author: HALL, Justice Ad Hoc.

text:
    STATE of Louisiana v. C. W. BRELAND and Donald W. Cooper.
    No. 63199.
    Supreme Court of Louisiana.
    March 5, 1979.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Warren J. Hebert, Kay Kirkpatrick, Asst. Dist. Attys., Baton Rouge, for plaintiff-relator.
    Theodore (Ted) L. Jones, Baton Rouge, Alva C. Smith, Jr., for defendants-respondents.
   HALL, Justice Ad Hoc.

On June 17, 1977 separate bills of information were filed in East Baton Rouge Parish charging that the two defendants, between August 4, 1976 and June 1, 1977, violated the Election Campaign Finance Disclosure Act, La.R.S. 18:1490, in that they, being candidates for public office, failed to file with the Supervisory Committee on Campaign Finance the financial disclosure reports and affidavits required by the Act. The trial court sustained motions to quash on the ground that venue was improper in East Baton Rouge Parish. This court granted the State’s application for writs and now reverses the ruling of the trial court.

Defendants were opposing candidates for the LaSalle Parish School Board. Defendant Breland was eliminated in the August 14, 1976 primary election; defendant Cooper was successful in the primary and in the November 2, 1976 general election.

The Election Campaign Finance Disclosure Act, La.R.S. 18:1481-1493, requires candidates for public office to file certain reports or affidavits of campaign contributions and expenditures with certain designated authorities domiciled at the state cap-ítol in East Baton Rouge Parish. Failure to submit the reports constitutes a violation of the statute, is punishable as a misdemeanor, and subjects the violator to a fine. La.R.S. 18:1490 and 1491. As originally enacted by Act 718 of 1975, Section 1492 provided that the district attorney “for the parish wherein such alleged violation occurred” shall proceed with criminal actions provided by the statute.

As originally enacted, the statute contained no other provisions relating to venue for criminal proceedings brought pursuant to the law. By Act 386 of 1976, the Election Campaign Finance Disclosure Act was extensively amended, and re-enacted. La. R.S. 18:1490 was amended to specifically provide for venue in East Baton Rouge Parish of actions for failure to submit reports as follows:

“Failure to submit the reports required by this Part shall constitute a violation of this Part; actions or proceedings in such matter shall be brought in the Parish of East Baton Rouge. Failure to submit any such report within three days after the final date for filing shall be presumptive evidence of intent not to file the report.”

La.R.S. 18:1492 was also amended, but continued to provide for prosecution by “the district attorney of the judicial district in which the alleged violation has occurred.”

Act 386 of 1976 specifically provided that the Act shall become effective upon signature of the Governor. The Governor signed the bill on July 31,1976. It was received by the Secretary of State on August 9, 1976 and was published in the Official Journal of the State on August 20, 1976.

Reasoning that the 1976 amendment to La.R.S. 18:1490 was not promulgated or published and, therefore, not effective until after August 4, 1976 (the date of the alleged initial violation of the statute), the trial court found that the law in effect prior to the amendment placed venue in the parish wherein the violation occurred, which the trial court apparently presumed to be LaSalle Parish. Accordingly, the trial court quashed the bills of information on the ground that the district court for East Baton Rouge Parish was not a court of proper venue.

The State contends in its application and brief that the 1976 Amendment was effective on July 31,1976, the date the Governor signed the bill, by virtue of Art. Ill, Sec. 19, La.Const.1974, which provides:

“All laws shall take effect on the sixtieth day after final adjournment of the session in which they were enacted; and shall be published prior thereto in the official journal of the state as provided by law. However, any bill may specify an earlier or later effective date.” (emphasis added)

Thus, the State argues that the trial court erred in ruling that the amendment specifically placing venue in East Baton Rouge Parish was not effective until after promulgation and publication. Alternatively, the State contends the venue provision of the amending statute is a procedural change which can be applied retroactively.

It is not necessary for a determination of the venue issue, the only issue raised by the State’s application, to decide the effective date of the 1976 Act or the effect of the amendments contained in the Act, procedural or substantive, on these proceedings. East Baton Rouge Parish was a parish of proper venue under the statute and other pertinent law prior to the 1976 Amendment.

Art. 1, Sec. 16, La.Const.1974, provides:

“Every person charged with a crime is presumed innocent until proven guilty and is entitled to a speedy, public, and impartial trial in the parish where the offense or an element of the offense occurred, unless venue is changed in accordance with law. . . . ” (emphasis added)
La.C.Cr.P. Art. 611 provides:
“All trials shall take place in the parish where the offense has been committed, unless the venue is changed. If acts constituting an offense or if the elements of an offense occurred in more than one place, in or out of the parish or state, the offense is deemed to have been committed in any parish in this state in which any such act or element occurred.”

As previously noted, La.R.S. 18:1492 provides for criminal actions to be instituted by the district attorney for the parish wherein the violation occurred, consistent with the provisions of the Constitution and Code of Criminal Procedure.

The offenses or an element of the offenses charged in these cases occurred in East Baton Rouge Parish. The Election Campaign Finance Disclosure Act requires that the reports be filed with certain authorities in East Baton Rouge Parish. In essence, the crimes charged in this case resulted from a failure to perform an act required by law. In dealing with analogous situations the United States Supreme Courts has held that venue lies at the place designated for performance of the duty. For example, in United States v. Lombardo, 241 U.S. 73, 36 S.Ct. 508, 60 L.Ed. 897 (1916) the defendant failed to file a written statement with the Commissioner General of Immigration in the District of Columbia as required by statute. Venue was held to be proper in the District of Columbia rather than at defendant’s residence from which the statement could have been mailed. In Johnston v. United States, 351 U.S. 215, 76 S.Ct. 739, 100 L.Ed. 1097 (1956) defendants failed to report for civilian work assignments as directed by the local draft boards. Venue was found proper at the place fixed for performance. The court held:

“We are led to this conclusion by the general rule that where the crime charged is a failure to do a legally required act, the place fixed for its performance fixes the situs of the crime.” 351 U.S. at 220, 76 S.Ct. at 742.

This court held that venue for a prosecution of the crime of having knowledge of the commission of a felony and not disclosing it to the appropriate authorities (misprision of a felony) is in the parish where the accused was obliged to disclose his knowledge. State v. Wells, 195 La. 758, 197 So. 420 (1940); State v. Graham, 190 La. 669, 182 So. 711 (1938). More recently, we have held that proper venue for a prosecution of the offense of contempt of the legislature lies, in accordance with La.R.S. 24:6 and La.C.Cr.P. Art. 611, in the parish wherein the subpoena ordered the offender to give testimony or to produce papers or other evidence. Joint Legislative Committee of Legislature v. Strain, 263 La. 488, 268 So.2d 629 (1972). In these cases the offenses of failure to disclose certain information were deemed to occur in the parish in which the accused had a duty to report.

Guided by these precedents, we conclude that the offenses charged in these cases or elements thereof occurred in East Baton Rouge Parish, the place fixed for performance of the statutorily imposed duty to submit reports. Accordingly, the district court for East Baton Rouge Parish is a court of proper venue for the charges brought in these cases, regardless of the effective date or applicability of the 1976 Amendment.

Other issues unrelated to venue raised by defendants’ motions to quash and by defendants’ brief filed in this court, which were not passed on by the district court, are not properly before this court on the State’s application for writs and have not been considered by this court.

For the reasons assigned, the judgments of the district court granting the motions to quash are reversed and set aside. The cases are remanded to the Nineteenth Judicial District Court for the Parish of East Baton Rouge, Louisiana, for further proceedings in accordance with law, including consideration of the other grounds asserted in defendant’s motions to quash.

Reversed and remanded.

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

      . A provision in La.R.S. 18:1492(B)(1) attempting to limit the power of the district attorney to prosecute only violations reported to him through the supervisory committee established by the statute was held unconstitutional in Guidry v. Roberts, 335 So.2d 438 (La.1976). The decision upheld the constitutionality of other provisions of the statute.

      . Under Act 718 of 1975 the “reporting official” with whom reports were to be filed by candidates for district offices was the legislative auditor. La.R.S. 18:1482(12), 1483 and 1486. Under Act 386 of 1976, all reports are to be filed with the Supervisory Committee, Election Campaign Finance Disclosure Act, which is composed of the secretary of the Senate, the clerk of the House of Representatives, the legislative auditor, and the executive director of the Louisiana Legislative Council. La.R.S. 18:1482(14), 1483A, 1486 and 1492.


source: Caselaw Access Project

author: DENNIS, Justice.

license: Public Domain

text:
    STATE of Louisiana ex rel. Arthur M. DAVIS v. CRIMINAL DISTRICT COURT. STATE of Louisiana v. Arthur M. DAVIS.
    Nos. 63216, 62281.
    Supreme Court of Louisiana.
    March 5, 1979.
    Clyde Merritt, Robert Barnard, New Orleans, Orleans Indigent Defender Program, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-respondent.
   DENNIS, Justice.

