author: CUTRER, Justice Ad Hoc.

text:
    STATE of Louisiana v. Richard G. BOKSHAM. STATE of Louisiana v. Edward BOGLE, Robert M. Hoskins, Jr., Thomas M. Gorman.
    Nos. 62873, 62433.
    Supreme Court of Louisiana.
    March 5, 1979.

      Ferdinand J. Kleppner, Grisbaum & Kleppner, Metairie, Edwin Marger, Atlanta, Ga., for defendants-appellants-relators.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., William C. Pe-gues, III, Dist. Atty., David W. Burton, Asst. Dist. Atty., for plaintiff-appellee-re-spondent.
   CUTRER, Justice Ad Hoc.

Defendants Richard G. Boksham, Edward Bogle, Robert M. Hoskins, Jr., and Thomas M. Gorman, together with Christopher R. Garrett, were jointly charged with possession of marijuana with intent to distribute, in violation of La.R.S. 40:966. After a bench trial, defendants Bogle, Hoskins and Gorman were found guilty of the charged offense, defendant Boksham was found guilty of the lesser offense of possession of marijuana, and Garrett was acquitted. Defendants Gorman and Bogle were each sentenced to serve seven and one-half years at hard labor and each fined fifteen thousand dollars, on default to serve an additional year. Defendant Hoskins was sentenced to serve five years at hard labor and fined fifteen thousand dollars, on default to serve an additional year. Defendant Boksham was sentenced to serve six months in the parish jail and fined five hundred dollars, on default to serve one hundred days in the parish jail. Defendants Bogle, Hoskins and Gorman have appealed; we granted defendant Boksham’s application for supervisory writs in order to consider conjointly their corresponding claims. Their consolidated brief raises 115 assignments of error in 31 arguments relating to the issuance of a search warrant and various other alleged errors in the proceedings. Because we find merit to defendants’ assignments of error challenging the probable cause finding for the issuance of the search warrant, we pretermit consideration of defendants’ other assignments of error.

The context facts were as follows: On June 27, 1977, a search warrant was issued for the search of a Beauregard Parish farm, located east of Bundicks Lake, belonging to defendant Gorman. In executing the warrant that day, state and local law enforcement officers searched the farm house and several vehicles located on the property, including three cargo-type trucks parked on the premises. They seized almost 3,000 pounds of bailed marijuana from the cargo area of one of the trucks. The search of the residence yielded sums of United States and Canadian currency and scales presumably used to weigh the marijuana, as well as a small amount of marijuana and some cigarette rolling papers. The occupants of the residence at the time of the search, Richard Boksham, Robert Hoskins, Jr., Thomas Gorman and Christopher Garrett, were arrested. Edward Bogle, who was not on the farm at the time of the search, was also arrested.

The investigation leading to the search was initiated by U. S. Customs officials who, suspecting that marijuana was being smuggled into Southwest Louisiana, contacted state and local officials and requested their assistance in the surveillance activities. Surveillance of the Beauregard Parish farm commenced June 17, 1977, when a state trooper followed, from Lake Charles to the farm, a vehicle suspected of being involved in the illegal drug traffic. Officers then set up a surveillance post in a camper near the farm driveway entrance in order to monitor incoming and outgoing traffic. Involved in the surveillance activity were several officers who logged their observations of the driveway traffic. Four cargo-type trucks, as well as pickup trucks and automobiles, were observed entering and leaving the farm driveway. Some of the vehicles were observed going to and from a LaRose warehouse. Surveillance of the driveway, however, revealed no apparent illegal activity.

On June 25, 1977, at about 10:16 P.M., officers noted that a Ryder rental cargo truck entered the farm. It left the farm the next morning, under the surveillance of Louisiana and Texas law enforcement officials who followed it to a motel in Austin, Texas, and then to a farm southwest of Austin. About a half-hour after the truck departed from the Texas farm, Texas officials stopped and searched it. Marijuana sweepings and the odor of marijuana were noted by officers. On the next day, June 27, 1977, Louisiana officials related the following information in their application for the search warrant which resulted in the seizure of bulk marijuana from the Beauregard Parish farm and the arrest of defendants:

The reasons and facts for the request of this Search Warrant are:
U. S. Customs Officials had under investigation a group of known smugglers operating in the State of La. Said smugglers had obtained a warehouse near Larose, La., and a residence in Beauregard Parish, La. Customs Officials had followed numerous vehicles from the warehouse near Larose, La., to the residence in Beauregard Parish, La., and vice versa. In excess of fifteen vehicles had been monitored going to and coming from the warehouse to the residence in Beauregard Parish.

In approximately the middle of May, 1977, U. S. Customs Officials contacted Region II, La. State Police, in Lafayette, whereupon the La. State Police began to assist in the surveillance.

On approximately Friday, June 17, 1977, the La. State Police Region III Narcotics Officers including your affiants, Edsil Smith and Jodie Dowden, set up a 24 hour surveillance of the drive way to the Beauregard Parish residence.

During the period between June 17,1977, and June 23, 1977, numerous vehicles, including approximately 4 2%-5 ton cargo trucks entered and left the Beauregard Parish farm. Two of the cargo trucks were under constant surveillance by La. State Police Officers and U. S. Customs Officials, including affiants, Edsil Smith and Jodie Dowden. Both of said Cargo trucks were followed to the warehouse near Larose, La., on the intercoastal canal, just East of the new intercoastal bridge. This warehouse was also under 24 hour surveillance by officers of the La. State Police and U. S. Customs Officials. At approximately 1:00 A.M. on June 24, 1977, two (2) large trucks, one of which was a 22 foot Ryder Rental cargo truck, entered the farm, or residence, in Beauregard Parish, La. At approximately 10:00 o’clock A.M., on June 24, 1977, the unidentified truck left the Beauregard Parish farm, or residence.

At approximately 7:03 o’clock A.M., on June 25, 1977, the 22 foot Ryder truck left the Beauregard Parish farm, or residence. At approximately 10:16 o’clock P.M., an 18 foot Ryder Rental cargo truck entered the Beauregard Parish farm, or residence. It departed the residence the next morning, June 26, 1977, at approximately 8:32 o’clock A.M. This vehicle was accompanied by a white double cab pick up truck with dual wheels. Ground surveillance of the two vehicles from the Beauregard Parish farm| or residence, to DeQuincy, La., was performed by all of affiants. Air surveillance of the two vehicles was performed by Sheriff Bolivar Bishop, Beauregard Parish, La., Dwayne Cooley, and Ivan Derrick from DeQuincy, La., to approximately 5 miles west of Bastrop, Texas. Ground surveillance from DeQuincy, La., to Austin, Texas, was performed by La. State Police officers Danny Dougherty and Joe White, who traveled in separate vehicles, and U. S. Customs Service Agents, Melvin Scheef and E. D. Castro.

The Ryder truck, and accompanying pick up truck, proceeded to the Rio Best Motel at 4800 North Interstate 35, in Austin, Texas.

The occupants of the vehicle left the Ryder truck, and proceeded to a motel in the Southeasterly part of Austin, Texas. A group of people met at the motel, and three of them left in a Chevrolet pick up truck, with a cab-over camper, and returned to the Rio -Best Motel.

A person, not the original driver, got of the pick up with camper, and drove the Ryder truck to Austin, with the pick up truck, camper combination following.

The vehicles proceeded to the farm, southwest of Austin, Texas, under the surveillance of the Texas Department of Public Safety and Austin, Texas organized crime unit, together with La. State Police Officers, including Danny Dough-erty and Joe White.

Surveillance was set up on the farm entered by the above vehicles. Approximately one hour after arrival, the Ryder truck was observed leaving. The truck was stopped, and marijuana sweepings were found in the cargo area. Also present in the cargo area of the truck was a strong odor of marijuana, observed by Officer Tommy Burnup of the Texas Department of Public Safety.

Several other vehicles arrived at the farm southwest of Austin, Texas, and the vehicles departed the residence after staying only a short period of time, and appeared to be heavily loaded when leaving. These vehicles were all stopped after leaving the residence and all vehicles, with one exception, were found to contain marijuana. The additional vehicle, driven by David Booth, was found to contain the sum of approximately $8,000.00 in cash, and a small quantity of suspected cocaine. A search warrant was executed on the farm SW of Austin, Texas, at approximately dawn on June 27, 1977. The search resulted in the seizure of approximately 1,000-1,600 pounds of marijuana and approximately 3,000 marijuana plants. The search also resulted in the seizure of a small quantity of suspected cocaine.

One of the vehicles referred to above, a bronze four wheel drive GMS pickup truck, was found to contain approximately 1,000 pounds of marijuana.

The Ryder truck which was searched near Austin, Texas, and found to contain sweeping of marijuana, is known to be the same Ryder truck was seen entering, and leaving the Beauregard Parish farm, or residence. It was kept under constant surveillance from the time it left the Beauregard Parish farm or residence, until it was searched, and found to contain the marijuana sweepings. This truck was rented in Lake Charles, La., on June 25, 1977, bears South Carolina license number 36953, and Ryder Truck number 03664.

As a result of the above, the Beauregard Parish farm, or residence, is suspected to a distribution point for the shipment of marijuana. The farm, or residence, was recently purchased by one Thomas M. Gorman, and is more particularly described as follows, to-wit:

The NVi of the SEV4 of NEVi of Section
4, Township 4 S, Range 7 W, Beauregard Parish, La. LESS AND EXCEPT the following three described parcels, to-wit:
1. That certain parcel sold and conveyed by Sarah Savilla Wright to Sim-eon Singleton and James C. Morrow, by deed dated January 19,1959, filed in Beauregard Parish, Louisiana, under Instrument File No. 141492.
2. That certain parcel sold and conveyed by Sarah Savilla Wright to Mrs. J. B. Burges by deed dated August 3, 1959, filed for record in Beauregard Parish, La., under Instrument File No. 143912; and
3. That certain parcel sold and conveyed by Sara Savilla Wright to Raymond Chambley by deed dated October 10,1960, filed for Record in Beauregard Parish, La., under Instrument File No. 150143.

