author: CALOGERO, Justice.

text:
    FIRST GUARANTY BANK v. C. D. ALFORD et al.
    No. 62508.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
    Rehearing Denied Jan. 26, 1979.

      Ben R. Miller, Jr., Leonard L. Kilgore, III, Sanders, Downing, Kean & Cazedessus, for defendant-respondent.
    Tom H. Matheny, Pittman & Matheny, Hammond, for plaintiff-applicant.

      Dixon, J., would grant a rehearing.

   CALOGERO, Justice.

On April 30, 1973 Dr. C. D. Alford borrowed $155,000.00 from First Guaranty Bank and as evidence of the debt signed a promissory note payable one year thereafter. Among other security for the debt Dr. Alford had his wife encumber real estate which was her separate property. This was done by execution of a collateral mortgage note (a $155,000.00 demand promissory note payable to order of “ourselves” and duly endorsed in blank), a collateral mortgage and an act of pledge. Each of these latter three instruments was signed by both Dr. and Mrs. Alford. The collateral mortgage note and the collateral mortgage each contained a provision as follows:

DUE ON DEMAND. This is a collateral note secured by a collateral mortgage and may be placed as collateral security for any hand note or notes which shall govern the terms, time of payment, interest rate and all other conditions set forth therein. This note may be issued and re-issued without being extinguished by confusion, and its validity will not be affected by the fact that the original indebtedness for which it was issued is paid.

The act of pledge acknowledged a loan “represented by one certain promissory note of even date herewith in the amount of $155,000.00” and recited that Dr. and Mrs. Alford “do by these presents pledge as security for said note the following collateral, to wit:

“(1) One certain collateral note secured by a collateral mortgage in the amount of $155,000.00, dated April 30, 1973; . .”

The collateral mortgage was duly recorded and both the collateral mortgage note (sometimes hereinafter referred to as the “ne varietur” note) and Dr. Alford’s promissory note (sometimes hereinafter referred to as the “hand note”) were given to the bank. The ne varietur note has thereafter remained in the possession of the bank. The hand note was cancelled and returned to Dr. Alford on May 28, 1974, his debt having been renewed upon execution of a promissory note for $195,000.00 on May 24, 1974.

There were executed after April 30, 1973 the following instruments, each of them signed by Dr. Alford only:

(1) A $195,000.00 promissory note dated May 21, 1974 payable June 21, 1974 signed by Dr. Alford, the note indicating that it was secured by “Collateral Pledge Agreement # 149.”
(2) Collateral Pledge Agreement # 149 dated May 21, 1974 signed by Dr. Alford, by which he pledged and hypothecated unto the First Guaranty Bank of Tangi-pahoa Parish, among other securities,
“Act of Pledge dated April 30, 1973 $155,000.00 collateral mortgage dated 4-30-73 ...”
(3) A $275,764.67 promissory note dated June 28, 1974 payable in one year signed by Dr. Alford, the note indicating that it was secured by “Collateral Pledge Agreement # 244.”
(4) Collateral Pledge Agreement # 244 dated June 28,1974 signed by Dr. Alford, by which he pledged and hypothecated unto the First Guaranty Bank of Tangi-pahoa Parish among other securities
“Act of Pledge dated April 30, 1974 $155,000.00 collateral mortgage dated 4-30-74 ...”
(5) A $28,000.00 promissory note dated June 30, 1975 payable August 7, 1975 signed by Dr. Alford, indicated that it was secured by the “C.P.A. # 244.”

When Dr. Alford defaulted on payment of his obligations the bank filed a petition against him and his wife, Mrs. Alford, in solido for the sums of $275,764.67 and $28,-000.00 under respective promissory notes referred to hereinabove, together with the interest due thereon, attorney’s fees and costs. In that petition the bank also contended that it was the holder of a collateral mortgage note dated April 30, 1973 executed by both defendants.

Mrs. Alford filed a motion for summary judgment seeking dismissal of the bank’s claim against her on the two notes, and a petition for a writ of mandamus seeking to have the collateral mortgage cancelled. The trial judge rendered separate judgments granting relief as to both matters. He dismissed the bank’s claims against Mrs. Alford and issued the writ of mandamus directing the clerk of court to cancel the collateral mortgage. Both rulings were affirmed by the Court of Appeal. 359 So.2d 700 (La.App. 1st Cir. 1978). This Court granted writs. 360 So.2d 1349 (La.1978).

The bank in its assignment of errors complains that since genuine issues of material fact existed, the Court of Appeal erred in affirming summary judgment. It urges that Mrs. Alford was indeed personally liable on the obligation sued on, and contends that the Court of Appeal should not have affirmed the trial court’s ordering the clerk of court to cancel the Alford collateral mortgage from the court records.

The latter contention, which attracts our chief interest in this opinion, was the claim which prompted our granting writs in this case.

In addressing the issue presented, a brief review of the character of collateral mortgages will be helpful. A mortgage is an accessory right which is granted to the creditor over the property of another as security for the debt. La.Civ.Code arts. 3278, 3284. Mortgages are of three types: conventional, legal and judicial. La.Civ. Code art. 3286. Within the area of conventional mortgages, three different forms of mortgages are recognized by the Louisiana statutes and jurisprudence: an “ordinary mortgage” (La.Civ.Code arts. 3278, 3290); a mortgage to secure future advances (La. Civ.Code arts. 3292, 3293); and a collateral mortgage. See Thrift Funds Canal, Inc. v. Foy, 261 La. 573, 260 So.2d 628 (1972). Unlike the other two forms of conventional mortgages, a collateral mortgage is not a “pure” mortgage; rather, it is the result of judicial recognition that one can pledge a note secured by a mortgage and use this pledge to secure yet another debt.

A collateral mortgage indirectly secures a debt via a pledge. A collateral mortgage consists of at least three documents, and takes several steps to complete. First, there is a promissory note, usually called a collateral mortgage note or a “ne varietur” note. The collateral mortgage note is secured by a mortgage, the so-called collateral mortgage. The mortgage provides the creditor with security in the enforcement of the collateral mortgage note.

Up to this point, a collateral mortgage appears to be identical to both a mortgage to secure future advances and an ordinary mortgage. But a distinction arises in the collateral mortgage situation because money is not directly advanced on the note that is paraphed for identification with the act of mortgage. Rather, the collateral mortgage note and the mortgage which secures it are pledged to secure a debt.

Clearly, the mortgage at issue in this matter is a collateral mortgage. On the face of both the collateral mortgage note and collateral mortgage is typed the following language:

“This is a collateral note secured by a collateral mortgage and may be placed as collateral security for any hand note or notes . . . ”

A collateral mortgage note may be pledged to secure future obligations. In that event full payment of a given obligation will not extinguish the collateral mortgage note and accompanying mortgage. (And in such cases the collateral mortgage will have a ranking from the initial pledge. La.Civil Code, art. 3158.)

The question in this case is whether Mrs. Alford did in fact pledge her collateral mortgage note to secure any debt other than the $155,000.00 hand note executed by Dr. Alford on April 30,1973. It is apparent to us that she did not.

The collateral mortgage note and collateral mortgage admittedly contained the identical provision quoted hereinabove by which Mrs. Alford acknowledged that the note may be placed as collateral security for any hand note or notes and that the note may be issued and reissued without being extinguished (and that its validity will not be affected by the fact that the original indebtedness for which it was issued is paid.)

That the note may be reissued does not require the conclusion that it was.

In fact the collateral note was not reissued (i. e. there was no second or subsequent pledge by Mrs. Alford of the note) and it was not placed as collateral by Mrs. Alford for any hand note or notes other than the one specifically named in the only pledge agreement she signed, the $155,-000.00 hand note executed by Dr. Alford on April 30, 1973.

That the collateral note was in effect a negotiable bearer instrument, a matter which we initially found troubling, is of no moment. It was not a debt instrument but a security device, a pledge instrument. And it was not properly pledged to secure either of the two obligations upon which the bank bases its suit.

The fact that the collateral mortgage note was bearer paper does not alter or affect Mrs. Alford’s position in this case because Dr. Alford was never a holder of the collateral mortgage note (thus, neither by virtue of ownership nor possessory interest could he have pledged it, at least not after the April 30, 1973 Act of Pledge signed by his wife and himself) and the bank had full knowledge of the true ownership of the instrument, insofar as it represented Mrs. Alford’s obligation, through the specially written pledge agreement. The bank came into possession of the collateral mortgage note by virtue of the Act of Pledge dated April 30, 1973, which clearly limited the pledge of the collateral mortgage note by Mrs. Alford to secure the specific obligation of Dr. Alford evidenced by the $155,000.00 hand note. When the obligation on the $155,000.00 hand note was extinguished, as it clearly was, the Bank continued to possess the collateral mortgage note as a mere depositary, fully cognizant of how and under what conditions and limitations it possessed the collateral mortgage note. Dr. Alford had no authority to re-pledge Mrs. Alford’s collateral mortgage note for any other personal or community obligations, and the Bank as a party to the April 30, 1973 pledge agreement should have been fully aware that he had no such authority.

Mrs. Alford did not give the collateral mortgage note to Dr. Alford for his use in providing security for his obligations. To the contrary Mrs. Alford personally pledged the collateral mortgage note, her separate and paraphernal property, as security for a certain limited obligation. Without destroying the nature of the instrument as a collateral mortgage note Mrs. Alford could have done little more to limit the pledge than to recite in writing that the bank should accept the collateral mortgage note in pledge under the terms and conditions that the pledge secure the obligation on a certain debt note executed by Dr. Alford.