The issue in this case is whether a sixteen year old juvenile indicted by a grand jury for first degree murder, may be charged subsequently by bill of information with second degree murder, tried and convicted by a jury in district court for the latter offense, and sentenced to life imprisonment at hard labor without parole for forty years.

Arthur Davis was jointly indicted with a co-defendant for first degree murder, La. R.S. 14:30, allegedly committed on June 16, 1976. Arthur Davis was sixteen years old on the date of the offense. Before trial the prosecuting attorney amended the indictment to charge the jointly indicted defendants with second degree murder and had the indictment severed. Subsequently, however, the prosecuting attorney filed a new bill of information alleging that Arthur Davis had committed second degree murder on June 16, 1976. After a jury trial, Davis was convicted of second degree murder and sentenced to life imprisonment at hard labor, without benefit of parole for forty years.

After his conviction was affirmed on appeal, State v. Davis, 359 So.2d 986 (La.1978), Davis unsuccessfully applied for habeas corpus relief in the district court. Separate writs of certiorari were applied for in this Court to review the action of the trial judge by Davis in propria persona and by his attorney. Both writs were granted, and the cases have been consolidated for purposes of this review.

The offense charged in the present case was committed on June 16, 1976, after the effective date of the 1974 Louisiana Constitution. Jurisdiction or special procedures for the trial of this juvenile are therefore authorized by the 1974 Louisiana Constitution, which, in pertinent part, provides:

“Section 19. Except for a person fifteen years of age or older who is alleged to have committed a capital offense or attempted aggravated rape, the determination of guilt or innocence, the detention, and the custody of a person who is alleged to have committed a crime prior to his seventeenth birthday shall be exclusively pursuant to special juvenile procedures which shall be provided by law. However, by law enacted by two-thirds of the elected members of each house, the legislature may (1) lower the maximum ages of persons to whom juvenile procedures would apply and (2) establish a procedure by which the court of original jurisdiction may waive such special juvenile procedures in order that adult procedures would apply in individual cases.”

Pursuant to the authority of Article V, § 19 of the 1974 Louisiana Constitution, the legislature enacted Act 337 of 1975 [La.R.S. 13:1570], establishing juvenile court jurisdiction and special juvenile procedures. The statute, in pertinent part, provides:

“Except as otherwise provided herein, the [juvenile] court shall have exclusive original jurisdiction in proceedings:
“A. Concerning any child whose domicile is within the parish or who is found within the parish:
U * * *
“(5) Who violates any law or ordinance, except a child who, after having become fifteen years of age, is charged with having committed a capital crime, or a crime defined by any law defining attempted aggravated rape; provided that once such a child has been actually charged with a capital crime, armed robbery, or attempted aggravated rape, the district court shall retain jurisdiction over his case, even though the child pleads guilty to, or is convicted of, a lesser included offense; and a plea to, or conviction of, a lesser included offense shall not revest the juvenile court with jurisdiction of such a child.”

The state contends that, under La.R.S. 13:1570A(5), once a grand jury has found that there is sufficient incriminating evidence to charge a juvenile over fifteen years of age with first degree murder, the district court retains jurisdiction over the juvenile’s case even after a new bill of information has been filed alleging that the juvenile has committed a crime other than a capital offense or attempted aggravated rape.

This Court specifically rejected a similar contention in State ex rel. Moore v. Warden, 308 So.2d 749 (La.1975), in which it observed:

“The uniform jurisprudence of the State since 1921 holds that the jurisdiction of the district courts is limited to the determination of guilt and punishment for capital crimes (and the constitutionally provided for attempted aggravated rape). Although it can be argued that the constitutional deposit of jurisdiction in the district courts of the trial of juveniles in capital cases is the grant of jurisdiction embracing every part of the case, from arraignment to sentence, we decline to make such a departure from established jurisprudence, particularly in view of the policy of the State that juveniles are not to be punished as adults, except as provided by the constitution.

As we also observed in Moore, there was no intention by the adoption of the 1974 Louisiana Constitution to modify the rule respecting juveniles, that “the jurisdiction of the district court is limited to the determination of guilt and punishment for capital crimes (and the constitutionally provided for attempted aggravated rape).” Id. at 752.

In the final analysis, the state’s argument seems to be that La.R.S. 13:1570 authorizes the state to charge and prosecute a person as an adult for any offense committed before his seventeenth birthday, provided that the offense charged is included within a capital offense, or attempted aggravated rape, for which he has been validly indicted. If this were the legislative intent that portion of the statute would have been void because of a conflict with the clear wording of the constitution. Adult procedures are applicable without a waiver proceeding in the individual case of a person charged with an offense committed before his seventeenth birthday only where a person fifteen years of age or older “is alleged to have committed a capital offense or attempted aggravated rape.” Art. V, § 19, La.Const. 1974. The uniform jurisprudence and the clear intent of the constitutional language is that adult procedures may be employed without waiver proceedings only in a valid capital or attempted aggravated rape prosecution. Moreover, the requirement that the legislature establish the individual waiver procedures by a two-thirds vote of both legislative houses, reflects a concern that the juvenile whom the state proposes to try by adult rules should be afforded full due process protection. See, State v. Everfield, 342 So.2d 648 (La.1977). Given the language and the obvious concerns of the constitutional section, it is evident that the state’s proposed statutory construction is at odds with the constitution. It would allow the prosecutor in effect to substitute an ex parte, secret probable cause determination by a grand jury for the judicial waiver procedures established by two-thirds of the elected members of each house of the legislature.

Furthermore, careful reading of the statute reveals that the state’s interpretation is incorrect. The statute provides that the juvenile court shall have “exclusive original jurisdiction” in proceedings concerning a child who violates any law “except a child who, after having become fifteen years of age, is charged with having committed a capital crime, or . attempted aggravated rape.” (emphasis added) La.R.S. 13:1570A(5). The wording is consistent with the constitution. The juvenile must be charged with a capital offense or attempted aggravated rape in the proceeding under question before it may be conducted according to adult procedures.

The juvenile’s conviction and sentence are vacated and the case is remanded to the Orleans Parish Juvenile Court for further proceedings consistent with this opinion.

VACATED AND REMANDED TO JUVENILE COURT.

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

      “2 This policy seems to be perpetuated in the Louisiana Constitution of 1974, Art. 5, § 19; ‘Except for a person fifteen years of age or older who is alleged to have committed a capital offense or attempted aggravated rape, the determination of guilt or innocence, the detention, and the custody of a person who is alleged to have committed a crime prior to his seventeenth birthday shall be exclusively pursuant to special juvenile procedures which shall be provided by law.’ ” 308 So.2d at 752.


author: PER CURIAM.

text:
    STATE of Louisiana v. Paul SANDERS.
    No. 62901.
    Supreme Court of Louisiana.
    March 14, 1979.
    Rehearing Denied March 9, 1979.
    James D. Sparks, Jr., Monroe, for defendant-appellant.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John T. Seale, Dist. Atty., George P. Fox, Jr., Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

The defendant Paul Sanders was convicted of distribution of marijuana, La.R.S. 40:966, and sentenced to five years’ imprisonment at hard labor. His appeal raises eleven assignments of error, comprising six arguments.

We find that none of the assignments present reversible error, nor do any involve legal issues not governed by clearly applicable legal principle. As some of the assignments require discussion of interest primarily to the parties, we have addressed them in an appendix to this opinion. Though the appendix will not be published with this opinion, it remains a public record of the Court.

Accordingly, we affirm the conviction and sentence.

AFFIRMED.


author: PER CURIAM. CALOGERO, Justice,

text:
    STATE of Louisiana v. Andrew A. SAVOIE.
    No. 63295.
    Supreme Court of Louisiana.
    March 14, 1979.
    Alvis J. Roche, Lake Charles, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard Knapp, Dist. Atty., Gregory D. Lyons, Alcide Gray, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

Affirmed.

TATE, J., concurs.

There is some evidence of gross negligence. Insofar as the appellant urges that an unconstitutional presumption of negligence (by reason of statutory violation) was used against him, Hammontree v. Phelps, 462 F.Supp. 366 (W.D.La.1978), the issue is not before us because the judge was not required to instruct himself as to the law, and the record affords us no basis for review of this issue.

CALOGERO, J., dissents and assigns reasons.

CALOGERO, Justice,

dissenting.

