author: TATE, Justice.

text:
    STATE of Louisiana, Appellee, v. Edward L. RHODES, Appellant.
    No. 59559.
    Supreme Court of Louisiana.
    Oct. 10, 1977.
    Alton T. Moran, Director, Vincent Wilkins, Jr., Appellate Counsel, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Frank J. Saia, Marilyn C. Castle, Asst. Dist. Attys., for plaintiff-appellee.
   TATE, Justice.

The defendant was convicted of attempted aggravated escape, La.R.S. 14:27, 14:110B, and sentenced to ten years’ imprisonment at hard labor. Upon his appeal, he raises two issues.

First, he contends: The state used its peremptory challenges) to excuse prospective black petit jurors, thus allegedly de priving this black defendant of a jury drawn from a fair cross-section of the population. (Assignment of Error No. 5.)

No objection was raised to the state’s exercise of its peremptory challenges during the selection of the petit jury. No attempt was made to introduce evidence to show any historical pattern of exclusion of black jurors in this district or in this division of the district. The defendant attempted to raise this issue by a motion to quash the bill of information after the petit jury was selected.

As thus posed, the assignment is without merit. Absent a showing of purposeful discrimination by a historical pattern of exclusion of an identifiable class, the courts will not inquire into the motive of the state in exercising its peremptory challenges in a particular case. Thus, the mere circumstance that the state has used its peremptory challenges to strike every qualified member of the defendant’s race does not constitute a denial of equal protection or due process.

See: Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); State v. Bennett, 341 So.2d 847 (La.1977); State v. Haynes, 339 So.2d 328 (La.1976); State v. Gray, 285 So.2d 199 (La.1973).

Second, the defendant contends: The state improperly impeached two defense witnesses by cross-examination, over objection, eliciting testimony as to convictions which were then on appeal and had not yet been affirmed. (Assignment Nos. 11 and 12.)

La.R.S. 15:495 permits the impeachment of the credibility of a witness by cross-examination as to his prior convictions of criminal offenses. The defendant contends that, since the convictions had been suspended by appeals, the state’s use of them for impeachment purposes was improper.

This issue is of first impression in this state. Nevertheless, the vastly preponderant American view is that the prior conviction may be used for impeachment purposes, even though an appeal, provided that the trier of fact may likewise be informed of the pendency of the appeal.

See: McCormick on Evidence, Section 43 at p. 87 (2d ed. 1972); Annotation, Credibility — Former Conviction — Appeal, 16 A.L. R.3d 726 (1967); Federal Rule of Evidence 609(e).

The United States Court of Appeals, Second Circuit, has summarized the reasons for this majority view. In United States v. Soles, 482 F.2d 105, 108 (1973), that court stated:

“[T]he defendant has at least some means of qualifying the effect of the use of such a conviction since he can explain that it is under appeal . . . whereas an absolute rule of exclusion would totally deprive the Government of the use of the impeaching material despite the extremely high proportion of affirmances on criminal appeals. Furthermore, courts have stressed the greater probative value of relatively recent convictions, . . .; yet these are the very ones most likely to be under appeal. When . . . the appeal presents a constitutional issue, the process can lead all the way to the Supreme Court of the United States, and an absolute rule of exclusion would render such a conviction unavailable for impeachment for several years. In addition, a rule mandating exclusion of convictions still on appeal might well encourage frivolous appeals and dilatory tactics by defendants seeking to avoid the use of prior convictions for impeachment in pending criminal actions. Similarly, prosecutors intending to use recent prior convictions for impeachment might seek to delay trial until an appeal of the earlier judgment had been decided.”

See also United States v. Franicevich, 471 F.2d 427 (CA 5, 1973).

For similar reasons, insofar as La.R.S. 15:495 permits impeachment of the credibility of a witness because of his prior convictions, we interpret this statute as permitting convictions to be so used even though they have been appealed and are not yet final. We reject, as not persuasive, the defendant’s contention that this interpretation of our impeachment statute is inconsistent with the policies represented by other provisions of our law which suspend the execution of sentences during the appeal, La.C.Cr.P. art. 913, or which permit bail pending finality of the conviction, La.Const, of 1974, Art. 1, Section 18, La.C.Cr.P. art. 314.

Accordingly, we find no merit to this contention of the defendant.

Decree

For the reasons assigned, we affirm the conviction and sentence.

AFFIRMED.


source: Caselaw Access Project

author: MARCUS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Brian Lee GARDNER.
    No. 59560.
    Supreme Court of Louisiana.
    Oct. 10, 1977.
    Harold J. Wheeler, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Brian G. Meissner, Asst. Dist. Atty., for plaintiff-appellee.
   MARCUS, Justice.

Brian Lee Gardner was charged by bill of information with two counts of willfully and unlawfully failing to register securities offered and sold within this state in violation of La.R.S. 51:706 A and with two counts of willfully and unlawfully engaging in business in this state as a broker-dealer of such securities without being registered with the commissioner of securities in violation of La.R.S. 51:710 A. After trial before a jury of twelve persons, defendant was found guilty as charged on all four counts and was sentenced on each count to serve one year at hard labor and to pay a fine of one thousand dollars, or to serve one year as to each count in default of the payment of said fine. The court expressly directed that the sentences were to be served consecutively. The court further assessed court costs in the amount of sixty dollars against defendant, in default of the payment of which he was to serve an additional thirty days in the parish prison. On appeal, defendant relies upon ten assignments of error for reversal of his convictions and sentences. In Assignment of Error No. 9, defendant urges that the trial judge erred in denying his motion for a new trial; in Assignment of Error No. 10, he asserts error in the trial judge’s denial of his motion in arrest of judgment. A number of grounds are alleged in support of his motions for a new trial and in arrest of judgment; however, finding merit in one of the contentions raised in his motion in arrest of judgment, we need not reach the merits of the remaining contentions.

Defendant contends that the trial judge erred in denying his motion in arrest of judgment on the ground that he was improperly tried before a jury of twelve persons. He argues that, because the crimes with which he was charged were punishable by a fine or imprisonment at hard labor or both, he could only be tried before a jury of six persons under La.Const. art. 1, § 17 and La.Code Crim.P. art. 782. On the other hand, the state argues that the crimes with which defendant was charged were properly tried before a jury of twelve jurors since, if imprisonment were imposed as punishment for the offenses, it would necessarily be at hard labor. Alternatively, the state argues that, even if defendant were entitled to be tried before a six-member jury, he may not complain of the alleged error since he failed to object to the composition of the jury when it was selected and furthermore defendant was not prejudiced by any irregularity in the size of the jury.

La.Const. art. 1, § 17 provides in pertinent part:

. A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict. A case in which the punishment may be confinement at hard labor or confinement without hard labor for more than six months shall be tried before a jury of six persons, five of whom must concur to render a verdict. . (Emphasis added.)

Similarly, La.Code Crim.P. art. 782 states:

. Cases in which the punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. Cases in which the punishment may be confinement at hard labor shall be tried by a jury composed of six jurors, five of whom must concur to render a verdict. (Emphasis added.)

The penalty provided for the crimes with which defendant was charged is set forth in La.R.S. 51:716D. According to the provision, any person who willfully violates any provision of the Blue Sky Law, La.R.S. 51:701 et seq., shall be guilty of a felony and upon conviction shall be punished by a fine of not more than five thousand dollars or by imprisonment in the state penitentiary for not more than three years, or by both fine and imprisonment. The penalty provision permits a fine or imposition of a prison sentence at hard labor or both. Accordingly, the penalty provision does not mandate punishment necessarily at hard labor but rather prescribes punishment which may be at hard labor. See, State v. Stewart, 292 So.2d 677 (La.1974); State v. Martin, 290 So.2d 872 (La.1974); State v. Rabbas, 278 So.2d 45 (La.1973). Hence, under La.Const. art. 1, § 17 and La.Code Crim.P. art. 782, defendant could be tried only by a jury composed of six jurors. Trial before a jury of twelve persons constituted error.

La.Code Crim.P. art. 859(4) provides that the court shall arrest the judgment when the tribunal that tried the case did not conform with the requirements of articles 779, 780 and 782 of the Code of Criminal Procedure. The jury of twelve persons which tried defendant did not conform with the requirements of article 782, a mandatory ground for arresting judgment. Defendant properly raised this error in his motion in arrest of judgment. Hence, no objection was necessary at the time of the jury selection, nor was a showing of prejudice required. The trial judge committed reversible error in denying defendant’s motion in arrest of judgment.

DECREE

For the reasons assigned, the convictions and sentences are reversed, and the case is remanded to the trial court for a new trial.

      . Assignments of Error Nos. 1, 2, 3, 4, 5, 6, 7 and 8 were neither briefed nor argued. Therefore, we consider these assignments of error to have been abandoned. State v. Blanton, 325 So.2d 586 (La. 1976); State v. Carlisle, 315 So.2d 675 (La.1975).

      . A sentence of imprisonment in the state penitentiary is an imprisonment at hard labor. State v. Blue, 315 So.2d 281 (La.1975); State v. Morgan, 238 La. 829, 116 So.2d 682 (1959).


author: CALOGERO, Justice. SUMMERS, Justice

text:
    Succession of Annie M. NORTON.
    Nos. 59626, 59693.
    Supreme Court of Louisiana.
    Oct. 10, 1977.