The bank’s retention of the collateral mortgage note after extinguishment of the ancillary debt note (or hand note), without either an outset pledge to secure future obligations or a subsequent pledge by the obligor on the collateral note (Ms. Alford, that is) gives the bank no security interest in the collateral mortgage note. If this were not the case any party, even with the bank’s full knowledge of the circumstances and acquiescence therein, could pledge, without any interest therein, the collateral mortgage of another to secure his own obligation without the consent of the obligor on the collateral mortgage note, simply because the obligee-bank has possession of and has not returned a collateral mortgage note pledged on an earlier extinguished obligation. It goes without saying that this cannot be.

An analogous case is Durham v. First Guaranty Bank, La.App., 331 So.2d 563. There Mr. Durham executed a $20,000.00 collateral mortgage note which was pledged to secure a hand note of $3,500.00. The latter was later paid. The First Guaranty Bank retained possession of the collateral mortgage note. The Bank contended that the collateral mortgage note also secured a $17,000.00 note of a partnership of which Mr. Durham was a member, but it was unable to point to an Act of Pledge of the collateral mortgage note to secure the latter debt. The court stated:

“However the $17,000 note sued upon in the instant case does not contain any such reference to the collateral mortgage and note. There is absolutely no connexity between it and the mortgage security.”
* * * * * *
“The pledge of a collateral mortgage note to secure any indebtedness is a contract, LSA-C.C. Art. 3133. The pledge secures only that debt or debts contemplated in the contract between the pledgor and the pledgee, (citations omitted) (emphasis added).
* * * * * if!
“Because of their very nature and function, security devices should be strictly construed . . . Yet even a liberal interpretation of the instant collateral mortgage and accompanying note would
not convince this court that the note sued upon was connected to and secured by said collateral mortgage.”

Nor are the provisions of Civil Code Article 3158 concerning retention and reis-suance of the pledge instrument any comfort to the bank or any support for its position that retention alone of the item pledged here effects the continued viability of the pledge to secure any future obligations that might be contracted. The pertinent part of Article 3158 applies only to obligations or liabilities of the pledgor to the pledgee. See underscoring in footnote 3. In the instant case the pledgor Mrs. Alford was not the obligor on the notes which the bank contends are secured by the pledged instrument.

Since Mrs. Alford’s pledge of the collateral mortgage note recited that it was to secure only the $155,000.00 hand note of April 30, 1973 and no other past or future obligations of Dr. Alford, the bank cannot assert a security interest in the collateral mortgage note with respect to Dr. Alford’s two obligations (promissory notes of $275,-764.67 and $28,000.00) incurred on June 28, 1974 and June 30, 1975, respectively. For these reasons it was legally correct for the trial court to issue the writ of mandamus ordering cancellation of the collateral mortgage.

With respect to the propriety of the trial court’s granting Mrs. Alford’s motion for summary judgment, the rulings of the trial court and the Court of Appeal are also correct. Mrs. Alford has no personal liability on the two notes sued upon. She did not sign either of them. As the Court of Appeal observed, Mrs. Alford’s only actions were the execution of (1) the collateral mortgage on her separate property, (2) the $155,000.00 collateral mortgage note (a conditional rather than primary obligation) and (3) the Act of Pledge of April 30, 1973. Inasmuch as Dr. Alford’s $155,000.00 hand note (to secure which Mrs. Alford executed the three instruments comprising the collateral security) has been extinguished, there is no obligation on the part of Mrs. Alford in connection with the collateral mortgage note. And inasmuch as she is not a debtor on either of the two notes sued upon she may not be held personally liable thereon.

Decree

For the above and foregoing reasons the judgments appealed are affirmed at relator’s cost.

AFFIRMED.

DIXON, J., dissents.

      . For a discussion of issuance and reissuance, see Nathan and Marshall, The Collateral Mortgage, 33 La.L.Rev. 497, 504-06 (1973).

      . It has been suggested that Mrs. Alford, by delivering her collateral mortgage note (a bearer instrument) to the bank, was placing it as security for Dr. Alford’s $155,000.00 hand note and future advances by the bank to Dr. Alford. The argument is that the language in the pledge instrument, that she placed it as security for the $155,000.00 hand note, was somehow unintended surplus language — because the $155,-000.00 note was simply the hand note of coincident date. This cannot be so because the Civil Code denominates a pledge a contract (Article 3133) and this contract, reduced to writing, unambiguously providing the pledge to be security only for “said note”, clearly manifests the intent that only the $155,000.00 hand note be secured. La.Civil Code art. 1945(3).

      . The text of article 3158 provides in pertinent part:
      “[I]t is further provided that whenever a pledge of any instrument or item of the kind listed in this article is made to secure a particular loan or debt, or to secure advances to be made up to a certain amount, and, if so desired or provided, to secure any other obligations or liabilities of the pledger to the pledgee, then existing or thereafter arising up to the limit of the pledge, and the pledged instrument or item remains and has remained in the hands of the pledgee, the instrument or item may remain in pledge to the pledgee or, without withdrawal from the hands of the pledgee, be repledged to the pledgee to secure at any time any renewal or renewals of the original loan or any part thereof or any new or additional loans, even though the original loan has been reduced or paid, up to the total limit which it was agreed should be secured by the pledge, and, if so desired or provided, to secure any other obligations or liabilities of the pledger to the pledgee, then existing or thereafter arising, up to the limit of the pledge, without any added notification or other formality, and the pledge shall be valid as well against third persons as against the pledger thereof, if made in good faith; and such renewals, additional loans and advances or other obligations or liabilities shall be secured by the collateral to the same extent as if they came into existence when the instrument or item was originally pledged and the pledge was made to secure them.” (Emphasis provided)

      . Mere retention of the thing pledged, i. e. the collateral mortgage note, does not determine the continued existence of the pledge. See Durham v. First Guaranty Bank, supra; cf. Scott v. Corkern, 231 La. 368, 91 So.2d 569 (1956).


source: Caselaw Access Project

author:
SUMMERS, Justice.
      DENNIS, J.,

license: Public Domain

text:
    LOUISIANA STATE BAR ASSOCIATION v. Overton C. THIERRY.
    No. 56628.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
    Lolis E. Elie, New Orleans, for defendant-respondent.
    Leonard Führer, Chairman, Alexandria, Wood Brown III, New Orleans, Sam J. D’Amico, Baton Rouge, Harold J. Lamy, New Orleans, Edgar H. Lancaster, Jr., Tal-lulah, John F. Pugh, Thibodaux, A. Russell Roberts, Metairie, John B. Scofield, Lake Charles, Thomas O. Collins, Jr., New Orleans, Executive Counsel, Louisiana State Bar Ass’n Committee on Professional Responsibility, for plaintiff-petitioner.
   DISCIPLINARY PROCEEDING

SUMMERS, Justice.

These proceedings under the Court’s original jurisdiction arose out of felony convictions of Overton C. Thierry, a member of the bar of this State, in the United States District Court by the Eastern District of Louisiana. The grand jury indictment charges that during early 1973 Thierry and a codefendant, one Henry Joshua, endeavored to obstruct the administration of justice by Henry Joshua testifying falsely as an alibi witness for Thierry’s client in a criminal prosecution for robbery.

After his trial a verdict of guilty was rendered against Thierry on two counts: “Conspiracy to commit an offense or to defraud the U.S.,” a violation of Section 371 of Title 18 of the United States Code, and “influencing or injuring officer, juror or witness”, a violation of Section 1503 of Title 18 of the United States Code.

He was sentenced to serve three years on each count, to run concurrently, and to be eligible for parole. The court recommended incarceration at Eglin Field. On appeal his convictions and sentences were affirmed by the Fifth Circuit. Thereafter he served his sentence, being paroled after eight months incarceration. On December 5, 1977 Thier-ry was discharged from parole.

Pursuant to Section 8 of Article XV of the Articles of Incorporation of the Louisiana State Bar Association, as approved and adopted by this Court, and based upon Thi-erry’s convictions, the Committee on Professional Responsibility of the Louisiana State Bar Association petitioned this Court to suspend Thierry from the practice of law in Louisiana. On September 4, 1975 an order was issued to that effect, directing also that the Committee institute the necessary disciplinary proceedings against Thierry seeking disbarment or other appropriate remedy.

On October 16, 1975 the Committee filed its petition and Thierry responded admitting his convictions and sentences, but he denied that he was morally unfit to practice law and alleged that he was investigating new evidence which would show that he was not guilty of the crimes for which he was convicted. He asserted that he did possess the moral and professional fitness to practice law.

Issue having been joined, the Honorable Raymond H. Kierr was appointed Commissioner to take evidence and report to this Court his findings of fact and conclusions of law. After due notice the hearing was completed on August 25, 1976, and the Commissioner filed his report on May 15, 1978. In a supplemental report of May 16, 1978 the Commissioner recommended the suspension of respondent Thierry from the practice of law for a period of three years. On June 15,1978 respondent filed a concurrence in the Commissioner’s finding of fact and conclusions of law. After oral arguments in this Court on October 9, 1978 the matter was submitted.

Respondent concedes that under Section 8, Paragraph 7(d) of Article XV of the Articles of Incorporation of the Louisiana State Bar Association, the sole issue at a hearing based on respondent’s conviction of a crime shall be “whether the crime warrants discipline, and if so, the extent thereof.” At the hearing respondent may offer evidence only of mitigating circumstances “not inconsistent with the essential elements of the crime ... as determined by the statute defining the crime.” Respondent contends, however, that facts surrounding the commissioner of the offense insofar as they reflect upon the character or quality of the criminal conduct or complicity therein are admissible on the issue of moral culpability.

The Commissioner heard the testimony of eight New Orleans judges summoned by respondent. Although they knew defendant had been convicted few of them were acquainted with the facts and circumstances of the offense. It was their consensus that respondent is a moral and ethical person, and that notwithstanding his conviction respondent is a person presently fit to resume the practice of law.

