author: FORET, Judge.

text:
    Mary Ann PRIMEAUX, Plaintiff-Appellee, v. William Harvey HINDS, Defendant, and Richard R. Grayson, Intervenor-Appellant.
    No. 6158.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 1977.
    Koury & Ashy by D. Warren Ashy, Lafayette, for intervenor-appellant.
    John S. Beasley, Lafayette, for plaintiff-appellee.

      John P. Showers, Lafayette, for defendant.
    Before DOMENGEAUX, WATSON and FORET, JJ.
   FORET, Judge.

To the October 25, 1976, issuance of a writ of fieri facias on behalf of plaintiff Mary Ann Primeaux to satisfy judgments against defendant William Harvey Hinds, plaintiff’s former husband, and the consequent seizure of the painting “Timber Road”, from the Evangeline Art Galleries in Lafayette, Louisiana, Richard R. Grayson filed an intervention, in which he claimed that he was the owner of the painting and prayed for injunctive relief and damages for wrongful seizure. From judgment denying (1) issuance of injunctive relief, (2) damages for wrongful seizure, and (3) granting $250.00 as attorney fees for the dissolution of the temporary restraining order existing during the pendency of the proceedings, Grayson appeals.

Appellant assigns the following as errors of the trial court:

1. The trial court judgment is in error because the trial judge erroneously decided the whole case instead of deciding the issue which was before him.
2. The trial court judgment is in error because the trial judge failed to hold the intervenor proved a prima facie case and thereby failed to grant a preliminary injunction. The trial court judgment is in error because the trial judge applied the wrong burden of proof by applying the burden of preponderance of the evidence rather than applying the burden of prima facie case.
3. The trial court judgment is in error because the trial judge erroneously awarded attorney’s fees in favor of the petitioner when absolutely no evidence whatsoever was introduced by the petitioner supporting an award of attorney’s fees.

We affirm the ruling, and adopt the trial court’s well-stated reasons therefor.

“On January 23, 1973, Mary Ann Pri-meaux obtained a judgment against her former husband, William Harvey Hinds, making past due support executory in the amount of $6,070.00. On October 25, 1976, the judgment creditor caused to be issued a writ of fieri facias commanding the sheriff of the Parish of Lafayette to seize an oil painting entitled “Timber Road” allegedly owned by the defendant. The sheriff seized the painting, however, the defendant could not be served with a notice to pay because he was absent from the State of Louisiana. An attorney was appointed to represent the absentee defendant and the notice to pay was served upon the attorney. Prior to the Sale of the painting by the sheriff, Richard R. Grayson, a resident of the State of Mississippi, intervened in these proceedings alleging ownership of the painting by virtue of a sale dated August 4,1976. He seeks to enjoin the sale and asks for damage for the unlawful seizure of his property. Grayson obtained a temporary restraining order preventing the sale and this matter came on for hearing on the rule for a preliminary injunction.

“On the trial of the matter, defendant, Mary Ann Primeaux, sought to prove that the purported sale of the painting was a simulation and that William Harvey Hinds, the judgment debtor, continued to be the owner in truth and fact.

“The evidence shows that at the present time, as well as at the time the disputed transfer took place, Grayson lives about four hundred (400) yards from Hinds in Waverland, Mississippi, and is friendly with Hinds. Grayson testified that he purchased the painting from Hinds on August 4,1976, and introduced a purported written contract of sale. He said that he paid $5,000.00 cash for the painting. His testimony was vague as to where the $5,000.00 came from other than that he had $5,000.00 cash available. He stated that he was employed at a salary of approximately $17,000.00 per year. Grayson admitted that he had never received possession of the painting. He did not offer the testimony of Hinds nor did he offer any evidence other than the bill of sale to corroborate his claim of ownership.

“During the first part of September, 1976, the subject painting was delivered to Carl Trego, the proprietor of Evangeline Galleries in the City of Lafayette, Louisiana, by William H. Hinds, the artist who created the painting. Hinds requested that Trego frame the painting and show it in his studio. At this time, upon inquiry by Tre-go, Hinds stated that the sales price of the painting was $9,000.00. Trego had purchased twenty-five (25) prints of a two hundred (200) limited edition of the painting. Trego testified that the painting was not signed by the artist and that the painting would not be sold unless the artist affixed his signature. There was nothing to indicate that Hinds was not the owner of the painting until the intervention was filed by Grayson.

“The burden of proof where the seller retains possession is controlled by LSA-C.C. Art. 2480 which provides:

‘In all cases where the thing sold remains in the possession of the seller, because he has reserved to himself the usufruct, or retains possession by a precarious title, there is reason to presume that the sale is simulated, and with respect to third persons, the parties must produce proof that they are acting in good faith, and establish the reality of the sale.’

“In the recent case of Grant v. Anderson, 306 So.2d 853 (La.App., 2d Cir. 1975), writs refused, the Court discussed the proof required to sustain an allegation of simulation under Article 2480, and referred to the following language from Dare v. Myrick, 168 So.2d 845 (La.App. 2d Cir. 1964):

‘Simulations may ordinarily, because of their nature, be established only by indirect or circumstantial evidence. While the burden of proof generally rests upon those who attack transactions as simulated, yet, if they produce evidence of circumstances which create highly reasonable doubts as to the honesty and reality of the transactions, prima-facie cases of simulation are deemed to have been established, and the burden of proof is thereby shifted to the opposition to show that such transactions are genuine. * *
‘The existence of suspicious circumstances, among which are to be considered the continued possession by the vendor, the close relationship of the parties to a sale, and the failure to satisfactorily explain the purchase price, are entitled to great weight, and the existence thereof may be accepted as evidence of the simulated character of the sale. * * * ’

“It is the opinion of this Court that the evidence creates a presumption of simulation and that Grayson has not offered sufficient evidence to establish that consideration was paid for the painting. Grayson admitted never receiving possession of the painting, even though the act of sale recited that the painting had been delivered to him. His testimony, as well as the testimony of Trego, establishes that Hinds retained such possession and dominion over the painting as to enable him to give good title to an innocent third person. These circumstances, coupled with the fact that Grayson and Hinds were friends and lived in close proximity, as well as the fact that Grayson was unable to produce sufficient evidence to establish that consideration was paid for the painting, leads to the conclusion that the purported sale of the painting was a simulation and that its seizure by the sheriff under the writ of fieri facias as being the property of Hinds was proper. Grant v. Anderson, supra, Lejeune v. Cormier, 50 So.2d 482 (La.App. 1st Cir. 1951).

“Furthermore, this Court is of the opinion that the painting is liable to seizure even in the absence of proof of a simulation. The Civil Code and jurisprudence repeatedly state that in the transfer and sale of movables, delivery is necessary to affect the rights of third persons. LSA-C.C. Arts. 1923 and 2247; Bullard v. Natlin [Nattin] [18 La.App. 75], 137 So. 551 (La.App. 2d Cir. 1931); Corbin v. Southern States Packing Co., 141 So. 523 (La.App. 1st Cir. 1932); Parker v. Berry, 98 So.2d 582 (La.App. 2d Cir. 1952).

“For these reasons there will be judgment in favor of defendant, Mary Ann Pri-meaux, and against petitioner, Richard R. Grayson, denying petitioner’s claim for in-junctive relief and damages at petitioner’s cost.”

I

FINALITY OF JUDGMENT

Intervenor-appellant Grayson contends that in proceedings in which preliminary and permanent injunctive relief are sought, the granting or denial of a preliminary injunction disposes of only that issue and does not dispose of the case for a permanent injunction, etc.; that disposition of the latter can only be done at a trial on the merits. Appellant cites Pizzitola v. Pace, 161 So.2d 441 (La.App. 4 Cir. 1964) and Olsen v. City of Baton Rouge, 247 So.2d 889 (La.App. 1 Cir. 1971). These cases have held that in the absence of a stipulation of the parties to the contrary, the trial court cannot, upon denial of a preliminary injunction, also dispose of the demand for a permanent injunction and/or other demands.

LSA-C.C.P. Art. 1841 provides as follows:
“A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final. A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment.
“A judgment that determines the merits in whole or in part is a final judgment.”

In Southwest Sales and Mfg. Co. v. Delta Exp., Inc., 342 So.2d 281 (La.App. 3 Cir. 1977), writ denied 345 So.2d 48 (1977), we stated:

It is settled that a judgment granting or withholding a preliminary injunction is an interlocutory judgment. A judgment granting a preliminary injunction is rendered upon a prima facie showing that the mover is entitled to that relief and that he will suffer irreparable injury if same is not granted. The sole purpose of a preliminary injunction is to preserve the existing status pending a full trial on the merits. Palama v. Livaudais, 179 La. 201, 153 So. 691 (La.1934); Picard v. Choplin, 306 So.2d 918 (La.App. 3rd Cir. 1975); Gulf Toy House, Inc. v. Bertrand, 306 So.2d 361 (La.App. 3rd Cir. 1975); State Board of Education Thru Southern University, etc. et als. v. Anthony, 289 So.2d 279 (La.App. 1st Cir. 1973) writ denied 292 So.2d 246 (La.). It is also settled that a trial court, in the absence of a stipulation to the contrary, cannot, upon denial of a preliminary injunction, dismiss the suit prior to a full trial on the merits for a permanent injunction. Jefferson Parish v. Universal Fleeting Company, 234 So.2d 88 (La.App. 4th Cir. 1970); Olsen v. City of Baton Rouge, 247 So.2d 889 (La.App. 1st Cir. 1971), writ denied, 259 La. 755, 252 So.2d 454.
We acknowledge the force of the above legal principles however, 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. Baton Rouge Production Credit Ass’n v. Newsom, 191 So. 154 (La.App. 1st Cir. 1939); Starnes v. Hawthorn, 24 So.2d 680 (La.App. 1st Cir. 1946); State ex rel. Roane v. Himel, 176 So. 413 (La.App. 1st Cir. 1937); Calhoun v. State of Louisiana, through Department of Highways, 152 So.2d 866 (La.App. 3rd Cir. 1963); Murry v. City of Oakdale, 276 So.2d 368 (La.App. 3rd Cir. 1973).
In Calhoun, supra, we stated:
In the instant suit the judgment appealed from is a final judgment, which disposes not only of plaintiff’s demand for a preliminary injunction, but also of his right to obtain a permanent injunction, his demand for judgment ordering defendant to relocate its servitude or right-of-way, and his demand that defendant be directed to complete its contract for the construction of a highway. It is not merely an interlocutory decree ‘relating to a preliminary injunction,’ but it is a final decree disposing of the case on its merits. . . . ”

The trial court ruled upon all of the issues raised in appellant Grayson’s intervention. It denied issuance of the preliminary and permanent injunctions, the award of damages for a wrongful seizure; and made an award of $250.00 for attorney fees incurred in the dissolution of the temporary restraining order in existence at the time of the hearing on the rule for a preliminary injunction.

