text:
    STANDARD COMPANY OF NEW ORLEANS, INC. v. ELLIOTT CONSTRUCTION COMPANY, INC., et al. ELLIOTT CONSTRUCTION COMPANY, INC. v. DIVISION OF ADMINISTRATION, State of Louisiana, Legal Successor to the Capital Outlay Budget Board, Through the Department of Facility Planning and Control.
    No. 61822.
    Supreme Court of Louisiana.
    Oct. 9, 1978.
    Rehearing Denied Nov. 9, 1978.

      Thomas W. Prewitt, Butler, Snow, O’Mara, Stevens & Cannada, Jackson, Miss., Gordon A. Pugh and Charles W. Lamar, III, Breazeale, Sachse & Wilson, Baton Rouge, for Elliott Const. Co., Inc., applicant.
    William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., Robert E. Redmann, Asst. Atty. Gen., Jay H. Kern, Staff Atty., Dept, of Justice, State of La., New Orleans, for Div. of Administration, etc., et al., defendant-respondent.
   DIXON, Justice.

Two cases have been consolidated and are before us.

A general contractor filed suit under R.S. 9:4201 et seq., asking the trial court to order the State of Louisiana to arbitrate a claim for equitable adjustment on a construction contract. The Nineteenth Judicial District Court for the Parish of East Baton Rouge granted an order requiring the State to arbitrate the claim brought by the general contractor in suit 205,827. The trial court also denied a motion to stay arbitration proceedings filed by the State in another suit (180,491) previously filed by a subcontractor in which the general contractor filed a third party demand against the State. The State appealed both decisions and the Court of Appeal stayed the proposed arbitration and reversed the trial court’s two orders to arbitrate, holding that: (1) the court and not an arbitrator must decide whether the arbitration provision had been waived; (2) the obligation to arbitrate, once waived, could not be revived; and (3) the general contractor had waived the right to require the owner to arbitrate. We granted the general contractor’s application for writ of certiorari to review the Court of Appeal decision.

These cases arise from the construction of the Southern University Minidome by Elliott Construction Company, Inc., the general contractor under a contract with the predecessor of the Division of Administration, State of Louisiana. During the course of construction, the State’s architect, August Perez & Associates, Inc., rejected the work of the roofing subcontractor, Standard Company of New Orleans, Inc., on aesthetic grounds and because the roof leaked. The roofing subcontractor left the job and filed suit (180,491) against Elliott and the State to collect the unpaid balance on its subcontract. Elliott contracted with another roofer to replace the roof on the Minidome and reconvened against the original roofer for damages due to its breach of the roofing subcontract.

After the Minidome was completed and accepted by the State, Elliott filed with the architect a claim for equitable adjustment in contract time and money, asserting that the State was indebted to Elliott in excess of the contract sum for damages, because of the State’s interference with Elliott’s planned sequence of construction activities and the State’s withholding or misrepresenting information concerning sub-surface conditions at the worksite. The filing of these claims with the architect was in accordance with the procedures established by the contract. Two months after submitting the claim to the architect, Elliott filed its third party demand against the State in suit 180,491. In addition to Standard, Elliott and the State, the parties in suit 180,-491 include the major suppliers of roofing components (The Celotex Corporation and National Gypsum Company), the architect and the sureties and insurers of several principal parties.

Perez issued its decision on the claim and Elliott invoked arbitration; the State then filed a motion in suit 180,491 in which it requested an order that Elliott show cause why it had not waived arbitration and should not proceed to litigate the claim. The trial court denied the State’s motion, and Elliott then sought to compel the State to proceed with arbitration in suit 205,827. After a hearing in this latter suit, the trial court ordered the State to proceed with arbitration. The State appealed both decisions to the Court of Appeal, which reversed the trial court in both cases and entered judgment denying arbitration.

Applicant, Elliott, contends that the Court of Appeal erred in ruling Elliott waived its right to submit the claim to a panel of arbitrators and in not following Bartley, Inc. v. Jefferson Parish School Board, 302 So.2d 280 (La.1974), where this court held that a question of waiver of the right to claim arbitration should be decided by the arbitrator and not the court.

The trial court relied on the Bartley case and found that the issues before it were (1) whether an agreement to arbitrate had been made, and (2) whether the opponent had refused or failed to comply. R.S. 9:4203. The trial court held that affirmative answers to both questions left it no authority than to order arbitration.

The Court of Appeal disagreed with the trial court’s conclusion and quoted from R.S. 9:4201, which provides in part that the provision to arbitrate “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” The Court of Appeal interpreted that provision to mean that the court is not required to order arbitration under R.S. 9:4203 if there are grounds under R.S. 9:4201 for revocation, and reasoned: “It follows, necessarily, that the court must consider and rule upon any contention that such ground exists. Certainly, the State is contending that waiver is a ground for revocation.” Standard Company of New Orleans, Inc. v. Elliott Construction Co., Inc., 359 So.2d 224, 226 (1st Cir. 1978).

Continuing, the Court of Appeal noted the recent decision of George Engine Co., Inc. v. Southern Shipbuilding Corp., 350 So.2d 881 (La.1977), where this court held that the court, not the arbitrator, had to decide the validity of the contract attacked for lack of consent and that it would be absurd to require arbitration under a contract that did not legally exist. We find the Court of Appeal erred when it concluded, “we believe there should be a similar result if the arbitration provision has been waived.”

In George Engine, supra, the issue was whether a party to a contract containing an arbitration clause may sue to rescind that contract in a court because the contract is, and was, void ab initio. George Engine involved the invalidity of the entire contract of which the arbitration clause was a part, and the court noted that by its very terms § 4201 presupposes the existence of a valid contract as a basis for invoking arbitration. In George Engine this court recognized that arbitration finds its principal support in the knowledge, experience and expertise of the arbitrator which qualify him to decide factual questions regarding performance of contractual obligations. Also, arbitration, as contrasted to litigation, can resolve quickly disputes over performance of contracts, and thus mitigate damages and allow parties to continue performance under the contracts. But the court found that arbitration .serves neither of these functions where an entire contract is sought to be rescinded, because the courts can better resolve the legal issues which go to the validity of a contract.

The only grounds for judicial inquiry under § 4201 are those “as exist at law or equity for the revocation of any contract.” Elliott correctly states that neither the State in its brief, nor the Court of Appeal in its opinion, treat the entire contract as revoked. The validity of the contract is not disputed, and the instant case is not a question of the revocation of the contract, as was the situation in the George Engine case. The Court of Appeal’s extension of George Engine to conclude that “there should be a similar result if the arbitration provision has been waived” does not follow from our reasoning in George Engine. By extending judicial inquiry beyond the validity of the contract containing the arbitration agreement to pre-arbitration inquiry of issues of waiver of an arbitration agreement in a valid contract, the court would undercut the benefits of arbitration, which is favored by Louisiana public policy. There is a significant legal and practical distinction between the validity of a contract ab initio that was questioned in George Engine and the waiver of the right to enforce the arbitration agreement clause of a valid contract because of actions of a party after the contract was performed.

The Court of Appeal in the instant case did not properly apply the holding of Bartley, Inc. v. Jefferson Parish School Board, supra. In Bartley the subcontractor and owner contended that the general contractor’s demand for arbitration, pursuant to the same AIA arbitration agreement as the instant case, was premature because he had not referred the claim to the architect before making demand. They also contended that the general contractor waived his right to arbitrate. In answer to these contentions, this court found that the claims of prematurity and waiver were questions of procedural arbitrability, and when a party sues to enforce an arbitration agreement, the courts should not decide these questions without requiring submission to arbitration. In Bartley, 302 So.2d at 283, the court concluded that the issues of waiver and prematurity address themselves to the arbitrator, and they cannot be utilized to prevent the aggrieved party from securing an order directing arbitration, as required by § 4203.

The Court of Appeal in the present case distinguished Bartley, noting that this court called the claims of prematurity and waiver questions of “procedural arbitrability” and that this court spoke of the failure to refer the claims to the architect before demanding arbitration, as was required by the contract in Bartley. The Court of Appeal reasoned that “the question involved was one of failure to conform to the procedure rather than one of a basis for revocation of a contract.” We agree that the question involved in the present case is not one of failure to conform to the procedure, but we disagree that the question involved is “one of a basis for revocation of a contract.” Waiver of the obligation to arbitrate is not a ground for revocation of an entire contract. Revocation of the contract is not at issue in this case.

It is not necessary to discuss the Court of Appeal’s finding that the obligation to arbitrate, once waived, cannot be revived over the objections of the opponent; the record does not support the Court of Appeal’s finding that Elliott has waived the obligation to arbitrate.

Waiver of a party’s right to require arbitration by instituting a court action will depend on the circumstances of each case, and whether the party indeed abandoned his right to insist upon arbitration by resorting to court procedure. Domke on Commercial Arbitration, § 19.01. Waiver is usually defined as a voluntary and intentional relinquishment or an abandonment of a known claim. Breaux v. Laird, 230 La. 221, 88 So.2d 33 (1956). Although there is a split in authority, numerous courts in other jurisdictions have found that the resort to court proceedings was not a waiver or voluntary and intentional relinquishment of the obligation to arbitrate.

