author: TATE, Justice. SUMMERS, Justice (dissenting).

text:
    Richard P. GUIDRY, Plaintiff-Appellant-Respondent, v. Charles William ROBERTS et al., Defendants-Appellees-Relators.
    No. 58044.
    Supreme Court of Louisiana.
    June 10, 1976.
    Rehearing Denied June 30, 1976.

      David W. Robinson, Trial Atty., Watson, Blanche, Wilson & Posner, Baton Rouge, for plaintiff-respondent.
    William J. Guste, Jr., Atty. Gen., Kendall L. Vick, Kenneth C. Dejean, Asst. Attys. Gen., Donald Ensenat, Dept, of Justice, New Orleans, for defendants-applicants.
   TATE, Justice.

The plaintiff sues for declarative and injunctive relief holding unconstitutional the Louisiana Election Campaign Finance Disclosure Act, La.R.S. 18:1481-93 (Act 718 of 1975). Made defendant are certain legislatively designated officials who receive and process financial reports required by the enactment.

The trial court dismissed his suit but, upon his appeal, the intermediate court held the act unconstitutional. 331 So.2d 44 (La.App. 1 Cir., April 12, 1976). We granted certiorari, 332 So.2d 284 (La. May 27, 1976), under our practice of granting review if the court of appeal renders a judgment declaring a statute unconstitutional (which, if rendered by a trial court, is reviewable by a direct appeal to this court). See Bradford v. Department of Hospitals, 255 La. 888, 233 So.2d 553 (1970).

Principal Issues

The court of appeal held that the reporting officials and supervisory committees designated by the statute were exercising powers entrusted to the executive branch, but they were appointed by the legislature not the governor. Accordingly, these committees and officials were held invalid as entrusted with duties in violation of the separation of powers provision of our state constitution, La.Const. of 1974, Art. 2, Section 2, and as appointed by the legislature contrary to a constitutional provision entrusting the governor with the appointment of the officials in the executive branch, Article 4, Sections 1(A) and 5(H)(1). Some of the powers entrusted to the supervisory committees were also held to violate the constitutional authority of the district attorneys of the state. Article 5, Section 26(B).

Finding that the act could not function without valid supervisory committees and reporting officials, the court of appeal declared the entire act unconstitutional as non-severable.

The principal issues posed to us are:

1. Does the plaintiff, who principally alleges himself to be a contributor to political campaigns, have standing to attack the composition of the supervisory committees or the designation of the reporting officials, who principally receive and monitor reports from candidates? (The contributors are not required to report contributions, as will be seen, nor limited in the amount of legal contributions they may make, although the candidate must identify contributions over certain amounts.)

2. If so, is the legislative selection of the reporting officials and supervisory committees invalid as a legislative invasion of an executive power, and are the functions vested in them an improper allocation of executive functions to legislatively-selected officials ?

3. If all or any part of the legislative designation of personnel or of the legislative allocation of function is unconstitutional, are the invalidated portions of the act severable from the other portions, such as those requiring reports of political contributions; so as to permit upholding these other portions, if they are constitutional ?

4. If so, are these other portions an unconstitutional invasion of individual rights and liberties of expression, privacy, assembly, free election, property, etc., protected by our state constitution?

I. The Election Campaign Finance Disclosure Act

In general, the attacked statute requires the reporting of information regarding contributions and expenditures involved in campaigns for elective state and local public office, decries certain activities as illegal campaign practices, condemns violation of the act to be a misdemeanor, and establishes the machinery and procedure for administration and enforcement of the provisions of the act.

Essentially, this act is divided substantively into two parts: one pertaining to reporting and public disclosure of campaign contributions and expenditures; and the other setting forth certain campaign practices which are declared illegal and prohibited. The court of appeal did not reach the issue of the validity of these substantive regulations, because of its holding that they were nonseparable from the administrative and enforcement provisions which it invalidated.

Disclosure Provisions:

Candidates, La.R.S. 18:1482(1), and political committees formed to support or oppose any candidate or political party at an election, La.R.S. 18:1482(2), must file with designated reporting officials certain reports which principally include the total amount of all contributions and expenditures, but which also list the name and address of those contributors who give in excess of certain amounts. 1486. The reporting amounts are $1,000 for any statewide office, $500 for any district office, and $250 for all other offices. 1482(11). Anyone else who makes an expenditure or receives a contribution in excess of five hundred dollars, other than to or from a candidate or political committee, shall also file a similar report. 1486 G.

The reporting officials are: the secretary of the Senate, with respect to senatorial candidates; the clerk of the House of Representatives, with respect to candidates for the house; and the legislative auditor, with respect to all other candidates. 1482(12). These reporting officials are required to make all such reports received available for public inspection immediately upon receipt of them. 1486 H.

Prohibited Campaign Practices:

Section 1488 prohibits certain campaign practices. These include:

No person shall give any financial or material support to or in support of a candidate or political committee in the name of another. No person shall solicit or accept from, and no candidate or committee shall pay to, another any thing of value for the purpose of endorsement, support or opposition to a candidate.

No corporate contributions may be made except by check and when authorized by the board of directors.

No candidate or committee, or anyone acting on their behalf, shall pay for the privilege of the candidate or his representative appearing at a charitable or civic meeting or any festival or fair.

No candidate, political committee, or person required to make a report shall make any expenditure from an anonymous contribution. (Anonymous contributions, if received, are required to be paid over to non-political charitable, civic, etc. activities.)

Additionally, under Section 1489 “[n]o candidate political committee, or other person shall give or accept a contribution in return for a promise” of “a position of public employment or any appointive governmental office.” (The violation of Section 1489 is declared to be a misdemeanor punishable by fine not in excess of $500.)

Criminal Sanctions:

In addition to the criminal misdemeanor-fine sanction provided by Section 1489, Section 1491 provides a similar sanction for other violations of the statute, as follows:

“ * * * any candidate; any campaign treasurer or deputy treasurer of any candidate; any chairman, vice chairman, campaign treasurer or deputy treasurer of any political committee; or any person, who is subject to the provisions of this Part, who knowingly and willfully:

(1) accepts or makes a contribution prohibited by this Part;

(2) fails to file the reports required by this Part;

(3) fails to report any contribution or expenditure required to be reported by this Part;

(4) files a false report under the provisions of this Part;

(5) makes an expenditure prohibited by this Part or in any manner prohibited by this Part;

(6) makes or accepts a contribution or solicits or receives funds or anything of value in violation of R.S. 18:1488 or otherwise knowingly and willfully violates the. provisions of R.S. 18:1488, except that no person shall be found in violátion of this Part for accepting a contribution made in violation of Subsection C [pertaining to corporate contributions] of R.S. 18:1488, rather only the person making such contribution shall be found in violation thereof ; or

(7) otherwise violates the provisions of this Part,

shall be guilty of a misdemeanor and shall be fined not in excess of five hundred dollars, and if found guilty of knowing and willful failure to report funds received and deposited or otherwise accepted in writing or expended as provided herein may further be fined an amount not in excess of one and one-half times the amount not properly reported.”

Machinery for Processing of Campaign Finance Reports after Receipt and for Enforcement of Statute:

As earlier noted, the campaign finance reports of all candidates for elective office are required to be filed either with the secretary of the Senate (senatorial candidates), the clerk of the House (candidates for the house), or the legislative auditor (all other candidates), by whom they are to be made available for public inspection.

Section 1492 (“Enforcement”) provides for the further processing of these reports after they are filed. The court of appeal held that the powers conferred by this section constituted an attempt to vest functions of the executive branch in legislatively-selected officers. Because of this, and because it also held that even the designation of the reporting officials to receive the reports constituted legislative usurpation of administrative powers properly exercised by the executive branch, our intermediate brethren held the act unconstitutional.

We will discuss Section 1492 in more detail in III below. For the time being, it is sufficient to note that the enactment creates three supervisory committees composed of legislatively-selected officers.

In general, these committees serve not only the function of receiving and preserving the reports, and making them a matter of public record. They are also charged with the primary responsibility of initiating investigations into complaints of non-compliance with the provisions of the statute.

Once the applicable supervisory committee has made a determination that a violation has occurred it may then refer the matter to the attorney general who, in turn, may refer it to the district attorney having jurisdiction of the offense. Criminal actions shall be instituted by the district attorney only on the basis of information forwarded to him by a supervisory committee through the attorney general.

We now turn to discussion of the principal issues:

“Standing?” (Part II);
“Reporting, public disclosure, and enforcement machinery a violation of separations of powers?” (Part III);
“Severability of enforcement provisions” (Part IV); and
“Constitutionality of other provisions of the act” (Part V).