This above described property is located on the East side of Bundicks Lake, in Beauregard Parish, La. Affiants seek authority to search the framed dwelling and outbuildings on said premises, including, without limitation, three metal sheds and a barn, along with a triple-wide mobile home. Affiants also seek authority to search, on the premises, approximately three large cargo-type trucks, and several assorted vehicles, including, without limitation a white sedan, a white dual wheel pick up truck, and a blue van, all of said vehicles being located on the above premises, as verified by Dwayne Cooley, of DeRidder, Beauregard Parish, Louisiana, as a result of air surveillance on the morning of June 27, 1977.

Sworn To and Subscribed Before Me This 27 Day of June . 19 77 at 11:15 A.M.

(s) Lpo. Jodie W. Dowden (s) L. H. Coltharp. Jr„_

(s) Lt. Edsil W. Smith_ (Criminal District Court Judge)

(s) Jor Bartlett_

Defendants contend that the affidavit did not furnish probable cause for a search of the Beauregard Parish farm. Article I, Section 5 of the Louisiana Constitution of 1974 provides in part:

“No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search.”

A search warrant may not be issued upon an affidavit indicating that the affiant has reasonable cause to suspect that the object of the search is on the premises. The affidavit must recite facts establishing to the satisfaction of the judge who issues the search warrant that probable cause exists to search the premises for the object sought. State v. Paciera, 290 So.2d 681 (La.1974).

Probable cause exists when the facts and circumstances within the affiant’s knowledge, and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched. State v. Koncir, 367 So.2d 365 (La.1979); State v. Turnipseed, 362 So.2d 486 (La.1978); State v. Richards, 357 So.2d 1128 (La.1978). When information contained within the warrant application is based on hearsay, underlying information supporting the credibility of the informant and the reliability of the information must also be alleged. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); State v. Babbitt, 363 So.2d 690 (La.1978); State v. Richards, 357 So.2d 1128 (La.1978).

A careful review of the affidavit in light of the above standards discloses the deceptiveness of its length and the insub-stantiality of its content. First, the affidavit states that “U.S. Customs Officials had under investigation a group of known smugglers” (emphasis supplied) who had allegedly obtained a warehouse in Larose and the farm in Beauregard Parish. The fact that this hearsay information was supplied by U.S. Customs agents may alone support the credibility of the informants. No facts, however, are alleged which indicate how it was known that the suspected parties were “smugglers” or that the warehouse had been obtained by them.

At the hearing on the motion to suppress, the affiants, Edsel W. Smith and Jodie Dowden, testified that they had previously met with U.S. Customs Officers Gary Thompson and Harry Benjamin. Smith and Dowden could not recall if the Customs officers used the words “known smugglers.” Also, Smith and Dowden stated that the Customs officials did not give them any facts upon which they may have concluded that they had “known smugglers” under surveillance. The affiants were not given any information as to the suspected persons’ backgrounds, activities, prior convictions or arrests, that would cast any light on those persons as having a reputation of engaging in smuggling activity. Affiant Joe Bartlett did not meet with the Customs officials but received his information, as to that meeting, from state police officers who did talk with the Customs officials.

While the credibility of the informants (the Customs officials) may be apparent from the face of the affidavit, there are no facts presented to support the credibility of the information. Therefore, it must be omitted in considering whether the affidavit supports probable cause. See State v. Hysell, 364 So.2d 1300 (La.1978); State v. Joseph, 351 So.2d 1162 (La.1977). Without creditable information that “known smugglers” were behind the vehicular traffic to and from the LaRose warehouse and the Beauregard Parish farm, that activity sheds its suspicious character, as it is equally consistent with the operation of a working farm. (Indeed, the transcript indicates that the site was being legitimately worked and developed by its occupants.)

The only other information contained in the affidavit linking the Beauregard Parish farm with illegal activity are the allegations, apparently within the affiants’ personal knowledge, that a Ryder rental truck, seen entering the farm on June 25, 1977, and leaving the farm the following day, was searched after it departed from a farm near Austin, Texas, whereupon marijuana sweepings and the odor of marijuana were detected. Also, the affiants alleged that the search of other vehicles as they left the Texas farm resulted in the seizure of marijuana, leading to the issuance of a Texas search warrant resulting in the seizure of large quantities of marijuana from the Austin, Texas farm. While the legality of the Texas searches leading to this information appears somewhat suspect, we need not reach this issue, nor the standing of defendants to challenge these searches, since the affidavit under consideration does not justify a finding of probable cause for the search of the Beauregard Parish farm, even assuming that the Texas information was validly obtained.

The sole link between the Texas marijuana seizures and the Beauregard Parish farm was the Ryder rental truck in which marijuana sweepings were found in Texas. The only connection between the truck and the Beauregard Parish farm is that it stopped at the farm from some unknown point on the night of June 25, 1977, and departed therefrom the next morning. There was no indication whether the truck was loaded or unloaded with marijuana on the farm, nor whether it was driven by an occupant of the farm. Thus, there were no allegations which would lead a reasonable person to believe that marijuana could be found on the farm. All that was present were the mere suspicions of officers that the truck was loaded (or unloaded) on the Beauregard Parish farm and that marijuana still could be found there. Unsupported suspicions are not sufficient to constitute probable cause for issuance of a search warrant. See State v. Koncir, supra; State v. Valentine, 355 So.2d 897 (La.1978).

The allegations linking the Ryder rental truck with the Beauregard Parish farm can be compared to those considered in State v. Valentine, 355 So.2d 897 (La.1978). There the affiant alleged that he saw his informant go to the front door (but not inside) of the residence sought to be searched. He also alleged that the affiant gave him marijuana upon his return. This court in holding the issuance of the warrant improper observed that the affiant did not establish that the marijuana came from the residence. Even if it could be discerned from the allegation that the marijuana came from the residence, there was no allegation that any more marijuana could be found there. Likewise, in this case, the fact that the marijuana sweepings found in Texas after the truck had entered a Texas farm out of the sight of officers, did not indicate that the substance came from the Beauregard Parish farm, or if it did, that any more of the substance could be found there.

Since the affidavit did not establish probable cause for the issuance of a search warrant, the trial court erred in denying defendants’ motion to suppress and in admitting all of the evidence yielded by the search at trial.

Accordingly, defendants’ convictions and sentences are reversed and the two consolidated cases are remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

SUMMERS, C. J., dissents.

       Judge Cecil C. Cutrer of the Court of Appeal, Third Circuit, participated in this decision as Associate Justice Ad Hoc.

      . Possession of marijuana (first offense) is punishable by a maximum sentence of six months and/or a fine of up to five hundred dollars, R.S, 40:966(D); thus a conviction for that offense is nonappealable under Article V, Section 5(D) of the 1974 Louisiana Constitution.

      . It should be noted that the Ryder truck searched in Texas was not among those vehicles searched on the Beauregard Parish farm.

      . On the last page of the affidavit, immediately above the description of the property, the affidavit states as follows: “As a result of the above, the Beauregard Parish farm, or residence, is suspected to [be] a distribution point for the shipment of marijuana.” [emphasis supplied]


source: Caselaw Access Project

author: DIXON, Justice .

license: Public Domain

text:
    CENTRAL LOUISIANA ELECTRIC COMPANY, INC. v. LOUISIANA PUBLIC SERVICE COMMISSION et al.
    No. 63028.
    Supreme Court of Louisiana.
    April 9, 1979.
    Rehearing Denied May 21, 1979.

      France W. Watts, III, Watts & Cassidy, Franklinton, John Schwab, II, Cangelosi & Schwab, Baton Rouge, for intervenor-appel-lant Washington-St. Tammany Electric Cooperative, Inc.
    Marshall B. Brinkley, Baton Rouge, LPSC, for defendant-appellee.
    William 0. Bonin, Landry, Watkins & Bonin, New Iberia, for plaintiff-appellee.
   DIXON, Justice .

Central Louisiana Electric Company, Inc. filed a petition with the Louisiana Public Service Commission seeking to have the Commission order Washington-St. Tammany Electric Cooperative, Inc. to cease and desist from rendering any electric service in Pine Grove Subdivision in St. Tammany Parish, Louisiana, to remove the facilities constructed there in 1975, and to comply with the Commission’s General Order of March 12, 1974 regarding promotional practices. After a hearing the Commission dismissed Central Louisiana Electric’s complaint and it appealed to the Nineteenth Judicial District Court, East Baton Rouge Parish; the Washington-St. Tammany Electric Cooperative intervened. After a trial at which evidence was introduced, the district court remanded the case to the Commission for. further consideration, R.S. 45:1194; the Commission found that the evidence presented at the trial was “inconclusive and de minimus at the best” and affirmed its original order. On appeal by Central Louisiana Electric, the district court reversed the Commission in part, enjoining the Cooperative from making further extensions of service in the subdivision, ordering the Cooperative to remove all electric lines and services previously installed in the subdivision, and affirming in all other respects the Commission’s order. The Cooperative appealed to this court. La.Const. 1974, Art. 4, § 21(E).

