text:
    Oliver Lee BROOKS, Plaintiff-Appellant, v. Carey JONES, Defendant-Appellant.
    No. 12844.
    Court of Appeal of Louisiana, Second Circuit.
    March 15, 1976.
    En Banc. Rehearing Denied April 19, 1976.
    Writ Refused June 15, 1976.
    Wilson & Veatch by Thomas A. Wilson, Shreveport, for plaintiff-appellant, Oliver Lee Brooks.
    Gamm, Greenberg & Kaplan by Jack H. Kaplan, Shreveport, for defendant-appellant, Carey Jones.
    Before BOLIN, HALL and SMITH, JJ.
   SMITH, Judge.

This is a suit originally filed by Oliver Lee Brooks against Carey Jones for possession of certain property. Defendant reconvened converting the issue to establishment of the boundary. The matter was previously before this court in 1973 (Brooks v. Jones, 286 So.2d 368) when it was remanded for further proceedings because the court-appointed surveyor had not complied with the law and therefore his plat of survey and proces verbal were not admissible. Upon remand the trial court appointed a new surveyor who made his survey in compliance with law.

The trial court was of the opinion that the surveyor appointed by the court conducted his survey in full compliance with law, and his findings were substantially the same as those of the first court-appointed surveyor and correctly shows the boundary between the parties and granted judgment accordingly. From this judgment both plaintiff and defendant appealed. We affirm.

Appellants contend that the court-appointed survey is not well-founded because he did not use well-established principles in making his survey. Each appellant contends that his own surveyor's opinion should be made the basis of judgment.

In an action of boundary the law requires proof of the boundary with legal certainty and that burden is divided equally among the contesting parties. Russell v. Producers’ Oil Company, 143 La. 217, 78 So. 473 (1918).

In this case defendant Jones produced a survey based on a survey of a nearby subdivision without checking it against established government markers. Plaintiff had two surveys, one by Ramsey and one by Wilkerson & Son. The latter survey apparently coincided with the north line of Section 26 as established by the first court-appointed surveyor. Plaintiff’s other surveyor started his survey from a section corner which he tied to what is known as United Gas corner by using other surveyors’ information.

Thus, both parties’ surveyors used prior surveys as starting points, whereas the court-appointed surveyor began from the Government Township marker.

There is a presumption of correctness in favor of surveys made pursuant to court order and complying with all the formalities required by law. Anding v. Smith, 189 So. 362 (La.App., 2d Cir. 1939); Harvey v. Havard, 274 So.2d 917 (La.App., 1st Cir. 1973); Porche v. Martin, 177 So.2d 288 (La.App., 1st Cir. 1965).

The court finds that the court-appointed surveyor began from a well-established township corner, located established corner markers, located four corners of the section in question and finally established the north-south quarter section boundary line between plaintiff and defendant.

The line established by this survey was verified and its location substantiated by credible corroborative evidence upon which the courts can act with assurance of doing substantial justice as between the parties as was said in McMichael v. Williams, 111 So.2d 542 (La.App., 1st Cir. 1959).

The line between the property of Jones, described as:

“The Western one-third of the South Half of Southeast Quarter of Northeast Quarter (Wi/3 of Sy2 of SE(4 of NE14), Section 26, township 17 North, Range 11 West, Bossier Parish, Louisiana, containing 6.6666 acres, more or less.”

and the property of Brooks, described as:

“A tract of land located in the Northeast corner of the Southwest Quarter of the Northeast Quarter (SW/4 of NE/4) of Section 26, Township 17 North, Range 11 West, Bossier Parish, Louisiana, more particularly described as follows: From the Northeast corner of the Southwest Quarter of the Northeast Quarter (SW/4 of NE/4) of Section 26, run thence South 585.5 feet; run thence west 250.0 feet; run thence North 585.5 feet; run thence East 250.0 feet to the point of beginning, together with all buildings and improvements situated thereon.”

is fixed as established by James D. Mohr by court survey on June 3, 1974 represented by a I1/2" pipe set at the Southwest corner of Jones’ property and running north 660 feet to a 1" pipe set at the Northwest corner of Jones’ property as per plat attached.

For the foregoing reasons the judgment of the lower court is affirmed.


source: Caselaw Access Project

author: PRICE, Judge.

license: Public Domain

text:
    Fred J. BERNAL, Plaintiff-Appellant, v. EMPLOYERS COMMERCIAL UNION INSURANCE COMPANY et al., Defendants-Appellees.
    No. 12856.
    Court of Appeal of Louisiana, Second Circuit.
    March 15, 1976.

      Hal V. Lyons, Shreveport, for plaintiff-appellant.
    Lunn, Irion, Switzer, Johnson & Salley by Jack E. Carlisle, Jr., Shreveport, for defendants-appellees.
    Before PRICE, SMITH and HALL, JJ.
   PRICE, Judge.

Fred J. Bernal brought this suit under the provisions of the workmen’s compensation statute seeking benefits for an alleged total and permanent disability resulting from an injury received while in the employment of Ram Auto Supply, Inc. Defendants are Ram and its compensation insurer, Employers Commercial Union Insurance Company.

Plaintiff also seeks statutory penalties and attorney fees against the insurer for an alleged arbitrary and capricious refusal to pay benefits provided by the statute.

The trial court awarded plaintiff a total sum of $2,057.00 for a partial permanent disability under the provisions of R.S. 23:1221 and rejected his demands for penalties and attorney fees.

Plaintiff has appealed asking that the judgment be modified to grant him benefits for a total rather than a partial disability and to impose penalties and attorney fees against the insurer.

Plaintiff was working for Woody’s Motor Supply in Shreveport as a counter salesman at a monthly salary of $750 before being hired by Ram to manage a new store to be opened in Shreveport in April 1973. While on a trip to the Ram home office and warehouse in Monroe on April 13, 1973, plaintiff slipped and fell as he stepped onto a freight elevator injuring his right knee. He consulted Dr. James Zum Brun-nen in Shreveport the following day who diagnosed his injury as a sprain or tear of the medial collateral ligament in the inner aspect of the knee. He was treated by Dr. Zum Brunnen for this condition and by July 24, 1973, was found to have no swelling and a full range of motion in the knee. At that time, Dr. Zum Brunnen was of the opinion he could return to his previous work.

The evidence shows he was paid his full salary of $900 per month with Ram until November 1973 when Ram saw fit to close the branch store which plaintiff had been hired to manage in Shreveport. Plaintiff immediately went to work for his previous employer, Woody’s Motor Supply, as an assistant manager at a salary of $800 per month. At the time of trial, his salary had been increased to $875 per month.

Plaintiff filed this proceeding in March 1974, contending that the injury which he suffered to his knee while in the employment of Ram causes him a substantial degree of pain in the performance of his duties and he is entitled to receive benefits provided under the statute for a total and permanent disability.

Subsequent to the filing of suit, plaintiff was examined by Dr. A. E. Dean at the request of defendants. Dr. Dean performed an arthrogram on August 28, 1974, and as a .result thereof, it was determined plaintiff had a definite tear of the medial meniscus or cartilage in the knee. Dr. Dean prescribed a knee cage brace for immediate treatment as plaintiff did not desire to have any corrective surgery performed.

Dr. Dean testified that standing on the knee for long lengths of time would not necessarily cause pain. Only when a movement such as twisting or squatting causes a catch in the knee does the probability of pain exist. The pain resulting from such a condition is not a constant but rather a spasmodic or occasional type thing according to Dr. Dean’s testimony. Dr. Dean is of the opinion that in the event plaintiff should decide to have corrective surgery, it would in all probability be successful and would result in an approximate five per cent disability of the knee. Dr. Zum Brun-nen testified a torn cartilage could cause a maximum disability to the knee of fifteen per cent.

Plaintiff testified he does have pain after working for periods of time on the knee. He presented several witnesses who have observed him at various times at his present employment at Woody’s Motor Supply who testified he has complained to them of his knee hurting. One or more of the witnesses have observed him walk with a limp on occasions.

The evidence is somewhat conflicting as to what duties are required qf plaintiff in his employment which could cause a “catching” movement in his knee and resulting pain. There is some direct testimony that a counter salesman is frequently required to bend, squat, and climb a ladder for auto parts.

Plaintiff, under cross examination, testified his position is substantially managerial and that it is rare that he is required to climb a ladder and that he primarily works with the customer and has available other help to do the climbing and squatting to procure parts.

There is an absence of any medical testimony indicating that plaintiff is incapable of performing the customary duties of his employment without enduring substantial pain. Whether a claimant is undergoing substantial pain in the performance of the duties of his employment is a factual question which must be resolved under the circumstances presented in each individual case.

Plaintiff relies heavily on the Supreme Court decision in Futrell v. Hartford Accident & Indemnity, 276 So.2d 271 (La.1973), in which the court determined that an automobile mechanic who had a similar knee injury to the one suffered by plaintiff, was totally and permanently disabled because of the duties required of a mechanic.

We do not find the duties of an automobile mechanic as described in Futrell to be comparable to the work of a parts’ counter salesman whose duties are partially managerial and much less strenuous in nature.

There is no evidence that plaintiff has missed any days of work after returning to work for his present employer because of his knee condition. He has also continued to earn substantially the same wages as before the injury. The manager of Woody’s Motor Supply testified on behalf of plaintiff and although he stated plaintiff was not as fast as he had formerly been, there is no inference in his testimony plaintiff would not be continued in his position because of any physical inability to do the work required of him in a satisfactory manner.

Under the circumstances presented, it would appear the trial court was not in error in finding the only benefits to which plaintiff is entitled are for a percentage of permanent disability to the knee under the partial disability provisions of R.S. 23:1221.