II. Does the Plaintiff have Standing to Attack the Enforcement Provisions?

The court of appeal declared the statute unconstitutional because it found the enforcement provisions constitutionally defective. The defendants contend that the plaintiff, who sues primarily on the basis of his past and intended future interest in contributing to political campaigns, has no standing or interest to attack the composition of the supervisory committees created by these enforcement provisions.

The duties of these committees include the receipt of sworn complaints by any person who believes any provision of the act has been violated. Section 1492 B. The criminal sanctions of the act apply not only to candidates, but also to persons who make contributions, 1491(1), (6) (quoted above in full), in violation of the act. Contributions may not be lawfully made, for instance, (a) indirectly or in the name of another, 1488 A, or (b) in payment for an endorsement of a candidacy, 1488 B, or (c) in exchange for the promise of public employment or governmental appointment, Article 1489.

As enacted, the act provides that complaints of these and other violations shall be investigated by the supervisory committees and, if found meritorious, referred to prosecuting officers for criminal prosecution. 1492 B. In fact, criminal sanctions by terms of the enactment may be sought by prosecuting officers only on the basis of information furnished by these supervisory committees. 1492 B. As a substantial political contributor, the plaintiff may be subject to prosecution if he violates the statute’s provisions.

Under these facts, the plaintiff has standing to contest the enforcement machinery :

As the United States Supreme Court held, in rejecting a quite similar attack on the standing of the plaintiffs to contest the constitutionality of the Federal Election Campaign Act, 2 U.S.C. 431 et seq. (1971): “Party litigants with sufficient concrete interests at stake may have standing to raise constitutional questions of separation of powers with respect to an agency designated to adjudicate their rights.” Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 681, 46 L.E.2d 659 (1976). The plaintiff, as an active contributor to political campaigns, has shown that he has a sufficient concrete personal interest adverse to the defendants as to present to us a justiciable controversy admitting specific relief through a declaratory or in-junctive decree of a conclusive character, as distinguished from an advisory opinion as to what the law might be upon a merely hypothetical statement of facts. Hainkel v. Henry, 313 So.2d 577 (La.1975); Louisiana Independent Auto Dealers Ass’n v. State, 295 So.2d 796 (La.1974).

III. Separation of Powers: Reporting, Public Disclosure, and Enforcement Machinery

By our state constitution, the powers of our state government are divided into three separate branches: legislative, executive, and judicial. Article II, Section 1. Our constitution further provides: “ * * * no one of these branches, nor any person holding office in one of them, shall exercise power belonging to either of the others.” Article II, Section 2.

The intermediate court held that the statutory administrative powers entrusted to the reporting officials and supervisory committees constituted a delegation of the power to execute the laws. This could not, in that court’s view, be entrused to a legislatively appointed instrumentality without violating the executive function of the governor to “see that the laws are faithfully executed,” Article 4, Section 5(A), through officers or agencies of the executive branch, Article 4, Section 1(A), or officials appointed by him, Article 4, Section 5(H).

At the outset, it is clear that the reporting officials (the secretary of the Senate, the clerk of the House, and the legislative auditor, 1482(12)) and the members of the supervisory committees (these officials and the executive director of the Legislative Council, 1492A) designated by the statute are all selected by the legislative branch. The query, however, is whether the functions and powers entrusted to them violate any power exclusively vested in the executive branch, especially the duty of the governor to “see that the laws are faithfully executed.” Article 4, Section 5(A).

We have already referred to the duties of the reporting officials to receive filings of campaign-finance reports, make them public, and refer them to the appropriate supervisory committee. 1486; 1492B(1). The principal duties of the supervisory committees are set forth in Section 1492B (1) , set forth in footnote below. Preter-mitting the regulation of criminal actions provided by the last paragraph of this subsection (italicized in the footnote) — which we shall discuss later — , these duties of a committee include:

1. To review the campaign-finance reports for their compliance with the statute;

2. To receive complaints from any person who believes the statute has been violated, and to investigate same;

3. To forward information concerning alleged violations of the act, obtained either through its review of the reports or its investigation of complaints, filed with it, to the attorney general for further investigation, if the committee determines a knowing and willful violation of the statute is indicated (except that if the violation relates to a campaign for the office of attorney general, then the committee will forward it to the district attorney for the parish of the indicated violation).

Clearly, the power of the reporting officials and committees to receive campaign-finance reports for public access to them performs no function and usurps no power exclusive to the executive branch. Not so unambiguously perhaps, the reviewing of the reports for compliance with the act, and the investigation of complaints of violations of it, do not invade any exclusive executive prerogative “to see that the laws are faithfully executed,” Article 4, Section 5(A), any more than do, for instance, legislative investigations or audits of the fiscal records of the state, Article 3, Section 11.

In Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L.Ed.2d 659 (1976), the United States Supreme Court considered and rejected similar contentions raised before it with regard to a federal campaign-finance act similar in these respects to ours. The court held that “recordkeeping-, disclosure and investigative functions,” 96 S.Ct. at 678, “functions relating to the flow of necessary information — receipt, dissemination, and investigations”, 96 S.Ct. at 691, may be validly exercised by a legislatively appointed committee, 96 S.Ct. at 691. Thus, they do not violate any executive function to execute laws.

The court drew a clear distinction between these powers, as contrasted with more substantial powers to enforce the law (such as the power to institute civil actions to enforce the act). Only these latter functions were held to violate the power of the executive branch, if exercised by a legislatively appointed body instead of an executive agency.

As our summary above indicates (see also footnote 3), none of the powers granted by the Louisiana act to the reporting officials or supervisory committees are of this latter nature — i. e., those by which the laws are actually executed by the legislatively appointed committees. The powers granted these legislatively appointed in-strumentalities instead pertain only to receipt, dissemination, and investigation of reports, and to referral of them to appropriate prosecutorial officers — governmental activities which neither historically nor functionally fall within the exclusive power of the executive branch to “see that the laws are faithfully executed,”, Article 4, Section 5(A). See Buckley v. Valeo, cited above, at 96 S.Ct. at 691.

No authority is cited to us contrary to this holding.

No authority is cited to us that rests solely in the executive branch the receipt and dissemination of reports with regard to valid election laws, or that vests solely within executive control investigation of violations thereof. (As a matter of fact, this court has in the past disapproved efforts to vest exclusive control of the election machinery in gubernatorial appointees. State ex rel. Ward v. Board of Supervisors of Elections, 186 La. 949, 173 So. 726 (1937). Ours is a system not only of separation of powers among the branches of government, but also of checks and balances by the other branches to the powers of each branch.)

In summary, we cannot read our state’s separation of powers provision as inflexibly prohibiting to none but the executive branch the power to receive election-finance reports and complaints of election-law violations, to evaluate them, and to forward to prosecutorial officers any violations suspected as a result.

Consequently, neither the functions entrusted to the supervisory committees, nor their method of legislative selection, violate the constitutional separation of powers between the legislative and executive branches. We therefore disagree in this respect with the court of appeal’s holding to the contrary.

Limitation on the Power of the District Attorney to Prosecute Violations of Election Campaign Finance Law

Nevertheless, as the court of appeal correctly held, one provision in La.R.S. 18:-1492(B)(1) unconstitutionally vests in these legislatively-appointed committees the power to determine whether and which violations shall be criminally prosecuted. The last sentence of the provision (see italicized paragraph in footnote 3) provides that criminal prosecutions by a district attorney (or attorney general) shall be initiated “only on the basis of information forwarded to him by a supervisory committee”.

The cited sentence thus violates the exclusive power entrusted by our constitution to the district attorney to prosecute offenses in his district; for, as provided by Article 5, Section 26(B), the district attorney “shall have charge of every criminal prosecution by the state in his district”. The power of the district attorney to initiate criminal prosecution for such offenses in his district (or not to) appears to be limited only by the provision of Article 4, Section 8, that, for cause when judicially authorized, the attorney general may institute, prosecute, or intervene in a criminal action or proceeding.

The cited sentence of Section 1492(B) (1) attempts to limit the power of these constitutionally created officers to prosecute violations of the statute to include only such violations as the supervisory committee discovers or receives, and then chooses to refer to the attorney general or district attorney. The provision thus represents an unconstitutional invasion of the powers of these officers conferred on them by Article V, Section 26(B), and Article 4, Section 8.

We therefore declare this provision (the last sentence of La.R.S. 18:1492(B)(1)), and this provision only, unconstitutional.

