author: CALOGERO, Justice.

text:
    Michael N. SMITH v. DIVISION OF ADMINISTRATION.
    No. 61639.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    Rehearing Denied Oct. 5, 1978.

      Phil E. Miley, Division of Administration, Baton Rouge, William D. Brown, Brown, Wicker & Lee, Monroe, for defendant-respondent.
    R. Gray Sexton, Baton Rouge, State Dept, of Civil Service, Intervenor, applicant for Dept, of Civil Service Com.
    Marian Mayer Berkett, Moise W. Den-nery, William B. Dreux, Thomas B. Lem-ann, Charles J. Rivet, New Orleans, amicus curiae for Civil Service League.
   CALOGERO, Justice.

We granted writs in this case upon application of the Department of Civil Service, State of Louisiana to review a decision of the Court of Appeal, First Circuit on an appeal from an order from the State Civil Service Commission. Smith v. Division of Administration, 358 So.2d 1291 (La.App. 1st Cir. 1978).

The issue in this litigation is whether the plaintiff, Michael N. Smith, an EDP Programmer III in the Division of Administration, is or was a classified employee of the state. Smith, who purportedly was in the classified service with permanent status, was notified by letter that his employment would be terminated as of April 26, 1976. He appealed the dismissal to the Director of the Department of Civil Service. The Civil Service Commission on initial review ruled that the attempted discharge was ineffective and that Smith was to be returned to the status he had had on April 26, 1976, the date of the attempted discharge. Because the ruling was unclear about Smith’s entitlement to back pay, neither he nor the Division of Administration accepted it as conclusive. The appeal was then reinstitut-ed on the request of Smith and the Division of Administration, and a referee was appointed. While that proceeding was under advisement, the First Circuit Court of Appeal on February 14, 1977 rendered its decision in In Re Division of Administration, 343 So.2d 277 (La.App. 1st Cir. 1977). Citing that decision and this Court’s refusal to grant writs in that case, the Civil Service Commission ex propio motu, dismissed Smith’s appeal.

Adequate consideration of the issue in this case requires a brief discussion of In Re Division of Administration, supra. On September 11, 1975, the Civil Service Commission adopted a resolution calling a public hearing to investigate whether twenty unclassified employees of the Division of Administration had been employed in violation of state civil service laws. Following an evidentiary hearing, the Commission concluded that the Division of Administration was subject to the state’s civil service laws and directed the division to bring all its employees, particularly the twenty whose employment prompted the investigation, into the classified service. The ruling did not affect the division’s appointed head nor the two unclassified positions permitted by civil service law. The Division of Administration appealed to the First Circuit which reversed that ruling. The First Circuit concluded that the Civil Service Commission was without jurisdiction to review the employment practices of the Division of Administration because the Division of Administration is part of the “office of the governor” within the meaning of Article 10, § 2 of the Louisiana Constitution of 1974. The Department of Civil Service and the Louisiana Civil Service Commission sought writs from that decision. Writs were denied May 11, 1976. 345 So.2d 504 (La.1977).

After the Civil Service Commission’s dismissal based on In Re Division of Administration Smith appealed to the First Circuit Court of Appeal. The Department of State Civil Service, pursuant to Louisiana Revised Statute 13 ^W, intervened. The Division of Administration opposed the order of intervention on the grounds that this Court’s denial of writs in In Re Division of Administration precluded the Civil Service Commission’s relitigation of the issue. The motion in opposition was denied and the intervention permitted. On December 14, 1977, the morning the case was set for argument, Smith and the Division of Administration filed a motion to dismiss the appeal for the reason that the parties had settled the case. The Department of Civil Service, however, did not join in the motion and in fact opposed the dismissal. The Court of Appeal took the motion under advisement and on January 23, 1978, denied the motion to dismiss; on the merits, however, the court affirmed the Civil Service Commission’s dismissal of Smith’s appeal. The Department of Civil Service applied for writs which were granted. 359 So.2d 994 (La.1978).

The question of whether the Division of Administration is part of the “office of the governor” within the meaning of Article 10, § 2 of the Louisiana Constitution of 1974 which would place its employees in the unclassified service is the same question raised in In Re Division of Administration. The fact that writs were denied in In Re Division of Administration does not as the defendant argues preclude this Court from reviewing the Court of Appeal’s decision in this case. This Court’s denial of a writ is not an adjudication on the merits of a case. See Day et al v. Campbell Grosjean Roofing and Sheet Metal Corporation, et a1 260 La. 325, 256 So.2d 105 (1971). Consequently, the question of whether the employees of the Division of Administration are in the classified service is one of first impression for this Court.

The Division of Administration was created by Act 133 of 1948, Title I, section 1 which provided:

“Division of Administration: Be it enacted by the Legislature of Louisiana, that a Division of Administration whose employees shall be employees of the Office of the Governor is hereby constituted and created as a Division of the Office of the Governor, and shall hereafter exercise those powers and functions as hereinafter set forth and as may be further provided by law.”

When the Division of Administration was organized, the Department of Finance was abolished and its employees, who were in the classified service, were transferred to the Division of Administration. The 1948 act subsequently became R.S. 39:1 which was amended in 1952 to add a budget office in the “office of the governor.”

On May 11, 1953, the State Civil Service Commission ruled that employees of the Division of Administration, the Budget Office, and the Division of State Building were not in the office of the governor within the meaning of the 1952 Civil Service Amendment. Throughout this period, the employees of the Division of Administration remained in the classified service. Apparently recognizing this situation, the legislature by Act 42 of 1956, section 1 amended R.S. 39:1 to delete the subsection added in 1952 and the words “shall be the employees of the office of the governor.” As so amended R.S. 39:1 reads as follows:

“A. A division of administration is hereby created as a division of the office of the governor, and shall exercise those powers and functions as hereinafter set forth and as may be further provided by law.” (Emphasis added.)

After the question of the status of the Division of Administration’s employees was again raised in the Civil Service Commission’s hearings in the In Re Division of Administration matter, the 1976 legislature in House Concurrent Resolution 264 declared that it “is and always has been” the legislature’s intent that the Division of Administration be a part of the “office of the governor” and by inference that the employees be unclassified:

“WHEREAS, it is recognized that a ruling of the State Civil Service Commission did not recognize that the division is an integral part of the office of the Governor, that the division is entirely under the supervision, control, and direction of the Governor, that the division performs essential governmental duties imposed directly upon the governor and delegated by him to the division, and that the ruling by the State Civil Service Commission placing the employees of the division in the classified service has incorrectly interpreted the intent of the legislature evidenced by the wording of the statutes and the constitutional provisions from the time the division was created up to the present.
“THEREFORE, BE IT RESOLVED by the House of Representatives of the Legislature of Louisiana, the Senate thereof concurring, that the Legislature hereby goes on record that the intent and purpose of the Legislature is and always has been that the Division of Administration is a division of the office of the Governor, and as such is an integral part of his staff, performing essential constitutional and statutory functions for the Governor as the chief executive officer of the state, under his control, and that officers and employees of the Division of Administration are officers and employees of the office of the Governor.”

The Court of Appeal in In Re Division of Administration relied heavily on the legislative intent announced in House Concurrent Resolution 264.

To resolve the question presented in this case, we must examine the constitutional provision here at issue. Louisiana Constitution of 1974 Article 10, § 2 divides state and city service into classified and unclassified. Article 10, § 2 provides in pertinent part:

(A) Classified Service. The state and city civil service is divided into the unclassified and the classified service. Persons not included in the unclassified service are in the classified service.
(B) Unclassified Service. The unclassified service shall include the following officers and employees in the state and city civil service.
(10) employees, deputies, and officers of the legislature and of the offices of the governor, lieutenant governor, attorney general, each mayor and city attorney, of police juries, school boards, assessors, and of all offices provided for in Article V of this constitution except the offices of clerk of the municipal and traffic courts in New Orleans;

While it is true that the Division of Administration, whether by transfer or creation is a division of the “office of the governor” and its employees, at least prior to the 1956 amendment of R.S. 39:1, have been legislatively designated “employees of the office of the governor,” these facts do not resolve the issue before us. To resolve this issue, we must determine the meaning of the language “office of the governor” in the Constitution of 1974.

The phrase “office of the governor” has at least two possible interpretations: It could refer to the concept of power vested in the governor or to the individual who holds the elective office. If it is the former, the employees of the Division of Administration are employees of the “office of the governor” and unclassified. If it is the latter, the employees of the Division of Administration are not in the “office of the governor.”