In awarding plaintiff a fixed amount of $2,057.00 for a partial disability under R.S. 23:1221, the trial judge did not set forth in detail in his reasons for judgment his method of calculating the amount awarded. His reasons indicate he proceeded under subsection (3) of section 1221 which is contingent on the claimant suffering a diminution in earnings.

Plaintiff has continued to earn substantially the same amount as he did prior to the injury. It would therefore appear to be more appropriate to determine his benefits in accord with R.S. 23:1221(4)(o).

His restriction on the use of his knee which obviously affects the leg as a whole does not exceed fifteen per cent in our appreciation of the medical testimony.

His weekly earnings at the time of the injury were approximately $225. Sixty-five per cent of this amount is $146.25. Fifteen per cent of this sum equals $21.94. The statute in effect at the time of the injury allows 175 weeks for the loss of a leg. Therefore 175 weeks at $21.94 per week is $3,839.50, which is the amount plaintiff is entitled to for his partial permanent disability.

Plaintiff also contends the trial court was in error in not awarding penalties and attorney fees against the insurer for an arbitrary and capricious failure to pay benefits due him.

The evidence in the record is not sufficient to show that the defendant insurer’s failure to pay or tender benefits was arbitrary or capricious.

For the foregoing reasons, the judgment appealed from is amended and recast as follows:

It is ordered that there be judgment in favor of plaintiff, Fred J. Bernal, and against defendants, Ram Auto Supply, Inc. and Employers Commercial Union Insurance Company, in solido, for workmen’s compensation benefits at the rate of $21.94 for a total of 175 weeks, together with legal interest on any weekly payment which is or shall become delinquent. Plaintiff’s claim for penalties and attorney fees is denied. Costs of trial and appeal are assessed to defendants.

Amended and affirmed.


text:
    TUTORSHIP OF Angela TAYLOR et al. Florida SCHUFFORD, Plaintiff-Appellee, v. John MASTERS et al., Defendants-Appellants.
    No. 12849.
    Court of Appeal of Louisiana, Second Circuit.
    March 15, 1976.
    En Banc. Rehearing Denied April 19, 1976.

      Gamm, Greenberg & Kaplan by Jack H. Kaplan, Shreveport, for defendants-appellants.
    Burnett, Harrison, Sutton & Walker by Bobby D. Sutton, Shreveport, for plaintiff-appellee.
    Before PRICE, BOLIN and MARVIN, JJ-
   PRICE, Judge.

This is an appeal from a judgment confirming the appointment of a collateral relative as tutrix of four minor children over the opposition of collateral relatives of the same degree.

The children which are the subject of this litigation were born of the marriage of Maple Lee Masters Taylor to Jim Taylor on the following dates: Angela, May 25, 1960; Jerry Lewis, January 1, 1963; Martin Wayne, April 22, 1966; and Frederick Lavell, October 4, 1971. The mother of the children, Maple Lee Masters Taylor, was killed in an automobile accident on August 12, 1972, and at all times since that date the father has been a fugitive from justice whose whereabouts are unknown. The maternal grandmother, Elnora Strange Masters, was appointed tutrix of the children on October 4, 1972, and a maternal aunt, Florida Schufford, was appointed under-tutrix.

Upon the death of the grandmother in March, 1975, Florida Schufford applied for appointment as tutrix of the children as one of the nearest of kin in the collateral line. By order signed April 9, 1975, she was appointed provisional tutrix. The appellants herein, John Masters and Claudia B. Johnson, who are brother and sister of Florida Schufford, filed a petition opposing her appointment as tutrix and requesting that they be appointed co-tutor and tutrix of the children. After trial of the opposition, the district court confirmed the appointment of Florida Schufford as tutrix and appointed John Masters as under-tutor.

Masters and Claudia B. Johnson appealed from the judgment requesting this court to vacate the confirmation of Florida Schuf-ford as tutrix because of the following errors on the part of the trial court:

1. A Louisiana Department of Public Welfare report was admitted into evidence without appellants having the opportunity to review the report and to cross-examine the person who prepared it.
2. That the weight of the evidence showed the best interest of the minors would be served by the appointment of appellants as co-tutor and tutrix.

ASSIGNMENT OF ERROR ONE

We find no merit in the contention the Department of Welfare report was erroneously admitted into evidence and considered by the court without appellants having knowledge of its content or the opportunity to examine the caseworker who prepared the report.

The record before us shows that when the caseworker was called on behalf of Florida Schufford, she claimed the privilege afforded her under L.S.A.-R.S. 46:65 and the court refused to order her to testify. However at the conclusion of the trial, the attorneys for the respective parties introduced the written report of the Department by stipulation and agreed it could be obtained from the Juvenile Court records. Although the report is not a part of the record before us, we presume the trial judge may have read the report on file with the Juvenile Court.

We construe the stipulation oí counsel as a withdrawal of any prior objections to the consideration of the report by the trial judge.

In the recent case of Meyers v. Meyers, 324 So.2d 562 (La.App. 1st Cir. 1975), the First Circuit Court of Appeal in resolving an almost identical question upheld the admissibility of a similar report for failure of the adverse party to timely object. We quote the discussion of the court pertinent to this issue as follows:

Appellant complains of the trial court’s considering a report of the State Department of Welfare in determining the custody issue herein presented, which report was not made available to Appellant and which does not constitute part of the record herein.
Our courts have, on prior occasions, held such reports inadmissible as hearsay in custody proceedings when proper and timely objection is made thereto. See Murray v. Murray, La.App., 220 So.2d 790; LeBlanc v. LeBlanc, La.App., 194 So.2d 122; Lyckburg v. Lyckburg, La. App., 140 So.2d 487.
However, in this instance, the trial court made it clear that it would request and consider such a report prior to making its decision in this instance, and Appellant made no objection thereto. A litigant may not initially complain on appeal of an alleged trial court error in the absence of an objection thereto at trial level.

Also see Smith v. Smith, 141 So.2d 84 (La. App. 1st Cir. 1962).

There is no error shown in regard to the trial court’s referring to the confidential report of the Welfare Department under the circumstances presented in this case.

ASSIGNMENT OF ERROR TWO

Appellants contend the preponderance of the evidence reflects they have shown more interest in the care and welfare of the minor children since the natural mother’s death than any of the other collateral relations in the same degree and therefore, it would be in the best interest of the children to be placed in their custody and control.

It is elementary that there is a wide discretion accorded the trial judge in selecting the proper person to have the custody and tutorship of minor children and the court’s determination based on its evaluation of the credibility of the testimony of witnesses should not be disturbed unless there is an obvious abuse of this discretion.

We do not find appellants have shown any abuse of this discretion in the record before us.

The thrust of appellants’ argument rests on the premise the tutorship of the children should necessarily be awarded to them because they have a closer personal relationship with the children resulting from their having assisted their mother, Elnora Masters, in caring for the children while in her custody.

Conceding that the evidence does show they were somewhat closer to the children during this period of time than Florida Schufford, there are other factors to be considered in determining what is in the best interest of the children which are sufficient to support the trial judge’s finding.

The home of Florida Schufford is located in Shreveport and is properly equipped with plumbing and other conveniences to afford the children a sanitary and comfortable standard of living.

Masters’s home is located within a few hundred yards of the trailer in which the grandmother maintained the children in a rural area between Mooringsport and Waskom. Neither the trailer nor Masters’s home has indoor running water or toilet facilities. Access to the home is difficult and inconvenient.

We also find the evidence to show Florida Schufford to have a suitable moral character and that she. has made arrangements for proper care of the children while she is engaged in her employment.

The totality of the evidence would appear to show that it would be to the best interest of the children to remain under the tutorship of Florida Schufford.

In accord with the foregoing reasons, the judgment appealed from is affirmed at appellants’ costs.


author: BOLIN, Judge.

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, Plaintiff-Appellant, v. Jack S. WARNER, Defendant-Appellee.
    No. 12852.
    Court of Appeal of Louisiana, Second Circuit.
    March 15, 1976.
    En Banc. Rehearing Denied April 19, 1976.
    Writ Refused June 15, 1976.

      D. Ross Banister, William W. Irwin, Jr., Jerry F. Davis, Robert L. Ledoux, Johnie E. Branch, Jr., Baton Rouge, Jack C. Fruge, Sr., by Jack C. Fruge, Sr., Ville Platte, for plaintiff-appellant.
    Baker, Culpepper & Brunson by Herman A. Castete and William H. Baker, Jones-boro, for defendant-appellee.
    Before BOLIN, PRICE and MARVIN, JJ-
   BOLIN, Judge.

In order to widen Louisiana Highway 167 in the Jonesboro-Hodge area of Jackson Parish, the State of Louisiana, through the Department of Highways, acting under the authority of Louisiana Revised Statutes 48:441, et seq., expropriated a portion of defendant’s property in full ownership and a permanent drainage servitude over another small portion of the property. As compensation for the land and servitude taken, the Department of Highways deposited $1,294.80 in the registry of the court. Being dissatisfied with the amount deposited, defendant sought a judicial determination of the amount of compensation due him. Following trial the lower court awarded defendant $34,527.43, representing $20,496.07 for property taken in full ownership, $378.00 for asphalt surfacing on the property taken, $733.36 for the servitude, and $12,920.00 for severance damages. The district court also fixed the fees of the experts totaling $6,697.62.

The Department of Highways appeals, contending the trial court erred (1) in determining the amount of land taken; (2) in fixing the value of the property taken at $2.15 per square foot; (3) in awarding any severance damages; (4) in awarding excessive expert witness fees; and (5) in assessing a photographer’s fee as a cost of court.

We amend the judgment by reducing the amount awarded to the landowner, and reducing the amount awarded for the fees of the experts.

