author: TATE, J., DIXON, J., CALOGERO, J.,

text:
    Barney Edward WELCH v. ROBERT CAMPBELL, INC. and Southern Casualty Ins. Co.
    No. 56903.
    Supreme Court of Louisiana.
    Oct. 22, 1975.
   In re: Barney Edward Welch applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Tangipahoa. 316 So.2d 822.

Denied. No error of law in the ruling of the Court of Appeal.

TATE, J.,

I respectfully dissent. A grave injustice through legal technicality has been caused this admittedly totally disabled employee. By the defendants’ interrogatories Campbell’s status as statutory employee was admitted. Although the trial court may have been in error in considering these interrogatories, since technically not admitted in evidence although filed as part of the court record prior to trial, remand should have been ordered rather than denying this admittedly disabled employee workmen’s compensation to which he is clearly entitled. See Wade v. Calcasieu Paper Co., 229 La. 702, 86 So.2d 540 (1956), and many other decisions requiring this result in view of the paternalistic purposes of the compensation statute, including its provision that technical rules of evidence are relaxed. La.R.S. 23:1317.

DIXON, J.,

is of the opinion the court of appeal disposition of this case was clearly erroneous; the case should have been remanded to the district court.

CALOGERO, J.,

is of the opinion this writ should have been granted. Plaintiff’s judgment for permanent and total workmen’s compensation benefits awarded by a trial judge who obviously considered defendant’s answer to interrogatories admitting the requisite statutory employer-employee relationship, has been taken away for the hypertechnical and in my view unsound legal reason that the interrogatories and answer filed in the trial court record before trial were not formally introduced in evidence.


source: Caselaw Access Project

author: SUMMERS, Justice. DIXON, J.,

license: Public Domain

text:
    STATE of Louisiana v. Joseph PIERCE.
    No. 56516.
    Supreme Court of Louisiana.
    Nov. 4, 1975.

      Charles W. Seaman, Kelly, Seaman & Ware, Natchitoches, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ronald C. Martin, Dist. Atty., R. Raymond Arthur, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice.

Appellant Joseph Pierce was charged with armed robbery. La.R.S. 14:64. He pled guilty on February 12, 1975 and was sentenced to serve 25 years at hard labor without benefit of parole, probation or suspension of sentence.

On this appeal counsel contends that the sentence imposed, as it relates to this defendant, is cruel and unusual punishment as prohibited by Section 20 of Article I of the Louisiana Constitution of 1974. The Constitution provides that, “No law shall subject any person to euthanasia, to torture, or to cruel, excessive, or unusual punishment.”

To support his contention appellant argues in brief that his wife and children depend upon him for support and will become public charges during his incarceration. In these circumstances the lengthy sentence without benefit of parole, probation or suspension of sentence is cruel and unusual punishment, he says.

This contention has been decided adversely to appellant in a number of cases in this Court. In State v. Howard, 262 La. 270, 263 So.2d 32 (1972), the defendant was sentenced to 99 years at hard labor for armed robbery without benefit of parole, probation or suspension of sentence. In rejecting the contention that the sentence was cruel and unusual we said:

“There is no constitutional infirmity in such penalty provision for the crime of armed robbery. Imprisonment itself is clearly not ‘cruel and unusual punishment,’ reprobated by constitutional provisions . . . Mere length of sentence is not cruel and unusual punishment; most criminal systems provide for life terms.”

The holding in State v. Howard has been approved in State v. Martin, 304 So. 2d 328 (La.1974); State v. Bradford, 298 So.2d 781 (La.1974) and State v. Witherspoon, 292 So.2d 499 (La.1974).

There is no merit to appellant’s contention under these repeated decisions of this Court.

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

DIXON, J.,

concurs. In a proper case we might be required to review the sentence for excessiveness under the 1974 constitution. Here, the record is inadequate.


author: REDMANN, Judge.

text:
    Earl MATIRNE and Glenn Washington v. Helen WILSON and Volkswagen Insurance Company.
    No. 7386.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 11, 1975.
    J. Terrell Heath, New Orleans, for plaintiffs-appellants.
    Leonard A. Young, Bienvenu & Culver, New Orleans, for Volkswagen Ins. Co.
   ON MOTION TO DISMISS

Before REDMANN, GULOTTA and STOULIG, JJ.

REDMANN, Judge.

Mover for dismissal is mistaken in its assertion that the appeal bond was not filed within 90 days of judgment refusing new trial.

Motion denied.


author: BEER, Judge. PER CURIAM.

text:
    James BROUILLETTE v. NATIONAL REMODELERS AND REBUILDERS, INC., et al.
    No. 6953.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1975.
    Rehearing Denied Nov. 11, 1975.

      Cabibi & Cabibi, Charles E. Cabibi, New Orleans, for plaintiff-appellee.
    Adams & Reese, Schafer & Schafer, Timothy G. Schafer, Richard C. Baldwin, New Orleans, for defendants-appellants.
    Before SAMUEL, GULOTTA and BEER, JJ.
   BEER, Judge.

This matter is again before us, appealed from the district court action which resulted from our remand in Brouillette v. National Remodelers & Rebuilders, Inc., et al, 239 So.2d 375 (La.App. 4th Cir. 1970).

We had directed the adducing of additional evidence by appellee and appellants for the purpose of establishing “(1) the value of plaintiff’s services on a quantum meruit basis on the Wilshire contract; (2) the profits due plaintiff from the Wil-shire and the warehouse jobs; (3) the rebate due on the rent included in the operating costs of the July 31 statement (plaintiff is entitled to a judgment on half the rebate since net profits should increase by the amount of the rebate); (4) the amount of offset due the defendant corporation, if any; and (5) the value of the tools converted by defendant.”

We are now constrained to observe that the record falls short of fully accomplishing any of the above noted objectives. However, no useful purpose will be served by a further remand. We shall now deal with the issues on the basis of what is presently before us even though we have very little satisfactory evidence to work with, notwithstanding the length of the record. The matter has been pending for a number of years and the testimony and exhibits are incomplete and inaccurate. Many computations had to be made with a minimum of evidentiary support.

In this connection we have been guided by two separate lines of authority. First, with regard to our overall responsibility to resolve the controversy where the evidence is sketchy and incomplete but unlikely to be improved upon, we follow the Supreme Court’s language in Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151 (1971) which says: “Where there is a legal right to recovery but the damages cannot be exactly estimated, the courts have reasonable discretion to assess same based upon all the facts and circumstances of the case.” This reasoning was reiterated by this court in Zesiger v. Dean, 247 So.2d 222 (La.App.1971) when we held:

“In cases where, although there is a legal right of recovery, an exact estimate of damages cannot be made, the courts nevertheless have the discretion to assess damages based upon all the facts and circumstances of the case. When it is clear that a plaintiff has sustained some damage as the result of the fault of defendant, plaintiff’s demands will not be rejected merely because he has not established the exact amount of compensable damage suffered. The mere failure or inability of one to prove his actual damages does not preclude him from receiving an award where it is shown that he is entitled to some damages.” (Citations omitted.)

In so far as the quantum meruit claim is concerned, we have followed Bascle v. Perez, 224 La. 1014, 71 So.2d 551 (1954), which holds as follows :

“ ‘ * * * the jurisprudence of the courts of this state [is] to the effect that where one employs the services of another without specifying what compensation will be paid therefor, or where one avails himself of the services of another in the performance of a task, he is bound to compensate the person so employed or who performs such a service. * * *. This jurisprudence is founded on the moral maxim of the law that no one ought to enrich himself at the expense of another.’ ”

In performing work on the Wil-shire apartment complex, appellee Brouil-lette mistakenly labored under the impression that his oral agreement with appellants Julian and Milton Loeb would be honored. The appellants induced Brouil-lette to perform work on Wilshire and received the benefits flowing from his efforts but they failed to live up to the agreement that would have recognized Brouillette’s labors with an appropriate share interest in the never formed “new” corporation. Thus, Brouillette is entitled to receive compensation for the time and effort he expended on Wilshire and will not be deprived recovery because the oral agreement with appellants was successfully avoided by them.

Appellee, having established his right to be compensated on quantum meruit shall recover for his services and for the time and labor required for them. No specific formula is available to determine the reasonable value of such services. It is a matter of equity depending upon the circumstances of each case. Jones v. City of Lake Charles, 295 So.2d 914 (La.App.1974); Readco Industries, Inc. v. Myrmax Specialties, Inc., et al, 236 So.2d 573 (La.App.1970); Bordelon Motors v. Thompson, 176 So.2d 836 (La.App.1965).

VALUE OF BROUILLETTE’S SERVICES ON A QUANTUM MERUIT BASIS ON WILSHIRE

Whatever is due and owing Brouillette on the Wilshire construction work based upon quantum meruit is a debt of the appellants, Julian and Milton Loeb (hereafter, “the Loebs”) jointly and in solido and not of National Remodelers and Rebuild-ers, Inc. (hereafter, “National”) because those services were performed only for those two individuals and not for the “old” corporation (National) nor for the “new” corporation that was never actually formed. The Loebs’ obligation to Brouil-lette is, in accordance with the previous judgment of this court, determined on the basis of quantum meruit based upon the various services which Brouillette performed in connection with Wilshire.

In this (and other) computations we believe that much weight must be given the report of Peat, Marwick & Mitchell & Company (hereafter, “Peat, Marwick”). That report (Schedule 3 thereof) shows a total of expenditures attributable to the work performed on Wilshire in the amount of $82,813.50.

We conclude that Brouillette, acting as general overseer on that job is entitled to quantum meruit based upon fifteen percent of the amount expended which totals $12,442.02.

Brouillette’s services as rental agent and general promoter of the rental units for a period of slightly over two months entitle him to a quantum meruit claim for this activity at the rate of $600 per month for a total of $1,200.

Acting in his capacity as finder, negotiator and general manager in connection with the ultimate acquisition of the Wilshire property at an advantageous price we conclude that Brouillette has, for these services, a quantum meruit claim in the amount of $15,000.

Thus, the total amount due Brouillette from Julian and Milton Loeb, jointly, individually and in solido in connection with these aspects of the litigation is $28,642.02.

AMOUNT DUE BROUILLETTE FROM NATIONAL REMODELERS & REBUILDERS, INC.