Helpful in resolving this ambiguity are the following: 1) the opinion of the Court in State ex rel Murtagh v. Department of City Civil Service, 215 La. 1007, 42 So.2d 65 (1949), 2) the contemporaneous construction or long standing interpretation placed upon the law by administrative officers charged with its execution and enforcement, and 3) the 1974 constitutional debates.

1. The Murtagh Decision

In State ex rel Murtagh v. Department of City Civil Service a clerk employed by the City of New Orleans in the Permit Division was discharged by the Mayor. He appealed the dismissal to the Civil Service Commission of New Orleans which held that the clerk was an unclassified employee, outside the protection of civil service. In determining whether Murtagh was a classified or unclassified employee, this Court found that the fact that the power to issue permits and to hire employees necessary for the proper conduct of the Permit Division was vested in the Mayor did not render the employees of the Permit Division “employees of the Mayor” and therefore unclassified. This Court interpreted the phrase “employees of the Mayor” to include only those employees “generally accepted as the office force of Mayor and not employees of other departments placed under his supervision.” The thrust of the Murtagh opinion was that only the personal staff of the Mayor, his “retinue,” was intended by the phrase.

Almost as if anticipating the argument made here by defendants, the Court in Mur-tagh said:

“If this conclusion [the conclusion that if the Mayor is responsible for the job, then the employees who do the job must be unclassified] is sound, the Commission Council merely by ordinance, may and can declassify almost any classified employment by the simple expedient of placing such employment under the Mayor’s office.”

2. Contemporaneous Construction

Since the “creation” of the Division of Administration in 1948, its employees have continuously been treated as classified employees. Despite the Civil Service Amendment adopted in 1952, which listed as part of the unclassified service employees of the “offices of the Governor,” the State Civil Service Commission in 1953 ruled that the Division of Administration was not in the office of the governor within the meaning of the constitutional amendment. Apparently accepting the Civil Service Commission’s interpretation, the legislature in Act 42 of 1956 deleted from Act 133 of 1948, by then R.S. 39:1, the words “whose employees shall be employees of the office of the Governor.” W. W. McDougall, Director of the Department of State Civil Service from March 1, 1953 to November, 1968, testified at the hearing conducted to investigate possible violations of civil service law by the Division of Administration that the Division of Administration had consistently not been considered a “part of the Governor’s office” and that its employees were considered in the classified service. The construction placed by the Civil Service Commission has been accepted by every Governor and Commissioner of Administration, including the present one, since that ruling.

It is in this context that we view the proceedings of the Constitutional Convention of 1973 and the perpetuation of the language, “office of the governor,” in the 1974 Constitution.

3. Proceedings of the 1973 Constitutional Convention

A review of the proceedings of the 1973 Constitutional Convention, particularly the debates, makes it evident that no change was intended from the prior civil service provisions in the Constitution nor in their interpretations. That convention did not expand, contract or otherwise modify the concept of “office of the governor.” Rather, the convention re-enacted the precise term which had been included in the former constitution which had been subject to judicial scrutiny and interpretation in such cases as Murtagh.

The following colloquy took place on the 94th day of the 1973 convention proceedings:

“Mr. Henry:
Would you yield to a question from Mr. Stagg
Mr. Dennery:
Yes, sir.
Mr. Stagg:
Mr. Dennery, in the bottom of page 1 and the top of page 2, there is a considerable listing of people who are exempt or are not under the classified service. In about line 12, it mentions the offices of the governor. If I’m not too far wrong on my facts here, in recent months, the Centrex operators were changed from, I think, classified service, to be a part of the Division of Administration. I believe in addition to that, the guards out here on the parking lot may have similarly, or some other groups of employees were moved to the Division of Administration and therefore, I presume, out from under the classified service.
When you say here simply, ‘the office of the governor,’ how far does that extend and what is the ability of the governor to move people who are protected by being classified employees and shoved over into unclassified positions, and, thereby, able to be fired without cause.
Mr. Dennery:
Mr. Stagg, the only way I can answer that question is to refer you to a case in New Orleans many years ago when the mayor of the city at that time did exactly what you suggest could be done. The court slapped him down and said you could not enlarge ‘the office of the governor’ by taking in extraneous divisions and say they are part of his office. It means the office of the governor in a normal sense of the word." (Emphasis added) XXXI Constitutional Convention of 1973, Verbatim Transcripts, December 7, 1973, p. 74.

Confronted with the task of interpreting and applying Constitutional language (“employees ... of the office of the governor”), the Court of Appeal in In Re Division of Administration and in this case, indirectly, relied in large measure upon the Legislature’s intent when it created the Division of Administration in 1948 and upon the 1976 Legislature’s expression of the intent and purpose of the 1948 legislation. That reliance is not well-placed. The function of interpreting laws, and even more so constitutional provisions, is not legislative but judicial. In State Licensing Board for Contractors v. State Civil Service Commission, 240 La. 331, 123 So.2d 76 (1960) a case similar to the one at hand, the Legislature adopted a resolution, just as the Legislature has done in this case, stating that it was its intention in the 1956 act which created the State Licensing Board not to place its employees in the classified service of the state. Rejecting the legislative intent expressed in that resolution, this Court stated:

“To interpret laws is not a legislative, but a judicial function, and this fundamental rule of constitutional law has not only been uniformly observed in the pronouncements of the courts of this State, but has been enunciated by the highest tribunals in numerous other states of the union (citations omitted); and the rationale of the principle, based on separation of powers, is more compelling when, as in the case at bar, the earlier enactment is not couched in doubtful phraseology and is at the time of the Legislature’s declaration of intent involved in litigation.” (Emphasis added)

Even if the Legislature in 1948 did intend, as the 1976 Legislature proclaimed, that the employees of the Division of Administration be in the unclassified service, such intention is irrelevant. The status of the employees of the Division of Administration is governed by the Constitution and the appropriate judicial interpretation of the Constitutional language “employees . of the office of the governor.” While those employees may organizationally and functionally be under or within that segment of state government designated “office of the governor,” they are not employees of the office of the governor within the meaning of Article 10, § 2(B)(10) of the Louisiana Constitution of 1974, that is, employees in the office of the person elected governor of the State of Louisiana.

Decree

For the foregoing reasons, the ruling of the Court of Appeal denying the motion to dismiss filed by plaintiff Smith and defendant Division of Administration is affirmed; the ruling and holding of the Court of Appeal in affirming the Civil Service Commission's dismissal of Smith’s appeal (in reliance upon In Re Division of Administration, 343 So.2d 277 (La.App. 1st Cir. 1977)) is reversed. Judgment is entered herein in favor of the intervenor, Department of State Civil Service, declaring employees of the Division of Administration (with the exception of its appointed head, and those occupying the unclassified positions permitted by Civil Service Law) classified employees of the State of Louisiana under Article 10, § 2(A) of the Louisiana Constitution of 1974.

AFFIRMED IN PART, REVERSED IN PART.

      .R.S. 13:3417 provides:
      In any judicial proceeding involving an interpretation of or decision under any provision of Article XIV, Section 15 of the Constitution of Louisiana in which a director of personnel functioning thereunder is not an indispensable party, the director may be made a party thereto at any stage of the proceeding on his own motion or by motion of an indispensable party. Directors made parties to such proceedings shall possess all of the rights afforded to parties in litigation by the laws of this state including the right to appeal and to apply for and obtain writs from the courts of the state.

      . As presented the question in that writ application appeared to relate to just twenty positions. That opinion, however, now seems to affect the over one thousand employees presently employed by the Division of Administration.

      . See also Barham, “The Importance of Writ Denial” 21 Loy. L.Rev. 835 (1975).

      . The Division of Administration was first formed as a reorganization of the Department of Finance by Act 133 of the 1948 regular legislative session and employees of that Department of Finance were transferred to the Division of Administration.

      . The 1948 Act referred to at footnote 4 herein-above and Act 58 of 1952, a subsequent reorganization, specifically provided that: “a Division of Administration whose employees shall be employees of the office of the Governor is hereby created as a division of the office of the governor . . .”

      . Transcript of the hearings held into possible violations of the Division of Administration, February 11, 1976.

      . House Concurrent Resolution 264 of the 1976 regular session, supra.

      . See Executive Reorganization Act, 513 of 1976, R.S. 36:1 et seq.

      . Under R.S. 39:4, most functions of the Division of Administration are duties conferred upon the Governor by either the Constitution or Legislative act.


source: Caselaw Access Project

author: SUMMERS, Justice.. DENNIS, Justice, TATE, Justice, DIXON, Justice CALOGERO, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Warren GAMBINO.
    No. 61728.
    Supreme Court of Louisiana.
    Sept. 5, 1978.
    Rehearing Denied Oct. 5, 1978.

