author: SARTAIN, Judge.

text:
    Richard P. GUIDRY, Plaintiff-Appellant, v. Charles William ROBERTS et al., Defendants-Appellees.
    No. 10693.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    Rehearing Denied April 15, 1976.
    Writ Granted May 27, 1976.

      David W. Robinson, Baton Rouge, for plaintiff-appellant.
    Wm. J. Guste, Jr., Atty. Gen., Kenneth Dejean, and Steve George, Asst. Attys. Gen., Baton Rouge, for defendants-appel-lees.
    Before SARTAIN, LOTTINGER and EDWARDS, JJ.
   SARTAIN, Judge.

Plaintiff instituted this suit seeking a declaration of invalidity and an injunction against the enforcement of the Louisiana Election Campaign Finance Disclosure Act. Acts 1975 No. 718, R.S. 18:1481-1493. He attacked the legislation, alleging violation of various provisions of the Louisiana Constitution of 1974, including infringement on certain rights contained in Article I, and usurpation of powers vested in other branches of government by the legislature as condemned by Article II. The trial court rejected the contentions of invalidity and plaintiff has appealed therefrom.

It is asserted that the plaintiff-appellant does not have standing to question the validity of the act.

The legislation in question purports to require the reporting of information regarding contributions and expenditures pertinent to campaigns for elective state and local public office, decries certain activities as illegal campaign practices, condemns violation of the act to be a misdemeanor, and establishes the machinery and procedure for administration and enforcement of the provisions of the act.

R.S. 18:1486C(2) requires the reporting of the full name and address of each person making one or more contributions to a political committee or candidate which singly or in the aggregate exceeds the reporting amount specified in R.S. 18:1482 (11). Section H of R.S. 18:1486 requires that the reports shall be made available for public inspection.

Appellant alleged and testified to being a citizen and taxpayer who had been and was active in the financing of political campaigns. He stated that the fact of disclosure of such a role prevented him from contributing in excess of the reporting amount to any candidate he favored.

C.C.P. 1872 grants to those who are affected by a statute the right to seek a judicial determination of its validity, stating:

“A person interested under a deed, will, written contract or other writing constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction on validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.”

Standing is a concept utilized to determine if a party is sufficiently affected so as to ensure that a justiciable controversy is presented to the court. The requirement of standing is satisfied if it can be said that the plaintiff has a legally protectible and tangible interest at stake in the litigation. See, Hainkel v. Henry, 313 So.2d 577 (La.1975) ; Abbott v. Parker, 259 La. 279, 249 So.2d 908 (1971).

We find that the plaintiff falls within the class of individuals affected by the statute. His right to participate in the political process through the utilization of property as well as through his vote is a legally protectible and tangible interest which is, and will continue to be, affected by Act 718 of 1975. Therefore, he has standing to contest the validity of the disclosure provisions of the act.

The appellees argue further, however, that even if the appellant has standing to controvert the disclosure provisions of the act as being in violation of the guarantees of personal liberty contained in Article I of our constitution, his status as a mere campaign contributor and citizen does not establish standing to question the validity of the administrative and enforcement provisions. This contention is without merit for two reasons. First, the administrative provisions are the instrumentality through which the disclosure provisions are made operative. As such, they affect the appellant just as the disclosure provisions do. It is untenable to say that one has standing to attack the substantive provisions of a statute but does not have standing to controvert the procedural provisions effectuating the substantive provisions. Considering a similar contention the court said in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976):

“Party litigants with sufficient concrete interests at stake may have standing to raise constitutional questions of separation of powers with respect to an agency designated to adjudicate their rights.”

Second, as we shall subsequently amplify, the disclosure provisions are not severable from the administrative and enforcement provisions. Standing to contest one facet of an unseverable legislative act, of necessity, constitutes standing to contest all facets of the act. State ex rel. Kemp v. City of Baton Rouge, 215 La. 315, 40 So.2d 477 (1949). We, therefore, find that the plaintiff-appellant has standing to prosecute this action.

Since we find merit in the allegations that the administrative and enforcement provisions of Act 718 of 1975 are unconstitutional, we do not consider the other assertions of the appellant.

The following is a survey of the pertinent provisions of Act 718.

The reports required by the act are to be filed with reporting officials. R.S. 18:1483 (A). The reporting official with respect to candidates for the Senate and political committees supporting only such candidates is designated to be the secretary of the Senate. The clerk of the House of Representatives is designated as the reporting official for candidates for the House and political committees supporting only such candidates. The reporting official for all other candidates, political committees and other persons required to file reports is the legislative auditor. R.S. 18:1482(12).

After receipt the reports are to be referred to supervisory committees for review. The supervisory committee with respect to candidates for the Senate is designated to consist of the secretary of the Senate, the legislative auditor and the executive director of the legislative council. The committee supervising candidates for the House of Representatives consists of the clerk of the House, the legislative auditor and the executive director of the legislative council. The committee supervising all other candidates and other persons required to report consists of all the persons occupying the above named positions. R.S. 18:1492(A) (1).

If, after review of a report or upon sworn complaint, the appropriate supervisory committee determines there is substantial reason to believe the act has been violated, it shall make a thorough investigation. If the results indicate a knowing and willful violation has occurred, the committee is directed to forward the matter to the attorney general. The attorney general shall make such investigation as is deemed necessary; and if he determines there is substantial reason to believe a violation has occurred, he shall forward the matter to the appropriate district attorney who is directed to proceed with such criminal action as is justified. R.S. 18:1492(B) (1).

The second paragraph of R.S. 18:1492 (B)(1) specifically prohibits a district attorney from instituting a criminal action under the act except on the basis of information forwarded to him.

The executive director of the legislative council is appointed by the legislative council which consists of seventeen members of the legislature and the lieutenant governor. He may not be a member of the legislature, and he serves at the pleasure of the legislative council. See R.S. 24:401; 404.

The clerk of the House of Representatives and the secretary of the Senate are clerical officers of the respective houses of the legislature. Article 3, § 7(C), Louisiana Constitution of 1974. According to testimony adduced in this matter, each is elected by the house he serves.

The office of legislative auditor is created by the Constitution. Article III, § 11, Louisiana Constitution (1974). The person holding that office is elected by the legislature and serves at its pleasure. Article XIV, § 27(C), Louisiana Constitution (1974); Article VI, § 26(2), Louisiana Constitution (1921).

Article II, §§ 1 and 2, Louisiana Constitution (1974) provide:

“Section 1. The powers of government of the state are divided into three separate branches: legislative, executive, and judicial.
“Section 2. Except as otherwise provided by this constitution, no one of these branches, nor any person holding office in one of them, shall exercise power belonging to either of the others.”

The history of Article II, §§ 1 and 2, Louisiana Constitution (1921), which are substantially the same as the current provisions, was set forth in Saint v. Allen, 169 La. 1046, 126 So. 548 (1930), where the court said:

“To illustrate, we quote from The Federalist, vol. 1, No. 51 (Hamilton or Madison) pp. 353, 354, viz.:
“ ‘In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own, and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. * * *
“ ‘It is equally evident that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the Legislature in this particular, their independence in every other would be merely nominal.’
“We find also in the same volume of The Federalist, p. 340, No. 48, the intention of Madison, viz.:
“ ‘As the legislative department alone has access to the pockets of the people, and has in some constitutions full discretion, and in all a prevailing influence over the pecuniary rewards of those who fill the other departments, a dependence is thus created in the latter, which gives still greater facility to encroachments of the former.’
“And in No. 47, at page 338 of the same volume, we find Madison’s admonition, with regard to the preservation of the independence of each department of government, viz.:
“ ‘It is equally evident that, in reference to each other, neither of them ought to possess, directly or indirectly, an overruling influence in the administration of their respective powers. It will not be denied that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.’
“In No. 47, on pages 330 and 332 of the same volume, Madison refers to Montesquieu as the author of this doctrine of the independence of each department of government, viz.:
“ ‘The oracle who is always consulted and cited on this subject is the celebrated Montesquieu. If he be not the author of this invaluable precept in the science of politics, he has the merit at least of displaying and recommending it most effectually to the attention of mankind. Let us endeavor, in the first place, to ascertain his meaning on this point. * * *
“ ‘The reasons on which Montesquieu grounds his maxim are a further demonstration of his meaning, “When the legislative and executive powers are united in the same person or body,” says he, “there can be no liberty, because apprehensions may arise lest the same monarch or senate should enact tyrannical laws to execute them in a tyrannical manner.” * * * Some of these reasons are more fully explained in other passages; but, briefly stated as they are here, they sufficiently establish the meaning which we have put on this celebrated maxim of this celebrated author.’
“The excerpt quoted from Montesquieu by Madison appears in the Analysis by D’Alembert of The Spirit of Laws, vol. 1, Book 11, chap. 11, page 174.
“According to article 18 of the Civil Code, the universal and most effectual way of finding the true meaning of a law, if its expressions are doubtful, is to consider the reason and spirit of it, and the cause which induced its adoption. Hence, for an accurate understanding of this article in the Constitution of Louisiana, and its applicability to the case before us, we must trace the history of the article, and consider the reason which induced its authors to write it—the object which they intended to accomplish, and the evils which they intended to avoid.
“The importance of sections 1 and 2 of article 2 of the Constitution of Louisiana is manifested in some measure by their being the whole article; which, in substance, appeared in every Constitution Louisiana has had, except that of 1868, which is generally referred to as the Carpet Bag Constitution. Louisiana’s first Constitution, adopted in 1812, was virtually copied from the Constitution of Kentucky. In her first Constitution, that of 1792, and in her Constitution of 1799, article 1 was as follows:
“ ‘Section 1. The powers of the government of the State of Kentucky shall be divided into three distinct departments, and each of them be confided to a separate body of magistracy, to wit: those which are legislative, to one; those which are executive, to another; and those which are judiciary, to another.
“ ‘Section 2. No person or collection of persons, being of one of those departments, shall exercise any power properly belonging to either of the others; except in the instances hereafter expressly directed or permitted.’
“That language was copied literally as article 1 of Louisiana’s Constitution of 1812; and, by the jurisprudence of the state of Kentucky, particularly the opinions rendered in Commissioners of Sinking Fund v. George, 104 Ky. 260, 47 S.W. 779, 84 Am.St.Rep. 454, and Pratt v. Breckinridge, 112 Ky. 1, 65 S.W. 136, 66 S.W. 405, we are reminded that article 1 of the first Constitution of Kentucky, which afterwards became article 1 of the first Constitution of Louisiana, was written by Thomas Jefferson himself. Having returned from France, and having been appointed Secretary of State, on being informed that the state of Virginia was about to permit Kentucky to become a separate state, and that Kentucky was about to adopt a Constitution, he advised that the first safeguard to bé put into the Kentucky Constitution should be to confine absolutely and exclusively to each one of the three departments of government the powers belonging to it alone. He went so far as to say that there was danger in the Federal Constitution in that the clauses defining the powers of each department of the government were not a sufficient safeguard against an exercise by one department of powers properly belonging .to another; and so he wrote the provision which he recommended, and which became article 1 of the Constitution of Kentucky, and sent it to the Convention, in session at Dan-ville; and, when the delegates learned who was the author of the article, says Judge Du Relie, ‘the respect of Kentucky for the great name of Jefferson carried it through, and it was at once adopted.’
“It is observed in the course of the opinion which we have referred to, in the Kentucky case, that the Constitution of the United States merely provides, in one article (article 1, § 1), that ‘all legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives’; and it provides, in another article (article 2, § 1), that the executive power shall be vested in the President of the United States; and it provides in another article (article 3, § 1), that the judicial power shall be vested in the courts. Commenting thereon, the author of the opinion (104 Ky. 260, 47 S.W. 779, page 785, 84 Am.St.Rep. 454) says:
“ ‘That is the extent of the departmental division under the federal constitution. The Kentucky constitution goes much further; and, had Mr. Jefferson been in America at the time of the adoption of the federal constitution, that instrument would, in all probability, have contained the enactment which we find only in the constitution of Kentucky, with its three distinct provisions: First, that the government shall be divided into three distinct departments ; second, that each of them shall be confided to a separate body of magistracy; and, third, that no person or collection of persons shall exercise any power properly belonging to either of the others, except in the instances thereinafter expressly directed or permitted.’
“We note that Judge Du Relie, in his opinion in the Kentucky case, characterized those provisions as ‘the enactment,’ which he found only in the Kentucky Constitution. Judge Du Relle’s opinion, when rendered, was not authority, except for the historical information which it contained, because the majority of the members of the court did not then agree with him that the Kentucky statute in question was unconstitutional; but Judge Du Relle’s opinion afterwards became authority, for it was adopted as the prevailing opinion in Pratt v. Breckin-ridge, 112 Ky. 1, 65 S.W. 136, 66 S.W. 405; where it was held that the Legislature had not, under its authority to create -a public office, the power to elect or appoint the officer or officers to fill it.
“The ‘Constitution or Form of Government for the Conmmonwealth of Massachusetts,’ as it was originally styled, and as adopted in 1780, was written by John Adams, substantially as adopted; and it has ever since remained the Constitution of that state. In article 30 of part the first, the safeguard, of which section 2 of article 2 of Louisiana’s Constitution is intended to be the counterpart, is expressed thus:
“ ‘30. In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.’
“That lofty idea—to the end that it may be a government of laws and not of men—was in the mind of the statesmen who afterwards wrote the Constitution of the United States, although the idea was not specifically expressed. John Marshall, in Marbury v. Madison, in 1803 (1 Cranch, 163, 2 L.Ed. 69), said:
“ ‘The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.’
“And we may say, as appropriately, that the government of Louisiana will certainly cease to deserve this high appellation—a government of laws and not of men—if the laws furnish no remedy for a violation of the very article of the Constitution which that appellation comes from.”

We are confronted with the question of whether the persons designated to administer and enforce this act may properly do so considering their affiliation with the legislative branch.

As discussed above, each reporting official and the supervisory committees consists of the persons holding designated positions within the legislative branch. Do these positions constitute “offices” within the meaning of the constitution so as to prevent those holding them from exercising executive or judicial functions? As we noted earlier, the clerk of the House and the secretary of the Senate are declared to be clerical officers by the constitution, the position of legislative auditor is created by the constitution and the executive director of the legislative counsel is a position created by statute.

A state office has been defined simply as one created by the constitution or the legislature. State v. Titus, 152 La. 1011, 95 So. 106 (1922); State v. Rogers, 138 La. 867, 70 So. 863 (1916). See, State ex rel. Porterie v. Jones, 181 La. 390, 159 So. 594 (1935). We cite with approval the definition found in Cherry v. Hall, 270 So.2d 626 (La.App.2d Cir. 1972), which states:

“In certain aspects or for particular purposes, one may or may not be considered a public officer or a public figure, but, where the Constitution or an act of the Legislature creates a position, fixes the compensation therefor, and prescribes the duties thereof, and these duties, not occasional or temporary in character but of a continuing and permanent nature, pertain to the public, such position or employment is an office, and the one who occupies it is an officer.”

The considerations cited by the court in Saint v. Allen, supra, require that a broad definition be given the term “office” where utilized in the context of separation of powers. The definition found in Cherry, supra, is of sufficient breadth and is also sufficiently rigorous to set a readily ascertainable standard. Applying this standard to the various positions enumerated in Act 718 of 1975, we find that each satisfies the definition and is thus an office within the meaning of Article II, § 2 of our current constitution.

We first consider if the functions, of the supervisory committees constitute an exercise of the judicial power. Article V, § 26(B), La.Const. (1974), provides:

“Except as otherwise provided by this constitution, a district attorney, or his designated assistant, shall have charge of every criminal prosecution by the state in his district, be the representative of the state before the grand jury in his district, and be the legal advisor to the grand jury. He shall perform other duties provided by law.” (Emphasis added).

Even before the district attorneys were expressly granted the power to control criminal prosecutions it was held that they were constitutionally vested with the primary authority to institute and prosecute criminal actions. Kemp v. Stanley, 204 La. 110, 15 So.2d 1 (1943). The measure of the power of a district attorney to control a criminal prosecution is indicated by Article IV, § 8, which prohibits the attorney general, the chief legal officer of the state, from instituting, prosecuting or intervening in a criminal action except for cause when authorized by a court having original jurisdiction. It is clear that a district attorney has the sole authority to determine when and against whom a criminal charge shall be instituted subject only to the power vested in the attorney general to supercede that authority upon a showing of cause.

The concluding paragraph of R.S. 18:-1492(B)(1) states:

“Criminal actions shall be initiated under the provisions of this Part only by the district attorney and only on the basis of information forwarded to him by a supervisory committee through the attorney general, or directly, as provided in this Part, except in the case of campaigns for district attorney, in which case criminal actions shall be initiated under the provisions of this Part only by the attorney general as provided in this Part and only on the basis of information forwarded to him by a supervisory committee as provided in this Part.”

The preceding paragraph of this section makes review of the required reports discretionary and requires an investigation of a complaint or possible violation disclosed by a report where there is substantial reason to believe a violation has occurred. After investigation the committee shall forward the results to the attorney general if the investigation indicates a knowing and willful violation has occurred. If the attorney general determines there is substantial reason to believe a violation has occurred he shall forward the information to the appropriate district attorney for the institution of criminal proceedings.

The clear intent of R.S. 18:1492(B) (1), as evidenced by its language, is to preclude a district attorney from instituting a criminal action thereunder until after the committee and the attorney general have determined there is cause to proceed. A district attorney does not have the authority to proceed under the act until authorized by others.

The power to institute a criminal action includes necessarily the authority to determine who such actions shall be instituted against. This power belongs solely to the district attorney who is part of the judicial branch. Thus, Act 718 of 1975 constitutes an attempt to transfer the exercise of powers belonging to the judicial branch to persons holding office in the legislative and executive branches and is unconstitutional to the extent that- it authorizes such exercise of power. See, Kemp v. Stanley, supra.

Next, we consider whether the reporting officials and supervisory committees, who consist solely of persons holding office in the legislative branch, may administer this law aside from the provisions pertinent to the institution of criminal actions.

Act 718 of 1975 purports to affect all campaigns for state and local elections. The ministerial duties regarding receipt, public inspection and forwarding of campaign reports are placed in reporting officials. Even without the objectionable provisions struck down above the supervisory committees would retain the authority to review reports and investigate possible violations.

It has been recognized that the administration of laws is an executive function. See, State ex rel. Porterie v. Smith, 184 La. 263, 166 So. 72 (1935). More specifically, it has been recognized that administration of a law similar in many respects to that before us is an executive function. Buckley v. Valeo, supra. Article IV, § 1 (A), La.Const. (1974), provides:

“The executive branch shall consist of the governor, lieutenant governor, secretary of state, attorney general, treasurer, commissioner of agriculture, commissioner of insurance, superintendent of education, commissioner of elections, and all other executive offices, agencies, and instrumentalities of the state. (Emphasis added).