An amount is due Brouillette from National. However, Brouillette did not appeal the trial court judgment sustaining appellants Julian and Milton Loebs’ exception of no cause of action and dismissing them from liability on the contract with the corporation. By failing to appeal this decision, he is bound by that final judgment and can recover only against the corporation itself with respect to the claims against the “old” corporation. Neither the trial court nor this court can mod-lfy, revise, or reverse a judgment, or part of a judgment, in favor of a party who has neither appealed nor complained by way of an answer to an appeal. Post v. Rodrigue, 205 So.2d 67 (La.App. 4th Cir. 1967).

We find that Brouillette is entitled to a judgment against National for:

(1) Fifty percent of the net earnings of National for the period March 18, 1965 through August 31, 1966. That amount is figured by halving the figure of $24,199.56 which is described in Schedule 5 of the Peat, Marwick report entitled “Net earnings” and is . $12,099.78
(2) An additional share of the “profits” on the jobs particularly described in our order of remand which we deem to include the warehouse jobs at 3205 Washington Avenue and 2631 S. Claiborne Avenue , not fully recognized in the pro forma report of Peat, Marwick in the amount of .$4,500.00

Additional adjustments must be made in calculating Brouillette’s award against National. These calculations are as follows:

(1) Brouillette is entitled to an adjustment in connection with the rebate due on the rent included in the operating costs of the July 31, 1966 statement figured at one half of $1,-800, all as is more particularly shown on Schedule 6, Section (3) of the Peat, Marwick report.
(2) Brouillette is entitled to the depreciated value of his tools which have been retained by the corporation. The value is set by reference to Schedule 4 of the Peat, Marwick report and amounts to $1608.26.
(3) National is entitled to a credit for advance against profits made to Brouillette in the amount of $6,500.
(4) National is entitled to a credit in the amount of $1,542.50 for the cost of materials and miscellaneous work furnished by the corporation in connection with repairs to Brouillette’s home.
(5) National is entitled to a credit for the depreciated value of the truck that has been retained by Brouillette which was worth $350.
(6) National is entitled to a credit for petty cash advanced to Brouillette in the amount of $14.50.

Upon making the necessary mathematical calculations, we find that Brouillette is entitled to a judgment against National in the net amount of $10,701.04.

WILSHIRE “PROFIT”

The quantum meruit award in favor of Brouillette and against the Loebs must cover Brouillette’s claim with regard to Wilshire. On the face of the remand order, it might appear that there is need for a computation of his alleged entitlement to some share of the “profit on Wilshire.” However, Brouillette’s quantum meruit award covers his hoped for share of the profit on the Wilshire job. The only reason that this court granted him a right to a quantum meruit recovery was to protect his interest as effectively as possible under the bizarre circumstances of this case. Specifically, it was to assure Brouillette that this “profit from the Wilshire job” which he could not — contractually—enforce would, nevertheless, be, at least to some extent, collectible on the basis of quantum meruit. That has been accomplished. No further award can be made under the circumstances.

THE STATE OF THE RECORD

The record does not support the $82,582.91 in solido judgment of the trial court. The plaintiff did not sufficiently develop the evidence sought by the remand and the judgment is excessive and unsupported by the testimony. Furthermore, Brouillette’s claim for accounting on his contract with National is hampered by the fact that the record is void of evidence that dearly establishes the true financial status of the corporation. Yet we feel that he is entitled to protection from the machinations of the Loebs who did, indeed, take advantage of him. Resolution of this issue has required analysis of the sketchy records available to this court. This evidence is incomplete and, in certain instances, totally inaccurate. For example, the available records indicate the cost of work done on the Washington Avenue warehouse job was only $1,768.02. Testimony at trial completely refutes this proposition, but then does not go forward to establish the true cost incurred. Opinions of appellee’s own experts not only conflict but are derived from inaccurate calculations. We were confronted with the task of determining the “profits” of National with almost no acceptable evidence to assist us. Mr. Gandolini testified his statement of profit and loss was tentative and in need of adjustment. Mr. Casey, the court appointed expert, indicated his dissatisfaction with the unavailability of needed documents. Neither party adduced sufficient evidence to form a satisfactory basis for clearly resolving this issue. But, under the mandate of Jordan v. Travelers Ins. Co., (supra) we work with what we have.

Careful review indicates that available evidence simply cannot support the trial court award. That court filed no reasons to explain how the judgment was computed and its failure to delineate any definitive reasons has caused us to conclude that they are, under the circumstances, speculative and must be disregarded.

The testimony adduced at trial is couched in the most general terms, especially as to any work Brouillette performed in appellants’ behalf. We have, however extracted all available evidence that could in any way assist in reaching an equitable decision.

The award to Brouillette on his demand for accounting must be rendered only against National and will have to be reduced to $10,701.04. The judgment against defendants, Julian and Milton Loeb, on Brouillette’s quantum meruit claim will have to be reduced to $28,642.02.

JUDGMENT

For the reasons stated above it is now ordered, adjudged and decreed that the judgment of the Civil District Court for the Parish of Orleans dated May 28, 1974 be annulled and set aside and it is now

Ordered, adjudged and decreed that there be judgment herein in favor of Plaintiff-Appellee, James Brouillette and against Defendant-Appellant, National Re-modelers and Rebuilders, Inc. in the full sum of $10,701.04, plus interest from date of judicial demand;

It is further ordered, adjudged and decreed that there be judgment herein in favor of Plaintiff-Appellee, James Brouillette and against Defendants-Appellants, Julian J. Loeb and Milton Loeb, individually, jointly and in solido in the full sum of $28,652.02 plus interest from date of judicial demand;

It is further ordered, adjudged and decreed that all costs, including the costs of this appeal, be paid by Defendants-Appellants, jointly and in solido.

Annulled, set aside and rendered.

ON APPLICATION FOR REHEARING

PER CURIAM.

The petitions for rehearing filed by plaintiff-appellee, James Brouillette and by defendants-appellants, National Remodelers and Rebuilders, Inc., and Julian J. Loeb and Milton Loeb have been considered. For the limited purposes of making certain adjustments in the original judgment of this court the decree will be recast:

1. The judgment in favor of plaintiff-appellee James Brouillette and against defendant-appellant, National Remodelers and Rebuilders, Inc., in the full sum of $10,701.04 plus interest from date of judicial demand is reduced by $900.00 to eliminate the duplication of this amount which is properly called to our attention by defendant-appellant, National Remodelers and Rebuilders, Inc.;

2. The judgment in favor of plaintiff-appellee, James Brouillette and against defendants-appellants, Julian J. Loeb and Milton Loeb, individually, jointly and in solido in the full sum of $28,642.02 (erroneously typed as $28,652.02 in the original decree) is increased by $1,250.00 to recognize Brouillette’s entitlement to an additional amount in quantum meruit for the work performed in connection with the reconstruction of the roof at Wilshire.

Accordingly, it is now ordered, adjudged and decreed that there be judgment herein in favor of Plaintiff-Appellee, James Brouillette and against Defendant-Appellant, National Remodelers and Rebuilders, Inc., in the full sum of $9,801.04, plus interest from date of judicial demand.

It is now further ordered, adjudged and decreed that there be judgment herein in favor of Plaintiff-Appellee, James Brouil-lette, and against Defendants-Appellants, Julian J. Loeb and Milton Loeb, individually, jointly and in solido in the full sum of $29,892.02, plus interest from date of judicial demand.

As we adhere to our original opinion and decree in all other respects, the applications for rehearing are denied.

Decree recast; rehearing denied.

      . See: Gauguin, Incorporated v. Spring, 316 So.2d 858 (La.App. 1st Cir. 1975), rehearing denied August 26, 1975.

      . After the purchase of Wilshire, Brouillette supervised the remodeling. He worked long hours, beginning each day at 6:00 a. m. and working until 8:00 or 10:00 p. m. each night. He was involved in very phase of the operation and made most of the purchases. Often he worked seven days a week. In this regard Mr. Gandolini testified that he had, on several occasions, seen Mr. Brouil-lette working at the Wilshire apartment complex on weekends. Work on the Wilshire apartments began in early February 1966 and ended in late July 1966.
      Mr. Casey’s report to the court in his testimony indicates that the total cost of the Wil-shire Complex improvements was $82,813.50. All experts who testified have indicated that on “cost-plus” jobs a contractor is entitled to receive between ten and fifteen percent profit over cost. In this connection plaintiff also sought recompense for his design work. The only testimony to support any valuation of services in this regard is that submitted by witness Murray who stated that he would charge six percent of the cost for the designing of a new building. Witness Fox (who was not accepted by the court as an expert but whose testimony was offered on proffer) indicates that the design and shop drawings such as those apparently used by Mr. Brouillette are part of the contractor’s usual work product. Witness Kessels affirms the testimony of Fox to the effect that no extra charge is made by a contractor for field sketches done on the job. lie indicates that the charge for these field sketches is part of the commission received by the contractor and we make no award for this phase of the work.
      Brouillette impliedly admits that a “clerk of the works” was not necessary for the Wil-shire job nevertheless, he seeks some additional payment for that work. However, both Fox and Kessels stated unqualifiedly that a clerk of the works was not needed for the type of job that was performed on the Wil-shire complex and we make no award for this phase of the work.
      Unfortunately, the testimony adduced at the trial after remand is not very helpful in substantiating the actual services that were performed by Brouillette. Instead, counsel concern themselves with the opinions of experts relative to the cost of particular jobs without attempting to adduce the basic evidence that this court asked for in its original opinion. The record contains almost no acceptable evidence of the extent of the work performed other than the self-serving testimony of Brouillette.

      . The record is not clear as to exactly how long Mr. Brouillette acted as a rental agent for the Wilshire Apartment complex. He testified that as far as he can remember he acted as an agent for the rental of the apartments for approximately two and one half months. He stated that six of the units of the complex were finished early, but he was not sure how many of the apartments he actually rented before he was fired by Mr. Julian Loeb. On cross-examination by defense counsel he admitted that in his role as a rental agent there were no advertising expenses. Two of the experts indicated that a rental agent would receive ten percent of the anticipated revenues to be received as a result of renting apartments in the Wilshire complex but there is no evidence to show how many — if any — he actually rented as a result of his services.

      . The record establishes that the apartment complex was offered for sale by Mr. Sidney D’Armas and Mr. I. J. Kraiger for $150,-000; that Mr. Brouillette discussed all facets of the sale with these co-owners and handled the negotiations of the sale up until such time as the sale was consummated by Mr. Loeb for $120,000. Neither of the Loebs participated in the negotiations until the final offer of $120,000 was made by Mr. Milton Loeb. In this regard Mr. Gandolini testified that both Loebs, Brouillette and himself discussed the Wilshire deal frequently and had several meetings regarding the price and the profits to be derived from the Wilshire apartment complex. The testimony of the experts indicates that one who negotiates a sale should receive as his commission ten percent of the actual sale price. We find that Brouillette earned ten percent as commission plus a ten percent bonus for effecting a $30,000 saving.

