author: MARCUS, Justice.

text:
    STATE of Louisiana v. Quinn Odell HATFIELD.
    No. 62125.
    Supreme Court of Louisiana.
    Nov. 13, 1978.

      Louis A. Heyd, Jr., John M. Standridge, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Marilyn C. Castle, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Quinn Odell Hatfield and Audrey Harrington were charged in the same information with possession with intent to distribute marijuana in violation of La.R.S. 40:966A. They were jointly tried by jury. Hatfield was found guilty as charged and sentenced to serve six years at hard labor. On appeal, he relies on six assignments of error for reversal of his conviction and sentence. Finding merit in one of the assigned errors, we need not consider the other five.

Defendant contends the trial judge erred in denying his motion to suppress physical evidence. He argues that the evidence was seized as a result of an unconstitutional search of an automobile.

A pretrial hearing was held on the motion to suppress. Defendant called three witnesses to testify at this hearing; Trooper Otis Jones, Sgt. Roy David Gilfour and Audrey Harrington. Their testimony reveals the following circumstances surrounding the search of the automobile and the seizure of the evidence at issue.

At about 12:15 a. m. on December 2,1976, Trooper Jones, in the course of his regular traffic patrol, clocked a vehicle traveling on Interstate 10 at a speed of 73 miles per hour in a 55 miles per hour speed zone. After the vehicle was stopped on the shoulder of the highway, Trooper Jones ordered the driver (defendant) out of the car. A check of his driver’s license revealed that it was suspended. Trooper Jones then called a private wrecker service to tow defendant’s vehicle and placed defendant under arrest for driving with a suspended license. Upon instructions from his supervisor, Sgt. Gil-four, over the patrol car radio, Trooper Jones then ascertained whether the passenger, Ms. Harrington, could take custody of the vehicle. In accordance with police policy, Trooper Jones determined that he could not release the vehicle to Ms. Harrington since she was not related to defendant and possessed an expired driver’s license. At this point, Sgt. Gilfour arrived on the scene to assist Trooper Jones. Ms. Harrington, who was also out of the vehicle at this time, accepted an offer by the police officers to ride with them to a place where she could telephone and make arrangements to be picked up. Upon'their request, both defendant and Ms. Harrington received permission to retrieve their personal belongings from the vehicle. Defendant returned with a shoulder bag and Ms. Harrington returned with her purse. The police officers informed them that, in accordance with police policy, the bags would have to be searched for weapons before either could ride in the patrol car. The subsequent search of defendant’s shoulder bag disclosed a corncob pipe containing what appeared to be marijuana residue; Ms. Harrington’s purse was found to contain a pipe and a Sucrets box with burnt marijuana cigarettes in it. At this point, defendant was additionally charged with possession of marijuana and Ms. Harrington was placed under arrest for said offense.

Thereafter, a tow truck arrived and, pursuant to a standard inventory form, the officers “went to the car and started looking to find anything of value.” On the floor board of the front of the vehicle, the officers found a marijuana cigarette. Nothing else was found in the interior of the car. Unable to find the key to the locked trunk, the officers questioned defendant and Ms. Harrington as to its whereabouts. Both replied that they did not know where the key was. Ms. Harrington’s purse was again searched and the key was found therein. Opening the trunk, Sgt. Gilfour discovered four plastic garbage bags. Based on his prior experience, Sgt. Gilfour surmised that the bags contained bricks of marijuana and thus ordered the vehicle to be towed to police headquarters for completion of the search. At the police station, the bags were opened and found to contain approximately ninety-nine pounds of marijuana. Defendant and Ms. Harrington were then formally placed under arrest for possession with intent to distribute marijuana.

The inventory form listing all items found in the vehicle was eventually completed at the police station. However, both officers testified that they did not ask defendant for consent to search the vehicle; nor was he asked if he would consent to waive his rights against the department in the event no search was undertaken. Defendant was asked if the car contained anything of value, to which he responded that he had already retrieved his personal belongings from the car. Furthermore, the officers each testified that, although they suspected that they would find contraband in the vehicle, they would have conducted the inventory search in any event in accordance with standard police procedure. Sgt. Gilfour candidly admitted that, while it was common knowledge among policemen that “inventory forms are used as a means to check the vehicles for any contraband or any illegal weapons or whatnot,” the main purpose was to protect the valuables belonging to the occupants. He concluded by stating: “Specifically, it’s to protect the people’s valuables, but also, I cannot deny that it’s general knowledge that it’s a means of checking the vehicle withoht a search warrant.”

Through the testimony at the suppression hearing, defendant made an initial showing that a warrantless search and seizure occurred. Hence, the burden of proof shifted to the state to show affirmatively that the search and seizure were justified under one of the well-recognized exceptions to the warrant requirement of the fourth amendment to the federal constitution. State v. Schmidt, 359 So.2d 133 (La.1978); State v. Braud, 357 So.2d 545 (La.1978); State v. Franklin, 353 So.2d 1315 (La.1977). The state does not contend, nor do we find, that the search and seizure were justified under the exceptions of consent, probable cause plus exigent circumstances, or search incident to a lawful arrest. Rather, the state argues that the evidence was seized pursuant to a valid inventory search. We do not agree.

In South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), the United States Supreme Court upheld police intrusions into automobiles impounded or otherwise in lawful custody where the process was aimed at securing or protecting the ear and its contents. In that case, the car had been observed illegally, parked for some time and thus was impounded. A search was conducted at the impound lot, out of the presence of the car’s owner, pursuant to standard police procedure, which had as its purpose the inventorying and safeguarding of the vehicle’s contents. The inventory itself was prompted by the presence in plain view of a number of valuables inside the car. Although the standard inventory included a search of the trunk, the trunk was not searched because it was locked. Finding that the inventory followed standard police procedures and was not “a pretext concealing an investigatory police motive,” the Court concluded that the conduct of the police was not “unreasonable” under the fourth amendment.

In State v. Jewell, 338 So.2d 633 (La.1976), following the reasoning of Opperman, we held that true inventory searches of motor vehicles' impounded for reasonable cause do not offend the prohibition of article 1, section 5 of our state constitution against unreasonable governmental searches, seizures, or invasions of privacy. However, in Jewell and other more recent cases, we found that the facts in each case did not support the conclusion that the police officer was conducting a search to safeguard the vehicle’s contents, as contrasted with making a warrantless search for incriminating evidence, without probable cause to do so. The searches in these cases were held unreasonable and therefore unconstitutional. We reached these conclusions because of the presence of various factors indicating that the purported inventory searches were not reasonably restricted in scope so as to constitute true inventory searches. Such factors are present here.

First, the tow truck was called prior to ascertaining whether other arrangements could be made for the car. Second, the search of the shoulder bag and purse revealed marijuana, thereby admittedly arousing a suspicion in both officers that contraband would be found in the vehicle. Third, the actual search of the car was conducted at the arrest site rather than at the place of impoundment. Fourth, although defendant was present, the officers did not ask for his consent to a search of the vehicle; nor did they ask whether he would consent to a waiver of his rights against the department in lieu of a search. Moreover,, when asked whether the car contained valuables, defendant responded that he had already retrieved his valuables from the car. In this regard, we have noted previously that

[t]he justification for the inventory search of the vehicle is ostensibly to protect the occupant of the vehicle against loss of his property or the law enforcement agency against the occupant’s claim for failure to guard against such loss. This justification has a very hollow basis indeed, if the occupant disclaims that any valuables are involved and is willing to consent to the agency’s failure to afford him such protection by an inventory search.

State v. Gaut, 357 So.2d 513, 516 (La.1978). Finally, the officers persisted in opening a locked trunk although defendant was unwilling for them to do so. In our opinion, the totality of these factors clearly indicates that the search in the instant case was not reasonably restricted in scope so as to constitute a true inventory search. The seizure of the marijuana was thus not justified under the inventory search exception to the warrant requirement. State v. Schmidt, supra; State v. Gaut, supra; State v. Rome, 354 So.2d 504 (La.1978); State v. Jewell, supra.

In sum, the state failed to meet its burden of showing that the search and seizure were justified under one of the well-recognized exceptions to the warrant requirement of the fourth amendment. Hence, the search and seizure of the marijuana were unconstitutional; the trial judge committed reversible error in denying defendant’s motion to suppress the evidence.

DECREE

For the reasons assigned, the conviction and sentence are reversed, and the case is remanded for a new trial consistent with law and the views herein expressed.

SANDERS, C. J., and SUMMERS, J., dissent.

      . In determining whether the ruling on defendant’s motion to suppress was correct, we are not limited to the evidence adduced at the hearing on the motion. We may consider all pertinent evidence given at the trial of the case. State v. Schmidt, 359 So.2d 133 (La.1978); State v. Stewart, 357 So.2d 1111 (La.1978); State v. Shivers, 346 So.2d 657 (La.1977); State v. Smith, 257 La. 1109, 245 So.2d 327 (1971); State v. Andrus, 250 La. 765, 199 So.2d 867 (1967). We have reviewed the pertinent evidence given at the trial of the instant case. This evidence presents substantially the same facts and circumstances surrounding the search and seizure at issue as was indicated by the testimony of the witnesses at the hearing on the motion to suppress. Since the evidence adduced at trial does not affect the result we reach in the instant case, our relation of the pertinent facts is based only upon the testimony given at the suppression hearing.

      . South Dakota v. Opperman, 428 U.S. 364, 380 n. 6, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Audrey HARRINGTON.
    No. 62155.
    Supreme Court of Louisiana.
    Nov. 13, 1978.
    Boren, Holthaus & Perez, C. Frank Hol-thaus, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Marilyn C. Castle, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Audrey Harrington and Quinn Odell Hatfield were charged in the same information with possession with intent to distribute marijuana in violation of La.R.S. 40:966A. They were tried jointly by a jury. Ms. Harrington was found guilty of attempted possession with intent to distribute marijuana and sentenced to serve two years at hard labor; however, the trial judge suspended execution of sentence and placed her on supervised probation for a period of one year. As a condition of probation, Ms. Harrington was to serve six months in the parish jail. On appeal to this court, she asserts thirteen assignments of error for reversal of her conviction and sentence. Finding merit in one of the assigned errors, we need not consider the others.