The evidence establishes that the owner and developer of Pine Grove Addition 1, Landmark Development Corporation, applied to the Cooperative on August 21,1974 for electrical service; that the subdivision of Pine Grove Addition 1 was approved and the certified plat conforming to R.S. 33:5051 was filed for record on November 15, 1974; and that a resident of Pine Grove Addition 1, Mr. Kenneth Johnson, applied to the Cooperative on December 6, 1974 for electrical service to his Lot # 74 in the middle of this new subdivision. Before this time, the Cooperative had been furnishing electrical service to customers in Brier Lake and Brier Lake Annex Subdivision which is north of Pine Grove Addition 1. On March 12,1975 the Cooperative completed its electrical lines from Brier Lake into Pine Grove Addition 1 by running its overhead lines 788 feet west along the southern edge of Brier Lake Annex Subdivision, by continuing its overhead lines 1366 feet south to the northwest edge of Pine Grove Addition 1, and, finally, constructing underground lines 1273 feet south through Pine Grove Addition 1 to serve Mr. Johnson. From that same line, the Cooperative later served upon application a number of other residents in Pine Grove Addition 1.

On January 22, 1976 Central Louisiana Electric filed a complaint with the Commission concerning this extension into Pine Grove Addition 1 Subdivision; at the Commission hearing, February 14, 1977, Central Louisiana Electric presented evidence that it, too, served residents in the southern part of Pine Grove Addition 1 from its 13,200 volt three phase line running along the south side of U. S. Highway 190 which is south of Pine Grove Addition 1 and which had been there since 1957. Central Louisiana Electric’s complaint is not that the Cooperative violated R.S. 45:123, which prohibits extending electrical facilities to any point of connection which is within 300 feet of electrical lines of a competing utility. Although several lots in Pine Grove Addition 1 are within 300 feet of Central Louisiana Electric’s lines, Central Louisiana Electric acknowledges that the point of connection in R.S. 45:123 means meter connection and not the subdivision as a whole nor the lots within the subdivision. South Louisiana Electric Cooperative Assn. v. Louisiana Public Service Commission, 309 So.2d 287 (La.1975). Instead, Central Louisiana Electric argued that the Cooperative violated the Commission’s General Orders of March 12, 1974 regarding duplication of service and promotional practices.

The Commission, interpreting its own orders, dismissed Central Louisiana Electric’s complaint after reciting the significant testimony from its hearing. Noting that the Commission did not make any factual findings, the district court determined that it was free to review the record and make its own determinations, which was that the General Order regarding duplication of service had been violated, but that there was no evidence that the General Order regarding promotional practices had been violated. The Cooperative contends on appeal to this court that the district court erred in substituting its judgment for that of the Commission by holding that the Cooperative’s services were a duplication of Central Louisiana Electric’s services in Pine Grove Subdivision.

It would avoid needless litigation and make for effective and expedient enforcement of the Commission’s orders to require the Commission to disclose the basis of its orders. The Commission should clearly indicate that it has exercised its discretionary power by including in its decisions statements of findings and conclusions and the reasons or basis thereof. Phelps Dodge Corp. v. Labor Board, 313 U.S. 177, 61 S.Ct. 845, 85 L.Ed. 1271 (1941); Davis, Administrative Law of the Seventies, Supplementing Administrative Law Treatise, § 16:00-2, p. 385 (1977). However, while indicating that for judicial review it is preferable that the administrative agency make findings as to the central disputed issues and explain the reasons for its determination, this court has not before held that such formal findings and reasons are essential to the validity of a determination by the Commission, unless required by statute. See, Baton Rouge Water Works Co. v. Louisiana Public Service Commission, 342 So.2d 609 (La.1977) and cases cited therein.

Upon review, a Commission order should not be overturned unless it is shown to be arbitrary, capricious or abusive of its authority. One attacking a Commission order bears the burden of demonstrating that it is defective, because the order is presumed valid and the Commission’s decisions will not be disturbed unless found to be clearly erroneous or unsupported by the evidence. South Louisiana Electric Cooperative Assn. v. Louisiana Public Service Commission, 367 So.2d 855 (La.1979) and cases cited therein. Further, the Commission is an expert within its own specialized fields and its interpretation and application of its own General Orders, as distinguished from legislative statutes and judicial decisions, deserve great weight, because the Commission is in the best position to apply its own General Orders. Finally, while a decision of the Commission may be deemed arbitrary unless supported by some factual evidence, when there is some evidence upon which the Commission could reasonably base its determination, then the usual standard of appellate review of administrative bodies applies. Truck Service, Inc. v. Louisiana Public Service Commission, 263 La. 588, 268 So.2d 666 (1972); Hearin Tank Lines, Inc. v. Louisiana Public Service Commission, 247 La. 826, 174 So.2d 644 (1965).

In its General Order of March 12,1974 on Duplication of Electric Service, the Commission determined:

“. . that the paralleling and duplication of existing transmission or distribution lines as defined in Louisiana Revised Statutes 45:123 or the extensions of either by electric public utilities to serve customers readily accessible to like facilities of an electric public utility already providing service in the immediate area is not in the public interest, and that such practices ultimately lead to wasteful competition and unwise expenditures and investments which become a burden upon the rate payers.
It is recognized that while in some areas there is not clear line of demarcation between the service area of electric public utilities, for the purpose of this order, the service area of electric public utility is that area which, as a result of the existence of transmission and distribution lines, is readily accessible by economically feasible extensions from such existing facilities. This necessarily includes customers already receiving service. . . .”

The Commission ordered in part:

“That no extension of electric transmission or distribution lines shall be made by an electric public utility that will duplicate the transmission and distribution lines (as defined in Louisiana Revised Statutes 45:123) of another like utility, nor shall extensions be made to serve customers that could be served from such electric public utility facilities already in existence in an economic and justifiable manner. . . . ” (Emphasis added).

For the full text of this order, see Appendix 1 of Louisiana Power & Light Co. v. Louisiana Public Service Commission, 343 So.2d 1040 (La.1977), where this court upheld the validity of this order.

After considering this order, the district court concluded that the Cooperative had “leapfrogged a considerable distance from its Brier Lake operations to the Pine Grove Subdivision. At a relatively small cost, the same northern part of Pine Grove Subdivision could have been serviced by Cleco which had already been satisfying customer demands in the southern part of the subdivision.” We cannot agree with the district court’s acceptance of Central Louisiana Electric’s contention that Pine Grove Addition 1 is one subdivision located on both sides of U. S. Highway 190. Central Louisiana Electric did not introduce evidence of this unity; the Cooperative did introduce a copy of the certified plat of Pine Grove Addition 1 on file with the Clerk of Court of St. Tammany Parish which shows Pine Grove Addition 1 entirely north of U. S. Highway 190 and it is Pine Grove Addition 1 that the Cooperative moved into on March 12, 1975. Further, Central Louisiana Electric failed to introduce evidence that showed when Central Louisiana Electric crossed north of U. S. Highway 190 into Pine Grove Addition 1, or that showed that Central Louisiana Electric was already in Pine Grove Addition 1 serving residents when the Cooperative moved into the subdivision. Central Louisiana Electric failed to prove either that the extension made by the Cooperative to serve Pine Grove Addition 1 residents were duplications of facilities of Central Louisiana Electric “already providing service in the immediate area,” or that Central Louisiana Electric could serve in a more economical and justifiable manner the residents of Pine Grove Addition 1 from its facilities already existing on the south side of U. S. Highway 190. Consequently, we do not find the Commission’s decision to dismiss Central Louisiana Electric’s complaint an abuse of its authority. The burden was on Central Louisiana Electric to prove the basis of its complaint.

Central Louisiana Electric’s complaint also alleged that the Cooperative violated the Commission’s General Order of March 12, 1974 regarding promotional practices because the Cooperative installed underground facilities in Pine Grove Addition 1 without requiring the subdivision developers or the resident customers to contribute the cost differential between overhead and the more expensive and more desirable underground facilities and without the prior approval of the Commission. Central Louisiana Electric argued that it was at a competitive disadvantage because prospective customers would be enticed away while Central Louisiana Electric observed the order. The Cooperative justified the installation of underground lines in subdivisions like Pine Grove Addition 1 because it was implementing a “comprehensive underground electric service policy” for the advantages of service continuity and reliability to the seventy to one hundred fifty customers in a subdivision. At the hearing, the Cooperative filed into evidence copies of this policy and explained the policy provisions and its uniform application even in areas where there was no competition between utilities for customers. After the Commission dismissed Central Louisiana Electric’s complaint, the district court found:

“. . . The record does not clearly demonstrate whether the Cooperative has a well established plan providing for placing underground future extensions or whether the policy is selective depending upon other considerations involving attractiveness to developers and customers. In the absence of evidence indicating that the latter is the foregoing consideration, the Court finds that the Cooperative is not engaging in ‘promotional practices’ and future installation of underground lines should not be prohibited.”

Although the Cooperative testified that the first underground line running 1273 feet south from the northwest edge of Pine Grove Addition 1 to Lot # 74 was a 7620 volt primary line, and neither the developer nor the resident owner of Lot # 74 paid for the cost differential, the Cooperative claimed that its comprehensive policy is never to charge for primary lines in a subdivision because of the value to the Cooperative of service continuity and reliability, especially during hurricanes and ice storms. The Cooperative steadfastly maintained that it did not give away the cost differential between overhead and underground lines, because it required the individual applicants in a restricted or developed subdivision to pay a scheduled cost differential and in an unrestricted or randomly developed subdivision to contribute the service trench from the underground primary line and transformer to the meter loop. The Cooperative testified that customers in Pine Grove Addition 1 were required to contribute the service trench after Lot # 74 was serviced.