AMOUNT OF PROPERTY EXPROPRIATED

Before the taking, defendant owned .892 acres situated on the southeast corner of the intersection of Highway 167 and Alexander Street in Jonesboro, Louisiana. A residence and a commercial building which housed a drive-in restaurant and a photographer’s studio were located on the property. The residence faced Alexander Street. The commercial building faced Highway 167 but had access to both Alexander Street and the highway.

The Department of Highways took a small triangular piece of land at the juncture of the highway and Alexander Street for the construction of a “flare corner”. This tract measured 36.23 feet on the highway, 38.64 feet on Alexander Street, and 49.55 feet on the remaining side and contained 696.96 square feet.

The Department also took a rectangular permanent servitude of drainage which measured approximately 18.5 feet by 20 feet and contained 379 square feet. The west edge of the servitude lay on the existing highway right of way line and jutted 20 feet into defendant’s property.

Defendant alleged and the trial court held the Department took an additional strip of land comprising 8,836.1 square feet along the highway since the Department did not have a right of way beyond the paved portion of the highway. The Department contended it had a right of way 50 feet either side of the center line of the highway and filed a 1929 right of way deed granted by defendant’s ancestor in title to support their argument.

The issue of the Department’s right of way was recently before this court in State, Department of Highways v. Kilpatrick, 327 So.2d 452 (La.App.2d Cir. 1976), which involved an expropriation of property for this same project on the northeast corner of the intersection. For the reasons stated in Kilpatrick, we adopt its holding:

. . the right-of-way deed from Peevy to the State of Louisiana effectively conveyed a right-of-way of 100 feet.in width, 50 feet on both sides of the center line of the Jonesboro-Hodge Highway as located by the State highway engineer at the time the highway was constructed in about 1929. It follows that defendant is not entitled to be compensated for the property lying between the edge of the existing pavement and the 50 foot right-of-way line, which property lies within the existing right-of-way and is not owned by defendant.”

Accordingly, we find the Department expropriated only the triangular tract of land consisting of 696.96 square feet and the permanent servitude of drainage consisting of 379 square feet.

VALUE OF PROPERTY TAKEN

In arriving at the actual market value of the property taken, all the appraisers used the market data approach, each basing his estimate on sales considered comparable to the subject property. The Department’s two appraisers arrived at values of $1.10 and $1.20 per square foot for the property taken. After substantial adjustment of the comparables, defendant’s three appraisers arrived at values of $2.18, $2.25, and $2.50 per square foot. The trial court found the property was worth $2.15 per square foot and the evidence supports such an award.

We therefore award $1,498.46 for the 696.96 square feet of land taken in full ownership. It is undisputed the value of the asphalt surface was $378.00.

The experts were in general agreement that the value of the servitude taken was 90% of the value of the land. Accordingly, we award $733.37 for the taking of 379 square feet for a permanent drainage servitude.

SEVERANCE DAMAGES

The most troublesome issue relates to severance damages. The Department’s appraisers testified the remaining property had not suffered any damage resulting from the taking. Defendant’s three appraisers found substantial severance damages to the portion of the property upon which was located the drive-in restaurant. Two appraisers testified the property and improvements were worth 20% less in the after-taking status, while the third appraiser stated it was worth approximately 14% less. The trial judge found the property had been damaged in the amount of 15% of its value, or $12,920.00.

Defendant’s appraisers cited several factors which led them to conclude the remaining property had suffered substantial severance damage. One factor was the impairment of access to the drive-in restaurant. Before the taking the subject property had unlimited access for approximately 226 feet along the highway and for approximately 80 feet along Alexander Street. After the taking, access will be limited to two 35 foot driveways along the highway and to approximately 40 feet along Alexander Street.

Another factor considered by defendant’s experts was the reduction in usable parking space for the property. One of the appraisers testified the taking of the comer of the lot and the drainage servitude, together with the restriction of access, decreased the available parking area by 40%. From our examination of the evidence, we find the loss of available parking will be minimal. The appraiser allowed more parking spaces in the before-taking status than could be practicably accommodated and fewer in the after-taking status than could be utilized.

Another aspect in their calculation of severance damage was the effect of the drainage servitude on the value of the remainder. The construction is flush with the ground so parking is not physically impaired; but defendant’s appraisers contend patrons would hesitate to park on it for fear of losing their keys or losing the heel of a shoe in the grate over the drain. The appraisers also testified undesirable odors from the drain might offend patrons.

Severance damage is determined “as of the date of the trial”. Louisiana Revised Statutes 48:453. State, Department of Highways v. Genest, 218 So.2d 114 (La. App.3d Cir. 1968) appropriately states the law on this question as follows:

“The severance damages contemplated by the statute are generally those to result after construction of the highways for which the land is taken. State Through Dept. of Highways v. Black, La.App.3d Cir., 207 So.2d 583; cf., LSA-R.S. 48:-451.
The jurisprudence interpreting the cited statute permits the landowner to elect whether to sue immediately for the contemplated severance damages rather than to wait until after the construction is completed, but the landowner nevertheless bears the burden of proving what his severance damages will be upon the completion of the project. State Through Dept. of Highways v. Black, cited above.”

The only proof offered to show the remaining property had been damaged by the taking was the opinion of the expert witnesses.

Applying the law as enunciated above to the facts as we find them in the instant case, we conclude the lower court awarded excessive severance damages. According to the testimony and the exhibits filed in evidence, the property will probably be more usable as a drive-in restaurant (its highest and best use) after the highway is completed than before the taking. It is true the property had unlimited access to both the highway and Alexander Street prior to the construction. However, if the entire frontage had been utilized for ingress and egress of traffic to the drive-in, the parking space would be greatly reduced. By placing curbing along the highway and channeling all traffic into three passageways, there would be adequate space for entrances and exits while utilizing the property for a maximum parking space.

For minimal loss of parking space and possible diminution in market value due to location of a non-hazardous surface type •catch basin, we conclude a total award of $3,000 would adequately compensate defendant for severance damage.

EXPERT WITNESS FEES

The trial court awarded the following expert witness fees:

H. Loren Willet (defendant’s appraiser) $ 2,162.50
O. L. Jordan (defendant’s appraiser) 1,700.00
H. L. Bass (defendant’s appraiser) 1,800.00
A. Ray Bond (for testifying as to reproduction cost) 300.00
Richard Crawford (defendant’s surveyor) 450.00
Lavelle Nunn (photographer) 285.12
Total $ 6,697.62

The Department contends the expert witness fees awarded are excessive. In several recent expropriation cases involving this same highway project, or other projects in the Jonesboro area, and involving most of the same witnesses, this court found similar fees to be excessive and reduced the awards of the district court. See State, Department of Highways v. De-Jean, 322 So.2d 265 (La.App.2d Cir. 1975); State, Department of Highways v. Bounds, 319 So.2d 549 (La.App.2d Cir. 1975); State, Department of Highways v. United Pentecostal Church of Hodge, 313 So.2d 886 (La.App.2d Cir. 1975), writ denied (La.) 318 So.2d 60; State, Department of Highways v. Whitman, 313 So.2d 918 (La.App. 2d Cir. 1975), writ denied (La.) 319 So.2d 443; State, Department of Highways v. Model Development Corporation, 322 So.2d 270 (La.App.2d Cir. 1975); State, Department of Highways v. Oil Mark Corporation, 324 So.2d 606 (La.App.2d Cir. 1975; and State, Department of Highways v. Kilpatrick, 327 So.2d 452 (La.App.2d Cir. 1976).

Considering the evidence as to the services rendered by the expert witnesses, the value of the property taken and severance damages awarded, and the amounts allowed for expert witness fees in other similar cases recently before this court, we disallow the fee for the photographer and fix the expert witness fees as follows:

H. Loren Willet $ 700.00
O. L. Jordan 650.00
H. L. Bass 650.00
A. Ray Bond 300.00
Richard Crawford 250.00
Total $ 2,600.00

For the reasons assigned the judgment of the district court is amended to reduce the amount awarded defendant from $34,527.43 to $5,609.83, and to fix the expert witness fees as set forth above. As amended, the judgment of the district court is affirmed.


author: BLANCHE, Judge.

text:
    Ross E. COX v. Edgar L. WATTS, Jr., et al.
    No. 10646.
    Court of Appeal of Louisiana, First Circuit.
    March 1, 1976.
    Rehearing Denied April 12, 1976.
    W. P. Wray, Jr., Baton Rouge, for appellant.
    Jos. F. Keogh, City Parish Atty., and Edward V. Fetzer, Asst. City Parish Atty., Baton Rouge, for Parish of East Baton Rouge.

      Charles S. McCowan, Jr., Baton Rouge, for intervenor.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

This case is before this Court on a motion of intervenor-appellee, Santee Contracting Company, Inc., to dismiss the appeal of plaintiff-appellant, Ross E. Cox.

The facts giving rise to said appeal are as follows: Santee submitted the low bid to East Baton Rouge Parish to perform certain construction work on a public works project known as the “East Lateral, Cypress Bayou, Project No. 74-DR-CI-0104.” Santee’s bid contained certain irregularities which plaintiff brought to the attention of the appropriate authorities. On May 28, 1975, the City-Parish Council, East Baton Rouge Parish, waived the irregularities in the bid proposal and awarded the contract to Santee.

In view of the action taken by the Council, plaintiff sought injunctive relief against the Councilmen individually; W. W. Dumas, Mayor-President of the City and Parish of East Baton Rouge; Ray W. Burgess, Director of Public Works; and various other officials and departments of the City of Baton Rouge, Parish of East Baton Rouge, to prevent the said defendants from entering into the contract with Santee. Mandamus was also sought to require the aforesaid parties to award the contract to plaintiff. Both the issuance of the injunction and writ of mandamus were predicated on a finding in plaintiff’s favor declaring the contract bid of Santee irregular according to applicable City-Parish ordinances and finding that plaintiff was the next low responsible bidder to whom the contract should be awarded.

