text:
    214 La. 71
    PITTMAN v. RIVERSIDE REALTY CO., Inc. et al.
    No. 38885.
    Supreme Court of Louisiana.
    June 15, 1948.
    Rehearing Denied July 2, 1948.
    Yarrut & Fishman and J. Richard Reu-ter, Jr., both of New Orleans, for plaintiff-appellee.
    Christovich & Kearney, of New Orleans, for defendant-appellant.
   McCALEB, Justice.

Relator, Huston E. Pittman, is a shareholder and a director of Riverside Realty Co. Inc. During the month of August 1947, he requested Theodore A. Pittman, the President of the corporation and his brother, to permit him to inspect its books and records. Upon denial of his request, relator brought the present action against the corporation and T. A. Pittman for a writ of mandamus directing them to grant such permission. Alternative writs were issued, as prayed for by relator, and, upon the return day, the respondents appeared and resisted the demand by way of exception and answer. After a trial on the merits, there was judgment for relator and respondents have appealed.

The defense to the suit is two-fold,

(1) That relator is a stockholder in a competing business and owns less than 25% of the stock of the respondent corporation, which is the percentage required by Section 38 of the Business Corporation Act No. 250 of 1928, as amended by Act No. 34 of the Fourth Extra Session of 1935, to enable those holding stock in a competitive business to demand the rights and privileges conferred by the Act, and

(2) That the motives and purposes of relator are improper and unreasonable.

It is apt to prescind a discussion of the foregoing propositions in order to state the facts and circumstances which give rise to the controversy. An examination of the testimony discloses but little dispute as to the salient facts, which we find to be as follows:

Respondent, T. A. Pittman, is one of six brothers who came to Louisiana from Mississippi about 20 years ago and entered into the general contracting business. The brothers had little or no education, none of them having progressed further than the third grade in grammar school. T. A. Pittman, however, possessed natural ability for finance and assumed leadership in the ventures hereinafter mentioned. The other brothers are to be classed as field men, mechanics and construction superintendents, whereas, T. A. Pittman was the office man and handled all contacts and negotiations with the business world.

In 1936, a copartnership, Pittman Bros. Construction Company composed of T. A., Huston and E. C. Pittman, was organized to carry on business of general contracting and all the brothers worked with or for this concern. In 1938, the respondent corporation was organized, the subscribing stockholders being T. A. Pittman, Neel S. Flynn and the relator. Another corporation, Pittman Contracting Company, Inc., was formed in 1941 by the six brothers who were its subscribing stockholders. In 1943, Pearl Homes, Inc., was organized by I-Ias-ton L. Pittman and two dummy subscribers representing T. A. Pittman. State Theatres, Inc. was organized in 1945, the subscribing stockholders being all of the brothers, except David D. Pittman, and two years later, in 1947, Pittman Bros. Construction Co. Inc. was formed by the same five brothers.

The main pursuit carried on by the Drothers through the above named companies, except the respondent corporation, was general contracting for themselves and others and the corporations evidently enjoyed considerable prosperity as a result of the construction and sale of dwelling units and other edifices during the war and post war periods. And, as above stated, respondent, T. A. Pittman, was the guiding hand in all operations and owned a vast majority of the stock in the enterprises. In fact, he testifies that Riverside Realty Co. Inc. (the respondent corporation) is practically owned by him and consists of his personal holdings in real estate; that it is not engaged in the contracting business but that Pittman Contracting Co. has done considerable construction work for it.

Prior to 1947, T. A. Pittman purchased the interest of David D. Pittman in Pittman Contracting Co. Inc. and that brother severed all further connections with the organization. Later on, the remaining four brothers, not knowing the value of their stock in the various enterprises and believing that the interest of David Pittman had been acquired for an amount not commensurate with its real worth, became uneasy as to their position with their brother, T. A. Pittman, and held meetings for the purpose of determining what should be done. As the result of a meeting held in Slidell, Louisiana on August 24, 1947, the four brothers, including relator, being dissatisfied with the way T. A. Pittman was handling their interests, decided that it would be best for them to obtain a settlement from him and embark upon a separate business venture for their own account. Accordingly, on the following day, they contacted T. A. Pittman and informed him that they were not pleased with conditions and that they would like to have their auditors check the bopks and “pay us what our auditors found on the books being our part of the organization, you see, the Corporation”. Upon rejection of their request by T. A. Pittman, the brothers immediately formed another company, Union Construction Co. Inc., severed all connection with the Pittman brothers enterprises and instituted suits (similar to this) in the Civil District Court for permission to examine the books of the various corporations.

The trial judge made the writ peremptory on the ground that, since relator was a director of the Corporation, he had an absolute right to examine the books. Counsel for respondents argue that the judge was wrong in his conclusion for the reason that, although relator was a director, he did not seek to obtain a writ of mandamus on that theory and further that, at all events, he is not entitled to the relief prayed for because he is not in good faith. While we find no error in the resolution of the trial judge, we prefer to rest our conclusion on relator’s right as a stockholder as it appears that he is no longer a director, having been dismissed from the corporate board soon after the institution of these proceedings.

Respondents’ first point is that, since relator is a stockholder in Union Construction Co. Inc., an alleged competitor, and since he holds less than 25% of the capital stock of respondent corporation, he is barred from examining the books in view of Paragraph III of Section 38 of Act No. 250 of 1928, as amended 'by Act No. 34 of 1935, the pertinent portion of which reads as follows:

“* * * jn Case of stock held or acquired by, or held by or through an interposed person for a business competitor, or a person who is interested in a corporation who is a business competitor, or one who holds stock in said competitive business, he or it, must own not less than twenty-five per cent of stock issued and outstanding for a period of six months before he, or it, can demand the rights and privileges as set forth in this paragraph.” (Italics ours.)