. Lawyers, ministers, physicians and laymen also testified on behalf of respondent, all attesting to his high morals, competence and good character. The evidence was impressive.

When respondent took the stand in his own behalf, his attorney asked him to present a brief sequence of the events which involved him in the James case and the conduct resulting in his conviction. Counsel for the Committee objected to any evidence that would be inconsistent with the elements of the crime for which respondent was found guilty. He objected that evidence of that nature would lead to the trial of the case again. With the understanding that counsel for respondent would only elicit facts relating to aspects of the trial evidence which were material to mitigation or mitigating circumstances, the Commissioner overruled the objection.

Whereupon respondent testified at length to the circumstances surrounding his involvement in the case. He explained that during 1973 he was requested by the wife of Nolan James to confer with her incarcerated husband. James, a career soldier stationed in the District of Columbia as a member of the Presidential Honor Guard, persistently protested his innocence concerning the bank robbery charged to him, representing that he was not at the scene. Impressed by James’ apparent sincerity, respondent went to Vacherie, Louisiana, to interview James’ parents and received confirmation from them that the purpose of their son’s trip from Washington D.C., was to borrow money from his father.

While in Louisiana, according to respondent, Nolan James told him that he was fishing at the time of the bank robbery at a place where he met one Henry Joshua. Joshua’s name was furnished to respondent as an alibi witness. By his testimony respondent sought to establish his innocence of suborning the witness Joshua. It developed at the trial, however, that respondent was previously acquainted with Joshua and at pertinent times during his investigation of the James case he made payments to Joshua which he said were for services performed by Joshua relating to an insurance business. Ultimately Nolan James confessed that he committed the bank robbery, denying that he had met the alibi witness Joshua, or ever knew him.

The purpose of respondent’s testimony and the thrust of his defense, as the Commissioner found, is not a contention by him of error in the federal trial and appellate courts. His position appears to be that in his enthusiasm he acted zealously in the interest of his client as well as out of naivete or ignorance; or, as the assertion was expressed by his counsel, respondent “was overzealous” and, in a situation where a more experienced lawyer would perhaps have considered the impropriety of his conduct and “have seen [it] as a stop sign”, but respondent was unaware and demonstrated a “lack of caution.”

Respondent was a graduate of the University of Southwestern Louisiana with the degree of Bachelor of Science. He was drafted in 1958 and released from military service by an occupational discharge under honorable conditions to pursue graduate studies at Louisiana State University. Other educational attainments were a Masters Degree in biological sciences from Loyola University in 1965, graduate study at the University of California in Berkley, teaching at Southern University in New Orleans, and attending law school at night beginning in 1965 until he received his law degree from Loyola University and was admitted to the bar in 1969.

When he began the practice of law respondent volunteered to handle criminal cases for indigent persons in the juvenile courts of New Orleans. He practiced as an associate with an experienced law firm, principally in the field of civil law. Prior to the subornation of the witness in the James case he had tried at least three jury cases and a number of lesser criminal cases in the Orleans Parish Criminal District Court, and one jury trial in the Federal District Court.

So basic to the criminal justice system of this country is the sanctity of the oath of witnesses and the integrity of lawyers that these principles cannot be unknown to or violated by, the least learned or experienced in the profession of law. Without a fervent regard for them our system of justice must come to ruin. While they are intangibles these principles are the bedrock upon which the concept of American justice rests.

Respondent’s education and experience in the law was such that his actions cannot be condoned by his purported zealous attitude, naivete or limited practice, or this Court’s compassion for him in this ordeal. Without a firm attitude in these matters this Court would be untrue to its obligation and responsibility to maintain and uphold the high ethical standards of the profession of law and the administration of justice.

For the reasons assigned, it is ordered, adjudged and decreed that the name of Overton T. Thierry, respondent herein, be stricken from the Roll of Attorneys and his license to practice law in the State of Louisiana is revoked effective September 4, 1975, respondent to bear all costs of this proceeding.

DENNIS, J.,

concurs, but is of the opinion that this court should fully consider and articulate its policy in determining when disbarments shall be retroactive. In my opinion, some previous disbarments should have been treated equally. E. g., LSBA v. Phillips, 363 So.2d 667.


author: CALOGERO, Justice. SANDERS, Chief Justice MARCUS, Justice

text:
    STATE of Louisiana v. Chester J. ALLIEN.
    No. 61979.
    Supreme Court of Louisiana.
    Dec. 15, 1978.

      Jack F. Owens, Jr., Reeves & Owens, Harrisonburg, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., W. C. Falken-heiner, Dist. Atty., William G. Avery, 1st Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant, Chester J. Allien, was charged by bill of information with two counts of distribution of a controlled substance (marijuana) to persons under the age of eighteen in violation of R.S. 40:966 and R.S. 40:981(C). After a jury trial, he was convicted and sentenced to serve four years at hard labor. On this appeal of the conviction and sentence, defendant relies on seven assignments of error. Because we find reversible error in assignment seven, we find it unnecessary to consider the remaining assignments, other than the assignments three and five.

In assignment seven defendant argues that the trial judge erred in denying his motion for a new trial in which he contended that the state failed to present any affirmative evidence that the defendant committed the crime charged. He argues that the only evidence adduced at trial which even arguably related to his alleged commission of the crime was the before trial, out-of-court statements of two minor girls which were recanted at trial and the testimony of two deputies that the girls had in fact made the earlier out-of-court statements.

Under Article 5, § 5(C) of the Louisiana Constitution of 1974, the scope of this Court’s appellate jurisdiction in criminal matters extends only to questions of law. An assignment of error based on the denial of a motion for a new trial which contends that there is no evidence of the crime charged does present a question of law which is subject to this Court’s review. State v. Thompson, 366 So.2d 1291 (La.1978); State v. Williams, 354 So.2d 152 (La.1977). Because the basis for defendant’s written motion for a new trial was that “the state failed to present any affirmative evidence,” this issue is properly before the Court.

The testimony at trial revealed the following facts. Two minor teen-aged girls were arrested for shoplifting and possession of marijuana on December 29, 1976. In exchange for immunity from prosecution on both charges, they agreed to make statements revealing the source of the marijuana. One minor stated that she purchased a “bag” of marijuana from the defendant. In her statement the other minor asserted that the defendant had given her the two marijuana cigarettes found on her at the time of her arrest. When called by the state to testify at defendant’s trial, each girl admitted that she had made an earlier statement implicating the defendant. However, each of them denied the truth of the respective statements. The first girl testified that she made the statement only because of pressure from the deputies and her family, while the second indicated that her statement was motivated by the offer of immunity from the charges of shoplifting and possession of marijuana. The trial judge found the girls to be hostile witnesses and allowed the state to impeach the in-court testimony with the prior inconsistent statements which implicated the defendant. There was no request from the defendant that a limiting instruction be given the jury. Each witness had admitted having made the earlier statement but testified that it was false, that defendant had not sold or given either of them the marijuana.

Louisiana Revised Statute 15:487 provides: “No one can impeach his own witness, unless' he have been taken by surprise by the testimony of such witness, or unless the witness show hostility toward him, and, even then, the impeachment must be limited to evidence of prior contradictory statements.” Although prior inconsistent statements may be used by a party to impeach his own witness, the effect of the prior inconsistent statement is limited by Louisiana jurisprudence. This Court has consistently held that a prior inconsistent statement of a witness cannot be admitted as substantive evidence of the truth of its content; the effect of its admissibility is limited to impeaching the credibility of the witness and his testimony. State v. Boyd, 359 So.2d 931 (La.1978); State v. Williams, 331 So.2d 467 (La.1976); State v. Rocco, 222 La. 177, 62 So.2d 265 (1952); State v. Robinson, 52 La.Ann. 616, 27 So. 124 (1900); State v. Reed, 49 La.Ann. 704, 21 So. 732 (1897).

In State v. Barbar, 250 La. 509, 197 So.2d 69 (1967), we recognized that allowing a prior inconsistent statement to go before a jury without limiting instructions is so highly prejudicial to the defendant that even absent a request for limiting instructions, it was reversible error for the trial judge not to caution the jury as to the statement’s limited purpose. At the state’s urging we re-examined Barbar in State v. Ray, 259 La. 105, 249 So.2d 540 (1971), reaffirmed the rule that prior inconsistent statements are admissible only on the issue of credibility and not as substantive evidence, but concluded, at least for prospective application, that in the absence of a defense request a trial court’s failure to give the instruction concerning the limited effect of the prior inconsistent statement would not constitute reversible error.

For these reasons, and because defendant here did not request the instruction or object to the court’s failure to so instruct, defendant’s assignments of error three and five by which defendant complained of the trial court’s failure to charge the jury on the limited effect of prior inconsistent statements are without merit. There is no reversible error in the ordinary situation ascribable to a jury’s entertaining the prior inconsistent statements and, without the limited effect instruction, giving weight to the substance of the prior statements.

Defendant’s assignment seven, however, presents an entirely different question. May defendant’s conviction be permitted to stand where the state’s entire case consists of a pair of witnesses who testify under oath that (1) defendant did not sell or give them the marijuana, (2) they did indeed previously state that defendant had done so, and (3) those earlier accusations were false? A related question is whether under these circumstances it matters that defendant’s attorney, as in this case, did not object to testimony concerning, and the introduction of, the prior statements, and did not request the limiting instruction.

Our answer to each of these two questions is in the negative.