Santee intervened as a third party plaintiff, seeking a declaratory judgment declaring that its bid was regular and should, therefore, be accepted by the City-Parish Council.

Prior to trial, the parties stipulated that should the rule nisi be recalled that a writ of mandamus should issue to the Mayor-President to compel the execution of the contract.

Trial was held pursuant to stipulated facts, and the court found that although the bid of Santee was irregular, the Council had a right to waive and did waive the irregularity. In Written Reasons for Judgment the court stated the rule nisi should be recalled and that the writ of mandamus would issue to the Honorable W. W. Dumas in his capacity as Mayor-President directing him to execute the subject contract.

Judgment was signed on August 18, 1975, and did recall, vacate and set aside the rule but failed to contain a provision in accordance with the stipulation and the Written Reasons for Judgment which would mandamus the Mayor-President to execute the contract.

From this judgment, writs were applied for to this Court and refused on July 22, 1975. Thereafter, judgment was signed on August 18, 1975, and from this judgment plaintiff has perfected this appeal. The appeal bond was filed on September 11, 1975.

Before us is Santee’s motion to dismiss the appeal. Two grounds are alleged, namely, that the appeal was not perfected within fifteen days from the date of the judgment as required by LSA-C.C.P. Art. 3612 and that the case is now moot.

The allegation of mootness is set forth in Santee’s motion to dismiss and states that it is undisputed that the Mayor-President signed the contract in question on the 10th day of July, 1975, and that the work commenced on the 22nd day of July, 1975, and is 55 percent complete.

Were the case not moot, plaintiff’s appeal would have been timely taken as a devolutive appeal, because the parties stipulated that the judgment rendered by the trial court was also on the merits, i. e., as to the permanent injunction, and appellant’s suit was dismissed. Calhoun v. State Department of Highways, 152 So.2d 866 (La.App. 3rd Cir. 1963). See, also, Certified Finance Company v. Jones, 191 So.2d 188 (La.App. 3rd Cir. 1966).

The relief sought by plaintiff is in-junctive, as he seeks a judgment to enjoin the Mayor-President from signing the contract with Santee. There is no prayer for damages. Furthermore, he stipulates that if he is unsuccessful and his rule for an injunction is recalled that the court should mandamus the Mayor-President to sign the contract with Santee. Santee’s motion to dismiss states that the contract has been signed and the work 55 percent completed. Plaintiff does not challenge this statement and he cannot, because, to the contrary, in brief, he admits that the Mayor-President signed the contract one month before judgment was signed in the trial court. Now, in the face of the foregoing, what injunc-tive relief can this Court give if the contract has been signed and at this writing work under the contract probably completed ? The answer is none, as the issue presented by the injunction, i. e., a prohibition against the signing of a contract, has been accomplished and it is beyond our power to give the relief prayed for.

The principle of law governing this case is set forth in Brown v. Town of Lake Providence, 200 So.2d 764 (La.App. 2nd Cir. 1967), and the authorities cited therein:

“It is well established that it is the function of appellate courts to render judgments which can be made effective and not to give opinions on moot questions.” (200 So.2d at 765)

However, plaintiff argues that due to the confusion as to the meaning of the City-Parish ordinances relating to public contracts if we decline to decide the issue now we will only be faced with the identical question at some later date.

This is not a proper proceeding in which to obtain an advisory opinion or a declaratory judgment to guide the City-Parish action relative to contract bids in the future. See Morehouse Parish Police Jury v. Wild Life & Fisheries Commission, 199 So.2d 542 (La.App. 4th Cir. 1967).

Accordingly, the motion to dismiss is granted, at the cost of plaintiff-appellant.

Appeal dismissed.


text:
    FIRST NATIONAL BANK OF RUSTON, Plaintiff-Appellee, v. John M. MILLER et ux., Defendants-Appellees Third Party Plaintiffs-Appellees, BARRON MOBILE HOMES, INC., Third Party Defendant-Appellant.
    No. 12869.
    Court of Appeal of Louisiana, Second Circuit.
    March 15, 1976.
    En Banc. Rehearing Denied April 19, 1976.
    Writ Refused June 11, 1976.

      Holloway, Baker, Culpepper & Brunson by Joseph A. Cusimano, Jr., Farmerville, for third party defendant-appellant.
    Rabun & Post by Armand F. Rabun, Farmerville, for third party plaintiffs-ap-pellees.
    Barham, Adkins & Coleman by Ronald G. Coleman, Ruston, for plaintiff-appellee.
    Before PRICE, SMITH and MARVIN, JJ-
   PRICE, Judge.

First National Bank of Ruston brought this suit against John M. Miller and his wife, Florece Miller, seeking judgment for the balance due on a promissory note secured by a chattel mortgage on a mobile home.

Defendants purchased the subject mobile home from Barron Mobile Homes, Inc., on December 11, 1972, and executed a note secured by chattel mortgage in the amount of $18,977.76 payable to Barron for the credit portion of the purchase price together with finance charges and insurance costs. The note was transferred immediately by endorsement without recourse to the plaintiff Bank.

In answer and reconventional demand, defendants deny the Bank is a holder in due course of the note and allege it is subject to all defenses which they have against the vendor, Barron Mobile Homes, Inc.

In a third party demand against Barron, defendants assert the mobile home sold to them contained inherent defects which rendered it useless for the purpose for which it was intended and that the sale should be rescinded. Under their position that the Bank is not a holder in due course, defendants primarily contend the note should be canceled and all payments previously made on it refunded unto them. Alternatively, they contend that should the Bank be found to be a holder in due course, then they should have judgment against Barron for whatever amount they are found liable to the Bank together with the sum of $2,372.22 previously paid on the note. Defendants also ask for judgment for the sum of $1,000 representing the trade in allowance of a trailer previously owned by them and the sum of $500 as damages for loss of time expended in connection with attempts to have the defects corrected.

After trial on the merits, the district court rendered judgment in favor of the Bank and against defendants on the principal demand for the balance owed on the note of $16,-488.75, together with legal interest and attorney fees provided in the note. Defendants were awarded judgment under the third party' demand against Barron decreeing a rescission of the sale and ordering a return of the purchase price subject to a credit of $2,625 for a fair rental value for the time defendants occupied the unit.

Barron perfected this appeal from the judgment against it on the third party demand specifying the following:

1. That an exception of prescription of one year for an action in redhibition should have been sustained.
2. That the trial court was in error in finding the mobile home contained redhibitory defects.
3. That it should not have been taxed with one-half the costs of the suit as was provided in the trial court’s judgment.

Defendants answered the appeal asking that the judgment in their favor on the third party demand be modified to provide that the purchase price ordered to be refunded to them be increased to the sum of $19,977.76, together with legal interest on $16,488.75 of this amount from November 12, 1974, until paid and for 15% of this amount plus interest as attorney fees. Also they request the credit for the fair rental value be reduced to the sum of $1,312.50, and that the judgment award them all court costs taxed against them in the principal demand.

The judgment in favor of the Bank is not before us on this appeal.

We shall first discuss the specifications of error made by third party defendant, Barron.

The exception of prescription is based on the provisions of Louisiana Civil Code Article 2534 which provides that a redhibitory action must be instituted within a year of the sale unless the seller is in bad faith. It is now well settled that in circumstances where the seller has made continued attempts to repair the defects, prescription does not begin to accrue until the seller has abandoned all such attempts to repair, de la Houssaye v. Star Chrysler, 284 So.2d 63 (La.App. 4th Cir. 1973); Domingue v. Whirlpool Corporation, 303 So.2d 813 (La. App. 3rd Cir. 1974). The trial judge found that repeated attempts had been made by Barron to repair defects to within a year prior to the filing of this suit and that the exception is not well founded. From our examination of the evidence, we conclude the trial judge was correct in overruling the exception.

In Rey v. Cuccia, 298 So.2d 840 (La.1974), the Supreme Court summarized the law pertaining to the rescission of a sale because of a redhibitory vice as follows:

“In Louisiana sales, the seller is bound by an implied warranty that the thing sold is free of hidden defects and is reasonably fit for the product’s intended use. Civil Code Articles 2475, 2476, 2520 .. A redhibitory defect entitling the buyer to annul the sale is some defect in the manufacture or design of a thing sold ‘which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it, had he known of the vice.’ Article 2520. Upon proof of such a defect, the buyer is entitled to annul the sale and recover the purchase price, rather than being limited to recovering the cost of curing any such substantial defects . . . The buyer must prove the defect existed before the sale was made to him. Article 2530. However, if he proves that the product purchased is not reasonably fit for its intended use, it is sufficient that he prove that the object is thus defective, without his being required to prove the exact or underlying cause for its malfunction . . . The buyer may prove the existence of redhibitory defects at the time of the sale not only by direct evidence of eyewitnesses, but also by circumstantial evidence giving rise to the reasonable inference that the defect existed at the time of the sale . . .
“If the defect appears within three days following the sale, it is presumed to have existed before the sale. Article 2537. However, even where the defect appears more than three days after the sale . . . if it appears soon after the thing is put into use, a reasonable inference may arise, in the absence of other explanation or intervening cause shown, that the defect existed at the time of the sale.”