A pretrial hearing was held consolidating defendant’s motion to suppress with that of her codefendant, Quinn Odell Hatfield. A summary of the testimony presented at the hearing and the applicable law are set forth in this court’s opinion in the Hatfield appeal, 364 So.2d 578, No. 62,125, handed down this date. In that case, we held that the search and seizure of the marijuana at issue were unconstitutional. For the reasons assigned in said appeal, we conclude that the trial judge also committed reversible error in denying Ms. Harrington’s motion to suppress the evidence.

DECREE

Defendant’s conviction and sentence are reversed, and the case is remanded for a new trial consistent with the law.

SANDERS, C. J., and SUMMERS, J., concur.


text:
    PAUL M. DAVISON PETROLEUM PRODUCTS v. L. T. BROWN CONTRACTOR, INC., et al.
    No. 62178.
    Supreme Court of Louisiana.
    Nov. 13, 1978.
    Kenneth Rigby, Love, Rigby, Dehan, Love & McDaniel, Shreveport, for plaintiff-applicant.
    Paul R. Mayer, Mayer, Smith & Roberts, Shreveport, for defendants-respondents.
   MARCUS, Justice.

Paul M. Davison Petroleum Products brought suit to recover the sum of $129,-868.54 together with interest thereon at the rate of seven percent per annum from November 18, 1971 until paid. The amount sought represented the balance allegedly due on an open account for asphalt and other materials furnished in connection with the construction of a segment of Interstate 20. November 18, 1971 was the date on which plaintiff filed and recorded a sworn statement of the amount due it ($129,868.54) pursuant to La.R.S. 38:2242. Named defendants were (1) L. T. Brown Contractor., Inc., general contractor with Louisiana Department of Highways; (2) A. D. McCullen and L. T. Brown, subcontractor to whom the materials were sold; and (3) Hartford Accident and Indemnity Company, surety of the general contractor.

The trial judge rendered judgment in favor of plaintiff and against defendants in the sum of $3,194.40 together with interest at the rate of seven percent per annum thereon from November 18, 1971 (date the sworn statement of the amount due was filed and recorded) until paid and all costs of the suit.

The court of appeal amended the judgment of the trial court to increase the award to $37,651.24 and to provide legal interest thereon from date of judicial demand, rather than from the date of the filing and recording of the aforesaid sworn statement. On application of plaintiff, we granted a writ limited to the consideration of whether the court of appeal was correct in awarding legal interest from date of judicial demand rather than from the date of filing and recording of the sworn statement of the amount due.

The facts relevant to the resolution of the issue before us are as follows. Plaintiff sold asphalt and other products to McCullen and Brown in connection with the Interstate 20 project from July 1970 to August 1971. A statement was mailed each month by plaintiff to McCullen and Brown showing the materials furnished during the month together with the charge for such materials. These monthly statements also indicated credits for payments made by McCullen and Brown.

The Louisiana Department of Highways recorded its acceptance of the Interstate 20 project on October 8, 1971. On November 18, 1971, plaintiff timely filed and recorded a sworn statement of the amount due it ($129,868.54) for materials sold in connection with Interstate 20 project pursuant to La.R.S. 38:2242. On September 26, 1972, plaintiff brought the instant suit seeking to recover this sum.

The party who violates an obligation of a contract is liable, as one of the incidents of his obligations, to the payment of damages, which the other party has sustained by his default. La.Civil Code art. 1930. The damages due for delay in the performance of an obligation to pay money are called interest. La.Civil Code art. 1935. Interest is of two kinds, conventional and legal; the rate of both is fixed by law in the chapter on loans on interest and the Louisiana Consumer Credit Law. La.Civil Code art. 1936. The code chapter of loan on interest provides that legal interest is fixed at the rate of seven percent on all sums which are the object of a judicial demand. La.Civil Code art. 2924. La.Civil Code art. 1938 provides: “All debts shall bear interest at the rate of seven per centum per annum from the time they become due, unless otherwise stipulated.” As article 1938 has reference to interest that is not otherwise stipulated, this article provides that legal interest shall accrue from the time a debt becomes due. We must therefore determine when the debt sued upon by plaintiff became due in order to fix the date from which legal interest began to run on the sum awarded.

In the instant case, plaintiff seeks legal interest from November 18, 1971, the date on which it filed and recorded the sworn statement of the amount due it, until paid. Clearly, when plaintiff filed and recorded the sworn statement of the amount due it for materials furnished in connection with the Interstate 20 project after the Louisiana Highway Department had recorded its acceptance of the work, the open account running between plaintiff and McCullen and Brown terminated and the balance due thereon became payable. Thereafter, plaintiff was compelled to institute this suit to enforce collection of the balance due on said account. The trial judge found that only $3,194.40 was due on the account; the court of appeal increased the amount to $37,651.24. Hence, pursuant to article 1938, the debt owed plaintiff by defendants ($37,651.24) bears interest at the rate of seven percent per annum from the date it became due (November 18, 1971) until paid. Therefore, the court of appeal erred in awarding legal interest from date of judicial demand rather than from the date when the debt became due. La.Civil Code art. 1938.

DECREE

For the reasons assigned, judgment of the court of appeal is amended to provide interest at the rate of seven percent per annum from November 18, 1971 until paid. As amended, judgment of the court of appeal is affirmed.

      . La.R.S. 38:2242 provides:
      Any person to whom money is due for doing work, performing labor, or furnishing materials or supplies for the construction, alteration, or repair of any public works, or furnishing materials or supplies for use in machines used in the construction, alteration, or repair of any public works, excluding persons to whom money is due for the lease or rental of movable property, but including any architect employed by the owner or his duly authorized agent or representative or engaged by the contractor or subcontractor and including any consulting engineer employed by the owner or his duly authorized agent or representative or engaged by the contractor or subconstractor [sic] in connection with the building of any public work, may after the maturity of his claim and within forty-five days after the recordation of acceptance of the work by the governing authority or of notice of default of the contractor or subcontractor, file a sworn statement of the amount due him with the governing authority having the work done and record it in the office of the recorder of mortgages for the parish in which the work is done. After the filing and recordation of claims, any payment made by the governing authority without deducting the amount of the claims so served on it shall make the authority liable for the amount of the claim. If an architect or engineer has not been employed by the contractor or subcontractor he shall have no claim to or privilege on the funds due the contractor or subcontractor, nor shall such architect or engineer be within the coverage of the payment and performance bond required of the contractor by R.S. 38:2241.

      . 356 So.2d 572 (La.App. 2d Cir. 1978).

      . 358 So.2d 954 (La.1978).

      . Article 554 of the Louisiana Code of Practice of 1825 provided that interest should not run on accounts or unliquidated claims. This provision was repealed by La.Acts 1839, No. 53, § 1. See Alexander v. Burroughs Corp., 359 So.2d 607 (La.1978).

      . Any claim that debts owed plaintiff by defendants were due prior to the filing and recording of the sworn statement of the amount due it has been expressly waived by plaintiff.


author:
DENNIS, Justice.
      MARCUS, Justice

text:
    STATE of Louisiana v. Charles HAMILTON.
    No. 62225.
    Supreme Court of Louisiana.
    Nov. 13, 1978.

      Patrick D. McArdle, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry P. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

Defendant Charles Hamilton was charged in the same bill of information with three unconnected offenses of armed robbery based on separate acts committed at different times and places. A jury of twelve persons convicted defendant of two of the offenses and found him not guilty of the third. Subsequently defendant was adjudged to be a multiple offender, La.R.S. 15:529.1, and sentenced to serve a total of one hundred years at hard labor for the two offenses.

On appeal defendant relies on three assignments of error for reversal of his conviction and sentence. Since defendant’s first assignment presents reversible error the others are pretermitted.

In his first assignment defendant contends that the trial court committed error by refusing to grant a severance of the three offenses before trial. A severance of offenses requested before trial is mandatory if “it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense.” La.C.Cr.P. art. 495.1. In interpreting the statutory command that the trial court shall grant a severance whenever it will promote a fair trial, this Court in State v. Carter, 352 So.2d 607, 614 (La.1977) held that normally a joint trial of several offenses will not promote a fair trial if the defendant will be prejudiced by the introduction of evidence of other offenses which the rules of evidence would exclude in the interest of a fair trial if the offenses were tried separately.

In State v. Showers, 359 So.2d 104 (La.1978) and State v. Nelson, 357 So.2d 1100 (La.1978) we applied Louisiana Code of Criminal Procedure Article 495.1, as interpreted by Carter, to facts showing that separate and disconnected offenses had been tried jointly despite the defendant’s pretrial motion for severance, and held that a severance should have been granted because a separate trial of any offense would not have permitted the introduction of evidence of the other joined offenses. In the Showers and Nelson cases the State contended that if the offenses had been tried separately the evidence would have been admissible because all of the crimes alleged to have been committed by the defendant were “signature crimes,” i. e., they were “so peculiarly distinctive that one must logically say they are the work of the same person.” State v. Lee, 340 So.2d 1339, 1345 (La.1976) (concurring opinion). Although it was recognized that evidence of a “signature crime” may in some instances be introduced as an exception to the. rule that, when a person is charged with a crime the law forbids use of evidence of other illegal acts to convict the person of the crime, after a careful examination of the facts in each case this Court concluded that the criminal incidents were not so peculiarly distinctive that they could fairly be considered as signature crimes. State v. Showers, supra, State v. Nelson, supra.

In the instant case the three armed robberies bear some similarity but they are so lacking in distinctiveness, and so like the features of many other armed robberies, that the evidence of each offense had little, if any, probative value on any issue involved in the trial of the other crimes. The robberies were committed by two black men at business establishments within the City of New Orleans within a three month period. The robbers used the same commonplace obscenity in ordering the employees and customers to lie on the floor while money was taken from their persons and the case register. One of the perpetrators carried a large silver revolver in each robbery. Unfortunately crimes bearing these common marks are so numerous that it cannot be said that they were distinctive in any way. Thus, a separate trial of any of the three offenses in the instant case would not have permitted the state to introduce evidence of the other offenses, and the defendant’s pretrial motion for a severance should have been granted for the reasons stated in State v. Showers, supra, State v. Nelson, supra, and State v. Carter, supra.

