source: Caselaw Access Project

author: CALOGERO, Justice.

license: Public Domain

text:
    CHICAGO BRIDGE & IRON COMPANY v. Roland COCREHAM, Collector of Revenue.
    No. 55769.
    Supreme Court of Louisiana.
    June 23, 1975.
    Rehearing Denied Sept. 5, 1975.
    John D. Wogan, Monroe & Lemann, New Orleans; • John W. Werner, Oak Brook, Ill., for plaintiff-applicant, Chicago Bridge & Iron Co.
    James A. Norris, Jr., West Monroe, for defendant-respondent, Collector of Revenue.
    Frank W. Middleton, Jr., Benjamin B. Taylor, Jr., Taylor, Porter, Brooks & Phillips, Baton Rouge. Frederic L. Miller, Peters, Ward & Miller, Robert G. Pugh, Shreveport, M. Robert Sutherland, New Orleans, and Victor A. Sachse, Jr., Brea-zeale, Sachse &' Wilson, Baton Rouge, for amicus curiae.
   CALOGERO, Justice.

This is a tax refund suit which involves the validity and the application of the Louisiana Sales-Use Tax to the activities of plaintiff, Chicago Bridge & Iron Company (hereinafter referred to as CBI) in connection with major construction projects of the taxpayer in the State of Louisiana between December 1, 1955 and December 31, 1960.

Suit was filed in March, 1964 against the Collector of Revenue for the State of Louisiana for a refund of use taxes ($28,180.33) paid under protest for the taxable period and held in escrow by the Collector pursuant to R.S. 47:1576.

In these same proceedings in August of 1967, the Collector filed a reconventional demand claiming additional use taxes from CBI, for the same audit period, taxes in the sum of $63,309.23 which were not involved in the refund claimed in CBI’s original petition.

CBI filed a peremptory exception of prescription to the Collector’s reconventional demand as well as an answer denying the Collector’s claim for additional use taxes.

Subsequently, the Collector amended his petition to claim attorneys’ fees on all amounts, if any, that the court should find due by CBI to the Collector as a result of the controversy, including $28,180.33 dollars paid by CBI under protest and the object of the refund suit.

The trial judge rendered a judgment overruling the exception of prescription filed by CBI against the Collector’s recon-ventional demand, denying CBI’s claim for refund of the sum paid under protest, granting judgment to the Collector for the amount claimed in the Collector’s recon-ventional demand and denying all claims of the Collector for attorneys’ fees.

After motions for new trial of both parties were denied, both CBI and the Collector appealed.

The Court of Appeal affirmed the judgment of the district court in all respects except that the trial court’s judgment denying attorneys’ fees to the Collector was reversed, and the Collector allowed 10% attorneys’ fees on both the amount of the reconventional demand and on the amount paid by CBI under protest. Chicago Bridge & Iron Company v. Cocreham, 303 So.2d 750 (La.App. 1st Cir. 1974).

We granted writs on application of CBI. Chicago Bridge & Iron Company v. Cocreham, 307 So.2d 633 (La.1975).

The Court of Appeal described the activities of CBI which gave rise to the taxpayer’s sales-use tax liability as follows:

“During the taxable period the taxpayer, an Illinois corporation authorized to do and doing business in the State of Louisiana, was engaged in the business of constructing specialized steel plate structures, such as storage tanks, generally for municipalities and corporations. The structures built by the taxpayer consisted primarily of fabricated steel plates assembled by the taxpayer’s employees on prepared foundations at the job site. Unfinished steel plates were purchased by the taxpayer from out-of-state suppliers, and carried to the taxpayer’s out-of-state shops where the steel plates were fabricated with labor and overhead expenses paid by the taxpayer. After fabrication the steel plates were usually transported at the taxpayer’s expense from its out-of-state shops by common carrier to Louisiana job sites.” 303 So.2d at 751.

The amount of sales-use tax liability of the taxpayer for the taxable period is the basic issue involved in these proceedings. CBI contends that Louisiana Use Tax is due based simply upon the purchase price paid for the unfinished steel plates to the out of state vendors. That sum has been paid and there is no dispute on this item. The Collector contends that the tax base for Louisiana Sales Use tax includes in addition to the purchase price paid for the unfinished steel plates, the element of labor and shop overhead expenses incurred by CBI in fabricating the steel plates in the taxpayer’s out of state shops and the element of transportation expenses (freight) paid by the taxpayer to transport the fabricated steel plates from its out of state shops to Louisiana job sites. The Collector acknowledges that expenses of labor and shop overhead at the construction site are not taxable and such expenses form no part of this litigation.

Accordingly, the two disputed elements in calculating the correct tax basis involved in these proceedings are 1) labor and shop overhead expenses, and 2) transportation expenses (freight).

The tax amounts applicable to these two elements (should they be found legally due) were stipulated at the trial.

It was the transportation expense in the sum of $28,180.33 which CBI paid under protest and made the subject of its refund suit. It was the element of labor and shop overhead expense in the sum of $63,309.23 which was made the subject of the Collector’s reconventional demand.

The issues which we will hereinafter consider and resolve in the order in which we propose to consider them are the following :

1.Does the correct tax basis for the sales-use tax for the taxable period properly include the element of labor and shop overhead expenses ?
2. If the sales-use tax includes the element of labor and shop overhead expenses, is the statute to that extent unconstitutional ?
3. Does the correct tax basis for the sales-use tax for the taxable period properly include the element of transportation expenses ?
4. If the sales-use tax includes the ele- ■ ment of transportation expense, is the statute to that extent unconstitutional ?

If the Collector is correct in one or both of his contentions with respect to the elements of the corrected tax basis of the Louisiana sales-use tax, whether the Collector is entitled to statutory attorneys’ fees under the provision of R.S. 47:1512 with respect to either or both of such elements, is an additional issue which we must resolve.

LABOR AND SHOP OVERHEAD EXPENSES AND THE USE TAX

Are labor and shop overhead expenses includable elements of added value in determining the tax basis of the use tax as applied to the out of state manufacturer-user ?

The Court of Appeal properly answered the foregoing question in the affirmative. They pointed out that R.S. 47:302 levies a tax upon the use of each item or article of tangible personal property (when the same is not sold within the State); that the measure of the use tax liability is 2% of the “cost price” of each item or article of tangible personal property, R.S. 47:302, subd. A (2); that “cost price” as defined in R.S. 47:301(3) means “the actual cost of the articles of tangible personal property without any deductions therefrom on account of the cost of materials used, labor or service cost, transportation charges or any other expenses whatsoever”; and that properly construed these statutes impose the use tax upon the cost price (or value) at the time the tangible property becomes a part of the mass of the property of the taxing state, including therein the “labor or service costs” (in effect, the labor and shop overhead expenses).

This conclusion of the Court of Appeal is supported by decisions of this Court.

“These provisions [referring to R.S. 47:303A], along with the others above mentioned, clearly indicate that the ‘use’ tax is to be computed on the retail price the property would have brought when imported — that is, its then value or worth.” Fontenot v. S.E.W. Oil Corp., 232 La. 1011, 1018, 95 So.2d 638, 640 (1957).

See also this Court’s opinion in Halliburton Oil Well Cementing Company v. Reily, 241 La. 67, 127 So.2d 502 (1961), reversed on other grounds, 373 U.S. 64, 83 S.Ct. 1201, 10 L.Ed.2d 202 (1963).

CONSTITUTIONALITY OF USE TAX AS APPLIED TO LABOR AND SHOP OVERHEAD EXPENSES OF THE OUT OF STATE MANUFACTURER-USER.