IV. Severability: Does Invalidation of the Enforcement Provision Invalidate the Entire Act?

The plaintiff contends that, if an enforcement provision of the statute is invalidated, the entire act (including its reporting and disclosure provisions) must fall, since all are inextricably interwoven.

The Election Campaign Finance Disclosure Act was enacted by Act 718 of 1975. Section 3 of the statute provides:

“If any provision or item of this Act or the application thereof is held invalid, such invalidity shall not affect other provisions, items or applications of this Act which can be given effect without the invalid provisions, items or applications, and to this end the provisions of this Act are hereby declared severable.” The severability clause creates a presumption of the enactment’s severability in fact. State ex rel. Kemp v. City of Baton Rouge, 215 La. 315, 40 So.2d 477, 484 (1949).

The ultimate test of severability, as we pointed out in Roy v. Edwards, 294 So. 2d 507, 511 (La.1974), is: “* * * it is well established that the unconstitutionally of a portion of a statute (or ordinance) does not necessarily invalidate the whole, particularly where there is a severability clause as here. But it is equally well settled that such rule applies only when the unconstitutional part is independent of and separable from the rest. If it is so interrelated and connected with the other portions as to raise the presumption that the legislative body would not have enacted one part without the remainder, then the entire enactment is null.”

We find no constitutional deficiency in the sections of the act providing criminal penalties for specified violations of the statute, La.R.S. 18:1489, 1491 (quoted in full, Part I above, “Criminal Sanctions”), and no substantial contention is made as to their invalidity. These provisions thus adequately define the criminal offenses punishable by the act. The offenses are within the power of the district attorney to prosecute, as in the case of any other violation of a penal statute.

Standing alone and independent of the invalidated provision, these provisions provide a separable and independent definition of criminal offense and authority for the district attorney to prosecute for such offenses. Under the test set forth by Roy v. Edwards, quoted above, we find that the invalidated provision is severable from these other enforcement provisions.

The invalidated provision, which unconstitutionally attempts to limit a district attorney to prosecute only violations reported to him through the supervisory committees, is not so interrelated and connected with the validly provided criminal penalties as to suggest that the legislature would not, without the invalidated provision, have provided any criminal penalties whatsoever for the statutory violations set forth. We are reenforced in this interpretation of the statute as a whole by the presumption of severability in fact as well as by law, which arises from the legislature’s provision of a severability clause. By it, the legislation intended to assure that the main purposes of the law and the validity of the entire enactment would not be thwarted if a particular severable provision thereof were held by the courts to be invalid.

V. Constitutionality of Other Provisions of the Act

The plaintiff contends that the substantive regulation of campaign financing is unconstitutional in numerous respects. In his standing based solely upon his status as a substantial contributor to political campaigns, the principal attack is made upon the reporting and disclosure regulations, by which candidates must report not only the total amounts of contributions and expenditures, but must also identify by name any individual contributor who gives him in excess of a reporting amount. 148SC. The reporting amount is set at $1,000 for elections involving statewide office, $500 for district office, and $250 for all other offices. 1482(H).

With regard to those provisions requiring the reporting and disclosure of campaign contributions, the plaintiff contributor contends that the Act violates Article I, Section 1 of the Louisiana Constitution of 1974, and the basic freedoms encompassed in and to be held “inalienable by the State” by the mandate of Section 1, including due process of law (Section 2)-, equal protection of the laws (Section 3), right to own, control, use, enjoy and dispose of private property without unreasonable restraint (Section 4) right to privacy (Section 5), freedom of express (Section 7), freedom of assembly and petition (Section 9), and the right to vote (Section 10).

As the plaintiff contends, the individual rights guaranteed by our state constitution’s declaration of individual rights (Article I) represent more specific protections of the individual against governmental power than those found in the federal constitution’s bill of rights, and they may represent broader protection of the individual. Nevertheless, we find persuasive the reasoning of the United States Supreme Court in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659, in rejecting similar attacks based on freedom of expression and other individual freedoms, upon the federal acts far more stringent regulation: For instance, the reporting and public disclosure provision required public identification of every contributor who gave in excess of $100, and it prohibited (rather than, as in Louisiana, merely required disclosure of) individual contributions in excess of $1,000.

In Buckley, the court recognized that compelled disclosure may represent a significant encroachment upon the political rights of individuals. It must therefore receive exacting scrutiny to ascertain whether there is a relevant correlation or substantial relation between the governmental interest sought to be advanced and the information required to be disclosed, and to ascertain that the government interest is sufficiently important to the free functioning of fundamental institutions so as to outweigh the possibility of undue infringement upon the political freedom of the individual. 96 S.Ct. at 656-57.

In upholding the federal disclosure requirements (far more stringent than Louisiana’s), the court upheld them as not unreasonable in the light of their importance in the vindication of the right of the people to free and honest elections. The court stated, 96 S.Ct. at 657-58:

“The governmental interests sought to be vindicated by the disclosure requirements are of this [important] magnitude. They fall into three categories. First, disclosure provides the electorate with information ‘as to where political campaign money comes from and how it is spent by the candidate’ in order to aid the voters in evaluating those who seek Federal office. It allows voters to place each candidate in the political spectrum more precisely than is often possible solely on the basis of party labels and campaign speeches. The sources of a candidate’s financial support also alert the voter to the interests to which a candidate is most likely to be responsive and thus facilitates predictions of future performance in office.

“Second, disclosure requirements deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity. This exposure may discourage those who would use money for improper purposes either before or after the election. A public armed with information about a candidate’s most generous ' supporters is better able to detect any post-election special favors that may be given in return. And, as we recognized in Burroughs v. United States, 290 U.S., [534], at 548, 54 S.Ct., [287] at 291 [78 L.Ed. 1380], Congress could reasonably conclude that full disclosure during an election campaign tends ‘to prevent the corrupt use of money to affect elections.’ In enacting these requirements it may have been mindful of Justice Brandéis’ advice:

“ ‘Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the efficient policeman.’ * * *

[Third, recordkeeping and disclosure provide an essential means of administering the act.]”

Even before the United States Supreme Court decision in Buckley v. Valeo, the district court herein upheld the disclosure provisions of the Louisiana act. It discussed pertinent authorities, including the lower federal-court decision in Buckley and Deras v. Myers, 535 P.2d 541 (Oregon, 1975) (which invalidated spending prohibitions in an Oregon campaign-finance act). In its excellent opinion, the court concluded:

“There are several approaches to the regulation of campaign financing. There can be a limit on contributions, both as to amounts, and the type of contributor; limit on expenditures; and/or reporting requirements. Generally, the principal purpose of disclosure is to identify sources and expenditures, not to regulate them. Louisiana has chosen to follow the latter regulatory course in dealing with the matter of campaign financing. * * *

“It is one thing to restrain freedom of expression as the Oregon statute was held to do; and another to require disclosure under certain circumstances where there are no other restraints against either the amount of contribution or the exercise of free speech in the support of or opposition to political candidates. Likewise, the resolution of federal constitutional issues does not necessarily dispose of the Louisiana constitutional issues. For these reasons, we must adjudicate this case within the framework of the recognized principles to which we have heretofore adverted.

“It has been stated that ‘effective publicity’ is required if effective control of campaign contributions is to be achieved. While it is true, as counsel for plaintiff contends, that ‘in order to insure his privacy * * * a citizen must refrain from making a contribution in excess of the prescribed amount and must refrain from taking part in the administration of campaign committees’, the fact remains that there is no stigma attached to the making of political contributions; on the contrary, the making of political contributions has been traditionally recognized in Louisiana as a legitimate and desirable form of political participation.

“If we follow plaintiff’s argument to its logical conclusion, there could be no disclosure requirement in any scheme of campaign finance regulation that the legislature might devise. If the disclosure requirement was limited to candidates, we have the possibility of the same political committee evils demonstrated in the case of the Committee to Re-elect the President. In the final analysis, the reporting requirement provides the only effective means of affording ‘openness’ in the election process. If the result of that requirement is incidental infringement upon the right of privacy, the court finds that the requirement does not so unduly infringe the protected freedom as to justify declaring the statute unconstitutional.”

Vagueness and Equal Protection:

The plaintiff contributor also attacks the contribution and disclosure provisions on the grounds of vagueness and of a denial of equal protection (because large contributions need be publicized, but not small ones).

As with the federal statute, the Louisiana statute is not vague in the constitutional sense. Buckley v. Valeo, above-cited.