Because the record does not reveal whether the basis for finding the defendant guilty of negligent homicide was independent of the statutory provision that the violation of a law “. . . shall be considered only as presumptive evidence of . ” the criminal negligence which is an essential element of the crime of negligent homicide I must dissent from this af-firmance of Savoie’s conviction and sentence. See my dissent in State v. Hammontree, 363 So.2d 1364 (La.1978) and the opinion of the federal district court expressing consonant views and granting Hammontree habeas relief on the basis of its finding the presumption created by R.S. 14:32 unconstitutional. Hammontree v. Phelps, 462 F.Supp. 366 (W.D.La.1978), appeal docketed, No. 79-1307 (5th Cir. Feb. 7, 1979).


text:
    STATE of Louisiana v. Willy DUHE.
    No. 63367.
    Supreme Court of Louisiana.
    March 14, 1979.
    Ben E. Atkins, Baton Rouge, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Kay Kirkpatrick, Asst. Dist. Atty., for plaintiff-appellee.
   PER CURIAM.

Affirmed.

DIXON, J., dissents. The short form bill of information was deficient and should have been quashed or corrected.


text:
    STATE MINERAL BOARD et al. v. LOUISIANA COMMISSION ON GOVERNMENTAL ETHICS.
    No. 63423.
    Supreme Court of Louisiana.
    Dec. 1, 1978.
   Writ denied.

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


text:
    MORGAN CITY BANK & TRUST CO. v. JAMBOIS O & M MACHINE SHOP, INC., et al.
    No. 63764.
    Supreme Court of Louisiana.
    Feb. 9, 1979.
   In re: Luana Thiel Jambois applying for writ of certiorari, First Circuit Court of Appeal. Parish of St. Mary. 367 So.2d 1216.

Writ denied.

BLANCHE, J., recused.


text:
    STATE of Louisiana v. Johnnie MELANCON.
    No. 64154.
    Supreme Court of Louisiana.
    March 12, 1979.
   In re: Johnnie Melancon, applying for supervisory and/or remedial writs. Orleans Parish.

Writ granted. It is ordered that deposition of relator be taken within forty eight (48) hours; otherwise, relator should be released on reasonable bail.

SUMMERS, C. J. I would not interfere with the exercise of the discretion vested in the trial judge in this matter. Accordingly, I dissent.


text:
    STATE of Louisiana v. Larry Joe PHILLIPS.
    No. 63964.
    Supreme Court of Louisiana.
    March 14, 1979.
   In re Larry Joe Phillips, applying for writ of review. Orleans Parish.

Denied.


text:
    STATE of Louisiana v. Kenneth GEDRIC.
    No. 63903.
    Supreme Court of Louisiana.
    March 16, 1979.
   The petition of the relator in the above entitled and numbered case having been duly considered,

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Donovan W. Parker Judge of the 19th Judicial District, Court for the Parish of E. Baton Rouge, to transmit to the Supreme Court of Louisiana, on or before the 30th day of March, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be assigned by this court why the relief prayed for in the petition of the relator should not be granted.


text:
    STATE of Louisiana ex rel. Napoleon HARPER v. O. H. HAYNES, Jr., Sheriff.
    No. 64141.
    Supreme Court of Louisiana.
    March 19, 1979.
   In re Napoleon Harper applying for remedial writ. Parish of Webster.

Writ denied. Insufficient showing and adequate remedy by review in the event of conviction.


text:
    SHELL PIPE LINE CORPORATION v. Norman R. LIVELY et al.
    No. 64200.
    Supreme Court of Louisiana.
    March 19, 1979.
   In re Shell Pipe Line Corporation, applying for writs of certiorari, mandamus and prohibition. Iberville Parish.

Writ denied. This matter must first be presented to the Court of Appeal.


text:
    STATE of Louisiana v. Michael WOLLFARTH et al.
    No. 64053.
    Supreme Court of Louisiana.
    March 20, 1979.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for writs of certiorari, prohibition and mandamus. Orleans Parish, No. 268-256.

Granted.

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

It is ordered that a Writ of Certiorari issue herein, directing the Honorable Jerome Winsberg, Judge of the Criminal District, Court for the Parish of Orleans, to transmit to the Supreme Court of Louisiana, on or before the 3rd day of April, 1979, the record in duplicate, or a certified copy of the record in duplicate, of the proceedings complained of by the relator herein, to the end that the validity of said proceedings may be ascertained.

It is further ordered that the aforesaid Judge of said Court and the respondent through counsel shall show cause, in this court, on a date to be fixed by this Court, why the relief prayed for in the petition of the relator should not be granted.


author: CULPEPPER, Judge. FORET, Judge, STOKER, Judge,

text:
    J. C. CALK v. HIGHLAND CONSTRUCTION & MANUFACTURING, INC., et al.
    No. 6786.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 31, 1979.
    Rehearing Denied March 29, 1979.
    Love, Rigby, Dehan, Love & McDaniel, Kenneth Rigby, Shreveport, for defendant-appellant.
    William Henry Sanders, Jena, for plaintiffs-appellees.
    Before CULPEPPER, FORET, CUTRER, SWIFT and STOKER, JJ.
   CULPEPPER, Judge.

The issue on appeal in this case is whether an attorney at law has a special privilege for the amount of his professional fees, under LSA-R.S. 9:5001, where the suit is settled by a compromise agreement, and judgment is rendered dismissing the client’s suit.

The present case originated as a suit for damages for personal injuries by the plaintiff, J. C. Calk, against the alleged defendant tort feasors, General Electric Company, et al. Commercial National Bank in Shreveport held a prior judgment against J. C. Calk for the balance due on a promissory note. See 207 So.2d 578. The judgment was revived under LSA-C.C. Article 3547. Under its judgment, the bank seized Calk’s interest in the personal injury suit.

Before the personal injury case was tried, J. C. Calk and his attorney, William Henry Sanders, and the seizing creditor, Commercial National Bank in Shreveport, agreed to settle the claims of Calk against the alleged tort feasors for the sum of $2,000 cash. Calk and his attorney and the bank Agreed further that the $2,000 be placed in the registry of the court for a determination by the court as to their respective rights to the funds.

The trial judge held that Calk’s attorney has a special privilege on the funds under LSA-R.S. 9:5001, and, accordingly, judgment was rendered ordering the clerk of court to issue a check in the sum of $2,000 payable to Calk’s attorney, William Henry Sanders. The seizing creditor, Commercial National Bank, appealed.

LSA-R.S. 9:5001 provides:
“A special privilege is hereby granted to attorneys at law for the amount of their professional fees on all judgments obtained by them, and on the property recovered thereby, either as plaintiff or defendant, to take rank as a first privilege thereon.”

The language of this statute refers only to the granting of the first privilege in favor of an attorney for his professional fees on “judgments” and “on property recovered thereby”, and makes no mention of a compromise entered into before judgment on the merits. Because this provision creates a privilege or lien, it is in derogation of common rights. Therefore, it should be strictly construed and cannot be extended by analogy or implication. State ex rel. Maitrejean v. Demarest, 229 La. 300, 85 So.2d 522 at 523 (La.1956).

Our holding is supported by several cases. Smith v. Vicksburg S. & R. R.R., 112 La. 985, 36 So. 826 (1904); American Bank & Trust Company v. Byron, 347 So.2d 850 (La.App. 2d Cir. 1977), and Madonia v. Meyer & Wetmore, 9 La.App. 71, 119 So. 96 (Orl.1928). Additionally, this position is expressed as dicta in other cases. Livaccari v. Demarest, 352 So.2d 792 (La.App. 4th Cir. 1977), and Davis Finance & Securities Company, Inc. v. O’Neal, 160 So. 463 (Orl.Ct. of La.App.1935).

In oral reasons dictated at the conclusion of the hearing, the trial judge expressed the view that since the compromise agreement resulted in a judgment of dismissal, the judgment of dismissal should be construed as a “judgment” under LSA-R.S. 9:5001, and the attorney’s privilege for his fees should attach to the funds received in the compromise settlement. As stated above, the jurisprudential rule is well settled that statutes creating a lien must be strictly construed and cannot be extended by implication. Additionally, the above cited jurisprudence supports our holding that the attorney has no privilege for his fee where the suit is settled by compromise without a judgment on the merits in favor of the plaintiff.

We have also considered the possible effect of LSA-R.S. 37:218. That statute protects an attorney who has entered into a contingent fee contract by providing that it is lawful to stipulate that the attorney’s permission is necessary for any compromise, release, or discontinuance of the lawsuit. Any such compromise, release, or discontinuance of the lawsuit without the attorney’s permission is null, if the contract contains such a stipulation, is in writing, and is properly recorded. Although this statute was originally enacted by Act No. 124 of 1906 as an additional paragraph to the present LSA-R.S. 9:5001, the two provisions are separate and distinct and do not overlap. Davis Finance & Security Company v. O’Neal, supra, and Roberts v. Hanover Insurance Company, 338 So.2d 158 (La.App. 2d Cir. 1976). The purpose of this statute is to allow an attorney to acquire an interest in the subject matter of the lawsuit and thereby to prevent clients from depriving an attorney of a fee by compromising a suit before judgment. State v. Nix, 135 La. 811, 66 So. 230 (1914). However, it does not give the attorney a lien right.