      Patrick A. Rankin and William M. Lucas, Jr., Dufour, Levy, Marx, Lucas & Osborne, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise S. Korns, Asst. Dist. Atty., for plaintiff-appellee.
   SUMMERS, Justice..

By a bill of information the District Attorney of Orleans Parish charged defendant Warren Gambino with the exhibition, management and display of hard-core sexual conduct in the July 1977 issue of a magazine entitled “National Screw”, a violation of the Obscenity Act. La.Rev.Stat. MUOB. After trial by jury defendant was convicted and sentenced to pay a fine of $1,000 and to serve six months in the parish prison. The assignments of error urged on this appeal are grouped into six arguments.

Briefly, the record facts giving rise to this prosecution show that defendant is the owner of the Fast Stop Food Store No. 3 at the corner of Elysian Fields and Filmore Avenue in a predominantly residential neighborhood of the City of New Orleans. It is a convenience store where food, liquor, and popular magazines are sold, including such sexually oriented magazines as “Playboy”, “Penthouse”, “National Screw”, and “Oui”. Before this prosecution defendant appeared before the City Council on a complaint by a neighborhood Catholic school that these and other sexually oriented magazines were on display in a conspicuous place at the center of his store in such a manner that school children could see and buy them. At the Council’s suggestion these sexually oriented magazines were placed in a separate rack at the far end of the cashier’s counter so that only the titles were visible, and the matter was dismissed.

Officer Rickey Bruce entered defendant’s store on July 29,1977 to investigate obscenity violations. From the book rack at the end of the cashier’s counter he selected two magazines, “Climax” and “National Screw”, issue of July 1977, which he purchased, paying $4.18 for both. After ascertaining that defendant was the owner of the store, Officer Bruce obtained an arrest warrant and Gambino was arrested. The magazine “National Screw”, issue of July 1977, is the subject of this prosecution.

Assignments 1, 2, 3, 14, 15, 16 and 19 —Essentially these assignments question whether the magazine depicts “actual ultimate sexual acts or simulated or animated ultimate sexual acts” as set forth in Section F(l) of the Obscenity Act.

The Obscenity Act prohibits the arrest of any person for violating its provisions unless they have been afforded a prior adversary hearing at which the suspect has been made a defendant and the material has been found to be obscene. Section F(l) of the Act creates an exception to this prohibition permitting an arrest and prosecution without a prior adversary hearing when the obscene material shows “actual ultimate sexual acts or simulated or animated ultimate sexual acts when there is an explicit, close up depiction of human genital organs so as to give the appearance of consummation of ultimate sexual acts.”

If this Court agrees with the jury that the four pictures in question in this magazine depict ultimate sexual acts with explicit, close-up depiction of human genital organs so as to give the appearance of consummation of ultimate sexual acts then the arrest and prosecution of defendant without a prior adversary hearing was not prohibited by law.

All four pictures are photographs of women engaged in acts of cunnilingus. At least three of the photographs depict the vaginas of participants. In one photograph there is an explicit, close-up depiction of a woman’s vagina. All photographs give the appearance of the consummation of the ultimate sexual act of cunnilingus. In two of the photographs all of the subjects are nude; in another one of the female participants is partially clothed; and the other, a close-up photograph, only portrays the vagina of one participant and the tongue, mouth, face, head, hand and shoulder of the other.

In addition to the finding of the jury, the trial judge observed in his reasons for the sentence imposed that he had reviewed the magazine and in his opinion the photographs did depict ultimate sexual acts. He stated, moreover, that the magazine had no literary, artistic, political or scientific value. In fact, he declared, the publication was trash and should not be sold in New Orleans: To impose a lesser sentence, he held, would depreciate the nature of defendant’s crime.

An argument is made by the defense that his conviction was erroneous because none of the photographs depict penetration, which he asserts is essential to an ultimate sex act. Reliance is placed upon the definition of rape to support this argument. Because no penetration is depicted, the defense argues, the photograph depicts only imminent lesbian activity, acts not considered obscene in Huffman v. United States, 163 U.S.App.D.C. 417, 502 F.2d 419 (1974). In the Huffman Case the material consisted of collections of photographs of two nude or near-nude females shown undressing, caressing, fondling and embracing each other. The photographs were accompanied by brief written material, including a trilingual statement purportedly addressed to “serious students of art.”

Photographs at issue in the case at bar cannot be compared with the lesbian activity in the Huffman Case. Those at issue here are explicit, ultimate acts of deviate sexual conduct, not the remote foreplay found in Huffman. In the instant case the photographs depict activity which falls within the standard of hard-core sexual conduct formulated in Miller v. California, 513 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). That standard permits regulation of “patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.”

Furthermore, the statutes on rape relied upon to support the defense contention that the conduct at issue here was not the ultimate sex act reprobated by the Obscenity Act are inapplicable. La.Rev.Stat. 14:41— 41.1. Those acts apply to rapes, both heterosexual and homosexual, involving vaginal and anal intercourse. Sexual acts prohibited by those statutes involving at least one man are unlike the deviant sexual acts at issue here involving only women. The rape statutes cited do not apply either factually or legally to the case at bar.

Thus in our independent review we agree with the jury, which is the repository of community standards in this case, that the photographs in question depict the “ultimate sexual acts” contemplated by Section F(l). Accordingly, the trial judge correctly denied defendant’s motion to quash, motion to suppress, and motion for a prior hearing which are at issue in these assignments of error.

Assignment 18—Alternatively, the defense contends that the exception to a prior adversary hearing contained in Section F(l) of the Obscenity Act is invalid because the term “ultimate sexual acts” is unconstitutionally vague. The prior adversary hearing generally required by the Act was therefore a prerequisite to this prosecution. Consequently, denial of the motion in arrest of judgment based upon this premise was error, according to defendant. In Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), the phrase “ultimate sexual acts, normal or perverted, actual or simulated” were approved as properly constituting the hard-core sexual conduct which states may regulate. The standards and definition approved in Miller v. California are largely the bases of Louisiana’s Obscenity Act. A widespread use of the phrase has acquired a well-known and acceptable meaning, readily comprehended by the average person. As we read the defense brief, it is conceded that the phrase includes coitus, anal and oral intercourse. The photographs at issue are examples of ultimate sexual acts. In the apt words of Mr. Chief Justice WARREN, defendant in this case was

“plainly engaged in the commercial exploitation of the morbid and shameful craving for materials with prurient effect. I believe that the State and Federal Governments can constitutionally punish such conduct. That is all that these cases present to us, and that is all we need to decide.” Roth v. United States, 354 U.S., 476 at 496, 77 S.Ct. 1304 at 1315, 1 L.Ed.2d 1498 at 1513.

Therefore, the exception to the requirement of a prior adversary hearing is couched in constitutionally acceptable language under approved standards of statutory construction. State v. Skinner, 358 So.2d 280 (La.1978).

Assignments 17 and 20—Defendant argues that the trial judge erred in refusing to grant his motion for directed verdict and motion for a new trial.

The trial was before a jury in which case a directed verdict is not permitted. La.Code Crim.Pro. art. 778.

Basically, the motion for a new trial adopts the proposition that the magazine is not obscene. Although the magazine may contain pictures showing hard-core sexual conduct, the argument goes, it does not, taken as a whole, lack “serious literary, artistic, political or scientific value”. This is so, according to defendant, because the obscene pictures occur on about fifty percent of the magazine’s pages while the rest of the publication is devoted to material containing “serious literary, artistic, political or scientific value.” Therefore, the magazine does not “taken as a whole” meet the test of prohibited obscenity set forth in Section A(2) of the Act.

The contention is without merit. Conceding arguendo that some material in the magazine is of a serious literary, artistic, political or scientific value, that material has no rational relationship to that found by the jury, the trial judge and this Court to be hard-core sexual depictions. It is the offensive depiction of sexual conduct itself which must have “serious literary, artistic, political or scientific value” to merit First Amendment protection. It has often been held that that obscene material is not protected by the First Amendment. Miller v. California, supra. Placing prohibited obscene depictions in a magazine, book, or newspaper which contain other, unrelated articles or pictures of literary, etc., value does not suffice to make obscenity legally acceptable. “A quotation from Voltaire in the flyleaf of a book will not constitutionally redeem an otherwise obscene publication.” Kois v. Wisconsin, 408 U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312 (1972).