We find a reasonable evidentiary basis for the rulings of the trial court. In passing upon the application for a preliminary injunction, the trial court held that there was in fact no sale from Will Hinds to Grayson, of the portrait involved. Hence, there was no divestiture of title; the portrait still belongs to Will Hinds (or at least was not owned by Grayson); and consequently was subject to seizure and sale to satisfy the judgment of plaintiff, Mary Ann Primeaux. Having thus concluded, there can certainly be no damages awarded for wrongful seizure; and certainly there existed no grounds for a preliminary injunction enjoining the seizure and sale; and there was nothing further to be determined on trial on the merits. We note, in passing, that intervenor did not produce the testimony of Will Hinds to establish his ownership of the painting. Intervenor’s failure to do so certainly could be construed to mean that the testimony of Will Hinds would have been adverse to the claims of interve-nor. It would seem that when intervenor realized that the ownership of the painting had been put at issue by the plaintiff, that intervenor would have either called Will Hinds to testify, or at least the notary public who notarized the purported act of sale in the State of Mississippi.

We find no manifest error in the rulings of the trial court, and have no difficulty in affirming its judgment.

II.

ATTORNEY FEES

Intervenor-appellant Grayson alleges that the trial court erred in awarding attorney fees insofar as plaintiff Primeaux presented no evidence as to services rendered by her counsel and as to the time and cost thereof.

Attorney fees for the dissolution of a temporary restraining order or preliminary injunction are permitted by statute. LSA-C.C.P. Article 3608 provides:

“The court may allow damages for the wrongful issuance of a temporary restraining order or preliminary injunction on a motion to dissolve or on a reconven-tional demand. Attorney’s fees for the services rendered in connection with the dissolution of a restraining order or preliminary injunction may be included as an element of damages whether the restraining order or preliminary injunction is dissolved on motion or after trial on the merits.”

Even though plaintiff Primeaux’s counsel did not testify as to the services which he rendered on behalf of his client and as to the cost thereof, he did present plaintiff’s case before the trial court, and the trial court was able to estimate a value, and to make an award therefor. Town of Logansport v. Copley, 313 So.2d 901 (La. App. 2 Cir. 1975), and cases cited therein.

Costs of this appeal are to be borne by intervenor-appellant, Richard R. Grayson.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    RED BARN CHEMICALS, INC., Plaintiff-Appellant, v. R. O. LASSALLE, Jr., Defendant-Appellee.
    No. 6160.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 1977.
    LeBlanc & Boudreau by Albert L. Bou-dreau, Jr., Abbeville, for plaintiff-appellant.
    Mestayer & Simon by Ray F. Mestayer, New Iberia, for defendant-appellee.
    Before DOMENGEAUX, WATSON and FORET, JJ.
   FORET, Judge.

Red Barn Chemicals, Inc. (hereinafter referred to as Red Barn) instituted suit in the amount of $4,672.01 for the non-payment of fertilizer allegedly purchased, against R. O. Lassalle, Jr. (hereinafter called Lassalle). From judgment in favor of defendant Las-Salle, plaintiff Red Barn appeals. Appellant assigns the following as errors of the trial court:

1. Allowing the defendant to contest the correctness of plaintiff’s account in the suit on open account where the defendant failed to object to the correctness of the account for twelve (12) months prior to the filing of suit;
2. Allowing the defendant, who did not object to the correctness of an account rendered to him until after suit thereon, to challenge the correctness of the account at the trial;
3. Finding that the plaintiff did not prove its case in a suit on open account where the plaintiff proved the sales of the merchandise and delivery of the merchandise to defendant;
4. Allowing the defendant in a suit on open account to testify that payments had been made for which he was not credited, where the defendant did not specifically plead payment in the answer, but only pleaded a general denial;
5. Allowing the defendant in a suit on open account to introduce evidence tending to show fraud or mistake where fraud or mistake was not specifically pleaded in the answer;
6. Denying plaintiff interest of twelve (12%) per cent per annum under Louisiana Consumer Credit Law.

We affirm.

In 1974, Lassalle was the owner of a farm, on 162 acres of which he planted sugar cane. For the financing of his sugar cane crop, as in the past, he dealt with Opelousas Production Credit Association (hereinafter called OPCA), which operated a branch office in New Iberia, Louisiana. For the crop year of 1974, a $5,200.00 budget figure for the purchase of fertilizer was established by OPCA and Lassalle.

At the time of institution of this suit, OPCA and Lassalle had done business for at least sixteen years. Each year OPCA financed Lassalle’s various farming operations, and together they computed the monetary and quantitative amounts of fertilizer and chemicals needed. Those computations were made in light of the acreage to be planted and of the price and quantity of fertilizer and other chemicals to be used, as judged from the farming experiences of Lassalle and other farmers in the parish in the past years, as well as from consultations with those in the fertilizer and chemical businesses.

The figure of $5,200.00 was thought to be more than adequate to purchase the fertilizer for Lassalle’s 1974 sugar cane crop. An amount within a $4,000.00 to $5,000.00 range had been used in the past years. The price of fertilizer had not substantially increased since 1973. In that year, the sum of $4,630.73 had sufficed for the purchase of fertilizer.

In 1974, Lassalle purchased his fertilizer from Red Barn. On or about May 15, 1974, after all fertilizing had terminated, Lassalle contacted Sexon Labit, Red Barn’s manager in New Iberia. According to Lassalle, he requested that Labit supply him with a figure for the cost of all fertilizer purchased by him. Before he did so, Labit asked Lassalle to sign invoices for purchases purportedly made by Lassalle. Although he initially refused, Lassalle finally acquiesced therein. Thereafter, Labit announced a figure of $4,290.78. Lassalle then telephoned Carl Fortier, Manager of OPCA, furnished the sum of $4,290.78 as the total of the fertilizer bill, and requested that OPCA issue a check in that amount payable to Red Barn. A check in that amount was sent to Red Barn.

Labit’s version of that May 15, 1974, meeting with Lassalle, in almost all respects, differs. According to Labit, Las-salle requested the amount of the bill. Whether it was the total bill or the monthly bill, Labit did not know. Labit stated that Lassalle did sign invoices at the meeting. However, Labit definitively said that he never gave Lassalle an amount as the balance of a total or monthly bill. Lassalle did telephone OPCA. Red Barn did receive a $4,290.78 check from OPCA. Of that amount, Labit alleged, Lassalle received $598 in cash; an allegation which Lassalle denies. The remainder was credited, at one time or another, to the bill of Lassalle. Labit further stated that Lassalle made no fertilizer purchases subsequent to May 15, 1974.

According to Red Barn’s billing system, as attested to by Labit and Gail Maturin, a former Red Barn secretary, for each purchase, four invoices are executed. One is given to the customer, another is inserted in a customer file in the New Iberia office, and two are sent to the Red Barn Office in Tulsa, Oklahoma. Thus, at any time, by the simple view of a customer’s file, his total bill could be ascertained.

The Tulsa Office mailed bills to Red Barn customers every month. All purchases before the twenty-fifth day of the preceding month were included in the following month’s bill. The bill for purchases subsequent to the twenty-fifth day of the month were received by the customer in the second month following the purchase. Thus, on May 15,1974, if Lassalle viewed his monthly bill received in May, rather than his personal file of invoices, his only additional balance to Red Barn would have been for purchases made after April 25.

According to the records of Red Barn, on April 24, Lassalle purchased five and one-half tons of fertilizer; on April 25, Lassalle purchased twenty-five tons of fertilizer. That was inconceivable to Carl Fortier, who stated that the amount of the bill “would just be about double his [Lassalle’s] requirements”; to Homer Alleman, the former manager of Red Barn, who said that it was unreasonable to believe that Lassalle purchased so much fertilizer; and to the trial judge.

I

LASSALLE’S CONTESTING OF THE BILL

Plaintiff-appellant asserts that defendant Lassalle admitted the correctness of his account with Red Barn. As authority therefor, it cites the following rule of law: Normally, where an account is delivered to the debtor and the debtor makes no objection thereto within a reasonable time, the failure to object is considered as an admission of the correctness of the account. Where the debtor makes objection thereto, but only after the institution of suit thereon, the account is regarded as an account stated. Peterson Sales Co., Inc. v. C-Moore Glass, Inc., 296 So.2d 397 (La.App. 2 Cir. 1974), and cases cited therein.

However, the above law is not applicable to the case at bar. Plaintiff Red Barn did not produce evidence that defendant Las-salle received his monthly bills. Lassalle did admit that some monthly bills had been delivered to him, but he did not admit that he received bills every month. Lassalle did not concede the correctness of the bill allegedly owed by him. Rather, he denied the existence of an unpaid balance.

“Q. Did you at any time ever contest the amount that you owed Red Barn before this — long before this suit was filed?
A. I was questioned once about it, and I told them I didn’t think I owed them anything, that [I] had finished paying them May the 15th of 1974.” (Tr., pg. 119)

For the foregoing reasons, we think that this argument of plaintiff-appellant is without merit.

II

PROOF OF PAYMENT

All affirmative defenses must be specially pleaded in the answer. Payment is one such defense. LSA-C.C.P. Art. 1005; American Nat. Bank of Cheyenne, Wyo. v. Gamble, 324 So.2d 16 (La.App. 2 Cir. 1975); Glass v. Mott, 295 So.2d 84 (La.App. 2 Cir. 1974). In the absence of inclusion of an affirmative defense in the answer, evidence can be adduced thereon only in the absence of an objection thereto. LSA-C.C.P. Art. 1154; Webster v. Rushing, La., 316 So.2d 111 (1975); Austrum v. City of Baton Rouge, La., 282 So.2d 434 (1973).