The operative facts underlying defendants’ action to rescind the sale for redhibi-tory vices and the evidence presented by them in support of their allegations are concisely stated in the trial judge’s reasons for judgment as follows:

The Millers purchased the mobile home involved in this action from Barron Mobile Homes, Inc. (referred to hereinafter as “Barron”) in November, 1972. The vendor moved the trailer out to a site selected by the purchaser and set it up. Defendants moved into the mobile home in December, 1972. Their testimony at the trial consisted largely of a catalogue of complaints allegedly registered with “Barron” during the entire period of their residence in the mobile home. When the first rain came, on their second or third day in the trailer, the roof leaked in an area between the living room and the dining room. Thereafter the roof leaked whenever it rained, despite efforts of “Barron’s” repairman to remedy this defect. On one of these occasions, after defendants had been living in the mobile home some three or four months, the leak was so bad that the clothes hanging in their closet got wet. On another occasion defendants had a carpet ruined by the water coming in through the roof. They insisted that the roof was still leaking when they vacated the mobile home in August, 1974.
Defendants’ second major complaint involved the charge that the entire electrical system in the mobile home was defective. They moved into the trailer during the winter and immediately turned on the heating unit. The unit would not cut off automatically as it was supposed to, and only heated one side of the mobile home. “Barron” never properly repaired this defect. According to Miller, “when I moved out the fan would come on and blow and cool the trailer off in the winter-time and after it got freezing cold the heat would come on. Then the heat would go off and the fan would keep blowing.” Defendants constantly had trouble with wall sockets or plugs burning out and several appliances were ruined because of low voltage. The electrical outlet in the bathroom would not work and the vacuum cleaner would not turn on when plugged into certain outlets. Fire would regularly “pop out” of the wall plugs. Miller related that “when it was wet and rained and you were on the outside you had to holler for somebody inside to open the door because if you caught hold of it on the outside it would knock you off the steps.” Jerry Watson, a neighbor of defendants, testified that he went down to their mobile home in the summer of 1973 and at that time there was fire coming from one of their wall receptacles.
John R. Lenard, an electrical contractor from West Monroe, Louisiana, who had been in the electrical business for 23 years, checked the electrical system in the mobile home on August 9, 1974, at Miller’s request. Lenard stated that he checked the entire electrical system in the trailer, examining the main circuits, the main box and all wiring that could be checked. It was his opinion that the main power box in the mobile home was too small and that the circuits were dangerously overloaded. He warned that this condition could easily cause a wire to overheat and burn. He found that all of the wiring had loose connections. Half of the electrical receptacles that he checked did not work. The heating unit was improperly connected and tended to “short out”. It was Lenard’s opinion that the entire electrical system would have to be redone in order to correct this defect. He testified that these electrical defects would not have been apparent to the purchaser of the trailer.
The defendants also experienced problems with the plumbing in the mobile home. The precise complaint was that “you turn on the hydrant and you get water out around the knob where you turn it on and then the bathtub, when you let the water out, water would go all over everywhere, run out from under the bathtub.” They claimed that “Barron” was also informed of this defect but never corrected it.

The trial judge found that the preponderance of the evidence established these defects existed and that defendants had made repeated demands on Barron or its employees to repair the defects and that although some attempts had been made, they had proven unsuccessful.

The trial judge’s findings of fact and conclusions of law based on these findings are as follows:

From the evidence adduced upon the trial of this matter it is clear that the third party plaintiffs have proved by a preponderance of the evidence that the mobile home they purchased from “Barron” had substantial vices and defects, consisting primarily of a leaking roof and faulty electrical system, which rendered the use of the trailer so inconvenient and imperfect that it must be supposed that the Millers would not have purchased it had they known of the vices. Clearly the mobile home was unfit for the purpose for which it was purchased in view of the fire hazard posed by the defective electrical wiring. The purchasers were not required to prove the exact underlying cause for any of the defects. Although the defects might have appeared more than three days after the sale of the mobile home, they did appear soon after the Millers moved into the trailer. Since “Barron” could not offer any other logical explanation for the existence of the defects or show some intervening cause, a reasonable inference arises that the defects existed at the time of the sale. There was ample evidence that the vices were not apparent when the sale was consummated. In view of the fact that the essential ingredients for the successful maintenance of a redhibitory action in this case have been established, it is concluded that third party plaintiffs are entitled to have the sale of the mobile home from “Barron” rescinded.

We find the evidence in the record to sustain these findings and are of the opinion there is no error in the trial court’s judgment ordering a rescission of the sale.

We shall next consider the request by defendants for modification of the judgment in relation to the sum they are entitled to recover from the third party defendant, Barron.

The judgment appealed from orders a return of the purchase price of the trailer less a credit of $2,625 as a fair rental value. The initial purchase price of the trailer appears from the record to be $10,542.

Louisiana Civil Code Article 2531, prior to the amendment by Acts 1974, Number 673 § 1 provided as follows:

The seller who knew not the vices of the thing, is only bound to restore the price, and to reimburse the expenses occasioned by the sale, as well as those incurred for the preservation of the thing, unless the fruits, which the purchaser has drawn from it, be sufficient to satisfy those expenses.

The rights of these parties having become vested prior to the amendment of this article are to be resolved under the provisions as set forth above. See Smith v. Max Thieme Chevrolet Company, Inc., 315 So.2d 82 (La.App. 2nd Cir. 1975).

There is no evidence that the vendor had knowledge of the vices at the time of the sale in this case. Therefore, the vendor is only bound to restore the price and expenses of the sale in accord with the above article.

Finance charges incidental to the purchase may be recovered as an expense of the sale. Smith v. Max Thieme Chevrolet Company, Inc., supra; Media Production Consultants v. Mercedes-Benz of North America, Inc., 262 La. 80, 262 So.2d 377 (La. 1972); Johnson v. H. W. Parson Motors, Inc., 231 So.2d 13 (La.App. 1st Cir. 1970); Cain v. Rapides Dodge, Inc., 207 So.2d 918 (La.App. 3rd Cir. 1968); Lee v. Blanchard, 264 So.2d 364 (La.App. 1st Cir. 1972).

The copy of the credit sale and chattel mortgage agreement filed in evidence shows the total sales price and expenses relating to the sale (finance charges, recording, insurance) to be $19,977.76. Defendants are entitled to recover this sum from third party defendants, Barron, subject to the credit hereinafter discussed.

The trial court determined the refund of the purchase price to defendants should be subject to a credit of $2,625 as the fair rental value of the mobile home during the period it was occupied by them from December 11, 1972, through August 1974. Defendants contend this amount is excessive as it awards a credit equal to the full amount of estimated rental value as established by the evidence for a mobile home which does not contain defects. Defendants argue the enjoyment of the subject mobile home was seriously impaired due to its defective condition and that the fair rental value should be reduced to at least one-half that fixed by the trial judge.

Although the subject unit contained sufficient inherent defects to render its purchase subject to the redhibitory action, it nevertheless served as a dwelling place for defendants during the period from the date of purchase until it was vacated in August 1974. Under the circumstances presented, we do not find it appropriate to disturb the trial court’s determination of this purely factual question.

Defendants ask the judgment also be amended to allow recovery from Barron of the attorney fees for which they have been held liable under the judgment in favor of the Bank. This expense was occasioned by defendants’ allowing the note to become in default and is not an “expense of the sale.”

In summary, we find that defendants are entitled to have the sale rescinded and to recover from third party defendant the purchase price and related expenses totaling $19,977.76, subject to a credit of $2,625 as a fair rental value. We find no error in the trial court’s assessment of costs in the proportion of one-half to defendants and one-half to third party defendants.

For the foregoing reasons the judgment is recast in pertinent part as follows:

It is ordered, adjudged and decreed that there be judgment in favor of third party plaintiffs, John M. Miller and Florece Miller, against third party defendant, Barron Mobile Homes, Inc., decreeing a rescission of the sale of the 1972 Morgan Mobile Home on December 11, 1972, and it is further ordered that third party plaintiffs have judgment against third party defendants in the sum of $19,977.76, subject to a credit of $2,625, together with legal interest thereon from date of judicial demand until paid.

Costs of this appeal are assessed to third party defendant, Barron Mobile Homes, Inc.

Amended in part and affirmed in part and rendered.

      . The exact sum intended to be included in the refund of the purchase price was not set forth in the trial court’s judgment.


text:
    Succession of Katherine Mabel PATTERSON and McDonald Blakesley Gore. Martha Elizabeth HENRY, Executrix, Plaintiff-Appellee, v. Paul Avery BLAKESLEY, Intervenor-Appellant.
    No. 12839.
    Court of Appeal of Louisiana, Second Circuit.
    March 15, 1976.
    En Banc. Rehearing Denied April 19, 1976.

    Writ Refused July 1, 1976.

      James B. Wells & Associates, Bossier City by Aubrey Richard Snell, for interve-nor-appellant.
    James M. Bullers, Bossier City, for Succession of Katherine Mabel McDonald Blakesley Gore.
    William B. Lynch, Bossier City by John Ford McWilliams, Jr., Bossier City, for Martha Elizabeth Henry, Executrix, plaintiff-appellee.
    Before BOLIN, HALL and SMITH, JJ.

       Marvin, J., recused.

   BOLIN, Judge.

Katherine Mabel Patterson McDonald Blakesley, also known as Katherine Blakes-ley Gore, died in Bossier Parish on November 17, 1973. She left a last will and testament in statutory form dated September 12, 1973. This will, concededly valid as to form, was admitted to probate. According to the terms of the will the testatrix bequeathed two-thirds of her estate to Martha Elizabeth Henry and the remaining one-third to her adopted son and sole heir, Paul Avery Blakesley. During the probate proceedings Paul Blakesley intervened seeking to invalidate the will on the grounds that the testatrix was not of sound mind at the time of the confection of the will. From judgment rejecting intervenor’s demands and upholding the validity of the will, intervenor appeals. We affirm.