In the instant case, the court cannot find that Elliott waived its obligation to arbitrate by filing the third party demand against the State in the subcontractor’s suit 180,491. First, the issues in the suit and the claim for equitable adjustment are separate and distinct. The claims in suit 180,491 involve issues of liability and damages in connection with the original roofing and subsequent re-roofing of the Minidome. The claims for equitable adjustment involve issues of liability and damages in connection with interference with construction method and sequence, change in proposal for floorslab delay, misrepresentation about sub-surface conditions, synthetic flooring, and excusable delays necessitating extensions of time. Elliott discussed the roofing problems as one of the excusable delays in its claim to the architect but only requested adjustment in the contract completion date.

Second, the evidence, does not indicate waiver or a voluntary and intentional relinquishment of a known claim. Whether the rejection of the roof by the architect for aesthetic reasons (as well as improper application and failure to waterproof) could be arbitrated is questionable because the arbitration agreement excepted from arbitration the architect’s decision on matters relating to artistic effect. Also, other parties in suit 180,491 would have a valid objection to arbitrating issues in the roof litigation along with all nonrelated issues in the claim for equitable adjustment. Elliott contends that it filed its third party action against the State in 180,491 nearly two years after litigation began and one and a half years after discovery began, to preserve its rights against the State in what appeared to be a nonarbitrable issue. Elliott’s contention does not show voluntary and intentional relinquishment of a known right.

Third, the State does not appear to have been misled to its detriment. The parties apparently treated the issues in litigation separate from the issues in the claim. In the claim, Elliott discussed the roofing litigation but did not claim damages for the issues in litigation. The written response to the claim by the architect recognized the issues in litigation and excepted that part of Elliott’s claim until judgment in suit 180,491. Also, correspondence between the parties indicate that the issues were considered separate.

In sum, the evidence indicates that the issues in suit 180,491 and the claim are separate and distinct; that Elliott did not voluntarily and intentionally relinquish a known right; and that the State was not misled to its detriment or injury by Elliott’s actions. If, as the State contends, there is any overlapping, similar and inseparable quality in these claims, then the State has remedies to prevent any possible double recovery. If the claim for equitable adjustment is arbitrated before suit 180,491 is decided, then under C.C.P. 1005, the State can plead arbitration and award as a defense. If the issues in suit 180,491 are heard before or simultaneously with the claim, then R.S. 9:4210 provides that a court shall vacate any award where the award was procured by corruption, fraud or undue means.

The court is aware that, in one opinion, it holds that (1) waiver of arbitration is an arbitrable issue not to be litigated prior to arbitration; and (2) the State’s contention that the contractor has waived his right to require arbitration is without support in this record. Four reasons suggest the advisability, if not the consistency, of this action. (1) The Court of Appeal found a waiver. (2) The record is before us. (3) Further unnecessary delay while waiver is thrashed out by the arbitrator is avoided. (4)Finally, further review of the question of waiver in this case in the judicial system is obviated.

The State argues for the first time that a valid agreement to arbitrate never existed between the State and Elliott, because the Louisiana legislature did not expressly authorize the Capital Outlay Budget Board (“Board”), the legal predecessor of the Division of Administration, State of Louisiana, to refer any matter to arbitration. The State’s argument traces the recent Court of Appeal decision of Landis Construction Co., Inc. v. Health Education Authority of Louisiana, 359 So.2d 1045 (4th Cir. 1978), which this court granted writs to review. In Landis, the Court of Appeal held that the stipulation for arbitration of disputes in a construction contract between a business corporation and a governmental agency was unenforceable where neither the corporation’s nor the public agency’s resolution authorizing contract included express authority to stipulate for arbitration.

Pretermitting the argument that the law of mandate applies between the state and a public corporation, such as HEAL in Landis, which decision is not final yet, in the matter before us the State has ratified the contract. The State argues that the Board was a mandatory of the legislature without authority to bind it to arbitration under C.C. 2997; but C.C. 3010 provides that when a mandatory exceeds his power he is bound by his act “in his individual capacity.” The contractual duty to arbitrate was an obligation incurred by the Board, and that obligation was transferred by Act 164 of 1973 along with all of the Board’s powers, duties and functions to the Division of Administration, and the duty to arbitrate is to be “preserved and discharged by the Division of Administration” in accordance with R.S. 39:1410E. In effect, this statute that transferred the duties of the Board to the Division of Administration was a ratification of the Board’s contracts. C.C. 1840 and 3010. See, Acadian Production Corp. of La. v. Savanna Corp., 222 La. 617, 622-626, 63 So.2d 141 (1953).

Elliott’s argument that the Federal Arbitration Act applies to this contract because it involves interstate commerce lacks merit. The contract specifically provided that the law of the project site governs. (Art. 7.10.1 of AIA contract A201). See also George Engine, supra.

R.S. 9:4203 requires a Louisiana court, at the request of an aggrieved party, to order the parties to arbitration in accordance with the terms of their arbitration agreement after the court finds (a) that an arbitration agreement was made and (b) that the opponent failed or refused to comply. These are the only triable issues in a suit to enforce an arbitration agreement. Bartley, 302 So.2d at 281; Domke on Commercial Arbitration, § 17.02 (1968).

For these reasons, the judgment of the Court of Appeal is reversed, and the judgments of the district court are reinstated, at the cost of the respondent, insofar as permitted by law.

      . R.S. 9:4203 provides in part:
      “The party aggrieved by the alleged failure or refusal of another to perform under a written agreement for arbitration, may petition any court of record having jurisdiction of the parties, or of the property, for an order directing that the arbitration proceed in the manner provided for in the agreement. . . .
      The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not an issue, the court shall issue an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. If the making of the arbitration agreement or the failure or refusal to perform is an issue, the court shall proceed summarily to the trial thereof.”

      . R.S. 9:4201 provides:
      “A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”

      . Specifically, the court in Breaux, 230 La. at 234, 88 So.2d at 38, defined waiver as:
      “Though there are various definitions of the term ‘waiver,’ it can be comprehensively defined as a voluntary and intentional relinquishment or abandonment of a known existing legal right, advantage, benefit, claim, or privilege, which except for such waiver the party would have enjoyed. It is recognized that the terms ‘waiver’ and ‘estoppel in pais’ are closely related, the line of demarcation between them being slight, both partaking of the same elements and essentially the same relief.”
      and reasoned concerning waiver:
      “The doctrine of waiver or estoppel contravenes the legal rights of the person sought to be estopped, and in some instances stays the operation of the usual proceedings in the adjustment of rights of individuals and for that reason should, in every instance, be applied with great care and caution. Our courts and other jurisdictions universally hold that this doctrine should be applied only in exceptional cases where its application is necessary to effectuate justice or prevent injustice, and should not be applied where it will serve as an instrument of, or operate as, a fraud, be against good conscience, working injustice or accomplish a wrong. Gonsoulin v. Equitable Life Assurance Society of the United States, 152 La. 865, 94 So. 424; C.J. Sec., Vol. 31, p. 242 et seq.; 42 C.J.S. p. 380, 92 C.J.S. Waiver p. 1044.”

      . In Vespe Contracting Co. v. Anvan Corp., 399 F.Supp. 516 (E.D.Pa.1975), on the merits of waiver, the court held that there had been no waiver of arbitration, stating:
      “ . . . We hold that there has not been a waiver of arbitration in this case. Waiver of the right to arbitration is not to be lightly inferred. Unless one’s conduct has gained him an undue advantage or resulted in prejudice to another, he should not be held to have relinquished the right. . . . The mere filing of a complaint or answer, without resultant prejudice to the objecting party, will not justify a finding of waiver. . . ” (Citations omitted). Vespe, 399 F.Supp. at 522.

        In re Tsakalotos Navigation Corp., 259 F.Supp. 210 (S.D.N.Y.1966), on the merits of the waiver issue, the court found no waiver existed by the mere filing of a lawsuit and reasoned that the court must look to a party’s proof that the action taken was not inconsistent with the right to demand arbitration at a later time. In other words, the court found that while the joining of issue in a law suit will usually be inconsistent with arbitration, it does not follow that it will in all instances be so. The court concluded that even if the conduct of the petitioner in filing other proceedings was questionable, the court could not- say that the conduct was clearly inconsistent with the right to arbitrate and ordered the parties to proceed to arbitration.
      In Denihan v. Denihan, 34 N.Y.2d 307, 357 N.Y.S.2d 454, 313 N.E.2d 759 (1974), the New York court confronted a similar situation where a party invoked arbitration and then filed court proceedings. The court in Denihan reasoned that the claims in the various arbitra-tions and court actions arose from the same shareholders’ agreement, but the claims were separate and distinct. The court held that as to claims separate and distinct, no waiver of arbitration may be implied from the fact that resort has been made to the courts on other claims arising under a common agreement which remains in full force and effect. Denihan, 357 N.Y.S.2d 454, 313 N.E.2d at 760-61, and the cases cited therein. Also, in the Board of Education v. Brentwood Teachers Association, 79 Misc.2d 758, 361 N.Y.S.2d 570, 577 (1974), the court reasoned that waiver cannot be found unless the claims sought to be redressed in the judicial proceedings embrace the same issues for which arbitration is sought. See also, Farrell Marine Devices, Inc. v. Lykes Bros. Steamship Co., 299 F.Supp. 1270 (E.D.La.1969).

      . The arbitration agreement provided:
      “7.10.1 All claims, disputes and other matters in question arising out of, or relating to, this Contract or the breach thereof, except as set forth in Subparagraph 2.2.9 with respect to the Architect’s decisions on matters relating to artistic effect, and except for claims which have been waived by the making or acceptance of final payment as provided by Subparagraph 9.7.5 and 9.7.6, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise. This agreement to arbitrate shall be specifically enforceable under the prevailing arbitration law. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.” (Emphasis added).