The proposition cannot be sustained. Among other things, the contention is based upon the false premise that the Union Construction Co. Inc., in which relator is a stockholder, is engaged in competition with respondent corporation. T. A. Pittman admitted, when placed on the stand under cross-examination, that he formed Riverside Realty 'Co. Inc. as a holding company for the real estate owned by him and that it is not engaged in the contracting business. Several times in his testimony, when asked the specific question, he remarks that, whenever any houses or other buildings were erected for the respondent corporation, the contracting work was perforfned by Pittman Bros. Construction Co. or one of the other kindred corporations, as Riverside Realty Co. Inc. “they are not in the contracting business”. Union Construction Company, Inc., which had just been organized when relator had requested T. A. Pittman to let him view the books of respondent corporation, is undeniably engaged solely in the contracting business. And this, despite the contention of counsel for respondent that, because the company constructed and owns the building where it maintains its office and rents out the upper floor, it is engaged in a business in competition with Riverside Realty Co. Inc.

- Counsel further assert that the judge erred in admitting parol testimony offered by relator to show that Union Construction Co. Inc. was not a competitor of respondent corporation, maintaining that the decision should be governed exclusively by the respective .charters of the corporations which show that the objects and purposes of the business of each are of a similar nature. But this postulation is not well conceived as it overlooks the provisions of the statute upon which counsel rely. Section 38 of the Act does not deny to a stockholder, who is interested in a corporation which may be.authorized to engage in a competitive business, the right of examining the books of the corporation where he does not own 25% of the stock. It withholds the privilege of examination only where the stockholder is interested in a corporation that is actually engaged in a competitive business. The argument of counsel (that the stated corporate objects and purposes control) would lead to many absurd consequences for it is common knowledge that the objects and purposes of the business, as outlined in the charters of most corporations, cover a broad field so as to .enable the company to engage in various enterprises if time and circumstances make it necessary or desirable. Thus, under such a ruling, one holding stock in a finance company might be denied the right to look at the books because he owned a share of stock in a brickyard. And so on. In the instant case, it suffices to say that the objects and purposes of the respondent corporation and the Union Construction Co. Inc. are of such scope that either corporation could engage in several types of business. Hence, we hold that parol evidence was properly admitted to determine whether Union Construction Co. Inc. and the respondent corporation are business competitors and that this evidence reveals that they are not.

Finally, respondents contend that the motives of relator are improper and unreasonable; that relator and his brothers have entered into a conspiracy to force T. A. Pittman to settle with them and that they devised and schemed to wreck his business by causing numerous employees to strike.

1 An examination of the evidence has satisfied us that this contention is wholly without merit. In truth, it appears to us that T. A. Pittman has been most unreasonable in denying relator. access to the books of the corporation and we regard his explanation of his own conduct as somewhat ludicrous. He says that he was perfectly will-, ing to let relator look at .the books but that he did not want an-auditor to examine them as he was afraid that relator would learn some of the business secrets of the corporation. When pressed for an answer as to the type of secret about which he did not wish to give information, he made the fatuous excuse that he did not want relator to ascertain his method of doing business with the Federal Housing Authority and he would have it appear he has devised some secret and intricate method by which he borrows money from this governmental agency.

Nor does Pittman’s charge that his brothers have conspired against him impress us in any degree. The facts make it clear that he has, from the beginning, operated the Pittman enterprises as he pleased; that his brothers, who are all minority stockholders, know nothing of the financial end of the business and that they have, for many years, had complete confidence in his judg-' ment. However, this abiding faith in him has been shaken — whether rightly. or wrongly is not the question — and relator, as a minority stockholder, is merely requesting that his brother permit him to see the records containing an account of his stewardship. In these circumstances, , it affords no valid ground for T. A. Pittman to attempt^to deny the right secured to relator by law to inspect the books (see Orlando v. Reliance Homestead Ass’n, 171 La. 1027, 132 So. 777) on the plea that- his brothers are conspiring against him by acting in concert in leaving their employment with Pittman enterprises, forming a company of their own and taking with them many of the key men and valued employees of the. business. There can be no doubt of the brothers’ right to sever their connection with Pittman enterprises, to engage in business for themselves (competitive or otherwise) and to hire such employees as they see fit. The fact that they have done so does not render their motives impure nor does it make relator’s plea improper or unreasonable, as we are convinced that his demand for an examination of the records is to ascertain the manner in which the business has been administered ■■ by his brother and to discover the t,rue value of his stock.

The judgment appealed from is affirmed.

O’NIELL, C. J., and HAMITER, J., taking no part.

MOISE, J., recused.

       The paragraph referred to grants to every stockholder, who shall have been the holder of record of at least 2% of all out- ' standing shares of the corporation for at least 6 months, the right to examine any and all of the hooks and records of the corporation and to make extracts therefrom for any proper and reasonable purpose.


source: Caselaw Access Project

author: PONDER, Justice.

license: Public Domain

text:
    214 La. 81
    STATE v. CRITTENDEN.
    No. 38976.
    Supreme Court of Louisiana.
    June 15, 1948.

      J. S. Piclcett, of Many, and Jas. W. Jones, Jr., of Natchitoches, for appellant.
    Bolivar E. Kemp, Jr., Arty. Gen., M. E. Culligan, Asst. Atty. Gen., J. Reuel Boone, Dist. Atty., of Many, and J. R. Ferguson, Asst. Dist. Atty., of Leesville, for appellee.
   PONDER, Justice.