“Due process requires that a criminal statute provide adequate notice to a person of ordinary intelligence that his contemplated conduct is illegal, for ‘no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed. * * * ” Where First Amendment rights are involved, an even “ ‘greater degree of specificity’ is required. * * * ” Buckley, at 96 S.Ct. at 662-663.

In United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954), the United States Supreme Court upheld federal legislation requiring designated reports from those receiving contributions or expending monies to pass or defeat national legislation. In so doing, it noted, 347 U.S. at 618, 74 S.Ct. at 812, 98 L.Ed.2d 989; “ * * * if the general class of offenses to which the statute is directed is plainly within its terms, the statute will not be struck down as vague even though marginal cases could be put where doubts might arise. * * * And if this general class of offenses can be made constitutionally definite by a reasonable construction of the statute, this Court is under a duty to give the statute that construction.”

We agree with the trial court that these tests are met by the principal provisions regulating political contributions and requiring their disclosure if in excess of certain amounts: “In the opinion of the Court, the Campaign Finance Act, taken as a whole, has fairly described the general class of offenses to which the statute is directed.”

We also find no merit in the claim that the disclosure requirements violate equal protection rights, simply because they require disclosure of contributions of individuals only above certain amounts. See Buckley v. Valeo, cited above. In accord with the reasoning in Buckley (involving a far lower limit), our trial brother stated: “ * * * While it is admittedly difficult to draw the line, a line has to be drawn somewhere. If the evil sought to be averted is the undue influence of the large contribution, then a threshold amount so low as to be manifestly below the point of reasonable fear of influence would be difficult to justify. But the amounts here appear reasonable, dependent upon the office involved, and particularly so in the case of the lesser offices. Under these circumstances, the court cannot say that the legislative classification is unreasonable.”

Other Contentions of Invalidity:

In Article 14 of his petition, the plaintiff points out six alleged ambiguities in which isolated provisions of the act are allegedly vague and indefinite. Alleged ambiguities (c), (d), and (e) concern minor provisions of a peripheral and severable nature, which need not be considered here, cf., State ex rel. Kemp v. City of Baton Rouge, 215 La. 315, 40 So.2d 477, 484 (1949); for the plaintiff is not shown to have sufficient interest by way of concrete effect upon him as to entitle him to standing to question their possible application in the merely hypothetical situations noted. As to alleged ambiguities (a), (b), and (f), for the reasons stated in the paragraphs immediately preceding this one, they are not subject to constitutional invalidity because of vagueness, for they fairly describe the general conduct regulated so as to provide adequate notice to those affected by them.

VI. Conclusion:

The trial court held the act constitutional. The judgment of the court of appeal reversing the trial court and declaring the act unconstitutional never became execu-tory, La.C.Civ.P. art. 2167(2), Discon v. Saray, Inc., 262 La. 997, 265 So.2d 765 (1972), and the trial court judgment remained validly in effect and enforceable until now.

The effect of our present judgment is to uphold the contribution and reporting system and to strike down as unconstitutional only the sentence of La.R.S. 18:1492B(1), which limits prosecution of criminal violations to those recommended by a supervisory committee (a completely severable provision from the reporting, disclosure, and regulatory features of the statute). Our judgment to this effect will not become final and executory until rehearing delay or action is completed. La.C.Civ.P. art. 2167.

We are asked to stay these proceedings, in the event we declare any portion of this act unconstitutional, in order to permit the legislature during its current session to remedy the deficiency. If the legislature desires to make any changes in the act because of our holding, it has ample opportunity to do so during the current session now in progress. A stay order is not indicated under the circumstances shown.

Decree

For the reasons assigned, we affirm the judgment of the court of appeal insofar as it held one paragraph (see footnote 7 above) of the Election Campaign Finance Disclosure Act, La.R.S. 18:1492 et seq., unconstitutional; but its decree is otherwise reversed, and the judgment of the district court holding the act constitutional is reinstated and affirmed in all other respects. Except for judgment declaring the final sentence of La.R.S. 18:1492B(1) (Act 718 of 1975) unconstitutional, the plaintiff’s demands are dismissed, and he is assessed with all costs of these proceedings.

COURT OF APPEAL AFFIRMED IN ONE RESPECT AND REVERSED IN OTHERS; DISTRICT COURT JUDGMENT REINSTATED AND AFFIRMED, EXCEPT FOR MODIFICATION THUS RESULTING.

SUMMERS, J., dissents and assigns reasons.

SUMMERS, Justice (dissenting).

In my view the Court properly held that plaintiff has standing to bring this suit.

As I read and understood the contested Louisiana Election Campaign Finance Disclosure Act (Act 718 of 1975, La.R.S. 18:-1481-93), it is so fraught with constitutional infirmities it is completely unconstitutional. In this opinion I, of course, agree with the Court’s holding striking down Section 1492B(1) of Title 18, which limits prosecution of criminal violations to those recommended by a supervisory committee. I cannot agree, however, that this unconstitutional section of the Act is severable from its other provisions.

I acknowledge the authority which prescribes that, as a general proposition, the unconstitutionality of a portion of a statute does not necessarily invalidate the whole, particularly where there is a severability clause. But the rule applies only when the unconstitutional part is independent of and separable from the rest. If it is so interrelated and connected with the other portions as to raise the presumption that the legislative body would not have enacted one part without the remainder, then the entire enactment is null. Gaudet v. Economical Super Markets, Inc., 237 La. 1082, 112 So.2d 720 (1959); State v. Baggott, 212 La. 795, 33 So.2d 523 (1948); Ricks v. Close, 201 La. 242, 9 So.2d 53.4 (1942); State ex rel. Chess & Wymond Co. of Louisiana v. Grace, 188 La. 129, 175 So. 825 (1937).

That this legislation would not have been enacted without the enforcement provision which it finds unconstitutional is in effect conceded by the majority. The opinion reveals that the Court is asked to stay these proceedings in order to permit the Legislature during its current session to remedy the deficiency. If it is necessary to remedy the deficiency created by the invalidity of the enforcement provision, all concerned with the Act’s effectiveness must realize it is ineffective without the unconstitutional enforcement provision. In other words, the Act’s provisions are inextricably related and inseparable, and the unconstitutionality of the enforcement provision renders the entire Act unconstitutional. Without the enforcement provisions the Act is merely directory and ineffective.

I am moreover of the opinion that the Act is an unconstitutional and unwarranted infringement on basic protections afforded by the Bill of Rights of both the federal and state constitutions. In my view compelled disclosure, in itself, can seriously infringe on privacy of association and beliefs guaranteed by the First Amendment to the Federal Constitution, and Articles I and XI of the State Constitution. Significant encroachment on these rights of the sort that compelled disclosure imposes cannot be justified by a mere showing that some legitimate governmental interest is involved. When the individual’s constitutionally guaranteed rights are sought to be subordinated to the interests of the State, the effort must survive exacting scrutiny. No overwhelming State interest is disclosed in this record and the Act cannot withstand the exacting scrutiny the law requires. Under these conditions the Act is not entitled to the presumption of validity usually accorded legislative enactments. NAACP v. Alabama, 357 U.S. 449, 78 Ct. 1163, 2 L.Ed. 2d 1488 (1958); Southland Corporation v. Collector of Revenue, 321 So.2d 501 (La.1975).

Rights secured to Louisiana citizens under the Constitution of 1974 are far broader and more definitely articulated than corresponding rights in the Federal Constitution. Examples of this are found in such guarantees as the secret ballot (Art. XI, § 2), the right to individual liberty (Art. I, § 3), the right to property (Art. I, § 4), the right to privacy (Art. I, § 5), freedom of expression (Art. I, § 7), and the right of assembly and petition (Art. I, § 9). And the constitution commands the government to hold these rights inviolate. (Art. I, § 1).

In addition, the Act violates Article II of the Louisiana Constitution which declares :

“Section 1. The powers of goverment of the state are divided into three separate branches: legislative, executive and judicial.
“Section 2. Except as otherwise provided by this constitution, no one of these branches, nor any person holding office in one of them, shall exercise power belonging to either of the others.”

In setting up the reporting system and the legislative committee formed under the authority of the Act, the Legislature has departed from the role the Constitution prescribes and which tradition and custom require. The Committee to which reports are required to be made is not, in that capacity, performing a legislative function. Nothing in the committee’s duties and responsibilities pertain to inquiry, investigation or study in aid of legislation. To the contrary, the committees’ duties and responsibilities are administrative in nature involving execution of the laws, a function properly within the realm of the executive department. It is to the Governor that the Constitution delegates the authority to “see that the laws are faithfully executed.” La.Const. Art. IV, § 5 (1974). When the Legislature usurps these prerogatives the Constitution is violated.