In this case, defendant Lassalle filed an answer of general denial to the allegations contained in the petition of plaintiff Red Barn. During trial, defense counsel elicited testimony from plaintiff’s witnesses, as well as from his own, regarding credits as to the account and payment thereon. Plaintiff did not object thereto. In fact, as to one credit, plaintiff joined in a stipulation. Thus, the pleadings were enlarged so as to include the affirmative defense of payment at the time that plaintiff failed to object to the introduction of evidence pertaining thereto.

The issues involved herein are mainly factual, and there existing a reasonable evi-dentiary basis for the trial court’s resolution of these facts in favor of the defendant, we find no difficulty in affirming the trial court in its dismissal of plaintiff’s suit. Having so decided, we need not consider appellant’s specifications of error numbered three, five, and six.

Costs of this appeal are to be borne by plaintiff-appellant, Red Barn.

AFFIRMED.


author: DOMENGEAUX, Judge. WATSON, J.,

text:
    Joe WILLIAMS, Plaintiff-Appellee, v. WINSTON INDUSTRIES, INC., et al., Defendants-Appellants.
    No. 6291.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 17, 1977.
    Watson, Murchison, Crews & Arthur by William P. Crews, Jr., Natchitoches, for defendants-appellants.
    Thomas & Dunahoe by G. F. Thomas, Jr., Natchitoches, for plaintiff-appellee.
    Before DOMENGEAUX, WATSON and GUIDRY, JJ.
   MOTION TO DISMISS APPEAL

DOMENGEAUX, Judge.

The plaintiff-appellee, Joe Williams, moves to dismiss the suspensive appeal of the defendants-appellants, Winston Industries, Inc. and Travelers Insurance Company, on the grounds that the amount of the appeal bond was not fixed by the trial court as required by LSA-C.C.P. Art. 2124(3).

We deny the motion.

This is a suit for workmen’s compensation. Judgment was rendered and signed on April 11,1977, decreeing the plaintiff to be totally and permanently disabled, and granting benefits of $80.00 per week from October 13, 1977, presumably for the duration of his disability as provided for in LSA-R.S. 23:1221(2). The judgment also awarded penalties and attorney’s fees under LSA-R.S. 22:658.

On April 25, 1977, the defendants-appellants filed a motion for a suspensive, or in the alternative, devolutive appeal, on a form drafted by the defendants-appellants, and the trial court signed an order on April 26, 1977, granting a suspensive, or in the alternative, devolutive appeal, “upon their furnishing bond with good and solvent surety conditioned as the law directs.” The order did not state the amount required for a devolutive appeal bond.

On April 26, 1977, the defendants-appellants timely posted what purports to be a suspensive appeal bond in the amount of $12,000.00.

The plaintiff-appellee argues that since the judgment is for an uncertain number of weeks, and hence the ultimate sum of money awarded by the judgment could not be determined on the date the judgment was rendered, it is not a judgment for a “sum of money” within the meaning of LSA-C.C.P. Art. 2124(1), and avers that the security to be furnished should have been set by the trial court under LSA-C.C.P. Art. 2124(3). The plaintiff-appellee argues that since the defendants-appellants’ suspensive appeal bond was furnished under the wrong statutory provisions, their appeal must be dismissed under our holding in Roy v. Roy, 138 So.2d 417 (La.App.3rd Cir. 1962). We disagree.

Article 2124 provides in pertinent part as follows:

“The security to be furnished for a devol-utive appeal shall be fixed by the trial court at an amount sufficient to secure the payment of costs.
The security to be furnished for a suspen-sive appeal is determined in accordance with the following rules:
(1) When the judgment is for a sum of money, the amount of the security shall exceed by one-half the amount of the judgment, including the interest allowed by the judgment to the date the security is furnished, exclusive of costs;
(2) When the judgment distributes a fund in custodia legis, only security sufficient to secure the payment of costs is required; and
(3) In all other cases, the security shall be fixed by the trial court at an amount sufficient to assure the satisfaction of the judgment, together with damages for the delay resulting from the suspension of the execution.”

The accident injuring the plaintiff occurred on October 13, 1975, therefore, the applicable statutory provision is LSA-R.S. 23:1221(2) which provides:

“For injury producing permanent total disability of an employee to engage in any gainful occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured and whether or not an occupation for which the employee, at the time of injury, was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds per centum of wages during the period of such disability.” (Emphasis added).

This section was added by Act 1975, No. 583 ¶ 9, effective September 1, 1975. Prior to this amendment workmen’s compensation benefits for total and permanent disability could not exceed 500 weeks.

Although the amount of a judgment for total and permanent disability is not susceptible, under the new statute, of being calculated with exact certainty, it is nevertheless for “a sum of money,” and hence LSA-C.C.P. Art. 2124(1) rather than LSA-C.C.P. Art. 2124(3) is applicable.

While we recognize that the redactors of Article 2124 did not contemplate the later adoption of an open end compensation statute, this is a problem which addresses itself to a legislative rather than a judicial solution to remedy any injustice that may result.

In the present case the appellants have furnished a $12,000.00 suspensive appeal bond. Whether the bond is or is not sufficient, we are without jurisdiction to determine. Guilliot v. City of Kenner, 326 So.2d 359 (S.Ct.1976), LSA-C.C.P. Art. 2088. If the appellee believes the bond to be insufficient, his remedy is to file a rule with the trial court.

For the reasons assigned, the motion to dismiss is denied.

MOTION DENIED.

WATSON, J.,

concurs in the result, agreeing that LSA-C.C.P. Art. 2088 is applicable.


author: GUIDRY, Judge.

text:
    Douglas LEWING, Plaintiff-Appellee, v. VANCOUVER PLYWOOD COMPANY, INC., Defendant-Appellant.
    No. 6141.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 18, 1977.

      Smitherman, Smitherman, Lunn, Hussey & Chastain by Merritt B. Chastain, Shreveport, for defendant-appellant.
    Thomas & Dunahoe, by Marcia Thomas Pendleton, Natchitoches, for plaintiff-appel-lee.
    Before HOOD, CULPEPPER and GUI-DRY, JJ.
   GUIDRY, Judge.

This is a workmen’s compensation suit brought by Douglas Lewing against his employer, Vancouver Plywood Company, Inc. (hereafter referred to as Vancouver). The trial judge rendered judgment in favor of Lewing, declaring him to be totally and permanently disabled. He awarded compensation benefits in the amount of $65.00 per week beginning July 14, 1975 for 500 weeks, subject to a credit due Vancouver of $65.00 on a week for week basis for salary paid to Lewing following the date of his injury and full credit of $65.00 per week for such weekly compensation benefits as have already been paid to Lewing. The judgment also allows plaintiff travel expenses at the rate of $.15 per mile, and provides for seven per cent per annum interest on each past due installment from its due date until paid. Vancouver was cast to pay all costs, including expert witness fees. Defendant appeals from only that portion of the judgment which allows credit for unearned salary paid to plaintiff following his injury on a week for week basis instead of a dollar for dollar basis and from that portion of the judgment which allows Lewing $.15 per mile travel expenses. Lewing did not appeal the judgment.

The issues presented are whether the trial court erred in holding that Vancouver was not entitled to full credit for each dollar of unearned salary voluntarily paid to Lewing after the accident, and whether the trial court committed error in awarding Lewing travel expenses in the amount of $.15 per mile.

Lewing was injured while in the course and scope of his employment on July 14, 1975 when he was struck in the head by a 2" X 6" board. From July 14, 1975 through April 15, 1976, Vancouver paid Lewing his regular salary. After the accident, plaintiff attempted to return to work for short periods of time from December 1, 1975 through February, 1976, but subsequently abandoned such attempts. After April 15, 1976, Lewing was paid workmen’s compensation benefits at the rate of $65.00 per week until May 28, 1976, when payments were discontinued. In January, 1977, Vancouver brought the workmen’s compensation payments up to date.

Louisiana’s statutory scheme regarding voluntary payments made by an employer to an injured employee is set forth in LSA-R.S. 23:1206:

“Any voluntary payments made by the employer or his insurer either in money or otherwise, to the injured employee or his dependents, and accepted by the employee, which, by the terms of this act, were not due and payable when made, may, subject to the approval of the court, be deducted from the payments to be made as compensation; provided, that in case of disability, such deduction shall be made by shortening the period during which compensation shall be paid, and not by reducing the amount of the periodical payments.”

When an injured employee returns to work and is paid his salary, in order to determine whether the employer is entitled to a credit for wages paid to the employee, it is necessary to ascertain whether or not the employee “actually earned” the wages. If the wages are actually earned by the employee the employer is not entitled to a credit for the amounts paid. However, the employer is entitled to a credit for wages if they were unearned, as they may be said to be in lieu of compensation. Whether or not wages are earned is a factual determination to be made in each case. LeBlanc v. Mangel's of Louisiana, Inc., 306 So.2d 422 (La.App. 3rd Cir. 1975, writ refused); Basco v. State, through Department of Corrections, 335 So.2d 457 (La.App. 1st Cir. 1976, writ denied); Burlew v. Houston General Insurance Company, 346 So.2d 1301 (La.App. 3rd Cir. 1977).

The trial judge apparently found the wages paid to Lewing for the short periods of time he returned to work were unearned, as credit was allowed to Vancouver for those periods. Presumably plaintiff does not take issue with this finding for he did not appeal. In any event we agree with the apparent conclusion of the trial judge that Lewing did not fully earn those wages. Carpenter v. Employers Mutual Liability Insurance Co. of Wisconsin, 178 So.2d 486 (La.App. 1st Cir. 1965, writ refused); Bartholomew v. Ourso & Company, 234 So.2d 448 (La.App. 1st Cir. 1970). Accordingly, we determine that Vancouver is entitled to a credit for salary paid to Lewing after the date of the accident. We next consider the extent or amount of the credit to which defendant is entitled.

In his brief, counsel for Vancouver urges that credit should be allowed on a dollar-for-dollar basis rather than on a week-for-week basis as awarded by the trial court.