      . R.S. 39:1410E provides:
      “The obligations heretofore incurred by the State Bond and Building Commission, the Capital Construction and Improvement Commission, the Capital Outlay Budget Board and the State Bond Commission in connection with any construction contract or agreement shall be preserved and discharged by the Division of Administration.”


source: Caselaw Access Project

author: DIXON, Justice.

license: Public Domain

text:
    STATE of Louisiana ex rel. William J. GUSTE, Jr., Attorney General and Representative R. Harmon Drew and B. F. O’Neal v. The CITY OF NEW ORLEANS, Moon Landrieu, Terrence Dubernay and Henry Simmons; STATE of Lousiana ex rel. William J. GUSTE, Jr., Attorney General v. The Honorable Judges George C. CONNOLLY, Jr., Adrian G. Duplantier, Thomas A. Early, Jr., Richard J. Garvey and Henry J. Roberts, Jr., in their official capacity as Judges for the Civil District Court for the Parish of Orleans, and the Honorable Judges Israel M. Augustine, Jr., Alvin V. Oser, Frank J. Shea, Charles R. Ward and Jerome M. Winsberg, in their official capacity as Judges for the Criminal District Court for the Parish of Orleans, and the Honorable Judges Joan B. Armstrong, Edward G. Gillin and Salvadore T. Mule, in their official capacity as Judges for the Juvenile Court for the Parish of Orleans.
    Nos. 62246, 62247.
    Supreme Court of Louisiana.
    Oct. 9, 1978.
    Rehearings Denied Nov. 9, 1978.

      William J. Guste, Jr., Atty. Gen., Donald Ensenat, Asst. Atty. Gen., La. Dept, of Justice, for plaintiffs-applicants in Nos. 62246 and 62247.
    George C. Connolly, Jr., et al. in pro. per. for defendant-respondent in No. 62246.
    Salvador Anzelmo, Acting City Atty., Thomas P. Anzelmo, Sr., Asst. City Atty., for defendants-respondents in No. 62246 and 62247.
    Frank J. Shea, in pro. per., defendant-respondent in No. 62246 and 62247.
   DIXON, Justice.

This litigation was engendered when the New Orleans City Council adopted Ordinance No. 6265 M.C.S. on February 17,1977. On May 6,1977 the plaintiffs sought declaratory and permanent injunctive relief (our No. 62246), alleging that the ordinance was unconstitutional because it conflicted with R.S. 13:691(C). The City of New Orleans, its mayor, administrative and finance officers were named defendants. After the State requested a preliminary injunction, the trial court set a hearing to determine whether a preliminary injunction should issue. All defendants filed exceptions of improper cumulation of actions, unauthorized use of summary proceedings, and no cause of action, as well as exceptions of no right of action as to Harmon Drew and B. F. O’Neal. On June 30,1977 the district court maintained the exception of no right of action as to the two State Representatives, Drew and O’Neal, and held:

“(2) Ordinance No. 6265 of the City of New Orleans is hereby declared to be constitutional, not in conflict with, but rather in furtherance of the State Statute R.S. 13:691(c).
(3) The injunctive relief sought by the plaintiff, State of Louisiana, seeking to prohibit the City of New Orleans and its designated officials from further implementing or enforcing said Ordinance No. 6265 or making payment thereunder to judges is hereby denied.”

The State sought supervisory writs from this court but was denied on the ground that its “remedy (was) by an expedited hearing in the Court of Appeal.” Guste v. City of New Orleans, 349 So.2d 330 (La. 1977). Thereafter the parties stipulated the issues for appeal and submitted the case to the Fourth Circuit. On December 3, 1977 the Court of Appeal affirmed the decision, Guste v. City of New Orleans, 353 So.2d 1117 (4th Cir. 1977), and the State applied for a writ of certiorari, or, alternatively, for supervisory writs, from this court on January 9, 1978. On January 27,1978 this court declined to consider the application because it was deemed untimely. Guste v. City of New Orleans, 354 So.2d 1374 (La.1978). On February 28, 1978 plaintiffs-relators filed a motion in the district court for a permanent injunction, and a rule to show cause was set for March 17, 1978. The City of New Orleans and individual defendants filed exceptions of res judicata, no cause of action and unauthorized use of summary proceedings. By judgment dated March 20, 1978 the district court maintained the exception of res judicata, denied the injunction and dismissed the case. On May 12,1978 plaintiffs sought supervisory writs to stay the trial court judgment and to grant an injunction, and a writ was granted on June 2, 1978. Guste v. City of New Orleans, 359 So.2d 199 (La.1978).

On March 23, 1978 the plaintiff filed a second suit in district court alleging that the ordinance was unconstitutional, since it conflicted with R.S. 13:691(C), and seeking a permanent injunction. Named as defendants were all the judges of Orleans Parish who were receiving reimbursements under the ordinance. The City of New Orleans intervened in the litigation as a party defendant and filed exceptions of collateral estoppel and res judicata. Three judges thereafter filed similar exceptions and Judge Shea, who had intervened in the previous suit, excepted on grounds of lis pen-dens and res judicata. On April 28, 1978 the civil district court maintained the exception of no cause of action as to all parties and maintained Judge Shea’s exception of res judicata. Supervisory writs were granted upon plaintiff’s application.

The initial issue confronting us is to determine whether the decision of the appeal court in Guste v. City of New Orleans, 353 So.2d 1117 (4th Cir. 1977), is a final judgment such that an exception of res judicata was properly maintained when the State filed once again in the district court. C.C. 3556(31) provides:

“Thing Adjudged — Thing adjudged is said of that which has been decided by a final judgment, from which there can be no appeal, either because the appeal did not lie, or because the time fixed by law for appealing is elapsed, or because it has been confirmed on the appeal.”

C.C.P. 2083 provides:

“An appeal may be taken from a final judgment rendered in causes in which appeals are given by law whether rendered after hearing or by default, and from an interlocutory judgment which may cause irreparable injury.”

This determination in turn depends upon the effect ascribed to the first decision of the district court in that case.

A party aggrieved by a judgment granting or denying a preliminary injunction is entitled to an appeal under Louisiana law and jurisprudence. C.C.P. 3612; Morris v. Transtates Petroleum, Inc., 258 La. 311, 246 So.2d 183 (1971). At the time that this litigation was on appeal, a judgment of a court of appeal became final and executory if an application for rehearing was not timely filed. C.C.P. 1841, 1842, 2167. Therefore, the pertinent inquiry becomes to determine what issues were encompassed in the district court’s decision which the Fourth Circuit subsequently affirmed.

Although the issues presented at the hearing on the rule nisi usually involve only the mover’s right to cause the preliminary injunction to issue, decisions rendered by Louisiana courts have recognized the parties’ right to agree that the matter be taken on the merits at the hearing on the application for a preliminary injunction. American Bakeries Co. v. Louisiana State Board of Health, 185 La. 959, 171 So. 90 (1936); Southwest Sales and Manufacturing Co. v. Delta Express, Inc. and D. E. Lester, 342 So.2d 281 (La.App.3d Cir. 1977), writ den. 345 So.2d 48 (La.1977); Springlake Homeowners Assn. v. Pecot, 321 So.2d 789 (La. App.4th Cir. 1975). In Southwest Sales, supra, the court noted the effect of a judgment rendered in this context:

“. . .we think it to be equally well settled that where a judgment denying a preliminary injunction after a hearing on the rule also passes on the merits of the case and effectively disposes of all issues presented by the pleadings such judgment is a final judgment. . . . ”
. . The said judgment being final and no appeal having been taken therefrom same is now res judicata . . . ” 342 So.2d at 284, 285.

The record in the case before us shows that the entire case was submitted to the district judge, despite the designation of the hearing as a hearing on the application for a preliminary injunction. For example, on June 23, 1977, an Assistant Attorney General, in correspondence to the district judge, referred to the June hearing as a “hearing on the merits.” Both parties extensively briefed and argued all the issues at the hearing on the rule to show cause. Judge Duran’s reasons for judgment dealt extensively with the merits of the case and touched only tangentially on the propriety of issuing a preliminary injunction. After judgment the State sought appellate review of the decision on the merits and not on the propriety of the court’s passing on any issue other than whether a preliminary injunction should issue. Finally, when the case was on appeal to the Fourth Circuit Court of Appeal, the parties entered into a stipulation “that the issue herein is the interpretation of R.S. 13:691(C) vis-a-vis Ordinance 6265 M.C.S.” These factors demonstrate that the parties understood that all issues would be decided on the merits at the hearing, that the judgment of the district court was a judgment on the merits, and that its affirmance by the appeal court was, after the delays for appeal had lapsed, a final judgment which would have the force of res judicata. We therefore affirm the ruling of the district court in Guste v. City of New Orleans insofar as it maintained the exception of res judicata.

In Guste v. Judges (our No. 62247), the district court sustained exceptions of no cause of action, as to all parties and an exception of res judicata as to Judge Shea, who had intervened in the previous litigation (our No. 62246). Judge Shea’s intervention had placed him on the side of the defendants; he prayed simply that plaintiffs’ demands be rejected.

Article 2286 of the Louisiana Civil Code of 1870 provides:

“The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.”