This law offends the traditional American concept of free and open elections and will, in my view, impose unwarranted re-restraints upon essential rights guaranteed by our Constitution.

I respectfully dissent.

      . For the moment, we pretermit the distinguishable issue that the separation-of-powers principle is also violated by the delegation to the supervisory committees, in derogation of the district attorneys’ powers, of the determination of whether criminal prosecutions will be instituted for violations of the statute. But see text below.

      . La.R.S. 18:1492A provides: “The following supervisory committees are established:
      “1) for candidates for senator: the secretary of the Senate, the legislative auditor, and the executive director of the Legislative Council ; 2) for candidates for the House of Representatives: the clerk of the House, the legislative auditor, and the executive director of the Legislative Council; 3) for other candidates and for other persons required to file reports under the provisions of this Part: the secretary of the Senate, the clerk of the House, the legislative auditor, and the executive director of the Legislative Council.”

      .“The reports filed under the provisions of this Part shall be referred by the reporting officials to the respective supervisory committees who may review them for compliance with the provisions of this Part. In addition, any person who believes a violation of this Part has occurred may file a sworn complaint with the appropriate supervisory committee. If the supervisory committee determines that there is substantial reason to believe that a violation of this Part has occurred, it shall expeditiously make a thorough investigation of the matter complained of. When the results of a supervisory committee’s review of reports or investigation of a complaint indicate that a knowing and willful violation of this Part has occurred, the supervisory committee shall forward all information concerning the alleged violation to the attorney general who shall review such information and make such investigation as he shall deem necessary to determine if a violation has occurred; except, when the results of a supervisory committee’s review of reports or investigation of a complaint indicate that a violation of this Part has occurred with regard to a campaign for the office of attorney general, the supervisory committee shall forward all information concerning the alleged violation to the district attorney for the parish wherein such alleged violation occurred, who shall immediately proceed with such criminal actions provided by this Part as are justified by the facts of the situation. When the attorney general determines that there is substantial reason to believe that a violation has occurred, he shall forward all information concerning such violation to the district attorney for the parish wherein such alleged violation occurred, who shall immediately proceed with such criminal actions provided by this Part as are justified by the facts of the situation, unless the violation occurred with regard to a campaign for the office of district attorney for said parish, in which event the attorney general, for cause, when authorized by the court which would have original jurisdiction and subject to judicial review, shall proceed with such criminal actions provided by this Part as are justified by the facts of the situation.

        “Criminal actions shall he initiated wider the provisions of this Part only by the district attorney and only on the basis of information forwarded to him by a supervisory committee through the attorney general, or direetly, as provided in this Part, except in the ease of campaigns for district attorney, in which case criminal actions shall be initiated under the provisions of this Part only by the attorney general as provided in this Part and only on the basis of information forwarded to him by a supervisory committee as provided in this Part.” (Italics ours.)

      . The further provisions relate to subsequent processing by the attorney general or district attorney of such potential violations referred to these officials by the supervisory committees. Their essence is that such official receiving the referral shall investigate it and, if he finds substantial reason to believe a violation occurred, he shall forward it to district attorney or other appropriate prosecuting official, who shall proceed with such criminal action as is “justifiable by the facts of the situation.”
      For present purposes, we need only note that such further actions by prosecutorial offi-ciáis do not involve the supervising committees nor any issue before us of unconstitutionality.

      . In the present case, we need not consider the probable severability of the public disclosure requirements, serving distinct values within the intendment of the act, from the provisions providing for criminal prosecutions for violations of the act.

      . The statute contains precise definitions of “statewide office”, 1482(8), and of “district office”, 1482(9).

      . The invalidated provision of La.R.S. 18:1492B (1) :
      “Criminal actions shall be initiated under the provisions of this Part only by the district attorney and only on the basis of information forwarded to him by a supervisory committee through the attorney general, or directly, as provided in this Part, except in the case of campaigns for district attorney, in which case criminal actions shall be initiated under the provisions of this Part only by the attorney general as provided in this Part and only on the basis of information forwarded to him by a supervisory committee as provided in this Part.”


source: Caselaw Access Project

author: BLANCHE, Judge.

license: Public Domain

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. JEANERETTE LUMBER & SHINGLE COMPANY, LTD. (two cases).
    No. 10743.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.
    Rehearing Denied July 6, 1976.
    Writ Granted Oct. 22, 1976.

      D. Ross Bannister, Wm. W. Irwin, Jr., Jerry F. Davis, Alva Jones and Johnie E. Branch, Jr., Baton Rouge, for appellant.
    Walter J. Suthon, III, New Orleans, for appellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.
   BLANCHE, Judge.

Plaintiff-appellant, State of Louisiana, Through the Department of Highways, appeals the judgment in two consolidated cases which reduced the extent of two servi-tudes taken over the lands of defendant-ap-pellee, Jeanerette Lumber & Shingle Company, Ltd. Said servitudes were expropriated in 1969 in connection with State Project No. 450-07-01, Federal Aid Project No. 1-10-3 (33) 131, Atchafalaya Flood-way Crossing (Whiskey Bay Pilot Channel Bridge-Ramah), State Route La. I — 10, Ib-erville Parish. The appeals were also consolidated and separate judgments will be rendered.

In order to build Interstate Highway 10 from the Ramah Levee to Whiskey Bay Pilot Channel, it was necessary for the plaintiff to dig an access canal 200 feet wide by ten miles long for purposes of floating pre-cast concrete sections of the highway to the construction site. Once they arrived at the site, the sections were floated into position through another waterway designated as the construction canal. The construction canal lies in an east-west direction between the two divided traffic lanes of the highway. The access canal travels north-south and intersects the construction canal at its northern end. At its southern end the access canal opens into Lower Grand River.

Defendant is owner of a -Hsths undivided interest in one tract of land and sole owner of another non-contiguous tract, both of which are located in the Atchafalaya Basin, Iberville Parish, Louisiana. The aforementioned access canal traversed both tracts, and it was necessary for the plaintiff to expropriate a portion of said tracts for the canal pursuant to Article VI, Section 19.1 of the Louisiana Constitution of 1921 and the provisions of LSA-R.S. 48:441-460.

The order of expropriation granted a 400-foot wide “permanent servitude of right of way” across the defendant’s land. Under the authority of LSA-R.S. 48 -.447, the defendant protested the taking by a “Motion to Dismiss or Modify” but did not set the motion for hearing until January, 1975, approximately five years after the taking. On the trial of the matter defendant argued that the land was not taken for a public purpose. Alternatively, it contended that a permanent servitude was not required and that since the project was now complete, the canal was no longer needed by the plaintiff and, therefore, the expropriated land should revert back to it in full ownership.

The trial judge reduced the extent of both takings from a permanent servitude of right of way to one limited to the purposes of constructing, maintaining and repairing the interstate highway by means of the access canal. In accordance with the foregoing, the judgment further held that the said canal itself is not a part of the State highway system and is not a general public way for use by the public. It was further ordered that the plaintiff vacate the servitude to the extent necessary for the defendant to enjoy the rights remaining to it, subject to the limited rights of permanent servitude as described above.

On appeal, the plaintiff argues that it was error on the part of the trial judge to so limit the servitude. Furthermore, plaintiff argues that it was error to hold that the canal was not a public thing and, therefore, not available for use by the general public.

The defendant answered the appeal attempting to have the order of expropriation permanently set aside, rather than merely reduced. Alternatively, the defendant seeks to reduce the servitude from permanent to temporary and to restrict the plaintiff’s use thereof to the actual confines of the canal, rather than the entire 400 feet taken.

At the time this land was expropriated, it was needed for the building of the public highway and, therefore, it was taken for a public purpose within the intent of the act. State, Department of Highways v. Lessley, 287 So.2d 792 (La.1973). Therefore, the remaining issue on this appeal is a consideration of whether the defendant has the right to contest the extent of the servitude taken by the Department in the instant proceeding.

We have determined that it cannot. Although the defendant raised numerous issues in his motion to dismiss or modify, the only question that was legally before the trial court was whether or not the land was expropriated for a public purpose. LSA-R.S. 48:447.

The Highway Expropriation Act, R.S. 48:441 et seq., contemplates that no issues may be presented in an expropriation suit except those specifically authorized therein. State, Department of Highways v. Mouledous, 199 So.2d 185 (La.App.3rd Cir. 1967), writ refused, 250 La. 934, 199 So.2d 927 (1967).