CBI takes the position that the use tax as applied to the elements of labor and shop overhead (and transportation expenses as well — this will be discussed hereinafter) is unenforceable because it is illegally discriminatory principally in violation of the protection guaranteed in Article I, § 8, Cl. 3 (the commerce clause) of the United States Constitution.

As this is the central issue in this litigation it is well that we briefly review Louisiana’s sales-use tax law and pertinent prior jurisprudence.

R.S. 47:302 provides for the imposition of a tax “at the rate of 2 per centum (2%) of the sales price of each item or article of tangible personal property when sold at retail in that state . . . .”

It imposes another tax “at the rate of two per centum (2%) of the cost price of each item or article of tangible personal property when the same is not sold but is used ... in this state . . . .” This latter tax is the use tax. It is reduced by the amount of a similar sales or use tax paid on the item in a different state. R.S. 47:305.

The purpose of the sales-use tax scheme is to make all tangible personal property used or consumed in the state subject to a uniform tax burden irrespective of whether it is acquired in the state, making it subject to the sales tax, or acquired from without the state, making it subject to the use tax at the same rate.

The United States Supreme Court in Henneford v. Silas Mason Co., 300 U.S. 577, 57 S.Ct. 524, 81 L.Ed. 814 (1937), held that the use tax, a “compensating tax” (inasmuch as it complements the sales tax), is not, as applied to chattels purchased in another state and used in the taxing state thereafter, a violation of the commerce clause.

The litigants herein accordingly concede the validity of the sales-use tax scheme.

CBI contends, however, that as applied to labor and shop overhead of the out of state manufacturer-user, the tax is discriminatory because it is not similarly imposed upon the in-state manufacturer-user.

If they are correct in their contention that the use tax does not bear against labor and shop overhead of the in-state manufacturer-user it is evident that the allegation of unconstitutionality is correct, for in Halliburton, supra, the United States Supreme Court held precisely that. In the Halliburton litigation this Court hgd earlier concluded that the proper comparison (in determining whether there is unconstitutional discrimination) should be between the use tax on the assembled equipment and the sales tax on the same equipment if it were sold. Based upon this comparison this Court had found the out of state manufacturer-user to be on the same tax footing with respect to the equipment used as his competitor who purchases (in-state) from the retailer, rather than manufacturing his own equipment. The United States Supreme Court, however, took the position that the proper comparison is between the out of state manufacturer-user and the instate taxpayer most similarly situated, namely, the local manufacturer-user.

Finding discriminatory effect in this comparison (because CBI pays use tax on labor and shop overhead, while a local manufacturer-user pays neither sales nor use tax on labor and shop overhead) the United States Supreme Court in Halliburton concluded that the Louisiana Use Tax as thus applied was invalid as discriminating against interstate commerce in violation of the commerce clause. Equal treatment for in-state and out of state taxpayers similarly situated, it was said, is the condition precedent for a valid use tax on goods imported from out of state.

The United States Supreme Court in finding this unequal treatment had relied upon the following stipulation between the Collector of Revenue for the State of Louisiana and the taxpayer:

“If Halliburton had purchased its materials, operated its shops, and incurred its Labor and Shop Overhead expenses at a location within the State of Louisiana, there would have been a sales tax due to the State of Louisiana upon the cost of materials purchased in Louisiana and a Use Tax on materials purchased outside of Louisiana; but there would have been no Louisiana sales tax or use tax due upon the Labor and Shop Overhead.” 373 U.S. at 67, 83 S.Ct. at 1202-03, 10 L.Ed.2d at 205. (Emphasis provided).

The import of Halliburton is best illustrated by Justice Brennan’s comment, in his concurring opinion, that “the Court holds no more than that if Louisiana chooses to levy such a use tax it cannot constitutionally exempt in-state manufacturer-users as it now does; it must tax ‘the privilege of use’ within the State of the property of such users at full value and at the same rates.” 373 U.S. at 77-8, 83 S.Ct. at 1208, 10 L.Ed.2d at 211.

Perhaps prompted by this delimitation of the Halliburton holding, the Collector makes the following contention (one accepted as proven by the Court of Appeal): while the stipulation agreed upon by the Collector in the Halliburton case was on its facts applicable to the very audit period involved in this litigation and while the Collector in that case agreed that there would have been no Louisiana Sales Tax or Use Tax due upon labor and shop overhead by the in-state manufacturer-user during the given period, the Collector takes the position here that the stipulation to which he had agreed in the Halliburton litigation was simply erroneous.

He is, perhaps, entitled to make that allegation in this lawsuit. And if he is correct, it matters not that in an earlier separate lawsuit his counsel had mistakenly taken a position contrary to the present one as to the applicability and application of the sales-use tax under the statutes, regulations and collection policies of the Department of Revenue.

We must then determine from the record before us and the laws of the State of Louisiana whether or not during the audit period in question, in-state manufacturer-users were or were not required to pay sales or use tax upon labor and shop overhead incurred at their in-state plant.

At the outset we must consider the activities of CBI and their in-state counterpart whose operations are being scrutinized in connection with the use tax. CBI’s activity is that of a construction contractor. The company does not inventory prefabricated parts for interchangeable use and did not supply component parts to owners or contractors for construction by them.

We also know that a construction contractor is a consumer, a purchaser at retail who is subject to payment of sales tax, for

“A contractor who buys building material is not one who buys and sells — a trader. He is not a ‘dealer,’ or one who habitually and constantly, as a business, deals in and sells any given commodity. He does not sell lime and cement and nails and lumber.
“His undertaking is to deliver to his obligee some work or edifice or structure, the construction of which requires the application of skill and labor to these materials so that, when he finishes his task, the materials purchased are no longer to be distinguished, but something different has been wrought from their use and union. The contractor has not resold but has consumed the materials. Sales to contractors are sales to consumers . . ..” State v. J. Watts Kearny & Sons, 181 La. 554, 559, 160 So. 77, 78 (1935) (Emphasis provided).

See also State v. Owin, 191 La. 617, 186 So. 46 (1938) and Claiborne Sales Company, Inc. v. Collector of Revenue, 233 La. 1061, 99 So.2d 345 (1957).

With respect to such consumer the taxable incident in connection with the sales tax- is the in-state purchase of materials by him.

The narrow question we are here considering is whether under Louisiana law the in-state purchaser who, in performing his construction contracts, in part fabricates or manufactures off site at his in-state plant, is required to pay, in addition to the sales tax on the raw materials purchased instate, a use tax on the labor and shop overhead which goes into fabrication of such equipment. In effect, has the Louisiana Legislature placed upon the cost of intra-state labor and shop overhead a use tax, in the nature of a value added tax ?

The Collector says that the Legislature has done just that. In support of his contention he relies upon the provisions of R. S. 47:302, the regulations of the Collector of Revenue enacted or adopted pursuant to the authority of R.S. 47:1511, and the collection policies and procedures of the Department of Revenue during the audit period.

R.S. 47:302 does indeed levy a tax upon the use of each item or article of tangible personal property. The statute in distinguishing the use tax from the sales tax goes on to declare that the tax is at the rate of 2% of the cost price of each item or article of tangible personal property when the thing is not sold but is used in this state.

The statute does not precisely describe any use or value added tax upon the cost of intra-state labor and shop overhead. Nor does it clearly preclude the imposition of such a tax. At best for the Collector it might be said that the statute in this respect is unclear, or imprecise.

The general rule is that where a tax statute is susceptible of more than one reasonable interpretation, the construction favorable to the taxpayer is adopted. Brown v. LaNasa, 244 La. 314, 152 So.2d 33 (1963); United Gas Corp. v. Fontenot, 241 La. 564, 129 So.2d 776 (1961).

The Collector next directs our attention to several of the regulations of the Department of Revenue in effect during the audit period. He suggests that a review of these Regulations will indicate that the Department policy during the audit period was to tax the in-state manufacturer-user on the cost of labor and shop overhead.

