.

Assuming that there was a technical violation of R.S. 15 :182, appellant sustained no injury and no substantial right was impaired. Therefore, there is no basis for a reversal of the conviction on this ground. See Article 557 of the Code of Criminal Procedure.

Bill No. 3 was reserved when the district attorney, in his opening statement and later in the trial, made reference to the killing of Mr. Nelson which preceded the crime for which appellant was being tried by approximately four hours. Counsel contend that it was highly prejudicial to have it stated, and later have testimony admitted, relative to the killing of Mr. Nelson as appellant was being tried solely for the murder of Mr. Montgomery; that the objectionable matter was not necessary for the purpose of showing motive or system and that the prior killing could not be considered as part of the res gestae because the two crimes took place some four hours apart.

Counsel are mistaken. The trial judge properly concluded “that both killings were part of one and the same transaction and a result of the same motive and intent * * * ”. Under our Code of Criminal Procedure and the jurisprudence, evidence of closely related events is receivable for the purpose of establishing motive or intent for the commission of the crime charged. R.S. 15:445, 446; State v. Sears, 217 La. 47, 46 So.2d 34 and State v. Palmer, 227 La. 691, 80 So.2d 374. Furthermore, evidence of the killing of Mr. Nelson was clearly part of the res gestae. R.S. 15 :447, 448. The element of time standing alone (four hours in this case) does not determine whether an event or statement is or is not part of the res gestae but, rather, whether the facts and circumstances of the case indicate that one transaction was an immediate concomitant of the other as to form a continuous chain of events, each having causal connection with the other. It can hardly be doubted that the two killings committed by appellant meet this test.

Bills Nos. 4, 7 and 8 relate to the admissibility of appellant’s confessions.

Bill No. 4 is predicated on the failure of the judge to rule the confessions inadmissible on the ground that defendant lacked the mental capacity to make a free and voluntary confession.

There is no doubt whatever that the State met the requirements of our Constitution (Section 11 of Article 1, LSA-Const.) and Article 451 of the Code of Criminal Procedure (R.S. 15:451) by establishing that appellant’s confessions were freely and voluntarily given and were not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises. Therefore, since all members of the sanity commission concluded that appellant could appreciate the difference between right and wrong and in view of the finding that he is not presently insane within the meaning of our law, the ground of the objection to the admissibility of the confessions would appear to be insubstantial. Yet, counsel insist that, forasmuch as the doctors agreed that appellant’s intelligence quotient was a mere 47 (which places him in the intelligence classification of a six or seven year old child), it was not possible for him to exercise discretion and therefore be able to voluntarily confess. In support of this position counsel place much reliance in the testimony given by Dr. C. E. Sturm at the sanity hearing to the effect that a person with an I.Q. as low as 47 is in the “imbecility range”, and that no one can place any credence in his statements as he, like any 6 or 7 year old child, can be too easily led.

Low mentality in itself, as far as we have been able to determine, has never been regarded as a predicate for ruling a confession involuntary. On the contrary, in the only case in our jurisprudence, prior to the instant one, in which this precise point was raised, it was held that low mentality did not render a confession involuntary but that it is a factor to be considered with other circumstances surrounding the giving of the confession in determining whether or not it was voluntary. See State v. Phelps, 138 La. 11, 69 So. 856.

The statement of Dr. Sturm relied on by counsel does not evince that he is of the opinion that appellant was incapable of confessing. Rather he expresses the view that, due to his low intelligence quotient, appellant is easily led and that his statements are not reliable. Thus, while appellant’s ready response to suggestion would directly bear on the volun-tariness of his confession, his unreliability is properly addressed to the weight to be given his statements by the jury, a matter which does not come within the sphere of our appellate jurisdiction.

In our independent research on the question of low mentality as affecting the admissibility of a confession, we find but few cases and these are not uniform. However, the ruling of this court in State v. Phelps, supra, appears to be concordant with the general rule stated in Wharton’s Criminal Evidence, 12th Ed., Sec. 386, page 119, as follows: “The court should look to the circumstances under which the confession is alleged to have been made, and consider the strength or weakness of the accused’s intellect, his knowledge or his ignorance, and whether the declarant had full control of his mental faculties at the time he made the confession, and whether he realized the import of his act”.