The State tacitly concedes that the trial court’s refusal to sever the offenses constituted clear error under the decisions of this Court, but it requests that we reconsider our decisions in State v. Carter, supra, and State v. Showers, supra, for the reasons set out at length in the State’s application for rehearing in State v. Nelson, supra. Otherwise, the State presents no argument in an attempt to persuade this Court that a severance was inappropriate to promote a fair trial in the instant case. The State’s application for a rehearing in State v. Nelson was denied after consideration by this Court on May 19, 1978, 357 So.2d 1100. In addition this Court has consistently upheld the principles announced in State v. Carter. State v. Showers, supra; State v. Nelson, supra; State v. Lewis, 358 So.2d 1285 (La.1978); State v. Holstead, 354 So.2d 493 (La.1977); State v. Proctor, 354 So.2d 488 (La.1977).

Alternatively, the State argues that the refusal to. grant the severance was harmless error because several victims of the two offenses of which the defendant was convicted identified him as one of the armed robbers. This argument is difficult to consider as having been made seriously because it ignores a basic constitutional limitation upon this Court’s appellate jurisdiction. “In criminal matters, its appellate jurisdiction extends only to questions of law.” La.Const.1974, Art. 5, § 5(C). The jury acquitted the defendant of one offense. Whether defendant should be found guilty of the other charges in a fair trial, i. e., when each charge is considered separately without evidence of other illegal acts, is a question of fact which can only be decided by a trier of facts. Because we have no way of knowing whether separate juries would have reached the same results in separate trials, and because in criminal appeals we are prohibited from reviewing the evidence and making a factual determination, we cannot declare that the failure to sever the offenses was harmless or inconsequential to the actual or a just outcome of the prosecutions against the defendant. See, State v. Burnette, 353 So.2d 989 (La.1977).

Accordingly, the defendant’s convictions and sentences are reversed and the case is remanded for separate trials of each offense, or other proceedings consistent with this opinion.

SANDERS, C. J., and SUMMERS, J., dissent.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

I do not find that the trial judge erred in refusing to sever the three offenses before trial. I consider that a fair determination of defendant’s guilt or innocence of each offense was accomplished in this single trial of the three offenses. La.Code Crim.P. art. 495.1(a). Accordingly, I respectfully dissent.


author: SANDERS, Chief Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Lezly D. NEDDS.
    No. 62252.
    Supreme Court of Louisiana.
    Nov. 13, 1978.
    A. J. Boudreaux, 24th Judicial District Indigent Defender Bd., Kenner, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Kenneth L. Sanders, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
   SANDERS, Chief Justice.

The State charged Lezly D. Nedds with theft, a violation of LSA-R.S. 14:67. A twelve-person jury found the defendant guilty as charged. The court sentenced her to six years imprisonment.

The defendant appeals, relying on four assignments of error for reversal of her conviction and sentence. As we find a fatal error patent on the face of the record, we pretermit substantive treatment of the assignments of error.

Trial by an incorrect number of jurors is an error that we recognize ex proprio motu. See LSA-C.Cr.P. art. 920; State v. Sanford, 248 La. 630, 181 So.2d 50 (1965); State v. Toney, 205 La. 451, 17 So.2d 624 (1944); State v. Vinzant, 200 La. 301, 7 So.2d 917 (1942).

The State charged the defendant with theft of $5,020. LSA-R.S. 14:67 fixes the punishment as follows:

“Whoever commits the crime of theft when the misappropriation or taking amounts to a value of five hundred dollars or more shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both.” [Emphasis supplied.]

Louisiana Constitution, Article 1, Section 17 (1974), establishes the jury size in criminal cases. That section states, in pertinent part:

“A [criminal] case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, five of whom must concur to render a verdict.” [Emphasis supplied.]

Louisiana Code of Criminal Procedure Article 782 comports with this constitutional mandate.

As both the Constitution and statute require a six-person jury to try a case which is punishable with or without hard labor, trying the defendant with a twelve-person jury was fatal error.

We have consistently held that, in cases tried by a jury composed of either more than or less than the correct number of jurors, the verdict is null. State v. Rabbas, La., 278 So.2d 45 (1973); State v. Bennett, 270 So.2d 840 (1972); State v. Hill, 171 La. 277, 130 So. 865 (1930); State v. Bailey, 154 La. 536, 97 So. 851 (1923). The case, therefore, must be reversed and remanded.

Because of the possibility of a re-trial, we note our concern as to the propriety of the trial court’s ruling on the prosecutor’s opening statement referring to defendant’s possession of “tools of the trade" as an objectionable reference to other crimes.

For the reasons assigned, the conviction and sentence are annulled and set aside, and the case is remanded for a new trial in accordance with law and the views herein expressed.

DIXON, J., dissents.

DENNIS, J., dissents and assigns reasons.

DENNIS, Justice,

dissenting.

Defendant was convicted of a relative felony by a jury of twelve persons. Prior decisions of this Court have held that such a defect in the proceedings requires remand, State v. Rabbas, 278 So.2d 45 (La.1973); and several decisions have even treated jury size as jurisdictional, State v. Reeves, 128 La. 37, 54 So. 415 (1911). This position would be justified in those cases where a defendant is convicted by a jury composed of fewer persons than the law mandates. However, where the defendant is convicted by a larger jury, he has, in effect, been provided greater protection than the minimum required by law. Defendant alleged no prejudice; and I am unable to perceive how the defendant could be prejudiced by a jury composed of twelve rather than six persons. Moreover, since the defendant could have waived the jury entirely, his going to trial before a twelve person jury instead of a six person jury should constitute a waiver of his right to a trial by the smaller jury.


author: SUMMERS, Justice. MARCUS, J., MARCUS, Justice

text:
    STATE of Louisiana v. Eulin P. GUIDRY et al.
    Nos. 62261 to 62263.
    Supreme Court of Louisiana.
    Nov. 13, 1978.

      Duval, Arceneaux, Lewis & Funderburk, Claude B. Duval, Houma, for Eulin P. Gui-dry, No. 62261.
    Charley J. Schrader, Jr., Houma, for Donald Landry, No. 62262.
    Douglas H. Greenburg, Houma, for Allen Bonvillion, No. 62263.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Norval J. Rhodes, Dist. Atty., Kendall L. Vick, Donald B. Ensenat, Asst. Attys. Gen., Alexander L. Doyle, Asst. Dist. Atty., for plaintiff-appellant.
   SUMMERS, Justice.

Defendants Eulin Guidry, Donald Landry and Allen Bonvillion were charged by grand jury indictment with having violated, on November 28, 1977, “the provisions of La. R.S. 42:5 through 42:7.1 by holding and participating in a closed meeting contrary to the law. Commonly referred to as the Sunshine Law.”

On that date the three defendants, all members of the Terrebonne Parish Police Jury and of its Coastal Zone Management Committee, assembled with the Secretary and Public Works Director, who were officials of the police jury, and some members of the Houma-Terrebonne Regional Planning Commission. No per diem was paid for attendance, there was no agenda, no minutes were kept, and no action or vote was taken on any matter at the gathering. No one was excluded from entering the room where the group had gathered. The persons present did not constitute a quorum of either the Terrebonne Police Jury or its Coastal Zone Management Committee.

Defendants filed motions to quash alleging numerous grounds, some addressed to the constitutionality of the statute and others to the form of the indictment. After a hearing on the motions, the trial court quashed the indictment holding that 1) the statute involved was unconstitutionally vague, 2) violated defendant’s First Amendment right to free speech, 3) violated the Fourteenth Amendment’s equal protection clause, and 4) the form of the indictment was defective. The State appealed.

The State’s initial contention is that defendants have no standing to contest the constitutionality of the Open Meeting Law (La.Rev.Stat. 42:5 & 7.1) because their conduct was not prohibited by statute. A quorum of the Police Jury or of its Coastal Zone Management Committee was not present at the gathering of November 28, 1977, and therefore the gathering was not a “meeting” or an “administrative conference” as contemplated by Section 5 of Title 42 of the Revised Statutes. To support its position, the State relies upon this Court’s decision in State v. Rue, 236 La. 451, 107 So.2d 702 (1958) and the decision of the Third Circuit in City of Natchitoches v. State, 221 So.2d 534 (La.App.1969).

We take it as settled, therefore, that the State’s position is that defendant did not violate the statute because, by the un-controverted evidence, no quorum was present of any governing body or board. This is the identical contention made by defendants. Therefore, since defendants are not adversely affected by the statute they have no standing to assert the statute’s alleged unconstitutionality. The holdings in State v. Rue, supra, and City of Natchitoches v. State, supra, support this conclusion.

When it is conceded by the State and contended by the defense that the facts of the case do not fall within the proscription of the statute, the defendant cannot be convicted of violating its provisions. This being the case, the indictment must be quashed.

Notwithstanding the State’s concession that these defendants have not violated the law, both the State and the defense urge this Court to adjudicate the constitutional issues presented in order that public officials may know what conduct is prohibited. This we cannot do. This Court cannot be called upon to explore and adjudicate serious constitutional issues in a criminal prosecution when both the State and the defense concede that the prosecution is not well-founded and defendants should be discharged. As stated by Chief Justice Sanders in Aucoin v. Dunn, 255 La. 823, 233 So.2d 530 (1970):

“The principle that this Court will not render advisory opinions on matters that have no effect upon the present rights of litigants is deeply rooted in the jurisprudence. See, e. g., Hirt v. City of New Orleans, 225 La. 589, 73 So.2d 471; Pettingill v. Hills, Inc., 199 La. 557, 6 So.2d 660; In re Westwego Moss Co., 196 La. 168, 198 So. 893.”

The rationale for such a decision is expressed with approval in Aucoin:

“The constitutionality of a statute will not be considered and determined by the courts as a hypothetical question, because constitutional questions are not to be dealt with abstractly or in the manner of an academic discussion.” 16 Am.Jur.2d, Constitutional Law, § 112.