      Sidney E. Cook, Cook, Clark, Egan, Yan-cey & King, Shreveport, for defendant-applicant.
    John R. Pleasant, Booth, Lockard, Jack, Pleasant & LeSage, Shreveport, for plaintiff-respondent.
   CALOGERO, Justice.

In connection with this succession proceeding, relators sought to depose an attorney and member of the law firm which had over the years represented the testatrix, Annie Norton, her husband Richard W. Norton, Sr. and her son Richard W. Norton, Jr. Relators also sought to subpoena the law firm’s records which related to the Nor-tons’ financial affairs and estate planning. The trial court sustained the motion to quash the subpoena duces tecum and denied relators the right to depose the attorney. After applications for supervisory writs in the Court of Appeal were denied, we granted writs sought by relators. 345 So.2d 55 (1977).

Richard W. Norton, Sr. died in 1940. He was survived by his widow, Annie Norton, and their sole child, Richard W. Norton, Jr. In 1950 Annie Norton confected and executed the will which is at issue in these succession proceedings. Pertinent to the legal issues here involved, Mrs. Norton made no bequests of any substance in favor of her son, Richard, Jr., nor her son’s children, Richard W. Norton, III and Maxwell L. Norton (for they were born after execution of the will). She made bequests, mostly lifetime monthly annuities, to numerous persons, principally to collateral relations, referred to in these proceedings as Rosalie Norton Roberts et al. The great bulk of her substantial estate was left to the R. W. Norton Art Foundation. Mrs. Norton designated Commercial National Bank in Shreveport testamentary executor and trustee for the art foundation. She also named as attorney to handle all legal matters in connection with her estate F. Leonard Hargrove (and alternately James A. Van Hook) of the law firm Hargrove, Guyton, Ramey and Barlow. A significant provision of the will directed the testamentary executor to pay all estate, inheritance, legacy, succession or transfer taxes.

Richard W. Norton, Jr. died in 1974. His mother, Annie Norton, died in 1975.

Mr. Hargrove and his law firm had over the years represented Richard Norton, Sr., Annie. Norton, Richard Norton, Jr., the R. W. Norton Art Foundation and, at least for a brief time, Richard Norton, Jr.’s two children, Richard W. Norton, III and Maxwell Norton.

Mr. Hargrove and his wife were named in Annie Norton’s will as legatees to annuities comparable to similar annuities to the col-laterals. He and his wife renounced this bequest, however, and thereafter he and his law firm chose to represent neither the testamentary executor, the Norton grandchildren nor any party in this litigation.

After Annie Norton’s olographic will was admitted to probate, suit was instituted by her two grandchildren who asserted their rights as forced heirs to the legitime, or one-third of their grandmother’s estate.

They contend that the legitime had been denied their father, that they should receive same from their grandmother’s estate by representation of their father (La.Civ.C. art. 1493, 895) and that receipt thereof should be free and clear of estate and other taxes and expenses due by the succession of their grandmother (the latter apparently by virtue of the provisions of the will quoted in footnote two above).

A detailed descriptive list of property comprising the estate of the deceased was filed in the succession proceedings showing an estate net value of $6,787,407.17. Cost to the estate of the individual bequests to the collaterals is estimated to be approximately $500,000.

In response to the grandchildren’s petition to reduce dispositions made in the last will and testament, that pleading by which the grandchildren seek to assert their right to the legitime, the executor (and collater-als) filed an answer in which they contend that the legitime reserved to petitioners by representation of their father, Richard, Jr. had been satisfied by the donations inter vivos made to their father during his lifetime. The executor alternatively alleged that should petitioners be entitled to any additional sums in satisfaction of their legi-time- interests, that all state and federal estate, inheritance or other taxes attributable to that legitime interest should be borne and paid solely by the grandchildren.

The executor and collaterals contend that confection of the last will and testament of Annie Norton was but one step in an overall estate plan fashioned for devolution of the substantial estate amassed by Richard Norton, Sr. and Annie Norton, implemented with the assistance of F. Leonard Hargrove, the senior partner (now deceased) of Har-grove, Guyton, Ramey and Barlow and that adequate provision was made to satisfy the legitime of Richard Norton, Jr. It is further contended that provision to that effect had been made, so that the clear dispositive provisions of Annie Norton’s will could and would be effective.

Consistent with this position, desirous of proving that Richard, Jr. had enjoyed his legitime by inter vivos donations, and having no access to files and/or counsel of testatrix’ attorney (inasmuch as F. Leonard Hargrove, and his law firm, although designated attorney for the succession, had chosen not to represent the executor) the executor with the collaterals joining them, filed and had served the subpoena duces tecum directed to the Hargrove firm, through Cecil E. Ramey, Jr., and noticed the taking of Mr. Ramey’s deposition.

The subpoena duces tecum in fifteen explicit paragraphs called for production from files of the Hargrove firm of all correspondence, memoranda, notes, records, reports (including estate plans) to and/or from Richard Norton, Sr., Annie Norton, Richard Norton, Jr., members of the law firm and/or any certified public accountant firm, concerning the estates, trusts and/or wills of Richard, Sr., Annie and Richard, Jr., and all inter vivos or testamentary dispositions of Richard, Sr., Annie and/or Richard, Jr. The subpoena duces tecum also called for any personal memoranda, records, notes or correspondence relating to the physical or mental condition of Annie M. Norton subsequent to November 29, 1950, the date her will was executed. The substance of the noticed oral deposition of Mr. Ramey was evident from the nature of the subpoena duces tecum.

In response to the subpoena duces tecum and notice of deposition, the grandchildren filed a motion to suppress the subpoena and for a protective order.

The grandchildren urged in support of their pleadings that discovery under Article 1422 of the Code of Civil Procedure is only available “regarding any matter not privileged which is relevant to the subject matter involved in the pending matter;” that the data requested was irrelevant to the claim filed by the grandchildren; that Annie Norton’s physical and/or mental condition subsequent to the date of her will was wholly irrelevant; that the data would not and could not change the provisions of the will of Annie Norton nor the Louisiana law fixing rights of forced heirs; that mover’s attorneys had already been furnished copies of all donations inter vivos made by the decedent, Annie Norton, from 1935 to the date of her death; that data relative to the estate of Richard Norton, Sr. and Richard Norton, Jr. were irrelevant; that as to the succession of Richard Norton, Jr., the Commercial National Bank of Shreveport was executor and trustee of a trust established by Richard Norton, Jr. and therefore had all information regarding that estate; that all documents requested represented privileged communications between attorney and client under Louisiana Civil Code Article 2283 and were not subject to subpoena by third parties; that movers were claiming this privilege as forced heirs of Annie Norton and as children and heirs of their father, Richard Norton, Jr., and also on behalf of their deceased grandfather, Richard Norton, Sr.

After presentation of arguments, the trial judge quashed the subpoena duces tecum and overruled the notice of intent to depose Mr. Ramey. It is this ruling of the trial court which we review herein.

Although the record herein does not reveal the trial court’s reasons for the ruling, the pleadings and arguments of respondents suggest that the trial court determined that:

1) Annie Norton’s physical and/or mental condition after execution of her will in 1940 was irrelevant;

2) the Hargrove law firm’s documents and the attorney deposition relating to the estates, trusts, wills and estate planning of Richard Norton, Sr., Annie Norton and Richard Norton, Jr. (other than that relating to inter vivos donations of Annie Norton, as to which respondent contends he has already given information contained in tax returns) were irrelevant to the legal matters at issue in the litigation; and,

3) the documents and testimony sought represent privileged attorney/client communications not subject to discovery.

It is of course true that whether Richard, Jr.’s legitime had been satisfied during his mother’s lifetime is governed exclusively by whether there were inter vivos donations in adequate amount, La. Civ.C. arts. 1502-05, and that evidence beyond that would likely be inadmissible at trial. Nonetheless, under the broad scope of discovery allowed in Louisiana, relators are entitled to discover more than simply admissible evidence. They may discover matters inadmissible as evidence at trial if it appears reasonably calculated to lead to the discovery of admissible evidence. Furthermore, proof of inter vivos donations is not to be restricted to that information furnished by respondent from tax returns which were filed. In this regard Code of Civil Procedure, Article 1422 is particularly pertinent and states in part:

“Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim ór defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”

In the present case the information sought through documents and depositions relating to the estates, trusts, wills and estate planning of Richard Norton, Sr., Annie Norton, and Richard Norton, Jr. appears “to be reasonably calculated to lead to the discovery” of evidence directly related to the determinations of whether the respondents’ father had already received part or all of his legi-time during his lifetime.

One of the basic notions relative to a court’s interpretation of our rules on discovery is that these rules should be liberally construed in favor of discovery wherever possible. Any issue of relevancy is necessarily dependent upon the surrounding circumstances and legal framework within which the issue is presented. In the present case a legal principle of particular importance is La.Civ.Code art. 1672. It provides as follows:

“The testamentary executor is bound to see the testament faithfully executed.”

Here, relator contends that the testament which the executor is bound to discharge was drafted amid a complex series of intra-family financial transactions, performed with the aid of experienced counsel. It would certainly be illogical to presume that the testatrix or her counsel intended that these transactions result in a will which could not be carried out. Accordingly, we find that since the records requested concerning the estates, trusts, wills and estate planning of Richard, Sr., Annie and Richard, Jr., may be relevant to a proper determination regarding the devolution of Mrs. Norton’s estate and are certainly reasonably calculated to lead to the discovery of relevant evidence, they are discoverable under Code of Civil Procedure Article 1422 unless they represent privileged attorney/client communications.