For the reasons assigned, the judgment appealed is reversed and set aside. It is now ordered, adjudged and decreed that there be judgment herein in favor of Commercial National Bank against J. C. Calk ordering the clerk of court of LaSalle Parish to issue a check in the sum of $2,000.00, payable to Commercial National Bank, for the funds placed in the registry of the court in these proceedings. All costs in the trial and appellate courts are assessed against J. C. Calk.

REVERSED AND RENDERED.

FORET and STOKER, JJ., dissent and assign written reasons.

FORET, Judge,

dissenting.

The issue on appeal in this case is whether an attorney at law has a special privilege for the amount of his professional fees, under LSA-R.S. 9:5001 where the suit is settled by a compromise agreement, and a consent judgment is rendered dismissing his client’s suit. The trial court concluded that that attorney did have a special privilege under 9:5001.

The majority proposes to reverse the trial court for the reason that a statutory provision creating a privilege or lien is in derogation of common rights, and therefore should be strictly construed and cannot be extended by analogy or implication.

In my view of the case, the majority places too narrow an interpretation of the word “judgment” as contained in 9:5001. In particular, I feel that the provisions of Civil Code Article 3078, under the title “OF TRANSACTION OR COMPROMISE” bear on this case. Article 3078 is as follows:

“Transactions have, between the interested parties, a force equal to the authority of things adjudged. They cannot be attacked on account of any error in law or any lesion. But an error in calculation may always be corrected.”

The cases in the jurisprudence are legion holding that a compromise agreement, freely made, has the dignity and force of a definitive judgment so far as it definitely and irrevocably fixes rights and liabilities of parties thereto as relating to the subject matter dealt with. Jackson v. U. S. Fidelity & Guaranty Co., 199 So. 419 (La.App. 2 Cir. 1940); even where no suit was pending when the compromise was effected. Beck v. Continental Casualty Co., 145 So. 810 (La.App. 2 Cir. 1933). Some of the later cases holding that a transaction or compromise, voluntarily entered into, has the force of a definitive and final judgment are Benson v. Metropolitan Cas. Ins. Co. of New York, 79 So.2d 345 (La.App. 2 Cir. 1955); Hancock v. Lincoln American Life Insurance Co., 278 So.2d 561 (La.App. 1 Cir. 1973), writ denied, La., 281 So.2d 754; Oil Purchasers, Inc. v. Kuehling, 334 So.2d 420 (La.S.Ct.1976).

For the reasons I have mentioned above, I am of the opinion that since a transaction or compromise such as in this case has the authority of a thing adjudged, and is in fact a definitive judgment according to the jurisprudence, that the word “judgments” in 9:5001 applies to a transaction or compromise freely entered into between the parties involved, and dealing with the very issue in dispute.

In a recent case of Board of Trustees, etc. v. All Taxpayers, 361 So.2d 292 (La.App. 1 Cir. 1978), the court stated as follows:

“Under the common law, there are two kinds of attorneys’ liens: (1) a charging lien, the right to compensation for services from the funds or judgment which the attorney has recovered for the client because of his professional services rendered and (2) a retaining lien, the right to retain possession of a client’s documents, money, etc., until paid for his professional services. 7 C.J.S. Attorney and Client § 207 et seq. (1937).
The right of retention has also been recognized in the civil law and extended to mandataries or administrators of affairs for expenses incurred on behalf of another. Planiol, Civil Law Treatise (An English Translation by the Louisiana State Law Institute), vol. 2, no. 2514 et seq.
Louisiana has provided for both the charging lien and retaining lien under LSA-R.S. 9:5001 and LSA-C.C. arts. 3022 and 3023. LSA-R.S. 9:5001 embodies the same characteristics and effects as that of a charging lien in the common law and under LSA-C.C. arts. 3022 and 3023 interpreted in pari materia by the court in Butchers’ Union, supra, establishes the retaining lien for the attorneys’ fees.”

There is no question that in this case the funds involved have not been distributed, but are deposited in the registry of the court pending the outcome herein. Therefore, Civil Code Article 3023 should be given effect in applying the principle of the retaining lien of the mandatary.

I am further of the opinion that the seizing creditor, the bank, acquired no greater right in the funds obtained from the settlement of the case than its judgment debtor had. Certainly the judgment debtor, under the contingent fee contract which he entered into with his attorney, had no right whatsoever to the forty per cent of the settlement. This is Hornbook law. Inasmuch as the client had no right to the forty per cent, then I fail to see how a seizing creditor, seizing the client’s cause of action, could acquire a greater right to the cause of action and the funds derived therefrom than the judgment debtor had.

I should iike to note, in conclusion, the recent Supreme Court case of Saucier v. Hayes Dairy Products, Inc. and the Hartford Group Insurance Company, Supreme Court Docket No. 61,652, decision rendered December 15,1978. The thrust of Saucier is that attorneys who enter into valid contingent fee contracts, drawn and recorded in conformity with LSA-R.S. 37:218, as was done in the case at bar, should be protected. The Court stated that such contracts promote the distribution of needed legal services by reducing the risk of financial loss to clients and making legal services available to those without means.

For the above and foregoing reasons, I respectfully dissent.

STOKER, Judge,

dissenting.

I respectfully dissent from the majority holding in this ease. In my view a compromise settlement is a judgment for the purposes LSA-R.S. 9:5001 as set forth by Judge Foret in his dissent. Where a client gains a judgment, it results from services performed by his attorney. Therefore, it matters not that it results from a compromise agreement or results from a ruling by a court and the rendering and signing of a judgment.

For the above and foregoing reasons, I respectfully dissent.

       LSA-C.C. Art. 3022:
      “The principal ought to reimburse the expenses and charges which the agent has incurred in the execution of the mandate, and pay his commission where one has been stipulated.
      “If there be no fault imputable to the agent, the principal can not dispense with this reimbursement and payment, even if the affair has not succeeded; nor can he reduce the amount of reimbursement, under pretense that the charges and expenses ought to have been less.”
      LSA-C.C. Art. 3023:
      “The mandatary has a right to retain out of the property of the principal in his hands, a sufficient amount to satisfy his expenses and costs. “He may even retain, by way of offset, what the principal owes him, provided the debt be liquidated.”

        Butchers’ Union Slaughter-House & LiveStock Landing Co. v. Crescent City Live-Stock Landing & Slaughter-House Co., 41 La.Ann. 355, 6 So. 508 (1889).


text:
    Carol NORMAN, Judicially Separated Wife of Frederick Twickler, Jr. v. Edward R. DRURY, George J. Kambur and R. Lee McDaniel.
    No. 10263.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 12, 1979.

      Paul B. Deal, Darryl J. Foster, New Orleans, for relator.
    Daniel J. Markey, Jr., New Orleans, for respondent.
   ORDER

Granting writs, we order partial denial of jury trial of an action against a lawyer (and his insurer) for damages arising from his alleged breach of duty to prosecute plaintiff’s action (and to defend against her husband’s reconventional demand) for separation from bed and board.

In order to decide whether, and to what extent, the lawyer’s alleged breach of duty damaged plaintiff, the “case within the case” must be decided, Ramp v. St. Paul F. & M. Ins. Co., 1972, 263 La. 774, 269 So.2d 239, and that case, because it is a separation case, is not decidable by jury, La.C.C.P. 1733(3). Thus the judge alone must decide whether plaintiff would have “won” and what alimony or other pecuniary rights she would have received.

The jury may only decide such other questions (if at issue) as whether defendant lawyer was, by employment or otherwise, obliged towards plaintiff.

Accordingly, IT IS ORDERED that the Honorable Melvin J. Duran, Judge, Civil District Court for the Parish of Orleans, Division “I”, modify his order consistent with this opinion.


author: MARVIN, Judge.

text:
    UNITED PENTECOSTAL CHURCH OF HODGE, Louisiana, Plaintiff-Appellee, v. INTERSTATE SURPLUS UNDERWRITERS, UNDERWRITERS AT LLOYD, Defendant-Appellant.
    No. 13780.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 20, 1979.
    En Banc. Rehearing Denied March 28, 1979.

      Monte J. Ducote, New Orleans, for defendant-appellant.
    Baker, Culpepper & Brunson by J. Michael McDonald, Jonesboro, for plaintiff-ap-pellee.
    Before PRICE, HALL and MARVIN, JJ.

       BOLIN, J., recused.

   MARVIN, Judge.

In an earlier expropriation suit (State, Dept. of Highways v. United Pent. Ch. of Hodge, 313 So.2d 886 (La.App. 2d Cir. 1975)) this court, besides making other reductions to amend and affirm the judgment, reduced the severance damages awarded by 74 percent from $77,150.50 to $20,000. Severance damages were awarded because the widening of the highway would bring traffic closer to the church and would cause an increase of traffic noise. This would affect the special use of the property as a church where worship services are held.