The defendant was tried for manslaughter and convicted of negligent homicide. He'was sentenced to serve three years in the penitentiary. He appeals from the conviction and sentence.

Counsel for the defendant urges on this appeal thirteen bills of exceptions taken during the course of the trial. Two of the bills of exceptions are leveled at the admission of an oral and a written confession.

The defendant and the deceased resided in a house located in a rural section of Sabine Parish. The deceased disappeared in the latter part of April, 1947. The defendant continued to reside in the house alone for four or five months after the disappearance of the deceased, during which time he informed various persons that the deceased was visiting relatives. The defendant then moved away and the house remained vacant until November 30, 1947, on which date the body of the deceased was found in a crude grave, about fifty yards back of the house, covered with logs, brush and other trash. The defendant was apprehended a few hours after the body of the deceased was discovered and was confined to jail. On December 3, 1947, the defendant made a statement or confession regarding the killing to a number of officers and, approximately two hours thereafter, the defendant made substantially the same statement of confession in the office of the district attorney, in the presence of officers, which was reduced to writing.

The trial judge, during the course of the trial and out of the presence of the jury, heard evidence touching the admissibility of the confessions and arrived at the conclusion that the confessions were admissible. The confessions were admitted in evidence over the objection of counsel for the accused and formal bills of exceptions were reserved.

Counsel for the defendant contends that the confessions were not freely and voluntarily made by the accused and for that reason they were not admissible.

The defendant was subjected to repeated cross-examinations over a period erf three days by the local officers and members of the highway police. He was taken from the jail to the morgue to view the body of the deceased. He was taken to the grave, from which the body had been removed, and shoved into it by one of the officers. Pie was taken to the funeral of the deceased. One of the officers related to the accused the circumstances of a case where a person had escaped the electric chair by making a confession. One of the officers testified, page ninety-one of the transcript, as follows: “My line of questioning had to do with telling him that it would be much lighter on him if he told the truth.” On one occasion, while he was being interrogated, a person, attempting to remove.his coat, said, “Let me. get at him,” referring to the defendant. On another occasion an officer struck him in the face. The testimony of the defendant is to the effect that he was roughly treated and offered inducements to make the confessions. We are not predicating our decision on his testimony, but the facts above stated are borne out by the testimony of the officers.

Under the provisions of Article 451 and 452 of the Code of Criminal Procedure, a confession is not admissible if it is made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises and a person under arrest cannot be subjected to any treatment designed by effect on body or mind to compel a confession of crime. Our Constitution prohibits the compelling of an accused to give evidence against himself, the use of any treatment designed by effect on body or mind to compel a confession from an accused under arrest, and the use of a confession against an accused person unless it is freely and voluntarily made.

In the case of State v. Roberson, 157 La. 974, 103 So. 283, the conviction and sentence were set aside because a confession was admitted which had been obtained by repeated and unreasonable cross-examinations. This Court stated therein that any persistent effort to obtain a confession from a person in custody by repeatedly subjecting him to cross-examinations after he has refused to make such statement is treatment designed by effect on body or mind to compel a confession of crime.

This Court has repeatedly held that a confession secured from an accused, while he is under arrest, through inducement offered by an officer leading an accused to believe that he will receive a lighter penalty is not admissible. State v. Henry, 196 La, 217, 198 So. 910; State v. Ellis, 207 La. 812, 22 So.2d 181.

The accused made the confessions after being subjected to repeated cross-examinations over a period of three days; after an inducement had been offered him by an officer; and after he was subjecte<l to harsh treatment. Under such circumstances, the admission of the confessions was in violation of the articles of the Code of Criminal Procedure and the contitutional mandate prohibiting the use of confessions that have not been freely and voluntarily made. Moreover, if we entertained any doubt as to the admissibility of the confessions, such must be resolved in favor of the accused because it is incumbent on the State to affirmatively show that they were free and voluntary as a condition precedent to their admission. Article 451 of the Code of Criminal Procedure; State v. Henry, supra; and State v. Ross, 212 La. 405, 31 So.2d 842.

Counsel for the State contends that the statements made by the accused, now under consideration, were exculpatory statements and that the rules applying to confessions do not apply to admissions not involving the existence of a criminal intent. In support of his contention he cites Article 454 of the Code of Criminal Procedure and the case of State v. Oteri, 128 La. 939, 55 So. 582, Ann.Cas.1912C, 878. The holding in the Oteri case is not in point because the statement under consideration therein was made in explanation of the accused’s possession of some articles of jewelry of small value.

In the present case, the accused stated in the confessions that the deceased died as a result from a blow on the neck delivered by the accused after he had been assaulted by the deceased. The accused related how he had buried the body .and concealed its whereabouts by informing various partie.s that the deceased was visiting relatives. At the time that the confessions were made the only evidence pointing to the defendant’s guilt was the fact that the body was found in a grave covered with rubbish in close proximity to the house where the defendant had resided, and the further fact that the deceased had disappeared while the defendant was living with him. The confessions reflect the existence of a criminal intent and they cannot be regarded as mere exculpatory statements. ■

Plaving arrived at the conclusion that the conviction and sentence must be set aside because of the erroneous admission of the confessions, it is unnecessary to review the other bills of exceptions.

For the reasons assigned, the conviction and sentence are set aside and the case is remanded to the lower court for a new trial, to be proceeded with according to law and the views herein expressed.

O’NIELL, C. J., and HAMITER, J., do not take part.


author: McCALEB, Justice.

text:
    214 La. 89
    SLATON v. KING.
    No. 38614.
    Supreme Court of Louisiana.
    June 1, 1948.
    Rehearing Denied July 2, 1948.