Prior inconsistent statements simply do not constitute substantive evidence. This proposition is not undermined by State v. Ray, supra. That case did not hold the contrary, but rather simply held that a defendant will have to suffer the possible prejudice of a jury’s considering the content of a prior inconsistent statement where his attorney, not asking for the instruction, may create a trap for the unwary judge to the prejudice of the fair and efficient administration of justice. In the ordinary case, unlike this one where there is no evidence implicating defendant independent of the prior inconsistent statement, the law will in effect suffer the risk of the jury’s possibly crediting the state’s case with supplemental evidence which ought not be substantively considered, for the reason that defendant’s attorney has not availed himself of a limited effect instruction which is his for the asking.

Furthermore defendant cannot be assumed to have conceded the substantive use of the statement by failure to object to its introduction because a timely objection to its introduction would properly have been overruled. The statement was admissible, although admittedly for the limited purpose of impeachment.

There is another state contention which we must address. Before introduction of the prior contradictory statements of the two young female witnesses, the state presented the testimony of Officers Tolar and Powell that they had quizzed the two young ladies and had been told by them that they had received the marijuana from the defendant. At that point there was no objection to this testimony by defense counsel. In the ordinary case hearsay evidence not objected to constitutes substantive evidence. 79 A.L.R.2d 890-957; 29 Am.Jur.2d Evidence, § 494, p. 552; 30 Am.Jur.2d § 1103, p. 268. Nonetheless in a case such as this a defendant should not be convicted on the strength alone of the unobjected to testimony of the two police officers concerning accusatory prior statements of witnesses which are recanted by those same witnesses at trial. The hearsay in this case is much too unreliable to serve as the exclusive evidence prompting the defendant’s conviction simply on the strength of his failure to lodge a contemporaneous objection.

In addition the outset testimony of the police officers from the standpoint of the state’s intentions was in reality impeachment testimony, for the state knew or suspected prior to trial, that these young girls were going to recant the earlier statements that they had given the police officers. As the evidence on the hearing for a motion for new trial indicates, Deputy Tolar and the Assistant District Attorney spoke with these young ladies and their relatives on the day before trial. Not only did the girls at that conference not affirm that their earlier statements were true, but they vehemently protested having to testify in court inasmuch as they had been assured upon giving the earlier statements that they would not be called upon to testify (rather the information would simply be used to further the state’s investigation of defendant’s suspected criminal activities).

While not all jurisdictions agree on this question (see the contrary rule in In re Holmes, 379 Pa. 599, 109 A.2d 523 (1954), cert. denied 348 U.S. 973, 75 S.Ct. 535, 99 L.Ed. 757, an opinion involving a proceeding to determine delinquency of a minor), there is significant authority for the position that unobjected to hearsay without more will not support a conviction. Glenn v. United States, 271 F.2d 880 (6th Cir.1959); Pinkard v. United States, 99 U.S.App.D.C. 394, 240 F.2d 632 (Cir. 1956); People v. McCoy, 44 Ill.2d 458, 256 N.E.2d 449 (1970); People v. Hines, 12 Ill.App.3d 582, 299 N.E.2d 581 (1973). Akin to these cases are the following in Texas and Georgia where it has often been held that hearsay evidence is without probative value even if admitted without objection; Germany v. State, 235 Ga. 836, 221 S.E.2d 817 (1976), and cases cited therein; Lumpkin v. State, 524 S.W.2d 302 (Tex.Crim.1975).

For a result similar to our own here, see also U. S. v. Biener, 52 F.Supp. 54 (E.D.Pa.1943) in which the defense motion for arrest of judgment was granted when the state presented no evidence other than an impeaching statement. See also McCormick on Evidence, § 39, p. 78 (1954).

Even with respect to administrative proceedings where discerning application of ev-identiary rules should not be as strict as in criminal cases — although concededly the ev-identiary standard is normally substantial evidence rather than some evidence — there have been decisions holding that hearsay evidence alone is not sufficient to support an administrative decision. See for example Lee v. Brown, 148 So.2d 321 (La.App. 3rd Cir. 1963); William H. Van Vleck, Inc. v. Klein, 50 Misc.2d 622, 271 N.Y.S.2d 64 (1966); In re Lendall’s Case, 342 Mass. 642, 174 N.E.2d 422 (1961); Unemployment Compensation Board of Review v. Cooper, 25 Pa.Cmwlth. 256, 360 A.2d 293 (1976).

We thus hold (even more narrowly than some of the authorities cited herein-above, for anything more would be dicta in this case) that unobjected to hearsay which is the exclusive evidence of a defendant’s guilt of the crime or an essential element thereof, and where contradicted at trial by the sworn recantation of the out-of-court declarant, is no evidence at all. The instant inquiry thus is a question of law and within our criminal appellate jurisdiction.

Finding that the state presented no evidence that the defendant committed the crime charged, we conclude that defendant’s conviction must be reversed. Moreover, the Supreme Court has held that the double jeopardy clause of the Fifth Amendment, which is applicable through the Fourteenth Amendment to state criminal trials, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), precludes a second trial once the reviewing court has found a total absence of evidence as to an essential element of the crime charged. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); see State v. Thompson, 366 So.2d 1291 (La.1978), and State v. Liggett, 363 So.2d 1184 (La.1978). Accordingly, we are also compelled to enter a judgment of acquittal in favor of the defendant.

Decree

For the foregoing reasons, defendant’s conviction and sentence are reversed and set aside and the defendant is ordered discharged.

CONVICTION REVERSED; DEFENDANT ORDERED DISCHARGED.

SUMMERS, J., dissents.

SANDERS, C. J., and MARCUS, J., dissent and assign reasons.

SANDERS, Chief Justice

(dissenting).

Article 5, Section 5(C) of the Louisiana Constitution (1974) limits the jurisdiction of this Court in criminal matters to questions of law. Hence, this Court does not pass upon the sufficiency of the evidence. When there is some evidence to sustain a conviction, no matter how little, this Court cannot review its sufficiency. It is only when there is no evidence at all of an essential element of the crime that this Court may as a matter of law set aside a conviction. State v. Williams, La., 339 So.2d 728 (1976); State v. McDonell, 208 La. 602, 23 So.2d 230 (1945); State v. Gani, 157 La. 231, 102 So. 318 (1924).

Here, the law enforcement officers arrested two teen-aged girls for shoplifting. Each of them was found in possession of a quantity of marijuana. After a promise of immunity from prosecution, they agreed to inform the officers of the source of the marijuana. They then orally and in writing stated that the defendant delivered the marijuana to them, giving the time, place, and circumstances.

Prior to trial, the Assistant District Attorney discovered that, despite the grant of immunity, he could not rely on their in-court testimony. Nonetheless, he proceeded to trial.

The State’s first witness was Deputy Sheriff Jack H. Tolar. Without objection, he testified that he and Deputy Sheriff Rex Powell interviewed the girls after their arrest and each of them stated that they secured the marijuana from the defendant, Allien. [Tr. 47-48.]

Deputy Sheriff Powell was called, and he testified that each of the girls stated that they secured the marijuana from the defendant. [Tr. 59, 60.] This testimony was likewise admitted without objection. He also testified that the officers took written statements, and related the facts showing that the statements were voluntary.

The State then called the two girls. Each of them testified that they had made the statements attributed to them, but they were untrue.

The defense cross-examined all four witnesses, including the two girls.

Later, the State introduced evidence establishing that the substance was marijuana. It also introduced the written statement of each of the girls. The defense announced, “No objection.” [Tr. 79.]

It can be seen from the recitation of facts that the precise question is whether the hearsay statements made by the two young girls, admitted as substantive evidence without objection, is some evidence that defendant delivered the marijuana to them. I think so.

Almost uniformly, courts hold that hearsay evidence admitted without objection can be considered and given its natural probative effect. Alone or in connection with other evidence, hearsay evidence may support a verdict or finding. See, e. g., Wainer v. Wainer, 210 La. 324, 26 So.2d 829 (1946); Saulter v. Cousin, La.App., 294 So.2d 251 (1974); Karcher v. American Service Mutual Insurance Co., La.App., 159 So.2d 795 (1972); Chivers v. Couch Motor Lines, Inc., La.App., 159 So.2d 544 (1964); Dafoe v. Grantski, 143 Neb. 344, 9 N.W.2d 488 (1943); 29 Am.Jur.2d, Evidence, § 494, p. 552; 30 Am.Jur.2d, Evidence, § 1103, p. 268; 88 C.J.S. Trial § 153, p. 299; McCormick on Evidence, § 54, p. 125 (2d ed. 1972).

A collation of decisions from all jurisdictions supporting the rule is set forth in 79 A.L.R.2d 890.

The majority rule is correctly summarized in 30 Am.Jur.2d, Evidence, § 1103, pp. 268-269 as follows:

“Although hearsay evidence may, as a rule, be incompetent and inadmissible to establish a fact, such incompetency and inadmissibility may be waived by failure to object thereto, in which case it is almost uniformly held that it may be considered, if relevant, and may be given probative, or its natural probative, effect, as if it were in law competent evidence. Accordingly, it has been held that hearsay evidence which would be inadmissible if objected to but which is admitted without objection may properly be considered by the trier of facts, and that it should be considered by the trial court in passing upon a motion for a directed verdict, a motion to set aside a verdict for insufficiency of evidence, or a motion for nonsuit. Hearsay evidence which has been admitted without objection has also been held entitled to consideration by an appellate court in support of the trial court’s findings, and in support of a verdict or judgment of conviction in a criminal case.”

In his treatise on evidence (§ 54, pp. 125-126), McCormick formulates the applicable rule as follows:

“The incompetent evidence, unobjected to, may be relied on in argument, and alone or in part may support a verdict or finding.”