      . The Peat, Marwick report reflects two different income figures for the corporation for the period in question. The first figure found in Exhibit A of the report is $12,498.49. This figure represents the total profits of the corporation after deduction of the appropriate federal and state taxes. Schedule 5 of this report to the court calculated a “pro forma statement of earnings” in which the net earnings of the corporation was $24,199.56. Although it is difficult for us to determine which of these amounts should form the basis of our calculation, the latter figure is substantially in accord with the $26,291.09 figure offered by Mr. Gandolini. However, Mr. Gan-dolini’s figure was not utilized because of his admission that his accounting was merely a tentative statement in need of adjustment. Insofar as the Peat, Marwick examination was made in accordance with generally accepted auditing principles and utilized such tests of accounting records as were considered necessary under the circumstances, the $24,-189.56 figure was used in our calculation.

      . Brouillette is entitled to share in the estimated profit on the warehouse'at 3205 Washington Avenue. We are obliged to make a determination of that profit figure with little satisfactory evidence to guide us. While the pro forma statement of net profit of Peat, Marwick includes a twenty percent profit for this job, the calculation is based upon reconstructed records which we believe do not properly reflect the actual cost incurred in performing work on the warehouse. We have concluded it is necessary to attribute some additional gross profit to the job in order to reach a more equitable result in determining the share of profit due Brouillette.

      . The same general situation as noted in Footnote 5 is true with respect to the warehouse at 2631 S. Claiborne Avenue.


author: HOOD, Judge. PER CURIAM.

text:
    Richard (Dickie) MARTIN, Plaintiff-Appellant, v. CITY OF ST. MARTINVILLE, Defendant-Appellee.
    No. 5116.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 1975.
    Rehearing Denied Nov. 13, 1975.
    Writ Refused Jan. 9, 1976.

      Taylor & Trosclair by Frank P. Tros-clair, Jr., Opelousas, and J. Burton Willis, St. Martinville, for plaintiff-appellant.
    Paul DeMahy, St. Martinville, for defendant-appellee.
    Before HOOD, CULPEPPER and MILLER, JJ.
   HOOD, Judge.

Richard (Dickie) Martin instituted this action in the Sixteenth Judicial District Court as an appeal from a decision rendered by the St. Martinville Police Civil Service Board affirming his dismissal as Chief of Police of the City of St. Martin-ville. He demands that the decision of the Civil Service Board be reversed, and that he be reinstated as Chief of Police with full benefits and all back pay. Judgment was rendered by the district court affirming the action of the Civil Service Board. Martin thereupon appealed to this court.

The issues presented are whether the action of the Mayor and City Council of the City of St. Martinville in dismissing plaintiff as Chief of Police was taken “in good faith for cause,” and whether the decision of the St. Martinville Police Civil Service Board affirming his dismissal was made “in good faith for cause.”

Martin served as Chief of Police for the City of St. Martinville for a period of approximately eight years immediately prior to October 1, 1974. He thus was a police civil service employee of that city, under the provisions of LSA-R.S. 33:2531 et seq.

On October 1, 1974, the Mayor and City Council of the City of St. Martinville adopted a resolution suspending Martin indefinitely from his position as Chief of Police. Two reasons for that action were set out in the resolution. On the following day, Martin appealed from that suspension to the St. Martinville Police Civil Service Board.

On October 8, 1974, while that appeal was pending, the Mayor and City Council adopted another resolution formally dismissing Martin as Chief of Police of St. Martinville, assigning the following reasons for that action:

“(1) Failure to report to work on any particular schedule;
“(2) Failure to perform his duties in the following respects:
“(a) In spite of specific instructions, and .with full knowledge, he personally released several persons whom he had previously arrested for possession of narcotics;
“(b) He personally investigated noises and disturbances in a house owned by Miss Therese Borel, heard the noises and conversations about narcotics on the inside and failed to arrest anyone, even though it was well known that the conversations inside the building was about narcotics ;
“(c) Failed to prepare reports and deliver evidence from his office to the District Attorney for prosecution of cases investigated by his office for an unusually long period of time;
“(3) Since his suspension on October 1, 1974, he informed the news media and caused to be printed in the Daily Advertiser a statement by him alleging that one member of the Council had told him that he had not voted for his suspension at the meeting' on October 1, 1974, knowing that said council member had, in fact, voted for his suspension in his presence;
“(4) Since his suspension on October 1, 1974, he caused to be published in the Daily Advertiser a statement that another member of the Council had informed him that if the vote for his suspension were to be brought up again the results would be different, implying that the other councilman would have voted differently, knowing that such a statement was not what the councilman had said to him.”

The first two reasons assigned for dismissal, as shown in the above resolution, are substantially the same as the reasons which were assigned one week earlier for suspending him as Chief of Police. Reasons (3) and (4) in the resolution dismissing him were not included in the October 1, 1974, resolution of suspension.

Martin appealed to the St. Martinville Police Civil Service Board from the action of the Mayor and City Council dismissing him as Chief of Police.

A somewhat protracted hearing was held before the Police Civil Service Board on plaintiff’s appeal from his dismissal, the hearing having begun on October 29 and ended on November 8, 1974. At that hearing Martin filed a motion to dismiss the charges, one of the grounds being that the charges do not allege legal grounds for disciplinary action, as provided in LSA-R. S. 33:2560 (A). The Board overruled plaintiff’s motion as to charges 1 through 2(c), and it deferred action on charges 3 and 4. The Board then heard evidence only as to charges 1 through 2(c). A hearing was not held on charges 3 and 4, and those charges are not before us on this appeal.

The Police Civil Service Board rendered a decision on November 15, 1974, affirming the dismissal of plaintiff by the Mayor and City Council. They assigned as reasons therefor that "Considering the law and the evidence, we find that the Mayor and City Council acted in good faith for cause as set forth by law and we do hereby affirm the action of same Appointing Authority discharging Chief of Police Richard Martin.”

Martin then instituted this action in the Sixteenth Judicial District seeking judicial review of the Board’s decision. He contends that the decision was not made “in good faith for cause,” as required by LSA-R.S. 33:2561. The trial judge concluded that the Board “had ample evidence before it upon which it could lawfully have decided as it did decide,” and that plaintiff had failed to demonstrate that the decision was not made in good faith for cause. Judgment thus was rendered by the trial court affirming the action of the Civil Service Board.

Applicable here are the provisions of LSA-R.S. 33:2531-2568, relating to fire and police civil service laws for small municipalities.

The grounds for which the appointing authority may remove or discipline a tenured employee are set out in LSA-R.S. 33:2560. The pertinent part of that section of the Revised Statutes provides :

“A. The tenure of persons who have been regularly and permanently inducted into positions of the classified service shall be during good behavior. However, the appointing authority may remove any employee from the service or take such disciplinary action as the circumstances warrant in the manner provided below, for any one of the following reasons:
“1. Unwillingness or failure to perform the duties of his position in a satisfactory manner.
“2. The deliberate omission of any act that it was his duty to perform.
“3. The commission or omission of any act to the prejudice of the departmental service or contrary to the public interest or policy.”
* * * * ‡
“IS. Any other act or failure to act which the board deems sufficient to show the offender to be an unsuitable or unfit person to be employed in the fire and police service.”

LSA-R.S. 33:2561 provides, in substance, that the issue to be determined by the Police Civil Service Board or by the district court, in the event an appeal is taken to that court, is whether the decision of the appointing authority or of the board was “made in good faith for cause,” as set forth in the Fire and Police Civil Service Law for small municipalities (LSA-R.S. 33:2531-2568). We interpret that to mean that the action of the appointing authority, in order to be valid, must be both “in good faith” and “for cause.” The action of that authority must be set aside if it was not taken “for cause,” even though it may have been taken in good faith. Our particular concern here is whether the suspension or dismissal of plaintiff Martin was made “for cause.”

The applicable statutes do not define “cause,” and we have been referred to no Louisiana jurisprudence in which that term has been interpreted in connection with similar types of cases. We have found cases decided in other jurisdictions, however, where the word “cause” has been construed in connection with similar statutes, and we consider the reasoning in some of those cases to be persuasive here. In Riley v. Board of Police Commissioners of City of Norwalk, 147 Conn. 113, 157 A. 2d 590 (1960), for instance, the court said, “Cause implies a reasonable ground of demotion or removal as distinguished from a frivolous or incompetent ground.” The word “cause” also has been defined as “some substantial shortcoming which renders the employee’s continuance in office in some way detrimental to the discipline and efficiency of the service and which the law and sound public opinion recognize as good cause for his no longer holding the position.” Coursey v. Board of Fire and Police Commissioners, 90 Ill.App.2d 31, 234 N.E.2d 339 (1st Dist. 3rd Div.1967).

We believe that in order for the dismissal or the disciplining of a tenured police officer to be valid, as being in good faith for cause under LSA-R.S. 33:2561, the dismissal or disciplinary action must be reasonably necessary for the continued efficiency of the service being rendered by the appointing authority. The evidence must show that the failure to dismiss or discipline the officer would be detrimental to the city or to the service which it is required to perform. The dismissal of such an officer cannot be said to have been made “in good faith,” if the appointing authority acted arbitrarily or capriciously, or if the action taken was the result of prejudice or political expediency. His dismissal cannot be said to have been “for cause,” if the evidence fails to show that it was necessary for the discipline and efficiency of the police department, or that it was needed to avoid some detriment to that department or to the city.

Our review of the evidence convinces us that the dismissal of plaintiff Martin was not made “for cause,” and that the decision of the Police Civil Service Board affirming that dismissal must be reversed.

The first reason assigned by the appointing authority for the dismissal of Martin was his “failure to report to work on any particular schedule.”

The evidence shows that during the latter part of June, 1974, the Mayor asked Martin to make up a work schedule for “one month ahead of time” for members of the city police force. That request was made in the presence of other members of the City Council and it was made because the Mayor and Councilmen had discovered that some policemen were doing a considerable amount of overtime work. They felt that by making up a work schedule for the department the policemen would work more reasonable hours and the city’s expenditures for overtime pay would be reduced. Martin promptly made up a work schedule for all city policemen for the months of July and August, 1974, as requested, and he submitted that schedule to the Mayor and to members of the City Council. Martin included his own name on that schedule, showing that he would work from 8:00 A.M. to 4:00 P.M. each day, Monday through Friday, and that he would be on “24 hr. call” every Saturday and Sunday.