There is an absence of evidence that the Cooperative’s policy for underground development is only for the purpose of enticing land developers and prospective customers away from competing utilities. Central Louisiana Electric admitted that the Cooperative had not taken away any of Central Louisiana Electric’s customers in Pine Grove. We cannot find that the Commission abused its discretionary power.

Accordingly, we reverse the judgment of the district court which modified the Commission decision, reinstate the Commission decision and dismiss this suit, at the cost of plaintiff-appellee.

SUMMERS, C. J., dissents.

       Judge Pike Hall, Jr., Louisiana Court of Appeal, Second Circuit, participated in this decision as an Associate Justice Ad Hoc.

      . Central Louisiana Electric Company also sought the Commission to order the Cooperative to remove its facilities constructed north of Berry Todd Road in Sections 28 and 21 of St. Tammany Parish, but Central Louisiana Electric abandoned this issue in the district court.

      . At the first hearing before the district court a major issue was whether the Cooperative had rendered service in violation of R.S. 45:123 to Lot # 63. It was later determined that this particular service was within 300 feet of Central Louisiana Electric’s meter loop on Lot # 62 and the Cooperative discontinued service to Lot # 63.

      . Since 1953 Central Louisiana Electric has also had a 7620 volt single phase line running north along Tranquility Road from U. S. Highway 190 to Cypress Street, then west along Cypress Street and finally south along an extension from Cypress Street to 175 feet from Lot # 33 on the northeast edge of Pine Grove Addition 1. But the focus of the instant litigation concerns service in Pine Grove Addition 1.

      . The Commission decision was as follows:
      “CENTRAL LOUISIANA ELECTRIC COMPANY, INC.
      versus DOCKET NO. U-12984 WASHINGTON-ST. TAMMANY ELECTRIC COOPERATIVE, INC.
      In re: Alleged violation of LRS 45:123 and LPSC General Order of 3/12/74, entitled ‘Promotional Practices’, by extending electric distribution facilities to serve Pine Grove Subdivision, St. Tammany Parish, Louisiana, and an area north of B. Todd Road, St. Tammany Parish, Louisiana.
      In this proceeding, Central Louisiana Electric Company, Inc., alleges that Washington-St. Tammany Electric Co-op, Inc., has violated the provisions of LRS 45:123 and LPSC Order dated March 12, 1974, entitled ‘Promotional Practices’ by extending service into Pine Grove Subdivision.
      This matter was heard by the Commission in Regular Session held February 14, 1977.
      Witnesses for CLECO testified that it serves customers in Pine Grove Subdivision, north and south of U. S. Hwy. 90, and that Lots 17, 18, 19, 20, 21, 33, 44, 43, 42, 41, 40, 46, 47, 45, 61, 64, 62, 63, and 76 are all within 300 feet of CLECO lines. He further testified that Washington-St. Tammany extended facilities into Brier Lake Subdivision and Pine Grove Subdivision. Witnesses for Washington-St. Tammany testified that the cooperative has a comprehensive underground electric service policy. The company will allow underground service up to 200 feet to any consumer provided the customer furnishes the trench and at 90$ per foot in excess of 200 feet. This policy has been in effect since 1972. In subdivisions built in an orderly development, the Company will extend underground at no cost. If the extension exceeds 200 feet, it will charge 90$ per foot. If more than 150 feet of primary per consumer is required, an additional 90$ per foot will be charged. The company will provide up to 500 feet for commercial establishments. He further testified that the Brier Lake developer contacted the cooperative for service in the subdivision and that this subdivision is to be developed in an orderly fashion.
      Witnesses for Washington-St. Tammany testified that underground facilities into Pine Grove Subdivision to Lot 74 were built at no cost to the developer because it was a primary circuit (7620 volt line) and that no service by the cooperative was extended to any lot within 300 feet of the CLECO electric lines.
      Accordingly, it is the opinion of the Commission that the complaint of CLECO be DISMISSED.
      BY ORDER OF THE COMMISSION BATON ROUGE, LOUISIANA June 20, 1977.”

      . This court has often stated that a ruling of the Commission must be supported by some factual evidence. In Louisiana Power & Light Co. v. Louisiana Public Service Commission, 343 So.2d 1040, 1044 (La.1977), we explained: “Further, while a ruling of the commission may be deemed arbitrary unless supported by some factual evidence, the function of the court on judicial review is not to re-weigh and re-evaluate the evidence and to substitute its judgment for that of the administrative agency constitutionally entrusted with regulation of the matter. Truck Service, Inc. v. Louisiana Public Service Com’n., 263 La. 588, 268 So.2d 666 (1972). As reiterated in Rubion Transfer and Storage Co. v. Louisiana Public Service Commission, 240 La. 440, 123 So.2d 880, 884 (1960): ‘ * * * Whenever the Public Service Commission, in the issuing of an order, has acted within its power, and not arbitrarily or grossly contrary to the evidence, and when no error of law has been committed, the court must not substitute its judgment for that of the commission, or consider the expediency or wisdom of the order, or say whether on like evidence the court would have made a similar ruling.’ ” (Emphasis added).

      . Concerning promotional practices the Commission ordered:
      “A) No public utility shall, individually, or through agents, persons, firms, or corporations acting on its behalf, directly or indirectly, grant, give, or permit any payment, rebate, preference or prize, or discrimination of any sort, including the granting or denial of any utility service, for the purpose of enticing, persuading or causing a utility subscriber or potential subscriber to deal with or take any service of such public utility or any of its affiliates in preference to the service of any other public utility, including, but not by way of limitation: 1) Waiver of any tariff provision requiring the posting or payment by any means of service charges, line extension charges, facilities charges of any sort, or deposits;

      B) No public utility shall offer or provide services or any other thing of value to any subscriber or potential subscriber, developer, architect, builder, investor, or other person which offering of service has not been previously approved by the Louisiana Public Service Commission.
      C) The term public utility shall include electric cooperatives and public utility activity or service under the jurisdiction of the Commission.” (Emphasis added).
      For a full text of this order, see Barras v. Louisiana Public Service Commission, 331 So.2d 842 (La.1976).


author: DIXON, Justice. MARCUS, Justice

text:
    INSURANCE COMPANY OF NORTH AMERICA and Gloria Latour, wife of/and Donald E. Lange v. SOLARI PARKING, INC. and U. S. Fidelity and Guaranty Company.
    No. 63238.
    Supreme Court of Louisiana.
    April 9, 1979.
    Rehearing Denied May 21, 1979.

      Andrew I. Brown, Henican, James & Cleveland, New Orleans, for Mr. and Mrs. Donald E. Lange.
    Jack M. Alltmont, Sessions, Fishman, Ro-senson, Snellings & Boisfontaine, New Orleans, for Solari Parking, Inc.
    David E. Walle, Metairie, Bienvenu, Foster, Ryan & O’Bannon, New Orleans, for U. S. Fidelity and Guaranty Co.
   DIXON, Justice.

This case involves the liability of a parking lot operator for the contents of an automobile which was stolen from the lot.

Gloria and Donald Lange, combining a honeymoon with a household move from Spokane, Washington to Key West, Florida, arrived in New Orleans on March 16, 1975 at approximately 9:00 p. m. Afraid to park the car on the street because it was loaded with their personal effects, the Langes drove around the French Quarter for a few minutes until they spotted the Solari Parking Garage — an inside, attended parking facility. After pulling into the garage’s driveway, the Langes surrendered the keys of their 1972 Riviera to the attendant, Mr. White, and received a claim check from him. After two or three minutes of conversation, White gave the Langes directions to Pete Fountain’s night club. No mention was made of the car’s contents. Two hanging clothes bags, a picnic basket, two automobile tires (snow tires, to be discarded in Florida, were on the vehicle), a pillow, an afghan, a black pouch and a cosmetic bag were in the back seat area; on the front seat was a carpet bag; suitcases were in the locked trunk of the ear.

After the Langes left, White got into the car and started to park it, but then left the car with the engine running when he was called away to attend to another customer. During this short interval, the automobile and all its contents were stolen. When the Langes returned several hours later, White related the occurrence to them and helped them fill out a claim of damage form, on which they listed the car and all its contents.

Although the Langes were paid for the loss of their automobile, Solari denied any responsibility for the items contained in the Riviera. Mr. and Mrs. Lange were partially compensated by their own insurer, Insurance Company of North America, which thereafter instituted suit as their subrogee against Solari and its insurer, United States Fidelity and Guaranty Company. The suit demanded $6185.00, which included $5185.00 paid for the loss of two pieces of jewelry and $1000.00 for the loss of unscheduled personal property. Mr. and Mrs. Lange intervened, claiming an additional $5609.03 as the undepreciated value of the other items left in the car. Solari brought a third party action against United States Fidelity and Guaranty Company when the latter denied policy coverage for the loss of the car’s contents.

After a trial on the merits, the district court held in favor of Insurance Company of North America and the Langes and against Solari and its insurer. The court also ruled in favor of Solari in the third party demand. On appeal, however, the Fourth Circuit reversed and rendered judgment in favor of the defendants. Insurance Company of North America thereafter abandoned its claim and only the interve-nors sought review to this court, which was granted on November 3, 1978.

In reaching its decision, the Court of Appeal reasoned that the liability of the depositary was based on his consent to receive, preserve and restore the property to another. C.C. 2926. The court then reviewed the jurisprudence and determined that recovery for the contents of an automobile had been awarded in cases where the owner or attendant had specifically discussed the contents with the driver. United States Fidelity & Guaranty Co. v. Dixie Parking Service, Inc., 262 La. 45, 262 So.2d 365 (1972); United States Fidelity & Guaranty Co. v. Allright Shreveport, Inc., 256 So.2d 479 (La.App.1972). On the other hand, the court noted cases in which recovery had been denied in the absence of the depositary’s express consent to accept the items. The Travelers Insurance Co. v. General Auto Service, Inc., 220 So.2d 738 (La.App.1969); Lee v. New Orleans Roosevelt Corp., 106 So.2d 855 (Orl.La.App.1958). The court then reasoned that the record failed to demonstrate either actual or constructive knowledge on the attendant’s part from which consent to accept the car’s contents could be presumed, and therefore concluded that the defendants were not responsible for the loss.