We can only construe the emphasized language to mean that an officer, agency or instrumentality exercising an executive function is included within the executive branch. Administration or execution of a law is an executive function and those who administer or execute laws are part of the executive branch. If exercise of a particular function is sufficient to bring an instrumentality within the executive branch it is apparent that the function is a power belonging to the executive branch.

We therefore find that the reporting officials and supervisory committees are exercising an executive power by administering the provisions of Act 718. Since we have already found these to be persons holding office in the legislative branch, their duties and functions under the act are in violation af Article 2, § 2 of our constitution. Further, it would be violative of Article 2, § 2, of our constitution for the legislature to designate any position or appoint any individual over which it exercises control and authority to any board, commission, agency or position which is to perform any function or exercise any authority over either the executive or judicial branches of state government.

Of equal significance is the fact that in the enactment of Act 718, the Legislature by designating the composition of the supervisory committees in the manner set out above in effect reserved unto itself the power of appointment. This the legislature can not do.

It appears that considerable portions of Act 718 are modeled after the Federal Election Campaign Act (1971, as amended by 1974). 2 U.S.C.A. § 431 et seq. In the federal act, there is created the Federal Election Commission (F.E.C.). This commission is composed of eight members, viz.: the Secretary of the Senate and the Clerk of the House, as ex-officio and without the right to vote, two members appointed by the President Pro-tempore of the Senate, two members appointed by the Speaker of the House, and two members appointed by the President of the United States, all to be confirmed by majority vote of both houses of the Congress. In Buckley v. Valeo, supra, the United States Supreme Court held that the appointment of members to the F.E.C. by either house of the Congress violated the appointments clause of the federal constitution. U.S. Constitution, Art. II, Sec. 2, cl. 2. Our legislature fell into the same error.

Article 4, § 5 (H) of the Louisiana Constitution of 1974, provides in pertinent part:

“(1) The governor shall appoint, subject to confirmation by the Senate, the head of each department in the executive branch whose election or appointment is not provided by this constitution and the members of each board and commission in the executive branch whose election or appointment is not provided by this constitution or by law.”

Thus, it is clear that our present constitution vests appointing authority in the governor in all cases where such appointment is not provided for in the constitution itself or “by law.”

“By law” is a limiting factor on the power of appointment. It is not, however, a blanket loophole whereby the power of appointment may be completely usurped. The Legislature in the creation of a board or commission to oversee the function of an agency may prescribe that a certain appointee (s) be from a designated group (s) or otherwise possessed of certain qualifications so as to bring to that board or agency a given viewpoint (s) or expertise as will aid the board or commission in the discharge of the purpose for which the agency was created. In the instant matter it is not contended that such is the case.

We now turn to the question of whether the unconstitutional portions of this act are severable from the remaining provisions. Act 718 of 1975 contains a severability clause which states:

“If any provision or item of this Act or the application thereof is held invalid, such invalidity shall not affect other provisions, items or applications of this Act which can be given effect without the invalid provisions, items or applications, and to this end the provisions of this Act are hereby declared severable.”

We have found the legislative appointment of the reporting officials and supervisory committees to be invalid as well as the role of the supervisory committees in instituting criminal proceedings. We must consider whether the remainder of the act can reasonably function without the offending provisions, or, if not, must the entire act fall. In Roy v. Edwards, 294 So.2d 507 (La.1974), the court, quoting with approval from Gaudet v. Economical Supermarket, Inc., 237 La. 1082, 112 So.2d 720 (1959), said:

“Of course, it is well established that the unconstitutionality of a portion of a statute (or ordinance) does not necessarily invalidate the whole, particularly where there is a severability clause as here. But it is equally well settled that such rule applies only when the inconstitutional part is independent of and separable from the rest. If it is so interrelated and connected with the other portions as to raise the presumption that the legislative body would not have enacted one part without the remainder, then the entire enactment is null.”

It is apparent that the act before us cannot function without the supervisory committees and reporting officials. The required reports are meaningless without someone to receive and review them. To require such reports under the circumstances would ask candidates and others to do a vain and useless thing. We can not say that the legislature would have enacted this legislation without the offending portions. These offending portions are so interrelated as to clearly justify the presumption that the legislature would not have enacted this legislation without them.

For the reasons assigned above, Act 718 of 1975 is declared null and the enforcement of its provisions should be prohibited and enjoined. Accordingly, the judgment appealed is reversed and this matter is remanded for the purpose of having the district court issue appropriate injunctions enjoining its enforcement.

All such costs as are permitted by law are assessed against the defendants.

REVERSED AND REMANDED.

      . This sequence is altered if a campaign for the office of attorney general or district attorney is involved; however, the difference is not material here.

      . We expressly do not rule that administration of an act with a legislative purpose is an executive function. The legislature may always perform those acts necessary or helpful to its function. See, e. g. R.S. 24:401; 404. However, the act before us obviously does not have as its purpose the furtherance of the legislative function.

      . For an excellent discussion on separation of powers and more particularly “extra-legislative control statutes” in the federal scheme, see Watson, Congress Steps Out; A Look at Congressional Control of the Executive, 63 Cal.L.R. 983.


source: Caselaw Access Project

author: EDWARDS, Judge.

license: Public Domain

text:
    Emma Marie Autin MATHERNE v. Moise MATHERNE.
    No. 10644.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.

      Robert G. Creely, Gretna, for appellant.
    C. Alan Lasseigne, Thibodaux, for appel-lee.
    Before SARTAIN, ELLIS and EDWARDS, JJ.
   EDWARDS, Judge.

Appellee, Emma Marie Autin Matherne, obtained a default judgment of separation from her husband, Moise Matherne, on February 6, 1975 (judgment signed on February 24, 1975). The judgment further condemned the husband to pay alimony and child support in the amount of $650.00 per month. No appeal was taken, and the judgment of separation is final.

On June 23, 1975 Moise Matherne filed a rule for decrease in alimony. Following the hearing on the rule on July 8, 1975, the trial court ordered the alimony and child support payments decreased to $425.00 per month; and this judgment was signed on July 9, 1975. Moise Matherne petitioned for appeal on August 8, 1975, and the appeal bond was filed on September 25, 1975.

The delay for taking an appeal from a judgment awarding custody or alimony is 30 days. La.Code Civ.P. arts. 3942 and 3943. This delay likewise applies to judgments modifying or terminating custody or alimony. Malone v. Malone, 265 So.2d 255 (La.App. 1st Cir. 1972), affirmed, 282 So.2d 119 (La.1973).

Notice of date of signing of judgment was requested by counsel for appellant pursuant to La.Code Civ.P. art. 1913. Notice was mailed by the clerk to counsel on July 9, 1975. The delay for applying for a new trial began to run the following day, July 10, 1975. Saturday, July 12 and Sunday, July 13 were legal holidays; therefore, the last day for timely application for a new trial was July 18, 1975. No application was made, and the delay for taking the appeal began the next day, July 19, 1975. This delay period expired on August 17, 1975. Since the appeal bond was not filed until September 25, 1975, the appeal was not perfected timely.

For the reasons hereinabove assigned, there will be judgment in favor of appel-lee, Emma Marie Autin Matherne, and against appellant, Moise Matherne, dismissing this appeal. All costs shall be paid by appellant.

APPEAL DISMISSED.


author: REDMANN, Judge.

text:
    CIRCLE FOOD STORES, INC. v. Clarice Eva GABRIEL.
    No. 7158.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1976.
    Lillian M. Cohen, Dorothy F. Waldrup, Charles R. Maloney, New Orleans, for third-party plaintiff-appellee.

      Joseph Neves Marcal, III, New Orleans, for third-party defendant-appellant.
    Before REDMANN, STOULIG and BEER, JJ.
   REDMANN, Judge.

This appeal questions the sufficiency .of the proof that third-party defendant Cordier was a co-embezzler with third-party plaintiff Gabriel and therefore liable to Gabriel for half, C.C. 2103-2104, of the $34,720 for which Gabriel settled the main demand against herself for $114,800 missing from Circle Food Store’s cash room, where Gabriel was manager and Cordier assistant manager.

Cordier admits betting on horse races for a partnership of Gabriel and herself, which started with $100 capital, in amounts ranging into thousands of dollars over a period of a few months, up until she left her employment with the store. She also bought race horses for a total cash outlay of $7,500 during her employment, and after her employment repaired her home for $4,190 which she got from Gabriel from the cash room. But, says Cordier, she and Gabriel won at betting, and she bought the horses with winnings, and the $4,190 was to have come from their winnings which she left behind in the cash room when she quit.

Gabriel testified that, after a period of winning, losses occurred and Cordier revealed to her that the store’s money had been used and there was a resultant shortage. Gabriel testified that Cordier continued to make bets in an effort to regain the losses, and that shortly after Cordier quit the store Gabriel tallied the cash shortage at $114,000 (which she says Cordier at the time agreed was the amount used for betting) . Gabriel continued to conceal the $114,000 shortage for five months after Cordier left, using a false deposit-slip system she says Cordier explained to her.

Gabriel’s testimony, with the corroborating circumstances recited, sufficed to prove Cordier’s co-embezzlement. Cordier errs in arguing that very exacting proof requirements apply to this case, as if it were a criminal case or one seeking to annul or contradict a written contract on grounds of fraud. The proof burden here is the simple civil one “by simple presumptions or by legal presumptions, or by other evidence. The maxim that fraud is not to be presumed, means no more than that it is not to be imputed without legal evidence.” C.C. 1848. Cordier and her benefited husband are liable.