The act authorizes a landowner (1) to contest the taking as not being for a public purpose, Section 447; and (2) after answer to contest the measure of compensation, Section 450.

The act was designed to put an end to all other issues, including those regarding the extent of the taking. The Highway Department, having been designated as the State’s agency to expropriate land required for public projects, has discretion to determine the extent of ownership necessary for each improvement. State, Department of Highways v. Guidry, 240 La. 516, 124 So.2d 531 (1960). See, also, “Expropriation by Ex Parte Order for Highway Purposes in Louisiana,” Glenn S. Darsey, 26 La.L.Rev. at page 98.

The defendant has made allegations of bad faith on the part of the plaintiff, that is, that it purposely expropriated a permanent servitude when a temporary one would have sufficed and that the plaintiff conspired with the Louisiana State Wildlife and Fisheries Department to create a fishing spot out of this access canal. However, the defendant was unable to prove its allegations.

In view of the foregoing, it was error for the trial judge to reduce the permanent servitude of right of way to a servitude for the construction, maintenance and repair of the highway since the extent of the taking by the State is not subject to judicial review, State, Department of Highways v. Guidry, supra.

The landowner argues that the State is presently allowing the general public to use the canal for fishing and that by so doing the State is exceeding its authority under the servitudes granted for the original construction and maintenance of Interstate 10.

Whether the State’s use of the ser-vitudes makes them more onerous to the servient estate is an issue which the court was not competent to consider in a proceeding that by statute limited its consideration to whether the taking was one for public purpose. Therefore, it was improper for the trial judge to restrict the servitude in favor of the State in this proceeding by prohibiting its use by the general public. If defendant is entitled to this relief, it could only be litigated in a separate action.

In this connection, the following quotation from Nichols on Eminent Domain is pertinent:

“ ‘Though it is the general policy of the law to settle, if possible, in a single suit or action, all accrued conflicting claims of the adverse parties, that rule ought not to obtain in such an action as is here involved.' (Nichols on Eminent Domain, Third Edition, Vol. 6, Section 24.31, page 67.)” (State, Department of Highways v. Mouledous, La., 199 So.2d at 193)

For the above and foregoing reasons, the judgment of the trial court in Appeal No. 10,743 is reversed, and it is hereby ordered, adjudged and decreed that the defendant’s motion to dismiss or modify is hereby overruled and set aside.

The defendant is taxed with all costs of this proceeding as may legally be assessed against the State of Louisiana.

REVERSED AND RENDERED.

      . At the time of this expropriation, Section 447 read, in pertinent part, as follows:
      “Any defendant desiring to contest the validity of the taking on the ground that the property was not expropriated for a public use may file a motion to dismiss the suit within ten days from the date the notice was served on him. * * * ”

      . The defendant has not answered the plaintiff’s petition.

       Ellis, J., dissented from refusal to grant a rehearing in 335 So.2d 456.


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. JEANERETTE LUMBER & SHINGLE COMPANY, LTD.
    No. 10744.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.
    Rehearing Denied July 6, 1976.

    Writ Granted Oct. 22, 1976.

      D. Ross Bannister, Wm. W. Irwin, Jr., Jerry F. Davis, Alva Jones and Johnie E. Branch, Jr., Baton Rouge, for appellant.
    Walter J. Suthon, III, New Orleans, for appellee.
    Before ELLIS, BLANCHE and LOT-TINGER, JJ.

       Ellis, J., dissented from refusal to grant a rehearing in 335 So.2d 453.

   BLANCHE, Judge.

For the reasons set forth in our opinion in “State of Louisiana, Through the Department of Highways v. Jeanerette Lumber & Shingle Company, Ltd., La.App., 335 So.2d 453,” No. 10,743, the judgment of the trial court is reversed and it is hereby ordered, adjudged and decreed that the defendant’s motion to dismiss or modify is hereby overruled and set aside.

The defendant is taxed with all costs of this proceeding as may legally be assessed against the State of Louisiana.

REVERSED AND RENDERED.


author: LANDRY, Judge. PER CURIAM.

text:
    Landry E. BASCO v. The STATE of Louisiana, Through the DEPARTMENT OF CORRECTIONS, and Houston General Insurance Co.
    No. 10714.
    Court of Appeal of Louisiana, First Circuit.
    May 24, 1976.
    Rehearing Denied July 28, 1976.

      Jack C. Fruge, and Chris Fruge, Ville Platte, for appellant.
    John W. Wilson and James F. Abadie, Baton Rouge, for appellees.
    Before LANDRY, COVINGTON and PONDER, JJ.
   LANDRY, Judge.

Defendants, State of Louisiana, Through the Department of Corrections (Department), and its workmen’s compensation insurer, Houston General Insurance Co. (Insurer), appeal from judgment awarding plaintiff Landry E. Basco (Appellee) maximum benefits for total permanent disability, together with statutory penalties and attorney’s fees. We affirm in part and reverse in part.

Plaintiff, now retired, was a former Civil Service employee. The primary legal issues on appeal are: (1) Whether Civil Service Rule 11.21, which restricts the taking of sick leave by Civil Service employees, violates La.R.S. 23:1163 by requiring a civil service employee to pay his own workmen’s compensation benefits; and (2) Whether statutory penalties provided by La.R.S. 23:1163 are assessable against total compensation awarded or assessable only against compensation payments more than sixty days past due.

Plaintiff was employed as a Farm Supervisor II in the Agri-Business Division (Division) of the Department on the state prison farm at Angola, Louisiana. As such, plaintiff’s duties consisted mainly of supervising inmate labor on a portion of the prison’s vast sugar cane farm. It was plaintiff’s duty to instruct prisoners in the operation of tractors, mixing and application of insecticides, herbicides and fertilizer, the maintenance of equipment and machinery, and all other phases of work required in planting, cultivating and harvesting sugar cane on approximately 1,400 acres of prison land. Additionally, plaintiff did some welding and performed heavy manual labor when prison labor was short or inmates were unable to perform specific tasks. Plaintiff was also required to travel extensively by truck over rough farm roads in the performance of his supervisory duties. On January 2, 1974, plaintiff sustained severe neck and shoulder injuries while unloading a tractor during the course and within the scope of his employment. The injuries initially disabled plaintiff from January 4 through February 17, 1974, a period of 6 and %ths weeks. On February 18, 1974, plaintiff resumed employment but could not satisfactorily perform his duties and therefore worked intermittently until July 11, 1974, missing a total of 14 and %ths weeks during this period. Because of his inability to function as a Farm Supervisor, plaintiff was transferred to the position of Correctional Officer II (Prison Guard) on July 12, 1974. As a Prison Guard, plaintiff was paid the same salary that he had received as Farm Supervisor. Plaintiff remained employed as a Prison Guard until November 28, 1974, when he went on sick leave, in which status he continued until his disability retirement on April 9,1975.

The accident was reported to the Division, which in return informed the Department, who reported the incident to insurer shortly following the occurrence of the event. On May 2, 1974, Appellee was paid compensation in the sum of $417.87, representing compensation at the rate of $65.00 weekly for the 6 and 94ths weeks work lost between January 4 and February 17, 1974. No further compensation was paid Appellee until November 8, 1974, when Ap-pellee received a check for $928.58 for compensation due from February 18 to July 11, 1974.

When injured on January 2, 1974, Appel-lee had accumulated 1301.7 hours of sick leave and 1506.7 hours of annual leave. After his injury, Appellee took sick leave for each day of absence and received full pay daily until his retirement on April 9, 1975. The $417.87 check received by Ap-pellee on May 2, 1974, was endorsed by Appellee to the Department, for which transfer Appellee received credit for an additional 110 hours of sick leave. The number of hours sick leave thus credited to Appellee was determined by dividing Ap-pellee’s hourly rate of pay into the sum of $417.87 transferred to the Department. Admittedly, this procedure was' followed pursuant to fixed Department policy in compliance with Civil Service Rule 11.21 which states:

“When an employee is absent from work due to disabilities for which he is entitled to workmen’s compensation, he may, at his option use sick leave and annual leave not to exceed the amount necessary to receive total payments for leave and workmen’s compensation equal to his regular salary.”

The record establishes that prior to Ap-pellee’s endorsement of the $417.87 check to the Department, Appellee was fully advised of the application of Rule 11.21 above, and that Appellee consented to said transfer of funds. However, despite Ap-pellee having been paid his full salary because of his having taken sick leave, Ap-pellee declined to endorse the November 8, 1947 compensation check for $928.58 to the Department.