Such a conclusion is not warranted, however, in regard to relator’s request concerning the documents and information relative to Annie Norton’s mental and physical condition after the execution of her will. It cannot be said that such information is relevant to any issue presented in this case. We are not confronted with questions concerning the validity of Mrs. Norton’s will (an issue to which such information might be relevant). Rather, we are solely concerned with arrangements made for the satisfaction of Richard Norton, Jr.’s legi-time. Therefore, such requests relative to the testatrix’ mental and physical condition following the execution of her will was properly denied by the trial court.

Under the above quoted provisions of Civil Code Article 1672 an executor of a will is charged with seeing that the testament is faithfully executed. In the fulfillment of this obligation the executor is usually assisted and counseled by an attorney for the estate who has previously counseled the testatrix and is thereby in a position to discover the types of facts which are at issue here. The present executor does not have such an opportunity because the designated attorney has opted not to represent the estate. The executor, faced with attacks upon the provisions of the will which would conceivably annul these provisions, has sought documents and information relevant to a proper determination of the testatrix’ intent, and relevant to ascertaining whether Richard, Jr.’s legitime has been satisfied. The executor has been denied same upon assertion of an attorney/client privilege.

An outset question concerning the attorney/client privilege is whether respondents, the grandchildren, have standing to invoke the privilege on behalf of their grandparents and their father, who are deceased. Perhaps they have no standing to complain. On the other hand we are loathe to disregard the decedents, and any legitimate interest which would be served to their memories, and the viability of the attorney/client privilege by opting not to enforce it because of any such lack of standing. Consequently we choose to decide the issue before us on a basis other than the standing of the respondents to invoke the privilege.

Louisiana Civil Code Article 2283 prohibits an attorney’s giving evidence of anything confided to him by his client without the consent of that client. While it is generally true that the death of the client does not terminate the privilege, Morris v. Cain’s Ex’rs, 39 La.Ann. 712, 1 So. 797 (1887), an exception to this rule has been adopted by most courts when confronted with issues relevant to a deceased client’s testament. This exception has been stated thusly:

“In controversies between heirs at law, devisees, legatees, or next of kin of the client, such communications (attorney/client) should not be held privileged, because in such case the proceedings are not adverse to the estate. The interests of the deceased client demand that the truth be determined.”

9 Wigmore, Evidence § 239 (McNaughton Rev. 1969).

Some jurisdictions make the exception absolute and allow discovery of testamentary communications in all cases. Others have only adopted a qualified version. In these latter jurisdictions discovery is not permitted when the party seeking discovery has adopted a position adverse to the testamentary dispositions of the decedent. Discovery in such situations is neither warranted nor desirable. Glover v. Patten, 165 U.S. 394, 17 S.Ct. 411, 41 L.Ed. 760 (1897); Doyle v. Reeves, 112 Conn. 521, 152 A. 882 (1931). See also, 81 Am.Jur.2d Witnesses § 201 (1976). Such a case in our own jurisprudence is Hart v. Thompson’s Ex’r, 15 La. 88 (1840), wherein this Court denied a party’s discovery efforts as that party sought such information for the purpose of defeating the testator’s will and its provisions.

In the present $ase we are not confronted with an attack upon the testator’s will or its provisions. Rather, relators seek the requested information in an effort to carry out and uphold the decedent’s testamentary dispositions. Accordingly, we find it unnecessary to reassess this Court’s decision in Hart and determine whether the general exception allowing discovery of testamentary communications should be held inapplicable where the objective of discovery is to attack the testamentary disposition. We conclude that the attorney/client privilege does not bar discovery where, as here, the object is to give effect to the testatrix’ will and its provisions.

For the above reasons we affirm the trial court’s decision denying the requested discovery of information relative to Annie Norton’s mental and physical condition subsequent to the execution of her will, but reverse the trial court’s decision quashing the subpoenas and prohibiting the discovery of information through documents and deposition relative to the estates, trusts, wills and estate planning of Richard Norton, Sr., Annie Norton and Richard Norton, Jr.

SUMMERS, J., concurs in part and dissents in part with reasons.

SUMMERS, Justice

(Concurring in part and dissenting in part).

I concur with the ruling denying the requested discovery of information relative to Annie Norton’s mental and physical condition subsequent to the execution of her will, but dissent from the decision requiring discovery otherwise.

      . She left her son a family cemetery plot and certain personal effects.

      . The provision directed the executor to pay “as part of the expenses of the administration of [the] estate all estate, inheritance, legacy, succession or transfer taxes . . . with respect to all property taxable under such laws by reason of my death; whether or not such property passes under this my will and whether or not such taxes be payable by my estate or by any recipient of such property, and my executor shall not deduct from any gift devise or bequest or claim from any such recipient, any such taxes or any part thereof.”

      . Relators argue that Annie Norton undoubtedly was aware of the forced heirship rights of her son and would not have excluded him from bequests in her will but for the fact that she had already afforded him his legitime by inter vivos donation(s). Furthermore, relators point out and support by hypothetical computation that if the grandchildren should prevail in this quest for a one-third legitime interest and payment of all federal estate and state inheritance taxes by the succession, there will remain no property in the estate to devolve upon the only legatees named in the will, namely, the R. W. Norton Art Foundation and the collaterals. Their not implausible contention is that Annie Norton cannot be presumed to have either overlooked or intended a consequence which would negate her testamentary expressions.

      . With respect to the law firm which is in possession of the requested documents we note that they have not made an appearance or taken a position in this litigation other than neutrality, nor have they contended that the requested production would be unduly burdensome.

      . See e. g., Seeba v. Bowden, 86 So.2d 432 (Fla.1956); Adams v. Flora, 445 S.W.2d 420 (Ky.1969).


author: DIXON, Justice.

text:
    Mrs. Vera Mae ROBINSON et al. v. BEAUREGARD PARISH POLICE JURY.
    No. 59631.
    Supreme Court of Louisiana.
    Oct. 10, 1977.

      E. M. Nichols, Lake Charles, for plaintiff-applicant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., William C. Pe-gues, III, Dist. Atty., for defendant-respondent.
   DIXON, Justice.

This action was instituted by Mrs. Vera Mae Robinson, individually and as natural tutrix of her minor children, against Beauregard Parish Police Jury for the wrongful death of the husband and father, who was killed when a bridge collapsed. The trial court rendered judgment in favor of the defendant. Plaintiff appealed to the Third Circuit Court of Appeal which affirmed the judgment. Robinson v. Beauregard Parish Police Jury, 342 So.2d 696 (La.App. 3d Cir. 1977). Plaintiff’s application for rehearing was refused and this court granted writs to review the judgment of the Court of Appeal. 345 So.2d 53 (La.1977).

The question before this court is whether or not the bridge upon which the accident which resulted in plaintiff’s husband’s death occurred is a public road or bridge.

The facts, as expressed by the Court of Appeal, 342 So.2d at 697-98, are as follows:

“Plaintiff’s husband, Thomas Robinson, lost his life on December 20,1971, when a large logging vehicle being operated by him overturned as it was being driven across a wooden bridge in a wooded area of Beauregard Parish. The vehicle fell upside down into the river or stream which was spanned by the bridge, and Robinson was drowned. There are no living eye witnesses to the accident.
“The decedent was working as a tractor operator for Galloway and Sons, logging contractors, at that time. The vehicle which he was operating is known as a ‘Pack-a-back.’ It was a relatively large and heavy machine, it being a type of vehicle which was used in the logging industry to pick up logs and haul them to designated points where they are loaded onto trucks. The machine was about nine feet wide and eleven feet high, and it was equipped with large rubber tires. “The decedent’s employer, Galloway, was engaged in cutting and hauling timber from a wooded, swampy, relatively uninhabited area, located west of a small river or stream which ran generally north and south. There were no roads of any kind on the west side of the river. There, however, was a wooden bridge which spanned the above river at a point near the place where Galloway was conducting his logging operations. The accident which resulted in Robinson’s death occurred on that bridge.
“A blacktopped highway, running north and south, was located a little less than one mile east of the above bridge. An unpaved road, which was graded but otherwise was unimproved, ran from the blacktopped highway west to a point where a camp was located on a hill, about 100 to 150 yards east of the bridge. This unpaved road terminated at that camp. There was no road from the camp, or from the point where the above unpaved road terminated, to the bridge. In order for a vehicle to get from the camp to the bridge, it was necessary for it to travel downhill and around a curve, along an ungraded or unimproved trail. The evidence shows that no work had been done on the trail leading from the camp to the bridge. It, in fact, would have been impossible for a grader to do road work between the end of the above described unpaved road and the bridge.
“The bridge where the accident occurred, therefore, did not connect with any public road at all. There were no roads west of the bridge, and there was a space or distance of about 100 to 150 yards between the east end of the bridge and the nearest thoroughfare which might be considered to be a public road.
“The bridge was constructed of wood some time prior to 1960, and since that time it has been used almost exclusively by cattlemen, by hunters and by persons engaged in the logging industry. It is about 12 or 14 feet wide. When the bridge was built originally, the State Highway Department installed the pilings, stringers and caps, and the Beauregard Parish Police Jury placed the decking on the bridge. Since that time, the bridge has been repaired from time to time by cattlemen, hunters and loggers, and the Police Jury also has furnished some materials and labor in connection with the repair of that structure.”