Appellants also argue that the claim was prescribed because filed against them long after a year after the discovery by plaintiff of the shortage. We agree with the trial judge’s analysis that Gabriel and Cordier were liable to plaintiff in soli-do and—assuming that one year prescription applies—suit against Gabriel interrupted prescription of appellants’ obligation to plaintiff to which C.C. 2161(3) subrogates Gabriel.

Finally, appellants question refusal of a request for jury trial filed the day before trial in an “answer and reconventional demand” to a much earlier amended answer by Gabriel relative to plaintiff-Gabriel issues. Pretermitting the argument over timeliness of the request in respect to that amended answer, we note that appellants are not entitled to insist that plaintiff-Gabriel issues be tried at all, much less by jury. Insofar as those issues might also be Gabriel-Cordier issues, they had to have been raised in Gabriel-Cordier pleadings, in respect to which the request was untimely under C.C.P. 1732. Appellants might have been entitled to jury trial of their recon-ventional demand if it were to be tried; but the judge properly refused to try that day-before-trial demand, dismissing it as of non-suit, because it would have “retard[ed] the progress of the principal action,” C.C. P. 1033.

Affirmed.


author: BEER, Judge.

text:
    Joseph PIERI v. Jake DiMAGGIO.
    No. 7341.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1976.
    Robert J. Fineran, New Orleans, for plaintiff-appellee.
    Peter A. Winkler, Jr., New Orleans, for defendant-appellant. ■
    Before REDMANN, MORIAL and BEER, JJ.
   BEER, Judge.

Plaintiff-appellee, Joseph Pieri (hereafter, Pieri), and defendant-appellant, Jake DiMaggio (hereafter DiMaggio), entered into a verbal agreement whereby Pieri, a tile subcontractor, would supply and install certain tile and related materials in the home being constructed by and for DiMaggio. After the work commenced the original contract price of $5,400 was increased to either $7,300 or $7,500 primarily because DiMaggio opted for more expensive tiles. Thereafter, a dispute arose between the parties with Pieri maintaining that the contract price was further increased by the inclusion of certain items not covered by the last-cited quotation and DiMaggio rejecting this claim. Suit then followed with Pieri seeking an additional payment of $1,000. DiMaggio answered with a general denial and, by reconventional demand, sought $7,000 for damages resulting from allegedly faulty work performed by Pieri. By supplemental answer, DiMaggio pled accord and satisfaction. Pieri denied the reconventional demand.

The case was tried on two separate days. In early June, about two weeks after the first day of trial on May 21, 1974, Pieri sought to amend his claim upward in the additional amount of $200. A copy of the amended petition was sent to DiMaggio’s counsel on June 7. The court, however, reserved ruling on allowing the amendment in order to determine if DiMaggio’s defense was inhibited thereby. At the trial’s conclusion, after the second day of trial on June 11, the amendment was allowed. Judgment in favor of Pieri on his principal demand, as amended (a total of $1,200), was rendered and DiMaggio’s claim in reconvention was dismissed. DiMaggio perfects this appeal challenging the correctness of these rulings and further urges error by the trial court in maintaining Pieri’s lien by reason of his alleged failure to file notice of lis pendens in the mortgage office within one year of recordation of the lien.

The testimony of the litigating parties was in conflict on the question of whether certain work done by Pieri was or was not included in the original price of $7,300 or $7,500. They are the only witnesses who testified with respect to this issue.

Throughout his testimony, Pieri insisted that the following work was not included in his original quotation:

(A) Reconditioning and installation of marble mantlepieces selected by DiMaggio.

(B) Cost and installation of 150 pieces of specially ordered black and gold tile.

(C) Installation of extra under bedding (to build up the den floor so that its tiles were level with those installed in the adjacent kitchen.)

DiMaggio admits that he agreed to certain “extras,” namely the tile lining above the sunken bath, and a separate $300 charge for the mantles. He denies, however, a separate charge for installation of same and maintains that this cost was included in the original quotation. He further denies any discussion about extra charge for the under bedding.

The trial court resolved all disputes in favor of Pieri. We find no manifest error despite able counsel’s vigorous urging of the defense of accord and satisfaction, relying upon the printed notation on the reverse of one of the checks paid to Pieri. That notation provides:

“This check is in payment in full to date of all labor and of all materials furnished the real property described as 7160 Thornley Drive. By endorsement, payee acknowledges receipt and waives his lien and his right to file lien against said property to the extent of this payment.” (Emphasis ours.)

For there to be estoppel by accord and satisfaction, there must be: (A) an unliquidated or disputed claim; (B) tender by the debtor; (C) acceptance of the tender by the creditor. Charles X. Miller v. Oak Builders, Inc., 306 So.2d 449 (La.App. 4th Cir. 1975). Furthermore, the creditor must understand that if payment is accepted, the claim will be deemed to have been paid in full. Antoine v. Elder Realty Co., 255 So.2d 625 (La.App. 3rd Cir. 1971).

DiMaggio testified that “the homestead insisted that the release be put on the back of' every check ...” and Pieri testified that he presented invoices periodically while his work was continuing and drew payments for the invoices through out the term of the job. After each invoice was issued, he was paid the amount of that particular invoice. Thus, there existed a factual issue as to whether the parties seriously regarded the cited language as having any binding effect upon them. In view of prior actions, the notations apparently did no more than indicate that the entire amount then due had been paid. The language of the endorsement further provided that the payee simply “waives his lien ... to the extent of this payment.” After the last payment, a balance of $1,000 (or $1,200) remained unpaid. In light of the parties’ prior conduct and the. language of the endorsement itself, we find no error in the trial court’s apparent resolution of this issue. Hospital Corp. of the Sisters of St. Joseph v. Cunningham, 261 So.2d 318 (La.App. 1st Cir. 1972).

DiMaggio further urges that Pieri’s supplemental petition was untimely. LSA-C.C.P. Article 1151 permits amendment, after answer, at the trial court’s discretion and the ruling is reversible only if an abuse of discretion is found. Brooks v. Fondren, 199 So.2d 588 (La.App. 3rd Cir. 1967). We find no such abuse.

DiMaggio’s reconventional demand is based upon damages resulting from an alleged leak at the site of his son’s second floor bathroom which he claims was the result of faulty caulking by Pieri and his workmen. The leak caused the sheetrock in the ceiling of the room below to become wet and it disengaged at the seams.

In response to this, Pieri admits being notified of a leak. He states that some cracks in caulking were found to have developed due to the expansion and contraction of the cement base upon which the tiles were set. The cracks were located where the tile met the tub and he repaired same by applying a rubber base silicone. At the same time he straightened the faucet in the tub.

DiMaggio apparently had other workmen break into the bathroom wall prior to Pieri’s being called to cope with the problem. Although Pieri took DiMaggio at his word that there was a leak, he did not observe any water stains on the ceiling. He did advise DiMaggio that he would return if the problem was still unresolved after the application of the rubber base silicone. No such call came even though there were other instances when problems arose and Pieri repaired same at his cost.

Pieri also observed that the roof above the living room was not originally flashed and that when flashing was installed, it was nevertheless improperly accomplished so that water continued to leak in the section of the house where the ceiling was damaged.

DiMaggio ackowledged that there was originally a failure to install flashing (as noted by Pieri)—but insists that this situation was corrected and that there were no leaks in the living room area from that original source following installation of the sheetrock ceiling.

In support of the alleged cost of ceiling repair, DiMaggio offered certain cancelled checks mostly payable to “cash” which bore no clear relationship to the allegedly necessary work except by reason of his own testimony to that effect.

There was no other testimony or any other evidence introduced to substantiate the alleged expenses of the ceiling repair nor were any paid bills offered in support thereof. The trial court rejected the re-conventional demand and its finding of fact on this issue does not appear to be manifestly erroneous even though we believe there is architectural plausibility for DiMaggio’s basic contention regarding the possible source of the leak.

Finally, DiMaggio urges that Pieri failed to file notice of lis pendens within a year of recordation of his claim in accordance with LSA-R.S. 9:4812 causing the lien to lapse. Robins v. Pavone, 224 So.2d 541 (La.App. 4th Cir. 1969) and Lafayette Woodworks v. Boudreaux, 255 So.2d 176 (La.App. 1st Cir. 1971). There is no evi-dentiary supported challenge regarding timely recordation. No testimony was adduced on this point though Pieri, in his brief, asserts the contrary.

Since no evidence is in the record and no demand is before us, we have no basis upon which to consider this issue.

Accordingly, the judgment of the Civil District Court for the Parish of Orleans is affirmed at appellant’s cost.

AFFIRMED.

       TMs was based upon a contention that the $7,500 price was verbally reduced to $7,300 if prompt payment had, as was not the case, been forthcoming.


author: ELLIS, Judge.

text:
    John L. CARROLL v. The TRAVELERS INSURANCE COMPANY et al.
    No. 10690.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    See also, La.App., 331 So.2d 63.
    France W. Watts, III, Franklinton, for appellant.
    Brad Lewis and John W. Anthony, Bo-galusa, for appellees.
    Before SARTAIN, ELLIS and EDWARDS, JJ.
   ELLIS, Judge.

This case arises out of an automobile accident which happened in Bogalusa, Louisiana, on the evening of May 2, 1973.