Before the highway was widened, a videotape was taken by the church’s sound expert in an attempt to show the sights and sounds which would result after the widening of the highway. The tape was introduced into evidence, but was negligently lost by the clerk of the district court and was not included in the record reviewed by this court on appeal. CCP Arts. 251, 253, 2127, 2128.

Contending that the loss of the tape caused the reduction in the severance award, the church then brought this suit for damages against the liability insurer of the clerk of the district court. The lower court said:

“As this case was first perceived . it appeared that it would be necessary for [the church] to establish . . that the loss of the evidence was responsible for the loss of the litigation [reduction in severance damages] in the Court of Appeal. Counsel in briefs have focused on this concept. After much deliberation, it appears that such an approach would in effect require that this Court now rule upon the previous validity of [the original lower court award] or on the validity of the views of the Second Circuit Court of Appeal. Lest there be any confusion, it is necessary to make clear that this Court is of the view that it cannot and should not attempt to consider the merits of the previous litigation.
* * * * * *
“As this Court perceives the matter, the loss of the tape caused the loss of a legal right. That legal right was to have an appeal heard on all evidence presented . in the previous litigation .
“It is this Court’s view that a deprivation of a legal right which is protected by the constitution of the United States and the constitution of the State of Louisiana is a serious wrong even in those instances in which the loss is not truly susceptible of evaluation in pecuniary terms. Such losses are provided for in the Louisiana Civil Code under the terms of Article 1934.”

The lower court awarded the church $15,-000 damages and defendant appeals. The church contends on appeal that the lower court’s analysis was eminently correct and adopts that court’s analysis and reasons as its argument here, urging that the judgment awarding damages should be affirmed.

Even should we accept the premise that a litigant has the legal right to have the appellate court hear all of the evidence which was presented to the trial court, we must disagree with our brother below and we reverse the judgment awarding damages in tort.

The church emphasizes that it lost the opportunity of having this court hear and see the videotape and that no one can assess the weight the videotape might have had on this court had it not been missing. During the time the appeal was heard and was being considered, this court was aware that the videotape was missing from the record, even though this fact was not discussed in this court’s opinion. This court was also aware that judgments of the trial court are presumed to be correct and that items of evidence or transcripts missing from the record (whether through negligence or mere oversight) are presumed to support the judgment of the trial court. See Borie v. Lester & Co., 5 La.App. 536 (Orl.App.1927); Garig v. Truth Printing & Pub. Co., 123 La. 895, 49 So. 632 (1909).

Recognizing that an increase in noise is compensable as an item of severance damage to property in certain categories of special use, this court said:

“In arriving at the proper award for severance damages, this court takes into consideration the fact that defendant’s church was located on an undesirable lot adjacent to a much-traveled highway before these expropriation proceedings were instituted. The widening of the highway into a four-lane thoroughfare will merely render the church property more undesirable than it was prior to the expropriation.” 313 So.2d at 893.

This court had earlier noted the conclusions of the sound expert for the church who taped the traffic and its noise. This court mentioned that

“ . . . all estimates of severance damage by [the church’s] witnesses were partially based on the false premise that the highway department would hard surface the entire right-of-way for automobile traffic. The plat of survey attached to plaintiff’s petition reflects that only a part of the expropriated property will be utilized for widening the hard-surfaced or travel portion of the highway. According to defendant’s surveyor, the church building is presently located 61.9 feet from the pavement at the closest point and will be 47.4 feet from the paved portion if the construction is performed in accordance with the highway department’s plans and specifications. This witness gave the measurement from the outer edge of the expropriated property to the nearest portion of the church as 23.35 feet.” (Emphasis supplied) 313 So.2d at 892.

This court was also aware that the trial judge in the expropriation suit visited the site of the taking and had first-hand knowledge of the situation. Nonetheless, in the exercise of its appellate authority, this court reduced the award of severance damages as we have done in other cases before and since, even in those situations where a trial judge has personally sensed conditions which we have not.

The earlier opinion clearly shows that this court considered that the State had borne its burden of showing that the severance award made by the lower court was excessive. The tape and the testimony of the expert witnesses of the church were based on what we said was the false premise as to where the paved portion of the highway would be after the construction. The record in the expropriation suit is detailed as to decibel readings of traffic noise taken at various distances by the sound expert, some of which were taken in the presence of the trial judge, and is detailed as to the traffic count in front of the church at various times. These readings were taken on weekdays.

When asked whether he could project what the sound increase inside the church would be after the widening of the highway was completed in accordance with the highway contract specification, the sound expert said, “it would be strictly a guess . I would say 3 and 5 decibels . . . that would give you an estimate.”

Thus we have no difficulty in now concluding in the light of this record on appeal, which contains the record of the earlier case, that the tape would not have changed one iota this court’s opinion in the expropriation case. Five judges of this court denied a rehearing in the expropriation case and the Supreme Court denied writs. In this sense we conclude that the presumption afforded the church as to the weight of the missing tape — i. e., that it supported the lower court’s conclusions— was overcome by the State in that appeal by the detailed testimony summarized there and here. Hence this court, in determining that the presumption was overcome, is here assessing as it did there assess, at least figuratively, the weight of the missing tape, however impossible the assessment may be, as contended by appellee.

We agree that the church lost the opportunity of having higher courts review and assess the tape because of the fault of defendant’s insured. We agree that the church’s cause of action against defendant is distinct from its cause of action against the State for “just compensation” under Art. 1 § 4, Louisiana Constitution. But the church’s cause of action here is in tort under CC 2315,

“Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” “ . . . [Pjroof of damage [is] an essential part of the plaintiff’s case. Nominal damages, to vindicate a technical right, cannot be recovered in a negligence action, where no actual loss has occurred . . . [Tjhere is [no] right to complain of [negligent conduct] . except in the case of some individual whose interests have suffered.” Prosser, 4th Ed., at pp. 143-144.

Cited by Prosser in support of this principle is Elfer v. Hibernia Nat. Bank in New Orleans, 174 So. 287, (Orl.App.1937), which states:

“ . . . the fact that there is negligence does not in itself create legal liability . . [I]t must be shown that damage has been sustained and . that the negligence pointed to was the cause of the said damage.” 174 So. at 288.

Our Supreme Court stated the principle in Tinsley v. Seismic Explorations, Inc., 239 La. 23, 117 So.2d 897, 903 (1960):

“ . . . [T]he predicate for recovery under Article 2315 . . . is an act ‘ * * * that causes damage to another, * * * ’ which obliges the wrongdoer to repair the damage. If there has been no actual damage, there can be no recovery.” (Citations omitted)

Again in Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151, 155 (1971), our Supreme Court said:

“In Louisiana tort cases, the plaintiff must prove . . . both the negligence of the defendant and the damages caused by the latter’s fault . . . ”

In Louisiana Civil Law Treatise, Vol. 12, Tort Doctrine, (1977), at pp. 22, 23, Professor Stone reiterates, in his scholarly elaboration on the principle:

“The object of the law of tort as shown in article 2315 is reparation of damage caused by fault. Thus, if there be no damage, the law of tort has nothing to repair and plaintiff’s claim is to be dismissed.
$ % jH
“The burden of proving the damage is on the plaintiff. It is not presumed.”

We have not been reluctant to allow or affirm an award of damages even in those cases where the damage actually sustained is difficult to determine. See Adams v. State, Dept, of Highways, 357 So.2d 1239 (La.App. 2d Cir. 1978); Turner v. Southern Excavation, Inc., 322 So.2d 326 (La.App. 2d Cir. 1975); Campbell v. Gray, 294 So.2d 841 (La.App. 2d Cir. 1974). These cases involved a defendant’s invasion of a plaintiff’s possessory or property right. But even in cases of this type, “ . . . [Article 2315 requires the proof of some damage however slight.” Stone, Tort Doctrine, Louisiana Civil Law Treatise, Vol. 12, § 216, at p. 287.

Damages may be assessed in some breach of contract cases under CC 1934(3) without calculating “altogether” or solely upon the pecuniary loss or the deprivation of pecuniary gain. See Whitener v. Clark, 356 So.2d 1094 (La.App. 2d Cir. 1978). In Norman v. Radio Station KRMD, 187 So. 831, 833 (La.App. 2d Cir. 1939) we recognized that nominal damages may be awarded in breach of contract cases, even where no bad faith was shown. See also Fiesta Foods, Inc. v. Odgen, 159 So.2d 577 (La.App. 1st Cir. 1963). Likewise, in tort cases, “When it is clear that a plaintiff has sustained some damages as a result of the fault of the defendant ... his demands will not be rejected merely because he cannot establish exactly the amount suffered.” Hidalgo v. Dupuy, 122 So.2d 639, 646 (La.App. 1st Cir. 1960).

In a personal injury tort case we have said that CC 1934(3) does not “ . grant unlimited authority to a trial judge . to make an award without any reasonable basis in the record to support it.” Reggans v. Aetna Casualty & Surety Company, 308 So.2d 898, 903 (La.App. 2d Cir. 1974).