For the reasons assigned, the indictments in these consolidated cases are quashed, and the judgment of the trial court declaring the Open Meeting Law unconstitutional is reversed and set aside.

SANDERS, C. J., concurs in the decree only.

DIXON, J., dissents. The trial court erroneously declared the statute unconstitutional; we should reverse and remand.

MARCUS, J.,

dissents and assigns reasons.

APPENDIX

TITLE 42

§ 4.1 Public policy for open meetings; liberal construction

It is essential to the maintenance of a democratic society that public business be performed in an open and public manner and that the citizens be advised of and aware of the performance of public officials and the deliberations and decisions that go into the making of public policy. Toward this end, the provisions of R.S. 42:4.1 through R.S. 42:10 shall be construed liberally.

Added by Acts 1976, No. 665, § 1.

§ 5. Meetings of governing bodies and boards to be open to public

For the purposes of R.S. 42:4.1 through R.S. 42:10, “meeting” means the official convening of town and city councils, police juries and other governing bodies; school boards and boards of levee and port commissioners; boards of publicly operated utilities; and all state, parish, or municipal boards or authorities with policy making or administrative functions which receive or expend tax funds, the legislature specifically exempted, to discuss or act upon a matter over which the public body has supervision, control, jurisdiction, or advisory power. Such meetings shall be open to the public.

“Administrative conference” or “administrative accession” means any assembly of a quorum of a public body listed in the definitions of “meeting” above, other than a regular, special, or rescheduled meeting, held by that body for the purpose of discussing matters on which definitive action can be taken or advice officially determined, by the public body but only at a regular, special, or rescheduled meeting. A function solely of a social nature is not an administrative conference.

Amended by Acts 1976, No. 665, § 1; Acts 1977, No. 707, § 1.

§ 6. Closed meetings; administrative conferences

A. A public body may hold a meeting closed to the public upon an affirmative vote, taken at an open meeting for which notice has been given pursuant to R.S. 42:7, of two-thirds of its voting members present. A meeting closed to the public shall be limited to matters allowed to be exempted from discussion at open meetings by R.S. 42:6.1; provided, however, that no final or binding action shall be taken during such a closed meeting and that the closed meeting shall not be used as a subterfuge to defeat the purposes of this Chapter.

The reason for holding a meeting closed to the public, and the vote of each member on the question shall be stated in open meeting. Nothing in this Section or R.S. 42:6.1, shall be construed to require that any meeting be closed to the public.

B. Except as provided for in R.S. 42:6.1, nothing in this Chapter shall be construed to permit an administrative conference of any public body to be closed to the public and no administrative conference of any public body shall be closed to the public except as provided in said Section.

Amended by Acts 1976, No. 665, § 1; Act 1977, No. 707, § 1.

§ 6.1 Exceptions to open meetings

A. A public body may hold a meeting closed to the public pursuant to R.S. 42:6 for one or more of the following reasons:

(1) Discussion of the character, the professional competence, or physical or mental health of a single individual provided that such individual may require that such discussion be held at an open meeting;

(2) Strategy sessions or negotiations with respect to collective bargaining or litigation, when an open meeting would have a detrimental effect on the bargaining or litigating position of the public body;

(3) Discussion regarding the report, development, or course of action regarding security personnel, plans, or devices;

(4) Investigative proceedings regarding allegations of misconduct;

. (5) Cases of extraordinary emergency, which shall be limited to natural disaster, threat of epidemic, civil disturbances, suppression of insurrections, or the repelling of invasions, or other matters of similar magnitude;

(6) Any meeting of the State Mineral Board at which records or matters entitled to confidential status by existing law are required to be considered or discussed by the board with its staff or with any employee or other individual, firm or corporation to whom such records or matters are confidential in their nature, and are disclosed to and accepted by the board subject to such privilege, for the exclusive use in evaluating lease bids or development covering state-owned lands and water bottoms, which exception is provided pursuant to and consistently with the Public Records Act, being Chapter I of Title 44 of the Louisiana Revised Statutes of 1950, as amended, and other such statutes to which the board is subject;

(7) Or any other matters now provided for or as may be provided for by the legislature.

B. The provisions of R.S. 42:4.1 through R.S. 42:10 shall not apply to judicial proceedings.

C. The provisions of R.S. 42:4.1 through R.S. 42:10 shall not prohibit the removal of any person or persons who wilfully disrupt a meeting to the extent that orderly conduct of the meeting is seriously compromised.

Added by Acts 1976, No. 665, § 1.

§ 7. Fixed date; time; place of regular meetings; notice of special meetings

A. All public bodies, except the legislature, shall give written public notice of any regular, special, or rescheduled meetings no later than twenty-four hours before the meeting; provided, however, that where the time, day or date, and place of the regular meeting of any public body is established and fixed by bylaw, resolution, ordinance or statute, written public notice of each such regular meeting shall not be required except that an annual notice must be given in January of each year, unless place of such meeting is rotated from more than one location in the jurisdiction of such public body in which case Subsection B of this Section shall be applicable. Written public notice of the bylaw, resolution, ordinance or statute fixing the time, day or date, and place of the regular meeting shall be given one time, and thereafter no further written public notice shall be required. Written public notice of any change in or amendment thereto shall be given one time no less than twenty-four hours in advance of the changed regular meeting date, and thereafter no further written public notice shall be required. In cases of extraordinary emergency such notice shall not be required; however, the public body shall give notice of the meeting as it deems appropriate and circumstances permit. The notice shall include the date, time, and place of the meeting.

B. Written public notice shall include, but need not be limited to:

(1) Posting a copy of the notice at the principal office of the public body holding the meeting, or if no such office exists, at the building in which the meeting is to be held; or by publication of the notice in the official journal of the public body no less than twenty-four hours in advance of said meeting; and

(2) Mailing a copy of the notice to any member of the news media who requests notice of such meeting, any such member of the news media shall be given notice of meetings in the same manner as is given to members of the public body.

Amended by Acts 1972, No. 669, § 1; Acts 1976, No. 665, § 1; Acts 1977, No. 707, § 1.

§ 7.1 Written minutes

A. All public bodies shall keep written minutes of all of their open meetings. Such minutes shall include, but need not be limited to:

(1) The date, time, and place of the meeting;

(2) The members of the public body recorded as either present or absent;

(3) The substance of all matters decided, and, at the request of any member, a record, by individual member, of any votes taken; and

(4) Any other information that the public body requests be included or reflected in the minutes.

B. The minutes shall be public records and shall be available within a reasonable time after the meeting except where such disclosures would be inconsistent with R.S. 42:6 and R.S. 42:6.1.

Added by Acts 1976, No. 665, § 1.

§ 8. Sonic recordings

All or any part of the proceedings in a public meeting may be recorded by any person in attendance by means of a tape recorder or any other means of sonic reproduction.

Amended by Acts 1972, No. 669, § 1.

§ 9. Compliance with law

A. It shall be unlawful for the presiding officer or any official of any meeting required by law to be open to the public to hold meetings under any conditions contravening the provisions of R.S. 42:5 through R.S. 42:7.1.

B. Any presiding officer or official of such meetings, who violates any of the provisions of this Chapter, or any person who by any conspiracy, understanding, or cooperation with any other person hinders or attempts to hinder attendance by the public, shall upon first conviction be fined not less than one hundred dollars, and not more than one thousand dollars or shall be imprisoned for not more than seven days. Upon any subsequent conviction he shall be fined not less than two hundred fifty dollars, and not more than two thousand dollars, or imprisoned for not more than thirty days, or both.

Added by Acts 1972, No. 669, § 2. Amende ed by Acts 1976, No. 665, § 1.

§ 10. Enforcement

A. Each district attorney shall enforce the provisions of R.S. 42:4.1 through 42:9 with respect to those public bodies which are subject to his jurisdiction. Such enforcement shall be through a grand jury indictment, or upon a complaint by a citizen who resides within the jurisdiction of the public body against whom such complaint is made, or upon the initiative of the district attorney. A suit to enforce compliance with or to prevent violations of or to determine the applicability of any provision of R.S. 42:4.1 through R.S. 42:9 to discussions or decisions of public bodies shall be commended in a court of competent jurisdiction for the parish or city in which the public body ordinarily meets.

B. Any citizen residing within the governmental subdivisions served by the public body who is denied the rights conferred by •R.S. 42:4.1 through R.S. 42:9 may commence a suit in a court of competent jurisdiction for the parish or city in which the public body ordinarily meets for the purpose of requiring compliance with or preventing violations of or to determine the applicability of any provision of R.S. 42:4.1 through R.S. 42:9 to the discussions or decisions of the public body. The court shall order payment of court costs and attorney fees to a successful plaintiff in a suit. If the plaintiff is unsuccessful, he may be ordered to pay reasonable attorney fees as well as court costs if the court determines that the suit was of a frivolous nature with no substantial justification.

Added by Acts 1976, No.. 665, § 1. Amended by Acts 1977, No. 707, § 1.

MARCUS, Justice

(dissenting).

I dissent from the quashing of the indictments. I would reach the issue involving the constitutionality of Louisiana’s Open Meeting Law. Accordingly, I respectfully dissent.

      . The text of Louisiana’s Open Meeting Law is contained in an appendix to this decision.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana v. Robert VALENTINE.
    No. 62307.
    Supreme Court of Louisiana.
    Nov. 13, 1978.

      Ronald J. Favre, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Kim A. Gandy, Asst. Dist. Atty., for plaintiff-appellee.
   SANDERS, Chief Justice.

On May 20, 1976, the Grand Jury for the Parish of Orleans indicted defendant Robert Valentine, with aggravated rape, a violation of LSA-R.S. 14:42. After a trial by jury, defendant was found guilty as charged on October 7, 1976, and sentenced to death.

On appeal, defendant relies upon five assignments of error for reversal of his conviction and sentence. Assignment of Error No. 4, being neither briefed nor argued, is considered abandoned. State v. Booth, La., 347 So.2d 241 (1977); State v. Phillips, La., 337 So.2d 1157 (1976).