The essence of the appeal court’s rationale is that the depositary cannot consent to receive, protect, and restore items unknown to him. However, whether there was a contract of deposit of the contents of the car is not essential to a determination of the issue before us. The Langes entered into a contract of deposit of the car with Solari, which Solari admits was breached when White carelessly allowed the Langes’ automobile to be stolen. The applicable measure of damages is provided by Article 1934 of the Civil Code, which provides in part:

“Where the object of the contract is any thing but the payment of money, the damages due to the creditor for its breach are the amount of the loss he has sustained, and the profit of which he has been deprived, under the following exceptions and modifications:
1. When the debtor has been guilty of no fraud or bad faith, he is liable only for such damages as were contemplated, or may reasonably be supposed to have entered into the contemplation of the parties at the time of the contract. By bad faith in this and the next rule, is not meant the mere breach of faith in not complying with the contract, but a designed breach of it from some motive of interest or ill will.
2. When the inexecution of the contract has proceeded from fraud or bad faith, the debtor shall not only be liable to such damages as were, or might have been foreseen at the time of making the contract, but also to such as are the immediate and direct consequence of the breach of that contract; but even when there is fraud, the damages can not exceed this.”

A review of the record is convincing that the items contained in the Langes’ car are included in the damages which the parties contemplated, or which “may be supposed to have entered into [their] contemplation.” The Langes expected the attendant to take control of their possessions when they gave him the key to their car. Solari agreed to accept the Langes’ Riviera and expressed no reservations concerning its contents. It would be unreasonable to presume that Solari was unaware that many people frequently leave their personal items in their cars. In the instant case, the Langes’ entire back seat was filled with their possessions to make room for more items to be stored in the trunk. Although Solari has maintained its ignorance of the automobile’s contents, it must admit that automobiles containing a substantial number of items are common, especially in the French Quarter because of the large number of tourists.

Car thieves rarely unload vehicles before stealing them. Solari’s management is obviously aware that the contents of some vehicles will be stolen if its employees afford opportunities to car thieves. Conversely, if Solari’s attendant had taken proper security measures to protect the ear, the contents would not have been stolen. In light of these considerations, we conclude that the loss of the automobile’s contents was a part of the damages contemplated by the parties to the breached contract.

Although a depositary may not contract away his liability, which is the essential element of the contract of deposit, he can protect himself by specifying with the depositor the nature of the deposit and the extent of his responsibility for the deposited items. See Davila v. International Parking Co., 91 P.R.R. 197 (1964); Ellish v. Airport Parking Co. of America, 42 A.D.2d 174, 345 N.Y.S.2d 650, 655 (1973) (Shapiro, J. dissenting). In the instant case, Solari could have instructed White to inform all its customers that the parking facility was a depositary only for vehicles and that it would not accept responsibility for any items contained in their cars. Having failed to take this simple measure, Solari must accept the consequential liability for the contents of the Langes’ automobile.

The district court also held that Solari was to be indemnified by its insurer, United States Fidelity and Guaranty Company. In brief, the insurer argues that its policy coverage does not encompass the contents of the automobile parked at Solari’s facility. The relevant language of the policy provides:

“HI GARAGEKEEPERS’ LEGAL LIABILITY
COVERAGE K-l — FIRE AND EXPLOSION
COVERAGE K-2 — THEFT of the entire automobile
COVERAGE K-3 — RIOT, CIVIL COMMOTION, MALICIOUS MISCHIEF AND VANDALISM
COVERAGE K-4 — COLLISION OR UPSET
The Company will pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of:
K — 1. loss to an automobile caused by fire or explosion other than explosion of tires;
K-2. loss to an automobile caused by theft of the entire automobile.”

The insurer contends that the phrase “loss to an automobile” includes only the automobile and its equipment, such as tires and jacks, and not personal effects, such as those lost by the Langes. However, the policy language suggests coverage more general than merely for the automobile and its equipment. Narrow coverage, such as the insurer argues was intended by the policy, should be clearly and expressly stated, and should not give rise to several possible interpretations, as does the language in question.

It is settled jurisprudence that policy language is to be read broadly in favor of coverage, Kendrick v. Mason, 234 La. 271, 99 So.2d 108 (1958); Craft v. Trahan, 351 So.2d 277 (La.App.1977), and that ambiguities are to be construed against the insurer. Kendrick v. Mason, supra; Ory v. Louisiana and Southern Life Insurance Co., 352 So.2d 308 (La.App.1977). In light of these principles, we reinstate the trial judge’s interpretation of the policy provisions.

Both Solari and United States Fidelity and Guaranty Company contend that $1000.00 of the $5519.88 awarded to the Langes for the depreciated value of their personal property constituted a double recovery. The defendants argue that the Langes already have received $1000.00 from their insurer for the loss of personal property. However, we believe that the district judge was correct to award the entire $5519.88 to the intervenors since the money paid to them by their insurer was provided under a collateral contractual arrangement which has no effect on the liability of Solari or its insurer. See Corley v. West, 346 So.2d 1272 (La.App.1977), writ denied, 350 So.2d 673 (La.1977); Riley v. Frantz, 253 So.2d 237 (La.App.1971).

For the reasons assigned, the judgment of the Court of Appeal is reversed and the judgment of the district court in favor of Gloria L. and Donald E. Lange and against Solari Parking, Inc. and United States Fidelity and Guaranty Company is reinstated; on the third party demand, the decision of the district court in favor of Solari Parking, Inc. and against its insurer is reinstated; defendants are cast for costs.

SUMMERS, C. J., and BLANCHE, J., dissent.

MARCUS, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

A deposit, in general, is an act by which a person receives the property of another, binding himself to preserve it and return it in kind. La.Civil Code art. 2926. The deposit is perfected only by the delivery, real or fictitious, of the thing deposited. Id. art. 2930. The voluntary deposit takes place by the mutual consent of the person making the deposit and the person receiving it. Id. art. 2932.

In the instant case, the thing deposited with Solari was the Langes’ automobile. There is no proof in the record of express consent by Solari to accept any other items contained in the automobile (as noted by the court of appeal, the items of substantial value were located in the vehicle’s trunk). Moreover, assuming arguendo, that the responsibility of a depositary may be enlarged by its “constructive knowledge” of an automobile’s contents, the court of appeal was correct in its factual determination that such constructive knowledge was not established by the plaintiffs herein. I, therefore, cannot accept the majority’s conclusion that the items contained in the Langes’ automobile are included in the damages which the parties contemplated, or which “may be supposed to have entered into [their] contemplation.” La.Civil Code art. 1934(1). The clear effect of such a holding is to make depositaries insurers for the loss or damage of items not contemplated by the original contract of deposit.

Accordingly, I respectfully dissent.

      . This interpretation of United States Fidelity & Guaranty Co. v. Dixie Parking Service, Inc., supra, is apparently based on one sentence:
      “Here the deposit of the automobile and its contents was complete when it was shown that the parking lot attendant had knowledge of the contents of the car and had ‘not refused to receive it.’ ” 262 La. at 51, 262 So.2d at 367. However, the case did not hold that the attendant’s knowledge of the contents of the car was a prerequisite to his receiving them in deposit along with the automobile. See also, Coe Oil Service, Inc. v. Hair, 283 So.2d 734 (La.1973).

      .In Mintz v. Audubon Insurance Co., 140 So.2d 809 (La.App.1962) and General Accident Fire and Life Assurance Co., Ltd. v. J.F.D.L., Inc., 148 So.2d 857 (La.App.1963), the Fourth Circuit suggested that recovery was available for such items as one would ordinarily expect to be left in an automobile. See also, 14 McGill L.J. 101 (1968); 13 McGill L.J. 178 (1967). However, this rationale was repudiated by the same court in a rehearing per curiam in The Travelers Insurance Co. v. General Auto Service, Inc., supra.

      . But see C.C. 2943: “The depositary should not seek to know what are the things confided to him, if they are shut up in a box, or in a sealed cover.”

      . In brief the intervenors characterized the attendant’s actions as gross fault which they argue is tantamount to fraud, C.C. 3556(13), and therefore suggest that damages be assessed under C.C. 1934(2). However, we need not consider this contention since we find that the parties contemplated the damages in question.

      . Different considerations might come into play if the automobile is not stolen, but only items of property from the automobile. Security measures intended to protect vehicles from theft might not be intended to protect their contents.

      . In Zesiger v. Dean, 247 So.2d 222 (La.App.1971), the depositary allowed the automobile entrusted to him to be impounded by the police for illegal parking. This caused the owner to appear twice in traffic court and to lose a day’s pay, approximately $15.00, for each appearance. Taking a common sense approach to determining what damages were contemplated by the parties, the court awarded the plaintiff $32.00 for the lost earnings.


author: DIXON, Justice.

text:
    STATE of Louisiana v. Leonard R. SLAY, Wesley L. Slay and Clois Slay.
    No. 63286.
    Supreme Court of Louisiana.
    April 9, 1979.
    Rehearing Denied May 21, 1979.

      Edward Larvadain, Jr., Alexandria, for defendants-relators.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Marion Farmer, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., Research & Appeals Div.; Kurt F. Sins, Asst. Dist. Atty., for plaintiff-respondent.
    Peter E. Duffy, Metairie, for Louisiana Dept, of Wildlife & Fisheries, amicus curiae.
   DIXON, Justice.