Martin testified that he placed his own name on the schedule “for the sake of putting it down and to have my name down.” He stated, however, that it would have been impossible for him to perform his duties as Chief of Police if he were required to remain in his office during a scheduled number of hours each day, and for that reason the schedule was not intended to indicate that he would remain in his office or in the police headquarters during the hours he was scheduled to work. He testified that his duties required him to be out of his office frequently during the day, on weekends and at night, many times for investigations and for stake outs. He concedes that he was not in his office at all times during the hours shown on the schedules which he submitted to the City Council, but he testified that he worked more than eight hours every day. The record shows that Martin has never submitted a claim for overtime work, and that he has never received any overtime pay.

Copies of the minutes of all meetings of the City Council of the City of St. Martin-ville held in the month of June, 1974, were introduced in evidence, and those minutes show that no official action was ever taken by the city ordering or directing Martin to work any particular number of hours each day. We find no evidence in the record indicating that the Mayor, any member of the City Council or any other authority ever instructed Martin to remain in his office or in the Police Department headquarters during a particular'number of hours on any day of the week. He was simply asked to work out and submit a schedule of working hours for those who were in his department. ’

The only evidence presented which was intended to show that Martin had failed to report to work on any particular schedule was the testimony of the Mayor, four members of the City Council and a secretary who worked in Martin’s office. The secretary was a member of the Police Civil Service Board which had affirmed the action of the City Council. The testimony of the Mayor and members of the City Council was to the effect that they had visited the police station from time to time between the hours of 8:00 A.M. and 4:00 P. M., Monday through Friday, from June 1 to October 1, 1974, and that they had failed to find Martin in that station on most of those occasions. The secretary verified the fact that Martin did not remain in his office during the hours shown on the schedules, and that she frequently did not know where he was, although she conceded that the radio dispatcher usually was kept informed as to where he was and how he could be located.

A number of witnesses testified in behalf of plaintiff Martin, including several members and former members of the police force in St. Martinville, the former Chief of Police of that city, the Chief of Police of New Iberia, and one member of the City Council. The testimony of these witnesses is convincing to the effect that it would be impossible for the Chief of Police to discharge his duties properly if he should be required to remain in his office during scheduled hours each day, that Martin was available at all times, that no one had had any difficulty in contacting him immediately on the many occasions when it became necessary or desirable to do so, and that Martin worked more than eight hours every day. The evidence convinces us that he performed his duties as Chief of Police efficiently, that he could not have performed those duties properly if he had remained in his office during the hours shown on the schedules which were submitted to the City Council, that he was never instructed to remain in his office during the hours shown on the schedule, and that his failure to maintain office hours in accordance with those schedules did not in any way detract from or lessen the efficiency of the police department.

The schedules, of course, do not indicate that the policemen listed thereon, including the Chief of Police, were to remain in the police station during all of the hours they were on duty. A police department obviously could not be operated effectively with such a requirement, since it would eliminate such services as patrolling, investigations, stake outs and apprehending offenders. The fact that plaintiff was not in the police station on many occasions when the Mayor and councilmen visited it does not establish, therefore, that Martin had failed to report to work on those days.

Our conclusion is that the evidence does not show that Martin failed “to report to work on any particular schedule.” His failure to maintain scheduled office hours does not constitute a sufficient “cause” for his dismissal. The action of the Mayor and City Council of the City of St. Martin-ville in dismissing him, therefore, insofar as that dismissal was based on Charge 1, was not “for cause,” as that term is used in LSA-R.S. 33:2561.

The defendant city contends in Charge 2(a) that Martin released several persons whom he had previously arrested for possession of narcotics, contrary to the specific instructions which he had received from the Mayor and City Council and with full knowledge of the circumstances. This charge was based largely on the arrest and subsequent release of one person, an 18-year-old girl, for possession of marijuana.

A “concert” was scheduled to be held in St. Martinville on July 4, 1974. Mayor Earl H. Willis testified that plans for law enforcement on that date were discussed at a meeting of the City Council held on July 2, the pertinent part of his testimony being as follows :

“. . . somebody, I think it was Mr. Lee Dugas, asked if the city and the police were going to be hard on narcotic violators, and I answered his question, and the Chief of Police was there and other police officers were there, and I told him that laws were made and the police should enforce all laws, and I told him that I was specifically instructing all police officers in St. Martinville to specifically arrest any law violators at the fourth of July or any other time, including those who were violating the narcotics laws, even if in the minds of some people there was a feeling that marijuana was not bad, it was still illegal, and that there was no distinction to be made by police officers with reference to the marijuana laws as opposed to the other types of laws that were there.”

Mayor Willis also testified that he talked to plaintiff after the above meeting of the City Council, and discussed with him generally plans for law enforcement while the concert was being conducted, and he told Martin that “peace and order were very important for St. Martinville.”

The minutes of the July 2 meeting of the City Council do not show that this matter was discussed at that meeting, and they disclose that no action was taken by the City Council relating to law enforcement during that concert.

While the concert was being conducted on July 4, Martin and some members of his department observed a group of young people around a van, and an investigation resulted in the arrest of the above mentioned 18-year-old girl who was found to have a small quantity of marijuana in her possession, sufficient to justify a misdemeanor charge against her. The girl and three of her companions were arrested and were taken to police headquarters. The companions were released shortly thereafter since there was no evidence on which charges could be based.

Martin and other officers interrogated the girl, and during the course of that investigation she agreed to serve as an “informer” and to assist the State Police in locating and apprehending the source of the narcotic traffic in the Lafayette area. Martin called the State Police and made arrangements for her to work with them. After that arrangement was made, the girl was released from arrest.

Martin maintained contact with the State Police concerning the case, and the latter subsequently informed him that they had talked to the girl, but that she was so nervous that they felt she could not be of any assistance to them. No charges were filed against the girl, and no further action was taken in that case. Martin explained that when the offer of a narcotics violator to serve as an informant is accepted, charges customarily are not filed against him for that violation, since the filing of charges would preclude the possibility of obtaining any other informers.

Several law enforcement officers with experience in the investigation of narcotics violations testified that the action taken by Martin in that case was proper and was in accordance with good law enforcement practices. The use of informants, they state, is the main weapon used by enforcement officers in detecting and apprehending the distributors of narcotics. Informants usually are people who are apprehended for simple possession of narcotics, and who agree to assist the police in lieu of being charged. The evidence indicates that in this instance Martin’s actions were consistent with normal police procedure.

The city argues that Martin was derelict in having failed to prosecute the girl after it was determined that she could not be used as an informant. The testimony of experienced police officers is convincing, however, that had Martin subsequently charged her with that violation, his credibility with other potential informants would be destroyed.

When Mayor Willis learned of the incident about four or five weeks after the girl had been apprehended, he discussed the matter with Martin and the latter explained the position he had taken. Martin offered at that time to re-apprehend the girl and to have her charged if the Mayor felt that that should be done. Mayor Willis, however, merely told Martin to “do what you think is best.” Martin considered it best to not press charges against the girl.

The defendant, City of St. Martinville, also charges that Martin released a young man, named Mark D. Moulis, who had been arrested on July 4, 1974, under a charge of possession of marijuana.

The evidence shows that this young man was arrested by a city policeman, but that he was confined in the parish jail, which of course was under the supervision and control of the Sheriff of St. Martin Parish, not the St. Martinville Police Department. Martin did not make the arrest, he did not go to the Sheriff’s office at any time, he did not sign a formal charge or a report and he did not sign an authorization for the release of Moulis. Sometime after the arrest Martin contacted a deputy sheriff by telephone and requested that the Sheriff permit one of the city policemen to bring all of the offenders in the parish jail who had been arrested on July 4 to his office for questioning. This request apparently was granted by the dispatcher in the Sheriff’s office and Moulis was turned over to a city policeman for that purpose.

After Moulis was turned over to a city policeman, the Sheriff’s dispatcher scratched out the information relating to Moulis on the booking sheet in the Sheriff’s office and he wrote on that sheet “released by Chief Dickie Martin.” Martin did not go to the Sheriff’s office, he signed no request for the release, and the evidence does not show what disposition was ever made of that case.

The city does not mention the release of young Moulis in its arguments relating to this case, and we assume that it has abandoned that incident as a basis for Charge 2(a). We nevertheless have considered the evidence, and find that there is no cause or justification whatsoever for the dismissal of or for disciplinary action against Martin because of anything which transpired in connection with young Moul-is.

We find nothing in Martin’s conduct relating to either of these cases which was detrimental to the discipline or efficiency of the police department of the City of St. Martinville. His actions appear to us to be consistent with good law enforcement practices. His failure to file formal charges or to pursue the prosecution of the two possible narcotics violators above mentioned did not constitute sufficient “cause” for his dismissal. We hold, therefore, that the evidence tending to support Charge 2(a) is not sufficient to constitute a “cause” for plaintiff’s suspension or dismissal.

We also find no merit to Charge 2(b).

Plaintiff was asked by a deputy sheriff and an investigator from the district attorney’s office to check into a report of a possible narcotics violation. Martin and the two officers above mentioned investigated the report and all of them concluded that there was no evidence to support a charge of any kind, not even a charge of disturbing the peace. During that investigation they overheard a young lady criticize the deputy sheriff for having arrested her younger brother at another time for smoking marijuana. Such a criticism, of course, did not constitute a criminal offense.

Although no evidence was found which would warrant a charge of any kind, Martin nevertheless staked out the house for a period of time thereafter, making nine or ten trips to it, to determine whether any offenses related to narcotics were being or had been committed there. He failed to find any evidence of such violations.

We conclude that insofar as Charge 2(b) is concerned, the evidence fails to show that the dismissal was “for cause.”

The city charges, in Charge 2(c), that Martin failed to prepare reports and deliver evidence from his office to the district attorney for prosecution of cases investigated by his office for an unusually long period of time.

At the beginning of the trial the appointing authority agreed that this charge was based solely on three incidents. One related to the case of State v. Jeffrey Walker, where the defendant was charged with possession and distribution of illegal drugs in June, 1973. The second involved charges of possession of marijuana filed in May, 1973, in State v. DeLauney, Fuselier, Greig and Melancon. And the third related to a shooting incident which occurred in the city police headquarters on or about May 28, 1974.