The trial judge held that the bridge was not part of a public road and therefore the police jury had no duty to keep the bridge properly maintained. Furthermore, he held that plaintiff had not proved negligence or liability on the part of defendant because (1) inspection of the broken parts of the bridge revealed that the timbers were solid, not rotten, (2) the police jury had no knowledge of any defect, and (3) the bridge had been inspected over a month before the accident by the police juror who had responsibility for roads and bridges in his ward, and appeared to be in good shape.

The Court of Appeal agreed with the trial judge that the bridge was not a public road or bridge and thus the defendant was not under a legal duty to maintain or repair it. For the reasons set forth below the judgment of the Court of Appeal is reversed and the case is remanded to the Court of Appeal to consider the issue of negligence.

R.S. 48:491, the statute relied upon by plaintiff to show that the bridge was a public road, provides, in pertinent part:

“All roads or streets in this state that are opened, laid out or appointed . by virtue of an order of any parish governing authority in any parish, . or which have been or are hereafter kept up, maintained or worked for a period of three years by authority of any parish governing authority in its parish . shall be public roads or streets as the case may be. . ”

The Court of Appeal recognized that through maintenance or work by a parish police jury for a period of three years, a road may become public by implied or tacit dedication of a servitude of passage. Police Jury, Parish of Catahoula v. Briggs, 291 So.2d 472 (La.App. 3d Cir. 1974); Town of Sorrento v. Templet, 255 So.2d 246 (La.App. 1st Cir. 1971); Winn Parish Police Jury v. Austin, 216 So.2d 166 (La.App. 2d Cir. 1968). However, an occasional “brushing up” or “token maintenance” of a private road is insufficient to establish an implied or tacit dedication for public use. Chargois v. St. Julien, 280 So.2d 847 (La.App. 3d Cir. 1973); Martin v. Gheramie, 264 So.2d 285 (La.App. 4th Cir. 1972).

The court found that the work done on the bridge by the police jury, which was spasmodic and not exclusive in that hunters, loggers and cattlemen also worked on the bridge periodically, was no more than a “brushing up” or “token maintenance” of the bridge which was insufficient to constitute an implied or tacit dedication to public use under R.S. 48:491. 342 So.2d at 700.

Not only does R.S. 48:491 provide that a road is public when the parish governing authority has worked on or maintained it for a period of three years, it also provides that roads or streets opened, laid out or appointed by virtue of a parish governing authority are public.

The record reveals undisputed evidence that the bridge was actually built by the governing authority of the parish and the State before 1960. The bridge’s pilings, stringers and caps were installed by the State Department of Highways at the request of the police jury; the police jury placed the decking on the bridge. The bridge was, therefore, owned by the public because it was built with public money at the request of the public body. On one side of the bridge was a dirt road connecting a camp 150 yards from the bridge to a blacktop highway less than a mile away; the dirt road was graded and regularly maintained by the parish. On the other side of the bridge were logging roads, not maintained by the parish.

Only upon abandonment by the public body could the bridge have lost its character as a public structure. The appellate court’s finding that only minor work on the bridge was done by the parish and that much of the repairs were done by cattlemen, hunters and fishermen is of no moment. Furthermore, cases relied on by the court to find no tacit dedication under R.S. 48:491 are inapposite in that they involve property that was undisputably private. Rowe v. Harvey, 307 So.2d 103 (La.App. 1st Cir. 1974); Chargois v. St. Julien, supra; Martin v. Cheramie, supra.

Just as it is clear that the bridge was originally owned by the parish, it is equally clear that no abandonment by the police jury was intended or accomplished. Abandonment of a public road must be evidenced by (1) a formal act of revocation in accordance with R.S. 48:701, (2) relocation of the public road by the governing body, or (3) clear and well-established proof of intent by the governing body to abandon. Starnes v. Police Jury of Rapides Parish, 27 So.2d 134 (La.App.2d Cir. 1946). Nonuse of a strip of land as a public road or street for a period in excess of ten years may also result in termination of the public use. C.C. 789; Yiannopoulos, “Common, Public, and Private Things in Louisiana: Civilian Tradition and Modern Practice,” 21 La.L.Rev. 696, 736 (1961).

There was neither a formal revocation nor a relocation by the police jury. In addition, the record discloses no evidence of intent to abandon. Although the labor for repairs was often supplied by cattlemen, hunters and logging operators, this does not lessen the significance of the fact that the police jury had helped maintain the road over a period of some twelve years. Indeed, the most recent repair involved the replacement of decking on the bridge just a few months before the accident. Inspections by the police jury were made periodically including one made approximately one month and another one week before the accident. Furthermore, there was no abandonment through nonuse. C.C. 789. The Court of Appeal gave undue emphasis to the fact that the bridge was “only used” by cattlemen, hunters, fishermen and loggers, 342 So.2d at 699; these are members of the body politic and their use can reasonably be termed public use.

The bridge was the responsibility of the parish. It was built originally by the parish and, even though the maintenance was not extensive, when viewed in conjunction with the original acts of building the bridge it at least preserved the public character of the bridge.

For the foregoing reasons, the judgment of the Court of Appeal is reversed. Because the courts below did not reach the questions of negligence and quantum, the case is remanded to the Court of Appeal for further proceedings not inconsistent with this opinion. Determination of liability for costs will await disposition in the Court of Appeal.

SUMMERS, J., dissents for the reasons assigned by the Court of Appeal, 342 So.2d 696.


author: MARCUS, Justice. TATE, Justice,

text:
    Vickey Ann ESTEVE v. ALLSTATE INSURANCE COMPANY and Maryland Casualty Company.
    No. 59676.
    Supreme Court of Louisiana.
    Oct. 10, 1977.

      E. Kelleher Simon, Murphy & Simon, New Orleans, for defendant-respondent.
    Chester Francipane, Francipane, Regan & St. Pee, Metairie, for defendant-applicant.
    Lazard Levy, Marrero, for plaintiff-applicant. ^
   MARCUS, Justice.

While vacationing in Florida on September 20,1974, plaintiff Yickey Ann Esteve, a Louisiana resident, was a guest passenger in a car owned by Mona M. Laurent, a Louisiana resident, and operated by Cynthia A. Ronquille, also a Louisiana resident. Plaintiff was injured when the car in which she was riding collided with a vehicle owned and driven by John W. Lehman, a Florida resident. The accident occurred in the State of Florida. Plaintiff instituted this suit for personal injuries in the Twenty-Fourth Judicial District Court, Parish of Jefferson, State of Louisiana, against Mona M. Laurent’s insurer, Maryland Casualty Company; Cynthia A. Ronquille and her insurer, State Farm Mutual Automobile Insurance Company; and John W. Lehman’s insurer, Allstate Insurance Company. Allstate is a foreign insurance company authorized to do and doing business in Louisiana, but the policy sued upon was issued and delivered in Florida.

Allstate filed an exception of no right of action on the ground that La.R.S. 22:655, Louisiana’s direct action statute, was not applicable since the accident occurred in Florida and the policy sued upon was issued and delivered in Florida. The district court maintained the exception and dismissed plaintiff’s suit as to Allstate.

Maryland Casualty Company had filed a third party demand against Allstate, which was in turn met by another exception of no right of action on the ground that Louisiana’s direct action statute was not applicable. The district court maintained the exception and dismissed Maryland Casualty’s third party demand against Allstate.

From the judgments of the district court maintaining the exceptions of no right of action, both plaintiff and Maryland Casualty appealed. The court of appeal affirmed the judgments of the district court. We granted certiorari to review the correctness of this decision.

The sole issue presented for our review is whether appellants have a right of action against Allstate in a Louisiana court vested with jurisdiction over Allstate where the accident occurred in Florida and the liability policy sued upon was issued and delivered in Florida.

At the outset, we reject appellants’ contention that the existence of jurisdiction over Allstate has any significance on their right of action. Jurisdiction over Allstate has no bearing on appellants’ right of action against Allstate.

Appellants next contend that La.R.S. 22:655, Louisiana’s direct action statute, should be interpreted broadly to allow the action against Allstate.

La.R.S. 22:655 provides as follows:

No policy or contract of liability insurance shall be issued or delivered in this state, unless it contains provisions to the effect that the insolvency or bankruptcy of the insured shall not release the insurer from the payment of damages for injuries sustained or loss occasioned during the existence of the policy, and any judgment which may be rendered against the insured for which the insurer is liable which shall have become executory, shall be deemed prima facie evidence of the insolvency of the insured, and an action may thereafter be maintained within the terms and limits of the policy by the injured person, or his or her survivors mentioned in Revised Civil Code Article 2315, or heirs against the insurer. The injured person or his or her survivors or heirs hereinabove referred to, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy; and such action may be brought against the insurer alone, or against both the insured and insurer jointly and in solido, in the parish in which the accident or injury occurred or in the parish in which an action could be brought against either the insured or the insurer under the general rules of venue prescribed by Art. 42, Code of Civil Procedure. This right of direct action shall exist whether the policy of insurance sued upon was written or delivered in the State of Louisiana or not and whether or not such policy contains a provision forbidding such direct action, provided the accident or injury occurred within the State of Louisiana. Nothing contained in this Section shall be construed to affect the provisions of the policy or contract if the same are not in violation of the laws of this State. It is the intent of this Section that any action brought hereunder shall be subject to all of the lawful conditions of the policy or contract and the defenses which could be urged by the insurer to a direct action brought by the insured, provided the terms and conditions of such policy or contract are not in violation of the laws of this State.
It is also the intent of this Section that all liability policies within their terms and limits are executed for the benefit of all injured persons, his or her survivors or heirs, to whom the insured is liable; and that it is the purpose of all liability policies to give protection and coverage to all insureds, whether they are named insured or additional insureds under the omnibus clause, for any legal liability said insured may have as or for a tort-feasor within the terms and limits of said policy. (Emphasis added.)