Our review of those regulations does not cause us to so conclude.

If anything, review of the regulations leaves us with the opposite conclusion. Article 2-3 and its history are particularly revealing. Prior to 1963, Article 2-3, concerning the use tax, made no reference whatever to the imposition of the use tax upon labor and shop overhead of the instate manufacturer-user. It provided as follows:

“Article 2-3. USE TAX — The Louisiana General Sales Tax Act imposes a tax on the use, consumption, distribution and storage for use or consumption in this State, of tangible personal property purchased in such manner that the sales tax does not apply thereto.
“The Use Tax applies to the use of property purchased in interstate commerce, or in other States for the purpose of use in this State after interstate commerce has ended. For purposes of taxation, interstate commerce ends when purchased property reaches the consignee, and comes to rest within the State. The tax does not attach until the property has come to rest in the State of Louisiana.
“Generally, it may be said that the Use Tax applies' to the use of property in this State, the sale of which would be subject to tax had there been a purchase within this State. The Use Tax does not apply upon the use of any property which has been subjected to a sales tax in another State at a rate equal to or greater than the rate of tax imposed by the Louisiana General Sales Tax Act, nor does the Use Tax apply upon the use of any property which is exempt from the tax imposed upon the sale at retail by the Louisiana General Sales Tax Act. The two Taxes, Sales and Use stand as complements to each other and taken together provide a uniform tax upon either the sale at retail or use of all tangible personal property irrespective of where it may have been purchased.
“The Use Tax is based on the ‘cost price’ of the tangible personal property. The ‘cost price’ means the actual cost of the . property including transportation costs incurred in transporting the property to the place where it is to be used. No deduction is allowed for materials used, labor, service cost, transportation charges or any other expenses whatsoever.”

After the decision in Halliburton, in which the United States Supreme Court declared unconstitutional Louisiana’s Use Tax as applied to shop overhead and labor of the out of state manufacturer-user because they found based upon the stipulation no similar tax (sales or use) imposed upon the local competitor, namely, the instate manufacturer-user, the Collector thereupon amended article 2-3 effective August 1, 1963 so as to impose the use tax upon the in-state manufacturer-user. Article 2-3 was amended to read as follows:

“Article 2-3. USE TAX-The Louisiana use. tax is complementary to the Louisiana sales tax and applies in all cases where tangible personal property is not sold at retail but is used or consumed in Louisiana or stored for use or consumption in Louisiana. Thus, the Louisiana use tax applies not only to property imported for use or consumption in Louisiana or stored for use or consumption in Louisiana but also to property manufactured in Louisiana and used or con sumed in Louisiana or stored for use or consumption in Louisiana by the manufacturer.
“The basis for computing the use tax is the ‘cost price’ of the article subject to the tax. ‘Cost price’ is the fair market value of the property at the time it becomes subject to Louisiana tax jurisdiction. For new items fair market value is the price paid by the Louisiana user —including cost of materials, labor, shop overhead and transportation. For items which have been imported which have not been newly acquired by the user, fair market value is the price established in the Louisiana secondhand market for similar items. When no such market exists, the fair market value is determined by allowing a deduction for reasonable depreciation on the new cost plus cost of improvements.
The Collector’s changing Article 2-3, or “clarifying” it as he contends, in the foregoing specifics, would not standing alone cause us to conclude that during the subject audit period (prior to the 1963 amendment to Article 2-3) there was no applicable use tax imposed upon the in-state manufacturer-user. However, coupled with the provisions of the statute and the Halliburton stipulation it seems perfectly clear to us that this was the case. Certainly some effect must be attributed to the fact that the Collector of Revenue in that litigation, speaking of the period which is involved in the subject audit, declared rather solemnly on a point which ultimately governed the outcome of that litigation, that had the taxpayer "purchased his material, operated his fabricating shops and incurred his labor and shop overhead expenses at a location within the State of Louisiana, . . . there would have been no Louisiana sales tax or use tax due upon the labor and shop overhead."

The Collector attempts to offset the import of the Halliburton stipulation, the amendment to the Regulations in 1963 (Article 2-3) and the lack of clarity and precision of R.S. 47:302 (to be most generous with the Collector’s position) by relying upon the testimony of witnesses at trial concerning the Department’s policy during the subject audit period and the circumstances surrounding execution of the “erroneous” Halliburton stipulation.

That testimony was less than conclusive. In fact in some instances it supports CBI’s rather than the Collector’s position. In any event taxes are imposed by the Legislature, not by the Department of Revenue.

We conclude that pertinent to this case the use tax did not bear against labor and shop overhead of the in-state manufacturer-user, just as was stipulated to have been the case in Halliburton.

R.S. 47:302, to the extent that it imposes a use tax complementing the sales tax, was designed to, and in fact did, impose a tax upon tangible personal property not purchased within the State but rather imported and used therein. Furthermore it does not place a use tax, or value added tax, upon the cost of intra-state labor and shop overhead.

Finding that the use tax is imposed upon labor and shop overhead of the out of state manufacturer-user and that neither sales nor use tax is imposed upon the in-state manufacturer-user, we are constrained by the United States Supreme Court decision in Halliburton, to conclude that the Louisiana Use Tax as applied to labor and shop overhead of the out of state manufacturer-user is unconstitutional and therefore unenforceable, because violative of the commerce clause of the United States Constitution.

TRANSPORTATION EXPENSE AND THE USE TAX

Are transportation expenses (freight) an includable element of added value in determining the tax basis of the use tax as applied to the out of state manufacturer-user?

Both lower courts answered this question in the affirmative. They determined that the Collector could properly include in CBI’s use tax basis the cost to CBI of transporting the fabricated steel components by rail carrier from its out of state shop to job sites located in Louisiana. They relied specifically upon Mouton v Klatex, Inc., 238 So.2d 1 (La.App. 1st Cir. 1970), a decision which permitted the inclusion in the use tax basis, of transportation expenses incurred by the taxpayer on goods purchased in Arkansas and shipped into Louisiana by common carrier for the account of the purchaser.

Mouton v. Klatex was, of course, correct, as was the Court of Appeal below, in holding the use tax by its terms applicable to such transportation expenses (freight). The identical reasons supporting this interpretation are discussed more fully herein-above in discussion of the labor and shop overhead expenses and the literal application of the use tax. The statute defines cost price as “the actual cost of the articles of tangible personal property without any deductions therefrom on account of the cost of materials used, labor or service cost, transportation charges or any other charges whatsoever.”

CONSTITUTIONALITY OF USE TAX AS APPLIED TO TRANSPORTATION EXPENSES OF THE OUT OF STATE MANUFACTURER-USER

Having found that transportation cost is an includable element (added value) in determining the use tax basis as applied to the out of state manufacturer-user, we turn now to the question of whether the tax as so applied is unenforceable because illegally discriminatory in violation of the protection guaranteed by the commerce clause of the United States Constitution.

Neither the sales nor use tax is imposed upon the in-state manufacturer-user for comparable transportation costs. R.S. 47:302(A)(1), 47:301(13). See also Art. 2-7 of the Regulations of the Department of Revenue which asserts that the purchaser has no sales tax liability where “the services rendered by the railway company or other transporting agency are rendered to . the purchaser.”

CBI’s position with respect to this discriminatory application is basically the same as is urged with respect to the labor and shop overhead aspect of the case. They contend that the out of state manufacturer-user who at his own expense contracts for shipment to an in-state job site pays the use tax on the “cost” element attributable to transportation, while his competitor who purchases raw materials instate, contracts for shipment to his in-state plant, then contracts for shipment of fabricated items to job site, pays no sales or use tax upon either such element of transportation costs.