      McBride & Goff, of Ruston, for defendant-appellant.
    Dhu Thompson, of Monroe, and James T. Spencer, of Farmerville, for plaintiff-respondent.
   McCALEB, Justice.

Plaintiff, Malcolm D. Slaton, prior to his marriage to defendant, Willa Lee Slaton King, on AugustTOth, 1935, was the holder and owner of a certain mortgage note made and signed by one Green Rowden, dated December 31st, 1931, for the principal sum of $537.60. This note was identified with an act of mortgage executed by said Row-den, wherein he hypothecated, as security for its payment, 40 acres of land owned by him in Lincoln Parish. On November 27th, 1937, during the existence of the marriage between plaintiff and defendant, Rowden conveyed and delivered to plaintiff, by authentic act, the 40 acres of land for and in consideration of the “return and cancellation of Mortgage note for the sum of $537.60, dated Dec. 26, 1931, and due October 15th 1932 * * Subsequently, on September 26th, 1941, defendant secured a divorce from plaintiff.

On December 26th,' 1945, plaintiff filed the present suit alleging that he is the sole owner of the 40 acre tract and that defendant is slandering his title, having executed oil and gas leases to The California Company covering an undivided interest in the land. Defendant appeared in due course and filed certain technical pleadings, which were overruled, and thereafter converted the suit into a petitory action, insofar as an undivided one-half ownership of the land is concerned, by 'claiming that the property belonged to the community which formerly existed between plaintiff and herself. After a trial, defendant’s contention was sustained by the District Court but, on rehearing, the judge reversed his position and entered a decree in plaintiff’s favor, as prayed for. Defendant then prosecuted an appeal to the Court of Appeal for the Second Circuit where the judgment of the district court was affirmed. 30 So.2d 867. Later, on defendant’s application, we granted a writ of review and the matter has been submitted for our determination.

The main question for decision is whether the 40 acre tract, which was acquired during the marriage between the parties, became part of the community then existing between them or is the separate property of plaintiff. The Court of Appeal found that, since the acquisition was by a dation en paiement from Rowden in consideration of the cancellation of a debt which he admittedly owed to plaintiff prior to the marriage, the land became part of plaintiff’s separate estate. The court recognized the doctrine, well established in our jurisprudence, see Joffrion v. Bordelon, 14 La.Ann. 618; Durham v. Williams, 32 La.Ann. 162; Succession of Marrick, 35 La.Ann. 296; Moore v. Stancel, 36 La.Ann. 819; Heirs of Murphy v. Jurey, 39 La.Ann. 785, 2 So. 575; Hero v. Bloch, 44 La.Ann. 1032, 11 So. 821; O’Neil v. Walker, 45 La.Ann. 609, 615, 12 So. 872; Hall v. Toussaint, 52 La.Ann. 1763, 28 So. 304; Succession of Muller, 106 La. 89, 30 So. 329; Succession of Burke, 107 La. 82, 31 So. 391; Sharp v. Zeller, 110 La. 61, 34 So. 129; McWilliams v. Stair, 128 La. 752, 55 So. 343; Succession of Andrus, 131 La. 940, 60 So. 623; Succession of Goll, 156 La. 910, 101 So. 263; Succession of Watkins, 156 La. 1000, 101 So. 395; Kittredge v. Grau, 158 La. 154, 103 So. 723; Schoeffner v. Schoeffner, 163 La. 142, 111 So. 655; Succession of Bell, 194 La. 274, 193 So. 645 and Sanderson v. Frost, 198 La. 295, 3 So.2d 626, that acquisitions of real property in the name of the husband during the marriage creates a presumption in favor of the community, juris et dc jure, unless there is contained in the deed the double declaration that the property is acquired with the separate funds of the htisband and for his separate estate. But the court declined to apply the rule, reasoning that it pertained only to purchases of property by the husband and not to an acquisition >by dation en paiement.

This resolution was erroneous in our view. The first sentence of Article 2402 of the Civil Code reads:

“This partnership or community consists of the profits of all the effects of which the husband has the administration and enjoyment, either of right or in fact, of the produce of the reciprocal industry and labor of both husband and wife, and of the estate which they may acquire during the marriage, either by donations made jointly to them both, or by purchase, or in any other similar way, even although the purchase be only in the name of one of the two and not of both, because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase.” (Italics ours.)

Hence, it is readily seen from the applicable article of the Code that it is effective not only as to property purchased during the marriage but also as to property acquired “in any other similar way”.

That an acquisition of land by dation en paiement is similar to a purchase cannot be gainsaid. Indeed, the act of giving in payment is .unquestionably a species of sale.. The articles of the Code which deal with 'the giving in payment (Chapter 13, Articles 2655 through 2659) are contained in Title VII of Book III of the Civil Code which treats of the contract of sale and all of the elements necessary to an ordinary contract of sale, i. e., an agreement for the obj'ect and the price thereof, are essential to a dation en paiement. The latter, in addition, requires delivery. (Article 2656.)

The only exception to the rule that real property acquired by the husband during the marriage is conclusively presumed to be community, in the absence of his double declaration in the act that he has purchased with his separate funds and he intends it for his separate estate, is in cases where he exchanges his separate property- for other immovables. In such instances, it has been said:

“Property so acquired during marriage, in the name of either spouse, is substituted for the property given in exchange for it, and has the same status or ownership.” See Kittredge v. Grau, supra, on rehearing, 158 La. 165 at page 171, 103 So. 727 at page 729.