In C/M of Baton Rouge, Inc. v. Wood, 341 So.2d 1181 (La.App. 1st Cir. 1976), a litigant sued its former attorney for failing to appeal a judgment dismissing the litigant’s suit. The court reviewed the district court proceedings, found that the judgment dismissing the suit was correct, and held that the plaintiff was not damaged by the loss of the opportunity to appeal. The court also noted plaintiff’s contention that it had sustained “some inherent damage” by the loss of its right to appeal but found that plaintiff had not produced any proof of this element of damage and declined to award any damages. See also Perkins v. Brown, 236 So.2d 579, 581 (La.App. 1st Cir. 1970).

There is language in some cases such as Weinberg v. Southern Bell Telephone & Tel. Co., 174 So.2d 178, 180 (La.App. 4th Cir. 1965) to the effect:

“. . . [that where plaintiff’s] rights were invaded and violated . . . this would allow him to recover some damages without calculating altogether on the pecuniary loss or the privation of pecuniary gain, and in assessing the award much discretion is vested in the court. LSA-C.C. art. 1934, par. 3. When there is no proof of actual damages, the allowance should be for a nominal amount only.”

This language, however loose, must be considered in the light of the circumstances of each case where it was employed. The common thread of these cases, in our opinion, is a finding that either the neglect of or the invasion by the defendant directly caused the plaintiff to suffer some damage, for which recovery will be allowed even under 1934(3) without a showing of pecuniary loss or deprivation of pecuniary gain. This is cause in fact as contemplated by CC 2315.

Plaintiffs petition here is adequately summarized in the pre-trial order signed by plaintiffs counsel:

“Plaintiffs claim: * * * That the loss of the video tape was the direct cause of the reduction in the [severance] award by the Court of Appeal.”

This is an item of specific or special damage, a pecuniary loss, the amount of which is alleged to be the exact amount by which this court reduced the award in the expropriation appeal.

We have held that plaintiff has failed to prove that the loss of the tape caused the specific damage alleged. Additionally, this plaintiff has not proved that some damage was caused in fact by the negligent loss of the tape. Fault alone does not produce recovery. It is the fault which causes some damage that produces recovery or reparation for the damage under CC 2315. When this cause in fact element is not proved, even though the negligence or fault is proved, recovery of damages is not allowed.

Judgment below is reversed and the demands of plaintiff-appellee are rejected at its cost.

      . For instance, in the more recent expropriation cases involving property in proximity to the church on this same highway in Jonesboro-Hodge before the same district judge, we have reduced severance damage awards by these percentages:
      76%STATE, DEPARTMENT OF HIGHWAYS v. KILPATRICK 327 So.2d 452 (La.App.2d Cir. 1976)
      83% STATE, DEPARTMENT OF HIGHWAYS v. MCDONALD 329 So.2d 898 (La.App.2d Cir. 1976)
      77% STATE, DEPARTMENT OF HIGHWAYS v. WARNER 329 So.2d 913 (La.App.2d Cir. 1976) 77%
      85% STATE, DEPARTMENT OF HIGHWAYS v. SALTER 332 So.2d 308 (La.App.2d Cir. 1976) 85%


author: HALL, Judge.

text:
    DELTIC FARM AND TIMBER CO., INC., et al. v. BOARD OF COMMISSIONERS FOR the FIFTH LOUISIANA LEVEE DISTRICT. ANDERSON-TULLY COMPANY v. BOARD OF COMMISSIONERS FOR the FIFTH LOUISIANA LEVEE DISTRICT.
    Nos. 13785, 13786.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 20, 1979.
    En Banc. Rehearing Denied March 28, 1979.

      Voelker, Ragland, Brackin & Crigler by Frank Voelker, Jr., Lake Providence, for plaintiffs-appellees.
    C. Calvin Adams, Jr., Tallulah, and Jerry B. Daye, Ferriday, for defendant-appellant.
    Before PRICE, HALL and JONES, JJ.
   HALL, Judge.

The defendant, Board of Commissioners of the Fifth Levee District, appeals from a judgment awarding plaintiffs, Deltic Farm and Timber, Inc. et al. and Anderson-Tully Company, full value compensation for land taken by the Levee Board for levee construction, maintenance or repair along the right descending bank of the Mississippi River in Madison Parish.

The land was appropriated by the Levee Board in 1970 in connection with Cabin Teele Louisiana Riverside Enlargement and Berms project. In 1972, the plaintiffs filed suit alleging the property was not subject to appropriation and seeking recovery of damages based on the full value of the land taken. Alternatively, plaintiffs sought to recover the assessed value of the land. Tenders of the assessed value of the land were refused. The case was tried on documentary evidence and stipulated facts. It was stipulated that the issues were to be decided under the 1921 Constitution and statutes applicable at the time of the taking. The amount of plaintiff’s damages based on actual value ($63,300 to Deltic, et al. and $25,212 to Anderson-Tully) were stipulated. The trial court held that the property was not subject to the levee servitude, was not subject to appropriation, and that damages based on full value were due. Judgment was rendered in favor of plaintiffs for the stipulated amounts.

The legal issue in this case is whether the property of plaintiffs which the Levee Board appoprriated for levee construction and maintenance purposes is subject to the levee servitude provided by Civil Code Article 665 and therefore subject to appropriation by the Levee Board, in which case the Levee Board would owe the landowners only the assessed value of the property under Article 16, § 6 of the Louisiana Constitution of 1921.

The Levee Board contends that the property is subject to the servitude because it is presently riparian, that is, it fronts on the Mississippi River. The landowners contend the property is not subject to the servitude because it was not riparian at the time the property was severed from the public domain and because the existence of the servitude depends on the riparian nature of the property at the time of severance.

The facts are that the property appropriated lies in sections which did not front on the river at the time of severance. These sections were patented to parties other than the parties to whom the sections fronting on the river were patented. Over the years the river has changed course, eroding away the sections which originally fronted on the river so that the river now abuts parts of plaintiffs’ property located in the back sections.

The plaintiffs rely primarily on a line of cases beginning with Delaune v. Board of Commissioners, 230 La. 117, 87 So.2d 749 (1956), which cases, the plaintiffs contend, hold that property is subject to the levee servitude only if the property was riparian at the time the property was severed from the public domain. Cases following De-laune are Board of Commissioners for Pontchartrain Levee District v. Baron, 236 La. 846, 109 So.2d 441 (1959); A. K. Roy, Inc. v. Board of Commissioners, 237 La. 541, 111 So.2d 765 (1959); Jeanerette Lumber and Shingle Co. v. Board of Comm’rs, 249 La. 508, 187 So.2d 715 (1966); Thomas v. Board of Com’rs for Pontchartrain L. Dist., 208 So.2d 163 (La.App.4th Cir. 1968); Hathorn v. Board of Commissioners, 218 So.2d 335 (La.App.3rd Cir. 1969) writ ref. 253 La. 881, 220 So.2d 461 (1969); Grayson v. Commissioners of Bossier Levee District, 229 So.2d 139 (La.App.2d Cir. 1969); and Taylor v. Board of Levee Com’rs of Tensas Basin L. D., 332 So.2d 495 (La.App.3rd Cir. 1976).

The Levee Board contends that the servitude exists on all property that is presently riparian regardless of whether the property was riparian at the time of severance. It relies on the earlier cases of Wolfe v. Hurley, 46 F.2d 515 (W.D.La.1930) aff'd. per curiam, 283 U.S. 801, 51 S.Ct. 493, 75 L.Ed. 1423 (1931) and Board of Com’rs of Tensas Basin Levee Dist. v. Franklin, 219 La. 859, 54 So.2d 125 (1951) appeal dismissed 342 U.S. 844, 72 S.Ct. 80, 96 L.Ed. 638 (1951) and some of the more recent cases cited by plaintiffs. The Levee Board distinguishes the cited cases, pointing out that in none of those cases was the property taken presently riparian. The Levee Board argues that those cases stand only for the proposition that where the property taken is not presently riparian it nevertheless can be subject to the servitude if it was riparian at the time of severance.

Riparian property (property adjacent to a navigable stream) subject to the levee servitude (an ancient servitude codified in Civil Code Article 665), may be appropriated (as distinguished from expropriated) for levee purposes. Article 16, Section 6 of the 1921 Constitution provided for payment for lands used or destroyed for levee purposes at a price not to exceed the assessed value. Use of property subject to the levee servitude for levee purposes is not a taking of private property for which compensation is due under either the Louisiana or Federal Constitutions, the compensation provided by Article 16, Section 6 being a mere gratuity. The rationale of decisions upholding the constitutionality of appropriation for levee purposes is that the levee servitude was reserved to the public at the time riparian property was severed from the public domain and that title to such riparian property is held subject to the servitude. Eldridge v. Trezevant, 160 U.S. 452, 16 S.Ct. 345, 40 L.Ed. 490 (1896) is the leading United States Supreme Court decision on the subject. Dickson v. Board of Com’rs of Caddo Levee Dist., 210 La. 121, 26 So.2d 474 (1946) contains an excellent discussion of the history of the levee servitude, as does Hebert v. T. L. James & Co., 224 La. 498, 70 So.2d 102 (1953). An authoritative discussion appears in 40 Tul.L.Rev. 233.