The Collector’s argument is essentially that transportation charges are effectively included within the sales price of the instate sale at retail, for that price includes transportation charges required to bring the item to the Louisiana retailer. Furthermore, he contends that the net economic consequence incident to the element of transportation is dictated by the purchaser’s choice of supply rather than whether state boundaries are crossed.

While CBI is complaining of use tax applying to the cost of transporting items fabricated at their out of state plant to instate job sites, the Collector’s argument focuses upon inclusion of prior transportation cost in the retail sales price in the instate purchase situation. While the two situations are dissimilar, the Collector’s argument, to the extent that it may have merit, is sufficiently analogous. We therefore consider hereinafter the treatment of transportation cost and the comparison between the in-state purchaser’s retail sales price (sales tax) and the out of state purchaser’s “cost” (use tax).

The Collector’s argument that transportation cost included as a part of the retail price in the sales tax situation is the counterpart of the transportation cost taxable to the out of state purchaser as an element of the use tax, has merit only if we consider items which originate out of state and even then it does not account for the disparity in treatment with respect to in-state retailer shop to in-state plant portion of the shipment (recall that in the use tax situation all transportation costs to the consignee’s depot or place of first use within the state are taxable as part of the use tax, while the in-state purchaser may avoid payment of sales tax on the portion of the shipment from the retail shop to in-state plant or job site by providing his own transportation or contracting himself with the common carrier).

There is no merit to the Collector’s argument that CBI pays no more tax, sales and/or use, on the transportation cost of materials purchased out of state and delivered in-state than does his Louisiana competitor purchasing locally who pays sales tax on the retail price of purchased goods. There is a fallacy in this comparison which is pointed up (analogously) in the United States Supreme Court’s decision in Halliburton. The proper comparison of CBI’s position is not with the purchaser from the nearby retailer whose retail sales price perhaps includes prior transportation costs but with the in-state competitor of CBI who contracts for his own transportation of instate purchased material from retailer’s shop to plant (and as more properly analogous to CBI’s situation in this case, fabricated items from in-state plant to job site).

Considered in this perspective discrimination is evident since the out of state purchaser pays use tax fully on the element of transportation cost from state boundary to job site (or plant) while the in-state purchaser pays no tax (sales or use) on transportation cost from in-state retail shop to plant (and/or job site).

In the present case the Collector is demanding $28,180.33 in use tax charges on inter-state transportation costs that he would not be demanding if the transportation costs were incurred in intra-state transportation (assuming of course that retail purchaser has independently contracted for shipment from retail shop). Nor would he, in the intra-state situation, be indirectly realizing sales tax (by inclusion in the retail sales price of transportation charges for shipment to the in-state retailer) on the transportation costs from instate retailer to in-state shop and from instate shop to job site.

While Halliburton did not concern the transportation cost element of the Louisiana Use Tax, the holding there by the United States Supreme Court is just as applicable to transportation costs as to the labor and shop overhead expense, which issue was before them. That court stated

“The conclusion is inescapable: equal treatment for in-state and out-of-state taxpayers similarly situated is the condition precedent for a valid use tax on goods imported from out-of-state.” 373 U.S. at 70, 83 S.Ct. at 1204, 10 L.Ed.2d at 207.

The Collector relies principally upon Mouton v. Klatex, supra, wherein writs were denied by this Court, 256 La. 873, 239 So.2d 365 (1970), and as to which appeal was dismissed by the Supreme Court of the United States, 401 U.S. 968, 91 S.Ct. 1192, 28 L.Ed.2d 318 (1971), in each instance without opinion.

The principal holding in Mouton was that Louisiana use tax does include transportation costs in its basis. The decision only made passing reference to the fact that such imposition is constitutional. There was no further discussion of the matter, and it was not clear from the opinion that dissimilar treatment was afforded transportation costs under the Louisiana sales tax (relative to the in-state purchaser). We do not consider that decision controlling or persuasive. Nor do we find helpful the case of Colonial Pipeline Company v. Clayton, 275 N.C. 215, 166 S.E.2d 671 (1969) cited by the Collector, because the same inappropriate comparison which the Collector argues in this case was made by the North Carolina Supreme Court there when they noted in distinguishing Halliburton that in the sales tax situation, transportation charges are necessarily a part of the price a retailer pays (and/or charges) for his goods.

We conclude that insofar as the use tax is imposed upon the element of transportation cost for shipping CBI’s fabricated component parts from out of state plant to in-state job site, it is unconstitutional and unenforceable because in violation of the commerce clause of the United States Constitution.

Because we have ruled favorably in connection with the taxpayer’s contentions with respect to the transportation element of the use tax basis (the subject of CBI’s tax refund claim) and in connection with the labor and shop overhead element of the use tax basis (the subject of the Collector’s reconventional demand), we need not consider the issue relating to the statutory attorneys’ fees, as to which there was partial disagreement by the two lower courts in this litigation.

For the foregoing reasons the judgment of the Court of Appeal is reversed, the re-conventional demand of the Collector of Revenue demanding additional use tax is dismissed with prejudice, and there is judgment entered herein in favor of Chicago Bridge & Iron Co. and against the Collector of Revenue of the State of Louisiana decreeing them to be entitled to refund of taxes earlier paid in the amount of $28,180.33 with interest thereon at the rate of 2% per annum from March 4, 1964 until paid and for such costs as may otherwise be legally recoverable.

      . We pretermit a decision on the merit of CBI’s peremptory exception of prescription to the Collector’s reconventional demand. A resolution of that issue is not necessary in light of the decision, reached herein, that the Collector is not entitled to recover the taxes which are the subject of his reconventional demand.

      . We note that during the audit period in question the State sales tax rate was 2%. That rate today is 3%, because in 1970 the Legislature passed Act 256, incorporated into the Revised Statutes as R.S. 47:321, imposing an additional State sales tax of 1%.

      . “When the account is made up, the stranger from afar is subject to no greater burdens as a consequence of ownership than the dweller within the gates. The one pays upon one activity or incident, and the other upon another, but the sum is the same when the reckoning is closed.” Henneford v. Silas Mason Co., 300 U.S. at 584, 57 S.Ct. at 527, 81 L.Ed. at 819.

      . The cited regulations of “Rules and Regulations Promulgated in connection with Louisiana General Sales Tax” issued by the Collector of Revenue on August 1, 1954 and January 1, 1958 are: Articles 2-2(a), 2-3, 2-5, 2-7, 2-8, 2-33, 2-37, 2-47, 2-49, 2-50 and question No. 7 of Questions and Answers.

      . The Collector points out that hypothetically there can be a circumstance where a customer who purchases from a near-by, but out of state, vendor may pay less in use tax, than another customer, who purchases from the same vendor’s outlet which happens to be in-state but more distant, will pay in sales tax (the sales tax on a price of the in-state purchase which includes a greater transportation cost). For example, a Biloxi, Mississippi manufacturer of refrigerators might have two outlets, one in Biloxi and one in Monroe. A New Orleans customer buying from the Biloxi outlet would be required to pay a use tax on the cost of transporting the refrigerator from Biloxi to New Orleans. A second New Orleans customer, buying his refrigerator from the Monroe outlet (and contracting his own common carrier shipment to New Orleans) would be required to pay a sales tax on the purchase price, part of which would likely represent the freight charge for transportation from Biloxi to Monroe. As the cost of Biloxi-New Orleans transportation would be less than the cost of Biloxi-Monroe transportation, the use tax, chargeable to the out of state purchaser, would be less in this special situation than the sales tax chargeable to the in-state purchaser. This argument, while interesting and based upon a possible but unlikely set of hypothetical facts, does not disprove the very real discrimination suffered by OBI by comparison with its counterpart instate manufacturer-user, relative to sales-use tax and transportation cost, which is discussed more fully elsewhere in this opinion.