Assignments 21 and 22 — The defense contends that the State offered no evidence of community standards and the only evidence on the subject was offered by defendant’s expert. This evidence, the defendant argues, indicates that the average man would not find “National Screw”, July 1977, to be obscene. Thus, defendant concludes, there is no evidence in the record that the controverted magazine lacked serious literary, artistic, political or scientific value.

The prosecution in an obscenity case need not offer expert testimony regarding community standards. “[A] juror is entitled to draw on his own knowledge of the views of the average person in the community or vicinage from which he comes for making the required determination.” Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974).

And no error occurred because the jury did not accept the testimony of defendant’s expert. It is the function and prerogative of the jury to evaluate the evidence and accept or reject what is presented. They are not bound to accept the opinion of any expert in weighing the evidence of obscenity.

Assignment 13 — Incompetent “scientific” evidence was introduced by the State in the course pf cross-examining defendant’s expert witness, the defense asserts. Because of this, it is claimed, the jury rejected the testimony of the defendant’s export witness.

After extensive testimony on direct examination defendant’s expert concluded that “National Screw”, July 1977, was not obscene, contained material of a literary, scientific and political value and would not be considered obscene by the average adult in New Orleans. On cross-examination he was asked, over defense objection, if he agreed with a statement of Dr. Vanderhaig, a prominent psychiatrist which appeared in the local paper to this effect: “Pornography invites us to recognize other persons purely as means to our sexual pleasure and exploit them as we exploit animals.” He answered, “I agree with part of it. I don’t agree with the part about exploitation.”

In his per curiam to this assignment of error the trial judge wrote:

“Defense counsel contends that court erred in allowing the State to read a quotation to Dr. Koenig [defendant’s expert] during cross-examination.
“Cross examination of an expert witness by reference to medical and other scientific authorities is generally sanctioned for purposes of testing his knowledge, background and accuracy and to such ends, quotations may be read to witnesses from standard treatises provided that the object is not to get their contents and opinions of the author before the jury. State v. Sauls [226 La. 694] 77 So.2d 8 (1955). In the present case the quotation may not have been from a standard treatise, but from the newspaper a respected literary source. The article discussed was by a well-known psychologist and was mentioned strictly for the purpose of discussing Dr. Koenig’s views on the subject matter.”

In our view the trial judge correctly explained the basis for his ruling, and this assignment has no merit.

Assignments 23 and 24 — A claim is made that the sentence imposed is cruel, excessive and unusual. The sentence is within the limits prescribed by statute: Not less than one hundred dollars nor more than one thousand dollars, or imprisoned for not more than one year or both. La.Rev.Stat. 14:106G.

Sentence was imposed by the trial judge in keeping with the guidelines set forth in Article 894.1 of the Code of Criminal Procedure. Compliance with that article averts the possibility of excessive or capricious sentences. It assures that the sentencing authority is given adequate information and guidance in sentencing and provides reviewable standards.

A sentence imposed by a judge within the statutory limits is generally not subject to review. State v. Pierson, 296 So.2d 324 (La.1974); State v. Polk, 258 La. 738, 247 So.2d 853 (1971).

The trial judge has not abused his discretion in this sentencing.

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

DENNIS, J., concurs and assigns reasons.

TATE, J., dissents and assigns reasons.

DIXON, J., dissents with reasons.

CALOGERO, J., dissents and assigns reasons.

DENNIS, Justice,

concurring.

I join in the majority opinion for the reason that the photographic materials do show “actual ultimate sexual acts” in that they depict “explicit, closeup depiction of human genital organs so as to give the appearance of the consummation of ultimate sexual acts.” In my opinion the “ultimate sexual act” is neither ambiguous nor intended by the legislature to be equated with penetration. Instead its meaning encompasses all behavior clearly having no goal other than sexual penetration. The pictures of imminent oral-vaginal intercourse unmistakably give the appearance of the consummation of ultimate sexual acts. Although actual penetration is not depicted, any reasonable viewer would conclude that the scenes are those of the finish or completion, i. e., the consummation, of the sexual act, and not depictions of mere foreplay which may or may not lead to sexual penetration.

TATE, Justice,

dissenting.

I respectfully dissent.

In my opinion: (1) The intended cunnilingus’s however obscene, is not the depictions of attempted “ultimate sexual acts” so as to be hard-core pornography within the meaning of Obscenity Act, which only in such event permits arrest and conviction without a prior adversary hearing to determine whether the offensive depiction is a criminal offense; (2) If they are, then the statute is unconstitutionally vague in this respect, concerning as it does First Amendment rights of free press at issue; (3) In any event, the sentence imposed is excessive and should be set aside.

DIXON, Justice

(dissenting).

I respectfully dissent, believing a prior adversary hearing is required under the Louisiana statute before defendant can be prosecuted.

CALOGERO, Justice,

dissenting.

I respectfully dissent, being of the opinion that the material at issue depicts no “ultimate sexual act” and thus should have been the subject of a prior, adversary determination of the obscenity issue.

      . The pertinent provisions of the obscenity statute follow:
      “A. The crime of obscenity is the intentional:

      “(2) Participation or engagement in, or management, production, presentation, performance, promotion, exhibition, advertisement, sponsorship, or display of, hard core sexual conduct when the trier of fact determines that the average person applying contemporary community standards would find that the conduct, taken as a whole, appeals to the prurient interest; and the hard core sexual conduct, as specifically defined herein, is presented in a patently offensive way; and the conduct taken as a whole lacks serious literary, artistic, political, or scientific value.
      “Hard core sexual conduct is the public portrayal, for its own sake, and for ensuing commercial gain of:
      “(a) Ultimate sexual acts, normal or perverted, actual, simulated or animated, whether between human beings, animals, or an animal and a human being; or
      “(b) Masturbation, excretory functions or lewd exhibition, actual, simulated or animated, of the genitals, pubic hair, anus, vulva, or female breast nipples; or
      “(c) Sadomasochistic abuse, meaning actual, simulated or animated, flagellation or torture by or upon a person who is nude or clad in undergarments or in a costume which reveals the pubic hair, anus, vulva, genitals, or female breast nipples, or in the condition of being fettered, bound, or otherwise physically restrained, on the part of one so clothed; or

        “(d) Actual, simulated, or animated touching, caressing, or fondling of, or other similar physical contact with a pubic area, anus, female breast nipple, covered or exposed, whether alone or between humans, animals, or a human and an animal, of the same or opposite sex, in an act of apparent sexual stimulation or gratification; or
      “(e) Actual, simulated, or animated stimulation of a human genital organ by any device whether or not the device is designed, manufactured, or marketed for such purpose.
      “(3) Sale, allocation, consignment, distribution, dissemination, advertisement, exhibition, or display of obscene material, or the preparation, manufacture, publication, or printing of obscene material for sale, allocation, consignment, distribution, advertisement, exhibition, or display.
      “Obscene material is any tangible work or thing which the trier of fact determines (a) that the average person applying contemporary community standards would find, taken as a whole, appeals to the prurient interest, and (b) depicts or describes in a patently offensive way, hard core sexual conduct specifically defined in Paragraph (2) above; and (c) the work or thing taken as a whole lacks serious literary, artistic, political, or scientific value.
      “(4) Requiring as a condition to a sale, allocation, consignment, or delivery for resale of any paper, magazine, book, periodical, or publication to a purchaser or consignee that such purchaser or consignee also receive or accept any obscene material, as defined in Paragraph (3) above, for resale, distribution, display, advertisement, or exhibition purposes; or denying or threatening to deny a franchise to, or imposing a penalty, on or against, a person by reason of his refusal to accept, or his return of, such obscene material.
      “(5) Solicitation or enticement of an unmarried person under the age of seventeen years to commit any act prohibited by Paragraphs (1), (2), or (3) above.
      “(6) Advertisement, exhibition, or display of sexually violent material. ‘Violent material’ is any tangible work or thing which the trier of facts determines depicts actual or simulated patently offensive acts of violence, including but not limited to, acts depicting sadistic conduct, whippings, beatings, torture, and mutilation of the human body, as described in Sub-paragraph (c) of Paragraph (2) of Subsection A herein.
      ******
      “(1) Except for those motion pictures, printed materials, and photographic materials showing actual ultimate sexual acts or simulated or animated ultimate sexual acts when there is an explicit, closeup depiction of human genital organs so as to give the appearance of the consummation of ultimate sexual acts, no person, firm, or corporation shall be arrested, charged, or indicted for any violations of a provision of this Section until such time as the material involved has first been the subject of an adversary hearing under the provisions of this Section, wherein such person, firm, or corporation is made a defendant and, after such material is declared by the court to be obscene, such person, firm, or corporation continues to engage in the conduct prohibited by this Section. The sole issue at the hearing shall be whether the material is obscene.”