The historical development of the direct action statute is pertinent in our consideration of the merits of this contention.

The origin of Louisiana’s direct action statute (La.R.S. 22:655) is Act 253 of 1918 which provided that the insolvency or bankruptcy of the insured would not release the company from liability; and, in such a case, the injured party was given a right of action against the insurer. Act 55 of 1930 amended Act 253 of 1918 to broaden its scope by making executory judgments secured against the insured prima facie evidence of his insolvency, and, further, by giving the injured party or his 'heirs, at their option, a right of direct action against the insurer company either in the parish where the accident or injury occurred or in the parish where the insured had his domicile. Such action was permitted against the insurer company alone or against both the insured and the insurer company jointly and in solido.

In 1948, Act 55 of 1930 was amended by Act 195. Act 55 had provided that “ . . .it shall be illegal for any company to issue any policy against liability . ” except subject to further provisions in the act. By Act 195 of 1948, the language was changed to read “[n]o policy or contract of liability insurance shall be issued or delivered in this state . . . .”

The legislature again amended the direct action statute in 1950 by Act 541, adding the following language:

This right of direct action shall exist whether the policy of insurance sued upon was written or delivered in the State of Louisiana or not and whether or not such policy contains a provision forbidding such direct action, provided the accident or injury occurred within the State of Louisiana.

Also in 1950, the following subsection was added to La.R.S. 22:983, dealing with authorization of foreign insurers to do business in Louisiana:

E. No certificate of authority to do business in Louisiana shall be issued to a foreign or alien liability insurer until such insurer shall consent to being sued by the injured person or his or her heirs in a direct action as provided in R.S. 22:655, whether the policy of insurance sued upon was written or delivered in the state of Louisiana or not, and whether or not such policy contains a provision forbidding such direct action, provided that the accident or injury occurred within the state of Louisiana. The said foreign or alien insurer shall deliver to the commissioner of insurance as a condition precedent to the issuance of such authority, an instrument evidencing such consent.

This court had occasion to interpret the 1950 amendment to the direct action statute in Webb v. Zurich Insurance Co., 251 La. 558, 205 So.2d 398 (1967). In Webb, the accident occurred out-of-state, but the policy of liability insurance was issued and delivered in Louisiana. The Webb court found the direct action statute applicable to situations in which either (1) the policy was issued or delivered in Louisiana, or (2) the accident occurred in Louisiana. The intermediate appellate courts of this state have followed this interpretation and have refused to extend application of the statute. Esteve v. Allstate Ins. Co., 343 So.2d 353 (La.App. 4th Cir. 1977); Morse v. Hartford Cas. Ins. Co., 301 So.2d 741 (La.App. 3d Cir. 1974); Kirchman v. Mikula, 258 So.2d 701 (La.App. 3d Cir. 1972).

Now we are asked to extend application of La.R.S. 22:655 to a situation in which the accident occurred in another state and the policy sued upon was issued and delivered in another state. Interpreting the statute as a whole and in light of its historical development, we are unable to make such an extension. As noted in Webb, supra, the development of the direct action statute evinces a legislative intent to expand its application; however, the statutory language itself clearly indicates no intent to extend its application beyond that reached in Webb.

The 1950 amendment to the statute clearly indicates that, if the accident or injury occurs in Louisiana, the right of direct action exists whether or not the liability policy was written or delivered in this state. However, if the accident occurs in another state, the place of issuance or delivery of the policy becomes controlling. In the latter situation, the requirements set forth in the preceding part of the statute must be met, i.e., the policy must have been issued or delivered in Louisiana.

Hence, the right of direct action against a liability insurer in- a Louisiana court is expressly conferred by statute, but only under certain conditions: (1) the accident occurred in Louisiana, or (2) the policy was issued or delivered in Louisiana. In the present action, neither condition is met; therefore, appellants have no right of action against Allstate under La.R.S. 22:655. Any further extension of the statute is a legislative function. This court cannot disregard the plain and unambiguous language of the statutory provision.

Appellants also contend that, under La. Civil Code art. 1890, a right of direct action exists against Allstate by virtue of a stipulation pour autrui in the insurance policy in favor of the injured party. We reject this contention.

La. Civil Code art. 1890 provides:

A person may also, in his own name, make some advantage for a third person the condition or consideration of a commutative contract, or onerous donation; and if such third person consents to avail himself of the advantage stipulated in his favor, the contract can not be revoked.

This article applies generally to situations in which a benefit is given a third party under an agreement between other persons. La.R.S. 22:655 provides specifically for a right of direct action by the injured person or his heirs against a liability insurer, but only under certain conditions.

It is well settled that a statute more specifically directed to the matter at issue must prevail as an exception to a statute more general in character. State v. Maduell, 326 So.2d 820 (La.1976); Teachers’ Retirement Sys. of La. v. Vial, 317 So.2d 179 (La.1975). Hence, La.R.S. 22:655 governs situations involving direct actions against liability insurers rather than La. Civil Code art. 1890; and the conditions of the direct action statute must be met. In the present action, since the policy was not issued or delivered in Louisiana and the accident did not occur in Louisiana, appellants have no right of action against Allstate.

DECREE

For the reasons assigned, the judgment of the court of appeal affirming the district court in sustaining the exceptions of no right of action is affirmed.

TATE, J., concurs and assigns reasons.

CALOGERO and DENNIS, JJ., concur for reasons assigned by TATE, J.

DIXON, J., dissents for reasons expressed in the dissent in the Court of Appeal.

TATE, Justice,

concurring.

In the writer’s opinion the issue is not (as the majority suggests) whether Louisiana’s direct action statute, La.R.S. 22:655, confers a cause of action against Allstate. (For the reasons stated by the majority, the statute does not: The policy was issued in Florida and the accident happened in Florida, and thus is not within the scope of a direct action against the insurer authorized by La.R.S. 22:655.)

The issue, rather, is much more complex. The essential issue is whether this foreign insurer, authorized to do business in Louisiana, is subject to suit in the Louisiana courts upon a “direct action” ground against it which is enforceable in the Florida courts. See Shingleton v. Bussey, 223 So.2d 713 (Fla.1969).

Preliminarily, we note that there is no constitutional bar to Louisiana’s deciding this claim against a defendant who does business in this state, even though the cause of action arose in Florida and the policy sued upon was issued in Florida. Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952); Smith v. Globe Indemnity Co., 243 So.2d 882 (La.App. 1st Cir. 1971).

The true issue, therefore, is whether Louisiana statutes or jurisprudence permit the assertion of Louisiana jurisdiction to decide this transitory action arising under Florida facts against a foreign insurer.

By statute, our legislature has sought to make amenable to such Louisiana suit foreign insurers who are authorized to do business here. La.R.S. 22:985 provides that such insurers appoint the Secretary of State as agent for service of “all lawful process in any action or proceeding against such insurer.” The statute does not distinguish between claims arising in Louisiana and other claims; it is phrased in the broadest terms. Its terms permit no ground for holding that this statute somehow is limited to claims arising from accidents in Louisiana. See Smith v. Globe Indemnity Co., 243 So.2d 882, 885 (La.App. 1st Cir. 1971).

In Morrison v. New Hampshire Insurance Co., 249 La. 546, 187 So.2d 729 (1966), discussed at 28 La.L.Rev. 390-392 (1968), we decided a substantially similar case. There, the Louisiana plaintiff was the insured in a fire insurance policy covering property in Mississippi. The policy was delivered in Mississippi. We there held that substituted service could be made upon a foreign insurer by virtue of its statutory consent to be sued, despite the circumstance that the cause of action did not arise out of the particular Louisiana activities with which the insurer had filed its consent to be sued “in any action or proceeding” against it.

Consequently, the previous courts were in error in dismissing the present suit simply because the Louisiana direct action statute did not afford the plaintiff a right or cause of action under it.

The plaintiff properly sought to enforce a Florida-created right which permitted a direct action, based upon a Florida-issued policy, for injuries arising out of a Florida action: The defendant insurer had consented to be sued on any cause of action in this state, in connection with applying for and receiving authority to conduct business in this state. La.R.S. 22:982(2) (1960), 22:985 (1958).

Nevertheless, my ultimate conclusion is that Florida recognizes a direct cause of action against an insured as a third party beneficiary only if the insured is joined as co-defendants. Shingleton v. Bussey, 223 So.2d 713 (Fla.1969). The reasons of public policy relied upon by the Florida courts are based upon the rights of joinder of a party interested, as well as upon the third-party beneficiary nature of the insurance contract.

While the matter is not free from doubt, until I am persuaded otherwise, it seems to me that the plaintiff may not assert in Louisiana the Florida direct action against the present insurer without at the same time joining the named insured — the “no action” clause of the policy, otherwise enforceable, is under Florida law invalidated only where its enforcement deprives the insured person of the right to join the insurer as a party interested, along with the insured tortfeasor as co-defendants, in order to avoid a multiplicity of suits.

Accordingly, I respectfully concur in the result reached by the majority, although I disagree with its rationale.

      . 343 So.2d 353 (La.App. 4th Cir. 1977).

      . 345 So.2d 57 (La.1977).