      . “We are also satisfied that under the Henne-ford decision, Louisiana may constitutionally so include transportation charges in the cost price or tax basis for imposition of the use tax.” 238 So.2d at 3.

        Henneford v. Silas Mason Co., 300 U.S. 577, 57 S.Ct. 524, 91 L.Ed. 814 (1937) did indeed mention that the State of Washington use tax statute incorporated in the use tax basis cost of transportation (presumably transportation from out of state retail outlet to in-state point of first use). And, of course, Henneford held the statute there under consideration to be constitutional. However, the opinion in Henneford was devoted exclusively to the validity of the use tax in its overall ap-lication. It did not specifically discuss the aspect of transportation cost inclusion in the use tax basis, nor did it assert whether the State of Washington excluded comparable transportation cost from its sales tax basis, nor did it focus upon an allegation of discrimination in this respect.


author: SUMMERS, Justice

text:
    J. E. JUMONVILLE v. John Wayne JEWELL, etc., et al.
    No. 56779.
    Supreme Court of Louisiana.
    Aug. 26, 1975.
   SUMMERS, Justice

(dissenting from the refusal to grant writs).

According to this application for writs of review, Senator J. E. Jumonville, of the Seventeenth Senatorial District of Louisiana, filed his papers qualifying as a candidate for reelection shortly after the period for qualifying was open. The period for qualifying for this senatorial office expired at five o’clock on .August 7, 1975. On this last day Senator Jumonville also qualified as a candidate for the office of Sheriff of Pointe Coupee Parish and his son filed qualifying papers as a candidate for senator of the Seventeenth Senatorial District. At this time only the Jumonvilles were qualified for the senate election.

Upon learning of these facts late in the afternoon of August 7, John Wayne Jewell immediately notified his uncle and law partner, Tom Jewell, in the town of New Roads and requested that he process the qualifying papers which he had previously signed. At that time, it was impossible for Tom Jewell to travel from New Roads to Plaquemine, Louisiana (approximately 45 miles), the residence and office of the Chairman of the Democratic Committee, prior to the five o’clock deadline for filing qualifying papers.

Faced with this situation, Tom Jewell telephoned the Secretary of the Committee whose residence was approximately five miles away and requested permission to file the qualifying papers with him. The Secretary, believing that he had no authority to accept the papers, rejected this request and refused to accept the papers. Instead, the Secretary suggested that Jewell discuss the matter with the Chairman. Accordingly, Jewell contacted the Chairman by telephone, and he advised Jewell to put the qualifying papers in the mail, properly addressed to him, and to make sure this was done before the five o’clock deadline.

The papers, including the necessary cash deposit, were presented to the postmaster at New Roads, Louisiana, at 4:40 o’clock that afternoon; they were received by the Chairman in the town of Plaquemine the following morning.

Senator Jumonville then instituted these proceedings to disqualify John Wayne Jewell as a candidate for failure to timely file as required by law. Both the district court and Court of Appeal found that the qualifying papers were not timely filed and ordered the Committee not to list John Wayne Jewell’s name as a candidate. By a bare majority, this Court has denied writs of review. In my view the judgments are erroneous and should be reversed. The applicable statute provides:

“Whenever provision is made in this Part for the filing of any notice, deposit, or any other paper with any party committee or party officer, it shall be filed with the chairman of the proper committee. If the chairman is not available, absents himself, cannot be found or for any reason refuses to accept the paper or deposit, it may be filed with the secretary. If the secretary is not available, or refuses to accept the paper or deposit, or cannot be found, it may be deposited in the United States mail, at some point in Louisiana, by certified or registered mail in an envelope properly stamped and addressed to the chairman, which deposit in the mail constitutes a proper filing as of that date.
“Failure of the chairman to receive the paper or deposit does not prejudice or deprive a person of any rights given him under this Part if the above conditions are complied with.” La.R.S. 18:397

Jewell’s belated qualification was apparently due to his desire not to oppose the incumbent, but when the incumbent’s son qualified on the last day and the incumbent qualified for another office the situation changed. Under these changed conditions Jewell’s decision to become a candidate was made, within the period for qualifying. Only minutes remained for qualifying during the prescribed period, and the statute’s provisions must be applied in this time span. It was at this time that the Chairman of the Committee was unavailable; and it was then that the secretary refused to accept the qualifying papers. Thus, it was proper to deposit the papers in the United States mail, as Jewell did, thereby complying with the conditions announced in the quoted statute. This procedure was the only recourse left to him in the limited time remaining.

Nothing in the statute’s provision requires a prospective candidate to qualify early during the period prescribed for doing so. Therefore, the Chairman’s availability and the Secretary’s refusal are to be viewed as of the time when the effort to qualify is made. Since these conditions were satisfied during this time span, it was proper for Jewell to adopt the alternative and mail the qualifying papers. Especially is such a construction indicated under the circumstances of this case.

The law favors permitting candidates to qualify for public office. It is not the purpose of the law

“ . . .to obstruct with mere technical difficulties, the exercise of the right, which every citizen has, to seek the approval of his political associates, or the public at large. To the contrary, the whole spirit of the. legislation is to encourage the multiplication of worthy candidates for nomination to public office, in order that the body of voters constituting a political party, or constituting the electorate at large, may have the benefit of a choice, and not be compelled to accept candidates chosen by the minority or thrust upon them in some other -way. . ” Langridge v. Dauenhauer et al, 120 La. 450, 45 So. 387 (1908). See also Rousseau v. Democratic Parish Ex ecutive Committee, 164 So. 175 (La.App.1935).

The policy announced in the Langridge Case is particularly pertinent here where the incumbent senator qualified for reelection early. Then, on the last day, he qualified for another office and caused his son to qualify for the office of senator also. The inference is strong that this was undoubtedly a scheme to deny the electorate a choice between genuine opponents. Nevertheless, by a highly technical construction of the statute, the majority disqualifies Jewell.

Aside from the fact that Jewell did satisfy the statute’s filing requirements, I cannot sanction the scheme which these facts present.


text:
    Dr. J. A. LANASA v. CITY OF NEW ORLEANS and Recorder of Mortgages for the Parish of Orleans.
    No. 56080.
    Supreme Court of Louisiana.
    April 23, 1975.
   JOINT MOTION AND ORDER OF DISMISSAL

On motion of all parties herein, through undersigned counsel, and on suggesting to the Court that this matter has been compromised and settled, and should be dismissed, with prejudice, each party to bear his own costs;

It is ordered that the captioned matter be, and it is hereby, dismissed with prejudice, each party to bear his own costs. 316 So.2d 836.


text:
    Reuben Edwin DELOACH v. Judge Israel M. AUGUSTINE, Jr.
    No. 56795.
    Supreme Court of Louisiana.
    Sept. 4, 1975.
   In re: Reuben Edwin Deloach (In re: Paul Juery Autopsy Matter) applying for writ of mandamus and stay order.

Writ granted in part. The trial court is ordered to act in accordance with law for disposition of the motion pending before it within twenty four hours.


text:
    Carrie Young, wife of/and Eugene RICHARDSON v. WINN-DIXIE, LOUISIANA, INC., and the Fidelity & Casualty Co. of New York.
    No. 56181.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
   In re: Carrie Young, Wife of Eugene Richardson applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, Parish of Orleans.

Writ granted. The judgment is vacated and the case is remanded to the court of appeal, Fourth Circuit, for reconsideration in the light of our recent decision in No. 55,757, Mancuso v. Kramer handed down June 23,-1975.


text:
    STATE of Louisiana ex rel. Isaac LAWSON, Jr. v. C. Murray HENDERSON, Warden, Louisiand State Penitentiary.
    No. 55209.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
   In re: Isaac Lawson, Jr. applying for Writ of Mandamus.