On June 23, 1978 Wesley L. Slay and his brother and son, Clois Slay and Leonard Slay, were arrested while fishing in Red River Parish by agents of the Department of Wildlife and Fisheries and were charged with using nets of an illegal size and with using untagged nets, separate violations of R.S. 56:322. The defense moved to quash the bills of information filed against the defendants on the ground that the statute in question violated the constitutional prohibition against local or special laws embodied in Article 3, § 12 of the 1974 Louisiana Constitution. The trial court denied the motion, and the defendants were convicted as charged. Wesley Slay was fined $25.00 and was ordered to pay court costs; Clois and Leonard Slay were required to pay court costs, but their fines were suspended. On November 3, 1978 this court granted a writ of certiorari to review the ruling of the district court. 363 So.2d 1388 (La.1978). We reverse.

Article 3, § 12 of the Louisiana Constitution prohibits the legislature from enacting a special or local law which defines any crime. A statute is considered special or local if its restrictions can affect only a portion of the citizens or a fraction of the property embraced within the created classification. Davenport v. Hardy, 349 So.2d 858 (La.1977); State ex rel. Miller v. Henderson, 329 So.2d 707 (La.1976). A general law, on the other hand, “operates equally and uniformly upon all persons brought within the relations and circumstances for which it provides or operates equally upon all of a designated class, founded upon a reasonable and proper classification.” State v. LaBauve, 359 So.2d 181, 182 (La.1978).

However, the mere fact that a statute’s enforcement is limited, to a particular locality does not by itself render the statute a local or special law, simply because the conditions under which it operates may not prevail in all localities. State v. LaBauve, supra; Davenport v. Hardy, supra. The salient characteristic of a special or local law is that it operates in one locality without the possibility of extended coverage to other areas if the requisite criteria of the statutory classification are determined to exist there, or that it affects only a certain number of persons within a class, and not all persons possessing the class characteristics. State ex rel. Miller v. Henderson, supra.

R.S. 56:322 provides in pertinent part:

“A. . . .
(1)A person may have in possession or in use for the taking of commercial fish, hoop nets with a mesh of not less than two inches square or four inches stretched after treating with tar or copper.
D. Notwithstanding the provisions of Subsection A of this Section concerning the size of mesh, any person may have in his possession or use for taking fresh water commercial fish, seines and hoop nets with a mesh of not less than one inch square or two inches stretched after treating with tar or copper, in the following designated areas:
(1) In the parishes of Assumption, Livingston, Iberville, Pointe Coupee, St. Martin, Avoyelles, LaSalle, St. Mary and West Baton Rouge, including all streams or rivers which serve as a boundary of any of said parishes, and within the banks of the Black River forming the border between the parishes of Concordia and Catahoula, and within the banks of the Vermilion River where it forms a common boundary between the parishes of Lafayette and St. Martin, and within the banks of the Vermilion River within the parish of Lafayette.
(2) In that portion of the Atchafalaya River Basin area that is bounded on the north by U. S. Highway 190, on the east by the Mississippi River to the Gulf of Mexico, on the south by the Gulf of Mexico, and on the west by the West Atchafa-laya Basin protection levee, and
(3) In the parish of Caldwell within the natural banks of the Ouachita River only.”

In brief, the statute prohibits the use of nets with mesh less than two inches square or four inches stretched except in the areas designated in Subsection D, where mesh of one inch square or two inches stretched is permitted.

A statute is suspect as a local or special law if its operation is limited to certain parishes or designated areas unless the limitation results from a reasonable classification such as population or physical characteristics. State v. LaBauve, supra; see Johnson, Legislative Process, 36 La.L. Rev. 549 (1976). Although the statute itself provides no reasonable basis for the classifications, the state and the Department of Wildlife and Fisheries in an amicus curiae brief contend that the smaller mesh is permitted to promote efficient management of fishery resources in southern areas of the state where the great confluence of waters gives rise to a large fish population.

However, reference to a standard map of the state reveals the fallacy of this position since large expanses of waters in the southern part of the state are not included in the areas designated in Subsection D. It is difficult to believe that the fish population is significantly greater in St. Mary Parish, where the one inch mesh is permitted, than in Vermilion Parish or the western part of Iberia Parish, where using the smaller mesh entails criminal liability. It also appears anomalous that fishermen may use the one inch mesh in the Ouachita River within the boundaries of Caldwell Parish, but must fish with the larger mesh once the river flows into Catahoula Parish. Certainly it strains logic to assume that the fish population is significantly smaller in the downriver parish, especially in light of the expert testimony adduced at trial that most fish in the state spawn in the southern waters and migrate to the north. It is also difficult to reconcile the purported rationale of the classification with the total disregard given to other water bodies in the southern part of the state such as the Calcasieu, Pearl and Sabine Rivers and Calcasieu, Grand and White Lakes. Therefore, it is clear that the present division of the state into two areas, one in which the smaller mesh is permitted and the other in which it is forbidden, has no rational basis. Instead, the law’s effect is conditioned solely upon the specific designation of certain areas in Subsection D, and the statute R.S. 56:322 must therefore be considered a local law which violates Article 3, § 12 of the Louisiana Constitution.

For the reasons assigned, the ruling of the district court denying the motion to quash is reversed, and the case is remanded to the district court for further proceedings consistent with the views expressed herein.

      . The defendants also argued that R.S. 56:322 denied them the equal protection of the laws. We need not reach the issue due to our disposition of the case on other grounds.

      . Article 3, § 12 provides in pertinent part:
      “(A) Prohibitions. Except as otherwise provided in this constitution, the legislature shall not pass a local or special law:

      (10) Defining any crime.”

      . A Louisiana court may take judicial cognizance of the state’s topography and geography. State v. Clement, 188 La. 923, 178 So. 493 (1938).


author: DIXON, Justice. MARCUS, Justice BLANCHE, Justice,

text:
    Loyd BASS, and Vonnie R. Bass v. AETNA INSURANCE COMPANY, and Southern Farm Bureau Casualty Insurance Company.
    No. 63361.
    Supreme Court of Louisiana.
    April 9, 1979.
    Rehearings Denied May 21, 1979.

      John A. Cvejanovich, Anderson, Toledano & Courtney, Covington, for plaintiffs-applicants.
    Charles M. Cassidy, Watts & Cassidy, Franklinton, for Aetna Ins. Co.
    John J. Hainkel, Jr., Porteous, Toledano, Hainkel & Johnson, New Orleans, for Southern Farm Bureau Casualty Ins. Co.
   DIXON, Justice.

Mr. and Mrs. Loyd Bass sued Aetna Insurance Company, insurer of Mr. Kenneth Fussell under a homeowner’s policy, and Southern Farm Bureau Casualty Insurance Company, insurer of Shepard’s Fold Church of God, seeking damages for personal inju-ríes suffered by Mrs. Bass when Mr. Fus-sell, a member of the Shepard’s Fold Church, ran down the church aisle and collided with Mrs. Bass, also a member of the church, who was in the aisle praying. The defendants denied all allegations of negligence on the part of their insureds, and, alternatively, pleaded the affirmative defenses of assumption of the risk and contributory negligence. After trial on the merits, the Twenty-Second Judicial District Court for the Parish of St. Tammany dismissed plaintiffs’ suit and on appeal the First Circuit Court of Appeal affirmed the dismissal in an unpublished opinion. Upon plaintiffs’ application we granted writs.

On the evening of February 12, 1974, during a revival service, the Shepard’s Fold Church of God was very crowded with not enough seats to accommodate all the parishioners. Consequently, Mrs. Bass and other parishioners who could not find seats were standing in the aisles of the church. Reverend Rodney Jeffers, in the course of preaching to the congregation, stated that the doors of the church should be opened and referred to the possibility of “running.” Immediately afterward, Mr. Fussell began running up the aisle and ran into Mrs. Bass, who was in the aisle praying with her head bowed. As a result, Mrs. Bass fell and was injured.

The issues are whether Mr. Fussell was negligent, whether the Shepard’s Fold Church of God was negligent, and, if so, whether the plaintiffs’. action is barred by either the defenses of assumption of the risk or contributory negligence. Although Mr. Fussell testified that he was “trotting” under the Spirit of the Lord and does not remember actually running into Mrs. Bass, another witness testified that she saw Mr. Fussell run into Mrs. Bass and knock her down. If Fussell’s defense is that he was not in control of his actions, it can be compared to voluntary intoxication, which will not exonerate one from delictual responsibility. A worshiper in church has no more right to run over a fellow worshiper in the aisle than a passerby on the sidewalk. Mr. Fussell breached this duty and was negligent when he trotted or run down the aisle of the church without, regard for the safety of other parishioners in the aisles.

Actionable negligence also results from the creation or maintenance of an unreasonable risk of injury to others. In determining whether the risk is unreasonable, not only the seriousness of the harm that may be caused is relevant, but also the likelihood that harm may be caused. Guilbeau v. Liberty Mutual Insurance Co., 338 So.2d 600 (La.1976). In the instant case, according to both Mrs. Bass and Reverend Jeffers, there were approximately three hundred fifty to three hundred seventy-five parishioners in the church on the night of the accident, and many of the parishioners were standing in the aisles. Reverend Jef-fers recognized the likelihood that harm might be caused by this crowded condition because he testified that he asked that the aisles be cleared, that he encouraged “open response to the Spirit,” and that running or moving “in the Spirit” were common forms of religious expression in Shepard’s Fold Church. Another defense witness testified that Reverend Jeffers, recognizing the crowded aisles, asked if somebody would run for him (which apparently is what Mr. Fussell did). Reverend Jeffers did not stop the service to clear the aisles, but continued to maintain an unreasonable risk of injury to the parishioners. The Shepard’s Fold Church is responsible for the negligence of its pastor, Reverend Jeffers, under these circumstances. C.C. 2320.