ASSIGNMENTS OF ERROR NOS. 1 AND 5

Defendant contends that the trial court erred in overruling his motion to quash the indictment and refusing to grant his motion in arrest of judgment. Both motions were based on the fact that the mandatory death penalty, as it then existed, was unconstitutional.

At the time of defendant’s trial and conviction, LSA-R.S. 14:42 carried a mandatory death sentence for aggravated rape. He argues that his prosecution under the statute was unconstitutional because the United States Supreme Court in Selman v. Louisiana, 428 U.S. 906, 96 S.Ct. 3214, 49 L.Ed.2d 1212 (1976), had declared the mandatory death penalty unconstitutionally cruel and unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution. Hence, defendant argues that he was forced to stand trial without knowledge of the possible consequences of conviction and that designation of the offense as capital governed the procedure applicable to his trial to his prejudice.

Defendant’s arguments are without merit. Factually, defendant was aware of the possible consequences of conviction. At the time of defendant’s trial, the United States Supreme Court had not denied a rehearing in Selman v. Louisiana, supra. The rehearing application in Selman v. Louisiana, supra, was not denied until October 12, 1976; hence, a valid death penalty in defendant’s case was still a possibility. Additionally, defendant was advised that he could be convicted of other crimes which are responsive verdicts to the crime of aggravated rape. LSA-C.Cr.P. art. 814.

We have consistently held that, in the absence of other defects, the unconstitutionality of a statute’s penalty clause does not have the effect of barring conviction under the statute and that, in lieu of the constitutionally infirm death penalty, a defendant is to be resenteneed to the maximum sentence that could be imposed for a responsive verdict at the time the crime was committed. State v. Burge, La., 362 So.2d 1371 (1978) (rehearing denied October 19, 1978); State v. Drew, La., 360 So.2d 500 (1978); State v. Bryant, La., 347 So.2d 227 (1977); State v. Lee, La., 340 So.2d 180 (1976); State v. Craig, La., 340 So.2d 191 (1976); State v. Sledge, La., 340 So.2d 205 (1976). In the absence of other reversible error, this is the procedure to be followed in the present case.

Defendant also argues that he was prejudiced in selecting a jury because several persons were dismissed for cause who stated that they could under no circumstances, return a verdict which required capital punishment. He further argues that the trial court erred in otherwise conducting his trial as a capital one.

These allegations concerning jury selection and other procedural aspects of defendant’s trial are raised for the first time in brief to this Court; hence, they are not properly before us, as it is well settled that a new ground for objection may not be presented for the first time on appeal. An objection must be made in the trial court before it will be considered by this Court. LSA-C.Cr.P. art. 841; State v. Davis, La., 357 So.2d 1125 (1978); State v. Holstead, La., 354 So.2d 493 (1977); State v. Marks, La., 337 So.2d 1177 (1976).

The trial court correctly overruled both defendant’s Motion to Quash the Indictment and Motion in Arrest of Judgment.

Assignments of Error Nos. 1 and 5 are without merits.

ASSIGNMENTS OF ERROR NOS. 2 AND 3

Here, defendant alleges that the trial court erred in admitting into evidence two photographs of the victim which showed the victim’s facial wounds and the victim’s position at the scene of the crime.

Generally, the test of admissibility of allegedly gruesome photographs is whether their probative value outweighs the possible prejudice that may result from their display to the jury. State v. George, La., 346 So.2d 694 (1977); State v. Williams, La., 343 So.2d 1026 (1977); State v. Cooper, La., 334 So.2d 211 (1976). Photographs are generally admissible which illustrate any fact or which shed light on an issue, or are relevant to describe the person, place, or thing involved. State v. George, supra; State v. Hollingsworth, La., 337 So.2d 461 (1976).

In the present case, the pictures are not particularly gory or gruesome, and served several purposes: the evidence of the beating, plus the blood on defendant’s hands and inside of his thigh serve to rebut the defendant’s apparent contention that he had stopped to assist the victim; they served to strengthen and corroborate the testimony of the only eyewitness since the victim had no recollection of the incident; they were relevant to show that the victim’s resistance was overcome by force; and they were also of assistance in explaining why the victim was unable to recall the attack. Considering that the victim had survived the attack and was present at trial, the pictures of the victim at the time of the incident is not likely to have inflamed the jury.

Having viewed the photographs and found that they were not gruesome and were relevant to the issues to be decided at trial, we find no error in the trial court’s ruling.

Assignments of Error Nos. 2 and 3 are without merit.

ASSIGNMENT OF ERROR NO. 6

Defendant alleges that the trial court erred in overruling his motion for a new trial in which he alleged that the State had failed to prove an essential element of the crime of aggravated rape: penetration.

Regarding penetration in an aggravated rape prosecution, LSA-R.S. 14:41 provides:

“Emission is not necessary; and any sexual penetration, vaginal or anal, however slight, is sufficient to complete the crime.”

Only when there is no evidence of an essential element of the crime charged can this Court’s appellate jurisdiction be invoked to reverse a conviction on an eviden-tiary review. Our standard of review was recently reiterated in State v. Tucker, La., 354 So.2d 521 (1978):

“This Court’s appellate jurisdiction is limited to questions of law, and it will not reverse a conviction on a question of guilt or innocence unless there is no evidence of an essential element of a crime — a situation which presents a question of law, it being illegal to convict a person of crime on no evidence. When there is some evidence, no matter how little, the Court will not inquire into the sufficiency of the evidence, that being a question of fact for the trial judge or jury. State v. Douglas, 278 So.2d 485 (La.1973).”

In the present case, though the injured victim had no memory of the rape, there was ample evidence from which the jury could determine that penetration had occurred:

(1) A resident of the apartment building adjacent to the crime scene testified that on the morning of the incident, while she was watching television, she heard a woman moaning. She went to her window and saw a man dragging a woman into the alleyway below. The witness testified that she turned her lights and television off and went back to the window. While she was at the window, she saw the man hit the woman several times and saw the man lying on the victim in a position for sexual intercourse. The witness then went to her landlord’s apartment, at which time the police were called.

(2) Officer Ronald Tremblay, one of the two officers who initially answered the call, testified that when he arrived at the alley where the victim was lying, his partner had his gun drawn on the defendant. The officer testified that while shining his light on the defendant, he saw defendant place his penis into his pants. The officer also testified that when he arrived the victim had on only a slip, which was pulled up above her waist.

(3) Officer Robert Kelly, Officer Trem-blay’s partner, and the first to arrive on the scene, testified that an automobile was between him and the defendant and victim as he approached the area. He shined a flashlight toward the front of the automobile and noticed the feet of two people: a negro male bending over the victim. The officer testified that, when he first saw the defendant, he was lying down betweem the victim’s legs making “thrusting” motions. The officer had his flashlight directly on the defendant and the victim, and, when defendant stood up, he noticed that the defendant’s penis was out of his pants.

(4) Joseph DePaoli, a criminalist for the New Orleans Police Department testified that he was called upon to examine several blood samples allegedly associated with the offense. The officer testified that he found some human blood on defendant’s left leg about an inch or two below where the legs separate. He examined the area and found no cuts or wounds on the defendant. Because of the small quantity, he was not able to determine the blood type of the stain. The officer further testified that he had examined the defendant’s undershorts and found no traces of blood or any other stain.

(5) Dr. George Bailey, the Assistant Coroner who examined the victim when she arrived at Charity Hospital shortly after the incident, testified that he tested the vaginal area for acid phosphates and spermatozoa and that the tests were negative. He also testified that there were no bruises or lacerations in the victim’s vaginal area. The doctor affirmatively testified that, although the test results were negative, penetration could have occurred without leaving visible and tangible evidence.

A review of the transcript convinces us that, though there was no evidence of penetration through the medical testimony, there was ample circumstantial evidence presented from which the jury could and did determine that penetration had occurred. As there is some evidence of penetration, an essential element of the crime of aggravated rape, the denial of defendant’s motion for a new trial was proper.

Assignment of Error No. 6 is without merit.

As there is no reversible error present, defendant’s sentence of death must be vacated and the defendant remanded to be resentenced to the maximum sentence that could be imposed for a responsive verdict to the most serious lesser included offense: attempted aggravated rape. State v. Burge, supra. Defendant committed the crime on May 11, 1976. At that time, the maximum sentence for attempted aggravated rape was imprisonment for fifty years. LSA-C.Cr.P. art. 814; LSA-R.S. 14:27, 14:42.

For the reasons assigned, the conviction is affirmed, the sentence is vacated, and the case is remanded for resentencing in accordance with law and the views herein expressed.


text:
    STATE of Louisiana v. Arthur M. DAVIS.
    No. 63281.
    Supreme Court of Louisiana.
    Nov. 3, 1978.
   In re: Arthur M. Davis applying for writ of habeas corpus. Orleans Parish. 363 So.2d 728.

Granted and consolidated with No. 63216 (State v. Davis).

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Rudolph P. Becker, Judge of the Criminal District Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 17th day of November, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It" is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this Court, why the relief prayed for in the petition of the relator should not be granted.


text:
    David Leroy CARROLL, Sr., et al. v. AETNA CASUALTY & SURETY CO. et al.
    No. 63312.
    Supreme Court of Louisiana.
    Nov. 3, 1978.
   In re: David Leroy Carroll, Sr., et al. applying for writ of certiorari to the Second Circuit Court of Appeal. Parish of Claiborne. 363 So.2d 726.

Writ denied. The result is correct.


text:
    James ANDERSON et al. v. STATE of Louisiana and Mary Evelyn Parker, Louisiana State Treasurer.
    No. 63314.
    Supreme Court of Louisiana.
    Nov. 3, 1978.
   In re: James Anderson, et al. applying for writ of certiorari, Second Circuit Court of Appeal. Parish of Caddo. 363 So.2d 728.

Writ denied.


text:
    L. E. PATRICK v. Danny M. JOHNSTONE et al.
    No. 63027.
    Supreme Court of Louisiana.
    Nov. 3, 1978.
   In re: Danny M. Johnstone, et al. applying for writ of certiorari to the Second Circuit Court of Appeal. Parish of Union, State of Louisiana. 361 So.2d 894.