Dickson held:

. No grants of lands were ever given without a specific reservation being made therein for the common use of the public of all rights to the shores of rivers and bayous upon which they might front. 26 So.2d p. 478
Despite the repeated contention in numerous litigations that Article 665, imposing this servitude on riparian lands, controverts the constitutional guarantee in both the state and federal Constitutions that no one can be deprived of his inalienable rights of property without due process of law, it has been consistently held by this court and by the Supreme Court of the United States that such constitutional requirements relate to the right of expropriation and do not have the effect of abrogating our law giving the state authority to appropriate land upon which rights for the construction of levees, roads, and other such public works have always been reserved. 26 So.2d p. 479
And however unfair it may seem to the owners of this type of land they are without right to complain because their acquisition of such land was subject by law to this ancient servitude and the private mischief must be endured rather than the public inconvenience or calamity. 26 So.2d p. 479

Following Wolfe and Franklin which seemed to recognize the levee servitude as affecting non-riparian property, the Louisiana Supreme Court reverted to a more restrictive view, effectively overruling Wolfe and Franklin in a series of decisions beginning with Delaune. Delaune enunciated a two-prong criteria for determining whether property is subject to the levee servitude:

(1) The property must have been riparian when severed from the public domain; and
(2) The property taken must be within the range of the reasonable necessities of the situation as produced by the forces of nature unaided by artificial causes.

These criteria have been repeated and applied in Baron, Roy, Jeanerette, Thomas, Hathorn, Grayson and Taylor.

Delaune also held:

This servitude, as explained in Dickson v. Board of Com’rs, comes into existence at the time the property bordering on the navigable stream is separated from the public domain. Accordingly, in order to ascertain whether a particular property appropriated for levee purposes is subject to a servitude, it is essential to trace title to the original grant when the land itself does not actually front on the stream. 87 So.2d p. 754 (emphasis supplied)

The Levee Board seizes upon and stresses the underlined language found in the Da-laune opinion and some of the subsequent cases which indicates it is only necessary to determine if property was riparian at time of severance where the property is not presently riparian. It is correctly pointed out that in none of the cited cases did the land abut the navigable stream at the time of taking, as does the land in the instant case. Defendant points out that for flood control purposes, it is important that the servitude exist and be exercised along the present course of the river as it changes and shifts and argues that other servitudes, such as the use of banks and for roads, and ownership rights, shift with the shifting course of a river.

Our view is that to impose the levee servitude and appropriation without compensation on property that was not riparian and subject to the levee servitude at time of severance would constitute the taking of private property without due compensation in violation of both the Louisiana and Federal Constitutions. We find nothing in the history of the servitude, as disclosed by the cited cases and articles, which indicates the servitude was reserved beyond the limits of riparian concessions. Delaune specifically recognizes that a state statutory or constitutional provision “does not and could not for obvious constitutional reasons, burden land already separated from the public domain with a servitude.”

The language in the cited decisions on which the Levee Board relies does not mean, as the Levee Board contends, that the levee servitude exists not only on lands riparian at the time of severance but also exists on lands riparian at the time of taking. That was essentially the holdings of Wolfe and Franklin which have been effectively overruled. What we understand the court to have meant in those cases, in which it was dealing with land not riparian at the time of taking, was that even though the land did not presently front on a navigable stream, it would nevertheless be subject to the levee servitude if it was riparian at time of severance.

The importance to the public safety and welfare of the levee system and of changes in the levee system as the course of the river changes cannot be denied or underestimated. However, taking of private property without due compensation cannot be constitutionally justified under the police power of the state alone. Eldridge v. Trezevant so held.

We hold, as did the trial court, that property which was not riparian at the time of severance is not encumbered by the Article 665 levee servitude and is not subject to appropriation for levee purposes, even though it may be riparian at the time of taking due to changes in the course of the navigable stream due to natural causes.

The property involved in this case was not riparian at the time of its severance from the public domain. It is not subject to the levee servitude and appropriation. Plaintiffs are entitled to full compensation for its damages caused by the Levee Board’s use of their property. The judgment of the district court awarding such damages is correct and is affirmed, at appellant’s costs.

Affirmed.


author: JONES, Judge.

text:
    John E. HARRISON, Plaintiff-Appellee, v. MOREHOUSE PARISH SCHOOL BOARD, Defendant-Appellant.
    No. 13794.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 20, 1979.

      Crawford A. Rose, Jr., Rayville, for plaintiff-appellee.
    Rankin, Yeldell, Herring & Katz by Stephen J. Katz, Bastrop, for defendant-appellant.
    Before PRICE, MARVIN and JONES, JJ.
   JONES, Judge.

Appellant, Morehouse Parish School Board, suspensively appeals a judgment requiring it to provide free school bus transportation to and from the residence and school for Tanya Harrison, age 6, daughter of appellee, John Harrison. We reverse the judgment of the trial court.

The distance from appellee’s home to Pine Grove School which Tanya attends is 17 miles. Appellee’s residence is on a rural road a distance of .2 of a mile from the main bus route. ■ The state statute pertaining to bus transportation for school children is LSA-RS. 17:158 which states:

“Each parish and city school board shall provide transportation for any student attending a school of suitable grade approved by the State Board of Elementary and Secondary Education if the student resides more than one mile from such school . . . ”

LSA-R.S. 17:81 provides:

“Each school board is authorized to make such rules and regulations for its own government, not inconsistent with law or with the regulations of the State Board of Elementary and Secondary Education, as it may deem proper.”

Prior to August 1976 the Morehouse Parish School Board policy provided to all school children living in rural areas school bus transportation to and from their residences and school. In August of 1976, the Morehouse Parish School Board decided the policy of picking up all school children in front of their residences was too expensive and passed a resolution creating three buss-ing classifications for school children in rural areas: (1) school busses would continue to transport students living .5 of a mile or more from a main bus route to and from their residences and school; (2) school children living less than .5 of a mile from a main bus route were required to walk to a central meeting place on the main bus route where a school bus would pick them up and drop them off; and (3) the resolution contained a grandfather clause excepting from its provision those children residing less then .5 of a mile from a main bus route who had been picked up in front of their residences the previous school year (these children would continue to be picked up in front of their residences). This service to residences of children living less than .5 of a mile from a main bus route would be permanently discontinued when no children were picked up along such route for one school year.

The school bus driver, pursuant to the new policy, refused to pick up Tanya at her doorsteps (which was .2 of a mile from the main bus route) and required appellee’s child to meet the school bus at the main bus route. Appellee contends the Morehouse Parish School Board is arbitrarily discriminating against his school child in violation of the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution and Article 1, § 3 of the Louisiana Constitution of 1974 by refusing to pick up his school child in front of his residence while picking up other school children living less than .5 of a mile from a main bus route in front of their residences when such bus service was provided them during the previous school year. Morehouse Parish School Board contends it is not discriminating against appellee’s school child because no child similarly situated to appellee’s child is being treated differently.

In its first reasons for judgment, the trial court held the school board policy of continuing residence to school transportation for school children living less than .5 of a mile from the main bus route but denying residence to school transportation to children similarly situated solely because of an arbitrary change of policy cut off date violated the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. The court cited Dukes v. City of New Orleans, 501 F.2d 706 (5th Cir. 1974), wherein a New Orleans ordinance prohibiting street food vendors from doing business in the French Quarter was invalidated for denial of Equal Protection because of a grandfather clause excepting from its prohibition those who had been in business for 8 years. Upon learning City of New Orleans v. Dukes, supra, was reversed by the Supreme Court, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511, the court granted a new trial for argument only. In its written reasons for judgment on the new trial hearing the court held the school board’s policy treated plaintiff’s child differently from other children similarly situated by distance, and for this reason was a denial of constitutional guarantees of Equal Protection. The court distinguished Dukes v. City of New Orleans, supra, because it approved discriminatory classification in a local economic regulation, whereas this bus case involved a public service.

In the case of Dukes, supra, the Court stated:

“Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest. States are accorded wide latitude in the regulation of their local economies under their police powers, and rational distinctions may be made with substantially less than mathematical exactitude.” at 303, 96 S.Ct. at 2516.