Our law is well settled that an employer is entitled to one week’s credit for each week that he pays the injured employee a sum equal to or greater than the amount due the employee under our workmen’s compensation laws. In order for the employer to be allowed credit for amounts paid in excess of the amount of compensation payments due, there must be an agreement between the employer and employee to that effect. Futrell v. Hartford Accident & Indemnity Company, 276 So.2d 271 (La.1973); Walters v. General Accident and Fire Assurance Corporation, Ltd., 119 So.2d 550 (La.App. 1st Cir. 1960); Cain v. St. Paul Fire and Marine Insurance Company, 201 So.2d 286 (La.App. 3rd Cir. 1967); Caston v. Combined Insurance Company of America, 308 So.2d 287 (La.App. 1st Cir. 1975). In Futrell, supra, our Supreme Court stated:

“Credit for wages paid is generally computed by deducting from the total number of weeks for which compensation is due those weeks when the employer paid the injured employee any amount which at least equaled the compensation due. Amounts paid weekly in excess of the compensation due cannot be credited as payment for future weeks. 2 Larson, Workmen’s Compensation § 57.47.” (Emphasis added)

The record in this case clearly shows that there was no agreement between Lew-ing and Vancouver that amounts paid to him weekly in excess of the compensation benefits due would later be deducted from workmen’s compensation found to be owing in the future. In Gonzales v. Coastal Wire Warehouse, Inc., 328 So.2d 923 (La.App. 4th Cir. 1976), the court stated:

“Where wages are paid as a mere gratuity, as in the instant case, the employer is entitled to a credit against the amount of compensation payments owed. Although the weekly salary payments exceeded the weekly compensation payments to which the claimant was entitled, the employer was entitled to a credit on a week-to-week, rather than a dollar-for-dollar, basis. See LSA-R.S. 23:1206; Futrell v. Hartford Accident & Indemnity Company, 276 So.2d 271 (La.1973); Daigle v. Higgins Industries, 29 So.2d 374 (La.App.Orl.1947).” (Emphasis added)

The rule of law expressed in Futrell and Gonzales, supra, has been recently cited with approval by our brethren of the Second Circuit in Thomas v. Holland, 345 So.2d 1000 (La.App. 2nd Cir. 1977). In that case, the court stated:

“However, credit for wages paid is computed by deducting from the total number of weeks for which compensation is due those weeks when the employer paid the injured employee any amount which at least equaled the compensation due. Amounts paid weekly in excess of the compensation due cannot be credited as payment for future weeks. Futrell v. Hartford Accident & Indemnity Company, 276 So.2d 271 (La.1973). Furthermore, any amounts paid which are actually earned after the injury cannot be credited against the amount due. Gonzales v. Coastal Wire Warehouse, Inc., 328 So.2d 923 (La.App. 4th Cir. 1976). Only unearned payments are credited.” (Emphasis added)

In his brief, counsel for Vancouver seeks to escape from the rule expressed above by distinguishing the several cases cited as being inapplicable to the case at bar. He contends that the Cain and Futrell cases, supra, and portions of the Walters case, supra, are inapplicable because they involve situations where workmen’s compensation benefits were paid by an insurer with the employer paying sums in addition to that paid by the insurer. He seeks to distinguish these cases from the case at bar because salary alone was paid by Vancouver to Lewing. We fail to appreciate why a different result should be reached on the basis of such distinction. We cannot perceive of any reason why the result should depend on whether the employer alone pays wages in addition to the amount of benefits due, or the employer merely adds to the compensation benefits already being paid to the injured employee. The distinction is without merit.

Finally, able counsel for Vancouver points to the case of Hulo v. City of New Iberia, 153 La. 284, 95 So. 719 (La.1923), as standing for the proposition that where an employer has out of sympathy and benevolence paid unearned wages to an injured employee, he is entitled to recoup these wages in the form of a credit when workmen’s compensation benefits are assessed. We acknowledge that in that case the employee was allowed credit on a dollar-for-dollar basis. However, we believe that the decision in Hulo, supra, has been impliedly, though not expressly, overruled by later jurisprudence, especially the Futrell case, supra.

In the absence of an agreement between Lewing and Vancouver that wages paid to him in excess of compensation benefits due would be deducted from future workmen’s compensation, we find that the trial judge was correct in his award of credit on a week-for-week basis. We now turn to the issue of the proper amount of mileage to be allowed plaintiff for his travel expenses.

In his petition, plaintiff indicated that he will incur future medical expenses and future travel expenses in order to obtain medical services needed. In connection with the latter, the parties at the time of trial stipulated as to a dispute concerning the proper mileage rate to be used in calculating future travel expense and requested the trial judge to determine the proper rate. The trial judge made no award for accrued and unpaid medical or travel expenses and the record contains no evidence concerning any amounts for these items which might be presently due. Presumably there are no unpaid amounts presently due for medical or travel expenses. The trial judge did, however, pursuant to the prayer of plaintiff’s petition and the stipulation of the parties fix the mileage rate at $.15 per mile.

We observe that it is well settled that a workmen’s compensation claimant is not entitled to an award for future medical expenses, there being no liability for such expenses until they are incurred. Deshotels v. Fidelity and Casualty Company of New York, 324 So.2d 895 (La.App. 3rd Cir. 1975, writ refused); Van Dyke v. Colfax Creosoting Company, 295 So.2d 589 (La.App. 3rd Cir. 1974, writ refused). We conclúde that it necessarily follows that this well settled rule applies with equal force to future travel expenses incurred by a claimant in obtaining necessary medical services. Since as aforesaid, there are no unpaid amounts presently due for travel expenses incurred in connection with plaintiff’s medical treatment, we believe that the trial court’s fixing of a mileage award for future travel expenses amounts to an improper advisory opinion. Guerriero v. City of Monroe, 136 So.2d 305 (La.App. 2nd Cir. 1961); Upper Audubon Association v. Audubon Park Commission, 329 So.2d 209 (La.App. 4th Cir. 1976, writ refused). For these reasons, we conclude that the trial court erred in allowing plaintiff future travel expenses at the rate of $.15 per mile.

For the above and foregoing reasons, the judgment of the trial court which allows plaintiff future travel expenses at the rate of $.15 per mile is reversed and set aside. In all other respects, the judgment appealed from is affirmed. Defendant-Appellant is cast for all costs of this appeal.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

      . It is not disputed that plaintiffs weekly salary paid during this period exceeded $65.00 per week.

      . The record shows that plaintiff remained in his supervisory position when he returned to work after the accident, but indicates that he did not fully earn the wages paid to him. Glenn F. Salter, personal manager of Vancouver, testified: “Q. When he was doing some work at Vancouver was it work at the same supervisory job that he had prior to his accident of July, 1975? A. Well, it was partially that and just minor duties that he felt that he could do.”


author: BROOM, Justice,

text:
    MISSISSIPPI STATE HIGHWAY COMMISSION v. Basil BLACKWELL et al.
    No. 49586.
    Supreme Court of Mississippi.
    Aug. 31, 1977.
    Rehearing Denied Nov. 16, 1977.
    John K. Keyes, Collins, A. F. Summer, Atty. Gen., Jackson, for appellant.
    Ingram & Matthews, Carroll H. Ingram, Hattiesburg, for appellees.
    Before SMITH, P. J., and BROOM and LEE, JJ.
   BROOM, Justice,

for the Court:

Eminent domain proceedings by Mississippi State Highway Commission (Commission) went to judgment in a Special Court of Covington County. Taken were .05 acre of land and a .01 acre drainage easement out of a 2.42 acre tract owned by Basil and Scotty Blackwell (appellees). From the $12,750 jury verdict and judgment, the Commission appeals. Chief issues relate to the trial court allowing appellees to (1) introduce evidence concerning loss of access to Highway 49, and (2) substantially raise their statement of values after jury selection was completed. We reverse and remand.

I.

DID THE APPELLEES’ INTRODUCTION OF EVIDENCE CONCERNING ALLEGED LOSS OF ACCESS TO HIGHWAY 49 CONSTITUTE REVERSIBLE ERROR? The land taken is situated on the east side of U.S. Highway 49 and on the south side of State Highway 590 where the two highways intersect near Seminary, Mississippi, forming “Seminary Junction.” Ap-pellees’ 2.42 acre tract was used as residential property when this action was filed. In 1958 the Commission (by deeds) obtained land from appellees’ predecessors in title for the purpose of four-laning Highway 49, and locating a sight flare at the intersection so that travelers would have better vision there. When the deeds were executed, there was a graveled driveway extending southwesterly from the south margin of Highway 590 (just east of the junction) across the subject property to the east margin of Highway 49. The Commission filed this action in 1974 and (using posts) barricaded the east margin of the flare which was purchased in 1958 from appellees’ predecessors. The barricade effectively cut off the appellees’ direct access into Highway 49, i. e., the graveled driveway, which they and their predecessors had previously used since prior to 1958 and until barricaded in 1974. At trial appellees successfully argued that the placement of these creosote posts cut off a long established access for which they should be compensated, and they were allowed to present such evidence to the jury. The Commission contends that: (1) Legal access to Highway 49 across the sight flare area, including that area on which the driveway is situated, ceased when the highway was four-laned in 1958; (2) appellees’ predecessors in title were duly compensated (by acceptance of the consideration for the two deeds) for that loss of access; and (3) after 1958 any vehicular access used by appellees to Highway 49 at the disputed area was illegal access at worst, or permissive access at best.

In 1958 appellees’ property was owned by two separate landowners — the south (largest) portion was owned by L. B. Shoemake, and the northernmost portion was owned by Ira Aultman. In the process of four-lan-ing Highway 49, the Commission purchased (by warranty deeds) from Shoemake and Aultman a strip of land east of Highway 49 alongside the paved portion, thereby creating the flare off of 49 at its junction with 590. Both deeds reflect a substantial, if not handsome, consideration. The Shoemake deed conveyed to the Highway Department .48 acre of the flare parcel for the sum of $6,960, which deed specified that $960 was for .48 acre of land and $6,000 was for all other damages related to the proposed highway construction. By the Ault-man deed to the Highway Department, 1.15 acres were conveyed for the sum of $18,500, but the deed did not specify the amount designated for land or for damages. Both deeds are printed Mississippi State Highway Department forms, and state:

It is further understood and agreed that the consideration herein named is in full payment and settlement of any and all claims or demands for damage accrued, accruing, or to accrue to the grantors herein, their heirs, assigns, or legal representatives, for or on account of the construction of the proposed highway, change of grade, water damage, and/or any other damage, right or claim whatsoever.