Appellee claims compensation benefits of $65.00 weekly for 500 weeks commencing July 12, 1974, subject to credit for payments made, together with interest, penalties of 12% on all unpaid benefits, and attorney’s fees in the sum of $4,000.00.

The trial court awarded Appellee compensation at the rate of $65.00 weekly for 500 weeks commencing July 12, 1974, subject to credit for payments made, with interest, penalties of 12% on all unpaid benefits, and attorney’s fees in the sum of $2,-500.00. The trial court also held Civil Service Rule 11.21 invalid in violation of La.R.S. 23:1163 and rendered judgment in favor of Appellee against the Department in the sum of $417.87. The contention of Department and insurer that Appellee’s wages as Prison Guard were not earned and were therefore wages in lieu of compensation for which credit should have been given in off-set of compensation found to be due, was rejected by the trial court.

The Department and insurer have appealed contending the trial court erred in: (1) Holding Civil Service Rule 11.21 invalid; (2) Rendering judgment in favor of Appellee against the Department in the sum of $417.87; (3) Rejecting the contention that Appellee’s wages as Prison Guard were unearned and in lieu of compensation ; (4) Awarding Appellee penalties and attorney’s fees; and, alternatively, (5) Awarding Appellee penalties on all compensation due rather than restricting penalties to compensation past due more than sixty days.

Appellee has answered the appeal seeking an increase in attorney’s fees. Appel-lee has also requested additional judgment against The Department and insurer in the sum of $74.10 for taking the deposition of Appellee’s medical expert Dr. Davidson Texada. The additional item of deposition costs sought by Appellee is not seriously questioned by Appellants.

VALIDITY OF CIVIL SERVICE RULE 11.21

The record establishes that the Department and the State Civil Service Commission have interpreted Rule 11.21 to mean that a civil service employee receiving compensation benefits for a work-related injury may not receive compensation payments and sick leave payments in an aggregate amount exceeding the employee’s regular wages. It is the Department’s policy to explain the rule to each employee affected thereby and permit the employee to elect the hereinafter explained option. It is also shown that the rule is applied uniformly and without exception.

The record discloses that in each case of this nature, the injured employee is informed that he may either receive compensation benefits and claim sufficient hours of sick leave weekly as will afford him income equal to his regular salary, or he may receive compensation benefits and take full sick leave each week. In this latter case, he must return compensation benefits to the Department when finally received, in return for the Department’s recrediting certain portions of his sick leave. The final result in both cases is the same.

The Department considers the rule a limitation on the amount of sick leave an injured employee is entitled to take during a period in which the employee is receiving workmen’s compensation benefits for a work related injury. As applied by the Department, the rule affects only the amount of sick leave which an employee may claim in a case of this nature. Its application does not in any manner affect the amount of compensation to which the employee is entitled. In this case Appellee was making a salary of $170.40 weekly for a 45 hour work week, when Appellee was injured. He was therefore then earning an hourly salary of $3.79. For the initial 6 and %th weeks of work missed, Appellee was paid compensation of $65.00 weekly or $417.87, which would have constituted Ap-pellee’s sole income but for sick leave benefits provided by Civil Service Rules. Ap-pellee was allowed to utilize approximately 28 hours sick leave weekly during his absence from work due to his injuries. The sick leave plus compensation benefits equalled Appellee’s regular salary. The record also shows that where an injured employee receiving compensation elects to claim total weekly sick leave and thus receives full salary plus compensation benefits, in every instance, the employee is required to refund the compensation amount to the Department and receive in lieu thereof hourly sick leave credit determined by dividing the employee’s hourly rate of pay into the amount of compensation refunded, which is precisely what was done in this instance.

The trial court held Civil Service Rule 11.21 invalid upon finding that the rule, as applied, violates La.R.S. 23:1163, which prohibits an employer from obtaining reimbursement from an employee of any of the employer’s cost of providing compensation insurance. The trial court so found on the ground that the rule violates the statute by requiring an employee to indirectly pay his own compensation.

The rules of the State Civil Service Commission have the force and effect of law. La.Const.1921, Article XIV, Sec. 15(1); La.Const.1974, Article X, Sec. 10 (A)(4).

We disagree with the conclusion that Rule 11.21 violates La.R.S. 23:1163 by requiring an employee to indirectly pay his own compensation. A state employee has no statutory right to sick leave benefits. These benefits are established by Civil Service Rules 11.5 through 11.21.1 which provide how sick leave may be accumulated and when and how it may be used by a classified employee. Such rights as classified employees have to sick leave arise solely from the cited rules. The rule in question merely limits the amount of sick leave which may be claimed by an employee receiving compensation for a work-related injury. The rule affects only the amount of sick leave an employee may claim in such circumstances; it in no way infringes upon the employee’s right to compensation or the amount thereof.

In practical application of Rule 11.21, Appellee received a check from the Division every two weeks in the sum of $340.81 during the periods Appellee was on sick leave, said amount being the amount of his regular salary. However, in this instance, as is apparently true in most similar instances, compensation benefits did not reach Appellee until some weeks following the injury. To provide the employee with instant funds, the Department paid Appel-lee full wages in the form of sick benefits, which practice insures the employee’s continued receipt of income.

As thus administered the rule accomplishes a declared policy of the Civil Service Commission, the wisdom of which is not subject to judicial review so long as the policy violates no law and is administered uniformly and in such manner as to reasonably achieve the desired result.

Appellee contends that application of Rule 11.21 as advocated by the Appellants, contravenes established jurisprudence to the effect that sick leave benefits paid an injured employee may not be credited against compensation due him. In so arguing, Appellee cites and relies upon Kaupp v. City of New Orleans, La.App., 248 So. 2d 99; Guerrera v. City of New Orleans, La.App., 212 So.2d 223; Hammond v. Sewage and Water Board of New Orleans, La.App., 204 So.2d 699; Chase v. Warren Petroleum Corp., La.App., 168 So.2d 861; Murphy v. Baton Rouge Coca Cola Bottling Co., La.App., 165 So.2d 636, and France v. City of New Orleans, La.App., 92 So.2d 473.

Our review of each of the cited authorities discloses that they are inapposite because they are factually distinguishable. While the quoted cases espouse the rule that sick benefits are earned and therefore may not be credited against compensation payments due, the employer in this instance is not seeking to claim credit against compensation due because of sick benefits paid. In this case the employer recognizes and enforces the employee’s right to sick benefits, but limits the amount of sick leave benefits the employer will pay under certain circumstances. We believe that in the absence of lawful agreement to the contrary, an employer may limit and restrict the time, manner and amount of sick leave payments which the employer provides.

APPELLEE’S RECOVERY OF $417.87 FROM THE DEPARTMENT

Having found Rule 11.21 valid, we must reverse the judgment condemning the Department to refund Appellee the sum of $417.87 which Appellee received as workmen’s compensation benefits.

As already noted, upon Appellee’s refund of this amount, Appellee was credited with an additional 110 hours of sick leave. This allowed Appellee to delay his retirement approximately three weeks during which time Appellee received sick leave benefits equal to his regular salary. Ap-pellee’s last day of work was November 28, 1974. From November 29, 1974 to retirement on April 9, 1975, Appellee was on continuous sick leave receiving his regular pay. Without the 110 hours of sick leave credited as a result of Appellee’s refund to the Department of the $417.87, Appellee’s sick leave would have expired approximately one and one-half weeks prior to his retirement, or about mid-afternoon, March 31, 1975. The 110 hours of sick leave acquired by Appellee’s refund of the sum of $417.87 entitled Appellee to obtain an additional $281.38 in sick leave benefits before retiring and also to retire with approximately 48 hours unused sick leave, which could be added to Appellee’s length of service in computing his membership service in the retirement system..

Since Appellee elected to use full sick leave benefits, the Department had the right, under Rule 11.21, to recover from Appellee the amount of compensation received. It is obvious that for this transfer of funds, Appellee received ample consideration. It follows that the trial court erred in ordering the Department to return said amount to Appellee.'

WAGES IN LIEU OF COMPENSATION

Both the Department and insurer contend the trial court erred in refusing to allow insurer credit against compensation due, for allegedly unearned wages paid Ap-pellee between July 12, 1974 and April 9, 1975, while Appellee was employed by the Department as a Prison Guard.