The requirement of identity of parties requires little explanation. Judge Shea, an intervenor in the first suit, is named a party defendant in the second. The identity of cause is uncontested by the State, for it is clear that the State’s demand is based upon the alleged unconstitutionality of Ordinance 6265 M.C.S. for conflicting with R.S. 13:691(C).

With respect to the identity of the object of the suit or demand, the State argues that the present suit is one for an injunction against the judges from receiving payments under Ordinance 6265. The demand in Guste v. City of New Orleans, says the State, was for a declaratory judgment of unconstitutionality and an injunction against the City’s paying the funds to the judges. This argument lacks merit. The object of both suits is to obtain a judgment holding the ordinance unconstitutional and prohibiting the receipt by Orleans judges of supplemental pay in violation of the statute. The fact that the first suit sought to enjoin the City from paying and the second suit sought to enjoin the judges from receiving the supplemental pay is too fine and technical a distinction on which to permit the relitigation of thé same thing between the same parties. To decide the object of the demand the court should not be limited to an examination of the prayer in the pleadings; the court should determine what were the matters actually litigated and decided. See Planiol, Vol. 2, Pt. 1, No. 54A (5) and (6), La.Law Inst. Translation, 1959.

Therefore, the judgment maintaining the exception of res judicata as to Judge Shea is sustained.

The judgment of the district court, in addition to sustaining the exception of res judicata filed by Judge Shea, pretermitted a ruling on the exception of collateral estop-pel filed by the other judges, having sustained their exception of no cause of action, dismissing plaintiff’s suit. In his reasons for sustaining the exception of no cause of action, the trial judge stated that the defendants had a right to rely upon the final judgment on the constitutionality of the ordinance in the earlier suit.

The district court held that the plaintiff was precluded from contending that the ordinance was unconstitutional, in spite of the fact that the defendant judges were not party to the prior litigation. A similar contention was made and disposed of by this court in Barnett v. Develle, 289 So.2d 129 (La.1974). That ease involved the constitutionality, as conflicting with the civil service article of the constitution, of statutes conferring supplemental benefits to firemen. There we said at 289 So.2d 138:

“To the extent the exceptions of no cause of action are based on the ground that the issues herein have been previously litigated in Firefighters I, II and III, said exceptions are in the nature of exceptions of judicial estoppel, laches and res judica-ta. We will deal with this issue in our subsequent consideration of these latter exceptions.
An exception of no cause of action must be determined in the light of the well pleaded averments of plaintiff’s petition, all of which must be accepted as true. Elliott v. Dupuy, 242 La. 173, 135 So.2d 54.”

In New Orleans Firefighters Assn. Local 632 v. City of New Orleans, 263 La. 649, 269 So.2d 194 (1972), we sustained a plea of res judicata because a prior judgment holding constitutional the statutes under attack had, become final in a suit between the same parties. Then, in the Barnett case, where the civil service commission members, not the city, were the parties attacking the constitutionality of the legislation, we denied several exceptions, including exceptions of no cause of action, judicial estoppel and res judicata. Finding the parties not to be identical, we reversed and held the statutes unconstitutional.

“Judicial estoppel” was discussed in the Barnett case, and it was recognized that it, or a similar doctrine, had been applied in Louisiana. In the Barnett case we “declined to apply” a doctrine of estoppel which would prevent a constitutionally created agency from testing the validity of a statute when it had not been a party to the prior action in which the validity of the statute was sustained.

This court was squarely faced with the issue of collateral estoppel in Welch v. Crown Zellerbach Corp., 359 So.2d 154 (La. 1978). We held the doctrine to be alien to Louisiana law and insusceptible to an orderly application here, not only because of a lack of uniformity of its application in common law jurisdictions, but because the words used in the common law jurisdictions to explain the doctrine have different meanings from the words used in Louisiana to explain our doctrine of res judicata. We said, at 359 So.2d 157:

“The introduction of collateral estoppel into our system would effectuate a change fundamentally different from that established by ancient legislation. By choosing to define res judicata in narrow terms, the legislators apparently concluded that the inconvenience caused by relitigation is outweighed by the injustice of perpetuating erroneous judicial decisions. The adoption and application of an issue preclusion device which would broaden the operation of re's judicata in Louisiana would subvert the original ideal established by codes.
While this court has on occasion recognized collateral estoppel in our system of law, no clear understanding of the application of that doctrine has been developed in the cases or in legal literature.
Therefore, we hold that none of the variations of the common law doctrines of res judicata apply in Louisiana.”

Therefore, the exception of collateral estoppel is overruled.

On the merits of the case, the State contends that Ordinance 6265 M.C.S. as passed by the New Orleans City Council is unconstitutional because it conflicts with R.S. 13:691(C).

R.S. 13:691(C) provides:

“No judge whose salary is provided for herein shall receive for his services as a judge, directly or indirectly, any additional salary, compensation, emolument, or benefit from the state or any of its political subdivisions except (1) retirement benefits, (2) reimbursement of those expenses provided for and authorized by R.S. 13:694, 13:698, and 13:1341.2, (3) membership in group insurance programs, and (4) educational grants.” Ordinance 6265 M.C.S. provides in pertinent part:
“SECTION 1. THE COUNCIL OF THE CITY OF NEW ORLEANS HEREBY ORDAINS, that each Judge of the Civil District Court, Criminal District Court and the Juvenile Court for the Parish of Orleans who is a member of the State Retirement Plan for Judges and Officers of the Court shall receive annually from the City of New Orleans as a retirement benefit allowance a sum of money equal to one half of the. percentage of his annual sálary as Judge which he must contribute each year toward his retirement plan for Judges as enacted by the Louisiana State Legislature by Act 518 of 1976 and approved August 5, 1976, amending Chapter I of Title 13 and adding a new part to be designated as Part II, and to comprise R.S. 13:11 through R.S. 13:26.”

First, it has been argued and accepted on the basis of the rationale expressed in Swift v. State of Louisiana, 342 So.2d 191 (La.1977), that the statute is to be construed liberally. The reliance on the Swift decision is misplaced. In Swift liberal construction was given to legislation providing pension benefits, whereas the instant controversy involves a statute prohibiting additional compensation. The legislative intent in enacting 13:691(C) is clear: judges are to receive no additional compensation except that specified.

The city ordinance permits Orleans Parish judges to receive from the city an annual sum equal to one-half their annual contribution to the state employees retirement system, and calls the sum “a retirement benefit allowance.” The court concluded that payment by the city of one-half the judges’ contribution to the retirement system was a “retirement benefit” because such a liberal interpretation would not thwart the purpose of the act, in view of the other exceptions provided for in 13:691(C).

The other exceptions, which state or local governments are permitted to pay for or to judges, are: travel, hotel and office expenses, group insurance premiums, and educational grants. There are strong reasons to permit the reimbursement of certain expenses; contribution to group insurance premiums is a traditional and accepted fringe benefit in business and government; educational grants legitimately give rise to the expectation of improved performance in office. It would have been unusual and unexpected if the legislature had prohibited the continuation of such reimbursement of expenses and insurance and education programs. It would also have been unexpected (and unjust) for the legislature to have prohibited receipt by a judge of retirement benefits he might earn under a local system.

It would also have been unusual and unexpected in 1975 (when the new system of paying judges was enacted as 13:691) to interpret “retirement benefits” to include judges’ contribution to a retirement system. Because the judicial retirement was not an actuarially funded system, and because judges did not make contributions to the system as did other state employees, the Constitution of 1974 directed the legislature to provide for a retirement system for judges. It was not until 1976 (R.S. 13:12 et seq.) that the legislature provided that judges could be members in and contribute to the state employees retirement system.

It could have hardly been contemplated by the legislature, when it provided in 1975 that local governments would not be prohibited from paying “retirement benefits” to judges, that “retirement benefits” would be construed in 1977 to include part of the judges’ cost of membership under the judges’ retirement act of 1976. Even the Court of Appeal found such payments to be pay supplements, but found they were within the “retirement benefits” exclusion from the prohibition against pay supplements.

“Retirement benefits” can only be construed to mean an advantage of some kind received by a person under the provisions of a retirement system. The contribution of a member to the state employees retirement system is a cost to the member. It is not a benefit, but the price he pays to receive benefits. When the city pays part of that cost, it is surely a benefit to the judge, but not a retirement benefit, which is an advantage only obtainable from the retirement system under the statute.

We therefore hold Ordinance 6265 M.C.S. invalid and without force because it violates the prohibition of R.S. 13:691(C).

Accordingly, the ruling of the district court in Guste v. City of New Orleans (our No. 62246), sustaining the exception of res judicata is affirmed and the case is remanded to the district court for further proceedings in accordance with this opinion. The ruling of the district court in Guste v. Judges (our No. 62247), is affirmed insofar as it maintained the exception of res judica-ta as to Judge Shea, but reversed insofar as it maintained the exception of no cause of action as to all parties. The exception of collateral estoppel is overruled. The case is remanded to the district court for further proceedings in accord with the views expressed herein.