Concluding that both Mr. Fussell and the church were negligent, we next consider the defenses of assumption of the risk and contributory negligence. The Court of Appeal, in affirming the trial court, concluded that Mrs. Bass assumed the risk by remaining in the aisle with her eyes closed, and that she was contributorily negligent by remaining after having been alerted that running might occur.

Assumption of the risk and contributory negligence are affirmative defenses, C.C.P. 1005, and as we stated in Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133, 141 (1971):

“The determination of whether a plaintiff has assumed a risk is made by subjective inquiry, whereas contributory negligence is determined objectively under the reasonable man standard. See Restatement (Second), Torts § 496 (1965); Symposium: Assumption of Risk, 22 La.L. Rev. 1-166. ...”

Knowledge is the mainstay of this assumption of the risk defense, and this court will impute knowledge to a plaintiff, not because he was in a position to make certain observations, but only when the plaintiff actually made those observations and from those observations should reasonably have known that a risk was involved. Prestenbach v. Sentry Insurance Co., 340 So.2d 1331 (La.1977). Assumption of the risk therefore is properly applicable to those situations where the plaintiff, with knowledge of the peril, voluntarily enters into a relationship with defendant involving danger to himself because of defendant’s contemplated conduct.

We cannot agree with the Court of Appeal’s conclusion that Mrs. Bass assumed the risk. Although Mrs. Bass had belonged to the Church of God faith for approximately fifty-five years and the Shepard’s Fold Church for approximately twenty-five years, neither she nor any other witness had seen or heard of any injury or collision in any Church of God church. Before the accident, no one, including Mrs. Bass, felt endangered by worshiping in this church. Mrs. Bass unequivocally testified that she had never seen anyone run in the church. The evidence fails to persuade us that Mrs. Bass actually, subjectively comprehended that by praying in the aisle she was incurring a risk of being run over (Guillotte v. Houston General Insurance Co., 368 So.2d 1026 [La.1979]), or that she could or should have known or understood that she was incurring such a risk as, for example, in Schofield v. The Continental Insurance Co., 330 So.2d 376 (La.App.1976), where the spectator at a Zulu parade at Mardi Gras was hit by a coconut thrown from a float.

The defense failed to prove that Mrs. Bass voluntarily assumed or exposed herself to this risk. Movement in the aisles was not an extraordinary condition in this church because worshipers frequently went to the altar, “the very central focal point in the church,” for prayer. Heedless running in the aisle was an unusual and extraordinary hazard, to which plaintiff did not knowingly expose herself. Rosenberger v. Central Louisiana District Livestock Show, 312 So.2d 300 (La.1975).

Contributory negligence is also an affirmative defense; the defendants bear the burden of proving contributory negligence by a preponderance of the evidence. Contributory negligence is objectively determined under the “reasonable man” standard. McInnis v. Fireman's Fund Insurance Co., 322 So.2d 155 (La.1975). It is not contributory negligence to bow one's head when praying in a church, whether in the pew or in the aisle.

The plaintiffs also ask this court to award damages, or, in the alternative, remand this case for a determination of quantum. As a matter of policy this court usually does not fix damages when neither the trial nor the intermediate court has passed upon this question. Smolinski v. Taulli, 276 So.2d 286 (La.1973). Instead, we remand the proceedings for such purpose.

For the reasons assigned, the judgments of the district court and of the Court of Appeal are reversed; the case is remanded to the Court of Appeal, First Circuit, to fix the damages to which plaintiffs are entitled. All costs are taxed against the defendants.

MARCUS, J., concurs in part and dissents in part and assigns reasons.

SUMMERS, C. J., dissents.

BLANCHE, J., dissents and assigns reasons.

MARCUS, Justice

(concurring in part and dissenting in part).

I consider that Mr. Fussell was negligent and that his negligence was the sole proximate cause of the accident. Moreover, I do not feel that Mrs. Bass either assumed the risk or was contributorily negligent. I do not find that Reverend Jeffers was negligent; however, even assuming that he was, I do not consider that his negligence was a proximate cause of the accident. Hence, I concur in part and dissent in part.

BLANCHE, Justice,

dissenting.

I respectfully dissent.

I believe that Mrs. Bass assumed the risk of the injury which she suffered because she knew, or reasonably should have known, from her own personal experience the demonstrative nature of the church service which she understood and in which she was a willing participant.

      . The “Act of God” defense cannot be seriously considered. An “Act of God” means “force majeure.” See Stone, Tort Doctrine, § 45 in 12 Louisiana Civi! Law Treatises (1977).

      . In response to defense counselor, Mr. Cassi-dy’s questions, Mr. Fitzgerald testified on direct examination:
      “Q. Did you hear Reverend Jeffers make any statement about opening the doors?
      A. Yes, he said to open the doors.
      Q. Tell the Court what he said, as best you recall.
      A. The best I recall he said to open the doors, he felt like running and he didn’t have room because of the crowd and would somebody please run for him.”

      . Although there is testimony that Reverend Jeffers asked the people to clear the aisles, Mrs. Bass and at least one other parishioner, a defense witness, testified that they did not hear this request. Mrs. Bass and several witnesses did hear Reverend Jeffers ask that the doors be opened and mention running, but almost immediately afterward, according to Mr. Fussell’s own testimony, Mr. Fussell began running down the aisle and into Mrs. Bass.

      . In Rosenberger, the plaintiff was injured in a bareback bronco riding contest when the horse ran the plaintiff into the gatepost of a gate in the arena negligently left open during the contest. This court found that the plaintiff had assumed the natural and ordinary risks ancillary to bronco riding but not the extraordinary risks created by negligent operation or maintenance of the rodeo premises.


author: CALOGERO, Justice. TATE, J.,

text:
    STATE of Louisiana v. Ted WILLIAMS.
    No. 63162.
    Supreme Court of Louisiana.
    April 9, 1979.
    Rehearing Denied May 21, 1979.
    Mayer Finkelstein, John W. Reed, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Richard J. Petre, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   CALOGERO, Justice.

Defendant Ted Williams was convicted after a bench trial of three counts of armed robbery, violations of R.S. 14:64. The state filed an habitual offender bill in connection with one of the armed robbery counts, alleging two prior felony convictions. Upon defendant’s admission of the allegations of prior convictions contained in the multiple bill, the trial court imposed a sentence of forty-nine years on the armed robbery count set forth in the multiple bill and five year sentences on each of the two remaining armed robbery counts, all sentences to run concurrently. One assignment, complaining of error in the trial court’s denial of a motion for new trial, is urged on appeal. However, the issues presented in brief and in argument to this Court in support of the claimed error are not properly before us.

After the judge conducted Williams’ trial, he ordered the state and defense to submit memoranda. Two days later the court announced that it found defendant guilty as charged on all three counts of armed robbery. Thereupon, the defense counsel stated: “Well, we would respectfully file an appeal and ask for a new trial and verbally supplement it [sic] with a motion and waive all delays and ask for immediate imposition of sentence.” The trial judge responded: “I deny your motion for a new trial. I will permit you [to] supplement it with a written motion.” Thereafter, at the same proceeding, the court pronounced sentence.

Five months after Williams was sentenced, appellate counsel, who was not the attorney who had tried the case and moved for a new trial just before sentencing, filed a written motion for a new trial, “[p]ur-suant to the leave of Court granted on November 17, 1977, and for purposes of supplementing and completing the record herein. . . .’’In that motion for a new trial, defense urged that the verdict was contrary to the law and the evidence for the reason that the trial court had as-sertedly used an incorrect standard for determining whether the state proved one of the essential elements of the crime, defendant’s use of a dangerous weapon in accomplishing the theft by use of force or intimidation (a “some evidence” standard as opposed to beyond a reasonable doubt). The motion also urged that the state attempted to prove the use of a dangerous weapon entirely by evidence of a circumstantial nature insufficient to exclude every reasonable hypothesis of innocence. The trial judge ordered the motion filed into the record, but no further action was taken upon it.

Article 852 of the Code of Criminal Procedure requires that a motion for new trial be in writing and state the grounds upon which it is based. Article 853 requires that such a motion, based upon any grounds other than a claim of newly discovered evidence, be filed and disposed of prior to imposition of sentence. When defense counsel orally moved for a new trial, he failed to comply with both of the mentioned requisites of Article 852 but apparently sought the court’s leave to supplement the oral motion with a written one and thus comply with at least that requirement of the Code (that it be in writing).

Leave was granted to supplement the record with a written motion, but our consideration of the record leads us to conclude that the trial judge merely intended to allow the defense to file in the record a written motion whose contents corresponded with the oral motion. We are convinced that there was no intent on the part of the trial judge to permit an expansion or supplementation of the new trial motion to encompass grounds not articulated orally in court prior to the imposition of sentence. We are satisfied that in granting permission to defense to file a written motion the trial judge did not intend to circumvent the requirement that a motion for new trial and ruling thereon precede imposition of sentence. The circumstances we review lead us to conclude that the judge merely sought to expedite consideration of the new trial motion which had in fact been made and provide for completion of the record.