The only issue on appeal is whether the intervenor bore the burden of proving the testatrix was of unsound mind at the time the will was confected to the degree necessary in order to invalidate the will.

Intervenor presented the testimony of a psychiatrist, a general practitioner, and a psychologist. Intervenor also offered the testimony of several lay witnesses. In his written reasons for judgment the district judge reviewed the testimony of most of these witnesses. Testifying for defendant was a medical doctor and several lay witnesses. The trial judge likewise reviewed and commented upon the testimony of these witnesses. After setting forth his appreciation of the evidence and the law, the district judge made the following finding:

“In this case, the Court is of the opinion that while the evidence of incapacity is strong, it nevertheless is not so positive as to overcome the equally strong evidence that testatrix possessed testamentary capacity at the time she executed the will. Stated another way, conceding arguendo that the evidence shows habitual insanity as alleged by the inter-venor, the Court is of the opinion that the evidence also establishes that at the time of the execution of the will, testatrix was lucid to the extent that she possessed testamentary capacity.”

Our learned brother below also correctly stated that testamentary capacity is presumed and the burden of proving lack of such capacity at the time of the confection of the will is upon the party attacking the validity of the will. Cited in support of this principle of law were: Succession of Smith, 261 So.2d 679 (La.App.2nd Cir. 1972); Succession of Bisso, 186 So.2d 692 (La.App.4th Cir. 1966); McCarty v. Trichel, 217 La. 444, 46 So.2d 621 (1950).

The degree of proof required to overcome the presumption of testamentary capacity has been likened to that required in criminal cases to overcome the presumption of innocence. Succession of Mithoff, 168 La. 624, 122 So. 886 (1929); Succession of Lambert, 185 La. 416, 169 So. 453 (1936); Succession of Herson, 127 So.2d 61 (La.App.1st Cir. 1961).

Being in accord with' the conclusions of the trial judge that intervenor failed to establish that testatrix was of unsound mind at the time of the confection of the will, the judgment of the lower court is affirmed at appellant’s costs.


author: DORE, Judge.

text:
    STATE ex rel. BERGERON v. ROBICHAUX et al.
    No. 2972.
    Court of Appeal of Louisiana. First Circuit.
    Dec. 30, 1947.
    Numa Montet and Edmond L. Deramee, both of Thibodaux, and R. O. Rush, of Baton Rouge, for appellant.
    Pugh, Lanier & Pugh, of Thibodaux, for appellees.
   DORE, Judge.

The relator is the owner of a certain lot of ground situated at a short distance southeast of the corporate limits of the Town of Thibodaux, being Lot No. 6 of Block 6 of Ridgefield Heights Addition to the Town of Thibodaux.

The Assessor for the Parish of La-fourche placed this property on the assessment rolls of said parish for the year 1946, assessing the said property in the name of relator and fixed the total tax to be due thereon. Pursuant to the said assessment, the taxes becoming due and delinquent, the Sheriff and Ex-'Officio tax collector for the Parish of Lafourche proceeded to advertise the said property for sale to satisfy the taxes due thereon.

Whereupon the relator, alleging that the said property was situated in the Parish of Terrebonne and not in the Parish of La-fourche, brought this mandamus proceeding against the Assessor and Sheriff of the Parish of Lafourche, and against the Louisiana Tax Commission and its members, to have them cancel and erase the said assessment from the assessment and tax rolls of the said parish for the year 1946, and to cancel the asserted tax lien and privilege flowing from said assessment.

The suit is defended on the ground that the said property is situated in the Parish of Lafourche, thus rightfully and correctly assessed.

On this issue, the case was tried, resulting in a judgment, with written reasons assigned, in favor of plaintiff and against the defendants, commanding the said Assessor and the Sheriff to cancel and erase the assessment of the property from the tax rolls of the Parish of Lafourche for the year 1946, and also to cancel the lien and privilege resulting from the said assessment. Defendants have appealed.

The Parish of Terrebonne was created out of the Parish of Lafourche Interior by Act of the Legislature approved on March 22, 1822. The Act of 1822 was amended by Act No. 97 of 1850. In the case of Parish of Lafourche v. Parish of Terre-bonne, 34 La.Ann. 1230, the Supreme Court had under consideration the interpretation of these two acts in the fixing of the boundary between these two parishes and fixed the lines as follows: “Beginning at a point where the line between the Parishes of Lafourche Interior and Assumption intersects the north boundary of township No. Sixteen, range No. Fourteen east, thence along said north boundary to the northeast comer of said township, thence east along the north boundary of township number sixteen, range number fifteen, six miles to the northeast corner of said township, thence north along the east boundary of township number fifteen range number fifteen east, two miles, thence east according to the section lines of the public surveys, three miles to the back lines of the lands of Mrs. Lemuel Tanner, at a distance of eighty arpents from the Bayou Terrebonne; from thence, winding round the settlement of the said:Bayotl Terrebonne to- the distance of forty arpents from the Bayou La-fourche said winding round said settlement to be continued east to the rear west line of said settlement, thence south, still winding round the settlement of Bayou Terrebonne, on the east of said Bayou, until a distance of eighty arpents from Bayou Lafourche can be effected without encountering the limits of the lands on Bayou Terrebonne; from thence, still at a distance of eighty arpents from Bayou Lafourche, a line parallel with said Bayou to the Bayou Blue Water, otherwise known as Bayou du chene, following at right bank to the sea.”

In considering the object of the legislature in setting the eastern line of the new parish relative to settlements on Bayou Terrebonne, the court states: “As the lines of the settlement on Bayou Terrebonne ran at right angles with the lines of the estates situated on Bayou Lafourche, the main and evident object of the legislator, in running the lines of the new parish so near the Bayou Lafourche, and in enacting that the line from a point eighty ar-pents from Bayou Terrebonne and running north to a point forty arpents from the La-fourche, should ‘wind round’ the settlement or land lines on Bayou Terrebonne, was to avoid any change in the lines of the owners of property of that settlement, or to avoid placing portions of their property in one parish and portions in another. And the same care was taken not to break up the lines of the Lafourche lands. In our opinion, the same object prevailed in the legislator’s mind in establishing the lines west of Bayou Terrebonne so as not to cut up the lines of land owners in either parish and to have entire estates exclusively in one or the other of the parishes”.

The testimony and the maps filed in evidence show that relator’s property is situated in the northeastern part of Section 78, T. 15 S., R. 16 East, Southeastern District. The testimony and maps further show that said Section 78 is west of Bayou Terre-bonne, and is the most or last northern grant fronting on Bayou Terrebonne, being bounded on the north by grants fronting on Bayou Lafourche. Immediately to the east or the east side of Bayou Terre-bonne is Section 141 of the said Township. The American State Papers, Gales and Seaton Edition, Public Lands, Volume 2, page 433, show the following:

“No. 497 William Hammond claims a tract of land, situated on both sides of the Bayou Darbonne in the County of La-fourche, containing one hundred and fifty-five and fifty-nine hundredths superficial acres.

“It appearing that the claimant settled this land, with the permission of the proper Spanish officer, prior to the 20th of December, 1803, and that he inhabited and cultivated the same on that day: Confirmed.”

This confirmation was also noted in the American State Papers, Gales and Seaton Edition, Public Lands, Volume 3, page 251, under No. 594. The government plat of survey shows that this grant comprised sections 78 & 141 of said Township. In other words, Sections 78 & 141 consist of one grant, the William Hammond grant, and was located, surveyed and platted on November 20, 1816 by “R & R”.

We have the testimony of only one civil engineer in this case, Mr. J. A. Lovel. Mr. Lovel is an eminent and expert civil engineer. He testified that he was the parish surveyor for the Parish of Lafourche; that he has had extensive experience in his line. After reading the Supreme Court decision, the acts of the Legislature relative to the creation of the Parish of Terrebonne, after considering the government plat of survey of Township 15, and other maps and surveys, he was of the definite conclusion that the property of relator was in the Parish of Terrebonne and not in the Parish of Lafourche. Mr. Lovel fixes the division line between the two parishes as the northern line of Section 78.

As against Mr. Lovel’s testimony, we have the testimony of Mr. Coulon, a deputy assessor of the Parish of Lafourche. The testimony of Mr. Coulon is based entirely on hearsay evidence. The gist of his testimony is that the west side of Bayou Terre-bonne was not settled any further north than some four hundred feet south of relator’s property. He places the boundary line between the two parishes in a diagonal way across Section 78, the eastern end of said line being about the center of the north and south line of the said section, tie admits in his testimony that Section 141, being the land on the east side of Bayou Terre-bonne, and the land or property in Section 78 south of his diagonal line are in the Parish of Terrebonne. .

In accordance with the expression of the Supreme Court, we are of the opinion that it was not the intention of the legislature to divide the William Hammond grant so as to place a portion thereof in one parish and another portion in another.

Suffice it to say that the testimony of Mr. Lovel, together with the several maps introduced in the record, highly preponderates in plaintiff’s favor.

For these reasons, the judgment appealed from is affirmed.


author: FOURNET, Justice.

text:
    212 La. 521
    TOWN OF PINEVILEE v. VANDERSYPEN.
    No. 38564.
    Supreme Court of Louisiana.
    Nov. 10, 1947.
    H. W. Hill, of Alexandria, for appellant.
    Frank H. Peterman, of Alexandria, for appellee.
   FOURNET, Justice.

This is an appeal by the defendant, Francis Vandersypen, from his conviction in the Mayor’s Court of the Town of Pineville (and his sentence thereunder to pay a fine of $25 or serve 25 days in jail) on a charge of violating city ordinance No. 412 by installing electrical wiring and fixtures within the town limits without first obtaining a permit to do so. He relies for the reversal of his conviction and sentence on a bill of exceptions reserved to the overruling of his motion to quash the charge, such motion being based on the illegality of the ordinance.