      . Appellants’ reliance on Smith v. Globe Indemnity Co., 243 So.2d 882 (La.App. 1st Cir. 1971) to support their contention that a right of direct action exists is misplaced. Smith did not involve the direct action statute; the issue in that case was jurisdiction. In the instant case, the issue is not whether the Louisiana court has jurisdiction over Allstate but rather whether appellants have a right of action against Allstate.

      . It should be noted that under Florida jurisprudence no right of direct action exists against the insurer alone. The insured tortfeasor is an indispensable party in any action against the insurer. Florida would allow only a joinder of the insured and insurer. Freed v. State Farm Auto Ins. Co., 491 F.2d 972 (5th Cir. 1974); In re Brent Towing Co., 414 F.Supp. 131 (N.D.Fla. 1975); Shingleton v. Bussey, 223 So.2d 713 (Fla.1969); Ins. Co. of N. America v. Braddon,
        285 So.2d 634 (Fla.App.1973); Kephart v. Pickens, 271 So.2d 163 (Fla.App.1972), cert. denied 276 So.2d 168 (Fla.1973). For present Florida law concerning direct actions, see Florida Stats. § 627.7262 (1976), which provides conditions under which insurer may be joined with the insured as a party defendant. Said statute provides that the new law shall take effect October 1, 1976, and shall apply to claims arising out of accidents on or after that date. The present accident occurred on September 20, 1974.


author: SANDERS, Chief Justice.

text:
    STATE of Louisiana. v. Gerri NORWOOD.
    No. 59770.
    Supreme Court of Louisiana.
    Oct. 10, 1977.

      Arthur A. Lemann, III, Supervising Atty., New Orleans, Veronica Meade, Student Practitioner, for defendant-respondent.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-relator.
   SANDERS, Chief Justice.

Sergeant R. Kent charged Gerri Norwood by affidavit with theft, a violation of the Municipal Code of the City of New Orleans, in the Municipal Court for the City of New Orleans. Subsequently, the District Attorney for the Parish of Orleans filed a two-count bill of information in the Criminal District Court for the Parish of Orleans, charging this defendant with battery with a dangerous weapon and theft of property valued at $450, violations of LSA-R.S. 14:34 and 14:67. The state theft charges in the District Court and the city theft charges in Municipal Court were based upon the same acts. The state charges were filed by the District Attorney on October 12, 1976. On November 4, 1976, the City Attorney for the City of New Orleans nolle prosequied the pending city charges in Municipal Court on the ground that state charges were pending against the defendant. Defendant filed a Motion to Quash the bill of information in the District Court, alleging that the theft charges filed in the District Court had first been filed in Municipal Court and that, due to the jurisdiction attaching in a court of concurrent jurisdiction, the Criminal District Court lacked jurisdiction over the matter. After hearing on the motion, the district court granted the Motion to Quash the theft charges. On application of the State, we granted supervisory writs to determine the validity of the proceedings below. La., 345 So.2d 907 (1977).

In support of his argument that a case may not be transferred once charges have been filed in a court of competent jurisdiction, defendant cites State v. Sawyer, 220 La. 932, 57 So.2d 899 (1952); State v. Milano, 138 La. 989, 71 So. 131 (1916); and Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970). These cases are inapposite and defendant’s reliance upon them is misplaced.

In Sawyer, defendant was charged with drunken driving. This Court found that defendant’s driving an automobile from Lake Providence to Oak Grove was a single act of driving under the influence of intoxicating liquor and the circumstance that the violation occurred in more than one parish did not alter the situation. Finding that the offense was a single act, the Court held that “there could be but one prosecution and trial and that could take place only in the court which first became seized of jurisdiction — for it is a well-established rule of law that, where two courts have concurrent jurisdiction over the same subject matter, the court which first obtains jurisdiction retains it to the end of the controversy to the exclusion of all others. [Citations omitted.]”

In Milano, the district attorney first brought charges in the city court of Shreveport. After the trial of several related cases which resulted in acquittals, the district attorney nolle prosequied the charges in city court and brought charges in the district court. This Court found bad faith on the part of the district attorney in his attempting to transfer the case from one court to another because he thought that the chances for conviction were greater in another court. We also note that Milano concerned only the actions of the district attorney who brought the charges in both courts rather than the independent actions of a city attorney and a district attorney, such as we have in the present case.

Waller v. Florida, supra, is inapplicable to the case before us because it involved a question of double jeopardy not presented here. In Waller, the defendant, who had been convicted in municipal court for violating two municipal ordinances, was subsequently convicted of grand larceny in the Circuit Court of Florida on charges based upon the same acts as the earlier municipal court conviction was based. The United States Supreme Court held that, since the state felony charge was based on the same acts as the earlier municipal court conviction for the lesser included offenses, the second trial constituted double jeopardy in violation of the Fifth and Fourteenth Amendments to the United States Constitution.

In the present case, the District Court determined the issue to be: whether a prosecuting attorney has the authority to divest a court of competent jurisdiction of its authority to decide a case once jurisdiction has attached in that court and to file charges in a second court of competent jurisdiction.

Having reviewed the proceedings in the instant case, we conclude that the District Court erred in its formulation of the issue presented. Here, we are presented with a situation involving two separate and independent courts — the City of New Orleans Municipal Court and the Criminal District Court — and two separate and independent prosecutors — the City Attorney for the Municipal Court and the District Attorney for the District Court. Therefore, we find the issue to be twofold: (1) may the district attorney for a judicial district bring state charges in district court against a defendant who has been charged with the same offenses in municipal court under a municipal ordinance? and (2) does a pre-trial nolle prosequi of the charges in one court free the remaining court to hear the case? Under the circumstances presented, we answer both questions in the affirmative.

We know of no constitutional principle that prevents the filing of appropriate charges against a defendant in several courts of concurrent jurisdiction. If, however, jeopardy attaches in one court, claims of double jeopardy will prevent the defendant from being tried in another court for the same offense. Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970).

LSA-Const. Art. 5 § 26(B) (1974) gives the District Attorney control of criminal prosecutions within his district. The City Attorney is accorded the same prerogative in the Municipal Court. LSA-Const. Art. 5 § 32; LSA-C.Cr.P. Art. 934(5).

The district attorney has the authority to dismiss or nolle prosequi a case without the consent of the court. LSA-C.Cr.P. Art. 691; State v. Franton, La., 319 So.2d 405. The term “district attorney” also includes city attorney. LSA-C.Cr.P. Art. 934(5). The effect of a dismissal, or nolle prosequi, is to discharge the particular indictment, bill of information, or affidavit; however, it does not bar further prosecution if it is entered before the first witness is sworn. LSA-C.Cr.P. Arts. 691, 693; State v. Franton, supra; State v. Ruffin, 117 La. 357, 41 So. 647 (1906).

In the present case, charges were filed in the Municipal Court and subsequently nolle prosequied before jeopardy attached. This action by the city attorney constituted a valid disposition of the case before that court but did not bar further prosecution. LSA-C.Cr.P. Arts. 691, 693; State v. Franton, supra; State v. Ruffin, supra. Independent charges against the defendant filed by the district attorney were then pending in district court. The municipal court action had no effect on the bill of information charging the defendant under state law. Hence, we hold that the trial judge erred in sustaining the Motion to Quash.

For the reasons assigned, the ruling of the trial judge sustaining the Motion to Quash the bill of information is reversed, and the case is remanded to the district court for further proceedings in accordance with law and the views herein expressed.


author: CALOGERO, Justice. DENNIS, J.,

text:
    STATE of Louisiana v. Wilburn G. MONK.
    No. 59810.
    Supreme Court of Louisiana.
    Oct. 10, 1977.
    F. Clay Tillman, Jr., Tillman & Mitchell, Leesville, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., William C. Pe-gues, III, Dist. Atty., William E. Tilley, First Asst. Dist. Atty., for plaintiff-respondent.

      Foye L. Lowe, Jr., Associate Gen. Counsel, Dept, of Public Safety, Baton Rouge, for amicus curiae.
   CALOGERO, Justice.

Wilburn G. Monk was charged with operating a motor vehicle while under the influence of intoxicating beverages (a misdemeanor) in violation of La.R.S. 14:98. Defendant, represented by counsel, entered a plea of guilty and was sentenced to pay a fine of $200.00 and costs or to serve sixty (60) days in the parish jail. The trial court further instructed the defendant to surrender his driver’s license to the sheriff. Counsel for the defendant objected to the surrender of defendant’s license and obtained leave to apply to this Court for supervisory writs. Defendant complains in his timely application that in a circumstance such as the present the trial judge is without authority to order the surrender of a defendant’s license. We granted defendant’s application. 345 So.2d 63 (La.1977). We now believe relator to be incorrect in this contention and we affirm the action of the lower court.

La.R.S. 14:98 provides the authorized criminal penalty for operating a vehicle while intoxicated, and in doing so makes no provision for license surrender, suspension or revocation. Such authority is found in Title 32 of our Revised Statutes. More particularly, R.S. 32:393B provides a court with the authority in certain circumstances to require the surrender of a license and thereupon to forward same together with a record of conviction to the director of public safety. A distinguishing characteristic between the two subsections of R.S. 32:393B is that the first subsection is addressed to circumstances requiring mandatory revocation of a license whereas the second is directed to circumstances requiring mandatory suspension of a driver’s license. Since this case presents us with a situation of possible license suspension our attention is drawn to the latter subsection of the statute, i. e., R.S. 32:393B(2).