Applying this test to the confessions in the case at bar, we are unable to perceive that the judge erred in ruling them voluntary and admissible in evidence.

After laying the foundation for the admission of appellant’s transcribed and recorded confessions, which contained reference by him to a conviction for theft, the district attorney stated out of the presence of the jury that, although R.S. 15:450 required a confession to be introduced in its entirety, he would, with consent of defense counsel, delete those portions having to do with the prior conviction. Upon refusal of counsel to agree to the suggested deletions, the district attorney offered the confessions in evidence in their entirety but requested the judge to instruct the jury to disregard the portion dealing with the theft conviction. This was done but defense counsel nevertheless objected to the confessions on the ground that they contained references to a prior conviction of appellant and, when overruled, Bill of Exceptions No. 7 was reserved.

Under the circumstances presented, appellant is in no position to complain. Moreover, to sustain counsel’s contention would ipso facto render every confession inadmissible when reference is made therein by the declarant to a prior conviction of an unrelated crime. This is not reasonable nor is it the law. See State v. Jones, 211 La. 387, 30 So.2d 127, 130.

Bill No. 8 was taken to the overruling of an objection to the introduction of the recorded confession after the written confession had already been heard by the jury. It is asserted in this bill that the repetition of the contents of the written confession was designed solely for the purpose of prejudicing the jury against appellant.

There is no basis for counsel’s contention that the confession was offered for the purpose of prejudicing appellant. On the contrary, since appellant was pleading insanity at the time of the commission of the offense, the recorded confession was highly relevent to aid the jury in its deliberations on this issue and was also of value to the jury in determining the weight to be given to the written confession. Aside from this, since the evidence was admissible, the fact that it was cumulative and prejudicial furnishes no ground for its rejection. State v. Sears, 220 La. 103, 55 So.2d 881.

Bill No. 5 was taken after the judge denied a motion for a mistrial when the state called Mr. Lewis B. Furr, the Clerk of Court, to testify relative to the voluntariness of appellant’s confession. The ground upon which the motion rests is that Mr. Furr’s name did not appear on the list of State witnesses furnished appellant nor was his name called when the witnesses were sequestered at the beginning of the trial. Further, it is said that his testimony was highly prejudicial in view of the fact that his brother, Mr. James E. Furr, was serving as a petit juryman in the case.

We find no legal basis for the Bill. Since a copy of appellant’s confession had been furnished defense counsel and Mr. Furr appeared thereon as one of the witnesses, it can hardly be said that they were taken by surprise when Mr. Furr was called to testify in laying the foundation for the admission of the confession. Besides, we know of no law which requires the listing of witnesses who are available to the State without subpoena. State v. Goins, La., 94 So.2d 244.

Bill No. 6 was reserved to the overruling of defense counsel’s objection to the offering in evidence of certain articles taken from the person of appellant at the time of his arrest. These articles consisted of shotgun shells, two purses, “stage money” and $17 in bills and change. The ground of the objection was that the purses did not belong to the deceased and the State’s only purpose in their introduction was to create the impression in the mind of the jury that they had been stolen by appellant. The other articles, it is contended, were irrelevant.

There is no validity in the objection. Most of the items had some relevancy to the case. The shotgun shells were shown to be of the identical color, type and gauge as those taken from Mr. Nelson’s home; the money contained in the purses was shown by the State to be, when computed with that which appellant spent, approximately the same as was taken from Mr. Montgomery’s cash register and in the same denominations. But, apart from this, objections based on the ground of irrelevancy are the weakest known to the law and furnish no basis for a reversal of a conviction, save in exceptional cases where substantial prejudice is shown. See Article 557 of the Code of Criminal Procedure.

Bills Nos. 9 and 10 were taken to the overruling of a motion for a new trial and in arrest of judgment. They present nothing for review as the points raised therein are merely a repetition of those presented in the other bills which we have already considered.

The conviction and sentence are affirmed.