In Muse v. Mississippi State Highway Comm’n, 233 Miss. 694, 103 So.2d 839 (1958), the Highway Department acquired title (in 1948) to 6.1 acres of land owned by Sam D. Morrison and others, Mrs. Muse’s predecessors in title, for the purpose of constructing a four-lane section of U.S. Highway 51 north of Jackson. The first two-lane section of the highway was completed in 1955, and in 1956 the Commission decided to construct two additional lanes as frontage or service roads. The service road project required condemnation of .61 acre of Mrs. Muse’s property along with rights of access. One of her contentions on appeal was that her right of access was additionally limited by the building of a median between the northbound two lanes and the southbound two lanes, impeding her free access to the entire highway. We held that any loss of access by the construction of the median was an inconvenience to the general public and an incident to the proper exercise of police powers, and hence no payment of compensation was due to Mrs. Muse. Muse further held that the right-of-way deed executed by Mrs. Muse’s predecessor in title

recited that the consideration paid to the grantors in that deed was paid in settlement of any and all claims or demands for damages “accrued, accruing or to accrue to the grantors, their heirs, assigns, or legal representatives, for or on account of the construction of the proposed highway, change of grade, water damage, or any other damage, right or claim whatsoever.” That receipt and release was binding upon the successors in title to the grantors therein. The record shows that work on the two west lanes of the four-lane highway was completed sometime during the year 1955. But the Commission still had a right to construct the two additional lanes when money was made available therefor; and no further liability existed for the payment of additional .compensation to the appellant for damages resulting from the construction of the four-lane highway . . . . State Highway Commission v. McClendon, 212 Miss. 18, 53 So.2d 35. (233 Miss, at 715-716, 103 So.2d at 848).

Here the evidence clearly shows that no permit for the driveway in controversy was ever applied for by Shoemake or his successors in title (appellees). However, Shoe-make testified that the Highway Department knew of the existence of the driveway and that the Highway Department contractor, after four-laning the highway, put the access drive back onto the Shoemake property. On cross examination appellee, Scotty Blackwell, affirmatively answered a question as to whether (when he purchased his property) he knew the Commission had purchased the disputed area from his predecessor (Aultman) “as a sight flare area.”

Two aspects of the instant case are noteworthy here. First, when the sight flare area was purchased from Shoemake and Aultman in 1958 by the Commission, the area became subject to Commissier control under police powers set forth by our statutes, including Mississippi Code Annotated § 65-1-19(d), (h) and (k) (1972). American Oil Co. v. Mississippi State Highway Comm’n, 244 Miss. 821, 146 So.2d 355 (1962). Secondly, under those police powers the Commission already had promulgated its “Mississippi State Highway Department Maintenance Manual” Chapter XI § 1 C (3d ed., Jan. 1954), which provided:

(9) — Corner Sight Areas
At intersections where sight distance or clear vision areas have been obtained no driveway shall be permitted to cross this area. .

Of course, by statutory and case law, abutting landowners are entitled to compensation for loss of direct access. Here, not only did Shoemake and Aultman by their 1958 deeds convey away all their surface rights to the land conveyed, but the deeds executed by them recited that the consideration paid (not nominal in amount) was in settlement of “all" damages, claims and demands “for damage accruing, or to accrue . for or on account of the construction of the proposed highway and/or any other damage, right or claim whatsoever.” (Emphasis added). This clause, upon the facts of the record before us, under Muse, supra, precludes appellees as successors in title from asserting any damages which may have accrued from the 1958 project, including loss of access. The fact that appellees continued using the driveway to Highway 49 without a permit, which use for a time was “winked at” and not restricted by the department, implies nothing more than a permissive way, which could in no way ripen into a right of access. Permissive use of such driveway across Highway Department property would be subject to termination by the Highway Department without additional compensation under the police power. Muse, supra, held further that:

Land condemned for highway purposes without limitation as to surface use is at all times under the control of the highway authorities, which may make such use of the land as may be required; and the abutting landowner’s right of access and user are subject to the right of the state under the police power to regulate and control the traffic on the highway in the interest of safety, and to restrict in a reasonable manner entrances from abutting property. (233 Miss, at 714, 103 So.2d at 847).

Here, the land acquired from Shoemake and Aultman was by warranty deeds rather than having been “condemned” as in Muse, but the Commission gained the same right to control the land as if it had “condemned” the property. This is especially true where, as here, neither the Shoemake or Aultman deed contained any exception, limitation, or reservation as to surface use.

The deeds (which were duly recorded and became notice to everyone) from appellees’ predecessors in title to the Commission in 1958 made reference to the plans and specifications of the Proposed Highway 49. Ap-pellee Scotty Blackwell knew of the sight flare area purchased by the Commission. The likelihood that subsequently a barricade (or other means) would be used by the highway authorities to keep persons from driving vehicles from abutting property into the flare area “was foreshadowed” by plans and specifications referred to in the 1958 deeds to the Commission. Mississippi State Highway Comm’n v. Tomlinson, 223 Miss. 623, 78 So.2d 797 (1955). Recently we held in Jackson Municipal Airport Authority v. Wright, 344 So.2d 471 (Miss.1977), that a landowner must recover in “one proceeding all damages that have resulted or which are reasonably likely to result in the future by virtue of the easement being used for the purpose for which it was granted.” (344 So.2d at 473). Here it is clear and beyond any reasonable doubt that that payment by the Commission for the lands it acquired by warranty deeds from Shoemake and Aultman was for “all” surface rights the grantors and their successors had to the lands conveyed, including the right to drive vehicles across the lands. The deeds were equivalent to a “proceeding” and operated to release, as Muse, supra, held, the Commission from any and all claims for any reasonable use the Commission should later elect to make of the property. The “sight flare” here is not significantly different from the “median” (both are safety devices) in Muse, and to say that the Commission cannot exclude vehicular traffic from a “sight flare” would destroy the efficacy and safety aspects of such a valuable part of our highway systems.

The Commission makes the naked argument that the trial judge erred in excluding from evidence the Highway Department’s “Standard Operating Procedures” (SOPs) designated Exhibit 2. Apparently the SOPs were excluded because they were, as shown on “their face,” adopted some ten years after execution of the Shoemake and Ault-man deeds to the Commission. Absent any cited authority on this point, we will not rule that the court below committed reversible error in excluding the SOPs which were not shown to have been promulgated before execution of the two deeds. However, there was introduced below, without argument here, the Highway Department Maintenance Manual (Exhibit P-5) which, in § 1 C(9), supra, at page 189 thereof, prohibits driveways such as presented here to cross “sight distance or clear vision areas.” This admitted document (effective before the Aultman and Shoemake deeds) in § 1 C(9) thereof appears to contain the same prohibitory substance as the excluded SOPs.

Mississippi State Highway Comm’n v. Null, 210 So.2d 661 (Miss.1968), is relied upon by the appellees who say it overruled Muse, supra, but we point out that Null is factually not analogous to Muse, nor does it overrule Muse. On the proposition of whether an easement may be prescriptively acquired by landowners as against the sovereign, the general law rejects such a proposition. We hold that it was reversible error to allow appellees to introduce evidence concerning loss of access to Highway 49, and at retrial such evidence will be excluded. Should we rule otherwise would require that the Commission now buy again what it bought and paid for when it obtained the 1958 deeds. The taking here does not leave appellees’ property locked in completely — there will be available to them easy access to Highway 590 by means of a fifty foot ramp.

II.

PERMITTING APPELLEES TO RAISE THEIR STATEMENT OF VALUES DID NOT CONSTITUTE REVERSIBLE ERROR. Mississippi Code Annotated § 11-27-7 (1972), provides that statements of values as part of the pleadings are to be treated as such. Another of our statutes on civil procedure (§ 11-7-117) empowers courts to allow amendments. We hold that raising the statement of values in this cause, where the Commission did not request a continuance or delay, was not reversible error. Mississippi State Highway Comm’n v. Amos, 319 So.2d 231 (Miss.1975); Coleman v. Mississippi State Highway Comm'n, 289 So.2d 918 (Miss.1974).

III.

The question of excessiveness of the jury verdict need not be discussed because retrial of the case will be required. At retrial the appellees will be permitted to have benefit of new appraisals of the property not including loss of access as an element of damages. Final argument made by the Commission relates to the granting and refusal of jury instructions which contained language on the disputed issue of compensation for loss by appellees of their rights of access to Highway 49. Pertaining to this aspect of the case, we have held many times that the before and after rule “swallows and absorbs” all of the damages; that the rule is the ultimate measure of damages and instructions to the jury should not comment upon any particular element of damages. Mississippi State Highway Comm’n v. Crooks, 282 So.2d 232 (Miss.1973); Mississippi State Highway Comm’n v. Hall, 252 Miss. 863, 174 So.2d 488 (1965); White v. Mississippi Power Co., 252 Miss. 97, 171 So.2d 312 (1965). Accordingly, jury instructions at retrial will make no reference to compensation for loss of rights of access.

REVERSED AND REMANDED.

PATTERSON, C. J., INZER and SMITH, P. JJ., and ROBERTSON, SUGG, WALKER, LEE and BOWLING, JJ., concur.


author:
WALKER, Justice,
      SMITH, Presiding Justice,
      ROBERTSON, Justice,

text:
    Louis FONDREN et al. v. The STATE TAX COMMISSION of the State of Mississippi et al.
    No. 49459.
    Supreme Court of Mississippi.
    Aug. 31, 1977.
    Rehearing Denied Nov. 16, 1977.

      Earl L. Koskela, Louis Fondren, Jr., Pas-cagoula, for appellants.
    A. F. Summer, Atty. Gen., by P. L. Douglas, Asst. Atty. Gen., Jackson, for appellees.
    Before PATTERSON, C. J., and SUGG and WALKER, JJ.
   WALKER, Justice,

for the Court:

Louis Fondren, together with his children Suzanne and Michael Louis, brought this action originally in the Chancery Court of Jackson County, Mississippi, seeking to enjoin the State Tax Commission from approving each county’s recapitulation of its assessment rolls, on which the property tax is based, until such time as the Tax Commission should comply with its duty to equalize assessments among counties as provided by Mississippi Code Annotated sections 27-35-113 through -117 (1972) and section 112 of the Constitution of 1890. The pertinent part of section 112 of the Constitution provides:

Taxation shall be uniform and equal throughout the state. Property shall be taxed in proportion to its value. Property shall be assessed for taxes under general laws, and by uniform rules, and in proportion to its value.