The probative-value rule is stronger in the present case, because the individuals who made the statements appeared as witnesses and were subject to defense cross-examination. See Stevens v. Mirakian, 177 Va. 123, 12 S.E.2d 780 (1941); A.L.I. Model Code of Evidence Rule 503(b); Uniform Rules of Evidence Rule 63.

In my opinion, the majority’s postulation that a timely objection to the admission of the statements would properly have been overruled since the statements were admissible for impeachment purposes is in error. The record discloses that the statements were introduced as substantive evidence beginning with the State’s first witness. The State laid no prior impeachment foundation. See LSA-R.S. 15:493.

Under accepted constitutional doctrine, there is no denial of confrontation here, since the individuals who made the statements appeared as witnesses and were subject to cross-examination. See Nelson v. O’Neill, 402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222 (1971); California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970).

The majority has apparently adopted the rule followed by only two states, Georgia and Texas, that hearsay evidence, even when admitted without objection, is no evidence at all. Apart from being a weak minority position, the holding is contrary to our own jurisprudence. See Wainer v. Wainer, supra; Saulter v. Cousin, supra; Olivers v. Couch Motor Lines, Inc., supra; Gray v. Great American Indemnity Company, supra.

The majority relies upon State v. Romero, 67 N.M. 82, 352 P.2d 781 (1960) and a series of decisions involving administrative proceedings. These decisions are inapposite. In each of them, the court was vested with jurisdiction to review the facts to determine whether there was “sufficient evidence” or “substantial evidence.” In none of these decisions was the court governed by the no-evidence rule.

For the reasons assigned, I respectfully dissent.

MARCUS, Justice

(dissenting).

The testimony of Officers Tolar and Powell that the two young ladies had told them that they had received the marijuana from defendant was not objected to. Hearsay evidence not objected to constitutes substantive evidence. Certainly, this is “some” evidence to support defendant’s conviction, the extent of our appellate review. Accordingly, I respectfully dissent.

      .Although not essential to our resolution of the legal issue here, we deem it worth noting that counsel for defendant was not oblivious during trial to the deficiency in the state’s case, nor completely mute insofar as alerting the trial judge to that deficiency (which counsel ultimately presented in his post-trial no evidence motion). Unable to move for a directed verdict in this jury trial (La.Code Crim.Pro. art. 778 as amended by Acts 1975 No. 527 § 1) counsel did, following the testimony of the two principal witnesses, move that the case be dismissed “due to the state’s failure to go forth.”

      . Inherently untrustworthy and insubstantial is how the Supreme Court of New Mexico described it in State v. Romero, 67 N.M. 82, 352 P.2d 781 (N.M.1960).

      . A transcript of this conference was introduced at the hearing on the motion for a new trial.


author: DENNIS, Justice.

text:
    STATE of Louisiana v. Theresa THIBEAUX.
    No. 62026.
    Supreme Court of Louisiana.
    Dec. 15, 1978.

      Howard L. Franques, Jr., Anatole J. Plai-sance, Plaisance & Franques, Lafayette, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., Byron P. Legendre, Asst. Dist. Atty., for plaintiff-appellee.
   DENNIS, Justice.

The principal issue presented in this case is whether, in a prosecution for murder, the trial judge may exclude, as being too remote in time from the offense, evidence of a specific act of violence committed by the deceased upon defendant, offered in support of defendant’s plea of self-defense, without considering other circumstances of the violent act to determine if evidence of it is relevant to show that the defendant committed the homicide in a reasonable belief that it was necessary to defend herself from imminent danger of death or great bodily harm.

Defendant, Theresa Thibeaux, was charged with fatally shooting her husband, Warren Thibeaux, Sr., in the course of a violent domestic quarrel. On November 15, 1976 the deceased, who was estranged from his wife, returned to her residence to see his children. An argument ensued when she refused to have sexual intercourse with him. .During a physical altercation which closely followed the verbal conflict, the deceased was mortally wounded by two shots fired from a pistol by the defendant.

The defendant was convicted by a unanimous jury of first degree murder, La. R.S. 14:30, and sentenced to life imprisonment at hard labor without benefit of probation, parole or suspension of sentence when the jury unanimously found the sentence of death inappropriate after a sentencing hearing. La. C.Cr.P. art. 905, et seq. On appeal, the defendant contends that the trial court erred in declining to consider the circumstances of the prior violent acts of the deceased, in addition to their distance in time from the moment of the affray, in determining whether evidence of them was relevant to the defendant’s belief of impending danger from the deceased. Finding merit in this contention, we reverse for the reasons hereinafter assigned.

The homicide was admitted, but the accused pleaded self-defense. At trial the defendant testified that during their quarrel when she threatened to remove the deceased’s clothes from the house he grabbed her by the hair and started beating her with his fists. She stated that he choked her and smothered her until she passed out. Upon regaining consciousness, she testified, the deceased told her that she may as well call the police because they were going to have to take her to the hospital. At this point, she said, he advanced toward her as she displayed the pistol and warned him to stop. According to the defendant, he ignored the warning and she had to shoot him twice to halt his attack.

The deceased was a large man, weighing about 190 pounds. The accused was a much smaller woman, weighing about 116 pounds.

Out of the presence of the jury defense counsel informed the court that in order to show defendant’s reasonable fear of death or great harm he intended to present evidence that the deceased, in previous violent attacks upon the defendant had beaten her with a gun, beaten her with a butcher knife, knocked out two of her front teeth, and cut her on the face. The prosecuting attorney objected to proof of these events on the ground that they were too remote in time from the crime to have any relevance. Without inquiring into the circumstances of the prior violent acts of the deceased, the trial judge informed defense counsel that he would be permitted to introduce evidence of such hostile demonstrations provided that they were not “so distant and of time or circumstantial frame” as to have no relevance to the matter before the court.

Before the jury, the defendant was permitted to describe two previous beatings administered to her by the deceased, occurring within nine months of the shooting. However, State objections were sustained to questions asked of her which prevented her from attempting to establish aggravated and simple batteries upon her by the deceased which had occurred between two and five years before the homicide. The court also excluded at the prosecution’s bidding photographs allegedly depicting injuries inflicted on the couple’s children by the deceased ten years prior to the killing. The State’s objections and the court’s rulings were based solely upon the distance in time of the violent acts from the moment of the affray. No further inquiry was made by the court into the possible relevance of this conduct by the deceased to the state of the defendant’s mind as to the necessity of defending herself.

Defense counsel objected to the court’s rulings on the ground that the evidence was relevant to a plea of self-defense, authorized by La. R.S. 14:20: “A homicide is justifiable: (1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger. * * * »

Under the plea of self-defense evidence or proof of specific acts or details or prior altercations between the deceased and the accused is admissible and relevant to show the reasonableness of the defendant’s fear of an impending attack or suffering great bodily harm at the time of the homicide. Such evidence tends to negative intent and is thus relevant and admissible under La. R.S. 15:441, which provides:

“Relevant evidence is that tending * * to negative the commission of the offense and the intent.”

State v. McMillan, 223 La. 96, 64 So.2d 856 (1953). Cf. State v. Lee, 331 So.2d 455 (La.1976).

The distance in time from the moment of the offense on trial does not necessarily destroy the capacity of the deceased’s violent act to create apprehension. Nor does the fact that the circumstance creating apprehension is a single act or series of acts, instead of general character. 2 Wigmore on Evidence, § 248 (3d ed. 1940). There may be instances where a violent act is too remote in time or of a greatly different quality than the one which the defendant accuses the victim of committing. In such cases, the trial court may, upon considering the circumstances of the violent act, decline, in the exercise of its sound discretion to admit introduction of its evidence. McMorris v. State, 58 Wis.2d 144, 205 N.W.2d 559 (1973); People v. Burress, 183 Colo. 146, 515 P.2d 460 (1973); cf. Commonwealth v. Stewart, 461 Pa. 274, 336 A.2d 282 (1975); 1 Wigmore on Evidence, § 198 (3d ed. 1940). However, because some acts should properly be excluded as irrelevant, and the fact that the temporal relationship between the violent act and the charged offense should be considered in determining relevance, do not justify a failure to consider all circumstances of the violent act or an arbitrary ruling excluding evidence solely due to its distance in time from the moment of the affray. The appropriate test is whether the act sought to be established reasonably tends to prove, considering both its time and quality, the defendant’s reasonable belief that he was in imminent danger of death or great harm and that his defensive action was necessary to save himself from that danger. People v. Miller, 39 N.Y.2d 543, 384 N.Y.S.2d 741, 349 N.E.2d 841 (1976); People v. Burress, 183 Colo. 146, 515 P.2d 460 (1973); cf. United States v. Burks, 152 U.S.App.D.C. 284, 470 F.2d 432 (1972) (four year interval not too distant); Barnes v. Commonwealth, 214 Va. 24, 197 S.E.2d 189 (1973) (the issue of remoteness, five years here, goes to the weight of the evidence and is a jury question); Jones v. State, 13 Md.App. 677, 284 A.2d 635 (1971); State v. Johnson, 270 N.C. 215, 154 S.E.2d 48 (1967); State v. Davis, 30 N.M. 395, 234 P. 311 (1925) (violent acts antedated charged offense ten-twelve years); State v. Ardoin, 28 N.M. 641, 216 P. 1048 (1923) (six-year interval not too remote); Annotation, 121 A.L.R. 380 (1939); 2 Wigmore on Evidence, § 248 (3d ed. 1940).