      . La.Rev.Stat. 14:41:
      “Heterosexual rape is the act of sexual intercourse with a female person not the wife of, or judicially separated from bed and board from,
      the offender, committed without her lawful consent. Emission is not necessary; and any sexual penetration, vaginal or anal, however slight, is sufficient to complete the crime.”

        La.Rev.Stat. 14:41.1:
      “Homosexual rape is the act of anal sexual intercourse with a male person committed without his consent. Emission is not necessary, and any anal sexual penetration, however slight, is sufficient to complete the crime.”


author: PER CURIAM.

text:
    STATE of Louisiana v. Fred LEEMANS.
    No. 60949.
    Supreme Court of Louisiana.
    Sept. 14, 1978.

      Dale C. Wilks, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William L. Brockman, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Defendant Fred H. Leemans was charged by bill of information with willfully and unlawfully keeping a disorderly place “by maintaining 310 St. Charles Avenue as a place to be used habitually for an illegal purpose, to-wit: Prostitution” in violation of La. R.S. 14:104. The offense was alleged to have been committed on June 29, 1973. On July 17, 1974, the defendant was tried before the judge alone and was found guilty as charged. Subsequently he was sentenced to pay four hundred fifty dollars ($450) and in default thereof to serve five (5) months in the parish prison. Relying on two assignments of error, the defendant now appeals his conviction and sentence to this Court.

The state has filed a motion to dismiss this appeal on the ground that since the offense with which the defendant was charged and of which he was found guilty, La. R.S. 14:104, carries a maximum penalty of six (6) months imprisonment or a five hundred dollar ($500) fine, the case is not appealable of right to this Court under Article 5, Section 5(D)(2) of the Louisiana Constitution of 1974. While defendant would not have an appeal of right if the provisions of the 1974 Constitution applied, the defendant was sentenced and appeal was moved for on his behalf prior to the effective date of the 1974 Constitution. Under the 1921 Constitution this Court’s appellate jurisdiction extended to criminal cases “which a fine exceeding three hundred dollars . . . has been actually imposed.” La.Const., Art. 7, § 10 (1921). This Court has previously held that where a defendant was sentenced and properly appealed prior to the effective date of the 1974 Constitution, his appeal is unaffected by the provisions of the new constitution. State v. Stoltz, 358 So.2d 1249 (La.1978). Thus defendant, who was given a $450 fine, is properly before this Court on appeal. The state’s motion to dismiss is denied.

Nevertheless, we have reviewed defendant’s assigned errors, both relative to the denial of a motion for judgment of acquittal and find them to be without merit. The state introduced at least some evidence of each of the essential elements of the crime of keeping a disorderly place and of defendant’s connection therewith. Thus there is no error of law in the denial of the defendant’s motion. See, e. g. State v. Blackstone, 347 So.2d 193 (La.1977).

Accordingly, defendant’s conviction and sentence are affirmed.


text:
    William A. ROE, Vernon Dowdy and Jerry Blanchard v. Dallas Arnold PICOU, Jr.
    No. 62816.
    Supreme Court of Louisiana.
    Aug. 15, 1978.
   In re: Dallas Arnold Picou, Jr. applying for writs of certiorari, and supervisory review. Parish of Plaquemines. 361 So.2d 1328.

Granted. Case is assigned for oral argument on Friday, August 18, 1978 at 10:00 A.M.

It is ordered that the writ of review issue; that the Court of Appeal send up the record in duplicate of the case; and that counsel for plaintiff and defendant be notified.


text:
    STATE of Louisiana v. Donald LEONARD.
    No. 62603.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Donald Leonard applying for remedial writs. Parish of Orleans.

Granted; a trial is ordered in this case within 30 days.


text:
    STATE of Louisiana ex rel., Melvin DILLARD v. 25TH JUDICIAL DISTRICT COURT PARISH OF PLAQUEMINES State of Louisiana.
    No. 62601.
    Supreme Court of Louisiana.
    Sept. 1, 1978.
   In re: Melvin Dillard, applying for writ of mandamus. Parish of Plaquemines. 357 So.2d 806.

Granted. The Clerk of Court of Plaque-mines Parish is ordered to enter a preliminary default on behalf of applicant if no answer has been filed. Confirmation of default requires the appearance of applicant or an attorney to present the necessary evidence.


text:
    STATE of Louisiana, In the Interest of Eldridge ALLEN.
    No. 62939.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: Eldridge Allen applying for writs of certiorari, prohibition, review, mandamus and for a stay order. Parish of St. Tammany-

Writ granted. Ruling of trial judge ordering transfer set aside; it is ordered that new transfer hearing be held to determine whether or not there are reasonable grounds to believe that the juvenile is amenable to treatment or rehabilitation through facilities available to the juvenile court. La.R.S. 13:1571.1, subd. A(4); State In the Interest of Smith, 359 So.2d 1271 (La.1978); State v. Everfield, 342 So.2d 648 (La.1977).


text:
    STATE of Louisiana v. James Alton STOKES.
    No. 62773.
    Supreme Court of Louisiana.
    Sept. 15, 1978.
   In re: John Alton Stokes, applying for writ of certiorari review. Parish of Terre-bonne.

Writ granted. The trial court is ordered to grant the chambers hearing at which the accused’s counsel shall be allowed in camera to establish the need, if any, for the assistance of an investigation under conditions to be set by the trial court in order to assure the effective assistance of counsel. See State v. Madison, 345 So.2d 485 (La.1977).

SANDER, C. J., SUMMERS and MARCUS, JJ., Dissent.


author: CALOGERO, J.,

text:
    Robert MITT et al. v. SECURITY INSURANCE CO. et al.
    No. 62814.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Sedonia Mitt, wife of/and Robert Mitt and Mary Ann Cummings, wife of/and Ulysses Cummings, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Charles. 361 So.2d 465.

Writ denied.

DIXON, J., would grant as to Assignment 3 (damages to natural mother).

CALOGERO, J.,

concurs m the denial. Spain v. Travelers Ins. Co., La., 332 So.2d 827, about which I have reservations, controls on the exclusionary clause issue.


author: TATE, J.,

text:
    John D. WHITE, d/b/a White Construction & Equipment Rental Company v. MARTIN GMC TRUCKS, INC., et al.
    No. 62793.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: General Motors Corporation applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. 359 So.2d 1094.

Granted as to Assignment of Error No. 1. It is ordered that the case be remanded to the Third Circuit Court of Appeal for reconsideration in the light of Alexander v. Burroughs Corp., La., 359 So.2d 607. Otherwise, the writ is denied.

DIXON, J., would deny the writ.

TATE, J.,

concurs. In granting to permit consideration of Alexander, this court did not express any view as to whether or not credit should be allowed.


text:
    John H. WHITE, d/b/a White Construction & Equipment Rental Company v. MARTIN GMC TRUCKS, INC., et al.
    No. 62829.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Martin GMC Trucks, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. 359 So.2d 1094.

Granted as to Assignment of Error No. 1. It is ordered that the case be remanded to the Court of Appeal for reconsideration in the light of Alexander v. Burroughs Corp., La., 359 So.2d 607. In other respects, the writ is denied.

TATE, J.: See my concurring note in Docket # 62,793.

DIXON, J., would deny the writ.


text:
    Cynthia Thomas GANT v. FLINT-GOODRIDGE HOSPITAL OF DILLARD UNIVERSITY and Argonaut-Southwest Ins. Co.
    No. 62688.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Cynthia Thomas Gant applying for writ of certiorari. Parish of Orleans. 359 So.2d 279.

Motion for Reconsideration denied. The rebuttable presumption of timeliness is rebutted by the postmark. Timeliness could be shown only by either a United States post mark or receipt or certificate from the post office made at the time of the mailing, where the presumption does not apply, Rule 4, Section 4(b).

SUMMERS, J., Motion for Reconsideration denied.

DENNIS, J., would grant the motion for reconsideration and, grant the writ.


text:
    STATE of Louisiana ex rel., Charles W. EZEB, Jr. v. C. Paul PHELPS, Director of the Department of Corrections.
    No. 62799.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Charles W. Ezeb, Jr., applying for writs of habeas corpus. Parish of East Baton Rouge.

Writ granted in part: evidentiary hearing ordered as to claim 4 (ineffective counsel); the writ is otherwise denied.

SANDERS, C. J., and SUMMERS, J., would deny the writ.


text:
    STATE of Louisiana v. Buelah Mae WILLIS.
    No. 62818.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Buelah Mae Willis, applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of Caddo.