      . In 1977 C.C.P. 2166 and 2167 were amended respectively by Acts 179 and 180 of the Regular Session. Under the provisions of the new Article 2166, a judgment of a court of appeal becomes final and definitive if neither an application for rehearing to the court of appeal nor an application to the supreme court is filed timely. § 4 of Act 179 provides: “The effective date of this Section is January 1, 1978; the provisions hereof shall apply to all appeals in which the order of appeal is granted on or after the effective date hereof.” The order of appeal in Guste v. City of New Orleans was granted prior to January 1, 1978.


author: DIXON, Justice. TATE, Justice PER CURIAM.

text:
    STATE of Louisiana v. William S. JOHNSON.
    No. 62387.
    Supreme Court of Louisiana.
    Oct. 9, 1978.
    Rehearing Denied Nov. 9, 1978.

      Michael S. Pawer, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Dennis J. Waldron, Nicholas F. Noriea, Jr., Asst. Dist. Attys., for plaintiff-respondent.
   DIXON, Justice.

Defendant was indicted for first degree murder. This matter comes to us on writs after the district court denied defendant’s motion to suppress the confession.

During the early part of the evening of January 16, 1978 a young man rang the doorbell at the Washington Avenue residence of Dr. and Mrs. Thomas Crumpler in Orleans Parish. When the door was opened the assailant shot both Dr. and Mrs. Crum-pler, seriously injuring him and killing Mrs. Crumpler. On January 17, 1978 'William S. Johnson, Mrs. Crumpler’s son, was interviewed by members of the New Orleans Police Department concerning his activities the previous evening. During the interview at Johnson’s grandmother’s house on Philip Street, where Johnson had an apartment, the officers questioned Johnson about one Kevin Seward. At first the defendant stated that he did not know anyone named Seward, but after some time he went upstairs and returned with Seward who had been staying at the Philip Street residence for several days. After an interview the officers departed.

At about 10:30 p. m. the next evening, January 18,1978, the police phoned Johnson to find out whether he and Seward would be at home that evening for further questioning. Johnson replied that both men would be at home all evening. However, when the police arrived at 11:30 p. m. they arrested Johnson and charged him with “harboring a fugitive” and with being an “accessory to murder.” Seward, who was in bed, was roused and arrested, and both men were taken to police headquarters for interrogation by the homicide unit. During the course of interrogation defendant confessed to the murder of his mother — a confession admittedly false in its principal details.

On January 26, 1978 defendant was indicted by the Orleans Parish Grand Jury on charges of first degree murder (R.S. 14:30). Mr. Johnson through counsel thereafter filed a motion to suppress the confession on the ground that the confession had not been given freely and voluntarily and that the confession was the fruit of an illegal arrest. After a denial of his motion on May 30, 1978, defendant sought and was granted a writ of certiorari from this court to review the ruling of the district court. 360 So.2d 201 (La.1978).

Assignment of Error No. 1

Defendant alleges that the district court committed reversible error by not granting his motion to suppress because the State failed to meet its burden of proving beyond a reasonable doubt the free and voluntary nature of defendant’s statements made while in custody.

R.S. 15:451 provides: “Before what purposes [purports] to be a confession can be introduced in evidence, it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises.” This statute has been interpreted to require the State to prove the voluntary nature of the confession beyond a reasonable doubt. State v. Hills, 354 So.2d 186 (La.1977), State v. Glover, 343 So.2d 118 (La.1977). The State is also required by the jurisprudence to rebut specific testimony introduced on the defendant’s behalf which indicates coercive measures or intimidation and cannot rely merely on general testimony of officers not present that they did not witness any coercion, intimidation or other undue influence. State v. Hills, supra, State v. Monroe, 305 So.2d 902 (La.1974).

Defendant argues that his confession is inadmissible because it resulted from fear that he would be beaten as he alleges Kevin Seward was, or that Seward would be beaten more severely. Fear that police will inflict additional harm on another has been recognized as a substantial factor in determining the voluntary nature of the confession. State v. Monroe, supra (on rehearing). The inquiry therefore must focus on two points: whether Kevin Seward was in fact beaten by members of the homicide unit; and whether the defendant actually believed that further beatings, whether to be inflicted upon himself or upon Kevin Seward, would result from his failure to confess.

After their arrest, Johnson and Seward were taken to the police station where Seward was interrogated from shortly after midnight until about 2:00 a. m. Seward’s questioning was conducted in a small room at one end of a large hall while Johnson was placed in a holding cell at the other end. At approximately 2:00 a. m. the roles were reversed and the defendant was interrogated by the homicide unit.

Seward remained in the custody of the homicide unit from the time of his arrest until 2:30 p. m. the following day. Upon being transferred to Central Lockup he complained of chest pains to the booking clerk, but explained that they resulted from a fall down some stairs prior to his arrest. Later Seward again complained of pain and requested to see a doctor. On this occasion Seward told the watch commander of Central Lockup that his injuries resulted from a fall from a porch.

As a result of his request Seward was taken to Charity Hospital by two officers from the homicide division. In their presence he informed the treating physician, Dr. Pike, that he had been injured in a fall down stairs, but when the officers left he whispered to the doctor that his injuries were a result of police beatings and that he was telling him this to receive correct treatment. Seward also told the doctor that he was afraid for the record to reflect the true cause of his injuries for fear of further beatings. At the hearing on the motion to suppress Dr. Pike testified that Seward was suffering from a swelling on the head and from patches of bruises which covered his back. The doctor also noted that a costo-vertebral-angle test had shown some kidney injury (although urinalysis revealed no blood) and that Seward was suffering chest wall ache. These symptoms were, according to Dr. Pike, consistent with a severe beating or with a fall down stairs, albeit a rather spectacular one. The doctor dated the injuries as having occurred within a time range of eight to twenty-four hours before his examination, between 5:30 p. m. of January 18, 1978 and 9:30 a. m., January 19, 1978.

Defense counsel argues in brief that the State’s own witnesses have inadvertently precluded Seward’s being injured prior to his arrest because the arresting officers testified that they observed no bruises on Seward’s body at the time of his arrest when he was wearing only undershorts. However, one officer testified that he might not have observed any bruises because the room was dimly lighted, a statement controverted by defendant. All the arresting and interrogating officers testified that Seward and Johnson were not beaten, tricked, intimidated or threatened in their presence.

Even if Seward was beaten by the police, the confession of the defendant is to be excluded from evidence only if he was fearful as a result of Seward’s being beaten and confessed to avoid similar treatment for himself or even harsher treatment for Seward. At the time Seward was interrogated, Johnson was confined in a holding cell at a distance of between forty and sixty feet. Although Johnson testified that he could hear Seward’s shouts and the policemen’s threats and curses, two officers who questioned Seward denied that Seward cried out and furthermore stated that they had conducted the interrogation quietly, raising their voices only occasionally. Defendant also testified that he was told by the interrogating officers that he would not be marked but that they were willing to hurt Seward and even kill him if the defendant did not confess. Moreover, the officers allegedly slapped the defendant when he responded incorrectly to their questions.

The interrogating officers both testified that defendant had communicated his fears of being beaten, but had not mentioned Seward. One of the officers testified that he told Johnson that he would not be beaten and that Johnson subsequently confessed, after discussing his rights and signing a second “rights of the arrestee” form. The other officer stated that defendant was advised of his rights after he related his fears of being beaten and that he confessed soon afterward.

The police testimony contradicted all the testimony of Seward and Johnson. If we disbelieve all the testimony of Seward and Johnson and believe the testimony of the police, Seward must have been beaten a few hours before his arrest. On the record before us, it is difficult to conclude that all the police were lying, and it is not difficult to believe Seward and Johnson were lying. Therefore we cannot say the trial judge was in error in finding that the confession was freely and voluntarily made.

The assignment is without merit.

Assignment of Error No. 2

Defendant contends that his confession is the fruit of an illegal arrest, since there was no probable cause to arrest him on January 18, 1978.

Although mere suspicion cannot justify an arrest, State v. Thomas, 349 So.2d 270 (La.1977), the officer does not need sufficient proof to convict, State v. Randolph, 337 So.2d 498 (La.1976). Article 213 of the Code of Criminal Procedure permits an officer to arrest a person without a warrant when “. . . (3) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer.” The meaning to be given this provision has frequently been expressed:

. Reasonable cause, which we have treated under this article as consonant with the probable cause concept, exists when the facts and circumstances known to the arresting officer and of which he has reasonably trustworthy information are sufficient to justify a man of ordinary caution in believing that the person to be arrested has committed a crime. . . . ” State v. Drew, 360 So.2d 500, 510 (La.1978).

See also State v. Dunbar, 356 So.2d 956 (La.1978), State v. Smith, 352 So.2d 216 (La.1977).

When asked on the motion to suppress what probable cause there was to arrest William Johnson, one of the detectives answered, “Just that the circumstances surrounding my investigation indicated to me that Mr. Johnson was involved in the death of his mother and that the motivation behind Mr. Seward’s act was Mr. Johnson.”