In the case of State v. Bradley, 360 So.2d 858 (La.1978) the court stated:

“Neither the Equal Protection Clause of the Fourteenth Amendment nor Art. 1, § 3 of the Louisiana Constitution of 1974 prevents the State in all cases from according different treatment to different classes. It is only when those classifications are not justified by valid State interests that a denial of equal protection may be found.” at 861

The bussing regulation does not involve a suspect classification such as race or religion. It does not “trammel fundamental personal rights”. The right in question is the right of a school child to free school bus transportation. In San Antonio Independent School Dist. v. Rodriquez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973), the Supreme Court held education is not a fundamental right. It follows the right to free school bus transportation does not involve a fundamental right.

No suspect classification or fundamental right being involved, the issue presented is whether the classification created by the school board is rationally related to a legitimate state interest.

The trial court found the state interest asserted by the school board was “to operate and maintain its school bus system in an economical manner by preventing the creation of new bus routes of distances of less than .5 of a mile”. In Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491, the court held allocation of limited public funds to preserve fiscal integrity is a valid state objective. The challenged classification is the grandfather clause provision continuing school bus transportation between residence and school for those children who reside on rural roads less than .5 of a mile from a main bus route if the road was traveled by school busses during the previous year while denying this public service to children similarly situated if such service was not provided during the previous school year. The school board in its discretion could reasonably decide that limited public funds available for school bus transportation precluded creation of new bus routes from the residences of children living less then .5 of a mile from a main bus route while funds remained adequate to continue preexisting routes of lengths less than .5 of a mile until such time as they could be phased out when no school child lived upon them requiring the service.

In support of its judgment in favor of plaintiff the trial court stated the More-house Parish School Board could not rely on Dukes which involved local economic regulation of business, whereas the instant case involved a service rendered to the public. In Dandridge a state limited welfare benefits to a maximum amount per family regardless of the number of dependents in the family unit. The state statute was attacked as an invidious discrimination against families with large numbers of dependents providing them with less benefits per child than families with fewer children. The court recognized the difference between state regulation of business and industry and state administration of public welfare assistance, but maintained the level of scrutiny of social legislation not involving a suspect class or a fundamental right was the same as for economic legislation:

“In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some ‘reasonable basis’, it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.’ Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369. ‘The problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific.’ Metropolis Theatre Co. v. City of Chicago, 228 U.S 61, 69-70, 33 S.Ct. 441, 443, 57 L.Ed. 730. ‘A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.’ McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393.”

In New Orleans v. Dukes, supra, a city ordinance prohibited vendors from selling food from push carts excepting those vendors who had been in continuous operation for 8 years or more from the prohibition. The court found no violation of the Equal Protection Clause and stated the city council could rationally decide to eliminate street peddlers, a class it concluded detracted from the charm and therefore, the economic vitality of the French Quarter, step by step by eliminating the more recent street vendors first. The city council could conclude the older vendors had built up a more substantial reliance on operating in the Quarter.

Similarly, Morehouse Parish School Board could reasonably decide, in view of limited funds available for bus transportation, the cost of providing new bus transportation to school children whose residences were closer than .5 of a mile to a main bus route was prohibitive and that these children should walk to a central meeting place less than .5 of a mile from their residences to be picked up. This is a permissive state objective to which the classification is rationally related. The school board could conclude these children had not built up a reliance upon being picked up at their doorsteps. Decisions regarding who should be members of a class do not have to be drawn with mathematical exactitude and are best left to the state and its agencies when no suspect class or fundamental right is involved. New Orleans v. Dukes, supra, Williamson v. Lee Optical, 348 U.S. 483, 75 S.Ct. 461, 99 L.Ed. 563.

For the reasons assigned, we find the policy of the Morehouse Parish School Board denying bus service to new routes less than .5 of a mile from main bus routes valid and reverse the judgment ordering it to provide school bus service to the daughter of John Harrison from his residence .2 of a mile from the main school bus route to and from the school.

Let there be judgment herein rejecting plaintiff’s demands, dismissing his suit and casting him for all costs in this matter.


author: FORET, Judge.

text:
    James HODGES, Plaintiff-Appellant, v. LASALLE PARISH POLICE JURY, Defendant-Appellee.
    No. 6782.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1979.

      William Henry Sanders, Jena, for plaintiff-appellant.
    Long & Peters, Jimmie C. Peters, Jena, for defendant-appellee.
    Before CULPEPPER, FORET and DOU-CET, JJ.
   FORET, Judge.

This is an appeal from a judgment sustaining the defendant’s peremptory exception of no cause of action, dismissing the plaintiff’s suit for damages resulting from defendant’s expropriation of certain property. Appellant asserts that the lower court erred in sustaining the exception without affording him an opportunity to amend his petition.

This is a suit against LaSalle Parish Police Jury for damages “caused by violation of due process of law” (pl.’s. pet., Tr., pg. 2) due to expropriation by the Police Jury of certain property which the plaintiff “has enjoyed the use of and has the possession of . ” (pl.’s pet., Tr., pg. 2). The Police Jury filed a peremptory exception of no cause of action which, as noted above, the trial court sustained, dismissing plaintiff’s suit with prejudice.

The purpose of the exception of no cause of action is to raise the question of whether any remedy is afforded by law for the grievance alleged (all allegations contained in plaintiff’s petition accepted as true). Guillory v. Nicklos Oil & Gas Co., 315 So.2d 878 (La.App. 3 Cir. 1975) and cases cited therein. While the trial court did not favor us with written reasons for judgment, by sustaining the exception it necessarily determined from the pleadings that plaintiff’s allegations were insufficient, apparently due to the failure of the plaintiff to allege what legal interest he had in the land expropriated. Defendant argues in brief to this Court that, as plaintiff did not allege ownership of the subject property but merely stated that he had the “use” and “possession” of the property, this was insufficient to allow a cause of action.

While these are indeed vague terms, we note that the rules of construction under Louisiana jurisprudence in making out a cause of action are liberal (see Code of Civil Procedure Article 854). Pleadings should be liberally construed so that the pleader will have his day in court. Cox v. W. M. Heroman, Inc., 298 So.2d 848 (La.1974); Glass v. Vista Shores Club, 221 So.2d 304 (La.App. 4 Cir. 1969). Technical objections and harsh rules are not favored. Innovative Data Systems of La., Inc. v. Ellender, 316 So.2d 12 (La.App. 1 Cir. 1975); Buckley v. Nat Harrison & Associates, 245 So.2d 522 (La.App. 3 Cir. 1971).

Despite these liberal aphorisms in our present procedural law, we must agree with the trial court that the vague terms by which the plaintiff describes his interest in the expropriated property are insufficient to state a cause of action for which the law provides a remedy. To be entitled to damages, a person dispossessed by the government need not be the owner of the land; however, he must have a compensable legal status running with the land.

For example, a lessee is imbued with sufficient status under Louisiana law to require compensation for expropriation of the leased property. La.Constitution, 1974, Art. 1, Sec. 4; State, Dept. of Highways v. Holmes, 253 La. 1099, 221 So.2d 811 (1969); State, Dept. of Highways v. Illinois Central Railroad Co., 256 So.2d 819 (La.App. 2 Cir. 1972), writ refused.

The Fourteenth Amendment to the United States Constitution also requires compensation for any expropriation to anyone whose property has been taken, such as a tenant, for the value of his improvements. U. S. v. Seagren, 60 App.D.C. 183, 50 F.2d 333 (1931). In the present case, however, plaintiff has failed to allege any such or similar interest in the property in question: his “use” and “possession” allegations are vague legal conclusions and are legally insufficient to state a cause of action.

While we uphold the ruling of the trial court on the exception itself, we find that it erred in refusing to allow plaintiff an opportunity to amend his pleadings so as to state a cause of action. When the ground of exception can be removed by amendment, the trial court must allow petitioner the opportunity to amend. Code of Civil Procedure, Article 934; Succession of Guidry v. Bank of Terrebonne & Trust Co., 193 So.2d 543 (La.App. 1 Cir. 1966); Aetna Finance Company v. Antoine, 343 So.2d 1195 (La.App. 4 Cir. 1977); Sick v. Bendix-United Geophysical Corp., 341 So.2d 1308 (La.App. 1 Cir. 1976).

Plaintiff may be able, by amending his pleadings, to allege a cause of action in regards to this land, including ownership of it, or, as noted above, some other type of compensable legal status. The command of Code of Civil Procedure Article 934 is mandatory: the “Court “. . . shall order such amendment . . . ” and while the plaintiff has not informed us of any specific amendment which he can make which would remove the grounds of the exception, he should be given an opportunity to do so.

We affirm the decision of the trial court sustaining the exception of no cause of action, and remand to allow the plaintiff fifteen (15) days from the date of receipt hereof (unless the trial court, for good cause, grants an extension of said period) to amend his petition to sufficiently state a cause of action.

Costs in the trial court must await final determination of the case. Costs of appeal are assessed against the LaSalle Parish Police Jury, insofar as that body is liable for court costs.

REVERSED AND REMANDED.