Writ denied.

DENNIS, J., recused.

SUMMERS, J., dissents from the denial of the writ.

DIXON, J., would grant the writ.


text:
    Sweeney BENOIT as Personal Representative of William Benoit, Jr. v. FIREMAN’S FUND INSURANCE COMPANY et al.
    No. 63258.
    Supreme Court of Louisiana.
    Nov. 3, 1978.
   In re: Fireman’s Fund Ins. Co., et al. applying for writ of certiorari to the Third Circuit Court of Appeal. Parish of Calca-sieu.

Writ denied. The result is correct.


text:
    STATE of Louisiana ex rel. Willie L. SLEDGE v. STATE of Louisiana, Frank Blackburn, Warden, Louisiana State Penitentiary.
    No. 63264.
    Supreme Court of Louisiana.
    Nov. 3, 1978.
   In re: Willie L. Sledge applying for writ of habeas corpus. Parish of Ouachita.

Writ denied.


text:
    STATE of Louisiana ex rel. Calvin WILLIAMS v. STATE of Louisiana, C. Paul Phelps, Director, Dept. of Corrections, Charles Foti, Sheriff, Orleans Parish.
    No. 63265.
    Supreme Court of Louisiana.
    Nov. 3, 1978.
   In re: Calvin Williams applying for writ of habeas corpus. Orleans Parish.

Writ denied.


text:
    STATE of Louisiana v. McArthur JOHNSON.
    No. 63284.
    Supreme Court of Louisiana.
    Nov. 3, 1978.
   In re: McArthur Johnson applying for remedial writ. Parish of Bossier.

Denied.


text:
    SUCCESSION of Arthur LaHaye, Velma LaHAYE (Guillory) v. Julia Hollier LaHAYE and Marie LaHaye (Stelly).
    No. 63302.
    Supreme Court of Louisiana.
    Nov. 3, 1978.
   In re: Velma LaHaye Guillory, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu.

Writ denied.


text:
    C. Edward KARST v. Joe E. FRYAR.
    No. 63307.
    Supreme Court of Louisiana.
    Nov. 3, 1978.
   In re: C. Edward Karst applying for writ of certiorari to the Third Circuit Court of Appeal. Parish of Rapides. 361 So.2d 1344.

Writ denied.

TATE and CALOGERO, JJ., would grant to consider whether, under the facts, the reconventional demand should be denied also.


text:
    STATE of Louisiana v. Alton DAVIS.
    No. 62710.
    Supreme Court of Louisiana.
    Nov. 3, 1978.
   In re: Alton Davis, applying for writs of certiorari, prohibition and mandamus. Parish of Orleans.

Writ granted.

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Alvin V. Oser, Judge of the Criminal District Court, for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 17th day of Novembef, 1978, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this Court, on a date to be fixed by this Court, why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana v. Clyde BURNS and Ira Hollins.
    No. 63331.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: Clyde Burns and Ira Hollins applying for writs of mandamus. Parish of Vernon.

Writ granted. Appellate record ordered supplemented by closing arguments. La.C. Cr.P. art. 843 (1978).

SANDERS, C. J., and SUMMERS, J., dissent from order.


author: TATE, J.,

text:
    C. Edward KARST v. Joe E. FRYAR. Joe E. FRYAR v. C. Edward KARST.
    No. 63339.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: David A. Sheffield applying for writ of certiorari to the Third Circuit Court of Appeal. Parish of Rapides. 361 So.2d 1344; 361 So.2d 1347.

Denied.

TATE, J.,

would grant. The relator Sheffield has been deprived of a property right obtained by a compromise executed by the defendant, because of alleged fraudulent conduct between other parties before the compromise and to which he himself is not privy.


text:
    Virginia Star Lombardi MILLER v. Walter Scott MILLER.
    No. 63306.
    Supreme Court of Louisiana.
    Nov. 10, 1978.
   In re: Virginia Star Lombardi Miller applying for writ of certiorari to the Second Circuit Court of Appeal. 363 So.2d 724. Parish of Caddo.

Writ denied.

DIXON and DENNIS, JJ., would grant the writ.


text:
    LOUISIANA POWER & LIGHT COMPANY v. LOUISIANA PUBLIC SERVICE COMMISSION et al.
    No. 63181.
    Supreme Court of Louisiana.
    Nov. 17, 1978.
   In re: Hooker Chemical & Plastics Corporation (“Hooker”) and Union Carbide Corporation (“Union Carbide”), applying for Motion to Dismiss Appeal or in the Alternative to Vacate Stay Order. Parish of East Baton Rouge.

The motion to dismiss the appeal is referred to the merits of the appeal. The accounting ordered by the District Court is stayed pending further orders of this Court.


author: ELLIS, Judge:

text:
    Dave Haas EWELL et al. v. PETRO PROCESSORS OF LOUISIANA, INC., et al.
    No. 12167.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1978.
    Rehearing Denied Nov. 20, 1978.
    Writ Refused Jan. 19, 1979.

      Bryant W. Conway, Baker, Maurice J. Wilson, Jr., Baton Rouge, counsel for plaintiff-appellant Dave Haas Ewell, Jr., et al.
    Charles W. Phillips, John R. Tharp, Baton Rouge, counsel for defendant-appellee Allied, Ethyl and Shell Corp.
    Roger M. Fritchie, Baton Rouge, counsel for defendant-appellee Exxon Corp.
    Edward F. Glusman, Baton Rouge, counsel for defendant-appellee Foster Grant Co. and Liberty Mutual Ins. Co.
    R. Gordon Kean, Jr., Baton Rouge, counsel for defendant-appellee Uniroyal, Inc.
    John Swanner, A. J. Seale, Baton Rouge, counsel for defendant-appellee Dow Chemical Corp.
    Paul Marks, Jr., Baton Rouge, counsel for defendant-appellee Copolymer Corp.
    John Dale Powers, Baton Rouge, for defendant-appellee Petro Processors of La., Inc.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   ELLIS, Judge:

Dave Haas Ewell, Jr. and his children together own an undivided one-eighth interest in an 1100-acre tract of land lying between Scenic Highway and the Mississippi River, north of Baton Rouge. Approximately 550 acres of the tract lie below the 35-foot contour line and form part of Devil’s Swamp. Baton Rouge Bayou Bayou flows into Devil’s Swamp from the northeast, entering the swamp at or near the north line of plaintiffs’ property.

The property of Petro Processors, Inc. of Louisiana adjoins that of plaintiffs on the north, near the point where Baton Rouge Bayou enters the swamp, and occupies the bluff where the high ground meets the Devil’s Swamp, so that water flowing from the Petro Processors property drains onto and across plaintiffs’ property.

Petro Processors was in the business of industrial waste disposal. It would pick up chemical and other waste material, both liquid and solid, from various industrial plants in the Baton Rouge area, and dispose of it by dumping it in large pits dug for the purpose, or by burying it. Some of this waste material was shown to be toxic or poisonous in nature.

In about June, 1968, three new pits were dug along the edge of the bluff on Petro Processors’ property about three hundred feet north of plaintiffs’ property line. In December, 1969, material from one or more of these pits began to leak onto plaintiffs’ property, allegedly causing damage thereto. Although there is a conflict in the testimony as to the duration of the leakage and the extent thereof, it is clear that the soil of much of the 550 acres of swamp is permeated to some degree with chlorinated hydrocarbons, which are toxic and which are, for all practical purposes, non-biodegradable.

This suit was originally brought by Dave Haas Ewell and his children against Petro Processors, Inc. of Louisiana. Subsequently the remainder of the Ewell family, who are the owners of the other % interest in the property, were joined as parties plaintiff. The following corporations, whose waste materials were dumped in Petro Processors’ pits were joined as parties defendant: Humble Oil & Refining Company (now Exxon Company, U.S.A., a division of Exxon Corporation), the Dow Chemical Company, Ethyl Corporation, Allied Chemical Corporation, Rubicon Chemicals, Inc., Enjay Chemical Company (now Exxon Chemical Company, U.S.A., an operating division of Exxon Chemical Company, a division of Exxon Corporation), Poster Grant Company, Inc., Uniroyal, Inc., Copolymer Chemical Company, and Shell Chemical, Inc.

Prior to the trial, the plaintiffs, other than Dave Haas Ewell, Jr. and his children, entered into a compromise settlement with all defendants, and dismissed their suit.

The case was ultimately tried before a jury, which rendered a verdict for the remaining plaintiffs and against all defendants for $25,000.00 property damage and $5,000.00 for mental anguish. Judgment was signed accordingly and plaintiffs have appealed. All defendants have answered the appeal, so that both the basic questions of liability and quantum are presented.

As to Petro Processors there can be no doubt that it negligently permitted toxic waste materials to leak over onto plaintiffs’ property, and it, therefore, is responsible for any damages resulting therefrom. Articles 667, 669 and 2315, Civil Code.

A more difficult question is presented as to the other defendants. Plaintiffs proved, by chemical analysis of a number of soil samples taken at various locations and depths on the property, that chlorinated hydrocarbons were present in quantities from 180 to more than 25,000 parts per million, although, in three spots, no such pollution was detectable. At one point on the Ewell property, near the pits, a small percentage of a brown powder said to contain aromatic hydrocarbons was detected. No other pollutants were found on plaintiffs’ property which were attributable to the leakage from the pits.

From the somewhat sketchy evidence on the point, we conclude that Petro Processors stood in the relationship of an independent contractor to its customers. The invoices, purchase orders and letters of authorization in the record indicate that Petro Processors was told what to pick up, and where and sometimes when, but received no instructions as to the method of carrying out the assigned task or the disposal of the waste material. Payment was made as each job was billed to the customer.

Ordinarily, an employer is not liable for offenses of an independent contractor committed in the course of performing his duties under the contract. An important exception to this rule, which has been recognized in this state, is that if the work is inherently or intrinsically dangerous unless proper precautions are taken to avoid injury, the employer cannot avoid liability by letting the work out to an independent contractor. Montgomery v. Gulf Refining Co., 168 La. 73, 121 So. 578 (1929).