Granted. Reversed. Original bond is reinstated.

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


text:
    STATE of Louisiana v. Connie Mae ROBINSON.
    No. 62819.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Connie Mae Robinson, applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of Caddo.

Granted. Reversed. Original bond reinstated.

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


author: SANDERS, C. J.,

text:
    STATE of Louisiana ex rel., Leroy STERLING v. Ross MAGGIO, Warden.
    No. 62783.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: State-of Louisiana, through Leon A. Picou, Jr., District Attorney, applying for writs of certiorari, prohibition and mandamus. Parish of East Feliciana.

Writ denied.

SANDERS, C. J.,

would grant the writ and order a transcript of the habeas hearing to determine whether the plea was voluntary and based upon a plea bargain.

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


text:
    Carlton JORDAN v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.
    No. 62788.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Carlton Jordan, applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Terre-bonne.

Writ denied.

DIXON, J., would grant the writ.


text:
    STATE of Louisiana v. Bernadine ROGERS.
    No. 62791.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Bernadine Rogers, applying for remedial writs. Parish of East Baton Rouge.

Denied.

SUMMERS, J., would grant the writ.


text:
    Carlton JORDAN v. STATE FARM AUTOMOBILE INS. CO. et al.
    No. 62841.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Government Employees Insurance Co. applying for writ of certiorari. Parish of Terrebonne.

Writ denied.

DIXON, J., would grant the writ.


text:
    Robert L. ASHWORTH v. ELTON PICKERING, INC., et al.
    No. 62855.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Elton Pickering, Inc. and Rock-wood Insurance Company, applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Beauregard. 361 So.2d 940.

Denied.

MARCUS, J., would grant a writ.


text:
    In the Matter of the Succession of James Nettles KENDRICK.
    No. 62838.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: James Alfred Kendrick, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 361 So.2d 309.

Denied.

SUMMERS, J., would grant the writ.


text:
    NATIONAL FOOD STORES OF LOUISIANA, INC. v. Leroy J. CHUSTZ.
    No. 62839.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: National Food Stores of Louisiana, Inc., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Pointe Coupee. 361 So.2d 273.

Writ denied with express reservation that any right that the plaintiff may have to sue upon the confession of judgment is not thereby prejudiced.

SUMMERS, J., concurs in the denial.

DIXON, J., would grant to correct Melan-con.


text:
    Frank J. HALL et al. v. ARKANSAS-LOUISIANA GAS COMPANY.
    No. 62580.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Arkansas Louisiana Gas Company, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 359 So.2d 255.

Writ denied.

SANDERS, C. J.,

would grant this application, so that it can be considered along with No. 62,560, which has been granted.


text:
    Frank D. HOLMES et al. v. RELIANCE INSURANCE COMPANY et al.
    No. 62782.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Frank D. Holmes, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Grant. 359 So.2d 1102.

Writ denied.

SANDERS, C. J., and SUMMERS and TATE, JJ., would grant the writ.


text:
    George P. BARNES, Jr. v. Sandra ROSEN.
    No. 62777.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: George P. Barnes, Jr., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 359 So.2d 1133.

Denied.

SUMMERS, DENNIS and CALOGERO, JJ., would grant the writ.


text:
    STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS v. CITY OF NEW ORLEANS et al.
    No. 62811.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: City of New Orleans, etc., et al., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 360 So .2d 624.

Denied.

TATE and CALOGERO, JJ., would grant the writ.


text:
    STATE of Louisiana v. Frederick BAILEY, Jr.
    No. 62779.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: State of Louisiana, through Harry F. Connick, District Attorney, applying for writs of certiorari, mandamus and prohibition. Parish of Orleans Juvenile Court.

Granted. Order of trial judge reversed, see State v. Spotville, La., 350 So.2d 1194.


text:
    STATE of Louisiana v. Byron WADE.
    No. 62784.
    Supreme Court of Louisiana.
    Sept. 22, 1978.
   In re: Byron Wade applying for writ of review. Parish of East Carroll.

Granted. It is ordered that the matter be consolidated with the appeal in State v. Wade, # 62,046, set for October 11, 1978.


author: REDMANN, Judge.

text:
    ELECTRODATA MANUFACTURING CORPORATION v. The DOMED STADIUM HOTEL, INC., et al.
    No. 9292.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 18, 1978.
    Rehearing Denied Oct. 19, 1978.
    Sylvan J. Steinberg, Bronfin, Geller, Feldman & Steinberg, New Orleans, for plaintiff.
    Richard C. Baldwin, New Orleans, for defendants.
    Before REDMANN, LEMMON and BOUTALL, JJ.
   REDMANN, Judge.

Domed Stadium Hotel, Inc., Rault Petroleum Corporation and Joseph M. Rault, Jr. appeal from a judgment for the bulk of the price of a hotel “room status system” which Domed Stadium Hotel alone contracted for.

There are two major issues. The first is the effect of plaintiff’s failure to put defendant Hotel in default in respect to having its building specially wired to receive the system. The second is the effect of plaintiff’s selling to another hotel the system components worth $9,758.21 for only $400, without notice to defendant Hotel, several months after bringing this lawsuit.

Why the petition alleged that Rault Petroleum Corporation and Rault individually had contracted for the system is not evident from the record; their being cast in the judgment was presumably the result of a clerical error unnoticed by the trial judge. We reverse as to them for lack of evidence. “Defendant” hereafter refers to Hotel.

As to defendant Hotel, we reduce the judgment from $10,610.10 to $893.38 (the price of orders for electric cable and boxes apart from the system order). We conclude that plaintiff’s failure to put defendant in default and plaintiff’s resale of the system at an unreasonable price as “junk” without notice to defendant defeats the balance of plaintiff’s claim.

The room status system for a 175-room hotel like defendant’s consists of 175 interchangeable room units made of brushed stainless steel, one mounted in each room in a standard electrical switch or outlet box connected by wires to two central display panels (front desk and main housekeeping) showing all rooms and one “remote housekeeping” panel showing only the rooms on one floor (there being one such panel for each floor). The system operates by magnetic “keys” used by room cleaners and inspectors which cause flashing or steady lights to display a room’s status as uncleaned, being cleaned, cleaned or cleaned and inspected so that both front desk and housekeeping personnel are informed at a glance of a room’s availability for renting or of its need of cleaning or inspection. The system also includes a simple card rack for guest registration cards; upon inserting or removing the quest’s registration card lights are extinguished or lit to show occupancy of the room.

Plaintiff on December 7, 1973 offered, by a 13-page written “quotation” addressed to defendant, to supply and install such a system for defendant’s building, then being repaired after a major fire and being converted from offices and apartments into a hotel at an expense of $3,000,000. Defendant on January 14,1974 accepted by written purchase order. The contract thus struck did not specify a time for supply and installation, but it did specify terms for payment of the $11,900 price as “net 30 days”, contemplating, plaintiff’s president testified, that the price was to be paid 30 days after installation.

In respect to time of performance, however, plaintiff’s president testified that defendant’s “technical coordinator” had ordered the system in November 1973, and had “stressed very strongly” that installation was to be completed by Mardi Gras (February 26) 1974. Although defendant’s president testified that construction progress was such in November that there was “no way” for the building to be ready for February, we may assume that the trial judge believed plaintiff’s president.

Plaintiff began making the system on December 12, 1973. Plaintiff’s president testified that in early February 1974 they learned that the hotel completion date was “postponed” to May. Plaintiff completed fabrication of the system components in March and on March 29 billed defendant $9,716.72 for manufacture of the system.

Under the written contract, there was no agreement to pay for the equipment before its installation and there was no agreement fixing any amount as a price for the uninstalled equipment. Accordingly, any right plaintiff might have had to collect $9,716.72 (or any other amount) had to arise from some source other than the mere terms of the contract.

The presumable source is defendant’s theoretical breach of the contract by not having the building ready for delivery and installation of the system by February (or at least, in view of the written contract’s silence on time of performance, by the reasonable time implied by law, La.C.C. 2050 and La.R.S. 10:1-204).

It was reasonable for plaintiff to desire some payment once it learned in February that the hotel would not be ready for the system until May. Plaintiff had invested the bulk of its costs in the manufacture of the system and should not have had to wait indefinitely for its payment when the (oral) bargain was that it should be ready to perform in February. And, although plaintiff was supposed to install before being entitled to payment, the delay in plaintiff’s performance was attributable to defendant’s delay in readying the building for the installation.