As is apparent from a reading of R.S. 32:393B(2) a court is authorized to require the surrender of a license because of suspension only when the provisions of R.S. 32:414 make suspension mandatory. Defendant contends that the allusion in section 393B(2) can not be to R.S. 32:414A for in his view that section does not make suspension mandatory. It is further argued that the reference in section 393B(2) is to section 414B wherein there is no allowance for court discretion. This latter assertion cannot be correct inasmuch as section 414B applies not to suspension but rather to license revocation. We will now consider defendant’s contention that the suspension provided for in section 414A (first offense DWI) is not what section 393B(2) refers to when the latter speaks of mandatory suspension under R.S. 32:414.

Initially, it is noted that if section 414A is not the mandatory suspension provision referred to by section 393B(2) then the reference is meaningless because we can find no other subsection of 414 which relates to mandatory suspension.

An analysis of section 414 shows that it breaks down as follows: subsection A speaks of suspension of licenses for the conviction of, entry of a plea of guilty or the forfeiture of bail of a person charged with a first offense DWI; subsection B speaks of revocation of license for more serious crimes; subsection C talks of revocation of a driver’s license for people who unlawfully use a driver’s license in violation of La.R.S. 32:414.1; subsections D and E speak of suspension, cancellation or revocation following an investigation by the department for such things as habitual recklessness, unlawful use of a license, etc.; subsection F concerns the commencement of the period of revocation or suspension and the return of the license at the expiration of that period. See La.R.S. 32:414. These latter provisions, B through F, do not relate to mandatory suspension. Therefore, as noted earlier, subsection A is the only provision to which R.S. 32:393B(2) could be alluding when it refers to mandatory suspension under the provisions of R.S. 32:414.

Because section 414 qualifies the Department’s obligation to suspend (“unless otherwise directed by the Court having jurisdiction of the case”), and authorizes a less than complete suspension (the Department may after investigating reinstate a license restricted to the operation of a motor vehicle while earning a livelihood), section 393B(2) in its reference to mandatory suspension under R.S. 32:414 is not entirely free from ambiguity.

On the other hand, it can be argued that the suspension provided by section 414(A) is mandatory from the point of view of the department in the situation where the trial court has not directed otherwise. In such a case the department must suspend the license of the offender. Furthermore, though the department still retains the power after investigation to grant a limited reinstatement (to earn a livelihood) at least some character of suspension (i. e. driving privileges other than while earning a living, for a period of sixty days) is mandatory.

Construing section 414A as providing for mandatory, occasionally qualified, suspension (from the Department’s point of view) is the only way in which some effect can be given to section 393B(2)’s directive that a court should forward the license of a person subject to mandatory suspension under R.S. 32:414 to the driver’s license division of the Department of Public Safety.

Where a statute is ambiguous and susceptible of two constructions, courts should give that construction which best “comports with the principles of reason, justice, and convenience,” Klause v. State Dept. of Highways, 243 La. 242, 142 So.2d 410 (1962); State v. Randall, 219 La. 578, 53 So.2d 689 (1951), rather than a construction which would make the statute meaningless.

We hasten to point out that the possibly ambiguous statutory provision under review deals not with a clause for license suspension, in which case we might more readily be inclined, if not required, to construe the statute more favorably to the defendant. Rather it deals with the means by which a person duly convicted of first offense DWI and statutorily required to suffer a license suspension, is caused to have physically removed from him his license to drive. Thus, there are not here the same due process concerns which might prompt a more scrutinizing interpretation of a statute penal in nature.

Having concluded that R.S. 32:393B(2) makes reference to the provisions of section A of R.S. 32:414 we find that a trial judge does have the right in such circumstances to require the surrender of an offender’s license provided he has consciously exercised the discretion afforded him in R.S. 32:414A not to direct otherwise. In the present case we construe the trial judge’s order to surrender the license as an indication of his decision not to direct otherwise. For the foregoing reasons the writ heretofore granted is recalled, and the trial judge’s action construed as requiring the surrender of the defendant’s license to the court so that the court’s clerk may attach the license to the court record and forward both to the Department of Public Safety is affirmed.

DENNIS, J.,

dissents.

The district court was authorized only to direct or refrain from directing The Department not to suspend defendant’s license.

      . La.R.S. 32:393B provides as follows:
      B. (1) Whenever any person is convicted of an offense for which this Chapter makes mandatory the revocation of the license of such person, the court in which such conviction is had must require the surrender of the license then held by the person convicted and must thereupon forward the same, together with a record of conviction, to the director of public safety.
      (2) Whenever the driver’s license of any person is mandatorily suspended under the provisions of R.S. 32:414, the court in which the conviction is had or in which bail is forfeited shall attach said license to a record of said conviction or bail forfeiture and shall forward both to the drivers’ license division of the Department of Public Safety, (underline provided)

      . First offense DWI triggers a suspension of driving privileges not a revocation. See R.S. 32:414A.

      . In support thereof defendant points out that the statute directs the Department of Public Safety to suspend a license “unless otherwise directed by the court.” The entirety of R.S. 32:414A provides:
      A. The department shall, unless otherwise directed by the court having jurisdiction of the case, suspend the license of any person for a period of sixty days upon receiving, from any district, city or municipal court having traffic jurisdiction, or from any federal court or magistrate having traffic jurisdiction within the territorial limits of the state, satisfactory evidence of the conviction or of the entry of a plea of guilty and sentence thereupon or of the forfeiture of bail of any such person charged with the first offense for operating a motor vehicle while under the influence of beverages of high alcoholic content, of low alcoholic content, of narcotic drugs, or of central nervous system stimulants. The department may investigate an allegation made by such licensee that the suspension of his driving privileges will deprive him or his family of the necessities of life, or will prevent him from earning a livelihood. If the department so finds it may, with approval of the court having jurisdiction of the case, reinstate the license of such licensee; provided, however, that the driving privileges of the licensee shall be restricted to the operation of a motor vehicle to earn a livelihood for a period of sixty days from the date of conviction or of the entry of a plea of guilty and sentence thereupon or of the forfeiture of bail. Notice of said restriction shall be attached to the íicense. Where such district, city, municipal or federal judge or magistrate has affirmatively recommended that the driving privileges of a person convicted as above not be suspended, the judge or magistrate may, in his discretion, also render an order circumscribing, limiting, or restricting the driving privilege of such licensee for a period not to exceed ninety days from the date of such conviction. A copy of such order shall be sent to the department along with the conviction notice, and a copy shall be attached to the license of the person convicted. A violation of such order shall constitute a violation of this chapter as well as contempt of the court issuing same, (emphasis provided)

      . We note that the defendant’s assignment of error complains that the court was without authority to order surrender of his license to the sheriff. However, his arguments in support thereof were directed exclusively to the authority of the court to order the surrender. Since defendant does not complain of the court’s order as it concerns surrendering the license to the sheriff we deem it unnecessary to scrutinize the court order focusing on the means by which the statutory directive in R.S. 32:393B(2) is accomplished. Thus, we construe the court’s order as requiring surrender of the defendant’s license to the court so that the clerk of court can attach the license to the record of the conviction and forward both to the Department of Public Safety.


author: MARCUS, Justice. DENNIS, J., CALOGERO, Justice,

text:
    LOUISIANA CONSUMERS’ LEAGUE, INC. v. LOUISIANA PUBLIC SERVICE COMMISSION.
    No. 59819.
    Supreme Court of Louisiana.
    Oct. 10, 1977.

      Stephen M. Irving, Woodrow W. Wyatt, Doris Falkenheiner, Baton Rouge, for plaintiff-relator.
    Marshall B. Brinkley, Baton Rouge, for defendant-respondent.
    Jane Johnson, New Orleans Legal Assistance Corp., New Orleans, for amicus curiae.
   MARCUS, Justice.

After its petitions of intervention in two pending rate proceedings were denied by the Louisiana Public Service Commission, the Louisiana Consumers’ League, Inc. brought this action in the Nineteenth Judicial District Court to enjoin the Commission from conducting further hearings on the rate applications until the League was permitted to intervene in said rate proceedings. La.Const. art. 4, § 21(E); La.Const. art. 5, § 2; La.R.S. 45:1192. The district court rendered judgment in favor of the Commission denying the League the relief sought. Thereupon, the League applied to the court of appeal for supervisory writs and a stay order which application was not considered by the court on the ground that the court lacked jurisdiction of the case under La. Const, art. 4, § 21(E) and art. 5, § 10. The League then applied to this court for supervisory writs and a stay order. La.Const. art. 4, § 21(E); La.Const. art. 5, §§ 2 and 5(A). Although we refused to stay the rate proceedings, we granted the writ to review the ruling of the Commission, as affirmed by the district court, denying the League’s petitions of intervention and as provisional relief ordered the Commission to permit the League to intervene in the rate proceedings.

The facts are not in dispute. In the fall of 1976, Central Louisiana Electric Company and Louisiana Power and Light Company filed applications for an increase in rates with the Commission. In both proceedings, the League filed formal petitions of intervention pursuant to Rule 10 of the Rules of Practice and Procedure of the Louisiana Public Service Commission, effective November 16, 1972, which rule provided that “. . . every civic and trade organization shall be permitted to intervene in any proceeding and present any relevant and proper testimony and evidence bearing upon the issues involved in the particular proceeding.” (Emphasis added.) Relying on an amendment to Rule 10, effective July 1, 1976, which provided in pertinent part that “. . . every civic and trade organization shall be permitted to appear in any proceeding whether as a formal inter-venor or otherwise, and present any relevant and proper testimony and evidence bearing upon the issues involved in the particular proceeding” (emphasis added), the Commission denied the League the right to intervene and instead permitted it to participate in the proceedings only as an “interested party.” As such, the League was invited by the Commission to submit any relevant testimony or documentary evidence and to refer questions to be asked on direct or cross-examination of witnesses to counsel for the Commission, who would then ask them to the witnesses. Relegation of the League to the status of an interested party also prevented it from appealing a decision of the Commission, as a right of appeal extends only to an “aggrieved party or intervenor” in the proceeding under La. Const, art. 4, § 21(E).