These principles are complementary to the long established rules helpful to prosecutors which hold that prior difficulties between the defendant and the victim are generally admissible in murder prosecutions; and that the remoteness in time between them and the alleged offense should properly go to the weight of the evidence not its admissibility. State v. Watson, 301 So.2d 653 (La.1974); State v. Burkhalter, 211 La. 342, 30 So.2d 112 (1947); State v. Ross, 160 La. 661, 107 So. 481 (1926). Moreover, this Court in adopting the rule that violent acts by the deceased are admissible to show the reasonableness of defendant’s apprehension, quoted with approval from text writers who assert that the “length of time intervening [between the alleged offense and the violent act] is only material as affecting the credibility and weight to be given to such evidence.” State v. McMillan, 223 La. at 101, 64 So.2d at 857.

Based on these authorities, the trial court committed error in excluding the evidence of violent acts by the deceased solely on the basis of their temporal relationship with the killing and in failing to determine whether, considering all of the pertinent circumstances, evidence of the acts was relevant to prove the defendant’s reasonable belief of impending danger from the deceased. Since a proper examination of the excluded evidence considering both its quality and chronology may reveal that it was fully relevant to prove the defendant’s reasonable belief of impending danger from the deceased, the judge’s rejection of the evidence without a proper determination of its relevance was prejudicial to defendant’s substantial rights, and the defendant is entitled to a new trial.

For the reasons assigned, the conviction and sentence are reversed and set aside, and the defendant is granted a new trial.

REVERSED; NEW TRIAL GRANTED.


author: DENNIS, Justice. DIXON, Justice

text:
    Joseph L. SMITH v. STATE of Louisiana, Through DEPARTMENT OF PUBLIC SAFETY.
    No. 62182.
    Supreme Court of Louisiana.
    Dec. 15, 1978.
    Michael C. Barron, Baton Rouge, Special Counsel, Dept, of Public Safety, for defendant-respondent.
    Charles W. Rea, Baton Rouge, amicus curiae in support of plaintiff-applicant.
    Donald R. Wilson, Marksville, for plaintiff-applicant.
   DENNIS, Justice.

The issue in this case is whether the five-year revocation of an habitual offender’s driving privileges under the Motor Vehicle Habitual Offender Law, La.R.S. 32:1471-81, is absolute or subject to modification for good cause within the court’s discretion.

Petitioner, Joseph L. Smith, was declared to be an habitual offender and ordered to surrender his driver’s license. Shortly afterward, in a separate proceeding, Smith brought the instant suit to have his driving privileges restored. Following a hearing in which it was found that Smith’s employment as an offshore diesel mechanic required him to respond at any hour to emergency calls, the district court restored limited driving privileges enabling Smith to fulfill his employment obligations. The Department of Public Safety appealed, and the court of appeal reversed. Smith v. Department of Public Safety, 358 So.2d 996 (La.App. 2d Cir. 1978). We granted writs to review the intermediate court’s interpretation of the Motor Vehicle Habitual Offender Law as prohibiting a district court from restoring any driving privileges to an habitual offender prior to the lapse of the five-year revocation period.

A summary of the Motor Vehicle Habitual Offender Law was set forth in State v. Love, 312 So.2d 675 (La.App. 2d Cir. 1975) by the court of appeal:

“Adopted in 1972, the Motor Vehicle Habitual Offender Law defines an habitual offender as one who has accumulated within a five year period three or more convictions of certain listed offenses, or ten or more convictions of certain other traffic offenses. When any person has accumulated sufficient convictions to meet the definition of habitual offender under the Law, the Department of Public Safety must submit transcripts of the convictions to the District Attorney for the Judicial District in which the person resides, who then is directed to file a petition alleging that the person is an habitual offender. The court then is required to issue a show cause order against the person involved, and, if at a hearing, it is found that the person is the one who was convicted and that the requisite convictions are included, then the person is ordered to surrender his driver’s license. He may not obtain a new license for five years or until a court authorizes it. An appeal may be taken from any final action or judgment entered under the Law in the same manner and form as appeals in civil actions. During the period his license is revoked and ordered surrendered, he is not entitled to drive a motor vehicle on the public highways and, if he does, he may be prosecuted and subjected to imprisonment for not less than one nor more than five years. The law provides also that if any person shall be convicted in Louisiana of an offense which would render him an habitual offender he shall, in addition to the penalty otherwise prescribed by law, be fined not less than $100 nor more than $1,000 and be imprisoned for not less than 30 days nor more than 12 months. R.S. 32:1471-81.” Id. at 676.

The section of the law providing for the revocation of an habitual offender’s driving privileges and the prerequisites for their restoration, La.R.S. 32:1479, stipulates as follows:

“No license to operate motor vehicles in this state shall be issued to an habitual offender, nor shall a nonresident habitual offender operate a motor vehicle in this state:
“(1) For a period of five years from the date of the order of the court finding such person to be an habitual offender; and
“(2) Until such time as financial responsibility requirements are met; and
“(3) Until upon petition, and for good cause shown, such court may, in its discretion, restore to such person the privilege to operate a motor vehicle in this state upon such terms and conditions as the court may prescribe, subject to other provisions of law relating to the issuance of operators’ licenses.”

The court of appeal concluded that the statute means that all three requisites must be met before an habitual offender may obtain a new license, viz., (1) the lapse of the five-year revocation period; (2) the fulfillment of financial responsibility requirements by the habitual offender; and (3) a court order, to be issued within judicial discretion upon a showing of good cause, restoring driving privileges upon such terms and conditions as the court may prescribe. The interpretation of the appeals court is a literal one, based primarily upon an exact reading of the conjunctive “and” joining the three subparagraphs, and adverting to nothing beyond the rules of grammar and the basic purpose of the statute to remove dangerous drivers from the highways.

In the construction of a civil statute, however, this Court has held that judges are not bound to a strict adherence “to the niceties of grammar rules,” but that it is their duty to discover, if possible, the intent of the lawmakers and “the true meaning of the law.” Edwards v. Daigle, 201 La. 622, 634, 10 So.2d 209, 212 (1942). In the same opinion this Court stated:

“* * * The Civil Code lays down the following rules for the ‘Construction of laws’:
“ ‘Art. 14. Usual Sense Gives Terms. The words of a law are generally to be understood in their most usual signification, without attending so much to the niceties of grammar rules as to the general and popular use of the words.’
“ ‘Art. 16. Context. Where the words of a law are dubious, their meaning may be sought by examining the context with which the ambiguous words, phrases and sentences may be compared, in order to ascertain their true meaning.’
“ ‘Art. 18. Reason and Spirit. The universal and most effectual way of discovering the true meaning of a law, when its expressions are dubious, is by considering the reason and spirit of it, or the cause which induced the Legislature to enact it.’ ”

In determining whether the words of a law are “dubious,” this Court has always followed the rule that it would not impute to a statute a meaning which would lead to an absurd result or extend a statute to a situation which the legislature never intended to be covered thereby. See, Emmons v. Agriculture Insurance Co., 245 La. 411, 158 So.2d 594 (1963), and cases cited therein.

The interpretation given the statute by the court of appeal would lead to unreasonable consequences which we cannot lay to the account of the legislature. Under the intermediate court’s construction, even after expiration of the five year revocation, the restoration of any driving privileges to a financially responsible habitual offender would rest solely within the sound discretion of the district judge. Since there is no statutory guide for the exercise of the district judge’s discretion, except for the requirement that the offender must show “good cause” for restoration, the judge would be forced to rely primarily upon his personal opinion in deciding whether the license should be restored and in formulating the terms and conditions of its reis-suance. Accordingly, the district judge could, within his sound discretion, withhold a license, or impose stringent conditions upon its restoration, for an indefinite period of time after the expiration of the five-year revocation. Considering the number of judges in the state who would be called upon to make such decisions, the “good cause” burden probably would vary substantially among judicial districts and individual judges. Some judges might think that restoration should be virtually automatic for a financially responsible offender who has suffered a five-year revocation, whereas other jurists may as a general rule view a declaration of habitual offender status as warranting a much longer revocation of driving privileges. Without the formulation of additional rules by the four circuit courts of appeal, and ultimately by this Court, it would be difficult to say when a district judge had abused his discretion in granting or denying, or in imposing terms and conditions upon, the restoration of driving privileges of financially responsible offenders who had completed their five-year revocations.

We do not think that the legislature intended to delegate to the courts the task of formulating rules for the regulation and licensing of financially responsible habitual offenders after completion of their revocation periods. Nor, in our opinion, did the lawmakers intend for the relicensing decision to be made without reference to any standard other than each judge’s notion of whether there is “good cause” to terminate revocation at the end of five years. We cannot attribute to the legislature the intention to commit such a vast area of legislative responsibility to the judiciary.

Accordingly, we conclude that an interpretation of the statute adhering strictly to the “niceties of grammar rules” leads to an absurd or unreasonable result making such a construction of the legislation dubious. Following the Civil Code rules for the construction of laws, therefore, we will seek the true meaning of the law by examining the context of the dubious wording and by considering the reason and spirit of the statute or the cause which induced its enactment.

From a reading of the statutory provisions as a whole it is evident that the lawmakers intended for an otherwise qualified financially responsible habitual offender to have the right to obtain a new license after the lapse of his five-year revocation period. The discretion granted courts to determine when good cause exists for a conditional restoration of driving privileges is restricted and may be exercised only during the revocation term. The statute requires the courts to play their customary role of providing limited relief in hardship cases, see, La.R.S. 32:415.1, and does not commit to them a carte blanche for the drafting of a post-revocation policy for the issuance of drivers’ licenses.

For the reasons assigned, the judgment of the court of appeal is reversed, and the case is remanded to the court of appeal for its further review to determine whether the district court acted within its discretion in finding that good cause exists for the limited restoration of Smith’s driving privileges during his revocation period. All costs are assessed to the respondent.

REVERSED AND REMANDED.

SUMMERS, J., concurs.

DIXON, J., concurs with reasons.

DIXON, Justice

(concurring).