Plaintiff John L. Carroll testified that he was driving west at 30 miles per hour when an automobile suddenly backed into the street ahead of him. He stated that he did not have time to avoid running into it.

Defendant Tommy Stogner, and his two guest passengers, testified that they looked before backing into the street and saw plaintiff’s car over 600 feet away. Mr. Stogner backed out and had gone forward 15 or 20 feet when his automobile was struck from the rear by Mr. Carroll’s truck.

This suit was brought by Mr. Carroll against Mr. Stogner and The Travelers Insurance Company, his insurer. After trial on the merits, judgment was rendered in favor of plaintiff for special damages of $2,479.55 and $7,500.00 in general damages. Defendants have appealed.

It is claimed that the trial judge erred in finding Mr. Stogner negligent, in failing to find Mr. Carroll contributorily negligent, and in awarding excessive general damages.

After hearing the witnesses, the trial judge accepted plaintiff’s version of the accident, and we find no manifest error in his determination that plaintiff was unable to avoid the accident when defendant backed out into the street immediately in front of him. Defendants’ arguments to the contrary are based on testimony which was rejected by the trial judge.

Plaintiff injured his mouth and low back. He was hospitalized for five days with an acute lumbosacral sprain and contusions of the face. The latter injury cleared up within a week. Plaintiff was treated by his personal physician until June 18, 1973,- when he was discharged to return to work. He has performed heavy labor since that time, but continued to complain of difficulty with his back as of the time of trial in December, 1974.

An orthopedist who examined him in August, 1973, felt he was not able to work. The doctor wished, to perform further diagnostic tests at that time, but plaintiff did not have these done because he could not afford them.

Another orthopedist, who examined plaintiff shortly before the trial, found no objective symptoms to explain plaintiff’s complaints, and was of the opinion that plaintiff was suffering no disability.

The trial judge awarded $7,500.00 to plaintiff for his injuries. We find this to be high, but if plaintiff was still suffering pain in December, 1974, the award is within the very broad discretion now accorded trial judges in such matters.

The judgment appealed from is affirmed, at defendants’ cost.

AFFIRMED.


text:
    INSURED LLOYDS INSURANCE COMPANY v. Tommy STOGNER et al.
    No. 10691.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    France W. Watts, III, Franklinton, for appellant.
    R. Bradley Lewis and John W. Anthony, Bogalusa, for appellees.
    Before SARTAIN, ELLIS and EDWARDS, JJ.
   ELLIS, Judge.

This is a companion case to Carroll v. Travelers Insurance Company, 331 So.2d 62 (La.App. 1 Cir. 1976). Plaintiff is Insured Lloyds Insurance Company, the collision insurer of John L. Carroll, and defendants are Tommy Stogner and The Travelers Insurance Company. Defendants have appealed from an adverse judgment in the court below, in which plaintiff as subrogee of John L. Carroll was awarded the $303.01 expended by it under its collision coverage for Mr. Carroll.

For reasons assigned in Carroll v. Travelers Insurance Company, supra, the judgment appealed from is affirmed, at defendants’ cost.

AFFIRMED.


author: COVINGTON, Judge:

text:
    Eli JACKSON et al. v. PARISH OF EAST BATON ROUGE et al.
    No. 10652.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    John R. Sheppard, Baton Rouge, for appellants.
    Steve LeBlanc, Baton Rouge, for appel-lees.
    Before LANDRY, COVINGTON and PONDER, JJ.
   COVINGTON, Judge:

This is an appeal by the Parish of East Baton Rouge from an award for personal injuries sustained at approximately 8:00 a. m. on or about March 21, 1973, when Prin-cetta Jackson, minor daughter of the plaintiffs, Eli Jackson and Mary C. Jackson, stepped on a manhole cover in Baton Rouge and it became displaced, causing her to fall several feet into the hole.

The judgment does not allude to the suit by the mother; therefore, it is considered as properly dismissed. However, judgment was rendered in favor of the father in the amount of $734.30, representing the proven special damages, and in favor of the minor “against defendants’’, in the amount of $2,000.00 for her injuries. Of course, the latter part of the judgment should have been in favor of Eli Jackson, as the administrator of the estate of said minor, Princetta Jackson. As amended, we affirm. The City of Baton Rouge and the Department of Public Works were also made defendants. Those parties neither appealed nor answered the . appeal. The judgment is final as to them.

The minor, then 14 years of age, and her cousin, Debra Jackson, who also testified, were walking on Louise Street en route to school. Because of a vehicle coming down the street, they were traveling close to the edge of said thoroughfare. Debra stepped on the manhole cover and safely traversed it—however, when Princetta stepped on it, the events occurred as set forth in the first paragraph.

A motorist pulled the young lady, who was bleeding, out of the hole. He testified that he saw her step on the cover and disappear, and that the cover was at an angle. Of great significance is the fact that he had lived in the neighborhood for 15 or 20 years, that he was familiar with the problems which had long existed to the cover, stating, Tr. 28:

When the water pumps it up, when it cocks it up, well it don’t set right back down where it’s supposed to sit.”

And, regarding notification to the proper authorities regarding this defect, he testified, Tr. 30:

“I would say about two years before this girl fell in the hole we was calling in about this hole.”

Also, Tr. 28:

“. . . (W)e’ve been calling in trying to get them to come in there and check it, they come whenever they think they want to . . .. He shoves it right back in the same spot and keep going.”

An ambulance took her to the emergency room of a hospital, where x-rays were made, a tetanus shot was administered, and bandages applied to her body. Her mother testified that Princetta had a hole in her thigh and a back injury, resulting in her being in and out of bed for about three months, during which time Mrs. Jackson gave her medication, including a painkiller and dressed her wound. On cross-examination, it was brought out that Princetta made about forty-five trips to the doctor for a period of over one year. Doctor Harris’s bill was $610.00. Princetta was out of school for 2 or 3 months and had to use crutches when she returned.

In view of the foregoing, we cannot say that the trier of fact committed manifest error; Canter v. Koehring, 283 So.2d 716 (La.1973).

The judgment is amended to award the $2,000.00 for personal injuries to Eli Jackson, the minor’s father, as the administrator of her estate.

The defendant-appellant is assessed with any costs of this appeal for which it is liable; likewise, the appellant and the other defendants are assessed with all other costs for which they are legally liable.

AMENDED AND AFFIRMED.


author: PONDER, Judge.

text:
    M. S. FOSTER et al. v. LOUISIANA DEPARTMENT OF AGRICULTURE, STRUCTURAL PEST CONTROL COMMISSION.
    No. 10648.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.

      Joel B. Dickinson, Baton Rouge, for appellants.
    Bart Eaton, Baton Rouge, for appellee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

On February 26, 1975, plaintiffs-appel-lees, M. S. Foster, Paul S. Foster and Herbert Perma-Tox, Inc. (Perma-Tox) were notified by defendant-appellant, Louisiana Department of Agriculture, Structural Pest Control Commission (Commission) that Perma-Tox’s statutorily required bond and certificate of insurance would expire respectively on April 5 and April 3, 1975. The Commission notified Perma-Tox on April 21, 1975, that the bond and certificate of insurance had in fact expired and that failure to submit a new bond and certificate of insurance was a valid cause for revocation of Perma-Tox’s pest control license. On April 29, 1975, by certified registered mail, Richard Carlton, secretary of the Structural Pest Control Commission, revoked Perma-Tox’s license and ordered Paul S. Foster to return it to the Commission, together with the license of M. S. Foster and the registration certificate of Gerardo E. Alvarez and Gary S. Farris, employees of Perma-Tox. In addition to Perma-Tox’s failure to renew the bond and certificate of insurance required by LSA-R.S. 40:1268 C, its failure to pay $15.00 of fees for contracts issued in February, 1975, a violation of LSA-R.S. 40:1272, and its failure to register the name and address of an employee, a violation of LSA-R.S. 40:1264 and 1265 E, were also cited as reasons for revocation of the license.

Petitioners forwarded a new bond and certificate of insurance to the Commission on June 20, 1975. However, on July 24, 1975, Richard Carlton informed Perma-Tox that its license would not be reinstated.

Petitioners filed for a preliminary writ of injunction on August 19, 1975, praying that the Commission be enjoined “from interfering with the operation of Herbert Perma-Tox, Inc. and damaging the reputation of same and/or revoking or suspending professional licenses of petitioners to engage in the business of termite control and eradication of household insects.”

Petitioners alleged that the revocation of the license was without legal effect for six reasons:

1) R.S. 40:1268 providing for the forfeiture and revocation of a license for failure to keep the bond and insurance in full force and effect requires only that the bond and insurance be kept in effect as long as the licensee remains engaged in pest control and eradication work. Petitioners alleged that Perma-Tox ceased operations when its bond and certificate of insurance expired, and therefore, revocation under R.S. 40:1268 was improper.

2) R.S. 40:1266 requires that licenses be revoked only by a unanimous vote of the Commission, so that Richard Carlton had no authority unilaterally and single-hand-edly to revoke petitioner’s license.

3) No reasonable notice and hearing were granted the licensee before revocation as required by R.S. 40:1266.

4) A new bond and certificate of insurance have been posted with the Commission.

5) The $15.00 fees due the Commission have been paid.

And, 6) The employee whom Perma-Tox allegedly failed to license engaged in no field work whatsoever and was employed solely in a clerical capacity.

In the court below, the parties stipulated at the hearing that the merits of the permanent writ of injunction were to be determined by the court. A further stipulation was made that Perma-Tox received no notice of any hearing and that no hearing was held prior to the revocation of Per-ma-Tox’s license.