The Legislature has imposed the duty of enforcing this section on the State Tax Commission. Mississippi Code Annotated section 27-35-113 (1972) reads in part:

It shall be the duty of the tax commission to carefully examine the recapitulations of the assessment rolls of the counties, when received, to compare the assessed valuation of the various classes of property in the respective counties, to investigate and determine if the assessed valuation of any classes of property in any one or more counties of the state is not equal and uniform with the assessed values fixed upon the same classes of property in other counties of the state, and to ascertain if any class of property in any one or more counties is assessed for less than the true value of the property.

The same section goes on to give the Commission the authority to equalize assessments among the counties. The next section, Mississippi Code Annotated section 27-35-115 (1972), instructs the Commission to report its determinations to the various boards of supervisors. The following section, Mississippi Code Annotated section 27-35-117 (1972), provides a method for the boards of supervisors and for affected individuals to contest the determination of the State Tax Commission. However, the final authority for determining assessments rests with the Commission. “The decision of the state tax commission when made shall be final and it shall be the duty of the board of supervisors to immediately revise and correct the assessment of the classes of property affected by the order, in accordance with the instructions of the commission.” Id. The section concludes, “The revised and corrected property valuations thus made shall be the fixed and legal valuations of the property for the payment of taxes, and it shall be the duty of each and every taxpayer to pay his taxes thereon accordingly.” Id. The state ad valorem tax of four mills on the dollar is based upon these county assessment rolls. Mississippi Code Annotated section 27-39-1 (Supp.1976) reads in full:

A state ad valorem tax of four (4) mills on the dollar for the year 1958 and for each year thereafter is hereby levied on all taxable property in the State of Mississippi.

Fondren’s complaint alleges that the State Tax Commission has consistently failed to carry out its duty of equalization as required by the Constitution and the Code. Fondren claims, “There is wide discrepancy rather than uniformity among tax assessors in the various local districts in determining the fair market value of real property situated within the local taxing district.” Fondren goes on to say:

Further, after the local tax assessor determines, estimates, or guesses the actual cash value of each piece of property within his local district, the second step is applied. This step is the percentage ratio that is applied to the actual cash value. Here again, variation, not uniformity and equality, is the prevailing practice so that some tax assessors use a percentage ratio of 10% of actual value, some use a percentage ratio of 30% of actual value and many local taxing districts use somewhere in between. Thus, the variation brought about by the lack of uniformity or rules and regulations in obtaining actual cash value of property is .further multiplies (sic) upon by the lack of any uniformity in the application of percentage ratio so that the property of the Complainants is in numerous instances taxed at one thousand percent (1,000%) or more than the property of the same value located in some of the other taxing districts in Mississippi.

These alleged variations in assessment procedures would cause the statewide levy of four mills on the dollar to fall more heavily in some counties than in others. Fondren contends that this is a violation of section 112 of the Constitution. He further contends that the State Tax Commission, over a period of many years, has neglected its statutory duty to enforce section 112 of the Constitution, and he seeks an injunction barring the Commission “from approving the recapitulations of the tax rolls until such times as they are in compliance with the statutory law of the State of Mississippi requiring them to effectively enforce the fair, uniform and equal- assessments of property as required by section 112 of the Mississippi Constitution of 1890.”

After a change of venue to the Chancery Court of the First Judicial District of Hinds County, the attorney general filed a general demurrer to Fondren’s bill. The court sustained the demurrer on two grounds. First, the court categorized Fondren’s action as a “taxpayer’s suit” and held that he was required to show that he had applied to the proper parties without redress and had invited other citizens to join the suit. The court also concluded that Mississippi Code Annotated section 27-35-163 (1972) provided Fondren an adequate remedy at law, thereby depriving him of his equitable remedy. We have concluded that the chancery court is in error on both of these propositions. We have further concluded that the allegations of Fondren’s bill of complaint, if proved, entitle him to relief. We therefore reverse.

I.

We must first consider the question of Fondren’s standing to bring this suit. The cases dealing with taxpayer’s suits, on which the chancery court and the Commission rely, have nothing to do with the case before us. The Commission is under the mistaken impression that any action in which a private citizen sues his government concerning a matter of general public interest is a “taxpayer’s suit.” The cases which this Court has called taxpayer’s suits constitute only one of the possible forms of relief available to a private citizen. There are several others as well.

First and foremost are the historic writs of mandamus and prohibition. These writs are of only limited value for a private citizen who seeks to litigate a matter of general public interest, because Mississippi Code Annotated section 11 — 41-1 (1972) provides that the writs may ordinarily be sought only by the attorney general or a district attorney. However, if a private citizen can show that he has “an interest separate from or in excess of that of the general public” relief may be available to him on his own application. Compare Wilson v. City of Laurel, 249 So.2d 801 (Miss.1971), with Thompson v. Mayfield, 204 So.2d 878 (Miss.1967).

In addition to the general statute, the Legislature has, from time to time, provided for other uses for the writ of mandamus. In several places, our statutes provide that' the holders of public bonds may obtain relief by mandamus. See, e. g., Miss. Code Ann. §§ 31-11-73 and 37-29-117 (1972). Other statutes have provided that certain duties of certain officials may be enforced not only by bond holders, but by “any other interested person or party.” See, e. g., Miss. Code Ann. § 51-35-201 (1972). The plaintiffs in Grenada County School Board v. Provine, 224 Miss. 574, 80 So.2d 798, 81 So.2d 694 (1955), relied on just such a statute. Mississippi Code 1942 Annotated section 6352 (1953) provided that school officials were subject to mandamus at the instance of any “person aggrieved.” In Grenada County School Board, this Court held that ordinary citizens, taxpayers, and parents were entitled to pursue this remedy provided by the Legislature, and granted them the relief they sought. It is important to note that, where the Legislature had provided this specific avenue of relief, this Court made no mention of requiring the plaintiffs to show that they had applied to the proper parties without redress. The Court did, however, note with approval that the complainants had invited other interested parties to join the suit. Id. at 581, 80 So.2d at 800. The Court did not say that their complaint would have been vulnerable to a demurrer had they made no such effort.

Such a requirement has only been imposed in the case of taxpayer’s suits. The cases relied upon by the Commission are actions in equity attempting to restrain particular governmental acts where the Legislature has provided no other legal remedy. In McKee v. Hogan, 145 Miss. 747, 110 So. 775 (1926), the taxpayer sought to enjoin the trustees of the Starkville Separate School District from purchasing a particular piece of property, relying on no particular statutory authority for his suit. This Court held that “before a private citizen can resort to injunction to litigate public questions, he should show that he has applied to the proper parties without redress, and also that he has invited other citizens to join with him in the litigation.” Id. at 766, 110 So. at 779-80. Likewise, in Gaudet v. Mayor & Bd. of Aldermen, 209 Miss. 113, 46 So.2d 79 (1950), the taxpayer sought to enjoin the enforcement of a contract entered into by the City of Natchez. As in McKee, he cited no statutory authority for his suit, and this Court upheld the dismissal of his bill, relying on McKee. In Trahan v. State Highway Comm’n, 169 Miss. 732, 151 So. 178 (1933), also relied on by the Commission, the taxpayers sought to enjoin the relocation of a highway. Among other things, they contended that no constitutional appropriation of funds had been made for the project. This Court denied them standing on that issue, repeating the requirements of McKee. Id. at 751-52, 151 So. at 182-83.

However, the requirements of McKee have never been applied in a case where the Legislature has granted specific authority for a citizen to come to the court. Fondren brings his suit under the specific authority of Mississippi Code Annotated section 11 — 13—11 (1972), which reads:

The chancery court shall have jurisdiction of suits by one or more taxpayers in any county, city, town, or village, to restrain the collection of any taxes levied or attempted to be collected without authority of law.

This is precisely what Fondren seeks to do. In enjoining the approval of the assessment rolls, the chancery court would be restraining the collection of the property tax, since it is only after the valuations have been revised and corrected that the duty to pay taxes arises. Miss. Code Ann. § 27-35-117 (1972).

This statute was construed by this Court in Stone v. Kerr, 194 Miss. 646, 10 So.2d 845 (1942). In that case, we denied the taxpayer access to the remedy of injunction because we concluded that he had an adequate remedy at law. Id. at 660, 10 So.2d at 848. We made no suggestion that any other factor should be taken into consideration in deciding whether to grant relief under this section. The Court did not cite McKee. The Court did not say that the taxpayer must have sought redress before the proper authorities or must have invited other taxpayers to join him. We decline to impose such requirements now. Where the Legislature has authorized a suit, we are not disposed to place further procedural barriers between the complainant and the vindication of his rights. We hold that Fondren, as a taxpayer, had standing to bring this suit.

II.

Following Stone, we must proceed to consider whether Fondren has an adequate remedy at law. The chancery court concluded that his proper remedy was found in Mississippi Code Annotated section 27-35-163 (1972). We conclude that this remedy is entirely inadequate.

The section cited by the chancery court provides that any person “aggrieved by an order of the state tax commission assessing property for the purpose of ad valorem taxation may . . . appeal with supersedeas as to the amount of taxes in controversy” to the appropriate circuit court. Miss. Code Ann. § 27-35-163 (1972). It is readily apparent that the purpose of such a suit is to obtain a judicial determination that a particular piece of property has been improperly assessed and to obtain a reduction in the tax. Likewise, Mississippi Code Annotated sections 27-35-93 and -119 (1972), relied upon by the Commission in its brief, provide methods by which to determine the proper assessment of a particular piece of property. It is not Fondren’s contention that either the State Tax Commission or the Board of Supervisors of Jackson County has erroneously computed the value of his property. He is not seeking a new calculation of his tax. Rather, he contends that the State may not collect any taxes at all until the Tax Commission has performed its duty of equalizing assessments throughout the State. Only after that is done can Fondren determine whether he is entitled to a reduction in taxes. Only then will “the amount of taxes in controversy” become apparent. It is clear beyond doubt that the statutory remedies suggested by the Commission were never intended as vehicles for compelling the Commission to comply with section 112 of the Constitution.