Counsel for plaintiff maintain ■ that a dation en paiement is in the same category as an exchange and that not only should it be excluded from the rule (respecting acquisitions of immovables in the name of the husband during the marriage) but that the court has already concluded that it is to be excepted. In support of the proposition, counsel cite, Savenat v. LeBreton, 1 La. 520; Gonor v. Gonor, 11 Rob. 526; Lawson v. Ripley, 17 La. 238; Dominguez v. Lee, 17 La. 295; Comeau v. Fontenot, 19 La. 406; Com’rs of Exchange and Banking Co. v. Bein, 12 Rob. 578; Stroud v. Humble, 2 La.Ann. 930; Metcalf v. Clark, 8 La.Ann. 286; Wilson v. Hendry, 12 La.Ann. 244 and Succession of Pinard v. Holten, 30 La.Ann. 167.

The contention is not well founded. All of the cases cited by counsel, with the exception of Savanet v. LeBreton and Comeau v. Fontenot, involved acquisitions in the name of the wife during the marriage and are authority only for the rule that, whereas acquisitions of this sort are presumed to fall into the community, the wife has the right to rebut the presumption by offering evidence to show that the acquisition was made with her separate funds and for her separate estate. That doctrine, of course, as above pointed out, is inapplicable to acquisitions by the husband.

Counsel rely heavily upon the case of Savanet v. LeBreton which involved a conveyance of real estate by an aunt of the wife to the husband'in payment on account of a sum of money which was due the wife from the succession of her father and mother. There, the court held that, despite the Spanish law (which is rigorous in its provisions that all acquisitions of property during the marriage fall into the community), the wife was entitled to judgment recognizing the property as paraphernal because the law applied only to acquisitions made by purchase “and does not necessarily include things which may be received by either of them (the spouses) in payment of money due to them on their separate and individual rights”. It is said that this ruling warrants the conclusion that an exception is made in cases involving a dation en paiement even though the acquisition is by the husband. In our view, however, the Savanet case cannot sustain the proposition.

In Comeau v. Fontenot, supra, also cited by counsel, the wife sued the husband for a separation of property and sought to have a slave, which had been received by the husband in discharge of the sum of $7S0 (to which the wife was entitled by inheritance), recognized as her separate property. The court, relying on the decision in Brown v. Cobb, 10 La. 172, held that the slave, though bought with the funds of the wife, belonged to the community. and distinguished Savanet v. Le Breton on the ground that, there, while the acquisition of the property by dation en paiement was in the name of the husband, he had received the property as agent for his wife.

Again, in Kittredge v. Grau, supra, the court on rehearing discussed Savanet v. LeBreton and concluded that the, decision was correct because it there appeared that the husband acknowledged in the dation en paiement from the wife’s aunt that he was receiving the lot as part of his wife’s paraphernal estate. Thus, the Savanet case may be said to be authority, only for the rule that a wife who acquires property during the marriage, either in her own name or through an agent, may always show that it was obtained with her separate funds and for her separate estate for the purpose of rebutting the presumption that all acquisitions during the marriage are for the community.

We are of the opinion that the acquisition of the property during the marriage without a declaration in the deed by plaintiff not only that the property was acquired with his separate funds but that it was for his separate estate conclusively precludes him from contending that, the land does not belong to the community. Of course, since the record is clear that the consideration given for the land was the separate property of plaintiff, - the community estate is indebted to his separate estate to that extent and the right is reserved to him to recover this indebtedness from the community.

The plaintiff maintains, finally, that defendant is estopped from asserting that plaintiff is not the sole owner of the tract inasmuch as she, in her petition for divorce, alleged that no community property had been acquired during the marriage.

This contention is without merit. There is nothing in the record to exhibit that plaintiff was misled or damaged by reason of the allegation contained in the divorce petition and, without such a showing, the plea of estoppel is not'well taken. Farley et al. v. Frost-Johnson Lumber Co., 133 La. 497, 63 So. 122, L.R.A.1915A 200, Ann.Cas.1915C, 717; Tyler v. Walt et al., 184 La. 659, 167 So. 182; Sanderson v. Frost, supra; Robinson v. Hunt et al., 211 La. 1019, 31 So.2d 197 and Janney v. Calmes, 212 La. 756, 33 So.2d 510.

For the reasons assigned, the judgments of the Court of Appeal and the District Court are annulled and set aside. It is now ordered that there be judgment herein in favor of Willa Lee Slaton King and against Malcolm D. Slaton, rejecting his demand and that Willa Lee Slaton King be and she is recognized as owner of an undivided one-half i}/¿) interest in South West Quarter of South East Quarter (SWy4 of SE14) Section Fifteen (15), Township Eighteen* (18) North, Range Two (2) West, containing 40 acres, more or less, Lincoln Parish, Louisiana, together with all appurtenances and rights thereto appertaining and all improvements thereon.”

All costs are to be borne by Malcolm D. Slaton.

       Compare cases where property is acquired in the name of the wife. In such instances, it is presumed to be community but the presumption is subject to rebuttal. See Kittredge v. Grau, supra, and cases there cited. .

       In Sharp v. Zeller, supra [110 La. 61, 34 So. 133], the basis for the requirement of a double declaration in the deed is stated thus: “The reason for this, doubtless, is to bind the husband irrevocably, so that he should be unable to subsequently abandon the property to the community in order to exercise upon it, as a creditor, a right of priority for the replacement of the sum expended for its purchase. A mere statement by the husband that the payment price of the property was made with his separate funds is not inconsistent with the fact that the ownership was intended to be-vested in the community. It would simply place of record a declaration in aid of a claim for reimbursement.”