I respectfully concur for the reason that the restoration by a court of the privilege of driving after a five year prohibition is not a judicial function, but a ministerial one.

        See, La.C.C. art. 17: “Laws in pari materia, or upon the same subject matter, must be construed with a reference to each other; what is clear in one statute may be called in aid to explain what is doubtful in another.”


author: DIXON, Justice.

text:
    Henry ARNOLD and John F. Robbert v. The BOARD OF LEVEE COMMISSIONERS OF the ORLEANS LEVEE DISTRICT, Guy LeMieux, the F. Edward Hebert Foundation and Ernest A. Carrere, Jr.
    Nos. 62385, 62453.
    Supreme Court of Louisiana.
    Dec. 15, 1978.

      John W. Haygood, Jones, Walker, Wae-chter, Poitevent, Carrere & Denegre, Me-tairie, for F. Ed. Hebert Foundation, defendant-respondent in No. 62453 and defendant applicant in No. 62385.
    Richard J. McGinity, McGinity & McGinity, New Orleans, for Bd. of Levee Com’rs, etc. defendants-applicants in No. 62453 and defendants-respondents in No. 62385.
    John F. Robbert, Garon, Brener & McNeely, New Orleans, for plaintiff s-respondents in Nos. 62385 and 62453.
   DIXON, Justice.

Plaintiffs Henry Arnold and John F. Rob-bert, residents and taxpayers in Orleans Parish, filed a taxpayer’s suit seeking declaratory and injunctive relief against the Orleans Levee Board and the F. Edward Hebert Foundation. The plaintiffs contended that a lease contracted between the Board and the Foundation, in which the Foundation was to lease at a nominal sum certain lakefront property belonging to the Board for the construction of a museum and a library named for Congressman Hebert, was in derogation of statutory prohibitions and municipal ordinances of the City of New Orleans. The district court initially sustained the defendants’ exception of no cause of action, but the Court of Appeal reversed the trial court on the ground that the Board was required to comply with the Public Lease Law, R.S. 41:1211 et seq., and remanded for further proceedings. 327 So.2d 495 (4th Cir. 1976). Application was made to this court for review, but was denied because the judgment was not final. 330 So.2d 318 (La.1976).

On remand the district court heard the case on the merits pursuant to a written stipulation of facts in which the defendants admitted that the contract did not comply with the Public Lease Law. Following the reasoning of the appellate court, the court thereafter declared the lease null and void and issued a permanent injunction against the defendants. The Court of Appeal affirmed the district court judgment on the basis of its first opinion in the matter, which it held to be the law of the case. 359 So.2d 748 (4th Cir. 1978). Defendants applied separately for writs to this court. Writs were granted and the cases consolidated to review the decisions of the lower courts. 360 So.2d 1350 (La.1978).

Applicability of the Public Lease Law

An essential determination is the relationship of the Public Lease Law, R.S. 41:1211 et seq., to the operations of the Orleans Levee Board in specified parts of Orleans Parish. Article 16, § 7(h) of the Louisiana Constitution of 1921 vested in the Orleans Levee Board all rights formerly held by the state to the bed and shores of Lake Pontchartrain within designated territorial limits which encompass the site in question. To ensure the orderly development of the lakefront, the Board was granted broad powers for developing the area:

“To enable the said Board to perform the work herein provided for and to assist in defraying the cost and expenses thereof, and to carry out the purposes of existing laws and this Article of the Constitution, the State of Louisiana hereby grants and releases to said Board the title of the State in and to all public property necessary for the purposes hereof and all lands reclaimed or filled in within any levee embankments, slopes, retaining walls, sea walls, and breakwaters constructed hereunder and in and to all lands lying within the territorial limits of said project and hereby releases said land from any public trust or dedication and said Board shall have jurisdiction, power and authority to sell and lease, or otherwise dispose of such portion of the lands reclaimed and other property acquired for the purpose of said improvement, except the lands herein required to be dedicated by it for public use, together with any building, improvements or other works constructed thereon, under such terms and conditions and by such methods as said Board may deem proper . . Art. 16, § 7(h), 1921 La.Const.

This provision was not included in the 1974 Constitution but was continued as a statute “. . . restricted to the same effect as on the effective date of this constitution,” by Article 14, § 16(A)(12). It was subsequently re-enacted by Act 729 of 1975 as R.S. 38:1235.2 with some minor stylistic changes.

It is the contention of the defendants that this provision exempts the Board from compliance with the Public Lease Law because the Board is granted discretion to dispose of the lakefront properties as it sees fit; that discretion might or might not accord with the Public Lease Law. In effect, the defendants take the position that R.S. 38:1235.2 is a special statute, the provisions of which prevail in case of any conflict with a statute of general applicability. Abbott v. Parker, 259 La. 279, 249 So.2d 908 (1971); Arata v. The Louisiana Stadium and Exposition District, 254 La. 579, 225 So.2d 362 (1969).

On the other hand, the plaintiffs are of the view that the provisions cited above have no such effect because no conflict exists between the special grant of authority to the Board and the general provisions of R.S. 41:1211 et seq. which are expressly made applicable to levee districts. They argue that the term “methods” in R.S. 38:1235.2 merely refers to the ways of disposing of the property mentioned earlier in the same sentence and has no bearing on the manner in which a specific agreement is contracted. Therefore, conclude the plaintiffs, the public policy of the state, which clearly favors competitive bidding for the lease of state property, and the legislative intent as embodied in the later enactment, the Public Lease Law, require that the differing provisions be reconciled in favor of public bidding, and that the lease in question be declared invalid.

In reaching a similar conclusion when the case was first before it, the Court of Appeal relied on the reasoning of Hall v. Rosteet, 247 La. 45, 169 So.2d 903 (1964), in which this court held that the Uniform Airport Law, R.S. 2:131 et seq. did not exempt the lease of a public airfield by the Calcasieu Parish Police Jury from the Public Lease Law. There the police jury contended that the special law exempted it from compliance with R.S. 41:1211 et seq. because no specific mention was made of public bidding and because the special law permitted longer leases than those allowed by the Public Lease Law. In rejecting this argument, we held the Public Lease Law applicable to leases of state property “in the absence of an express permissive provision in the special law that such leases could be negotiated without advertisement and competitive bidding.” 247 La. 45, 60, 169 So.2d 903, 908.

Although we agree that Hall v. Rosteet, supra, recites the rule of law applicable to the facts before us, we believe that the Court of Appeal was in error not to view the provisions of R.S. 38:1235.2 as establishing an exemption from the Public Lease Law. In reaching this conclusion, we take note of several decisions in which appellate courts have found an exemption from the Public Lease Law on the basis of statutory language no more express than that in the instant case.

In Kliebert v. South Louisiana Port Commission, 182 So.2d 814 (4th Cir. 1966), writ refused, 248 La. 1030, 183 So.2d 652 (1966) the Court of Appeal for the Fourth Circuit construed the constitutional provisions empowering the port commission to construct and acquire structures to include “the implied authority to negotiate contracts consistent with its purpose.” 182 So.2d 814, 818. The Court of Appeal for the Third Circuit followed the reasoning of Kliebert v. South Louisiana Port Commission, supra, in Wright v. Lake Charles Harbor and Terminal District, 188 So.2d 449 (3d Cir. 1966), writ refused, 249 La. 620, 188 So.2d 922 (1966). There the court held that the district could enter into a contract of lease without complying with the procedures of R.S. 41:1211 et seq., apparently on the basis of the district’s authorization “. . .to lease or sublease for processing, manufacturing, commercial and business purposes, lands or buildings owned, acquired or leased as lessee by it . . . ” Art. 14, § 31, La.Const.1921. A similar result was reached in Hebert v. Police Jury of West Baton Rouge Parish, 200 So.2d 877 (1st Cir. 1967), writ refused, 250 La. 1032, 201 So.2d 520 (1967), wherein the court determined that a lease entered into pursuant to the “Industrial Inducement Law” (R.S. 39:991-1001 and Art. 14, § 14 (b.3) of the 1921 Constitution) was valid despite the police jury’s failure to adhere to the requirements of the Public Lease Law.

From this review of the jurisprudence, it appears to us that the broad grant of authority to the Levee Board in disposing of property reclaimed from the lake bottom operates as an exemption to the general law requiring public bids before state lands can be leased. The phrase “under such terms and conditions and by such methods as said Board may deem proper . . .” indicates a plenary grant of authority to the Board to dispose of the property within the lakefront area in any manner which it deems appropriate under the circumstances, which includes a negotiated lease. To hold otherwise is to engraft onto the special powers granted the Board a proviso that they be exercised in accordance with the provisions of any general statute dealing with related subject matter which the legislature might subsequently pass. Such a construction is warranted neither by the language in question nor the history of the development of the New Orleans lakefront.

We therefore conclude that the Court of Appeal committed error in holding the lease in question invalid for failing to comply with the requirements of the Public Lease Law.

Other Arguments Advanced by the Plaintiffs

The plaintiffs have “ also argued that -the lease is invalid because its execution does not assist in defraying the expenses of the Levee Board’s reclamation projects, a derogation from the requirements of R.S. 38:1235.2. In addition, the plaintiffs contend that the annual payments of $1.00 per acre are insufficient to support a contract of lease, and that in effect the Board is donating or lending the land to the Foundation in violation of Art. 7, § 14(A) of the 1974 Constitution.

A reading of the statute belies the plaintiffs’ first contention. The phrase “to assist in defraying the cost and expenses thereof” refers to the state’s grant to the Board of its title in the lakefront property and is obviously a corollary to the statute’s first phrase, “[t]o enable the board to perform the work herein provided for.” The language in question is clearly not a condition placed on the Board’s activities in disposing of the reclaimed land. Although the plaintiffs refer to the case of Welsh v. Board of Levee Commissioners of Orleans Levee District, 168 La. 1037, 123 So. 705 (1929), as support for their position, that decision dealt with constitutional restrictions on the sequence of reclamation projects, and is not relevant to the issues at hand.