Writ granted on supplemental petition. See Order.

On considering the supplemental petition of the relator, Isaac Lawson, Jr., in the above entitled and numbered matter,

Ordered that the Honorable Israel Augustine, Judge, Section “I”, Criminal District Court, Parish of Orleans, lodge that portion of the record on appeal that is completed, along with assignment of errors forthwith;

Further ordered that an evidentiary hearing be completed within two weeks wherein the State and counsel for the defendant can attempt to reconstruct that portion of the record alleged to be missing. Evidence is to be received and the transcript of that hearing shall be completed and lodged here as a supplemental record as quickly as possible.

Further ordered that the right of appellate review of double jeopardy is reserved to the defendant under the supplemental record.


text:
    STATE of Louisiana v. Margaret HOLLOWAY.
    No. 56398.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
   In re: Margaret Holloway, applying for supervisory writs of certiorari.

Writ granted. Verdict and sentence reversed and case remanded for new trial under State v. Jones, La., 1975, 316 So.2d 100; State v. Junell, La., 308 So.2d 780 and other holdings.

SANDERS, C. J., and SUMMERS, J., dissent being of the opinion that the evidence other than intoxication test is adequate to support the conviction.


text:
    CITY OF BATON ROUGE v. David B. LEVY.
    No. 56473.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
   In re: David B. Levy applying for Writs of Certiorari, Prohibition, Mandamus and Stay Order.

Writ granted. Conviction and sentence for violation of R.S. 14:98 are reversed in view of our decision in State v. Jones, La., 316 So.2d 100, handed down on June 25, 1975. It is further ordered that this case be remanded to the trial court for a new trial.


text:
    STATE of Louisiana v. Martin B. MAYO.
    No. 56526.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
   In re: Martin B. Mayo applying for Writs of Certiorari (Review) Prohibition and Mandamus.

Writ granted. Verdict and sentence reversed and new trial ordered. Under State v. Jones, La., 1975, 316 So.2d 100; State v. Junell, La., 308 So.2d 780; State v. Bruins, La., 315 So.2d 293.

SANDERS, C. J. and SUMMERS, J., dissent, being of the opinion that the evidence other than the intoxication test is sufficient to support the conviction.


text:
    STATE of Louisiana ex rel. James PORTER v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56265.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
   In re: James Porter, applying for cer-tiorari and habeas corpus.

Writ denied. Review of evidentiary hearing conducted August 6, 1971 does not warrant the exercise of our supervisory jurisdiction in this matter.


text:
    STATE of Louisiana ex rel. Prentice ROBINSON, Jr. v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56349.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
   In re: Prentice Robinson, Jr. applying for Writs of Habeas Corpus, Certiorari, Prohibition and Mandamus.

Writ refused. The application has no merit.


text:
    STATE of Louisiana ex rel. Prentice ROBINSON, Jr. v. The HONORABLE JUDGE PRESIDING IN the FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO.
    No. 56511.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
   In re: Prentice Robinson, Jr., applying for writ of mandamus and habeas corpus.

Writ of mandamus denied since trial court has acted on writ of habeas corpus. Relator may urge the writ of habeas corpus to this Court by proper application.


text:
    STATE of Louisiana ex rel. William DOYLE v. Edwin LOMBARD, Clerk of Court, Criminal District Court, Orleans Parish.
    No. 56576.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
   In re: William Doyle, applying for writ of mandamus.

Writ refused. Since the trial judge acted on the petition on June 10, 1975, the matter is now moot.


text:
    STATE of Louisiana ex rel. Frank GEORGE v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56560.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
   In re: Frank George, applying for writ of mandamus and habeas corpus.

Writ refused. Since the trial judge acted on relator’s petition and granted relief, this petition is now moot.


text:
    STATE of Louisiana ex rel. Prentice ROBINSON, Jr. v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56687.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
   In re: Prentice Robinson, Jr., applying for writs of certiorari, habeas corpus, prohibition and mandamus.

Writ denied. Applicant not entitled to relief prayed for.

DIXON, J., is of the opinion that the law requires an evidentiary hearing on the claim of plea bargain.


text:
    STATE of Louisiana v. Jerry Ben JENKINS, Jr.
    No. 56741.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
   In re: Jerry Ben Jenkins, Jr., applying for writs of certiorari, prohibition, mandamus and for Stay Order.

Writ denied. On the showing made we find no abuse of the trial judge’s discretion nor any procedural irregularity in connection with the bail hearing.


text:
    STATE of Louisiana ex rel. David WELCH v. Bernard J. BAGERT, Judge, Criminal District Court, Parish of Orleans.
    No. 56809.
    Supreme Court of Louisiana.
    Sept. 5, 1975.
   In re: David Welch, applying for Writ of Mandamus.

Writ refused. Since the trial judge acted in this matter on May 1, 1975, the present petition is moot.


author: DIXON and CALOGERO, Justices,

text:
    STATE of Louisiana v. Norman CLARK.
    No. 56145.
    Supreme Court of Louisiana.
    Sept. 8, 1975.
   In re: Norman Clark applying for Supervisory Writs of Certiorari and/or Review, Mandamus and Prohibition.

Writ granted. Relator is entitled to he returned to parish prison. It is ordered that he be transferred to and retained in parish prison.

DIXON and CALOGERO, JJ., assign additional concurring reasons for writ grant.

DIXON and CALOGERO, Justices,

Assigning additional concurring reasons for writ grant:

An appeal suspends the execution of sentence. C.Cr.P. 913. We specifically held, in State v. Williams, 262 La. 769, 264 So.2d 638 (1972) that there is no right to transfer a prisoner to Angola, even at his request, while his appeal is pending. State ex rel. Matthews v. Henderson, La., 292 So.2d 496 (1974) was not intended as a departure from that rule. There, we approved the transfer of a particular prisoner because of the trial court’s findings that the continued holding of the prisoner in parish prison, and because what we thought were “special circumstances,” constituted a security risk.

In the absence of a showing that this applicant is a danger to himself or others in the parish prison, or other serious special circumstances, his transfer to Angola pending appeal cannot be approved. It is not sufficient to show that the parish jail is unfit or unsafe; in that case, the law specifically provides for the transfer of the prisoner to an adjoining parish. R.S. IS :706.

The law must be respected; we can no longer delay its enforcement.


text:
    STATE of Louisiana v. Brently J. WEAVER.
    No. 56446.
    Supreme Court of Louisiana.
    Sept. 8, 1975.
   In re: Brently J. Weaver, applying for Writs of Certiorari or Review.

Granted. (See Order).

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable E. L. Guidry, Judge of the Sixteenth Judicial District Court for the Parish of St. Mary, to transmit to the Supreme Court of Louisiana, on or before the tenth day of October, 1975, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 12th day of December, 1975, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    John R. NASH v. L. J. WHITTEN.
    No. 56525.
    Supreme Court of Louisiana.
    Sept. 8, 1975.
   In re: John R. Nash, applying for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Desoto, 312 So.2d 679.

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


text:
    STATE of Louisiana ex rel. Theda BERTRAND v. Elayn HUNT, Director of Dept. of Corrections, et al.
    No. 56501.
    Supreme Court of Louisiana.
    Sept. 8, 1975.
   In re: Theda Bertrand applying for Writs of Mandamus, Prohibition and Ha-beas Corpus.

Granted. (See Order).