We conclude, nevertheless, that plaintiff was not automatically entitled to its charge for manufacturing the system merely because of defendant’s failure to have the building ready for installation at the agreed time (or by a reasonable time). We reason that plaintiff was first obliged to put defendant in default in respect to readying the building.

Plaintiff’s obligation to install the system was one subject to a condition, C.C. 2021, the condition being the event of defendant’s having the building wired to receive the system. (The contract for the system expressly excluded any obligation upon plaintiff to supply or install the indispensable building wire. Thus that defendant wire the building was an implied condition, implied from the nature of the contract, C.C. 2026.) Certainly plaintiff could not perform unless defendant readied the building (although defendant did not obligee itself towards plaintiff to ready the building, and defendant’s readying the building was not causa [the civil analogue of consideration] for plaintiff’s obligation to make and install the system). If defendant had obliged itself towards plaintiff to ready the building, readying the building (in addition to being an obligation) would equally remain a condition of plaintiff’s obligation to perform. Yet, in that case, plaintiff could not rescind or collect damages unless it put defendant in default; C.C. 1933. That defendant fulfill the condition constituted, however, something akin to an obligation: “Every condition must be performed in the manner that it is probable that the parties wished and intended that it should be.” C.C. 2037. Consider also, at least by analogy, that it is an “obligation” of a buyer to receive delivery, C.C. 2549: and a buyer “who neglects to obtain delivery of the thing sold, after having been put in default, is answerable [for damages]”, C.C. 2555 (emphasis added).

We conclude that, ordinarily, when a suspensive condition of an obligation is an event to be accomplished by the obligee, delay in fulfilling the condition does not entitle the obligor to damages (or to rescission) unless the obligee has first been put in default with respect to the fulfillment of the condition. The putting in default may be accomplished by any of the means specified in C.C. 1911 (made applicable by C.C. 1933 as well to obligations to do as to obligations to give). Putting in default is not necessary when the act to be done is “of such a nature that it could only be given or done within a certain time, which has elapsed, or under certain circumstances, which no longer exist . . . ”, C.C. 1933. Putting in default may occur by the mere failure to perform, but only where the contract terms so provide; otherwise (with specific exceptions by law) the party must demand performance by suit, written demand, notarial protest, or oral demand in the presence of two witnesses, C.G. 1911. (Moreover, the obligee’s delay in fulfilling the condition will excuse the obligor’s delay in performing the obligation, and it may justify the obligor’s refusal to perform when unreasonable time has increased costs or otherwise occasioned a change in the obligor’s position. But it does not discharge the obligation as if it were the equivalent of performance; i. e., it does not both excuse ultimate performance and oblige the obli-gee to pay for a performance he will not get.)

Neither the terms of the contract nor any act by plaintiff put defendant in default in respect to readying the building. Plaintiff’s agents did inquire as to the building’s readiness when they telephoned (from Florida) to inquire about payment of their bill on many occasions. But they never wrote to demand that the building be readied, and no one ever came to Louisiana.

When May 1974 arrived, plaintiff learned completion was postponed until July. Thereafter postponement was monthly until September, at the end of which plaintiff’s president gave the “account” to plaintiff’s accountant to collect. (At this time, plaintiff also finally quit the business of room status systems, for lack of sales.) Thereafter frequent, almost daily, telephone calls were made in an effort to obtain payment from defendant. Towards the end of November, plaintiff (whose office is in Florida) had its Florida lawyers write a letter of demand for payment. (We repeat our view that, in the absence of a putting in default, plaintiff was not legally entitled to disregard the contract and insist on being paid for the system prior to installation.)

Apparently nothing more occurred until January 14,1975, when defendant’s employee Mrs. Fort telephoned plaintiff’s accountant to request delivery and installation of the system. Also, the accountant testified, Mrs. Fort at first said she would send a check in payment of plaintiff’s invoices, but on January 15 she said that the check would be given to the installation crew on its arrival. The accountant then conferred with plaintiff’s officer Jacobson (himself a Florida lawyer), who thereafter handled the matter. Jacobson “became rather apprehensive about our situation”, especially because he envisioned a $2,800 increase in the $2,183.28 installation labor cost. He telephoned Mrs. Fort on January 16 and asked her to have defendant pay that additional $2,800, or at least half of it; but, Mrs. Fort told Jacobson, defendant’s president “was adamant; he wasn’t going to pay anything toward” the $2,800. (Mrs. Fort also told Jacobson that the building was ready and that plaintiff wanted the system installed “as a matter of urgency . . . they were opening up and had to have something right away.”) Jacobson told Mrs. Fort plaintiff would complete the contract at the contract price, but wanted written confirmation that the building was ready, that lodging would be provided for the installation crew, and that a check for $10,610.10 would be given to the crew on its arrival. On January 24 Jacobson wrote to Mrs. Fort that plaintiff would not send the crew until those assurances were made in writing.

Defendant’s president instructed Mrs. Fort not to send such a letter because, he testified, of the contract’s provision for payment after installation.

When the written assurances did not arrive by January 31, plaintiff concluded that defendant would not pay for the system and installation. Plaintiff thereupon wrote defendant, expressing the conclusion that defendant was dishonoring the contract and notifying defendant it would be sued.

Meanwhile, in January, defendant opened its hotel, under a management agreement executed in December 1974 with a national hotel chain. (Although plaintiff argues that this agreement precluded use of plaintiff’s system and shows defendant’s bad faith, this argument is not supported by the agreement or by any other evidence. In mid-January Mrs. Fort told Jacobson of the national chain connection in the same telephone call that she made to request delivery and installation of plaintiff’s system.) Instead of the $11,900 electrical room status system, defendant used a $200 card rack, situated at the front desk, which showed only occupancy and neither relayed information to nor received it from housekeeping personnel.

Suit was brought in July 1975, alleging only the sale of a custom-made system to defendant(s) at a price of which part had been paid and $10,610.10 remained due, and further alleging a willingness to “deliver” the system to defendant. (Alternatively recovery was sought in “quantum meruit”.)

Because plaintiff was no longer in business (though it remained a legal entity), the system had been stored (at no cost) in the building of a related corporation. In April 1976, nine months after this suit was filed, plaintiff sold to another hotel as “junk” for $400 the system it refused to deliver to defendant except on payment of $10,000.

Plaintiff’s argument that it was mitigating its damages by this $400 sale seems to be an afterthought, an attempt at rationalization. The theory of a “duty to mitigate” is merely that avoidable consequences of a breach are not recoverable (see Restatement, Contracts § 45 Comment d; Williston, Contracts, 3d ed. § 1353); one breaching a contract owes only the damages “which the other party has sustained by his default [i. e., breach]”, La.C.C. 1930.

The room status system was not junk (see n. 1 and text above) but would have been to a substantial extent usable by any supplier of such systems (though plaintiff had quit that business a year and a half earlier). The system had even greater value to defendant. The $400 sale was not a reasonable act (not “commercially reasonable”, as, in other jurisdictions, U.C.C. § 2-706 requires).

Nor does the mitigation argument jibe with plaintiff’s vice-president’s answer to the question what efforts were made to sell the system:

Only one, which really wasn’t an effort on our part ... we didn’t go out and try to find a buyer ... it [was] totally impractical. But when this particular person called about spare parts, we suggested we could send him a system we had built for another motel and that was of no value to us, and he could, consequently, strip out the parts and use them as needed. [Emphasis added.]

Although we need not decide whether the contract for the system was a sale (see Litvinoff, Obligations, II § 158), La.C.C. 2555 and 2556 are applicable at least by analogy:

The purchaser, who neglects to obtain delivery of the thing sold, after having been put in default, is answerable to the vendor for the damage which he may sustain on that account, and for the reimbursement of the expense which may have been incurred for the preservation of the thing.
The seller may even obtain authority, where movables have been sold, and the custody of them is inconvenient to him, for putting them out of his house at the risk of the purchaser, on giving him notice of the day and hour at which he will put them out.

Had plaintiff put defendant in default in respect to the condition of readying the building, plaintiff still had no right to sell the $10,000 system as junk for 4% of its cost without giving prior notice to defendant. (Compare U.C.C. § 2-706(3), requiring “reasonable notification” to the buyer of seller’s intention to resell at private sale.)

Whether an unreasonable resale without reasonable notice is necessarily fatal to every claim for damages (including, for example, one for lost profits rather than for full price less recovery from resale) we need not decide. Were plaintiff still able to put defendant in default it might yet do so (though unreasonable delay to put in default itself would pose a problem). But plaintiff is no longer able to put defendant in default (disregarding that defendant has long since fulfilled the condition); plaintiff has sold the last room status system it had and consequently is no longer able to tender its own performance under the contract as C.C. 1913 requires for a putting in default. Plaintiff therefore could not recover any measure of damages that might theoretically survive the unreasonable resale without notice.