       In interpreting the' scope of the clause “or in any other simiiar' way” as used in Article 2402, the Court has said that it is broad enough to include property acquired by the prescription of thirty years adverse possession. See Crouch v. Richardson, 158 La. 822, 104 So. 728.


author:
BOND, Justice.
      McCALEB, Justice McCALEB, Justice.

text:
    214 La. 100
    STATE v. TRAHAN et al.
    No. 38792.
    Supreme Court of Louisiana.
    Feb. 16, 1948.
    On Rehearing June 1, 1948.
    Rehearing Denied July 2, 1948.

      J. Minos Simon, of Lafayette, for relators.
    Tate & Fusilier, of Ville Platte, amicus curiae.
    Fred S. LeBlanc, Atty. Gen., M. E. Culligan, Asst. Atty. Gen., N. Smith Hoff-pauir, Dist. Atty., of Crowley, and Edward Meaux, Asst. Dist. Atty., of Lafayette, for respondent.
   BOND, Justice.

Adam Trahan, the owner and operator of a restaurant in Lafayette Parish, and Arista Jackson, his employee, were charged with having violated Act No. 18 of 1886 (The Sunday Law), by opening the establishment on Sunday and selling a glass of wine to a customer. The trial court overruled a motion by defendants to quash the indictment on the ground that Act No. 18 of 1886 was violative of Article 3, Section 16, and Article 1, Section 2, of the State Constitution, and violative of the Fourteenth Amendment of the Federal Constitution. During the trial, it was proved that a sandwich had been sold to the customer with the glass of wine. After hearing all the evidence, the trial court found the defendants guilty and sentenced Adam Trahan to imprisonment in the parish jail and fined Arista Jackson. We granted a writ of certiorari on the application of the defendants and the case is now before us for review.

The pertinent provisions of Act No. 18 of 1886 read:

“ * * * all stores, shops, saloons, and all places of public business, which are or may be licensed under the law of the State of Louisiana, or under any parochial or municipal law or ordinance, and all plantation stores, are hereby required to be closed at twelve o’clock on Saturday nights, and to remain closed continuously for twenty-four (24) hours, during which period of time it shall not be lawful for the proprietors thereof to give, trade, barter, exchange or sell any of the stock or any article of merchandise kept in any such establishment.
* * * * * *
“the provisions of this act shall not apply to newspaper offices, printing offices, bookstores, drug stores, apothecary shops, undertaker shops, public and private markets, bakeries, dairies, livery stables, railroads, whether steam or horse, hotels, hoarding houses, steamboats and other vessels, warehouses for receiving and forwarding freights, restauM'ants, telegraph offices and theatres, or any place of amusement, providing no intoxicating liquors are sold in the premises; * * * provided, that nothing in this act shall be construed so as to allow hotels or boarding houses to sell or dispose of alcoholic liquors, except zvine for table use on Sundays’, * * (Italics ours.)

The defendants attack the constitutionality of Act No. 18 of 1886 on several grounds. One of the grounds of attack is that the act is discriminatory, arbitrary, and an unreasonable exercise of police power, because it permits hotels and boarding houses to sell wine for table use on Sunday while it denies that privilege to the operators of restaurants.

It is a well-established principle of constitutional law that the Legislature may determine what are the proper occasions and subjects for the exercise of police power, and it is not within the province of the courts to decide as to the expediency of a measure enacted thereunder. City of DeRidder v. Mangano, 186 La. 129, 171 So. 826; Board of Barber Examiners of La. v. Parker, 190 La. 214, 182 So. 485. The courts will interfere only when the restrictions imposed have no real or substantial relation to the public interest in the matter regulated. State v. Legendre, 138 La. 154, 70 So. 70, L.R.A.1916B, 1270; City of Alexandria v. Hall, 171 La. 595, 131 So. 722; State v. Chisesi, 187 La. 675, 175 So. 453.

Both the establishment of a compulsory day of rest and the regulation of the sale of intoxicating liquors have been held to come within the scope of the police power of the state because they relate to the public health, morals, or order. State ex rel. Walker v. Judge, Sec. A, Crim.Dist.Ct., Orleans Parish, 39 La.Ann. 132, 1 So. 437; State ex rel. Galle v. City of New Orleans, 113 La. 371, 36 So. 999, 67 L.R.A. 70, 2 Ann.Cas. 92. It has also been held that under the police power the sale of liquor may be prohibited on Sunday for the preservation of public order. State v. Bott, 31 La.Ann. 663, 33 Am.Rep. 224; Minden v. Silverstein and Dittmer, 36 La.Ann. 912.

Therefore, the sole question under this phase of the attack on Act No. 18 of 1886 is " whether the prohibition against selling wine for table use in a restaurant on Sunday bears a real and substantial relation to the purpose of protecting the health, morals, and good order of the public.

In State ex rel. Walker v. Judge, supra, Act No. 18 of 1886 was held to- be constitutional, but in that case the court did not consider the question presented here. In fact, the instant case is the first in which the unreasonableness of the prohibition against serving wine for table use in a restaurant on Sunday has been brought before this court.