In orally seeking the new trial the defense did not articulate the argument that the evidence of the element of commission of theft by force or intimidation while armed with a dangerous weapon, an essential element, was insufficient because, being wholly circumstantial, it was not such as would exclude every reasonable hypothesis of innocence. Neither had this argument been advanced in the memorandum submitted to the trial judge prior to the adjudication of guilt. The trial judge stated for the record his reasons for finding Williams guilty of armed robbery. It was upon these stated reasons that appellate counsel, five months post-sentence, based his argument in the written new trial motion that the improper standard was applied to decide if there was adequate proof of an essential element of the crime. However, there was no objection complaining of application of an improper standard at the time the new trial motion was made in court and ruled upon. That argument only came five months later when, ostensibly reducing to writing the motion made prior to sentencing, counsel in effect filed what amounted to a new motion for a new trial.

Neither the record on appeal nor the conduct of appellate counsel tends to support the contrary view that waiver of the time requirement was contemplated or that leave was granted to formulate and present new grounds not asserted prior to sentencing. While Article 852 requires that a new trial motion be tried contradictorily with the district attorney, the defense did not seek a hearing or even a ruling on the new trial motion filed on newly stated grounds five months after sentencing.

It is clear that the scheme of the code provisions governing new trial motions contemplates that the motion be filed after adjudication of guilt and prior to sentencing. That this motion filed five months late was a newly conceived motion is most evident from the fact of its late filing. The argument that this was a specifically permitted supplementation of the timely though non-written motion for new trial is unconvincing when considered in light of the intent of the statutory scheme governing motions for new trial and the record.

Because the complaints asserted in the motion for new trial filed by appellate counsel were not timely urged, the merits of the legal issues are not properly before us for review. See State v. Ashley, 354 So.2d 528 (La.1978).

Decree

For the reasons assigned, the convictions and sentences of the defendant, Williams, are affirmed.

AFFIRMED.

TATE, J.,

dissents, being of the opinion that the issue of whether the trial court properly ruled on the sufficiency of the evidence was adequately raised and should be considered and determined by the court.

      . Whether there existed a sufficient evidentiary basis for finding the defendant was armed with a dangerous weapon was hotly disputed at trial. The evidence bearing upon the issue consisted of the testimony of the three armed robbery victims who related that defendant’s hand was covered by a bulging white handkerchief and who recounted that their assailant claimed to have a gun and threatened to shoot. No one actually saw a gun.

      . Had either the defense or the trial judge intended that there be consideration of the written motion to be filed later there would likely have been a postponement of the imposition of sentence, for Article 853 provides for postponement to allow time for preparation and filing of a new trial motion.


author: CALOGERO, Justice. TATE, Justice,

text:
    Tinker WILLIAMS v. Leonard LONDON.
    No. 63362.
    Supreme Court of Louisiana.
    April 9, 1979.
    Rehearing Denied May 21, 1979.

      George H. Ware, Jr., Ligón & Ware, Clinton, for plaintiff-applicant.
    Walter C. Dumas, Baton Rouge, for defendant-respondent.
   CALOGERO, Justice.

We granted writs in this case to review a ruling of the Court of Appeal that a plaintiff who seeks damages from a member of a Police Jury for an alleged intentional tort can be required to provide security for defendant’s attorneys’ fees under R.S. 42:261(E).

The issue arose after Tinker Williams filed a damage suit against defendant. Plaintiff alleged that on January 17, 1977, he attended a police jury meeting in East Feliciana Parish to voice complaints about the location of certain establishments selling alcoholic beverages in close proximity to recreational areas. Williams claims that at the meeting, after he made his complaints, defendant, a member of the East Feliciana Parish Police Jury, threatened to slap him if he opened his mouth. At a subsequent police jury meeting, on May 17,1977, when Williams attempted to complain about the condition of certain parish roads, defendant asked why Williams had not complained to him directly. When Williams explained that he had not approached defendant because defendant had at an earlier meeting threatened to slap him, defendant responded, “I’ll do it now.”

In response to the petition defendant filed a motion for security for costs seeking to require plaintiff to furnish, inter alia, bond for attorneys’ fees under R.S. 42:261(E) before proceeding to trial. After a hearing, the trial court denied defendant’s motion to have plaintiff furnish bond to cover attorneys’ fees. Upon application of defendant, the Court of Appeal granted writs and in a two to one decision reversed the trial court on this issue. Finding that the defendant was an “elected official” and that the subject matter of the suit arose out of the performance of the duties of his office “since the actions complained of occurred during a police jury meeting at a time when plaintiff and defendant were discussing Police Jury business,” the Court of Appeal held defendant entitled to have plaintiff post bond for attorneys’ fees under R.S. 42:261(E) and remanded to the district court for fixing of the bond. Plaintiff’s applications for a five judge panel and a rehearing were denied.

Plaintiff contends that the Court of Appeal erred in concluding that his suit for damages was concerning a matter arising out of the performance of the duties of defendant’s office and that R.S. 42:261(E) was applicable. He argues that even though the assaults occurred during a police jury meeting while he and defendant London were discussing police jury business, the assaults did not arise out of the performance of defendant’s duties as a police juror. We agree, and reverse the judgment of the Court of Appeal.

By Act 304 of 1960 the legislature amended R.S. 42:261 to add subsection D (now relettered E) to impose liability (and corresponding necessity to post bond for defendant’s attorneys’ fees) upon any party who unsuccessfully sues an elected or appointed public official on a matter arising out of the performance of the duties of his office.

R.S. 42:261(E) provides:

“Any party who files suit against any duly elected or appointed public official of this state of or any of its agencies or political subdivisions for any matter aris ing out of the performance of the duties of his office other than matters pertaining to the collection and payment of taxes and those cases where the plaintiff is seeking to compel the defendant to comply with and apply the laws of this state relative to the registration of voters, and who is unsuccessful in his demands, shall be liable to said public official for all attorneys fees incurred by said public official in the defense of said lawsuit or lawsuits, which attorneys fees shall be fixed by the court.
The defendant public official shall have the right, by rule, to require the plaintiff to furnish bond as in the case of bond for costs, to cover such attorneys fees before proceeding with the trial of said cause.” (Emphasis added)

In the title to the act the purpose of the amendment is explained as follows:

“to provide for attorneys’ fees incurred by any public official of the State of Louisiana, its agencies or any of its political subdivisions in the successful defense of lawsuits brought as a result of performance of the duties of his office.” (Emphasis added)

To determine whether this lawsuit is a matter arising out of the performance of the duties of defendant’s office, we must consider the underlying purpose of R.S. 42:261(E). The intent of the legislature in adding subsection E appears to be to protect public officials from the harassment of frivolous lawsuits and from the expenses attendant upon defending themselves because of conduct incident to the discharge of their official duties. The protection afforded is limited by the statute, however, to those matters “arising out of the performance of the duties of his office.” This limitation makes it clear that the legislation was not intended to relate to all lawsuits but only to those arising out of a reasonable and legally appropriate performance of a public official’s duties.

In our view an assault alleged to have been committed by a member of a police jury, even if it did occur during a police jury meeting while discussion of police jury business was taking place, is not a matter contemplated by the statute. Even if we were to focus on the maintenance of order at the police jury meetings as an official duty of a member of the jury, we can not find that a personal threat of physical violence by a police juror is within the scope of those duties. While a police juror may be acting within the scope of his duties when he has a disruptive citizen ejected from a meeting, he is not free to personally threaten to perform a battery upon a citizen who attempts to participate in a meeting.

Decree

For the foregoing reasons the judgment of the Court of Appeal is affirmed in part and reversed in part. Insofar as it affirmed the ruling of the trial court on the motion for security for costs under R.S. 13:4522, the judgment is affirmed. Insofar as it reversed the trial court’s ruling denying the motion for bond for attorneys’ fees under R.S. 42:261(E), the judgment is reversed and the case is remanded to the trial court for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

TATE, J., concurs and assigns reasons.

TATE, Justice,

concurring.

I concur completely in the majority opinion.

However, I note an additional reason why the citizen should not be required to provide security for the official’s attorney’s fees in a citizen suit against an official as required by La.R.S. 42:261(E). Since the issue of the unconstitutionality of the statute is not raised in this case, we do not pass upon it, nor do we reach it for the reasons stated by the majority.

However, a requirement that a citizen furnish a bond and be liable for attorney’s fees when he sues a public official, whereas an official suing a citizen need not file bond or be liable for attorney’s fees, is in my opinion unconstitutional. For one reason, the statute offends Art. 1, Section 22, La. Const, of 1974: “All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.”

The California Supreme Court, construing a similar statute held a similar requirement offended due process. Beaudreau v. Superior Court of Los Angeles County, 14 Cal.3d 448, 121 Cal.Rptr. 585, 535 P.2d 713 (1975). The Louisiana statute is unconstitutional, for reasons similar to those which invalidated the California statute.

I note the absence of our ruling of the constitutionality of the statute, lest our silence on the issue be misleading. As noted, we did not reach the constitutional issue since it was not properly raised in the pleadings before us.

      . In that motion defendant also sought bond for security or costs under R.S. 13:4522. The trial court found and the Court of Appeal agreed that defendant had failed to show the necessity for the bond for costs.

      . In his application for writs to this Court, Williams assigned as error the Court of Appeal’s denial of his application for rehearing before a five judge panel. In refusing that application the three judge panel unanimously concluded that La.Const. article 5, § 8(B) applied only to the appellate jurisdiction of the Court of Appeal and not to its supervisory jurisdiction as in this case. Although applicant briefed this argument, he asked in oral argument that the assignment be considered waived. This opinion will therefore not consider this issue.

      . During his testimony at the hearing on the motion for security for costs and attorneys’ fees, defendant did not deny plaintiffs allegations that defendant threatened to slap him. Inferentially he admitted the threat when he testified that although he did not remember the exact words of the statement “there was [sic] some statements made concerning the matter.”