The only witness called by the appointing authority to support Charge 2(c) was Tom L. Lovas, who was working as an investigator for the district attorney at the time each of the above mentioned incidents allegedly occurred. Lovas was appointed to replace Martin as Chief of Police on October 1, 1974, and he has continued to serve as Chief of Police since that time. We assume that Lovas will lose his job if Martin is reinstated, and that the interests of Lovas thus are opposed to those of Martin in the instant suit. Neither the district attorney nor any of his assistants were called by the city to support Charge 2(c).

Lovas conceded that charges were properly filed in the first two cases above mentioned, and that the district attorney’s office had received reports from the arresting officers, statements from all of the witnesses, and reports from the laboratory.

At the trial Lovas testified that he had been instructed by an assistant district attorney to contact Martin to obtain more information about these cases. Pursuant to that instruction, he wrote a form letter to plaintiff on December 13, 1973, requesting that Martin contact him for the purpose of discussing both of the above mentioned cases “and obtaining a statement as to exactly what happened.” Lovas was unable to state what information he needed in connection with these cases, because the files of the district attorney were no longer available to him, but he testified that Martin nevertheless did not contact him and provide him with the information he wanted.

Martin testified that he arrested Walker, that he promptly charged him with possession and distribution of marijuana, and that he sent the marijuana to the Acadiana Crime Laboratory for testing. He stated that within the next few days he provided Lovas with a complete, four page report of the case, with statements of the witnesses and with a waiver signed by Walker. He denies that he ever received a letter or request from Lovas for any additional information. Martin also testified that charges were filed, and the same types of reports and statements were furnished promptly to the district attorney in the case involving DeLauney, Fuselier, Greig and Melancon.

The third incident which supposedly forms the basis for this charge related to a shooting in the city police department.

With reference to the shooting incident which occurred on May 28, 1974, the evidence shows that Martin made a full investigation of the incident and concluded that no criminal act had been committed. He nevertheless reported the matter to the Police Civil Service Board, and he appeared before that board at a special meeting held on July 1, 1974, where he again explained what had occurred. The board determined that disciplinary action should be taken against the two patrolmen involved, and that type of action was taken in that each was suspended for thirty days without pay. Martin explained that the city attorney was at that meeting, that he talked to that attorney and that the latter did not suggest at any time that criminal charges should be filed. No charges were preferred in that case.

We find nothing in the evidence which could serve as a “cause” for the dismissal or suspension of Martin in connection with that incident.

Our ultimate conclusion is that the action taken by the Mayor and City Council in October, 1974, suspending and later dismissing Martin as Chief of Police of the City of St. Martinville, was not taken “for cause,” as that term is used in LSA-R.S. 33:2561. The suspension and dismissal of Martin, therefore, must be set aside and the city ordered to reinstate him as Chief of Police, with full benefits and all back pay.

In view of the conclusions which we have reached, it is unnecessary for us to consider the other arguments made in behalf of plaintiff, and particularly it is unnecessary for us to determine the question of whether the Mayor and City Council were “in good faith” in ordering the suspension and dismissal of plaintiff.

When this case came up for argument, we raised the question on our own initiative of whether this court has jurisdiction to review the judgment of the district court. At our request counsel submitted additional briefs as to that issue. We are convinced that this court does have jurisdiction to review the decision of the trial court. See Bowen v. Doyal, 259 La. 839, 253 So.2d 200 (1971); Touchette v. City of Rayne, Municipal Fire & Police Civil Service Board, La.App., 321 So.2d 62.

For the reasons herein set out, the judgment appealed from is reversed. Judgment is hereby rendered ordering and directing the Mayor and City Council of the City of St. Martinville to reinstate plaintiff Martin as Chief of Police of that city, effective October 1, 1974, with full benefits and with restoration of all back pay lost as the result of his illegal suspension or dismissal. The costs of this appeal are assessed to the City of St. Martinville.

Reversed and rendered.

On Application for Rehearing

Before HOOD, CULPEPPER and MILLER, JJ.

PER CURIAM.

The defendant points out in its application for rehearing that we inadvertently assessed costs against the City of St. Martin-ville, contrary to the provisions of LSA-R.S. 13:4521.

We hereby correct the judgment which we rendered earlier in this case to provide that defendant, City of St. Martinville, is assessed for only those costs which it legally may be obligated to pay under LSA-R.S. 13:4521 or any other pertinent statute.

The application of defendant for a rehearing is denied.


author: WATSON, Judge. MILLER, Judge MILLER, Judge.

text:
    Joseph N. TRAIGLE, Collector of Revenue, Department of Revenue, State of Louisiana, Plaintiff-Appellee, v. P. P. G. INDUSTRIES, INC., Defendant-Appellant.
    No. 4995.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 3, 1975.
    Rehearing Denied Nov. 13, 1975.
    Writ Refused Jan. 9, 1970.
    Stockwell, St. Dizier, Sievert & Viccellio by William E. Shaddock and Scott J. Pias, Lake Charles, for defendant-appellant.
    Gerald LeVan, Baton Rouge, and Pugh & Nelson by Robert G. Pugh, Shreveport, for plaintiff-appellee.
   ON REARGUMENT

Before FRUGÉ, HOOD, MILLER, DO-MENGEAUX and WATSON, JJ.

WATSON, Judge.

This appeal was reargued to a panel of five judges, pursuant to an order of the Louisiana Supreme Court. 317 So.2d 625 (La.1975).

We continue to adhere to the views expressed in our original opinion, 315 So.2d 859, and for the reasons assigned therein the judgment of the trial court is reversed and plaintiff’s petition is dismissed.

Costs insofar as provided by law are taxed against the Collector of Revenue.

Reversed.

MILLER, J., dissents and assigns written reasons and voted for rehearing and assigns reasons.

FRUGÉ, J., dissents and voted for rehearing for reasons assigned in his two dissents herein.

MILLER, Judge

(dissenting).

The majority finds the issue to be whether P.P.G.’s graphite is processed into tangible personal property. Since 60% of the graphite ends up (as waste) in the product stream, the affirmative answer is reached. On this premise the majority finds P.P.G.’s use of graphite to fall within an exception to the imposition of the sales or use tax. I respectfully dissent.

The issue is: Does the graphite’s presence (U/2 to 2% oxides of carbon by volume) in the chlorine increase the sales potential of the product? The issue is not whether or not carbon is present in the chlorine. The majority does not reject the trial court’s apt factual summary: “Oxides of carbon are not a recognizable, integral part of chlorine. Also, their presence is not beneficial to chlorine. They are foreign to the nature of chlorine, simply because they are not chlorine molecules. It is not the CO2 (or CO) that is sold at retail, but the chlorine, the desired product, that is sold at retail. The oxides of carbon are with the chlorine as extraneous, unwelcome and useless extra ingredients. They would be kept out of the chlorine if it were economical and feasible to keep them out. The court cannot say that these graphite blades were ever intended to be in the product stream, and therefore, by statutory definition and not exclusively by the Collector’s definition, they cannot be regarded as 'materials for further processing into articles of tangible personal property for sale at retail.’ ”

LSA-R.S. 47:302 imposes the sales tax on the “sale at retail, the use, the consumption, the distribution” of items of tangible personal property. This is the broadest possible imposition intending to reach all goods in the stream of commerce. The legislative act has reached this graphite absent some exception. P.P.G. alleges such an exception in the statutory definition of retail sales:

“Retail sale,” or “sale at retail,” means a sale to a consumer or to any person for any purpose other than for resale in the form of tangible personal property, and shall mean and include all such transactions as the collector upon investigation, finds to be in lieu of sales; provided that sales for resale must be made in strict compliance with the rules and regulations. Any dealer making a sale for resale, which is not in strict compliance with the rules and regulations, shall himself be liable for and pay the tax.
The term “sale at retail” does not include sales of materials for further processing into articles of tangible personal property for sale at retail, nor does it include an isolated or occasional sale of tangible personal property by a person not engaged in such business. LSA-R.S. 47:301(10)

The three exceptions to the sales tax do not create exemptions, but insure the tax is imposed but once, and then at the last transaction in the economic chain from raw material through production to consumption. On this premise, the phrase “tangible personal property for sale at retail” is not merely descriptive but states a purposive and therefore determinative character for the exception.

The first of the three exceptions excludes sales leading to resale. This is the necessary exception if a sales tax is to be collected but once. The third exception relates to casual, occasional sales which are not part of the stream of commerce (on which the tax is levied).

The first and third exceptions are not exceptions in the sense that they carve out some area and excuse or forgive the tax. Rather they are boundaries to restrict the tax to the final transaction in the stream of commerce.

To interpret the “further processing” exception (the second exception) in the same manner, the issue is: Does the material which might or might not be taxed, add to the final price ? The price is the base for imposition of the tax. If the presence of a material has no impact on the salable value and consequently the price, it cannot accurately be said to be taxed in that sale. This implicit inclusion in or contribution to the final price is referred to by the trial judge in his use of the word “benefit.” It is respectfully submitted the majority erred in finding his reference to “benefit” was related to a non-applicable regulation. I firmly agree with the trial court — in fact, the “benefit” implication is not only reasonable, it is an essential element of the design of the sale or use tax.

Except in the most superficial economics, every cost ultimately plays some role in the final price. But unless the system is reduced to a single tax, some attempt must be made to assign the kinds of taxes on materials, equipment, etc., to the corresponding roles they play in the final price. Usually production costs, after capital outlay, are divided into maintenance and material or supplies. This conceptual distinction may be blurred when materials are used in the same way as equipment (sand in sand-blasting) by the overlapping use of the word materials. However, the overlap is illusory, since the function determines its role in the final price of the product.

Chemical production is sophisticated enough to utilize a dual function of substances where possible, designing equipment on that basis. However, P.P.G.’s engineer was asked specifically if that was the case here, and was uncertain, if not evasive in his response. Tr. 2S5, 265.

Another point relating to the function of the carbon is made by the trial judge in finding its presence in the ultimate product occurs as “waste.” Tr. 239. The majority has not overturned this factual determination. As waste it plays no part in the value or price of the product to the ultimate purchaser or consumer. There is no suggestion that carbonated chlorine is more valuable or salable than pure chlorine — on the contrary, this record supports the trial court’s finding the manufacturer would remove the carbon if it was financially feasible.

The majority’s decision creates a sizea-ble loophole in the sales tax structure. The carbon is not subjected to the sales or use tax at any point in the stream of commerce.