Under all the circumstances we conclude that plaintiff is not entitled to recover its charges for manufacturing the system or any other measure of damages. We reduce its award to the charges for electrical cable and boxes which presumably retain their value for use with some other system or for some other purpose.

The judgment appealed from is reversed as to Rault Petroleum Corporation and Joseph M. Rault, Jr. at plaintiff’s cost and amended in principal to $893.38 as to Domed Stadium Hotel, Inc., with costs to be divided equally between plaintiff and Hotel.

LEMMON, Judge, concurs and assigns reasons.

When an obligor fails to perform an obligation to do, a putting in default is necessary to determine the starting point for damages, because the law presumes that the obligee’s failure to put in default is a tacit extension of the obligor’s time for performance. Litvinoff, 7 Louisiana Civil Law Treatise — Obligations, § 175 (1975). The putting in default does not require any special formality or language, as long as the purpose is served to notify the obligor that the promised performance is due and that any delay is detrimental to the obligee’s interest.

Plaintiff’s letter of November 27, 1974, demanding payment for the cost of manufacturing the system because installation was delayed on account of defendant’s failure to have the building ready, implicitly demanded performance of defendant’s obligation to ready the building and notified defendant that plaintiff intended to hold defendant responsible for the consequences of its failure to perform. That letter, therefore, constituted a putting in default which would entitle plaintiff to collect, as damages caused by defendant’s breach, the cost of the manufactured system prior to installation and the amount of any increase in installation labor cost after the putting in default.

However, whether or not defendant was put in default for failing to ready the building became relatively unimportant when the building eventually was ready for installation. When defendant thereafter refused to accept installation except under the terms of the original contract, plaintiff could have demanded either compliance or damages in the amount it had spent to produce the system (in which case defendant would have been entitled to ownership of the equipment). But when plaintiff made compliance impossible on any terms by “selling” the equipment without notifying defendant, the willful wasting of the equipment relieved defendant of any obligation of payment therefor. Plaintiff, although wronged, has left itself without a remedy.

      . Plaintiff describes the system as custom-made for each hotel, of no value to any other hotel unless it had the same number of rooms with the same room numeration on each floor. Plaintiffs officers testified, however, that the 175 room units were all identical and therefore usable in any other hotel. Shop documents and drawings show that the system is made from standard parts modified and accommodated to the particular hotel; e. g., the seven-column front desk panel uses seven standard 35-room panels, with appropriate blank spaces (left by deleting “punch commands”) to reduce the possible total of 245 rooms to the 175 needed. Fully custom-made, and not practically usable elsewhere except in a hotel with virtually identical room numeration, where specially ordered “Black Phenolic Numbering Strips . . per attached numbering list, with white numerals, with beveled edges, with double-sided adhesive on back.” However, these adhesive-backed plastic numbering strips could presumably be replaced with new strips with other numeration, thus making front desk and main housekeeping panels also usable in another 175-room or smaller hotel, and remote housekeeping panels usable on other hotel floors with equal or smaller numbers of rooms.

      . The reasonable time must be measured in relation to “the nature . . . and circumstances” of the act to be performed, R.S. 10:1-204(2). Both plaintiff’s manufacture and installation and defendant’s wiring of its 175 rooms to receive the installation reasonably required an amount of time that may or may not have extended beyond February.

      . The present suit did not demand performance of the condition of readying the building; it only demanded payment. Moreover, the building was ready before this suit was filed.


author: LEMMON, Judge. LEMMON, Judge,

text:
    PPG INDUSTRIES, INC. v. Jack R. SCHEGA, Jr., d/b/a Vieux Carre Candle Shop.
    No. 8340.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 28, 1978.
    Rehearing Denied Oct. 12, 1978.
    Normann & Normann, Frank S. Nor-mann, New Orleans, for plaintiff-appellant.
    Thomas L. Giraud and Charles A. Verder-ame, New Orleans, for defendant-appellee.
    Before LEMMON, BOUTALL and SCHOTT, JJ.
   LEMMON, Judge.

This is a suit to collect the amount of a contract in which plaintiff agreed to furnish and install “LHR (Light and Heat Reflecting) Solargray Glass, lU" thick, fully tempered for sliding door units, fixed frames and sliding windows” for defendant’s residence, except that the windows were to be delivered assembled but not installed. Defendant admitted that he had not paid the contract price, but alleging plaintiff’s contractual obligation had not been fulfilled in that the glass was defective, defendant prayed for dismissal of plaintiff’s demand. After a trial on the merits judgment was rendered dismissing plaintiff’s suit, and plaintiff appealed.

Defendant testified: While his home, with more than 50% of the exterior walls composed of glass, was in the planning stages, he contacted plaintiff’s architectural representative, Bill Yohe, who convinced him to use this particular type of glass. The agent represented that fully tempered glass would provide strength and safety and that oxide coated glass would reflect heat and sunlight. The agent also provided samples of oxide coated glass, but warned that the perimeter of the glass after tempering would be distorted by tong marks from the tempering process. About two weeks after the glass was installed during construction of the home, defendant cleaned the dust and dirt and noticed that the oxide coating was unevenly distributed, which resulted in a rippling or banding appearance. When plaintiff’s engineering representative investigated and told defendant this banding or rippling effect commonly occurred in this product and that replacement glass would probably have the same appearance, defendant refused to pay for the glass. Defendant further asserted that if he had known the glass was going to have that appearance (which did not appear on the sample), he would not have purchased it.

The evidence was in conflict as to whether defendant was warned that rippling and distortion often occur in this type of glass and whether the glass in fact had a distorted appearance which constitutes a substantial defect. The trial judge apparently resolved this conflict by rendering judgment in favor of defendant. This resolution is supported by defendant’s testimony of no warning and by the testimony of three building contractors, who stated they observed a defect in the glass and would have rejected the product as defective.

Plaintiff argues, alternatively, that defendant is essentially using redhibition as a defense and that if the glass was proved defective, the court should have ordered the return of the glass or a reduction in the purchase price.

The contract in this case, which involves fabrication of glass doors, glass walls, and glass windows and installation of the glass doors and glass walls, was a construction contract rather than one of sale. Installation was more than a trifling part of the agreement. Jefferson Parish School Bd. v. Rowley Co., 350 So.2d 187 (La.App. 4th Cir.1977). Furthermore, the contract required fabrication in accordance with defendant’s construction plans and specifications, and the fabricated units constituted approximately one-half of the exterior wall. See, generally, Litvinoff, 7 Louisiana Civil Law Treatise — Obligations, § 158 (1975).

Plaintiff’s failure to perform the construction contract in accordance with the plans and specifications gives rise to no obligation on defendant’s part to pay for performance as promised, and plaintiff’s demand for payment was properly dismissed.

There was no demand for the return of the items, and consequently there was no evidence relating to defendant’s damages caused by plaintiff’s improper performance of the contract. Since we cannot adjudicate on this record all of the rights of the parties relative to the improper performance, we limit our decision in this case to plaintiff's sole demand for payment of the contract price.

The judgment is affirmed.

AFFIRMED.

LEMMON, Judge,

concurs in the denial of application for rehearing and assigns reasons.

On application for rehearing plaintiff contends that once it proved substantial performance of the construction contract, the burden was on defendant, in order to obtain a reduction in the contract price, to proceed with evidence that some of the work was incomplete or defective and to establish the cost of completion or of repairing the defect.

Plaintiff’s premise is incorrect in that this is not a case of substantial performance. When there has been substantial performance of a construction contract, the owner has received substantially everything he has bargained for and must pay the contract price, minus the amount necessary to remedy unfinished or defective work. In the present case the owner has not received substantially what he bargained for, and plaintiff is not entitled to collect anything on the contract.

Plaintiff alternatively argues that if substantial completion was not proved, it is entitled to recovery based on unjust enrichment pursuant to C.C. art. 1965. This record contains no proof upon which such an award can be made, and our judgment was limited to the sole demand of payment of the contract price.

      . The contractors had all used tempered or oxide coated glass and had never experienced this problem. They variously described the appearance as being “as though it was sprayed on in patches across the glass”, “irregular application”, “shadows, ripples, uneven”, and “distorted and hazy”.

      . Plaintiffs second alternative argument is that defendant should at least be condemned to pay for the aluminum frames for the doors and windows and the cost of their installation, since the only complaint was the quality of the glass. There is no showing that these items can be used separately or would have been contracted for separately from the glass, and we therefore reject this argument.