An examination of Stone, supra, gives support to this conclusion. In that case, the taxpayer contended that his business fell under a provision of the law providing for a privilege tax of one percent of the gross income of his business, while the Commission had concluded that his business was governed by another section requiring two percent. In concluding that the taxpayer had an adequate remedy at law, the Court noted that the taxpayer was only seeking “a correction of the amount of the tax so assessed.” Id. at 659, 10 So.2d at 848. Unlike the case before us, “the amount of taxes in controversy” was clear beyond dispute, and the Court held that the collection of the tax could not be enjoined for “mere irregularity or errors of computation.” Id. at 659, 10 So.2d at 848. Quoting from the early case of Coulson v. Harris, 43 Miss. 728, 746 (1871), the Court noted that a writ of injunction would be appropriate “to prevent a continuing trespass or injury, or other wrong.” Stone, supra, 194 Miss, at 657, 10 So.2d at 847.

The gravamen of Fondren’s complaint is not that the State has made a mere error in computing his taxes. He alleges “a continuing trespass or injury,” in that the State Tax Commission has failed for many years to carry out its duty of equalizing assessments, which is a prerequisite to the collection of taxes at all. Stone fully supports the conclusion that such a question is not to be litigated under the statutory remedies suggested by the Commission, but is the proper subject of a suit to enjoin the collection of taxes. We conclude that Fondren is without adequate remedy at law, and that he is entitled to seek an injunction in the chancery court.

III.

Having determined that Fondren has standing to bring this suit and that he has no adequate remedy at law, we must consider whether his allegations of fact, if proved, warrant the conclusion that the Commission’s actions result in the collection of taxes “without authority of law.” We have no hesitation in concluding that Fon-dren’s bill of complaint states a cause of action on which relief may be granted.

The mandate of section 112 of the Constitution is plain. The Commission’s duty to enforce the mandate of section 112 is equally plain. Miss. Code Ann. §§ 27-35-113 through -117 (1972). The portions of Fon-dren’s complaint quoted at the outset of this opinion clearly allege that the Commission has not performed its duty. He contends that two pieces of property, having the same market value but located in different counties, may be valued quite differently by the local assessors. Having begun with an inequality, that inequality is compounded when one county chooses to assess its property at a different percentage of its determined value than does another county. The State tax of four mills on the dollar is then collected on the basis of these disproportionate assessments. Thus, owners of parcels of land of identical value in different counties may face radically different tax liabilities. These allegations, if proved, constitute a blatant violation of section 112 of our Constitution. In essence, Fondren alleges that taxation is not uniform and equal throughout the State. He contends that property is not taxed in proportion to its value. He maintains that property is not assessed for taxes under general laws, and by uniform rules, and in proportion to its value. Proof of his allegations would establish that the Commission had failed in its statutory duty, under Mississippi Code Annotated section 27-35-113 (1972), to equalize assessments as required by section 112. If Fondren can prove the constitutional and statutory violations he alleges, he will be entitled to relief.

The opinions of this Court have always reflected our dedication to the principles of judicial restraint. Our cases on standing, discussed earlier in this opinion, reflect our conviction that the political officers of this State ought to be free to serve the public without fear of a multiplicity of unnecessary lawsuits. In concluding that Fondren must be given the opportunity to prove his allegations, we have not departed from either of these principles. Where the chief political officers of this State, our Legislature, have granted private citizens a right of action, we deem it unnecessary to provide further protection for public officers by judicially created requirements of standing. Nor have we opened the door for judicial legislation. Fondren has not asked us to impose our own subjective notions of equal protection or due process. Rather, he asks us to enforce the specific and plain words of section 112.

In declaring that relief may be appropriate, we do not overstep the bounds of the judicial function. This Court and the State Tax Commission both draw our authority from the same source. The only source of authority in this State is the will of the people, as expressed in our Constitution. Mississippi Constitution Article II, section 5 (1890). Where the State Tax Commission or any other agency of this State has violated its constitutional duty, to the detriment of any citizen of this State, the courts of this State have the duty to grant that citizen relief. That is all that is involved in this case.

We conclude that the chancery court erred in sustaining the Commission’s demurrer. The cause must be remanded for a hearing on the merits.

IV.

It is not inappropriate in a case as complex as the one before us to make certain remarks for the guidance of the chancery court on remand. We may start by noting what we have held and what we have not held in this opinion. We have held that Louis Fondren has standing to bring this suit, that he has no adequate remedy at law, and that certain allegations of fact, sufficiently discussed earlier in this opinion, would entitle him to relief if he can prove them to the satisfaction of the court. We have merely concluded that one complainant has alleged sufficient facts to entitle him to relief. This is all that is necessary to withstand the general demurrer offered by the Commission. Griffith, Mississippi Chancery Practice, section 293 (2d ed. 1950).

It has been unnecessary for us to consider, and we have not considered, other facets of Fondren’s complaint. For instance, we have not considered whether his children, who are not alleged to be property owners, have standing to bring this suit. We have not considered his references to the separate assessments which municipalities are entitled to make under Mississippi Code Annotated section 21-33-9(b) (1972). These separate assessments have nothing to do with the State tax of four mills per dollar, levied on the basis of the county assessments. We have no occasion to consider here whether municipal assessments might in some way violate section 112 of the Constitution.

Finally, we must consider the relief to which Fondren may be entitled if he can prove his allegations. In his bill of complaint, he prays for an injunction barring the Commission from approving the assessment rolls, but concedes that the Commission should be allowed reasonable time to comply with the law. He suggests that the Commission should proceed immediately to adopt uniform rules of assessment throughout the State, and he concludes his bill with a prayer for general relief. Certainly, the chancery court would have the authority to enjoin the approval of the assessment rolls, which would result in the State’s inability to collect its taxes. However, the chancery court may determine that less drastic measures will be sufficient to secure compliance with the Constitution. In the current posture of the case, we deem it unnecessary to comment further on possible remedies.

The cause is therefore remanded to the Chancery Court of the First Judicial District of Hinds County for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

PATTERSON, C. J., and SUGG, LEE and BOWLING, JJ., concur.

SMITH, and INZER, P. JJ., and ROBERTSON and BROOM, JJ., dissent.

SMITH, Presiding Justice,

dissenting:

I concur in the dissenting opinion written by Justice Robertson.

The present suit appears to be directed at producing a Shangri La where all assessments (valuations) of property will be made equal throughout the 82 counties. More than 100 years of practical experience and common sense should be consulted to determine if any such theory actually can be brought about short of revolution.

The drafting of a court decree providing for the mandatory injunction demanded in this suit for the purpose of realizing such an abstraction would, I humbly submit, present insurmountable difficulties. A mandatory injunction should never be issued in any case except with great circumspection. In this case, one must inquire what official or officials could be so coerced as to force an equality of assessments in 82 counties? The valuation of property is only a matter of opinion. Under the law, and ancient practice in Mississippi, property has been valued for taxation locally by an elected tax assessor who knows local values and whose performance is reviewed every four years by his constituents. It would be an idle gesture for the Tax Commission to adopt an order directing these officials to value all property the same throughout the state. The Commission would experience the same difficulty now confronting the Court; it has no practical means of enforcing such an order. In the last analysis, counties and taxing districts require certain income to operate and to discharge full faith and credit obligations. To “equalize” assessments . throughout the state would inescapably mean, according to the allegations of the bill, that some counties would be “raised” and others “lowered” and funds not needed in the first would be produced (granting that levies may be altered within statutory limits) but in the second group insufficient revenues to operate and to pay obligations would result. How would the Court be able to enforce a mandatory injunction directing the Tax Commission to equalize assessments? By contempt proceedings against the Tax Commission? Of course, the Commission might be forced to adopt an order directing equality of assessments, but what then? Would an army of assessors representing the Commission, (appointed by the Governor, Commission, or by whom?) then fan out through the 82 counties second guessing the elected tax assessor? And where would the not inconsiderable funds necessary to pay for all of this come from in the absence of a Legislative appropriation? Would mandamus lie against the Tax Commission? The present suit is not brought by an official authorized to pursue that course. Moreover, if it had been, the Commission might have been directed by the Court to act by placing such an order on its minutes, but this would in no way reach the ultimate objective of the present suit which is to equalize assessments of property in all of the 82 counties. A tax assessor might be forced by a court in a proper case to give an opinion upon the value of property under his jurisdiction, but the court may not control what the opinion shall be.

The appraisal of property by expert appraisers is far from an exact science. A review of the hundreds of eminent domain cases with which this Court has had to deal over the years makes it all too clear that the so-called “expert” appraisers are never in agreement and, more often than not, are light years apart in their opinions. The question really is, whose opinion should control? Locally elected tax assessors have done the job for more than a century. I consider the innumerable changes in the statutory law of Mississippi which would be necessary in order to bring about a statewide “equal” assessment throughout the 82 counties a matter for the Legislature, if such an unworkable (and unpalatable) thing should be attempted at all. Certainly, the Court is without the machinery to do the job and it is ancient law that no court will enter a decree which it is incapable of enforcing.

INZER, P. J., and ROBERTSON, J., join in this dissent.

ROBERTSON, Justice,

dissenting:

I respectfully dissent. I think that the Chancery Court of the First Judicial District of Hinds County properly sustained a general demurrer to the “Bill of Complaint for Permanent Injunctive Relief and for Bill of Discovery” filed by Louis Fondren, individually and as the father, natural guardian and next friend of his two minor children, against the State Tax Commission and the Chairman and two Commissioners of the State Tax Commission individually.

It is my opinion that there is no equity on the face of the bill, and that the complainants have a plain, adequate and complete remedy at law.

The majority opinion states that the amended bill of complaint for permanent injunctive relief is based upon the State Tax Commission’s failure to “comply with its duty to equalize assessments among counties as provided by Mississippi Code Annotated sections 27-35-113 through 117 (1972), and section 112 of the Constitution of 1890.” These sections provide an elaborate procedure set forth with great specificity by the Mississippi Legislature whereby the rights of each individual taxpayer and the State Tax Commission are fully protected, and where each individual taxpayer aggrieved may first present his objections to the Board of Supervisors of the County wherein his property lies (Section 27-35-117), and if the taxpayer is dissatisfied with the decision of the Board of Supervisors then he may appeal to the Circuit Court according to the provisions of Section 27-35-119, which is styled “Taxpayer may appeal” and provides:

“Any taxpayer who feels aggrieved at the action of the board of supervisors in equalizing his assessments shall have the right to appeal to the circuit court in the manner provided by law, within ten days after the adjournment of the meeting of the board of supervisors, at which the approval of the roll by the state tax commission is entered.”