Our courts have also concluded that if “the work is such that no precautions will render it completely safe, there can be no shifting of liability. Where an available safe method, which includes the taking of adequate precautions, will render it at least ordinarily safe, and the work is done in an unsafe manner, the employer will be liable if he has expressly or impliedly authorized the particular manner which will render the work unsafe, and not otherwise.” Perkow-ski, The Employer and the Torts of His Independent Contractor in Louisiana, 21 TuLL.Rev. 619, 627 (1947); Montgomery v. Gulf Refining Co., supra; Rock v. American Const. Co., 120 La. 831, 45 So. 741 (1908); Davie v. Levy, 39 La.Ann. 551, 2 So. 395, 4 Am.St.Rep. 225 (1887).

The record in this case does not support the conclusion that the work done by Petro Processors cannot be done safely. The damages suffered by plaintiffs were due, not to the dumping of toxic substances in the pit, but to the improper construction of one of those pits. We therefore conclude that the customer defendants cannot be held liable unless it is shown that they were aware of the leakage at the pits and continued to dump hazardous material at that site.

Some of the defendants were not proven to have dumped any waste containing the substances that allegedly polluted plaintiffs’ property. Shell Chemical disposed of by-products of the manufacture of detergent products. The chemical composition of these by-products was not proven. Rubicon dumped only waste oil. It is not shown what the chemical composition of the waste might have been.

Foster Grant, between November 6, 1968, and June 1, 1971, dumped over 22 million pounds of styrene tar residue in these pits. Plaintiffs’ expert did not know the chemical content of styrene tar. He testified that styrene is an aromatic hydrocarbon, which is toxic but also more readily biodegradable than the chlorinated hydrocarbons. Since aromatic hydrocarbons of unknown content were found at only one spot on plaintiffs’ property, and in unknown quantity, we do not believe that it has been proven that plaintiffs’ property was polluted by chemicals dumped by Foster Grant.

With respect to Enjay, the evidence shows that the following work was done by Petro: “pump up acid lead”; “pump out sewer ditch”; “clean Drums D-8 D-10B and D-10C at Crude Enthanol”; skim No. 1 and No. 2 Coolers at Acid Plant”; “pump out 1721 tank”; “pump out Tank # 1745 at the Acid Plant”; “pump out holes at Ave. J and 29th, Crude 90% acid line”; “empty drum AD416 (Cobalt Settling Drum) at Aldox United”; “pump out catalyst drum # 3951 at Oxo Unit”; “pump out 98% acid line leak”; “pump out K box and dispose of contents”; “pump out cobalt sump pit at Catalyst Plant”; “remove one (1) load of contaminated Ethyl Mercaptan from CD-2 at OLA-1)”; “pump V2 load of viscous hydrocarbon out of D-321-C at Resin United”; “clean Tank # 522 containing approximately 7000 barrels leaded slop.” None of these jobs indicate that the materials were to be disposed of by Petro Processors, and none of the materials are identified as chlorinated hydrocarbons.

Enjay also authorized that the following materials be dumped at the pits: slop acids, dry dessicants, 40 17E “Poison” drums, waste polymer and catalyst, waste stearate, 125 cubic yards of lead spill, 300 loads of leaded slop bottoms, silica gel and alumina, 19 55-gallon drums of Buton, five 55-gallon drums of DILA T-l bottoms (40% isoprene), 12 5-gallon cans of isoprene, 570 cubic yards of alumina, waste chemicals, “14,000 gallons of alcohol used in cleaning T-l caustic scrubber”, waste polymer and cement, 20 cubic yards of Aromatic Coke, and 55 cubic yards of spent chemical solution. Once again, none of the foregoing materials are shown to contain chlorinated hydrocarbons.

The same is true as to Humble Oil. The only evidence in the record as to the materials dumped at the pit by Humble is a series of letters of authorization, which authorizes the dumping of the following materials: asphalt, spent sulphuric acid and water, sul-phuric acid, “2000 cubic yards of earth which may contain traces of Phenol and lead”, kerosene, diesel oil, hydrocracker feed, leaded slop, jet fuel slop, “material from our Phenol Retention Basin,” clarified oil and catalyst bottoms, and phenolic caustic. Petro Processors was also authorized to “pump out inside of Caustic Concentrator”, “pump out drums, towers, and inside firewall at East Phenol Turnaround”; “pump out Desalters at No. 10 Pipe Still”; and “clean one (1) desalter at No. 8 Pipe Still.”

Copolymer, in answering interrogatories propounded to it, stated that it had dumped by-products of the manufacture of styrene butadiene synthetic rubber at the pits. Trip tickets introduced into evidence showed that the materials included “1-12-RD”, scrap rubber, latex, and waste rubber. On one occasion Petro Processors pumped out a “stop oil skimming basin.” No showing was made that any of the material dumped contained chlorinated hydrocarbons. If the use of a styrene compound indicates the presence of aromatic hydrocarbons, there is still not sufficient evidence to show that plaintiffs’ property was polluted by those chemicals.

Allied was dumping from three different sites, and, from two of those, there is no evidence of any chlorinated hydrocarbons having been dumped at the pits.' The Plastics Division admitted dumping 60,000 pounds of chlorinated polyethylene between January 27 and 29,1970. It is not shown in which pit this material was dumped, or if it was liquid or solid.

Dow Chemical was dumping “chemical wastes of a tarry polymeric nature” at the pits between June 15, 1969, and May 5, 1970. Invoices further identify some of the material as “CPE”, the meaning of which is not explained in the record. Representatives of Dow visited the pits in the fall of 1969, the spring of 1970 and the winter of 1970-71.

Ethyl used the services of Petro Processors from June, 1967, through May, 1971, for disposing of the by-product of chlorinated hydrocarbon wastes, principally hexachlorobutadiene from the manufacture of perchloroethylene and trichloroethylene. Several Ethyl employees visited the site, but an unspecified times.

Uniroyal stated that it disposed of tank cleanings containing butadiene, Acryloni-trile and Latex; recovered styrene; caustic soda wash from scrubbing TBC from buta-diene; and latex slurry. After June 1, 1971, only dry waste of ABS plastic and a small amount of nitrile rubber was dumped. None of the above compounds are shown to contain chlorinated hydrocarbons. Some Uniroyal personnel made periodic visits to the pits.

From the foregoing, we find that there is no evidence to sustain a finding by the jury that chlorinated hydrocarbons were dumped in the pits by Uniroyal, Dow, Copolymer, Humble, Enjay, Foster Grant, Shell Chemical and Rubicon.

Both Allied and Ethyl are shown to have dumped chlorinated hydrocarbons in the pits, although Allied only did so over a three-day period in 1970. It is not shown when Allied became aware that the pits were leaking, and the record is clear that no chlorinated hydrocarbons were dumped by it after January 29, 1970.

Ethyl is the only customer defendant which is shown to have dumped the pollutant in question from before the pits were found to be leaking until well after this suit was filed. Since it admitted that several of its employees visited the pits, knowledge of the condition thereof can certainly be attributed to it. We therefore find that Ethyl is liable solidarily with Petro Processors for the damages done to plaintiffs’ property.

The major question presented by this case is one of the meásure of damages. Plaintiffs argue that they are entitled to reparation of the damage done to their property by the chemical spill which polluted it. They sued for over $170,000,000.00, which is alleged to be the cost of removing the polluted soil from their property and replacing it with good soil. The trial judge held that plaintiffs could not recover more than the value of the property damaged, and so instructed the jury. In awarding the sum of $25,000.00 to plaintiffs the jury gave very nearly the full value of an undivided one-eighth of the 550 acres which lies below the 35-foot contour line.

There is no hard and fast rule in Louisiana as to the measure of damages in cases such as this. In some cases involving immovable property our courts have used the cost of restoration as the measure. Wilson v. Scurlock Oil Co., 126 So.2d 429 (La.App. 2nd Cir. 1960); Melancon v. Oilfield Lubri cant Services, Inc., 292 So.2d 908 (La.App. 1st Cir. 1974). In other cases, the difference between the value of the property before and after the damage has been the measure. Womack v. Travelers Ins. Co., 258 So.2d 562 (La.App. 1st Cir. 1972); Curole v. Acosta, 303 So.2d 530 (La.App. 1st Cir. 1974). In one case, a combination of the two methods was used. Daspit v. State, Department of Highways, 325 So.2d 368 (La.App. 3rd Cir. 1975).

Plaintiffs point out the very real social problem which is caused by industrial pollution of all kinds, and argue, quite persuasively, that money alone cannot cure the damage done in such cases, and that those liable should be held responsible for the restoration of the environment to its original condition.

We think that the proper measure of damages must be determined from the circumstances of each case, considering such factors as the extent of the damage; the use to which the property may be put; extent of economic loss, both as to value and income; and the cost of and practicability of restoration.

The subject property is swamp, subject to periodic overflow from the Mississippi River and from Baton Rouge Bayou. Prior to being polluted, it was used seasonally for grazing of cattle, and, non-commercially, for hunting and fishing. Its only other commercial use was for the growing of timber. Its value was set at $375.00 per acre, or slightly over $200,000.00 for the 550 acres affected, by the only expert witness who testified as to that point. The restoration of the property, according to plaintiffs’ witness, would take about seven years, involve the use of 100 trucks running continuously during that time, and would cost 170 million dollars. Only these plaintiffs among the owners of the property, were interested in seeking such relief.

Under those circumstances, we are of the opinion that the proper measure of damages is the diminution in value of the affected property. The testimony as to the effect of the pollution on the property is in hopeless conflict. Plaintiffs’ witnesses tell of a dead and useless tract of land, unable to support life of any sort, animal or vegetable. Defendants’ witnesses describe a living swamp, teeming with fish and wildlife, with a healthy and increasing growth of timber. The dying trees in the swamp are said to be the result of the pollution by plaintiffs’ witnesses and of increased flooding and sil-tation by those of defendant.

The jury obviously accepted the testimony of plaintiffs’ witnesses, since they awarded the full value of their interest in the property to plaintiffs. We cannot say that this finding is manifestly erroneous, since there is evidence in the record on which such a finding could reasonably be based. The same is true as to the award of $5,000.00 for mental anguish.