This court’s reasoning in Frey supports this analysis. The major issue in Frey related to the containers, and whether they were “for sale.” We held the function or purpose of the containers was a factor in pricing the product and its merchandising. 262 So.2d at 136. The resolution of the “sawdust issue” is not contrary to the view expressed in this dissent. Smoked meat is not the same product as meat which is merely cooked. Smoking meat adds an ingredient which is a component of the market value. For some of the market, smoking adds value or price to meat. The cost of adding the smoke process is therefore taxed at retail as an integral part of the sale price. Carbonated chlorine does not, at least insofar as this record would indicate, import the same difference in kind from chlorine as smoked meat differs in kind and adds value to meat.

A look at jurisprudence from other states (dealing primarily with exemptions) reveals a general distinction between ingredients and expendables. Some statutes excuse the tax only on ingredients and some on both. 30 A.L.R.2d 1439-60. The Maine statute exempts a commodity “ . . . which becomes an ingredient or component part of, or which is consumed or destroyed or loses its identity in the manufacture of, tangible personal property for later sale . . . .” R.S. c. 17. § 2; P.L. 1955 c. 144.

In Oxford Paper Co. v. Johnson, 155 Me. 380, 156 A.2d 235 (1959), mercury used as a cathode in a Sorenson cell for chlorine production was found to be an expendable, not a component or ingredient. 156 A.2d at 238. The parties stipulated (156 A.2d at 237, § 15) some mercury is lost during manufacture of chlorine in “ . . . several ways, including evaporation into the atmosphere, permanent chemical combination with contaminants in the cell system, spillage, and absorption in the sodium hydroxide solution.” The graphite in the Columbia cell used by P.P. G. dissipates in substantially the same manner. It is also an expendable — not a component. Although the Maine statute differs from Louisiana’s in that it contains exemptions, the distinction between “expendables” and “ingredients” illuminates the effect of the majority’s decision.

The majority extends the function of the exception in Louisiana’s statute from deferring imposition of a tax to exempting some items from the sales or use tax — a scheme not contemplated by the legislature. The majority excuses the tax on all graphite although P.P.G. never claimed more than 60% of the carbon found 'ts way to their final product— and then it appeared as an unmerchantable adjunct. This interpretation of the statute to include expendables represents a judicial expansion of the statute and departs from the legislature’s expressed intent.

Since there is no language in the opinion to restrict the extent of this judicially created exemption, everything used in the manufacturing process- — tools, machines, materials, etc., can be exempt. While there is initial reliance on some trace of incorporation in the final product, the forgiveness of the tax on all graphite eliminates the “incorporation” test. The majority rejected the Revenue Collector’s alternative claim for use tax on that 40% of the graphite which did not appear as carbon in the chlorine.

The trial court was imminently correct. I respectfully dissent.

FRUGÉ, J., adheres to original dissent and concurs in dissent by MILLER, J.

ON APPLICATION FOR REHEARING

Before FRUGÉ, HOOD, MILLER, DO-MENGEAUX and WATSON, JJ.

MILLER, Judge.

I respectfully submit the application for rehearing should be granted. It is to be noted the majority has not found manifest error in the trial court’s holding that CO and GO2 found in PPG’s chlorine appear as waste. As counsel for Collector noted in brief, since the CO and CO2 are harmless in PPG’s chlorine, PPG uses its customers to take out its garbage rather than install an expensive system for separation and disposal. Under the majority decision, Louisiana rewards this business practice by allowing PPG a tax exemption.

The judgment rendered is not consistent with the majority’s reasoning. The opinion exempts from use tax the graphite (carbon) on the theory it is incorporated in the product stream as a relatively insignificant volume of CO and OO2. PPG admits forty percent of the graphite it purchases never reaches the product stream. Fifteen percent, in the form of unusable lead anode stubs, remains in PPG’s plant and is lost as waste. Twenty-five percent of the graphite becomes a residue at the bottom of PPG’s chlorine cell and is discarded by PPG. On these facts, at the very least the judgment should be modified to assess use tax on the unincorporated forty percent.

Additionally, PPG’s expert Mr. Jefferies established some chlorine is liquefied to facilitate transportation and all carbon disappears in the liquification process. Tr. 301, 315. There is no evidence to indicate what percentage of chlorine is liquified before it is sold by PPG. Since the CO and CO2 disappear at this point, under the majority’s theory of this case an exemption should not be allowed for this additional graphite not incorporated in the final product actually purchased by the consumer.

The majority has not come to grips with a very real issue in this case. A tax exemption is being allowed to P.G. on at least forty percent of the graphite bought by PPG on the theory the purchaser buys some CO and CO2. Would the exemption on 100% of PPG’s graphite purchases be allowed if PPG were to sell ninety percent of its chlorine after it has been liquified, and the purchaser would then be purchasing (still as waste) less than six percent of the carbon used or wasted by PPG in its manufacturing process ?

I respectfully dissent from the majority’s refusal to grant a rehearing.


author: OVERTON, Justice.

text:
    FLORIDA EAST COAST RAILWAY COMPANY, a Florida Corporation, Petitioner, v. CITY OF MIAMI, a Municipal Corporation of the State of Florida, Respondent.
    No. 44874.
    Supreme Court of Florida.
    July 24, 1975.
    Rehearing Denied Nov. 18, 1975.

      William P. Simmons, Jr. and Eric B. Meyers of Shutts & Bowen, Miami, for petitioner.
    John S. Lloyd, City Atty. and Robert Orseck of Podhurst, Orseck & Park, Miami, for respondent.
    Robert L. Shevin, Atty. Gen. and Jerry E. Oxner, Asst. Atty. Gen., for amicus curiae.
   OVERTON, Justice.

This cause is before us upon petition for certiorari to review a decision of the Third District Court of Appeal, reported at 286 So.2d 247. Conflict is asserted with Georgia Southern and Florida Railway Company v. State Road Department, 176 So.2d 111 (Fla.App. 1st 1965), and City of Dania v. Central and Southern Florida Flood Control District, 134 So.2d 848 (Fla.App. 2d 1961). We agree there is conflict as herein expressed, and we have jurisdiction under Article V, Section 3(b)(3), Florida Constitution, West’s F.S.A.

This action commenced as a condemnation by the City of Miami for park purposes against certain waterfront lands owned by the petitioner herein, Florida East Coast Railway Company. The trial court, after an extensive hearing on the issue of the City’s right to acquire certain railroad property by eminent domain, entered the following order:

“The evidence presented by the [City of Miami] consisted of the testimony of two expert witnesses, the director of the City’s Planning Department and one of his assistants, who testified that the property sought to be condemned was needed for public recreational park uses. The [City] did not offer any evidence directly bearing on the extent of the present uses of the property by the railroad or its prior uses.
“The defendant railroad presented extensive evidence as to the present and prior uses of the property. It appears that for several years most of the property fronting on Biscayne Boulevard has been leased for various commercial uses not directly connected with the operation of the railroad. There are four such parcels under lease as shown on Exhibit ‘C’ of the defendant railroad: Parcel #1 in the southwest corner of the property leased to Standard Oil Co.; Parcel #3 in the center of the property leased to Holiday Inns of America, Inc.; Parcel #4, near the north end of the property leased to American Oil Co.; and a parcel in the northwest corner of the property designated on the exhibit as Parcels 5 and 6, fronting 125' along Biscayne Boulevard and extending eastward 100'.
“Another portion of the property designated as Parcel #2 on Exhibit ‘C’ has been under lease since January 1, 1966 to TMT Trailer Ferry, Inc., and used for marine terminal purposes in its operations as a common carrier of freight traffic on barges between Miami and Puerto Rico.
"The remainder of the property has been used and occupied for many years by the railroad as a port facility. Two rail lines of the railroad, designated as team tracks, serve this part of the property and parallel the bulkhead where vessels dock so that property can be conveniently transferred between ships and railroad cars.
“The evidence presented by the railroad showed extensive use of these port facilities in recent years for the dockage of vessels and the transfer of cargo moving in interstate and foreign commerce between ships and barges on the one hand and, on the other hand, the railroad and common carrier trucklines that move the cargo to and from the port. The port facilities operated by the railroad and by TMT Trailer Ferry, Inc., are public facilities, so designated in various tariffs governing their use. The railroad makes continuous use of these public port facilities through its rail lines serving them and also through its wholly owned common carrier truck line subsidiary, the Florida East Coast Highway Dispatch Company. The use of the port facilities by the railroad and its subsidiary is an integral part of the operation of the railroad.”

The railroad accepted the trial court’s order allowing condemnation of part of the subject property, but the City appealed. The Third District Court of Appeal reversed that portion of the trial court’s order denying the City the right to take the property leased to TMT Trailer Ferry, Inc., and certain submerged bay bottom-lands. The cause was ordered remanded to the trial judge to determine whether these properties “[are] necessary for the successful operation of the Railway.” From this ruling the railroad filed the present petition in this Court.

The issues in this case concern the applicability of the prior public use doctrine to the TMT Trailer Ferry, Inc., property and to submerged bay bottomlands. Generally, property held by an authority that has the power of condemnation cannot be taken by another authority with the same power of condemnation absent specific legislation. This is known as the prior public use doctrine. 1 Nichols on Eminent Domain 2-57, § 2.2. Two prior District Court cases considered this doctrine. In Georgia Southern and Florida Railway Company v. State Road Department, supra, the Road Department sought to widen a state road and to condemn parts of a railroad right-of-way for a drainage easement. The First District cited the prior public use doctrine, stating:

“The general rule is that property devoted to a public use cannot be taken and appropriated to another and different public use unless the legislative intent to so take has been manifested in express terms or by necessary implication. . . .”
176 So.2d at 112.

The court held, however, that the subject property could be taken under an exception to the public use doctrine since the proposed use was consistent with and would not materially impair the prior public use.

In City of Dania v. Central and Southern Florida Flood Control District, supra, the Flood Control District sought to condemn land owned by the City of Dania. The Second District Court of Appeal cited with approval the following quotations from Township of Weehawken v. Erie Railroad Company, 20 N.J. 572, 120 A.2d 593, 596 (1956):

“ ‘The doctrine of prior use is well recognized. * * * Simply stated, the rule denies exercise of the power of condemnation where the proposed use will destroy an existing public use or prevent a proposed public use unless the authority to do so has been expressly given by the Legislature or must necessarily be implied * * *.
“ ‘ * * * The rule stems from the recognition that municipal and many private corporations possess general powers of condemnation delegated by the Legislature. If one such body may acquire land used or held for a public purpose by another corporation under a general power of condemnation, the latter would logically be free to re-acquire the same property. * * ”

In the instant case, the Third District Court of Appeal distinguished the City of Danta case, holding that it involved two public bodies, while this cause involves a public body and a franchised public use company. We do not agree with the distinguishing characteristic as expressed by the District Court. It is not controlling.