Johnson himself admitted that he was a “prime suspect” in the murder of his mother. Nancy Crumpler was killed about 6:30 on the evening of January 16, 1978. On that evening, around 8:45, India Bradley, William Johnson’s cousin and granddaughter of Kitty Morris, arrived at Kitty Morris’ residence at 1430 Philip Street bearing news of the tragedy. Kitty Morris was a eighty-nine old semi-invalid in whose house William Johnson had lived for several years in an upstairs apartment. India Bradley, in the presence of Kevin Seward, told William Johnson that his mother was dead. Johnson’s reaction to the news was a manic performance in which he expressed his delight. He offered some pills of some sort to Seward (who appeared to be under the influence of narcotics) telling Seward that he “deserved” some. Johnson danced around crying, “I’m glad the bitch is dead.” Seward’s long hair was dry on top but wet on the ends, as if he had been out in the rain with a hat on. This information was given to the police the next day. They learned that Seward had been employed for a short time at The Bistro, and obtained a picture of him which was reproduced and shown along with other police pictures to Dr. Crumpler and a Mrs. Jones. Dr. Crumpler selected Seward’s picture as being more nearly like that of his assailant than any of the others. Mrs. Jones made a more positive identification of Seward as the person she saw in the street near the Crumpler residence at about the time of the killing. The police also knew that the nature of the killing more nearly resembled a crime of passion, arising from revenge or hatred, than a crime connected with robbery or burglary. The assassin first short Dr. Crumpler, who opened the door and stood in the way, then chased and shot Mrs. Crum-pler twice in the back, finally placing the gun near her head and firing a shot, as if to make certain of her death.

With this information, the police visited the Morris residence on Philip Street on the evening of January 17. There they questioned William Johnson who told them that between 6:30 and 7:00 p. m. on January 16 he was watching television with his grandmother, who verified defendant’s whereabouts. He also told the police that a friend of his named Kevin had come to the house at ten minutes to seven. Johnson said he asked Kevin to go to a nearby drug store for him. Upon being questioned about Kevin, Johnson denied knowledge of his whereabouts and denied that he knew Kevin’s last name. After considerable conversation Johnson admitted to the police that Seward was upstairs. He then went upstairs and brought Seward to the police to be interviewed by the officers.

The police were impressed with the hair of both Johnson and Seward. They expected to see long hair but instead both men had obviously fresh haircuts, and the hair was relatively short.

At this visit, the police discussed with Johnson his attitude toward his mother. He readily admitted his hatred for her, a situation which had existed for many years while Johnson lived in his grandmother’s house. Police learned from Seward that he had arrived in town from Maine about the end of October and had “made his living by hustling homosexuals in the French Quarter.” Seward had no identification, having had his wallet stolen the preceding day. At the time of the murder Seward said he was somewhere in the French Quarter drinking — he didn’t know where. Johnson said he had met Seward in the French Quarter a few weeks before and that Seward was a frequent visitor. Seward was at the time staying in a room in Johnson’s apartment because he had no other place to stay, and no money.

Later in the evening of January 18 the police called Johnson. They told him they wished to speak to him again. When the police arrived about 11:35 p. m. January 18 they were admitted by Mrs. Morris’ maid. They went immediately upstairs and arrested Seward and Johnson.

Seward had been identified as the probable killer, and had been placed in the neighborhood of the murder shortly after it occurred. Seward’s own story did not account for his whereabouts at the time of the murder. Johnson lied about Seward’s whereabouts on January 17, which at least indicated Johnson’s reluctance for the police to find the male prostitute in Johnson’s apartment.

Johnson’s hatred of his mother provided a motive for her murder. The information the police had indicated that Johnson did not pull the trigger, but that Seward probably did. Nothing in the investigation developed a reason for Seward to kill Mrs. Crum-pler, except to please Johnson. Seward was impecunious and Johnson had the appearance of relative economic comfort. It is admittedly an intellectual jump to say, at this point, that Johnson arranged for Seward to kill his mother. However, from what the police could see about the unnatural filial hatred and the irrational conduct of Johnson, and from the character of the male prostitute with whom he was living, we cannot say there was no probable cause to arrest Johnson for complicity in the murder of his mother.

One of the most important elements in determining whether probable cause existed is satisfied when the police know a crime has actually been committed. When a crime has been committed and the police know it, they only have to determine whether there is reasonably trustworthy information .to justify a man of ordinary caution in believing the person to be arrested has committed the crime. In many cases the police do not know that a crime has been committed. When the arrest or search is made when the police do not know that a crime has been committed, more and better evidence is needed to prove that probable cause exists for the arrest than is the case when the police know a crime has been committed. ,

Here the police knew of the murder; they did not have actual knowledge of the criminal complicity of Johnson. The facts known to the police in this case would have justified a man of ordinary caution to believe that Johnson was guilty of criminal complicity in the murder of his mother.

It is not important that the police said they arrested Johnson for “harboring a fugitive.” There was reason for the police to believe that Johnson knew Seward had killed Mrs. Crumpler on January 16, but nevertheless kept Seward in a room in his apartment and participated with him in altering his appearance. The police had reasonable grounds to believe that Seward had committed the murder, and they also had reasonable grounds to believe that John-som, “knowing or having reasonable ground to believe that he (Seward) has committed the felony,” aided Seward, with the intent that Seward might escape punishment.

“Accessory after the fact” is defined:

“An accessory after the fact is any person who, after the commission of a felony, shall harbor, conceal, or aid the offender, knowing or having reasonable ground to believe that he has committed the felony, and with the intent that he may avoid or escape from arrest, trial, conviction, or punishment.” R.S. 14:25.

The reporter’s comment to R.S. 14:25 states:

“. . . This corresponds to the common law and usual statutory definition of accessories after the fact except in one particular. While the common law rule required actual knowledge that the person aided had committed a felony, the definition adopted makes it sufficient that the accessory after the fact knew or had ‘reasonable ground to believe’ that the one assisted had committed a felony. Proof of actual knowledge is sometimes very difficult; and the really innocent accomplice after the fact will be protected by the concluding requirement that the assistance must be rendered ‘with the intent that he may avoid or escape from arrest, trial, conviction, or punishment.’ Generally speaking, virtually any sort of aid given to a fugitive felon, to hinder his being arrested, tried or punished, will make the person assisting an accessory after the fact — as furnishing a car, food, shelter or money to help him escape or elude the lawful authorities, or using force or threats to rescue or protect him.

This is not to say that Johnson was guilty as an accessory beyond a reasonable doubt (see State v. Jackson, 344 So.2d 961 (La.1977)), but we find the police had probable cause to arrest him.

There is no merit to this assignment.

The ruling of the trial judge on the motion to suppress is affirmed, and the case is remanded to the trial court for further proceedings.

TATE, J., concurs in part and dissents in part.

DENNIS, J., concurs, finding that the officer had probable cause to arrest defendant as an accessory after the fact.

TATE, Justice

(concurring in part, dissenting part).

I concur in the majority determination that the accused Johnson’s arrest was sufficiently based on probable cause to be valid, so that therefore his confession should not be excluded as resulting from the exploitation of an illegal arrest.

I dissent, however, insofar as we hold his (false) confession was voluntary. The strong independent medical evidence that Seward was beaten, and the circumstances of Johnson’s confession (including his knowledge and hearing of the beating of Seward; as well as his confession’s falsity) indicate to me that neither confession was freely and voluntarily made.

ON DENIAL OF REHEARING

PER CURIAM.

Kevin Seward, who along with defendant William S. Johnson is accused of the murder of Johnson’s mother, is not a party to these proceedings. Nonetheless he has applied to a rehearing. He seeks, in the alternative, deletion of language which appears in our opinion on original hearing (“. . . it is not difficult to believe Seward and Johnson were lying.”) contending that Seward’s substantive rights are adversely affected by this “determination” (that he may have lied about having been beaten by the police). Notwithstanding that Seward is without a right to seek modification of a judgment in a matter to which he is not a party, we note that this “determination” concerning Seward’s veracity, if it can loosely be called that, in the Johnson case here under consideration, does not and can not adversely affect or resolve Seward’s rights. Should Seward hereafter find himself attacking a ruling on his confession’s admissibility, our determination then will be unaffected by any determination made in connection with this pre-trial review of the ruling on Johnson’s motion to suppress his confession.

With these observations Seward’s application for rehearing is denied.


author: MARCUS, Justice.

text:
    STATE of Louisiana v. Francis BABBITT.
    No. 61778.
    Supreme Court of Louisiana.
    Oct. 9, 1978.
    Rehearing Denied Nov. 9, 1978.

      Michael S. Wolf, McCollister, McCleary, Fazio, Mixon & Holliday, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Marilyn C. Castle, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Francis B. Babbitt, Jr. was charged by bill of information with possession with intent to distribute marijuana in violation of La.R.S. 40:966A. Defendant waived a trial by jury and elected to be tried by the court. Prior to trial, defendant filed motions to discover the identity of the informant and to suppress evidence seized from his residence pursuant to a search warrant. After hearings, the trial judge denied the motions. Shortly after trial on the merits had commenced, the state amended the information to charge defendant with cultivation of marijuana. At this point in time, defendant entered a plea of guilty to the amended charge, expressly conditioned (and so accepted by the trial judge) upon his right to obtain appellate review of the pre-plea rulings of the trial judge denying his motions to discover the informant’s identity and to suppress the evidence as well as refusing to permit him to ask certain questions of the affiant at the pretrial hearings. Defendant also contends that he reserved the right to obtain appellate review of the overruling of his objection to the state’s amendment of the information at the time the guilty plea was entered. State v. Crosby, 338 So.2d 584 (La.1974). The trial judge suspended imposition of sentence for one year and placed defendant on probation under the supervision of the division of probation and parole. On appeal, defendant relies on twenty assignments of error for reversal of his conviction and sentence.

The assigned errors can be grouped under four basic contentions: the trial judge erred in (1) denying his motion to suppress evidence; (2) denying his motion to discover the informant’s identity; (3) refusing to allow him to ask certain questions of the affiant at the pretrial hearings; and (4) overruling his objection to the state’s amendment of the bill of information.