After trial, the judge below held that R. S. 40:1266 required that plaintiffs be granted reasonable notice and a hearing before their license was revoked. The rule for permanent injunction was made absolute and the Commission was enjoined and prohibited from revoking plaintiffs’ license until such time as plaintiffs were granted an appropriate notice and hearing.

The Commission has timely apealed the judgment of the lower court. We affirm.

R.S. 40:1266 reads, in pertinent part, as follows :

“A. A license or registration certificate may be suspended or revoked by a unanimous vote of the commission for any violation of this Part or any rule or regulation promulgated hereunder after reasonable notice and hearing. Prior to the suspension or revocation of any license or registration certificate, the commission shall give notice to the licensee or the certificate holder by registered mail at the last known address of the licensee or certificate holder at least thirty days prior to the date of the hearing. Such notice to the licensee or certificate holder shall set forth the following information :
(1) 'The accusations made against such licensee or certificate holder and the specific section or sections of this Part violated.
B. After the issuance of notice to the licensee or certificate holder as herein-above provided, the commission shall hold a hearing at the time, date and place set forth in said notice, at which hearing the licensee or certificate holder shall appear and answer the accusations and violations set forth in the notice; provided, however, that in no instance shall the accused have his license or registration certificate revoked or suspended unless the commission, by unanimous vote, shall deem the evidence in support of the violation or violations of which the licensee or certificate holder is accused, as sufficient proof of such violation or violations. Acts which shall be grounds for the revocation or suspension of a license or certificate of registration shall include, but shall not be limited to, the following:
(S) Failure of the licensee or certificate holder to comply with the requirements of this Part or failure to pay the fees required by R.S. 40:1272.” (emphasis supplied)

R.S. 40:1268, after requiring the pest control operator to furnish a certificate of insurance and a bond to the Commission, reads as follows:

“C. This insurance and bond shall be kept in full force and effect as long as the principal therein remains engaged in pest control or eradication work. Failure to so keep them in effect shall require forfeiture and revocation of the principal’s license by the commission.” (emphasis supplied)

Appellant contends on appeal, as it did in the court below, that the failure of a licensee to renew its bond and insurance as required under R.S. 40:1268 results in automatic forfeiture of the operator’s license and the need for a revocation hearing is dispensed with; that the hearing described in R.S. 40:1266 is applicable only to a breach of those rules or regulations listed under, or adopted by the Commission pursuant to, Section 1266, because the word “Part” used in Section 1266 refers only to that section of the Structural Pest Control Law.

Appellant’s contentions are unfounded. Title 40 of the Revised Statutes is entitled “Public Health and Safety.” Chapter 5 of Title 40 is entitled to “Miscellaneous Health Provisions.” Chapter S contains nineteen parts. Part X is entitled “Non-Agricultural Pest Control.” Section 1261A. of Part X states that “The provisions of this Part shall be known and may be cited as the ‘Structural Pest Control Law.’ ” Section 1266A. of Part X provides that the required notice and hearing at issue herein shall be . “for any violation of this Part or any rule or regulation promulgated hereunder . . . ” (emphasis added)

Thus, it is clear that the word “Part” as used throughout Part X, including Section 1266, refers to‘the Structural Pest Control Law. And, since the failure to post a bond and a certificate of insurance are violations of the Structural Pest Control Law, plaintiffs were entitled to reasonable notice and hearing as granted by statute.

In spite of the foregoing, appellant argues that the protection of the public from a licensee who continues to operate without bond and insurance, mandates that Section 1268 C. be regarded as automatic in revoking a license when the operator fails to keep his insurance and bond in effect. This court is unwilling to make clearly worded and arranged statutes ambiguous under the guise of construing public policy. To adopt defendant’s position we would have to read the words “except the failure to maintain bond and insurance” into Section 1266 A.

Because we find that the revocation of Perma-Tox’s license was in violation of the Structural Pest Control Law which required that plaintiffs-appellees be given reasonable notice and a hearing, we deem it unnecessary to discuss the other serious contentions made by plaintiffs-appellees regarding the efficacy of the revocation.

For the above and foregoing reasons assigned, the decision of the lower court is affirmed. Appellant is cast for all costs legally assessible to it.

AFFIRMED.

      . In this regard, note that Section 1266 B., supra, does not purport to be exclusive in listing the grounds for revocation of a license which require notice and hearing. In fact, Section 1266 B.(5) contains a catch-all category of such grounds, specifically, the “Failure of the licensee or certificate holder to comply with the requirements of this Part. . .”


author: LANDRY, Judge.

text:
    Terry Joseph LAPEYROUSE, Sr. v. Ilinie Mary Authement LAPEYROUSE.
    No. 10582.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    Keith M. Whipple, Houma, for appellant.
    Edward James Gaidry, Houma, for ap-pellee.

      Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

Defendant (Appellant) appeals from judgment granting plaintiff, (Appellant’s former husband), a divorce from Appellant on grounds of adultery. We affirm.

Appellant contends the trial court erred in: (1) permitting plaintiff to introduce evidence concerning adultery allegedly committed on dates other than those specified in plaintiff’s petition, and (2) granting plaintiff a divorce despite plaintiff’s fail-ture to establish commission of adultery to the degree of certainty required by law.

Plaintiff’s petition alleges adultery committed by Appellant during Appellant’s residence at a designated address in Terre-bonne Parish. It is recited the acts of adultery were committed by Appellant with a man known to Appellant and whom Appellant permitted to share Appellant’s said residence. On information and belief, it is asserted that Appellant allowed the man in question to remain in Appellant’s apartment overnight on numerous occasions and that said individual “definitely stayed overnight on February 16, 1975.”

At the trial below, Appellant objected to the testimony of two private investigators retained by plaintiff to maintain surveillance on Appellant’s apartment insofar as their testimony purported to relate to activities therein on the night of February 15-16, 1975. Briefly stated, Appellant contended below, and reasserts here, that such testimony was inadmissible as an enlargement of the pleadings which mentioned only the night of February 16-17, 1975.

Relying upon Withers v. Withers, La.App., 296 So.2d 466, Appellant contends such testimony should have been excluded for the reason mentioned. So arguing, Appellant maintains that plaintiff’s demand should be rejected since said inadmissible testimony is the only evidence tending to establish adultery in this instance.

Our perusal of Withers, above, discloses that it did not involve in any manner the question of admissibility of evidence insofar as admissibility is related to pleadings. Withers, above, was concerned solely with the issue of burden of proof in cases where adultery is sought to be established by circumstantial evidence.

We agree that in an action for divorce on grounds of adultery, as in any other civil matter, the allegations of plaintiff’s petition must fairly apprise defendant of the grounds and circumstances upon which plaintiff relies to establish plaintiff’s claim.

However, it is well settled that pleadings are to be liberally construed to the end that a litigant will be accorded his day in court, the truth will be disclosed, and substantial justice done. Eschete v. City of New Orleans, 258 La. 133, 245 So. 2d 383; Succession of Smith, 247 La. 921, 175 So.2d 269.

Plaintiff’s petition in effect alleges adulterous conduct by defendant during defendant’s residence at the stated address, where defendant admittedly lived from about November, 1974, .to late February or early March, 1975. More particularly, plaintiff alleged adultery committed on February 16, 1975. Under the circumstances, we find the pleadings sufficient to allow introduction of the controverted testimony.

Adultery may be established by circumstantial evidence inasmuch as the very nature of the act makes direct proof of such conduct most difficult. Coston v. Coston, 196 La. 1095, 200 So. 474; Morris v. Morris, La.App., 152 So.2d 291, and authorities therein cited.

To establish adultery by circumstantial evidence, the facts adduced must be such as to lead fairly and necessarily to the conclusion that adultery has been committed. Salles v. Salles, 187 La. 914, 175 So. 618; Arbour v. Murray, 222 La. 684, 63 So.2d 425.

Appellant admitted having dated the corespondent during the period December, 1974, to late February, 1975. She acknowledged that corespondent frequently visited her apartment at night and that he occasionally stayed until midnight or as late as about 2:00 A.M. when Appellant gave a party. However, Appellant denied having sexual relations with corespondent and also denied that corespondent even spent an entire night in her apartment.

Mark Dickey and Michael Hebert, private investigators engaged by plaintiff, placed Appellant’s apartment under surveillance on several occasions prior to February 15, 1975. They attested to having seen the corespondent enter and leave Appellant’s apartment at various hours of the early evening and night. Except for the night of February 15, 1975, they observed the corespondent leave not later than about midnight or 1:00 A.M. On February 15, 1975, Appellant’s apartment was under surveillance from about 6:00 P.M. until 6:00 A.M. the following morning. On this occasion Dickey watched the front entrance while Hebert covered the back door. They testified that the corespondent remained in Appellant’s apartment during this entire time.

Appellant’s daughter, Pamela J, Henry, testified that during the interval December, 1974, to February, 1975, she visited her mother’s apartment on fairly frequent occasions. She acknowledged having seen the corespondent there on several occasions at night. On one such occasion Mrs. Henry spent the night with Appellant after having arrived at the apartment about 9:00 P.M. and finding the corespondent already there. Mrs. Henry testified that on this occasion the corespondent slept in a bed in the bedroom and Appellant slept on a couch. The record does not clearly indicate the room in which the couch was situated, but we presume it to have been the living room. Neither does Mrs. Henry’s testimony make precisely clear just where she slept, but again, we presume she slept in the living room with her mother. Mrs. Henry also testified she awoke during the night and noticed her mother was not on the couch. Mrs. Henry further related that after awakening she went to the kitchen for a drink of water and when she returned she noticed her mother was still not on the couch. She stated she did not know where her mother was at this time and presumed that Appellant had gone to the bathroom. She acknowledged she did not see her mother again until the next morning.