The complainants seek to short-cut and circumvent this law,, and this procedure, which the Legislature in its wisdom has very carefully set forth in great detail, and to bring this action under the provisions of a very short statute which reads as follows:

“The chancery court shall have jurisdiction of suits by one or more taxpayers in any county, city, town, or village, to restrain the collection of any taxes levied or attempted to be collected without authority of law.” [Miss.Code Ann. sec. 11 — 13— 11 (1972).]

I call attention to the fact that the only defendants in the case at bar are the State Tax Commission and the three individual members of that Commission. It is not brought against the tax collector of Jackson County or the tax collector of Leflore County, in which counties the complainants allege that they own real property. Section 11-13-11 provides for suit “to restrain the collection of any taxes levied or attempted to be collected without authority of law.” (Emphasis added).

In Stone, Chairman of State Tax Commission, v. Kerr, 194 Miss. 646, 10 So.2d 845 (1943), reversing the judgment of the Chancery Court of Neshoba County and dismissing the bill of complaint for injunction against the Chairman of the State Tax Commission wherein the complainant alleged that the Tax Commission was illegally proceeding to enforce collection of $387 of privilege taxes, this Court said that the Chancery Court should have sustained a demurrer to the bill of complaint because the complainant had a plain, adequate and complete remedy at law but failed to follow that route. In Stone, this Court said:

“This procedure for relief was not availed of by the petitioner who took no course other than to enjoin the Chairman of the Tax Commission and the sheriff of the county who was proceeding to collect the additional tax by actual levy, under the warrant of the Tax Commissioner. The Commission was acting with full authority in the matter. It was peculiarly within its jurisdiction and the procedure followed was that prescribed by the statute.” 194 Miss, at 658-59, 10 So.2d at 847.

In Stone, this Court held that the key words in section 420, Miss.Code 1930 [Miss. Code Ann. § 11-13-11 (1972)], are “without authority of law”. This Court said:

“We have already held that Section 420 affords the only authority for equity jurisdiction in cases of this class. Purvis v. Robinson, supra. The language of the statute ‘without authority of law’ imports more than mere irregularity or errors of computation. The correction of improper charges involves matters remediable by appeal or original suit and presupposes jurisdiction. To hold otherwise would make jurisdiction dependent upon certitude of decision upon the merits. It is no anomaly that errors of fact or judgment may be committed while acting under authority of law.” 194 Miss, at 659-60, 10 So.2d at 848.

As in Stone, the Commission in the case at bar was acting with full authority in the matter [Miss.Code Ann. §§ 27-35-113 through 117 (1972)]. True it is that the complainants did not like the decision of the State Tax Commission approving the tax rolls of Jackson County and Leflore County, but instead of appealing first to the Board of Supervisors of Jackson and Leflore counties and then to the circuit court under the provisions of section 27-35-119, as they had a right to do, they have attempted to shortcut and to go directly to the chancery court under the provisions of section 11-13-11, where they pray for a mandatory injunction to enjoin the collection of state ad valorem taxes in all 82 counties of the state.

Before holding that the complainants had an adequate remedy at law, the Court, in Stone, quoted with approval from Coulson v. Harris, 43 Miss. 728 (1871);

“ ‘Courts of equity ought not, except upon the clearest grounds, to interfere with the speedy collection of public taxes. That a writ of injunction can only be issued, where the complainant, in his bill, makes a case of equity jurisdiction; and in all cases, involving simply the question of taxation; the issue is strictly one of common law, and courts of equity can take no cognizance thereof; that a party aggrieved by an illegal taxation, has ample remedy at law, and need not, in any case, have recourse to a court of equity, unless the facts bring the case within some appropriate recognized head of equity jurisdiction, such as to prevent irreparable injury, to protect a party in the enjoyment of an exclusive franchise or privilege, or to prevent a continuing trespass or injury, or other wrong, for which there would be no adequate remedy at law.’ This view was reaffirmed in McDonald v. Murphree, 45 Miss. 705,” 194 Miss, at 657, 10 So.2d at 847.

As I view section 11-13-11, it authorizes suit against the tax collector of a county or municipality and not against an agency of the state which would affect the collection of taxes in all 82 counties and all municipalities of the state.

There is yet another ground on which I think the general demurrer was rightly sustained. The bill of complaint for permanent injunctive relief and for bill of discovery sets forth conclusions of the pleaders but not facts to support an equitable cause of action. The amended bill of complaint avers:

“Generally, there is a three-step procedure that is common to all local taxing districts in the State of Mississippi. This three-step procedure alone does not constitute a violation of said Section 112 of the Mississippi Constitution, said Section 112 does not say that property should be taxed according to its ‘value’ but clearly states that property should be taxed ‘in proportion to its value.’ This procedure begins with first the local assessor in many taxing districts throughout the State arbitrarily and without any uniform guidelines deciding some figure as the fair market value of the real property then, the local assessor both arbitrarily and without guidelines adopts a certain percentage ratio of that fair market value used in assessing the particular property for the purpose of that local taxing district. Then, in the third and final step, the millage rate adopted for the local governing authority or authorities and the statewide four (4) mills is charged upon this valuation.
“14. There is a wide discrepancy rather than uniformity among tax assessors in the various local districts in determining the fair market value of real property situated within the local taxing district. Some taxing districts have obtained the services of professional organizations in arriving at the fair market value of property within the district. Among the taxing districts now in the process of completing such a professional study is the City of Moss Point, Mississippi with reference to the real property lying within the Moss Point Municipal Separate School Districts. However, other local taxing districts throughout Mississippi are using the same values for fair market values that they have used for many years in spite of the fact that the fair market value of real property in their district has undergone tremendous increases in value since it was last actually evaluated.
“15. Further, after the local tax assessor determines, estimates, or guesses the actual cash value of each piece of property within his local district, the second step is applied. This step is the percentage ratio that is applied to the actual cash value. Here again, variation, not uniformity and equality, is the prevailing practice so that some tax assessors use a percentage ratio of 10% of actual value, some use a percentage ratio of 30% of actual value and many local taxing districts use somewhere in between. Thus, the variation brought about by the lack of uniformity or rules and regulations in obtaining actual cash value of property is further multiplies (sic) upon by the lack of uniformity in the application of percentage ratio so that the property of the Complainants is in numerous instances taxed at one thousand percent (1,000%) or more than the property of the same value located in some of the other taxing districts in Mississippi.”

The complainants appear to be indicting every tax assessor in the state, and this too in very general and vague terms.

A general demurrer admits only facts well pleaded, not conclusions of the pleader. Griffith, Mississippi Chancery Practice (2d Edition 1950), section 288, pages 271-72.

There is another question posed which the majority opinion does not answer. In the case at bar, is the taxing district, the whole state of Mississippi, or is it the taxing districts of Jackson and Leflore Counties that are involved in this case?

In Xerox Corporation v. City of Jackson, 328 So.2d 330 (Miss.1976), this Court said, with reference to the language of Section 112, Mississippi Constitution of 1890:

“We have construed this language to mean that assessments must be equal and uniform in the taxing district. McArdle’s Estate v. City of Jackson, 215 Miss. 571, 61 So.2d 400, 63 So.2d 101 (1952); Lavecchia v. Mayor and Aldermen of City of Vicksburg, 197 Miss. 860, 20 So.2d 831 (1945); Redmond v. City of Jackson, 143 Miss. 114, 108 So. 444 (1926). In this case the taxing district is the City of Jackson.” 328 So.2d at 334.

In their prayer, the complainants pray for an allencompassing mandatory permanent injunction,

“[Bjarring them as a State Tax Commission and individually from approving the recapitulations of the tax rolls until such times as they are in compliance with the statutory law of the State of Mississippi requiring them to effectively enforce the fair, uniform and equal assessments of property as required by Section 112 of the Mississippi Constitution of 1890 and that the State Tax Commission should be allowed reasonable time for such compliance but shall forthwith adopt such measures as uniform and equal assessment guidelines, the use of the percentage ration (sic) that is the average of the ratios now being used over the State of Mississippi in order that the least expensive and most direct procedures under existing Mississippi law aimed toward compliance with said Section 112 of the Constitution of Mississippi and the law relative to its enforcement may begin forthwith.”

Griffith, in his Mississippi Chancery Practice, (2d Edition 1950), has this to say about the essentials of a decree:

“There must in all respects be a clear and unambiguous certainty in all the provisions of a decree so that every party thereto may know exactly what he is to do in obedience to it and that all may safely perform its terms as written; and particularly must this be true when the decree is framed to meet the exigencies of a complicated situation wherein misunderstanding might easily arise. It should be complete within itself, — containing no extraneous references, and leaving open no matter or description or designation out of which contention may arise as to the meaning. Nor should a final decree leave open any judicial question to be determined by others, whether those others be the parties or be the officers charged with the execution of the decree, and even as to matters solely affecting the execution, if their nature be such as is likely to eventuate in dispute, reservation for further directions should be made if impossible safely to do otherwise. Indeed, if the case be such that the decree cannot be made to comply with the foregoing essentials and at the same time with the requirement that final decrees shall embrace all the material issues in the case, it may sometimes become a question whether the court will make any decree at all. For instance, in a case of specific performance of a contract where the relief is largely within the sound discretion of the court, the relief may be declined altogether where the court is unable to frame a practical decree that by its terms will cover the subject matter definitely, for equity will not under the pretense of giving a remedy in the absence of a perfect one at law substitute an imperfect, cumbersome, and inexpedient equitable one." [Sec. 625, pages 676-77]. (Emphasis added).

It is apparent to me from a careful reading of the amended bill of complaint that a chancery court cannot possibly frame a decree meeting the essentials outlined by Judge Griffith. This is yet another reason why I think the chancery court was correct in sustaining the general demurrer.

INZER and SMITH, P. JJ„ and BROOM, J., join in this dissent.