It is obvious from the restriction of the privilege of selling wine for table use on Sunday to hotels and boarding houses and the denial of that privilege to restaurants, that this legislation has no relation to the health, morals, or safety of the public or of the operators of restaurants. There can be no reason of public policy for preventing proprietors of restaurants from selling wine with meals on Sunday, while the operators of hotels and boarding houses are allowed to do that very act. A possible reason for this discrimination may have existed in 1886, when the statute was passed, because in general at that time only those persons living in hotels and boarding houses ate there, while restaurants were patronized by the general public. Today, however, the general public patronizes hotels as much as, if not more than, the persons who live in them and it is becoming quite common for boarding houses to serve meals to the public. Therefore, there is no way under present conditions to distinguish the circumstances-surrounding the serving of wine with a meal in a restaurant from the serving of wine with a meal in a hotel or a boarding house. To be constitutional a statute must not make or countenance any discrimination between persons pursuing the same calling. Special privileges are always obnoxious, and unjust discriminations between persons or classes are still more so. We, therefore, conclude that Act No. 18 of ,1886 is discriminatory insofar as it applies to the defendants, and the motion to quash should be maintained. This conclusion makes it unnecessary for us to consider the other grounds of unconstitutionality raised by the defendants.

For the reasons assigned, the convictions and sentences appealed from are annulled and set aside; and the prosecutions are dismissed.

McCALEB and HAWTHORNE, JJ., dissent.

O’NIELL, C. J., absent.

McCALEB, Justice

(dissenting).

I find it difficult to receive that the exception contained in Act No. 18 of 1886, permitting hotels and boarding houses to provide wine for table use on Sundays, is an arbitrary or unreasonable discrimination against restaurants in general.

The test to be employed in determining whether a statutory discrimination is unreasonable has been laid down by the Supreme Court of the United States and is stated in Metropolitan Casualty Ins. Co. v. Brownell, 294 U.S. 580, 55 S.Ct. 538, 540, 79 L.Ed. 1070, as follows:

“It is a salutary principle of judicial decision, long emphasized and followed by this Court, that the burden of establishing the unconstitutionality of a statute rests on him who assails it, and that courts may not declare a legislative discrimination invalid unless, viewed in the light of facts made known or generally assumed, it is of such a character as to preclude the assumption that the classification rests upon some rational basis within the knowledge and experience of the legislators. A statutory discrimination will not be set aside as the denial of equ-al protection of the laws if any state of facts reasonably may be conceived to justify it. Rast v. Van Deman & L. Co., 240 U.S. 342, 36 S.Ct. 370, 357, 60 L.Ed. 679 [687], L.R.A. 1917A, 421, Ann.Cas.1917B, 455; State Board Tax Com’rs. of Indiana v. Jackson, 283 U.S. 527, 51 S.Ct. 540, 537, 75 L.Ed. 1248 [1255], 73 A.L.R. 1464 [75 A.L.R. 1536].” (Italics mine).

There cannot be any doubt whatever that a reasonable state of facts existed in 1886 which justified the Legislature in making an exception in favor of hotels and boarding houses. Many people of this state,.during the nineteenth and the early part of this century, were accustomed to have wine served with their meals. Obviously, the Legislature recognized this and felt that it would be unfair to deprive those persons residing in hotels and boarding houses of indulging in this custom. Hence the exemption.

The majority opinion concedes that, at the time the statute was passed, there was “A possible reason for this discrimination * * * because in general at that time only those persons living in hotels and boarding houses ate there, while restaurants were patronized by the general public.” But the majority go on to say that times have changed; that people presently residing in hotels and boarding houses patronize restaurants; that it is quite common for hotel restaurants and boarding houses to serve meals to the public and that, therefore, there is no longer any reason for the discrimination against restaurants. In other words, the majority hold that, whereas the legislation did not violate the equal protection clause of the Federal Constitution at the time of its enactment, it is no longer invulnerable to attack because, due to alteration of conditions in the hotel and restaurant business, the exception respecting hotels and boarding houses arbitrarily discriminates against restaurants.

This reasoning is novel to say the least. It makes the constitutionality of a statute rest, not upon the facts and conditions presented to the Legislature at the time of the enactment, but upon circumstances existing, or said to exist, at the time the statute is assailed. Indeed, under such a view, the court actually arrogates to itself the right to repeal a law under the guise of constitutional construction — for by a finding (or rather an assumption as no evidence has been submitted to sustain it) of a changed state of affairs in the hotel and restaurant business, it perceives unreasonable classification and discrimination which strikes the law with nullity. Thus, the judiciary is exercising a function residing only in the lawmaker.

I respectfully dissent.

On Rehearing.

McCALEB, Justice.

Relators were charged with having violated the Sunday Law in that they sold a glass of wine in the establishment operated by Adam Trahan, proprietor. They filed a motion to quash the bill of information and argued, among other things, that Act No. 18 of 1886 deprived them of the equal protection of the laws (as alleged restaurant operators) because it prohibited the sale of all intoxicating liquors on Sundays in restaurants, whereas, it permitted hotels and boarding houses to serve wine for table use. It is claimed that this proviso in favor of hotels and boarding houses is an unreasonable and arbitrary discrimination against restaurants.

After further study, we are convinced that the contention is not meritorious. The argument that arbitrary and unreasonable discrimination exists is founded on the false assumption that the proviso in favor of hotels and boarding houses deprives re-lators of a right which they otherwise would have had.

It was recognized, in our original opinion, that the right of the State to pass a Sunday Law is not open to question. It was also conceded that the Legislature, in the exercise of its police power, had the authority to except certain businesses from the law under such conditions as it deemed proper. Hence, the validity of the provisions contained in Section 3 excepting book stores, drug stores, hotels, boarding houses, restaurants and certain other enterprises from the Act cannot seriously be doubted. And, surely, since restaurants, book stores and other excepted establishments are given the privilege of doing business on Sunday, the Legislature had the right to limit the scope of their operations by forbidding them to sell intoxicating liquors on their premises as, here again, the regulation of the traffic in intoxicating liquors is a proper subject for the legislative branch of the government.