It is well settled that in matters of domestic relations much discretion is vested in the trier of facts. Sampognaro v. Sampognaro, 211 La. 105, 29 So.2d 581; Blackman v. Blackman, La.App., 253 So.2d 672.

It is also well established that the trial court’s evaluation of the credibility of witnesses and factual findings based thereon are entitled to great weight and will not be disturbed except in case of an abuse of the much discretion vested in the trier of facts in such matters. Withers v. Withers, 296 So.2d 466, and authorities therein cited.

The trial court concluded that the circumstantial evidence offered in this instance fairly and necessarily supports the conclusion that the alleged adultery had been committed. Not only do we find no abuse of the trial court’s discretion in so evaluating the evidence, but also we are in accord with the conclusions reached below.

The judgment of the lower court is affirmed, Appellant to pay all costs of these proceedings.

Affirmed.


text:
    Charles PELLETIER v. EXECUTIVE DEPARTMENT, DIVISION OF STATE BUILDINGS AND GROUNDS.
    No. 10673.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.
    Floyd J. Falcon, Jr., Baton Rouge, for appellant.
    Phil E. Miley, Baton Rouge, for appel-lee.
    Before LANDRY, COVINGTON and PONDER, JJ.
   COVINGTON, Judge:

Charles Pelletier, appellant in these proceedings, was employed as a Capitol Area Security Officer by the Division of State Buildings and Grounds of the State of Louisiana. By a letter dated February 4, 1975, the appellant was discharged from his employment, said discharge to be effective on March 7, 1975. An inspection of said letter, and the stipulated facts, establish that the letter was actually written on March 4, 1975. Mr. Pelletier appealed his discharge to the State Civil Service Commission; his motion for Summary Disposition, directed at the authority of R. N. Ri-zan, Sr., Superintendent of the Division of State Buildings and Grounds, to remove him, was denied. Also, his request for reinstatement was denied. This appeal was perfected following the Commission’s ruling. We affirm in part, reverse in part and remand.

Among other alleged errors, the appellant argues that Mr. Rizan did not possess the requisite authority to dismiss him. For the reasons assigned in our decision” this date in the case of Johnny Caston v. Executive Department, Division of State Buildings and Grounds, No. 10-660, we find that Mr. Rizan did possess such authority.

However, we find that the Commission erred in another facet of the case. The appointing authority (Authority) terminated Mr. Pelletier’s employment under Rule 12.3, but the Commission improperly treated it as having acted under Rule 12.-10(a) and held, therefore, that the employee was not disqualified for non-competitive reemployment as provided in Rule 8.18(d). Nevertheless, even had the Authority proceeded under Rule 12.10(a), the record does not reflect the requisite certification to the Director. As a consequence of acting under Rule 12.3, the employee was deprived of his opportunity to be reemployed under Rule 8.18(d). Further, he may have been deprived of certain rights during the interim from date of discharge to date of the Commission’s decision .

Rules of the Civil Service Commission have the effect of law; Article 10, § 10(A)(4), Louisiana Constitution of 1974. Such Rules are strictly construed; Pettit v. Reitzell, 202 La. 12, 11 So.2d 13 (1942); State ex rel. Murtagh v. Department of City Civil Service, 215 La. 1007, 42 So.2d 65 (1949).

Therefore, we find that the equities of the case justify a remand to the Civil Service Commission for further proceedings not inconsistent with our views. The Commission is assessed with those costs for which it may be liable under existing law.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

      . 12.3 Procedure in Adverse Actions for Cause, Except Suspensions. In every case of removal, demotion or reduction in pay for cause of a permanent employee the appointing authority or his authorized agent shall furnish to the employee at the time such action is taken, or prior thereto, a statement in writing giving detailed reasons for such action. The appointing authority shall furnish the Director a copy of such statement within 15 calendar days of the date the employee is notified.

      . 12.10 Special Provisions for Separation of Sick or Disabled Employee.
      (a) An employee absent from work because of a disability which prevents performance of the usual duties and responsibilities of his or her position and who has exhausted all sick leave, may be removed by the appointing authority upon certification to the Director by such appointing authority that the interests of the service require that the duties of the position be carried on without further interruption. Such removal shall not disqualify the former employee for non-competitive reemployment as provided in Rule 8.18.

      . Mr. Pelletier, at the time of his discharge, was not able to perform all of the normal duties of his position, but complained that he was not accorded equal treatment as others similarly situated, i. e., light duty.

      . 8.18 Noncompetitive Re-employment based on Prior Service. * * * (d) No former employee whose last separation from the Classified service was by removal due to delinquency, misconduct, or unsatisfactory performance, or by resignation to escape possible disciplinary action shall be eligible for noncompetitive re-employment under the provisions of this Rule; nor shall any person acquire eligibility for noncompetitive re-employment through service in a position from which he was separated or demoted for delinquency, misconduct or unsatisfactory performance.

      . There was some testimony that he might have been able to return to work during that interim period.


text:
    Eric B. SETTOON, Jr., et al. v. ST. PAUL FIRE & MARINE INSURANCE COMPANY et al.
    No. 10654.
    Court of Appeal of Louisiana, First Circuit.
    April 12, 1976.

      Eric B. Settoon, Jr., New Roads, for appellants.
    Donald T. W. Phelps, Baton Rouge, for defendant-appellee St. Paul Fire & Marine.
    John C. Miller, Baton Rouge, for Dr. David S. Miller.
    Before LANDRY, COVINGTON and PONDER, JJ.
   PONDER, Judge.

Plaintiffs-appellants, Eric B. Settoon, Jr. (Father), Eric B. Settoon, Jr. (Infant) and Vicki Storer Settoon, instituted suit seeking $32,100,000.00 in damages because of the alleged tortious conduct of Dr. Louis I. Tyler in entering a hospital room at Woman’s Hospital in Baton Rouge while Mrs. Settoon was breast feeding the infant. Defendants are Woman’s Hospital Foundation, d/b/a Woman’s Hospital, Dr. Louis I. Tyler, Dr. David S. Miller, and their insurer, Saint Paul Fire and Marine Insurance Company.

The court below granted Dr. Miller’s motion for summary judgment and dismissed plaintiff’s suit as to that defendant. Plaintiffs have appealed the dismissal.

FACTS

On the morning of June 5, 1974, Mrs. Settoon, pregnant, was admitted to Woman’s Hospital by her attending physician, Dr. Joseph Farris, an obstetrician. She signed the standard “Consent for Treatment” form containing the sentence, “The undersigned, as patient or authorized agent of patient, hereby authorizes and consents to any and all medical and all diagnostic treatments as may be deemed advisable by my doctor or such other physician as he may designate.” The last clause of such phrase, “such other physician as he may designate,” however, was crossed out. At approximately 5:30 p. m. that afternoon, Mrs. Settoon gave birth to Infant, by caesarean section performed by Dr. Farris.

Mr. Settoon in affidavit opposing Dr. Miller’s motion for summary judgment states that Dr. Farris, tired and needing rest, stated that he was going home and that Mr. Settoon could select a pediatrician in the morning. Mr. Settoon stayed at the hospital until some time after midnight when he went home after being assured that his wife and Infant were in satisfactory condition.

Plaintiff’s petition alleges, inter alia, that the next morning Mr. Settoon returned to the hospital and talked to his wife for a few minutes with the Infant present. Plaintiffs further allege that Mrs. Settoon desired to breast feed Infant, so that, the usual and customary signs were displayed, indicating that Infant was being breast fed and that no admittance was allowed by anyone. Mr. Settoon was required to leave the room and the curtain around Mrs. Settoon’s bed was drawn. Allegedly, at this point, Dr. Tyler abruptly entered the room and saw Mrs. Settoon “scantily clad and in an uncompromising (sic) position.”

THEORIES OF LIABILITY OF DR. MILLER

Dr. Miller is allegedly liable under numerous theories of law. Essentially they appear to be as follows:

1) Dr. Tyler at the time of the alleged tortious intrusion was supposedly acting as Dr. Miller’s partner, agent, or employee and thus, under various theories of law, Dr. Miller is liable for Dr. Tyler’s actions.

2) Mr. and Mrs. Settoon admit that it was clearly understood with the hospital that a pediatrician would have to be called in for the Infant. However, it is their contention that it was also understood that they reserved the right to choose the pediatrician, a right they were never allowed. Since Dr. Miller was never selected by the plaintiffs, his actions are allegedly tortious.

And, 3) Dr. Miller, according to paragraph 55 of plaintiffs’ petition, “did not use reasonable care and/or skill and was negligent in the premises, proximately causing injury and damages to petitioners, in the following respects:

“a. in acting in breach of the admission contract.
b. in examining Infant without authority.
c. in assaulting a minor.
d. in engaging the services of the defendant, Tyler, without authority.
e. in displaying lack of professional judgment.
f. in displaying lack of judgment.
g. in acting in an uncouth and/or crude manner.
h. in depriving petitioners of their civil rights.
i. in forcing himself and his services upon petitioners.
j. in invasion of privacy.
k. in forcing Tyler and his services upon petitioners.
l. in failing to see what he should have seen and to take heed.
m. in upsetting petitioners to the point that Infant could not be properly cared for.
n. in attempting to solicit business.
o. in breaching professional ethics.
p. in breaching hospital ethics.
q. in breaching hospital rules and regulations.
r. in displaying conduct unbecoming of a physician.
s. in unlawfully obtaining medical information.
t. in depriving petitioners of a choice of pediatricians.
u. in engaging in mal-practice.
v. and was otherwise guilty of not using due or reasonable care or skill and was negligent in the premises.”