The illegality of the ordinance, according to the defendant’s contention, lies in the fact that Act No. 136 of 1898, under which the Town of Pineville was incorporated, does not authorize the town to regulate the trade, occupation, and business of wiring houses within the town for electricity, cities of 25,000 or more only being authorized to do so, and this under the authority of Act No. 217 of 1910; further, that the ordinance as written is not susceptible of a reasonable interpretation.

Ordinance No. 412 was enacted primarily for the purpose of regulating electrical installations and constructions within the limits of Pineville. As a means to that end, it is provided that anyone desiring to undertake electrical work of any kind in the town must first obtain an electrical permit or certificate from the city and this can only be obtained after the applicant has followed the procedure set out in the ordinance. Among the requirements is the payment of an examining fee of $100.

Municipal corporations, being creatures of the legislature, possess only such powers as are granted to them by the legislature in express words, or those that are necessarily or fairly implied in or are incident to the powers so expressly conferred. They also possess those that are essential to the accomplishment of the purposes and objects of the corporation. 37 Am.Jur. 722, § 112; 19 R.C.L. 768, § 75; 43 C.J. 176, § 174; and Montgomery v. City of Lafayette, 154 La. 822, 98 So. 259, and the authorities therein cited.

Under the express provisions of Act No. 136 of 1898, known as the Lawarson Act, the legislature gave to municipal corporations, whether cities, towns, or villages, the power “To make all needful police regulations necessary for the provisions of good order and the peace of the municipality; and to prevent injury to, destruction of, or interference with public or private property.” Subsection 13 of Section 15. Under subsection 8 of Section 16, such corporations as are not villages are given the additional power of providing “for the prevention and extinguishment of fires,” while under subsection 1 of Section 17, cities and towns having more than 2,000 inhabitants are granted the power “To * * * regulate all callings, trades, professions and occupations conducted, pursued, carried on, or operated within the limits of the city or town * * *.” Clearly, therefore, the town of Pineville, having a population of 4,297 according to the reported census found in the 78th Edition of the Rand-Mc-Nally Commercial Atlas and Marketing Guide for the year 1947, was within its authority and power when it enacted the ordinance under attack. While its primary object is the regulation of a trade or calling, it may incidentally be said that its object is to prevent the destruction of property by fire due to defective or improper wiring or construction of electrical fixtures.

The contention of the defendant that Act No. 136 of 1898 did not confer such power upon municipal corporations because the legislature at a subsequent meeting, Act No. 217 of 1910, authorized all municipalities having a population of 25,000 or over to regulate the business of installing wires or apparatus to convey electrical current for heat, light, or power, is untenable. The legislature, on the contrary, by its adoption of the 1910 act sought to restrict the power granted in the act of 1898 to cities of 25,000 or more by placing certain specified limitations upon the authority of municipalities with respect to electrical installations in these larger cities.

The argument that because of the constitutional provision in Section 8 of Article X of the Constitution of 1921 prohibiting the state from levying a license tax upon persons engaged in mechanical pursuits, the legislature was without authority to delegate such authority to municipal corporations has no application to the case now under consideration for the license or fee the defendant is here complaining of is one for the regulation of the electrical trade or calling, in which the defendant happens to be engaged, and the city was, under its police powers, authorized to regulate this trade or calling, the unrestrained pursuit of which might result in injury to not only the private and public property within the city’s limits, but also to the safety of the general public. City of Shreveport v. Bayse, 166 La. 689, 117 So. 775.

The fact that a fee of $100 is charged for the privilege of participating in the examination given by the town for the purpose of testing the qualifications of those desiring to engage in the electrical trade in the city will not be inquired into for the defendant has failed to show that such a fee is unreasonable or excessive for regulation purposes. See City of Baton Rouge v. Sanchez, 161 La. 320, 108 So. 552, and 33 Am.Jur. 368, Section 46.

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


author: McCALEB, Justice.

text:
    212 La. 527
    STATE v. KRIEGER.
    No. 38543.
    Supreme Court of Louisiana.
    Nov. 10, 1947.
    Rehearing Denied Dec. 15, 19-47.
    A. G. Williams, of New Orleans, for appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Cul-ligan, Asst. Atty. Gen., and Herve Raci-vitch, Dist. Atty., and Guy Johnson, First Asst. Dist. Atty., both of New Orleans, for appellee
   McCALEB, Justice.

John J. Krieger is appealing from his conviction and sentence to serve three and one-half years in the state penitentiary for forgery and issuing a forged writing in violation of Article 72 of the Criminal Code. During the course of the trial, he reserved five bills of exception. He has abandoned two of the bills in this court and another, which was taken to the refusal of the judge to grant a new trial on the ground that the verdict is contrary to the law and the evidence, presents nothing for review. This leaves for consideration bills Nos. 1 and 4.

The first bill of exception was taken to the action of the trial judge in overruling appellant’s challenge to the jury venire. After the drawing of the petit jury venire for the term of October 1946, appellant challenged and moved to set aside the venire on the ground that the method adopted by the jury commission in selecting the venire was not impartial in that the jury commissioners systematically, intentionally and consistently “excluded all persons, and particularly white persons, who work for and earn a daily wage or wages from the venire from which the jury to serve herein must necessarily be chosen.” The State demurred to this motion on the ground that it had not been made within the time required by Article 202 of the Code of Criminal Procedure. The judge overruled the demurrer of the State and heard the evidence tendered in support of the allegations of appellant’s motion. After hearing this evidence and also the testimony of the Chairman of the Jury Commission for the Parish of Orleans, the judge overruled appellant’s motion being of the opinion (1) that it was filed too late and (2) that, even if it had been filed timely, the evidence tendered in support of it failed to prove the charges made therein.

Appellant, in complaining of the ruling of the judge, contends that he has the constitutional right to be tried by a jury drawn from a group of persons representing a cross section of the community; that the proof shows that there were no white manual laborers drawn for the petit jury venire and that laborers of that type were systematically excluded by the jury commissioners.

On the other hand, the State maintains-(1) that its demurrer is well founded because the issue respecting the jury venire-was not raised within the time required by Article 202 of the Code of Criminal Procedure; (2) that, even if the challenge had been timely filed, it is without merit because appellant failed to prove, or even allege, that fraud had been practiced “or some great wrong committed” causing him irreparable injury (as prescribed by Article 203 of the Code of Criminal Procedure) and (3) that, in any event, the evidence discloses that neither white laborers nor any other class of persons was systematically excluded by the Jury Commission.

We do not deem it necessary to consider the first two points urged by the State inasmuch as an examination of the evidence produced on the trial of the motion reveals that appellant has utterly failed to prove the charges made by him. The only pertinent testimony produced in support of the motion was given by appellant’s brother who stated, in substance, that he had made an investigation of the 150 names composing the venire from which the 50 petit jurors were drawn; that he found but few manual laborers included on the list and that all of those were colored men. This evidence, standing alone, cannot suffice to sustain the charge that the jury commission had systematically excluded white manual laborers from the list. But, beyond this, the State exhibited by the evidence of Mr. J. W. Hogue, Chairman of the Jury Commission for the Parish of Orleans, that there was no basis whatever for the complaint of appellant. The trial judge, in commenting favorably upon the testimony of Mr. Hogue, summed up his statement as follows: “The said Commission has never refrained from accepting for jury service any class of citizens because of their race, color, economic condition, political affiliation, or geographical location in the City of New Orleans; that men have never been excluded from the jury rolls because they were laborers; that in some instances laborers have been excused from jury service when they have represented that if they failed to work they would not be paid while on jury service; that if the laborer did not make such claim his name was placed in the wheel; that as evidence of that policy there were a number of laborers in the wheel; that names were placed in the wheel indiscriminately without regard to race or color designation.” And, in his per curiam, the judge sets out the different occupations of the 150 persons from whose names the October venire was selected. These occupations are varied in character and represent a cross section of the community.

Counsel for appellant attacks the evidence of Mr. Hogue as evasive and accuses him of quibbling. After a careful perusal of the entire statement of the witnesses, we are of the opinion that the criticism is not well founded and believe that the trial judge properly accepted the testimony as explicit and trustworthy.

In arguing that the judge should have sustained the challenge to the jury venire, counsel cites and relies upon the cases of Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181, 166 A.L.R. 1412 and Fay v. New York, 332 U.S. 261, 67 S.Ct. 1613, 1632, 91 L.Ed. —, decided on June 23, 1947. These authorities are without application in view of our conclusion that the claimed exclusion of white manual laborers from the petit jury venire does not exist.

Bill of exception No. 4 was taken to the ruling of the trial judge in excluding from the jury the testimony of appellant to the effect that the names of certain persons (whose signatures were charged to have been forged by appellant) had not been placed by him on the city payrolls on his own initiative and that he had been ordered to place said names on the payrolls by his superior officer, the Deputy Commissioner of Public Property of New Orleans.

We find no merit in this bill. Appellant was charged with forgery and issuing a forged instrument. The signatures allegedly forged by him were on checks made payable to persons who had been placed on the garbage payroll account of the Department of Public Property, Division of Public Works of the City of New Orleans, where appellant held the position of Chief Clerk. The fact that he did not place the names on the payroll list or maintain them on said list was without any materiality or relevancy to the charge of forgery of the names of the persons to whom the checks were payable.

The conviction and sentence are affirmed.