But it is said that, because the Legislature further ordained that hotels and restaurants would be permitted to serve wine for table use on Sundays, such a proviso is an unlawful discrimination against restaurants because, due to a change in conditions, hotels and boarding houses are not operated as they were in 1886, and that, today, hotel and boarding house restaurants cater to the public generally to the same extent as other restaurants.

This postulation requires, of course, the concession that we judicially know, as a fact, that all hotels and boarding houses are operating an ordinary restaurant business and that they do not restrict their operations to their own clientele. We have no hesitancy in assuming the truth of the statement in the case of hotels but we are not at all sure that modern boarding houses open their doors to the public at meal times.

But, even if we assume that all hotel and boarding house restaurants presently cater to the public generally, this does not warrant the conclusion that the change in conditions has brought about an arbitrary or unjustifiable discrimination against restaurants as there may still be good reason, because of the nature of the hotel and boarding house business, the investment therein, etc., for the legislature to place them in a separate and distinct class in regulating the operation of business which may be pursued on Sundays. And valid ground for the exemption is always presumed to exist in the absence of a showing that no reasonable state of facts can be conceived to justify it. Metropolitan Casualty Ins. Co. v. Brownell, 294 U.S. 580, 55 S.Ct. 538, 79 L.Ed. 1070, and cases there cited.

The objection of relators is not that all restaurants are not treated the same. It is that hotels and boarding houses are doing a restaurant business and that the statute affords them special privileges denied to restaurants in general. If this be so, it may be that hotels, which operate their restaurants as separate units, can no longer be considered beyond the pale of the Sunday law insofar as the service of wine for table use is concerned. But this circumstance does not render the Act invalid or deny relators the equal protection of the law.

Act No. 18 of 1886 withstood attack, similar to that presented here, in State ex rel. Walker v. Judge, 39 La.Ann. 132, 1 So. 437. After a reconsideration, we see no reason to disturb the ruling in that case.

Relators also contend in their motion to quash that Act No. 18 of 1886 is violative of Article 29 of the Constitution of 1879 and Section 16 of Article 3 of the Constitution of 1921 in that it embraces more than one object and that its title is not indicative of, nor does it express, the contents of the body of the law.

We find no substance in this argument. The law has but one object — the suspension of the operation of all places of public business on the Sabbath — and that object is clearly expressed in the title. All of the provisions contained in the Act, respecting the exemption of certain places of business and the prohibition of the sale of intoxicating liquor by the excepted establishments, are germane and kindred to the main aim thereof and arc not to be regarded as separate and distinct objects.

Under a demurrer filed to the bill of information, relator, Jackson, claims that, since he is charged as clerk and not as proprietor of the restaurant, no offense is stated against him as the penal provisions of Act No. 18 of 1886 apply only to proprietors of places of business. And both relators further contend in the ^emurrer that no offense is charged because Act No. 18 of 1886 does not prohibit the sale of wine for table use in a restaurant on Sunday.

This latter contention is, of course, devoid of merit as the Act clearly prohibits the sale of intoxicating liquor in a restaurant on Sunday.

However, we think that the contention of Jackson, who is charged as an employee of the establishment, is well founded. Section 1 of the statute declares, in substance, that all stores, shops, etc., licensed under the law are required to be closed from midnight Saturday for twenty-four hours “during which period of time it shall not be lawful for the proprietors thereof” to trade, bargain or sell any of the stock or merchandise kept in the establishment. Section 2 provides that “whosoever shall violate the provisions of this Act” shall be guilty of a misdemeanor. Obviously, the word “whosoever” refers to the word “proprietor” contained in Section 1. There is no provision of the law which applies to a clerk or employee of the establishment.

For the foregoing reasons, our original decree is reinstated insofar as it annuls the conviction and sentence of relator, Arista Jackson. In all other respects, the decree is set aside and it is now ordered that the writs herein granted to Adam Trahan are discharged at his cost. The right to apply for a rehearing is reserved to Adam Tra-han and the State is accorded a similar privilege regarding our ruling in respect to Arista Jackson.

HAMITER, J., concurs in the decree.

       This statute was held constitutional in all respects in State ex rel. Walker v. Judge, 39 La.Ann. 132, 1 So. 437, notwithstanding the inadvertent statement to the contrary in tlxe majority opinion. In the Walker ease, the statute was assailed as unconstitutional on numerous grounds. In outlining some of the objections (see page 137 of 39 La.Ann., page 441 of 1 So.) the court remarks:
      “(3) The other constitutional inhibitions invoked may be grouped and considered together.
      “They are — First, the remaining clauses of the Fourteenth Amendment, viz: ‘nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of its laws”
      And, in discussing the question of discrimination, the court observes (see pages 141 and 142 of 39 La.Ann., page 444 of 1 So.):
      “It only remains to consider the objection urged against the law on the ground of inequality, because of the numerous exceptions contained in the act.
      “The objection has not the slightest force. The law is not unequal in any constitutional sense. No person in the state is permitted to pursue any of the prohibited callings on Sunday. Every person is at liberty to pursue those which are excepted. The same discretion which authorized the legislature to determine that the public health, welfare, and convenience required the adoption of the general rule equally authorized it to exempt from its operation certain specified callings, on the ground that the public welfare and convenience would be more hindered than advanced by the suspension of such callings.
      “It is not for us to control the lawmaking power in such a ease, or to require it to fit its laws to a Procrustean bed of our own construction.
      *******
      “Thus, on correct principles, sustained by overwhelming authority, we reach the conclusion that Act No. 18 of 1886, known as the ‘Sunday Law,’ is a legitimate exercise of the police power of the state, not violative of any inhibition contained in the constitutions of the United States and of the state of Louisiana.”