The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a writ of certiorari issue herein, directing the Honorable Elmo E. Lear, Judge of the Nineteenth Judicial District Court for the Parish of East Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 10th day of October, 1975, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on the 12th day of December, 1975, at 10 o’clock A.M., why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana ex rel. Michael E. ABRAHAM v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56540.
    Supreme Court of Louisiana.
    Sept. 8, 1975.
   In re: Michael E. Abraham, applying for writ of certiorari and habeas corpus.

Writ granted. Evidentiary hearing ordered to determine whether period of probation has been completed (La.Code Crim. P. art. 898) or whether said period was interrupted (La.Code Crim.P. art. 899(D). See State v. Jones, 285 So.2d 231 (La.1973).


text:
    Clyde E. HARPER v. STATE of La., DEPT. OF REVENUE and Bd. of Alcoholic Beverage Control.
    No. 56549.
    Supreme Court of Louisiana.
    Sept. 8, 1975.
   In re: Clyde E. Harper, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit, Parish of Natchitoches. 313 So.2d 339.

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


text:
    STATE of Louisiana ex rel. Henry Paul POLK v. John B. RABALAIS, Custodian of Records, Louisiana State Penitentiary, et al.
    No. 56534.
    Supreme Court of Louisiana.
    Sept. 8, 1975.
   In re: Henry Paul Polk applying for Writs of Habeas Corpus, Mandamus, Prohibition and Certiorari.

Writs refused. No merit in the application.


text:
    STATE of Louisiana ex rel. Philip BROWN v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56531.
    Supreme Court of Louisiana.
    Sept. 8, 1975.
   In re: Philip Brown, applying for writ of habeas corpus.

Application denied. C.Cr.P. provides express statutory direction for system followed by District Attorney.


text:
    Joseph N. TRAIGLE, Collector of Revenue, Dept. of Revenue, State of Louisiana v. PPG. INDUSTRIES, INC.
    No. 56789.
    Supreme Court of Louisiana.
    Sept. 8, 1975.
   In re: Joseph Traigle, applying for plenary powers . and Exercise of Authority and Supervisory Jurisdiction. 315 So.2d 859.

Granted. Applicant is entitled to re-argument under Art. 5, Sec. 8, Constitution, 1974, and the Order of the Court of Appeal denying the motion to re-argue (dated July 9, 1975) is vacated and the motion to re-argue before a 5 judge panel is granted.


text:
    STATE of Louisiana ex rel. Dennis SEARS v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary.
    No. 56535.
    Supreme Court of Louisiana.
    Sept. 8, 1975.
   In re: Dennis Sears applying for Writ of Habeas Corpus, Mandamus, and Prohibition.

Writ denied. There is no showing to warrant the exercise of this Court’s supervisory jurisdiction. The case relied upon, Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 is distinguishable.


text:
    Audie Jean SULLIVAN, guardian and Norma Jean Populis v. REX DRILLING COMPANY, INC., and the Fidelity and Casualty Company of New York.
    No. 56545.
    Supreme Court of Louisiana.
    Sept. 8, 1975.
   In re: Audie Jean Sullivan, Guardian and Norma Jean Popuiis, applying for Cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Bien-ville. 312 So.2d 668.

Denied. On the facts found by the Court of Appeal there was no error in the judgment of that Court.


author: BARHAM, J.,

text:
    Daniel I. RAMSEY et al. v. H. S. JOHNSON.
    No. 56538.
    Supreme Court of Louisiana.
    Sept. 8, 1975.
   In re: Daniel I. Ramsey, et al applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Jackson. 312So.2d671.

Application denied. There is no error in the only assignment urged.

BARHAM, J.,

concurs in writ denial. The Court of Appeal opinion appears to indicate that the dominant estate can seek relocation of servitude under C.C. art. 703. Only the servient estate can take advantage of art. 703. However, the petition of plaintiff (owner of servient estate) alleges prior offer of the same relocation which was legally established by the court. Actually under the pleadings, this right of passage is not a relocation of passage —it is the establishing of the first servitude of passage which is established by law or contract. The courts below have fixed passage not contrary to law and in conformity to the equity sought by the servient estate.


text:
    Shirley Ann Taylor BODDIE v. JACKSON PARISH SCHOOL BOARD et al.
    No. 56539.
    Supreme Court of Louisiana.
    Sept. 8, 1975.
   In re: Shirley Ann Taylor Boddie applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit, Parish of Jackson. 312 So.2d 681.

Writ denied. The judgment of the Court of Appeal is correct.


text:
    STATE of Louisiana v. Ron W. LOWERY.
    No. 56537.
    Supreme Court of Louisiana.
    Sept. 8, 1975.
   In re: Ron W. Lowery applying for Writ of Certiorari, Prohibition and Mandamus.

Writ denied. This court will not ordinarily review interlocutory rulings nor interfere in the orderly processes of trial.


text:
    Otha LEA and Josephine Lea v. Henry J. BOUGON, Jr., and Continental Insurance Co.
    No. 56541.
    Supreme Court of Louisiana.
    Sept. 8, 1975.
   In re: Otha Lea and Josephine Lea applying for certiorari or writ of review to the Court of Appeal, Fourth Circuit, Parish of Orleans. 312 So.2d 903.

Writ refused. On the facts found by the Court of Appeal, there is no error of law in its judgment.


text:
    Frazier BELL v. GULF INSURANCE COMPANY et al.
    No. 56542.
    Supreme Court of Louisiana.
    Sept. 8, 1975.
   In re: Frazier Bell applying for certio-rari or writ of review to the Court of Appeal, Third Circuit, Parish of Rapides. 313 So.2d 277.

Writ denied. On. the facts found by the Court of Appeal, there is no error of law in the judgment complained of.


text:
    STATE of Louisiana v. Howard A. LOVE.
    No. 56544.
    Supreme Court of Louisiana.
    Sept. 8, 1975.
   In re: Howard A. Love applying for certiorari or writ of review to the Court of Appeal, Second Circuit, Parish of Caldwell. 312 So.2d 675.

Writ denied. No error of law.

BARHAM, J., does not participate.


text:
    Mrs. Annie Lou BABERS v. The AETNA CASUALTY & SURETY COMPANY et al.
    No. 56546.
    Supreme Court of Louisiana.
    Sept. 8, 1975.
   In re: Mrs. Annie Lou Barbers applying for certiorari or writ of review to the Court of Appeal, Second Circuit, Parish of Bienville. 312 So.2d 898.

Writ denied. Judgment of the Court of Appeal is legally correct.


text:
    STATE of Louisiana ex rel. John McCORMICK v. Perry M. JOHNSON, Clerk of Court.
    No. 56657.
    Supreme Court of Louisiana.
    Sept. 8, 1975.
   In re: John McCormick, applying for writ of mandamus and/or remedial writs.

Writ refused. The trial judge ruled on relator’s petition on June 30, 1975. LSA R.S. 13:4207, 13:4210, penalizing a trial judge who keeps a case under advisement for longer than 30 days, is inapplicable to this case.


text:
    Mrs. Annie Lou BABERS v. Linda Jean BABERS and Bobby Joe Weaver.
    No. 56547.
    Supreme Court of Louisiana.
    Sept. 8, 1975.
   In re: Mrs. Annie Lou Babers applying for certiorari, or writ of review; to the Court of Appeal, Second Circuit, Parish of Bienville. 312 So.2d 896.

Writ denied. Judgment of the Court of Appeal is legally correct.


author: DIXON, J.,

text:
    Reuben Edwin DELOACH v. Frank E. MINYARD, M.D.
    No. 56839.
    Supreme Court of Louisiana.
    Sept. 9, 1975.
   In re: Reuben Edwin Deloach applying for Remedial Writs and Stay Order.

Writ denied. We find no error of lav, in the judgment of the trial court on the contempt motion. Other issues raised cannot be adjudicated in this court originally.