       Even if tlie charges contained in the motion had been supported by evidence, the authorities relied upon would afford little comfort to appellant in the absence of allegation and proof of iujury. The Supreme Court, in Pay v. New York, supra, distinguished its decision in Thiel v. Southern Pacific Co., supra, on the ground that, in the Thiel case, it was dealing with a jury in the Federal Court over which it has plenary judicial power and it announced that it will not exert such judicial power over proceedings in a -State court in relation to the enforcement of the equal protection and due process clauses of the Fourteenth Amendment of the Constitution of the United States in the absence of proof by the defendant of prejudice. In concluding its opinion in the Fay case, the court said: ‘"as there is no violation of a federal statute alleged, the challenge to this judgment under the due process clause must stand or fall on a showing that these defendants have had a trial so unfair as to amount to a taking of their liberty without due process of law. On this record we think that showing has not been made.”


author: HAWTHORNE, Justice.

text:
      212 La. 534
    CITY OF SHREVEPORT v. BRYSON.
    No. 38651.
    Supreme Court of Louisiana.
    Nov. 10, 1947.
    Albert E. Bryson, of Shreveport, for defendant-relator.
    William L. Murdock, Ass’t. City Atty., of Shreveport, for plaintiff-respondent
   HAWTHORNE, Justice.

Relatrix was charged in the city court of Shreveport, Louisiana, with the crime of operating a motor vehicle in a careless and reckless manner on the streets of that city, the charge in the affidavit reading as follows :

“Unlawfully did operate motor vehicle in a careless and reckless manner on the streets of the city of Shreveport, Louisiana in that he [she] did operate said vehicle while under the influence of intoxicating liquor or drugs.”

A motion to quash filed by relatrix was overruled, and she was tried, convicted, and sentenced to pay a fine of $100 and to serve 30 days in jail. From this conviction and sentence she appealed to the First Judicial District Court for the Parish of Caddo, and that court, after trial, affirmed the conviction and sentence. She then applied to this court for writs, which were granted, and the case is now before us under our supervisory-jurisdiction.

The motion to quash, which was filed in the city court and overruled, was filed anew in the district court and again overruled. To each of these rulings the defense objected and reserved a formal bill of exception. In the motion to quash defendant alleged, among other things, that the affidavit filed against her charged the offenses alternatively and consequently did not inform her whether the prosecution intended to prove that she was intoxicated or whether it intended to prove that she was drugged, and hence she was unable to prepare her defense.

Ordinance 207 of 1923 of the City of Shreveport, filed in evidence in the district court, is a general traffic ordinance regulating the movement of. motor-driven and horse-driven vehicles, street cars, other conveyances, etc. Section 35 thereof, as amended, defines reckless driving and reads as follows:

“Section 35: Reckless Driving Defined. Be it 'further ordained * * * That reckless driving shall be held to mean the following offenses which are hereby prohibited.
« ⅝ ⅜ ⅜ ⅝ ⅜ ⅜ ⅜

Immediately following this provision are eight separate and distinct paragraphs naming the various offenses which constitute reckless driving, these paragraphs being designated in the ordinance by the letters “a” through “h”, both inclusive, for example: “(c) Driving a vehicle to the left of a street car when said street car is headed in the same direction”; “(e) Driving a vehicle in violation of the Ordinance regulating right of, way streets, and their intersections”; “(g) Driving a vehicle through an alley at an excessive rate of speed”.

Defendant was tried and convicted under Section 35, Paragraph (a), of this ordinance, which reads as follows:

“Section 35: Reckless Driving Defined1. Be it further ordained * * * That reckless driving shall be held to mean the following offenses which are hereby prohibited.
“(a) Driving a vehicle within the City of Shreveport while under the influence of intoxicating liquor or narcotic drugs.”

Article 222 of the Code of Criminal Procedure provides that several distinct offenses disjunctively enumerated in the same law or in the same section of a criminal statute may be cumulated in the same count when it appears that they are connected with the same transaction and constitute but one act, but, in that event, they must be charged conjunctively.,

The section of the ordinance of the City of Shreveport under which rela-trix was convicted enumerates and selts forth disjunctively two distinct offenses, and the affidavit in this case so charges. Under the provisions of the article of the Code of Criminal Procedure cited above, if these-different offenses were connected with the same transaction and constituted but one act, they could be cumulated in the same count of an affidavit, but in that event they must be charged conjunctively and not dis-junctively. This is true for the reason that a defendant in a criminal prosecution is entitled to know what accusation against him is relied upon by the prosecution, and, further, if the offenses are charged disjunc-tively or alternatively, the precise accusation against the defendant is left uncertain. Louisiana Constitution, Article I, Section 10; State v. Sullivan, 125 La. 560, 51 So. 588;. State v. Hood, 125 La. 563, 51 So. 589; State v. Nejin, 140 La. 37, 72 So. 801; Marr’s Criminal Jurisprudence of Louisiana (2d Ed.), Volume 1, Section 329, page 490.

For these reasons we are of the opinion that the motion to quash has merit, but we propose not to quash the affidavit but rather to remand the case under the authority of Article 252 of the Code of Criminal Procedure. This article, which deals with defects in an indictment tl;at are not fatal, provides that no indictment shall be quashed, set aside, or dismissed for “any uncertainty * * * therein”, and provides further that, if the court be of the opinion that any uncertainty exists therein, it may order the indictment to be amended to cure such defect. We shall therefore remand the case to the City Court of the City of Shreveport, Fourth Ward, Caddo Parish, for a new trial, with direction that before proceeding with such trial the lower court order the affidavit to be amended to charge the offense so that no uncertainty exists therein.

In the district court relatrix filed a motion for a continuance and a motion in arrest of judgment, but, as these present matters which will probably not arise in subsequent proceedings in this case, it would serve no useful purpose to discuss them here.

For the reasons assigned, the writs issued herein are made peremptory, the conviction and sentence are set aside, the case is remanded to the City Court of the City of Shreveport, Fourth Ward, Caddo Parish, for a new trial, and the trial judge is directed, before proceeding with such new trial, to order the affidavit amended in accordance with the views herein expressed.

O’NIELL, J., dissents, being of the opinion that the affidavit is valid.


author: PONDER, Justice.

text:
    212 La. 540
    TOWN OF PINEVILLE v. SIMON.
    No. 38565.
    Supreme Court of Louisiana.
    Nov. 10, 1947.
    H. W. Hill, of Alexandria, for defendant-appellant.
    Frank H. Peterman, of Alexandria, for appellee.
   PONDER, Justice.

The defendant appeals from his conviction in the mayor’s court on a charge of violating ordinance 395 of the Town of Pineville. Ordinance 395 regulates the business of plumbing in the Town of Pine-ville and requires a permit to engage in such business in the town limits. The defendant moved to quash the charge, prior to his arraignment, on the ground that the town did not have authority to regulate the business of plumbing for the reason that the Legislature, by special legislation, has seen fit to control this trade or calling. The motion was overruled and the sole bill of exception appearing in the record was reserved to this ruling.

Counsel for the defendant takes the position that the Legislature, by Act No. 248 of 1924, retains the right to license and control the trade of plumbing in the state and by so doing took it out of the category of police power and limited the control to cities or towns of more than 10,000 inhabitants. Counsel contends that this Court recognized the fact that towns like Pineville, having a population less than 10,-000, had no right to regulate the plumbing business when it stated in the case of State v. Malory, 168 La. 742, 123 So. 310, 313, that, “The defendant has the same right to do plumbing work in towns and villages having a population under 10,000 without a plumber’s license or certificate as any other citizen of the state, * *

Act 248 of 1924 created a board of examiners of journeymen plumbers with authority to adopt tests of qualifications of persons engaging in doing plumbing work and to issue licenses to those who met the examination requirements, upon payment of a fee to be fixed by the board. No one is permitted to engage in doing plumbing work, unless he possess the required certificate. It is specifically stated in the act that it shall apply to cities of more than 10,000 inhabitants.

From our appreciation of the act, it has no application whatsoever to cities or towns having less than 10,000 inhabitants. In fact, the act by its very terms restricts its application to cities of more than 10,000 inhabitants.

In the Malory case the state appealed from a judgment dismissing a charge against a defendant for doing plumbing work in the City of Shreveport without having obtained the certificate required by Act No. 248 of 1924. An attack was made on the act on two grounds: First, that the title of the act did not comply with the requirement of the state Constitution; and, second, that it violated the Fourteenth Amendment of the Constitution of the United States. The lower court sustained a motion to quash the charge on the ground that there was an unreasonable discrimination in violation of the Fourteenth Amendment of the federal Constitution. On appeal it was held that the act did not violate the provision of either Constitution. In the course of discussing whether or not the act violated the federal Constitution, this Court made the statement relied on by the defendant in the present case, and further stated, “and no other citizen of the state in or outside the City of Shreveport is permitted to come in competition with the defendant in doing plumbing work in said city unless he obtains a certificate and license as provided for in the statute.” The Court was discussing whether or not the provisions of the act discriminated against the defendant in such a way as to amount to such “class legislation” as is prohibited by the federal Constitution. The language used cannot be construed as counsel contends for the reason that it merely goes to the effect that the defendant in that case had the same right to engage in p2umbing work in the City of Shreveport or towns and villages having a population of less than 10,000 that any other citizen would have. No other citizen could engage in the plumbing work in the City of Shreveport, a city having a population over 10,000, without having obtained the required certificate and no other citizen of the state, under the provisions of the ordinance, can engage in doing plumbing work in Pineville without a permit. This Court in the Malory case was merely pointing out the fact that the act did not discriminate against the defendant in that case. In fact, the only matter before the Court at that time was the constitutionality of Act No. 248.

There is nothing in this record to indicate that the defendant in this case has been discriminated against or that any other citizen has been permitted to do plumbing work in Pineville without a permit.

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