It is unrefuted that the City could properly condemn land owned by the railroad and used as filling station or motel property; but it could not properly condemn the Dodge Island tracts and terminal because the prior public use doctrine would apply. Those lands are not in dispute. The first disputed issue is whether the prior public use doctrine is applicable to the land leased by the railroad to TMT Trailer Ferry, Inc., and used for marine terminal purposes in a limited type of freight operation. TMT Trailer Ferry, Inc., is a lessee of the petitioner. It operates a terminal on a portion of the land for the docking of barges on which truck-trailers are transported to and from San Juan, Puerto Rico. The truck trailers contain general cargo and sometimes carry automobiles for export. They arrive daily by truck-tractor and are stored on the land pending loading and unloading for weekly sailings. Various truck common carriers, including a wholly-owned truck common carrier of the petitioner railroad, deliver and receive the trailers at the terminal, where they are rolled on or off the barges. The lease has a thirty-day termination clause.

The second issue is whether the prior public use doctrine is applicable to certain bay bottomland, which the petitioner desires to fill to expand its port facilities.

Upon these facts, the Third District held:

“ . . . [I]n order to forestall condemnation, a railroad’s use must not only be a public use but must also be a use ‘necessary for the successful operation of the road’ . . . .”

In so holding, the court quoted with approval a discussion of the prior use doctrine in 26 Am.Jur.2d 7S6, Eminent Domain, § 99:

“ 'In the absence of statutory authority, express or necessarily implied, railroad property may not be taken for another use which will interfere with the operation of the right of way. The use by a railroad company which protects its lands from condemnation under general authority, except for crossings, is not restricted to the operation of its main line, but extends to all the ground occupied by appliances necessary for the successful operation of the road, such as its freight yard, sidetracks, and spur tracks.’
[Emphasis supplied]”

286 So.2d at 251.

This is an additional criterion and limitation for railroads upon the prior use doctrine as expressed in Georgia Southern and Florida Railway Company v. State Road Department, supra, and City of Dania v. Central and Southern Florida Flood Control District, supra, and, therefore, there is conflict. We approve the additional criterion as expressed in the Third District’s opinion.

We are concerned, however, that this concept of prior public use may be misapplied without a clarification of the terms “necessary” and “successful.” We understand the term “necessary” in this context to mean utilitarian in furtherance of the public use for which a public franchise or certificate of public convenience and necessity has been granted. It does not mean “indispensable” to the railroad operation.

We further understand the term “successful” to mean a use correlative with the railroad’s public use, as opposed to a financially successful use. The application of a “financially successful” use exception to the doctrine could have results not intended. For example, under the facts of this case the revenue derived from the leases to the Holiday Inn, Standard Oil, and American Oil might be financially important to the continued survival of the railroad company. As we understand “successful,” it is used in the context of the rail carriage activities of the railroad. Nothing in the new exception, however, should prevent the retention of a financially unproductive railroad public purpose activity. The courts should not intrude into the domain of management.

The doctrine of prior public use should operate as a complete bar to condemnation if the subject property is used in furtherance of the railroad’s public purposes. However, if the use is principally for common carriage other than a railroad, i. e., a truck terminal unrelated to rail carriage, it does not qualify since condemnation by the railroad for a truck terminal purpose is not authorized.

We recognize that substantial testimony was taken before the trial court concerning the subject properties. Neither the parties nor the trial judge, however, had the benefit of knowing that the railroad under these circumstances bore the burden of showing that the leased premises used by TMT Trailer Ferry, Inc., and the subject submerged lands must be “necessary for the successful operation of the [railjroad.” The decision of the District Court to remand for that purpose is proper.

The final point in this case concerns an additional amendment to Section 360.02, Florida Statutes, occurring after the District Court decision. This section grants railroad and canal companies authority to condemn land for terminal facilities, and reads as follows, the underlined portion being the amendment effective May 17, 1974:

“Railroad and canal companies may condemn land for terminal facilities.— Any railroad or canal company, which is a public carrier or intended to be, in the construction of its railroad or canal, or in the extension of the same, for the purpose of securing terminal facilities therefor on any of the waters of any river, lake, bay, gulf or ocean, shall have and they are hereby given the right to condemn for the use of such railroad or canal company, a sufficient area of land therefor and included in which shall be space on shore for depots, yards, switches, turntables, shops and storehouses, and such area in and over the waters to the limit of the channel, natural or artificial, of rivers, lakes, bays, gulf or oceans sufficient for ample room for docks, wharves, elevators, berths for ships, warehouses and storehouses, trades, switches, and all required facilities for the reception, retention, transfer and forwarding of commerce. However, such right shall be subordinate to the right of the governmental entity wherein the property is located to condemn said property through the exercise of its powers of eminent domain for a public purpose.” [Emphasis supplied]

The respondent, City of Miami, contends that this amendment makes this cause moot, the City now having the superior power of condemnation. Petitioner-railroad, on the other hand, contends that the amendment is only applicable where railroad and governmental entities both seek to obtain title by exercising their respective powers of eminent domain, the amendment providing that the railroad may not exercise this right if the local governmental entity itself seeks to take the same property. This is a justiciable issue that must first be considered at the trial level. We adhere to the rule that we will not consider an issue raised initially in this Court.

The order of the Third District Court of Appeal is affirmed as herein modified.

It is so ordered.

ADKINS, C. J., and BOYD and ENGLAND, JJ., concur.

McCAIN, L, dissents.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Petitioner, v. Alfredo BORGES-CAIGNET, Respondent.
    No. 44005.
    Supreme Court of Florida.
    July 30, 1975.
    Rehearing Denied Nov. 26, 1975.
    Norman K. Schwarz, Leonard Rivkind, Miami Beach, David W. Walters, Miami, Richard C. McFarlain, Asst. Director, and William B. Wiley, Asst. Staff Counsel, Tallahassee, for petitioner.
    Franklin D. Kreutzer, Miami, for respondent.
   PER CURIAM.

This cause is before us on the petition of The Florida Bar filed pursuant to Article XVI of the Integration Rule and charging Respondent with the unauthorized practice of law. Article II, Section 2, of the Integration Rule provides :

“2. No person shall engage in any way in the practice of law in this state unless such person is an active member of The Florida Bar in good standing except that a practicing attorney of another state, in good standing, who has professional business in a court of record of this state may, upon motion, be permitted to practice for the purpose of such business only, when it is made to appear that he has associated and appearing with him in such business an active member of The Florida Bar.”

Our jurisdiction to prohibit the unauthorized practice of law stems from Article V, Section 15, Florida Constitution, which provides that this Court “shall have exclusive jurisdiction to regulate the admission of persons to the practice of law ..” This constitutional authority necessarily includes the power to prevent the unauthorized practice of law.

This Court having issued its Rule to Show Cause, Respondent filed his motion to dismiss and/or test legal sufficiency of the petition, combined with his answer to which Petitioner replied. Thereafter, this Court appointed Judge Francis X. Knuck as Referee and directed that he should hold such hearings and take such testimony as might be necessary to establish the facts of this case. After a hearing, the Referee entered the following findings of fact:

“1. That this cause was properly brought before this Referee pursuant to the applicable provisions of the Florida Constitution and the Integration Rules of the Supreme Court.
“2. That Respondent, ALFREDO BORGES CAIGNET, is not, and was not, at any time pertinent hereto licensed to practice law in the State of Florida or in any other jurisdiction of the United States. That said Respondent is sui jur-is and was at all times pertinent hereto a resident of Dade County, Florida.
“3. That it appeared from testimony taken that in the year 1972, the Respondent, ALFREDO BORGES CAIGNET, represented himself to one MARIA TRINADAD GALDAMES, a/k/a MARIA TRINIDAD GOMEZ to be a Notar-io Publico (which the witness related her understanding of same to be ‘something with laws’), and in such position could act as her attorney for the purpose of obtaining legal permission to remain in the United States.
“4. That in connection therewith, periodic payments were made to Respondent in the total sum of $230.00 in order for Respondent to act on behalf of MRS. GALDAMES, as her attorney, in connection with the seeking of immigration extensions and visas.
“5. That all during this time MRS. GALDAMES was led to believe by Respondent that he was a person trained in the field of law and was permitted, by law, to perform such legal services as MRS. GALDAMES required.
“6. Testimony was received from Witness FELIZ MARIO ARANJO that on July 10, 1970, Respondent met with MR. ARANJO, at MR. ARANJO’S request in order to discuss MR. ARAN-JO’S immigration problems.
“7. Thereafter, MR. ARANJO met, at the behest of the Respondent with a MR. JOSEPH SOLOMON, at which time there was a discussion as to the amounts of monies to be paid in connection with the seeking of immigration extensions and visas.
“8. FURTHER, MR. ARANJO paid to the Respondent the sum of $200.00 for such services to be rendered by Respondent.
“9. During this period of time the Respondent advised MR. ARANJO that he was a ‘Licenciado’, which MR. AR-ANJO understood to be a lawyer and that the payments received by Respondent from MR. ARANJO were paid to Respondent in connection with the understanding that Respondent was a lawyer and would perform such necessary legal services on behalf of MR. ARAN-JO.
“10. That neither MRS. GAL-DAMES or MR. ARANJO received any services, legal or otherwise, from Respondent in connection with the payments made.
“11. Notwithstanding the two incidents in which the Respondent received monies, no services, either legal or otherwise were performed on behalf of the said witnesses although said payments were made to Respondent upon the belief of said witnesses that Respondent was in fact a lawyer and/or Notario Publico, and/or Licenciado, to-wit: an attorney licensed to practice law.
“12. That the Respondent by holding himself out to the public as being qualified (legally), to handle immigration matters and to perform said services requiring legal services and familiarity with the laws of the United States concerning immigration and such failure to do so properly may cause irreparable harm to the person dealing with Respondent such harm consisting of deportation, criminal indictment and/or pecuniary law [loss?].”