DIXON, J.,

concurs in the denial of the application. The district court has ordered the body of Paul Juery turned over to De-loach for burial “in the manner pointed out by law within 72 hours”. If there is further action by the coroner prejudicial to the rights of applicant, such matters must be litigated and adjudicated in a trial court before seeking supervisory or appellate relief.


author: LOTTINGER, Judge.

text:
    Walter Foard WILSON, Jr. v. Jerry Belle Martin WILSON.
    No. 10367.
    Court of Appeal of Louisiana, First Circuit.
    June 30, 1975.
    Rehearing Denied Aug. 26, 1975.
    Writ Refused Oct. 24, 1975.
    Velma P. O’Neal, Hammond, for appellant.
    Arthur W. Macy, Hammond, for appel-lee.
    Before LOTTINGER, COVINGTON and BAILES, JJ.
   LOTTINGER, Judge.

Appellant, Walter Foard Wilson, Jr., complains of a holding that his wife, Jerry Belle Martin Wilson, is entitled to alimony after final divorce. In early 1968, Mr. Wilson filed suit for separation from his wife on the ground of abandonment. On confirmation of default on that ground, Judgment was rendered in favor of Mr. Wilson on January 26, 1968.

Mr. Wilson then filed suit for final divorce based on the ground that there had been no reconciliation. Mrs. Wilson answered asking for alimony. Judgment was rendered on June 6, 1969, granting the divorce but without any award of alimony.

Mrs. Wilson then filed a petition asking for alimony. The Trial Judge, after hearing the evidence, award Mrs. Wilson alimony in the amount of $200.00 per month. It is from this judgment that Mr. Wilson perfected this appeal.

The Trial Judge allowed Mrs. Wilson to introduce evidence on the question of fault at the alimony proceeding. Appellant believes that the Trial Court erred in allowing Mrs. Wilson to litigate the question of her lack of fault in this proceeding inasmuch as the legal separation had been granted upon the ground of her abandonment.

Appellee argues that the Trial Court properly allowed this evidence because appellant did not object to it. However, we find the following questioning of Mrs. Wilson by her attorney and objection by counsel for appellant in the transcript:

“Q. Would you explain to the court basically the circumstances of your leaving the domicile at the time of the separation?
BY MRS. O’NEAL:
“I object .to that.
BY THE COURT:
“Objection sustained. Now is there any dispute or can you stipulate in this case that she was not at fault, will you so stipulate ?
BY MRS. O’NEAL:
“No I can’t stipulate that.
BY THE COURT:
“Then we have to go into the question unless you will stipulate that.”

Appellant’s above objection was timely, and the Trial Judge sustained it. Immediately thereafter, the Trial Judge allowed appellee to go into the question of fault and appellant did not raise the same objection a second time. In view of the fact that appellant made a timely objection, it was not necessary for him to continue to object.

It is appellant’s position that since the question of fault was judicially determined in the separation suit, Mrs. Wilson is not entitled to alimony under the provisions of Civil Code Article 160, which provides:

“When the wife,; has not been at fault, and she has not sufficient means for her support, the court may allow her, out of the property and earnings of the husband, alimony which shall not exceed one-third of his income when:
1. The wife obtains a divorce;
2. The husband obtains a divorce on the ground that he and his wife have been living separate and apart, or on the ground that there has been no reconciliation between the spouses after a judgment of separation from bed and board, for a specified period of time; or
3. The husband obtained a valid divorce from his wife in a court of another state or country which had no jurisdiction over her person. This alimony shall be revoked if it becomes unnecessary, and terminates if the wife remarries.”

Mr. Wilson’s authority for his position that the Lower Court should not at this time go into the question of Mrs. Wilson’s lack of fault is the Louisiana Supreme Court case of Fulmer v. Fulmer, 301 So.2d 622 (La.1974). In the Fulmer case, the wife had obtained a contested separation on the ground of abandonment. After a lapse of one year and sixty days, the husband filed suit for a final divorce, and the wife demanded alimony incidental to the divorce. The Louisiana Supreme Court held that the determination of fault in the separation proceeding barred re-litigation of the fault issue for purposes of Article 160 so that the husband was prevented from introducing evidence of the wife’s fault. In the Fulmer case, the Supreme Court goes beyond the instant facts and lays down authoritative rules governing the application of Article 160. The Court concluded that fault in the context of Article 160 had reference to the traditional concept of fault on which an action for separation or divorce might be founded. The Court carefully reasoned its way through the legislative history of Article 160. It is now clear that, whenever one spouse’s fault has been adjudicated in a separation proceeding, the effect of the determination is to forever preclude re-litigation of the wife’s fault, or lack of it, for purposes of Article 160. The following quotation from the Fulmer case summarizes the Louisiana Supreme Court’s statement of the law on this point:

“A judgment of separation in favor of the wife is a judicial determination of the marital fault which caused the judicial separation. As to the pre-separation fault, it should constitute a conclusive determination which equally bars re-litigation of the issue of fault, when alimony is sought under Article 160, whether the divorce is based either on La.R.S. 9:301 or on 9:302. It should equally bar the husband or the wife from re-litigating such issue.”

A writer in the Louisiana Law Review in the annual section, “Work of Appellate Courts,” 35 L.L.R. 265, recently wrote the following concerning the Fulmer case:

“As was noted in the opinion, the decision promotes judicial economy and consistency. However, it will also work injustice on those spouses who choose not to contest the action for separation in order to avoid the unseemliness of a public trial. The power to resolve this problem resides with the Legislature and not with the courts.”

The recent Louisiana Supreme Court case of Nethkin v. Nethkin, 307 So.2d 563 (La.1975) is very similar to the instant matter, and we quote a portion of that opinion:

“Having found the judgment of separation to be immune from collateral attack, it is necessary to consider the issue of the alternative claim of the wife for alimony after divorce on the ground that she has not sufficient means for her support. To succeed with this proposition the wife must demonstrate that she ‘has not been at fault.’ La. Civil Code art. 160. The question has recently been resolved in Frederic v. Frederic, 302 So.2d 903 (La.1974) and Fulmer v. Fulmer, 301 So.2d 622 (La.1974). In those cases the holding was that determination of marital ‘fault’ in the separation proceedings on the grounds of abandonment bars relitigation of the ‘fault’ issue for purposes of an award of alimony following the final divorce on the ground of no reconciliation.
“In the instant case, when the husband obtained the judgment of separation from bed and board against his wife on the ground of abandonment and cruel treatment, the judgment carried the implication that the wife, and not the husband, was at fault in the separation. The granting of the final judgment of divorce thereafter in favor of the husband, on the ground that no reconciliation had taken place as provided by Section 302 of Title 9 of the Revised Statutes, does not depend upon any question of fault on the part of either spouse. Such a divorce decree is founded entirely upon the absolute right of either spouse to obtain the divorce on the proof merely that there has been no reconciliation during the probation period allowed by the statute. In fact, insofar as the divorce decree is concerned, in such a case, only evidence bearing upon the question of reconciliation is relevant. August v. Blache, 200 La. 1029, 9 So.2d 402 (1942).
“Therefore, since the wife’s fault is established by the separation decree, the issue of fault can not be relitigated in the divorce action, and by the plain terms of Article 160 of the Civil Code the wife cannot assert a claim for alimony after divorce. And this result follows notwithstanding the fact that she has no means for her support.”

The wife in the matter before us argues that she is entitled to alimony because she does not have sufficient means for her support. We find no merit in this argument in light of the last paragraph quoted above.

For the above and foregoing reasons the judgment of the District Court is reversed, and Mrs. Wilson’s rule for alimony is dismissed, all costs to be paid by Jerry Belle Martin Wilson..

Reversed.