      . Dr. Morris and Dr. Edgerton testified that they did not re-examine appellant at any time subsequent to May 8, 1956, the day the commission filed its report concluding that he was mentally incapable of assisting in his defense. Nevertheless, they voiced the opinion at the hearing that appellant was presently sane, stating that an examination of appellant’s detailed confession was instrumental in convincing them that their original opinion was not well founded. They further stated that the report of May 8, 1956, was merely an interim report pending the outcome of the observations of the staff of the East Louisiana State Hospital.
      Dr. Sturm’s testimony, while somewhat contradictory as to appellant’s mental capacity, which was primarily due to his low I.Q. (47), and a misconception of the meaning of present insanity, as used in Article 267 of the Code of Criminal Procedure, finally gave the opinion that, tested by the legal standard, appellant was presently sane and capable of assisting in his defense.

      . R.S. 15:447 provides: “Res gestae are events speaking for tliemselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. What forms any part of the res gestae is always admissible in evidence.”
      R.S. 448 provides: “To constitute res gestae the circumstances and declarations must be necessary incidents of the erim-inal act, or immediate concomitants to it, or form in conjunction with it one continuous transaction.”

      . There was really but one formal confession which was taken by means of questions and answers and later transcribed in typewritten form. However, since this confession was also recorded on an electric recording device and was reproduced before the jury, defense counsel treat it as a separate confession.

      . There is much evidence, however, both medical and lay, that appellant’s mentality is greater than that shown by intelligence tests.

      . Counsel make another contention under Bill No. 4 that the confession was involuntary because it was made by means of questions and answers, indicating that appellant’s answers were suggested by his interrogators. There is no substance in this complaint. R.S. 15:453 specifically provides that a confession may be obtained by means of questions and answers and the evidence shows that the responses of appellant were not induced by the questions propounded to him.


author: PONDER, Justice.

text:
    233 La. 59
    J. B. ELKINS v. W. B. ROSEBERRY, Jr., et al.
    No. 43129.
    Supreme Court of Louisiana.
    May 6, 1957.
    Rehearing Denied June 10, 1957.

      Campbell & Campbell, by John T. Campbell, Minden, for defendants-appellants.
    Roy M. Fish, Springhill, for plaintiff-ap-pellee.
   PONDER, Justice.

The plaintiff, J. B. Elkins, as landowner, brought suit seeking to have decreed extinguished, by the liberative prescription of ten years, a certain mineral reservation in favor of W. B. Roseberry, contained in a deed executed by Roseberry on December 10, 1943 wherein Roseberry conveyed to Elkins the SEJ4 of the SWJ4, Section 8, and Ni/¿ of NE}4 of NWj4> Section 17, in Township 23 North, Range 9 West, consisting of 60 acres, and reserved therein one-half of the oil, gas and other minerals in and under the described lands. The defense to the suit is that on March 18, 1946, the plaintiff and Roseberry executed a joint mineral lease in favor of Phillips Petroleum Company, which lease was for a primary term of ten years, the effect of which defendant contends was to extend the date of prescription then running against the mineral right until the expiration of the primary term of the lease, and that production from the lands prior to the expiration of the primary term of the lease prevented the accrual of prescription at the end of the primary term of the said lease. After hearing, there was judgment in favor of the plaintiff decreeing the extinguishment of the mineral reservation, and from this judgment defendant has appealed.

The sole question presented in this case is whether or not the lease executed on March 18, 1946 by Elkins and Roseberry to the Phillips Petroleum Company is a joint lease.

The appellants take the position that the lease is a joint lease. They point out that the lease designates the lessors as the “Lessor” ; that it calls for one consideration .and royalty to be paid to the “Lessor”; .that the lease was first signed by Roseberry, ■the owner of the mineral reservation, and -.thereafter signed by Elkins, the plaintiff herein. They advance the argument that the lessors bound themselves as one individually, acted unitedly, that the rights covered by the lease were treated as a single right and that the rentals were paid by a joint check.

We have examined the lease in question and find that it is made out in the singular to the “Lessor”. The rentals are to be paid to the lessor and it provides in case of production that the royalty is to be paid to the lessor. Roseberry appears to have signed the lease first and his signature was witnessed by Mrs. Matthews and G. D. Adsit. Elkins’ signature was witnessed by Tilon O’Brier and G. D. Adsit. This indicates that the parties did not sign the lease at the same time. There is no language in the lease indicating that the landowner intended to extend the mineral servitude. The mere fact that Elkins recognized the servitude in the lease could not of itself be taken as an intent to extend the servitude.