Two separate pretrial hearings were conducted. Carolyn Sue Carpenter and Ann Covington testified for the defense. Defendant testified on his own behalf. Officer Michael Ray Barnett testified for the state. Ms. Carpenter testified that “Mof-fett” was the name of her ex-husband and “Kaki” was her nickname. She testified that she knew defendant but never resided or lived at his residence. She also accounted for her whereabouts on Friday, June 25, 1976. She denied that she was ever in possession of any marijuana at defendant’s residence. She also testified that she had not been at defendant’s residence for about two and a half weeks prior to June 25,1976. She admitted that she had been to his residence since that date. She also admitted that she was on probation for having been convicted of possession with intent to distribute marijuana. Ms. Covington testified that she worked with Ms. Carpenter and was a friend of hers. Her testimony corroborated that of Ms. Carpenter as to the latter’s activities on June 25,1976. Defendant denied that Ms. Carpenter had ever lived or resided with him and confirmed that she had not been at his residence for some two and a half weeks prior to June 25, 1976. He specifically denied that Ms. Carpenter had ever possessed any marijuana while at his house.

Officer Barnett, who was in charge of the narcotics section of the sheriff’s office, testified that he had procured a warrant to search defendant’s residence on Saturday, June 26,1976. He stated that the information in the affidavit supporting the issuance of the warrant was secured from a reliable confidential informant who had worked with him for a number of years but less frequently during the past several years. He stated that he placed “on or about June 25, 1976” in the affidavit as the date the informant observed Carolyn “Kaki” Moffett in possession of the marijuana at defendant’s residence, rather than the exact date, in order to protect the identity of the informant. However, he noted that the exact date was either a day or two before or after June 25, 1976. He further stated that the informant was paid for his information on a per case basis. Officer Barnett admitted that he did not corroborate the information received from the informant as to the occupants of the residence by checking the utility records or license plates of cars located in the vicinity of the residence in order to confirm who lived there. His explanation was that, since the residence was the last house on a dead-end road, he was afraid of being observed. Also, the information was received on Saturday and his contact at the utility company did not work on Saturdays. During the course of his testimony, state objections to defense questions which might have led to the identity of the informant were sustained by the trial judge.

The record reflects that a warrant was issued to search the residence of defendant on June 26,1976. The affidavit reciting the facts establishing probable cause for the issuance of the search warrant was executed by Officer Michael Ray Barnett. The affidavit contains the following representations:

. That probable cause does exist for the issuance of a search warrant authorizing the search of a residence occupied by Carolyn Moffett, also known as ‘Kaki,’ and a white male known as ‘Frances,’ . . . where a quantity of controlled, dangerous substance, to wit: marijuana is believed to be secreted or concealed, and such probable cause is based upon the following: Affiant informs the Court that on this date, being June 26, 1976, affiant was contacted by a confidential and reliable informant who has been working under the direct supervision of affiant for the past three (3) years and who has provided information which has led directly to the arrest and convictions of at least twenty (20) persons and the seizure of contraband drugs in East Baton Rouge Parish, . . . contacted affiant and advised that he, being said informant, had occasion to be in the residence of Carolyn ‘Kaki’ Moffett and a white male known only as ‘Frances’. .
Affiant further informs the court that on the above occasion, being on or about June 25, 1976, the above Carolyn Moffett was in possession of pound quantities of green vegetable material contained in brown paper bags which the above Carolyn Moffett identified to be marijuana.
Affiant further informs the Court that the above Carolyn Moffett was arrested by the East Baton Rouge Parish Sheriff’s Narcotics Division in 1970 for possession of L.S.D., codine, and marijuana, and again arrested by affiant in 1972 for possession of marijuana and was convicted for same.

First, defendant contends the trial judge erred in denying the motion to suppress the evidence. In support of this contention, he seeks to impeach the veracity of the affidavit supporting the issuance of the search warrant.

It is well established that the credibility of the affiant’s informant or the correctness of the information furnished by the informant may not be attacked on a motion to suppress. State v. Tassin, 343 So.2d 681 (La.1977) (on rehearing); State v. Giordano, 284 So.2d 880 (La.1973); State v. Melson, 284 So.2d 873 (La.1973). However, the credibility of the affiant himself may be traversed on a proper showing of “a genuine issue on the affiant’s veracity supported by convincing allegations of fact which, if proven, would establish the falsity of the affidavit.” State v. Cox, 330 So.2d 284, 292 (La.1976) (on rehearing); State v. Giordano, supra. We stated in Melson :

There are factors which justify treating the veracity of the affiant and the veracity of his informer differently. There is sometimes a need to protect the identity of informers. But see Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). Criminal activity in today’s society seems to demand speed and efficiency in police work, consistent with constitutional standards; the constitutional prohibition against the issuance of search warrants is relaxed when there is probable cause for a magistrate to act, a finding reached with much less reliable evidence than real and actual cause.

See also McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967).

In State v. Rey, 351 So.2d 489 (La.1977), we first observed that minor inaccuracies in the affidavit may not affect the validity of the search warrant. We further stated that, when faced with an affidavit containing inaccurate statements, the court will excise the inaccurate statements and then examine the residue to determine if it supports a finding of probable cause. If, however, the misrepresentations were intentionally made, a warrant based on such an affidavit must be quashed.

In the instant case, we are satisfied that the trial judge properly denied the motion to suppress based on the alleged misrepresentations in the supporting affidavit. Specifically, defendant alledged that the affidavit contained three misstatements of fact: (1) Carolyn “Kaki” Moffett resided in the house in question with defendant; (2) a confidential informant was present in the house on or about June 25, 1976; and (3) Carolyn Moffett was in possession of pound quantities of marijuana at the residence at that time.

At most, the first of these alleged misstatements, attributable to affiant, was a reasonable mistake made in good faith. Moreover, Carolyn “Kaki” Moffett’s status as a resident, occupant or visitor has no bearing on a finding of probable cause. Excising the statement, ample probable cause existed for the issuance of the warrant based upon the information supplied by the informant. Franks v. Delaware, U.S. -, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); State v. Rey, supra.

The other two alleged false statements relied upon by defendant to destroy probable cause were not those of the affi-ant, and thus did not go to the integrity of the affidavit. Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887 (1964). Defendant has the right only to traverse allegations of the affiant upon a proper showing; he may not controvert those of the confidential informant. State v. Melson, supra; McCray v. Illinois, supra.

La.Code Crim.P. art. 162 provides in pertinent part:

A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.

We have held that probable cause exists when the facts and circumstances within the affiant’s knowledge and of which he has reasonably and trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been committed. State v. Richards, 357 So.2d 1128 (La.1978), and cases cited therein.

The United States Supreme Court has fashioned a two-pronged test for determining if an affidavit based upon hearsay has established probable cause: the reliability of both the informant and his information must be demonstrated in the affidavit. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). The reliability of the informant herein is uncontested. Defendant does, however, dispute the reliability of the informant’s information. We have held that this may be established by (1) the informant’s personal observation, or (2) the recitation of the underlying facts upon which the informant based his conclusions. State v. Smith, 350 So.2d 1178 (La. 1977); State v. Paciera, 290 So.2d 681 (La. 1974).

Affidavits must be given a commonsense and realistic interpretation; and a doubtful or marginal case will be resolved in favor of upholding the validity of the warrant. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). Here, the informant notified the affiant that on or about June 25, 1976, he visited defendant’s residence, and that “on the above occasion . . Carolyn Moffett was in possession of pound quantities of green vegetable material . . . which [she] identified to be marijuana.” Interpreting this language in the commonsense fashion mandated by Ventresca, we conclude that while the informant was present in defendant’s residence, he personally observed therein the marijuana subsequently seized.

Defendant’s second major contention is that the trial court erred in denying his motion to discover the identity of the affi-ant’s informant. He argues that under Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) and the constitutionally protected rights to confrontation and cross-examination, he is entitled to this information.

The informer privilege is the privilege of withholding the identity of an informant who supplies information to law enforcement officials concerning crime. It is founded upon public policy and seeks to advance the public interest in effective law enforcement. Roviaro v. United States, supra. This court has consistently held that a confidential informant’s identity will be divulged only under exceptional circumstances. State v. Robinson, 342 So.2d 183 (La. 1977); State v. Russell, 334 So.2d 398 (La. 1976); State v. Thorson, 302 So.2d 578 (La. 1974). The general rule is that the burden is upon the defendant to demonstrate exceptional circumstances and much discretion is vested in the trial judge on the question of whether the circumstances warrant disclosure. State v. Robinson, supra; State v. Russell, supra; State v. Dotson, 260 La. 471, 256 So.2d 594 (1971), cert. denied, 409 U.S. 913, 93 S.Ct. 242, 34 L.Ed.2d 173 (1972); State v. Greenbaum, 257 La. 917, 244 So.2d 832 (1971).

Unlike Roviaro, no evidence was presented that the informant set up and participated in the crime as an aid to law enforcement officers. In State v. Dotson, supra, we determined that only when the evidence shows that the informant, in cooperation with the police, participated in the crime should the identity be disclosed to defendant. In such cases, the informant does more than furnish a tip that enables the police to make an arrest or search. While working with the police, he takes part in the illegal transaction itself. See Roviaro v. United States, supra; State v. Dotson, supra; State v. Robinson, supra.