The second argument advanced by the plaintiffs also lacks merit. Although it is true that the price for a lease must be serious and not out of proportion to the thing’s value (C.C. 2464; Murray v. Barnhart, 117 La. 1023, 42 So. 489 (1906)), we think that the obligations imposed on the Foundation by the lease constitute serious consideration. Besides the nominal annual payment, the Foundation must construct a building at a minimum cost of $300,000, the design and structure of which are subject to the Board’s approval. The building will eventually become the Board’s property with no compensation due to the Foundation. The Foundation is also obligated to maintain the improvements during the lease term and to pay insurance premiums on any policies covering the improvements. Certainly the obligations assumed by the lessee are as great as those in City of New Orleans v. Disabled American Veterans, 223 La. 363, 65 So.2d 796 (1953), wherein this court refused to invalidate a lease upon similar arguments.

The plaintiffs have further alleged that the contract between the defendants violates R.S. 14:316, which forbids the naming of public buildings for living persons. The plaintiffs contend that the agreement in question amounts to a joint venture, whereby the Board donating the land and the Foundation constructing the building which will, at the agreement’s termination, be maintained with public funds.

R.S. 14:316 provides:

‘No public building, public bridge, public park, public fish or game preserve, or public wild life refuge built, constructed, and maintained in whole or in part with public funds and title to which stands in the name of the state or any of its subdivisions or in the name of any institution receiving its support in whole or in part from the state shall be named in honor of any living person.
The officer, officers, board, or commissioner in charge of a public building, public park, public fish or game preserve, or public wild life refuge named in honor of any person who is still living shall change the name and destroy, deface, or remove all plaques, signs, or other evidence of the old name appearing on the building, bridge, park, preserve, or refuge.
Whoever violates this Section or fails to perform the duties imposed by this Section shall be fined not less than one hundred dollars nor more than two hundred dollars and, in default of fine, imprisoned for not less than thirty days nor more than sixty days.”

It is well settled that “[a]n injunction should not be issued to prevent the commission of a crime, if the only reason for preventing it is that it is a crime.” City of New Orleans v. Liberty Shop, 157 La. 26, 28-29, 101 So. 798, 799 (1924). See also, Pick’s Auto Parts No. 2, Inc. v. Hodge’s Auto Parts, 334 So.2d 547 (4th Cir. 1976); Simon v. Southwest Louisiana Electric Membership Corp., 267 So.2d 757 (3d Cir. 1972), writ refused, 263 La. 625, 268 So.2d 680 (1972). Here the plaintiffs have advanced no reason why enforcement of the statute by criminal prosecution is not adequate in case of a violation. When the building is named, the proper authorities may then determine whether the lease of valuable state property at a nominal sum for the erection of the structure, named for a living person, is a use of public funds prohibited by the statute.

A final objection to the lease is that the Board had previously dedicated the land in question as a park to the City of New Orleans by Ordinance 2156 M.C.S., approved by the City Council on April 6, 1961. The plaintiffs contend that the dedication removed the Board’s, and indeed the City’s, authority to change the status of the property by leasing it to the foundation. However, the record does not reveal any response to this argument other than a general statement that not all the reclaimed land had to be dedicated for public use under the provisions of Art. 16, § 7(h) and its present embodiment, R.S. 38:1235.2. Because this issue has not been developed sufficiently for us to rule, the case is remanded to the district court for a determination of this question.

Accordingly, the judgment of the Court of Appeal is reversed and the case is remanded to the district court for proceedings, including responsibility for costs, not inconsistent with the views expressed herein.

      . Plaintiffs’ petition alleged violation of the Public Lease Law, R.S. 41:1211 et seq.; R.S. 14:316, which prohibits naming public buildings for living persons; and Art. 5, § 1:4(18) of the Comprehensive Zoning Ordinance of 1970 of the City of New Orleans.

      . The Court of Appeal noted that the plaintiffs had apparently abandoned the argument that the lease violated certain city ordinances. 327 So.2d 495, 501. The court also noted that the plaintiffs in brief argued that the “consideration” was insufficient to support the lease and that the land in question had previously been dedicated to the City as a park, although no such allegations were contained in the petition. The plaintiffs were allowed to amend and supplement the petition to advance the last two arguments.

      . “§ 1211. Lessor defined
      For the purposes of this Part, the term ‘lessor’ shall refer to and include the Register of the State Land Office, the commissioner of conservation, and any and all other branches, departments or agencies of the state, or any school district, levee district, drainage district, municipal or parochial subdivision of this state, or any penal or charitable institution, or state university or college, or other unit or institution, deriving its authority and powers from the sovereignty of the state.”
      “§ 1212. Lands which may be leased; purposes; lease of sixteenth section lands for agricultural purposes; negotiation of surface leases of school lands
      A. Any lessor may, through its governing authority, lease for trapping, grazing, hunting, agricultural and any other legitimate purposes whatsoever, other than for oil, gas or other mineral purposes and development, any lands of which the lessor has title, custody or possession, and the lessor may, at its option, lease the land on a share basis in accordance with such terms and conditions as the governing authority deems to be to the best interest of the lessor.

      “§ 1213. Application for lease
      Any person desiring to lease any land in accordance with the provisions of this Part shall present to the lessor a written application, together with a cash deposit of thirty-five dollars which shall be returned to the applicant if he makes an unsuccessful bid. The application shall set forth the name and address of the applicant, a reasonably definite description of the location and amount of land which the applicant desires to lease and the purposes for which the lands are to be leased. The applicant shall ask that the application be registered and that the land described therein be leased to him under the provisions of this Part. The lessor shall register the application and shall order an inquiry to determine whether the lands applied for are leasable for such purposes.”
      “§ 1214. Advertisement and bids
      If the lessor determines that the lands in question may be leased, the lessor shall publish an advertisement in the official journal of the parish where the land is located setting forth a description of the land to be leased, the time when bids therefor will be received, and a short summary of the terms and conditions and purposes of the lease to be executed; provided that if the lands are situated in two or more parishes the advertisement shall appear in the official journals of all parishes in which the lands are located. The advertisement shall be published for a period not less than fifteen days and at least once a week during three consecutive weeks. The lessor may also send notices to those whom it may think would be interested in submitting bids for the leases.
      The lessor may on its own initiative advertise for bids for any lease as provided herein, but without application therefor. The applications and bids provided for in this part shall be secret, sealed applications and bids and shall be forwarded through the United States mail to the lessor at its domiciled address.
      The advertisements in accordance with this section shall constitute judicial advertisements and legal notices within the contemplation of Chapter 5 of Title 43 of the Louisiana Revised Statutes of 1950.”
      “1215. Opening of bids; execution of leases; exceptions, public benefit corporations
      A. At the date and hour mentioned in the advertisement for the consideration of bids, the bids shall be publicly opened by the lessor at its office. The lessor shall accept only the highest bid submitted to it by a person or persons who meet all of the conditions of this Part, except in the case where the lessor is a public benefit corporation as authorized and defined in Subsection B hereof. The lessor shall have the right to reject all bids. The lessor may execute any lease granted under such terms and conditions as it deems proper, or as otherwise provided in this Part. All leases signed by the lessor shall be executed in triplicate and shall be disposed of as follows: one copy shall be furnished to the lessee; one copy shall be recorded in the conveyance records of the parish or parishes in which the land lies, and one copy shall be retained in the records of the lessor.

      “§ 1217. Term and rental; port authorities excepted
      A. All leases executed under the provisions of this Part shall be for a period not exceeding ten years and shall provide for consideration to be paid as a cash rental of not less than one dollar per acre, which shall be payable in cash annually and in advance, or if the land is leased for the agricultural purpose of planting, growing, cultivating and harvesting any agricultural crop the consideration shall be so paid in cash or on a share basis at the option of the lessor; .

      . Roughly speaking the territory extends from the Jefferson Parish line to approximately one-quarter mile past Paris Road. It is bounded on the south by the right-of-way line of Haynes Boulevard east of the airport and by Robert E. Lee Boulevard west of the airport.

      . The Court of Appeal stated that from the position it reached, this change was academic since it held that the constitutional provisions had not served as an exemption to the requirements of R.S. 41:1211 et seq. The district court, on the other hand, when it considered the case on remand, seemed to place emphasis on the change in status from constitutional provision to statute, as indicated in the written reasons for judgment issued by the court. Our disposition of this issue does not consider any possible effect of the change, although the minutes of the Constitutional Convention indicate that no change was intended by continuing the provision as a statute. See Verbatim Transcripts of the 1973 Constitutional Convention, Vol. 39, Day 121, pp. 99-105.

      . In its original hearing, the Court of Appeal distinguished Kliebert because there the lease was regarded as one essential to the operation of the authorities of the port commission, whereas the lease between the Board and Foundation was viewed as having no relation to the Board’s primary function. We cannot agree that granting a lease for the construction of a public museum and library is foreign to the Board’s authority to develop the lakefront.

      . Although the opinion does not specify which provisions of the “Industrial Inducement Law” served as the exemption, R.S. 39-996 provided in pertinent part:
      “Such lease shall be made [under] such other terms and conditions and for the time which may be determined by the municipality and may contain provisions authorizing the purchase of the entire leased project or any portion thereof by the lessee or its assignee after all bonds issued thereunder have been paid in full, for such consideration and [under] such terms and conditions as the municipality may determine. . . .” (This statute has subsequently been slightly amended).