From an examination of the evidence, we find that Adsit was the agent and representative of the Phillips Petroleum Company and first presented the prepared lease to Roseberry who signed it. He then took the lease to Elkins to secure his signature. Roseberry and Adsit are both deceased. Elkins, the plaintiff, testified that when Adsit brought the lease to him to sign, with Roseberry’s signature already thereon, he informed Adsit that he did not want to make a joint lease wherein the mineral servitude would be extended. He testified that he was assured by Adsit that his signing would not have that effect, and relying upon this assurance, Elkins affixed his signature to the lease. The rental checks were made out jointly to both parties and accepted by them until the expiration of the mineral servitude. Thereafter, Elkins refused to accept the rental payments and thereafter leased the minerals, covered by the mineral reservation, to Phillips Petroleum Company. Production was not had on the property until sometime in March, 1956, some three years after the expiration of the mineral reservation.

The question presented here has been considered on many occasions by this Court and we have consistently held that it must clearly appear either from the contract itself or from extraneous evidence, submitted by the parties for the purpose of showing their intent, that the parties signing a lease intended to extend outstanding mineral interests to the primary term of the lease. We have pointed out that the intention of the parties is the controlling factor, a question of fact, to be determined by the terms of the lease or extraneous evidence. See Barnsdall Oil Co. v. Succession of Miller, 224 La. 216, 69 So.2d 21, and the authorities cited therein and Union Oil Company of California v. Touchet, 229 La. 316, 86 So.2d SO. The mere signing of a lease such as the one under consideration is not sufficient to make it a joint lease in the absence of any showing that it was intended to be a joint lease.

This Court stated in Barnsdall Oil Co. v. Succession of Miller, supra [224 La. 216, 69 So.2d24], that:

“In instances like this, where the landowner and mineral owner have granted a mineral lease with a primary term running beyond the time when prescription for non-user would ordinarily accrue but which does not contain an acknowledgment effecting an interruption of prescription, it has been many times professed that this act alone was indicative of an intention on the part of the landowner to extend the life of the servitude for such time as the lease remained in force and effect. However, the court, beginning with the decision in Mulhern v. Hayne, 171 La. 1003, 132 So. 659, never fully accepted this proposition, having held that the making of such a lease would constitute an extension of the servitude only in cases where it is shown that it was the intention of the parties to sign a joint lease. Bremer v. North Central Texas Oil Co., 185 La. 917, 171 So. 75; Kennedy v. Pelican Well, Tool & Supply Co., 188 La. 811, 178 So, 359; English v. Blackman, 189 La. 255, 179 So. 306; Hightower v. Maritzky, supra 194 La. 998, 195 So. 518]; Spears v. Nesbitt, 197 La. 931, 2 So.2d 650; Achee v. Caillouet, supra [197 La. 313, 1 So.2d 530]; White v. Hodges, 201 La. 1, 9 So.2d 433 and Baker v. Wilder, 204 La. 759, 16 So.2d 346. And, in resolving this question of fact, the court has observed in the foregoing pronouncements that it must clearly appear either from the contract itself that the landowner intended the agreement to be for the common benefit of the mineral owner and himself or, in cases where the language of the lease does not plainly express such an intention, from extraneous evidence submitted by the parties for the purpose ox showing their intent.”

We pointed out in the case of Union Oil Company of California v. Touchet, supra [229 La. 316, 86 So.2d 55], that: “ * * * it is a firmly entrenched principle of Louisiana mineral law that no act on the part of a landowner will have the effect of extending the life of a mineral interest unless it is shown that there was a clear intention on the part of the landowner to achieve that very result.”

The lease in question was not signed by the parties at the same time, it contains no specific provision to show an intent to extend the life of the mineral servitude, the uncontradicted testimony of the. plaintiff shows no such intent, the plaintiff’s refusal to accept the joint rentals after 1953, the date of the expiration of the servitude, and the leasing by him of the minerals previously covered by the servitude clearly shows that there was no intent on his part to extend the life of the mineral servitude.

For the reasons assigned, the judgment of the lower court is affirmed at appellant’s cost.

FOUR.NET, C. J., absent.