Moreover, the Roviaro case involved the informant's privilege, not at a preliminary hearing to determine probable cause for a search, but at the trial itself where the issue was the fundamental one of innocence or guilt. According to the government’s evidence in that ease, the informant had been an active participant in the crime. Hence, the disclosure of the informant’s identity was relevant and helpful to the defense of the accused and was essential to a fair determination of the cause. Here, the record is clear that defendant requested disclosure of the informant’s identity only in connection with his attack on the affidavit supporting the search warrant. Never did defendant indicate why the informant’s testimony would help establish his innocence. Thus, disclosure of the informant’s identity was not warranted. Rugendorf v. United States, supra.

Neither is defendant’s right to confrontation and cross-examination violated by our recognition of the informant’s privilege in this case. Such a contention was summarily and unequivocally rejected by the United States Supreme Court. McCray v. Illinois, supra; Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967).

Defendant next contends that the trial judge erred in preventing him from asking affiant certain questions during the pretrial hearings. We conclude that the trial judge did not err in disallowing these questions, all of which appear to have been an attempt to ascertain the identity of the informant. Pending a conclusive determination that disclosure of the identity was warranted, allowance of such questioning would have been improper. In any event, we have concluded above that defendant was not entitled to know the identity of the informant.

Finally, defendant contends the trial judge erred in overruling his objection to the state’s amendment of the information during the course of trial. This contention is without merit.

First, it is doubtful from the record whether defendant did not first consent to the amended charge to which he pled guilty. It was only at a subsequent hearing that the record was amended to reflect his objection. Moreover, it is also doubtful from the record that defendant’s guilty plea was expressly conditioned upon his right to obtain appellate review of the overruling of his objection to the state’s amendment of the information. State v. Crosby, supra. In any event, when an indictment is amended, unless a defendant moves for a continuance on the ground that he is prejudiced thereby and requires additional time to prepare his defense, he cannot later contend that he was prejudiced by the amendment. La.Code Crim.P. art. 489; State v. Williams, 347 So.2d 184 (La.1977). In the instant case, defendant did not seek a continuance. Hence, he has no cause to complain.

DECREE

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

DIXON, J., concurs.

DENNIS, J., concurs, being of the opinion that the statement of the informer privilege is overly broad.

      . In Franks v. Delaware, - U.S. -, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the United States Supreme Court specified the circumstances under which a defendant has a constitutional right to challenge the truthfulness of factual statements made in an affidavit supporting tlie warrant. To mandate an evidentia-ry hearing on this issue, there must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. However, if the allegedly false statements are not necessary to a finding of probable cause, then no hearing is required. On the other hand, if the remaining content is insufficient, the defendant is entitled, under the fourth amendment, to a hearing. Thus, it is apparent that the Louisiana law in this area fully accommodates the constitutional safeguard set forth in Franks. It was also noted in Franks that “[t]he deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant.”


author: MARCUS, Justice. CALOGERO, Justice,

text:
    STATE of Louisiana v. Clyde Anthony “Rock” GISCLAIR.
    No. 61883.
    Supreme Court of Louisiana.
    Oct. 9, 1978.
    Rehearing Denied Nov. 9, 1978.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, L. J. Hymel, Jr., Asst. Attys. Gen., Melvin P. Barre, Dist. Atty., Norman J. Pitre, Asst. Dist. Atty., for plaintiff-appellant.
    Michael S. Fawer, Matthew H. Greenb-aum, New Orleans, for defendant-appellee.
   MARCUS, Justice.

Clyde Anthony “Rock” Gisclair, assessor for the parish of St. Charles, State of Louisiana, was charged in the same indictment with two counts of theft in violation of La. R.S. 14:67 and one count of public payroll fraud in violation of La. R.S. 14:138. Defendant filed a motion to quash the count accusing him of public payroll fraud on the ground that La. R.S. 14:138(2) was unconstitutionally vague and indefinite. After a hearing, the trial judge sustained the motion to quash. The state has appealed the ruling of the trial judge to this court.

The sole issue presented for our consideration is whether La. R.S. 14:138(2) is unconstitutionally vague or indefinite.

La. R.S. 14:138 provides in pertinent part:

Public pay roll fraud is committed when:

(2) Any public officer or public employee shall carry, cause to be carried, or permit to be carried, directly or indirectly, upon the employment list or pay roll of his office, the name of any person as employee, or shall pay any employee, with knowledge that such employee is receiving payment or compensation for services not actually rendered by said employee or for services grossly inadequate for such payment or compensation.
This article shall not apply in a situation where a bona fide public officer or public employee, who is justifiably absent from his job or position for a reasonable time, continues to receive his usual compensation or a part thereof.

(Emphasis added.) This statute has existed in this state in one form or another since 1873. In finding section (2) of the statute to be constitutionally infirm, the trial judge concluded that the phrase “grossly inadequate” was vague since

the use of the term ‘grossly inadequate’ makes the statute too vague for a reasonable man to understand . . . what is criminal action and what is not. Its subject to choice. Its subject to deliberation. Its subject to opinion.

The challenge that a statute is vague or indefinite must be considered from two perspectives, i. e., both the state and federal constitutions. Article 1, section 13 of the Louisiana Constitution provides in part that “[i]n a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him. . . ” This guarantee requires that penal statutes describe the unlawful conduct with such particularity and clarity that ordinary persons of reasonable intelligence are capable of discerning its meaning and conforming their conduct thereto.' Under the fourteenth amendment to the United States Constitution, words and phrases used in statutes must not be so vague and indefinite that any penalty prescribed for their violation would constitute a taking of liberty or property without due process of law. It is apparent that there is no readily appreciable difference between the state and federal concepts; a statute that fails to inform an accused of the “nature and cause” of an offense under the state constitution will also ordinarily fail to provide the “fair notice” of proscribed conduct required by the federal constitution. State v. Tucker, 354 So.2d 1327 (La. 1978); State v. Carpenter, 319 So.2d 355 (La. 1975); State v. Lindsey, 310 So.2d 89 (La. 1975).

Certain rules of construction must be employed by a court in testing the constitutionality of a penal statute. Every statute is presumed constitutional, and the burden of clearly establishing its unconstitutionality rests upon the party attacking it. State v. Skinner, 358 So.2d 280 (La. 1978). Moreover, the statute should be given “a genuine construction, according to the fair import of . [its] words, taken in their usual sense, in connection with the context.” La. R.S. 14:3; State v. Heck, 307 So.2d 332 (La. 1975). Detailed specification of the various ways in which the crime can be committed is not required to sustain the constitutionality of a penal statute. It suffices that the phraseology has a well-known or commonly-understood meaning. State v. Heck, supra; City of Baton Rouge v. Norman, 290 So.2d 865 (La. 1974). In Norman, we stated:

[T]he legislature may employ generic terms. Cumbersome enumeration or explicit delineation of all possible situations is not required. ‘The enumeration in a statute of every item or variation in conduct is frequently impossible.’

The statutory language of La. R.S. 14:138(2) offers a clear and definite standard of conduct, viz., “compensation for services . . . grossly inadequate for such . . compensation.” This phraseology establishes a clear and definite relationship between compensation paid and the work actually performed. The relationship is a reasonable one which can be easily understood and applied. Clearly, ordinary persons of reasonable intelligence would be capable of discerning the prohibition against the payment for services “grossly inadequate” for such compensation and conforming their conduct thereto. Moreover, we find no merit to defendant’s argument that the statute is unconstitutionally vague because it requires a subjective choice. The trial judge erred in so holding. In State v. Lindsey, supra, we quoted Mr. Justice Holmes’ observation that

the law is full of instances where a man’s fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. If his judgment is wrong, not only may he incur a fine or short imprisonment . . . ; he may incur the penalty of death.[]

For the foregoing reasons, we conclude that section (2) of La. R.S. 14:138 is not unconstitutionally vague or indefinite. Accordingly, the trial judge erred in finding the statute unconstitutionally vague.

DECREE

The ruling of the trial judge granting the motion to quash is reversed, and the case is remanded to the trial court for further proceedings consistent with the views herein expressed.

DIXON and DENNIS, JJ., dissent.

CALOGERO, J., dissents and assigns reasons.

CALOGERO, Justice,

dissenting.

I respectfully dissent. The term, “grossly inadequate” used in R.S. 14:138(2), which fails to set forth a sufficiently clear and definite standard of criminal conduct, is unconstitutionally vague and indefinite. Even the majority which holds that the language is not unconstitutionally vague and indefinite cannot define the term. If the term is insusceptible of definition, it is vague because it affords no opportunity for a prior determination of what services are grossly inadequate for the payment or compensation contemplated. It is inconceivable that a public officer or public employee should have to wait until a jury determines what is grossly inadequate service to be able to determine if he has violated the law proscribing public payroll fraud.

      . This court has appellate jurisdiction in all cases in which a law of this state has been declared unconstitutional. La.Const. art. 5, § 5(D)(1).

      . For a tracing of the history of this statute, see Bugea, Lazarus, and Pegues, The Louisiana Legislation of 1940, 3 La.L.Rev. 98, 152 (1940).

      . See also La. Const. art. 1, § 2 (1974).

      .Negligent homicide is the killing of a human being by criminal negligence. La. R.S. 14:32. The legislature has used the word “gross” in defining criminal negligence. La. R.S. 14:12.

      . Nash v. United States, 229 U.S. 373, 377, 33 S.Ct. 780, 57 L.Ed. 1232 (1913).