WERE THERE ANY GENUINE ISSUES OF MATERIAL FACT IN DISPUTE? IS DR. MILLER ENTITLED TO JUDGMENT AS A MATTER OF LAW?

Dr. Miller attached a sworn affidavit to his motion for summary judgment. It reads in pertinent part as follows:

“1. That he is a named defendant in the above entitled action; that he is competent to testify and has personal knowledge of the facts hereinafter set forth except as otherwise designated.
2. Prior and subsequent to June 5, 1974, affiant is and has been a fully licensed physician engaged in the practice of pediatrics in the City of Baton Rouge, Louisiana, and is listed as a staff pediatrician for the Woman’s Hospital in that City.
3. That it is a requirement of the Woman’s Hospital that all newborn infants be placed under the care of an approved physician. If the parents have not designated one to be responsible for their newborn infant then the obstetrician who delivers the baby will designate a pediatrician to take over the responsibility, or the hospital will assign one from the hospital staff list.
4. Affiant is informed that the Set-toon baby was delivered in the late afternoon of June S, 1974, by caesarian section. No pediatrician having been listed by the parents, Dr. Joseph Farris, since deceased, the attending obstetrician, assigned Dr. Miller to be the attending pediatrician for the infant. Attendants in the hospital nursery routinely called Dr. Miller’s residence about 6:30 p. m.; advised that a newborn infant had been assigned to him; and that the infant appeared normal and healthy. In such circumstances Dr. Miller’s nursery orders for care of the infant are routinely put into effect. Had the infant shown any signs of having problems Dr. Miller would have been notified and been expected to take care of them in person or by instructions to the nurses assigned to-the nursery. Normally, in such cases, the assigned pediatrician examines the infant within 24 hours, usually on his morning rounds at the hospital.
5. Thursday, June 6, 1974, was Dr. Miller’s regular “day off” from his practice.
6. During the year 1974 affiant and Dr. Lotds J. Tyler, Jr., a qualified pediatrician practicing in Baton Rouge, Louisiana, extended to each other the professional courtesy of taking the other’s calls and seeing the other’s patients on their respective “days off”. Affiant and Dr. Tyler were not and have never engaged in the practice of pediatrics as partners or associates; nor has one ever employed the other or paid the other. The arrangement between the two doctors was merely a professional courtesy of making themselves available to each other’s patients during periods when one or the other was away from his practice. The patients of one were not obligated or required to use the services of the other.
7. Affiant is informed and believes that on Thursday, June 6, 1974, Dr. Tyler, making his regular rounds at the Woman’s Hospital, knowing it was Dr. Miller’s day off, checked all the infants listed as Dr. Miller’s patients in the nursery. The Settoon infant was so listed and was checked by Dr. Tyler and found to be in good condition.
8. On the evening of June 6, 1974, af-fiant received a call by telephone from the father of the Settoon infant, one of the plaintiff’s herein, advising him that he did not want Dr. Miller to treat his child.
9. On the morning of June 7, 1974, when making his rounds at the Woman’s Hospital, affiant noted that the hospital chart still listed him as the Settoon baby’s pediatrician. He thereupon went to Mrs. Settoon’s room, accompanied by a nurse; informed Mrs. Settoon that the child was still listed as being under his care; that under the hospital regulations the child could not be left without a pediatrician; that he would be willing to care for the child until the services of another pediatrician could be obtained. Affiant was told that his services were not desired. Affiant thereupon instructed the nurse to obtain a written release from Mrs. Settoon and left. Affiant received another telephone call from the father, Eric B. Settoon, on the afternoon of June 7, 1974, and was again informed that his services were not desired.
10.Affiant has never examined or even seen the Settoon infant and his only contact with the father and mother of the infant are as related above.” (emphasis supplied)

Plaintiffs filed an exception to the motion for summary judgment, attacking the efficacy of Dr. Miller’s affidavit, essentially averring that it was necessary that Dr. Miller attach certified evidence to his affidavit showing: 1) he was a duly licensed physician; 2) he was a staff physician for Woman’s Hospital; 3) the requirements of Woman’s Hospital to be an approved physician; 4) the policy of the hospital as to what doctors treat new infants, and how they are chosen; S) the qualifications of Dr. Tyler; and 6) the legal relationship between Dr. Miller and Dr. Tyler.

Plaintiffs’ attack on the propriety of the affidavit on these grounds are without merit. First, most of the facts stated in Dr. Miller’s affidavit which plaintiffs argue require certified evidence, are essentially the same facts that are expressly pleaded by plaintiffs in their petition. For example, plaintiffs’ petition specifically alleges that Dr. Miller and Dr. Tyler are duly licensed pediatricians practicing in Baton Rouge and on the staff of Woman’s Hospital. Attaching certified evidence corroborating facts already alleged by an opposing party would clearly be a vain and useless thing. Second, LSA-La.C.C.P. Art. 967 does not require certified evidence to prove every statement made by affiant. The only certification required is that of copies of papers referred to in the affidavit and attached to, or served with, the affidavit. Actually it appears that plaintiffs’ exceptions are directed to the weight or credibility that the trial judge may give the affidavits.

Plaintiffs’ exception alleges that Dr. Miller’s affidavit is also deficient in that it contains much inadmissible hearsay. Our law is clear that supporting and opposing affidavits shall only “be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the af-fiant is competent to testify to the matters stated therein.” LSA-La.C.C.P. Art. 967.

A close inspection of Dr. Miller’s affidavit does reveal some statements that would be considered inadmissible hearsay. However, Dr. Miller’s statements that he and Dr. Tyler have never been partners or associates, that he has never employed Dr. Tyler and that he never examined Infant, are certainly not hearsay. These crucial facts are within the ambit of his own personal knowledge. The trial judge, as indicated by his oral reasons filed in the record, did not use any part of the affidavit that could be considered hearsay in reaching his decision.

Our review of the pleadings and supporting and opposing affidavits indicates that there is no genuine issue of material fact and that Dr. Miller is entitled to judgment as a matter of law. Dr. Miller's only connection with this case is that the care of the Infant was routinely assigned to him by the hospital without his previous knowledge. He never examined the Infant and had only one harmless brief contact with Mrs. Settoon.

Dr. Miller cannot be held accountable for any tort allegedly committed by Dr. Tyler under any theory of law. Dr. Miller’s affidavit affirmatively shows that the sole connection between the two was that each of them extended to the other the professional courtesy of “covering” for the other on their respective days off. This type of professional relationship commonly exists between members of many professions.

The only evidence plaintiffs attempted to introduce to show that more than a mere professional courtesy was involved between Dr. Miller and Dr. Tyler cannot properly be considered by this court. Plaintiffs attached a pamphlet entitled “Newborn Instructions” to one of their opposing affidavits. This four page pamphlet has both Dr. Miller’s and Dr. Tyler’s name in its heading and appears to list the same address for both of them. Separate phone numbers are, however, listed for each. The last two sentences of the pamphlet read, “Our office is open on weekdays from 9:00 a. m. until 5:00 p. m. and Saturday until 1:00 p. m. At least one of us is available on weekends and holidays for emergencies.”

The court cannot consider the pamphlet because it is not a sworn or certified copy and LSA-La.C.C.P. Art. 967 requires that such copies attached to supporting and opposing affidavits be sworn or certified. However, even if the pamphlet were properly before the court, its contents would not aid the plaintiffs’ case. The pamphlet does not raise any genuine issue of material fact. Its contents do not dispel Dr. Miller’s statements in the affidavit regarding the relationship between Dr. Tyler and himself. The pamphlet merely indicates that the two doctors may have their office in the same building and that they may have joined in putting the pamphlet together to decrease its production costs and maintain uniformity in instructions given at the hospital, at which they were staff pediatricians.

Plaintiffs could not rely on their petition. LSA-La.C.C.P. Art. 967. It was encumbent upon them to respond to Dr. Miller’s motion and affidavit by sufficient affidavit or otherwise so that a material issue of fact was shown. They have failed in this endeavor and Dr. Miller is entitled to judgment as a matter of law.

For the foregoing reasons, the judgment of the trial court is affirmed; all costs to be borne by plaintiffs-appellants.

AFFIRMED.

      . Other facts are contained in Dr. Miller’s affidavit supporting the motion for summary judgment, infra.

      . As can be seen, much of plaintiffs’ petition as regards Dr. Miller, consists of legal conclusions. Very few “facts” are alleged.

      . Plaintiffs argue that the motion for summary judgment and the exception thereto were never called and considered by the lower court and that they and the court were never given an opportunity to review materials subpoenaed from Woman’s Hospital which were produced in open court immediately prior to the scheduled hearing on the motion and the exception. The record does not support plaintiffs argument. The minutes in the record reflect that the motion and exception were both considered by the lower court and, in fact, the numerous citations given by the trial judge in his reasons evidence careful consideration of them. Furthermore, the materials from Woman’s Hospital were introduced into evidence and a review of them by this court supports the conclusion that the materials are irrelevant and immaterial to the issues at bar.