Additionally, the Referee made the following recommendations:

“A. That Respondent, ALFREDO BORGES CAIGNET, did in fact, hold himself out to be an attorney within the meaning of such definition to the persons from whom he obtained remuneration and such holding out and payment constituted the unauthorized practice of law in the State of Florida.
“B. That said Respondent, ALFREDO BORGES CAIGNET, be enjoined, restrained and otherwise restricted in engaging in the type of work described, to-wit: immigration law for any person or persons within the State of Florida.
“C. That the Supreme Court of this State, based upon the foregoing allegations find that the Respondent was in contempt of Court and so adjudicate Respondent.
“D. That Respondent be fined for such contempt of Court and that such further punishment be imposed as the court shall deem necessary and appropriate under the circumstances.”

The record and the Referee’s report have been examined by this Court. We hereby approve the Referee’s finding of guilt and agree that the foregoing conduct on Respondent’s part constitutes the unauthorized practice of law. We also follow the recommendation that Respondent, at this point in time, be held in contempt of this Court and on or before August 31, 1975, pay a fine of $100.00 and the costs of this proceeding to be assessed by The Florida Bar. We hereby issue a permanent injunction restraining Respondent from engaging in the acts complained of and from otherwise engaging in the practice of law in this State. Upon proof of any subsequent violation of the terms of this permanent injunction, Respondent will be held in contempt and this Court will take appropriate action then.

It is so ordered.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ„ concur.

      . State ex rel. Florida Bar v. Sperry, 140 So.2d 587 (Fla.1962), judgment vacated on other grounds 373 U.S. 379, 83 S.Ct. 1322, 10 L.Ed.2d 428 (1963).


text:
    CITY OF MIAMI, etc., Petitioner, v. Laurence BROD, State of Florida, Department of Commerce, Industrial Relations Commission, Respondents.
    No. 46882.
    Supreme Court of Florida.
    June 23, 1975.
    Rehearing Denied Nov. 20, 1975.
   Certiorari denied.

ADKINS, C. J., and BOYD, McCAIN, OVERTON and ENGLAND, JJ., concur.


text:
    Lois R. GARWOOD, Petitioner, v. The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, a foreign corporation, Respondent.
    No. 46266.
    Supreme Court of Florida.
    Sept. 16, 1975.
    Rehearing Denied Nov. 20, 1975.
   Certiorari denied. 299 So.2d 163.

BOYD, OVERTON, ENGLAND and SUNDBERG, JJ., concur.

ADKINS, C. J., and ROBERTS, J., dissent.


text:
    Stephen MUSS et al., Petitioners, v. CITY OF MIAMI BEACH, a Florida municipal corporation, Respondent.
    No. 47585.
    Supreme Court of Florida.
    Oct. 1, 1975.
    Rehearing Denied Nov. 17, 1975.
   Certiorari denied. 312 So.2d 553.

ADKINS, C. J., and BOYD, OVER-TON, ENGLAND and SUNDBERG, JJ., concur.


text:
    ARMOR ELEVATOR COMPANY, INC., a Delaware corporation, Petitioner, v. ELEVATOR SALES & SERVICE, INC., et al., Respondents.
    No. 47277.
    Supreme Court of Florida.
    Oct. 6, 1975.
    Rehearing Denied Nov. 20, 1975.
   Certiorari denied. 309 So.2d 44.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    DIVERSIFIED TITLE CORPORATION, etc., Petitioner, v. ELTING CENTER CORPORATION, etc., Respondent.
    No. 46994.
    Supreme Court of Florida.
    Oct. 13, 1975.
   Certiorari denied. 306 So.2d 542.

ADKINS, C. J., and ROBERTS, BOYD and SUNDBERG, JJ., concur.

ENGLAND, J., dissents.


text:
    Annie Mae GREEN, Petitioner, v. CITY CAB COMPANY OF ORLANDO, INC., Respondent.
    No. 47130.
    Supreme Court of Florida.
    Oct. 13, 1975.
   Certiorari denied. 308 So.2d 540.

ROBERTS, BOYD, OVERTON, SUNDBERG and HATCHETT, JJ., concur.

ADKINS, C. J., and ENGLAND, J., dissent.


text:
    Ernest McLAIN and Grace K. McLain, Petitioners, v. Myrtle D. McCLAIN, Respondent.
    No. 46951.
    Supreme Court of Florida.
    Oct. 13, 1975.
   Certiorari denied. 305 So.2d 884.

ROBERTS, Acting C. J., and BOYD, OVERTON, ENGLAND and SUND-BERG, JJ., concur.


text:
    Albert L. MOORE, Petitioner, v. STATE of Florida, Respondent.
    No. 47234.
    Supreme Court of Florida.
    Oct. 13, 1975.
   Certiorari denied. 310 So.2d 384.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    STATE of Florida, Petitioner, v. In the Interest of M. D. B., a child, Respondent.
    No. 47287.
    Supreme Court of Florida.
    Oct. 13, 1975.
   Certiorari denied. 311 So.2d 399.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    STATE of Florida, Petitioner, v. John WILLIAMS, Respondent.
    No. 47242.
    Supreme Court of Florida.
    Oct. 13, 1975.
   Certiorari denied. 308 So.2d 595.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    Mitchell CLADAKIS et al., Petitioners, v. John J. ROSATI, Respondent.
    No. 46700.
    Supreme Court of Florida.
    Oct. 14, 1975.
   Certiorari denied.

ROBERTS, Acting C. J., and BOYD, OVERTON, SUNDBERG and HATCH-ETT, JJ., concur.


text:
    Joseph Terry LANIER, Sr., et al., Petitioners, v. Rizwan AHMED et al., Respondents.
    No. 46955.
    Supreme Court of Florida.
    Oct. 14, 1975.
   Certiorari denied.

BOYD, OVERTON, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.

ADKINS, C. J., and ROBERTS, J., dissent.


text:
    James LONGO, as the Chief of Police of the City of Hallandale, Florida, Appellant, v. Phillip SHAILER, individually and as the State Attorney for the 17th Judicial Circuit and the 1975 Spring Term Grand Jury of Broward County, Appellee.
    No. 47917.
    Supreme Court of Florida.
    Oct. 14, 1975.
   Appeal dismissed.


text:
    Robert E. MARX et al., Petitioners, v. T. M. V. DEVELOPING COMPANY, INC., et al., Respondents.
    No. 47078.
    Supreme Court of Florida.
    Oct. 14, 1975.
   Certiorari denied. 308 So.2d 657.

ROBERTS, Acting C. J., and BOYD, OVERTON, ENGLAND and SUND-BERG, JJ., concur.


text:
    H. Mason SMITH, III, etc., et al., Petitioners, v. Richard L. PECK, D.D.S., et al., Respondents.
    No. 46911.
    Supreme Court of Florida.
    Oct. 14, 1975.
   Certiorari denied. 305 So.2d 98.

ADKINS, C. J., and ROBERTS, BOYD, ENGLAND and SUNDBERG, JJ., concur.


text:
    W. A. SMITH, Petitioner, v. George TAYLOR et al., Respondents.
    No. 46945.
    Supreme Court of Florida.
    Oct. 14, 1975.
   Certiorari denied. 306 So.2d 594.

ADKINS, C. J., and ROBERTS, BOYD, ENGLAND and SUNBERG, JJ., concur.


text:
    STEAK ENTERPRISES, INC., d/b/a Buckaroo Steak Ranch, Petitioner, v. DEPARTMENT OF BUSINESS REGULATION, DIVISION OF BEVERAGE and Winston W. Wynne, Director, Respondents.
    No. 47235.
    Supreme Court of Florida.
    Oct. 14, 1975.
   Certiorari denied. 309 So.2d 643.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    WORLD RENT-A-CAR, INC., et al., Petitioners, v. Sherry STAUFFER, f/k/a Sherry L. Spencer, et al.
    No. 46908.
    Supreme Court of Florida.
    Oct. 14, 1975.
   Certiorari denied. 306 So.2d 131.

ADKINS, C. J., and ROBERTS, BOYD, ENGLAND and SUNDBERG, JJ., concur.


text:
    Lois K. WOLFLEY et vir, Petitioners, v. George D. DeLAUGHTER, Jr., et al., Respondents.
    No. 47284.
    Supreme Court of Florida.
    Oct. 14, 1975.
   Certiorari denied. 309 So.2d 648.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and ENGLAND, JJ., concur.


text:
    Mildred JOHNSON, Petitioner, v. EVANS OPTICAL & HEARING AID CENTER et al., Respondents. EVANS OPTICAL & HEARING AID CENTER and Robert P. Evans, Cross-Petitioners, v. EMPLOYERS-COMMERCIAL UNION INSURANCE COMPANY and the Florida Department of Commerce, Industrial Relations Commission, Cross-Respondents.
    No. 46884.
    Supreme Court of Florida.
    Oct. 15, 1975.
   Certiorari denied.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON, ENGLAND and HATCHETT, JJ., concur.


text:
    Balint PAPP, Appellant, v. Lee C. CONSER, County Judge, Orange County, Florida, Appellee.
    No. 47179.
    Supreme Court of Florida.
    Oct. 17, 1975.
   Appeal dismissed.


text:
    22ND AVENUE DRUGS, INC., a Florida Corporation, et al., Petitioners, v. MAISONNEUVE INVESTMENTS, INC. and the Equitable Life Assurance Society of The United States, Respondents.
    No. 47640.
    Supreme Court of Florida.
    Oct. 17, 1975.
   Certiorari dismissed. 313 So.2d 112.


text:
    AMERICAN AGRONOMICS CORPORATION, Petitioner, v. James E. ROSS, Respondent.
    No. 47267.
    Supreme Court of Florida.
    Oct. 20, 1975.
   Certiorari denied. 309 So.2d 582.

ADKINS, C. J., and ROBERTS, BOYD, OVERTON and HATCHETT, JJ-, concur.


text:
    X. T. ECHEVERRIA et al., Petitioners, v. John Charles BARCZAK, Respondent.
    No. 47135.
    Supreme Court of Florida.
    Oct. 20, 1975.
   Certiorari denied. 308 So.2d 633.

ADKINS, C. J., and BOYD, OVER-TON, ENGLAND and SUNDBERG, JJ., concur.


text:
    Thomas C. TODD, Petitioner, v. Betty H. TODD, Respondent.
    No. 47555.
    Supreme Court of Florida.
    Oct. 20, 1975.
   Certiorari denied. 311 So.2d 769.

ADKINS, C. J., and ROBERTS, OVERTON and ENGLAND, TT., concur.

BOYD, J., dissents.