Plaintiffs have complained of a number of evidentiary rulings made by the trial judge, and as to his failure to instruct the jury in certain respects. In view of our finding that the jury made the maximum award permissible under the circumstances of this case, we see no point in detailing or commenting on these rulings.

The judgment appealed from is reversed insofar as it grants judgment against Humble Oil and Refining Company (now Exxon Company, U.S.A.), The Dow Chemical Company, Allied Chemical Corporation, Rubicon Chemicals, Inc., Enjay Chemical Company (now Exxon Chemical Company, U.S.A.), Foster Grant Company, Inc., Uniroyal, Inc., Copolymer Chemical Company and Shell Chemical, Inc., and there will be judgment dismissing plaintiffs’ suit as to those defendants, at plaintiffs’ cost. In all other respects the judgment is affirmed at the cost of those defendants cast in judgment.

REVERSED IN PART, AFFIRMED IN PART AND RENDERED.


author: EDWARDS, Judge:

text:
    ATCHAFALAYA BASIN LEVEE DISTRICT Appearing Through its Board of Commissioners, Appellee, v. N. F. PECQUET, Jr., Assessor of West Baton Rouge Parish, et al (the Louisiana Tax Commission and James H. Dupont, Assessor of Iberville Parish), Appellants.
    No. 12173.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1978.
    Rehearing Denied Nov. 20, 1978.
    Joseph W. Cole, Jr., Asst. Dist. Atty., Port Allen, for plaintiff-appellee.
    Wallace A. Hunter, Baton Rouge, for defendant Sheriffs.
    John W. Jewell, New Roads, for defendant, N. F. Pecquet, Jr., Assessor, West Baton Rouge Parish.
    Thomas S. Halligan, Asst. Atty. Gen., Baton Rouge, for defendant-appellant Louisiana Tax Commission.
    William C. Dupont and James H. Dupont, Plaquemine, for defendant-appellant James H. Dupont, Assessor of Iberville Parish.
    Jack T. Marionneaux, Plaquemine, for defendant, Jessel M. Ourso, Sr., Sheriff of Iberville Parish.
    Wm. J. Doran, Jr., Baton Rouge, amicus curiae.
    Before SARTAIN, CHIASSON and EDWARDS, JJ.
   EDWARDS, Judge:

Plaintiff, Atchafalaya Basin Levee District, brought this action seeking a declaratory judgment that LSA-R.S. 33:9005 (La. Acts 1976, No. 689) does not apply to multi-parish taxing districts such as plaintiff. From a judgment in favor of plaintiff, two defendants, James H. Dupont, Assessor of Iberville Parish, and the Louisiana Tax Commission, have appealed.

The statute at issue, LSA-R.S. 33:9005 provides:

Sec. 9005. Mandatory rollback of ad va-lorem taxes by tax recipient bodies of the parish.
“The total amount of ad valorem taxes received by other taxing authorities in the parish shall not be increased because of the provisions of Sections 9001 through 9008. To accomplish this result, it shall be mandatory for each affected taxing authority in the year in which the special district provided for herein is created to adjust millages so that taxes are not increased as a result of the creation of the special district provided for herein. Thereafter such millages shall remain in effect unless changed or increased in a manner provided by law. In the event a taxing authority increases the taxes authorized under this Section without a public referendum, such taxing authority shall have deducted from its share of state revenue sharing funds an amount equal to such taxes increased without a public referendum plus a penalty of fifteen percent of such amount. Provided however, that nothing herein shall prohibit a taxing authority from collecting, in the year in which the special district is created or in any subsequent year a larger dollar amount of ad valorem taxes by:
(a) levying additional or increased mil-lages as provided by law:
(b) putting additional property on the tax rolls; or
(c) increases in the fair market or use value of the property.
“This Section shall not apply to millag-es required to be levied for the payment of general obligation bonds.”

LSA-R.S. 33:9005 was a part of legislation (La.Acts 1976, No. 689) which created special law enforcement districts in each parish, except Orleans, and granted the power of taxation to these special districts to levy ad valorem taxes as a new method of financing the sheriffs’ offices. Previously the sheriffs, as tax collector for each parish, were authorized to deduct a commission of a certain percentage as provided by LSA-R.S. 33:1423(C) from various taxes (including “levee” taxes) collected by him and actually paid into the treasury or to the appropriate authority. La.Acts 1976, No. 689 removed the sheriffs’ authority to deduct a percentage commission (except in instances which are not pertinent to this suit) and substituted a direct ad valorem tax for the percentage commission as the method of funding the sheriffs’ offices. LSA-R.S. 33:9005 was included to prevent an automatic increase in ad valorem taxes because of this new method of funding.

Atchafalaya, a taxing authority including portions of eleven parishes, filed this suit against the assessors of the parishes within its district to obtain a declaration that “Act 689 of 1976 now Louisiana Revised Statutes 33 Section 9001 through 9008, does not apply to petitioner and other multi-parish districts.” By a supplemental and amending petition, plaintiff named the sheriffs of the eleven parishes and the Louisiana Tax Commission as additional defendants.

The Commission filed exceptions of no cause of action and no right of action, contending that this suit was not appropriate for declaratory relief because of the absence of a justiciable issue.

In his Reasons for Judgment, the trial judge overruled both exceptions and, accepting plaintiff’s argument that a parish by parish millage rollback would be unconstitutional, ruled that “none of the provisions of LSA-R.S. 33:9005 are applicable to the plaintiff.”

Neither appellant has raised the issue of justiciability on appeal. Nonetheless, we consider this issue inasmuch as it is central to the granting of declaratory relief.

In Stoddard v. City of New Orleans, 246 La. 417, 165 So.2d 9 (1964), the Supreme Court stated in discussing LSA-C.C.P. arts. 1871 et seq.:

“These codal articles create a procedural device by which the courts may make a declaration of rights without executory or coercive relief. The articles are remedial in nature and must be liberally construed. Basic to the exercise of these procedures, however, is the existence of a justiciable controversy. The courts are without power to render advisory opinions on abstract questions.” (footnotes omitted).

And in Abbott v. Parker, 259 La. 279, 249 So.2d 908 (1971), the Court through Justice Tate stated:

“The declaratory relief is sought by virtue of La.C.C.P. Arts. 1871-83. These substantially incorporate the provisions of the Uniform Declaratory Judgments Act.
“The consistent interpretation of the Uniform Act and of our own code articles is that declaratory relief is available only to decide justiciable controversies, and that such enactments do not empower the courts to render advisory opinions on abstract questions of law. (citations omitted).
“A ‘justiciable controversy’ connotes, in the present sense, an existing actual and substantial dispute, as distinguished from one that is merely hypothetical or abstract, and a dispute which involves the legal relations of the parties who have real adverse interests, and upon which the judgment of the court may effectively operate through a decree of conclusive character. Further, the plaintiff should have a legally protectable and tangible interest at stake, and the dispute presented should be of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” (citations omitted).

Additionally, appellate courts, as well as the trial court, are granted broad discretionary power to determine whether a suit is one in which declaratory relief may be appropriate. Orleans Parish School Board v. City of New Orleans, 238 La. 748, 116 So.2d 509 (1959); LSA-C.C.P. art. 1876. See Gulotta v. Cutshaw, 258 So.2d 555 (La.App. 1st Cir. 1972), rev’d on other grounds 283 So.2d 482 (La.1973).

In the instant case, we believe that the petition fails to disclose a justiciable controversy when measured by the criteria of the cases cited above.

Atchafalaya’s petition consists of nine numbered paragraphs — paragraphs nos. 4, 5, 7 and 8 attempt to establish its claim to declaratory relief. In paragraph no. four, plaintiff states that the legislature adopted the Act in question (La.Acts 1976, No. 689). In the next paragraph, Atchafalaya notes that it is a multi-parish district and then sets forth its contention “that to apply the terms of Section 9005 of Title 33 of the L.R.S. (Act 689 of 1976) to petitioner would result in a resolution levying a tax of a different millage in each of the eleven parishes” and, Atchafalaya concludes, “would violate the Equal Protection clause of both the State and Federal Constitution.”

The last two pertinent paragraphs, nos. seven and eight, read:

7.
“Substantial questions of law exist as to the applicable (sic) of Act 689 of 1976 to those political subdivisions of the State of Louisiana which cover more than one parish.
8.
“It is absolutely necessary that the legal issues be resolved so that the defendants may properly spread on the tax rolls of the various parishes the millage required for the support, maintenance and operation of the Atchafalaya Basin Levee District.”

Plaintiff’s Supplemental and Amending Petition merely adds additional party defendants and does not contain any additional allegations to support the granting of declaratory relief.

We fail to find that the allegations of the petition show any real adversity of interest upon which declaratory relief might be predicated. The fact that an act of the legislature commands some action to be taken by an agency, which the agency contends might be unconstitutional, does not, in our opinion, without more establish a justiciable controversy to challenge the applicability of the act.

The trial court found justiciability relying on the fact that LSA-R.S. 33:9005 provided a penalty for noncompliance and that this penalty might be invoked against Atchafa-laya.

Atchafalaya has not alleged (nor has it been shown) that the penalty of LSA-R.S. 33:9005 has been, or is about to be, imposed.

Consequently, we do not find that At-chafalaya possesses a tangible interest at stake of sufficient immediacy and reality to warrant declaratory relief. Abbott v. Parker, supra. On the contrary, we find that Atchafalaya is merely seeking the advice of the court regarding a course of action which it has taken. Such amounts to no more than an advisory opinion, which we can not and will not render.

Accordingly, we believe that the trial court erred in overruling the exceptions and in granting declaratory relief in the absence of a justiciable controversy.

For the above reasons, the judgment of the trial court is reversed and plaintiff’s suit is dismissed without prejudice. Costs of this appeal are to be paid by plaintiff as allowed by law.

REVERSED AND RENDERED.

      . LSA-C.C.P. art. 1876 provides:
      “The court may refuse to render a declaratory judgment or decree where such judgment or decree, if rendered, would not terminate the uncertainty or controversy giving rise to the proceeding.”