The League then brought the present action in the district court, contending that the amendment to Rule 10 relied upon by the Commission in denying its right to intervene in the rate proceedings was ineffective in that it was not adopted in compliance with the rule-making provisions of the Administrative Procedure Act which act purportedly applies to all state agencies not specifically excluded. La.R.S. 49:951-954, 967. As defined in the act, “agency” means any state board, commission, or department which makes rules, regulations, or policy, or formulates, or issues decisions or orders pursuant to, or as directed by, or in implementation of the constitution or laws of the United States or the constitution and statutes of Louisiana, except the legislature or any branch, committee, or officer thereof and the courts. La.R.S. 49:951(2). Prior to the adoption, amendment, or repeal of any rule, the agency must give at least fifteen days notice of its intended action, which notice must be published at least once in both the official Louisiana Journal and Louisiana Register. In addition, the agency is required to afford all interested persons reasonable opportunity to submit data, views, or arguments orally or in writing. La.R.S. 49:953. Subsequent to the adoption of a rule or an amendment thereto, the agency is required to file in the office of the Division of Administration a certified copy of the rule which becomes effective upon publication in the Louisiana Register. La.R.S. 49:954. The League contended that the Commission falls within the purview of the act since it is an agency as defined in the act and is not specifically excepted from its coverage under La.R.S. 49:967. The League argued that, since the Commission failed to give notice of the purported amendment to Rule 10 and to afford interested persons an opportunity to submit their views on the intended action, the amendment had not been validly enacted and was without effect. Hence, it contended that the former version of Rule 10 remained in force and conferred upon the League an unconditional right to intervene in the rate proceedings. The League further asserted that the Commission’s denial of its petitions of intervention deprived it of equal protection of the laws since in prior proceedings the Commission had permitted industrial customers to participate as inter-venors, and violated the due process clause of the federal constitution.

In opposition to the League’s contentions, the Commission argued that it is not governed by the provisions of the Administrative Procedure Act since it is a constitutionally-created body independent of the legislature with its powers and duties defined in the constitution, one of which is the power to “. . . adopt and enforce reasonable rules, regulations, and procedures necessary for the discharge of its duties . . . .” La.Const. art. 4, § 21(B). The Commission contended that this constitutional grant of rule-making power could not be subjected to the procedural restraints outlined in the act and imposed by the legislature on the rule-making power of state agencies. Therefore, the Commission was constitutionally empowered to amend Rule 10 and could validly deny intervenor status to the League.

Testimony taken at the hearing of this matter revealed that, prior to the adoption of the amendment to Rule 10, the proposed amendment was not published in the Louisiana Register or the Louisiana Journal nor was a copy of the amended rule sent to the office of the Division of Administration. However, subsequent to its adoption, copies of the amendment were sent by the secretary of the Commission to the Louisiana Register and were disseminated to interested persons on the Commission’s official mailing list.

In his written reasons for judgment denying the League relief, the district judge concluded that the provisions of the Administrative Procedure Act do not apply to the Commission since La.Const. art. 4, § 21(B) grants to the Commission the power to establish its own rules of procedure, thereby precluding the legislature from enacting statutes, such as the Administrative Procedure Act, which restrict that power. The district judge further found that there was ample notice of the rule change in that after its adoption copies of the amendment were disseminated throughout the state and more than adequate time had expired between adoption of the amended rule and the rate proceedings for a party seeking to participate therein to have obtained a copy of the amended rule. Finally, the judge held that the Commission had afforded the League sufficient opportunity to participate in the proceedings so as to satisfy its constitutional rights.

The ultimate issue to be decided in this case is the validity of the amendment to Rule 10 for, if this rule was improperly amended, the former version of Rule 10 remained in effect and granted to the League an unconditional right to intervene in the rate proceedings. Resolution of this issue in turn rests upon the determination of whether the legislature may subject the constitutional power of the Commission to adopt its own rules and procedures to the procedural limitations set forth in the rule-making provisions of the Administrative Procedure Act.

Pursuant to La.Const. art. 4, § 21(B), the Commission “. . . shall adopt and enforce reasonable rules, regulations, and procedures necessary for the discharge of its duties . . . .” This constitutional grant of rule-making power to the Commission precludes the legislature from enacting statutes which would restrict the Commission’s ability to adopt its own rules, regulations, and procedures. Accordingly, the rule-making provisions of the Administrative Procedure Act are not applicable to the Commission.

Although the Commission cannot constitutionally be subjected to legislatively-created restrictions in the exercise of its rule-making power, it does not follow that the Commission has unfettered discretion in the selection of the content of its rules or the manner of their adoption. By express mandate of La.Const. art. 4, § 21(B), the power of the Commission extends to the adoption and enforcement of “reasonable” rules, regulations, and procedures. Not only the rule itself but the procedures employed by the Commission, including the method by which a rule is adopted, amended, or repealed, must be reasonable. To be considered reasonable, the procedure by which a rule change is effected must provide for notice of the proposed rule change and a reasonable opportunity for interested persons to submit data or views addressed to that issue. Should the procedure fail to comport with the standard of reasonableness mandated by the constitution, any rule change would be invalid and of no effect.

Applying these principles to the instant case, the record reveals that the procedure employed by the Commission in amending Rule 10 failed to afford notice of the proposed amendment so that interested persons might have had an opportunity to present their views on the Commission’s intended action prior to the adoption of the amendment. This failure rendered the procedure unreasonable and the amendment to Rule 10 without effect. Hence, we conclude that the former version of Rule 10 remained in force and granted to the League an unconditional right to intervene in the rate proceedings before the Commission. Accordingly, we confirm our previous order directing the Commission to permit the League to intervene in the rate proceedings.

DECREE

For the reasons assigned, the judgment of the district court is reversed, and the previous order of this court directing the Louisiana Public Service Commission to permit the Louisiana Consumers’ League, Inc. to intervene in the rate proceedings is confirmed.

CALOGERO, J., concurs and assigns reasons.

TATE, J., concurs, believing that publication is required before effectiveness of the rule, as required by the A.P.A.

DENNIS, J.,

concurs.

The La. Constitution’s general guarantee of due process, Art. 1 Sec. 3, and specific requirement that the Commission adopt and enforce reasonable rules, regulations and procedures, Art. 4, Sec. 21, afford to the utility’s residential consumer class the right to have its legitimate representative intervene and participate in the proceedings.

SUMMERS and DIXON, JJ., dissent.

CALOGERO, Justice,

concurring.

The majority concludes that Rule 10 of the Louisiana Public Service Commission’s current rules is ineffective. Because I agree with this conclusion I concur.

My reasons, however, are different from the majority. I do not believe that the constitutional mandate of Article 4, § 21(B) to “adopt and enforce reasonable rules, regulations, and procedures” requires that in order for a rule change to be effective the commission must allow for notice of the proposed rule change and reasonable opportunity for interested persons to submit data or views addressed to that issue. On the contrary, I believe that the only constitutional limitation upon the commission with respect to the adoptions of rules is that reasonable rules be adopted and enforced. I find no constitutional requirement, inferential or otherwise, that the commission notice and conduct rule hearings.

I do, however, believe that there are valid procedural restrictions upon the commission with respect to the adoption of rules, and that these are the provisions of the Administrative Procedure Act. The legislature has the authority to enact any statute unless specifically limited by constitutional provision. I do not find in Article 4, § 21(B)’s provision that the commission “shall adopt and enforce reasonable rules, regulations, and procedures necessary for the discharge of its duties” any limitation upon the legislature that would preclude its prescribing procedures for the adoption of rules to be employed by state agencies, even though the state agency in question is constitutionally mandated to adopt rules governing its proceedings. Certainly provisions of the APA, short of directing the substance of the rules to be adopted by the constitutionally mandated commission, and involving certain procedures such as notification, publication and the like, are not in my view contrary to the constitutional provisions which give to the commission the power and duty to adopt and enforce reasonable rules. Accordingly, I am of the view that Rule 10 of the commission’s current rules is ineffective, for those rules were not adopted in compliance with the APA.

I am also of the view that there is a very serious equal protection issue raised by the relators having to do with the commission’s permitting large industrial customers to intervene while disallowing intervention to representatives of the public at large. Although I do not believe that issue need be faced here, in view of the fact that the majority opinion allows this plaintiff to intervene as a matter of right, there can be no question that commission rules must be applied with an even hand. This Court will carefully inspect commission rules and their application to insure that no group’s right to equal protection is violated.

      . 345 So.2d 1191 (La.1977).

      . Ex parte Central Louisiana Electric Company, No. U-13172.

        .Ex parte Louisiana Power and Light Company, No. U-13220.

      . Although we have concluded that the legislature may not constitutionally subject the Commission to the rule-making provisions of the Administrative Procedure Act, these provisions, which govern the majority of the state agencies, do offer guidance as to what constitutes a reasonable procedure by which the Commission may implement rule changes.