The récord discloses that Appellee voluntarily requested transfer from the position of Farm Supervisor to Guard when, after attempts to work as Farm Supervisor, Appellee determined that he was physically unable to serve as Farm Supervisor. It is shown that Appellee’s chief complaints were inability to lift heavy objects and pain due to the jolting received while riding a truck over the prison farm. Appel-lee’s request for transfer was also based on the written opinion given the Department by Appellee’s physician which report indicated Appellee was totally and permanently disabled to do the work of Farm Supervis- or. As a Prison Guard, Appellee received the same salary as a Farm Supervisor. From July 12, 1974 through November 28, 1974, Appellee was employed by the Department as a Prison Guard, where his duties consisted primarily of desk work but also included supervision of maximum security prisoners during feeding times and recreational periods. Appellee’s superior testified that he received no complaints regarding the manner in which Appellee discharged his duties as Prison Guard. Ap-pellee testified that he had no difficulty performing the work of Prison Guard but voluntarily left that position only because he feared that he could not defend himself against a possible inmate attack, due to Appellee’s weakened condition resulting from his injuries.

It is well settled that an employer and his insurer are not entitled to credit, for wages paid, against compensation due unless the wages are unearned and may therefore said to be in lieu of compensation. If wages are earned in a different class of employment, the employee is entitled to both wages and compensation. Whether or not wages are earned is a factual determination to be made in the light of the circumstances of each individual case. Madison v. American Sugar Refining Company, 243 La. 408, 144 So.2d 377; Lindsey v. Continental Casualty Company, 242 La. 694, 138 So.2d 543; Bourgeois v. Fireman’s Insurance Company of Newark, New Jersey, La.App., 316 So.2d 3; Lockhart v. Pargas, Inc., La.App., 271 So. 2d 664; Martin v. Travelers Insurance Company, La.App., 200 So.2d 141.

The record establishes that Ap-pellee fully earned the wages paid him as Prison Guard during the interval July 12, 1974 to November 28, 1974. The Department and insurer are therefore not entitled to credit against compensation due for this period because of wages paid Appellee in lieu of compensation. During the period November 29, 1974 to April 9, 1975, while Appellee was on sick leave before retiring, Appellee received no compensation. He is entitled to compensation for this period because the sick leave paid him may not be credited against compensation due. Kaupp v. City of New Orleans, above.

PENALTIES AND ATTORNEY’S FEES

La.R.S. 22:658 provides that failure of an insurer to make payment within sixty days of receipt of proof of loss from an insured, subjects the insurer to a penalty of 12% of the amount of the loss, as damages, together with reasonable attorney’s fees, where such failure is arbitrary, capricious or without probable cause. The provisions of the statute apply to numerous classes of insurance, including a claim for workmen’s compensation benefits. Whether failure to make compensation payments is arbitrary, capricious or without probable cause within the meaning of the statute in question, depends primarily upon circumstances existing and known to the insurer at the time compensation payments are refused or discontinued. Lee v. Smith, 248 La. 16, 176 So.2d 413; King v. Insurance Company of North America, La.App., 288 So.2d 878.

Appellee’s injury was reported to the Department and Insurer in January of 1974, shortly after the accident, at which time Jules K. Lefeaux, Chief Accountant for the Division, began processing Appel-lee’s claim. Medical expenses incurred by Appellee were paid by Insurer as processed and forwarded to Insurer by Mr. Lefeaux. There was never a question concerning Appellee’s injury within the scope and during the course of his employment; neither was Appellee’s right to compensation ever challenged. On May 2, 1974, Appellee was paid $417.87 as compensation due for the 6 and %ths weeks work lost between January 4, and February 17, 1974. On July 15, 1974, Appellee made formal demand on the Division for additional compensation for total permanent disability and specifically demanded payment of past due benefits for the 14 and %ths weeks Appellee was unable to work subsequent to February 17, 1974. On July 25, 1974, Mr. Lefeaux sent Insurer a supplemental report of injury stating that Appellee had returned to work but was unable to perform the duties of Farm Supervisor and had returned to sick leave. The report also stated that Appellee had attempted to return to work February 18, 1974, but was returned to sick leave on April 26, 1974. Mr. Lefeaux also advised that Appellee attempted to work on April 22, 1974, but resumed sick leave on April 26, 1974. Insurer was further advised that Appellee worked from May 20, to May 28, 1974 and again went on sick leave. Finally, Mr. Lefeaux noted that Appellee had transferred to the position of Prison Guard on July 12, 1974, which position was less physically demanding than that of Farm Supervisor.

When Appellee made demand in July, 1974, both the Department and Insurer were in possession of a general medical practitioner’s report which indicated that Appellee was unable to perform the duties of Farm Supervisor, and that Appellee was totally and permanently disabled to do such work. At the same time, the Department and Insurer were also in possession of reports from a neuro-surgeon stating that Appellee could perform light duty only for about three weeks, following which Appel-lee might resume normal duties provided Appellee’s symptoms did not recur.

Notwithstanding the above, Insurer paid Appellee no further compensation until November 8, 1974, when Appellee was issued a check for $928.58 in payment of compensation due from February 18, 1974 to July 11, 1974. This payment was made only after Mr. Lefeaux made inquiry of Insurer on October 18, 1974, following Ap-pellee’s complaint of failure to receive compensation payments.

In essence, Insurer justifies its failure to timely pay compensation due for the periods January 4, 1974 to February 17, 1974, and February 18, 1974, to July 11, 1974, on lack of notice of Appellee’s claim. Insurer also claims Appellee is not entitled to compensation for the period July 12, 1974 to November 28, 1974, during which Appellee was employed as a Prison Guard, because Appellee’s employment in said position constituted wages in lieu of compensation which relieved Insurer and the Department of the obligation of paying compensation. Insurer resumed payments on April 10, 1975, following Appellee’s retirement. Insurer further claims it discontinued payments upon the Department’s representation to Insurer that no benefits were due Appellee under the Department’s interpretation of the applicable civil service rule. It is conceded that compensation payments were current as of June 17, 1975, the date of trial.

We find the record amply justifies the conclusion that Insurer’s failure to timely pay benefits due was without probable cause. Notice of the claim was given Insurer shortly following the accident. This notice was supplemented by the transmittal of medical reports to Insurer, pursuant to which Insurer paid certain medical and hospital expenses. Insurer was aware that Appellee’s employment as Prison Guard was totally different from .that of Appellee’s former position of Farm Supervisor and that Appellee was totally and permanently disabled to perform the work of Farm Supervisor. The record does not support Insurer’s claim that the Department advised Insurer to discontinue compensation payments because none were due under the Department’s interpretation of Civil Service Rules. Insurer is charged with knowledge of the law that retirement benefits paid an employee may not be charged against compensation due. In view of the circumstances, the assessment of penalties and attorney’s fees by the trial court was eminently proper. See Horn v. Vancouver Plywood Company, La.App., 322 So.2d 816; Morgan v. Lumbermen’s Mutual Casualty Company, La.App., 317 So.2d 7; DeJean v. B. F. Trappey’s Sons, Inc., La.App., 285 So.2d 297; Landry v. Bituminous Casualty Company, La.App., 244 So. 2d 105.

We find, however, that the trial court erred in assessing penalties against all compensation due rather than only on compensation due more than sixty days.

La.R.S. 22:658 subjects the insurer to penalty for failure to pay within sixty days of date of demand, of 12% damages, “on the total amount of the loss.” The language of the statute is unclear and has thus given rise to some disagreement among the authorities on the question of whether penalties may be assessed against all compensation awarded or merely against payments more than sixty days past due. The overwhelming weight of the jurisprudence holds that such penalties are due only on weekly compensation payments, past or future, which were paid or which might be paid more than sixty days after their due date. Wright v. National Surety Corp., 221 La. 486, 59 So.2d 695; King v. Insurance Company of North America, above; Ray v. Superior Iron Works and Supply Company, Inc., La.App., 284 So.2d 140; Thibodeaux v. Associated Distributing Company, La.App., 260 So.2d 46; Jackson v. Phoenix Insurance Company, La.App., 252 So.2d 511; Roberie v. Ashy Construction Company, La.App., 215 So.2d 857; Redding v. Cade, La.App., 158 So.2d 880; Guillory v. Coal Operators Casualty Company, La.App., 95 So.2d 201.

Delahoussaye v. Allen Action Agency, La.App., 300 So.2d 575, cited and relied upon by Appellee, which holds that penalties are assessable against the total award in a compensation case and not merely on payments arbitrarily withheld more than sixty days, represents a departure from the jurisprudence established by the Supreme Court in Seal v. Lionel F. Favret Company, 238 La. 60, 113 So.2d 468; Humphreys v. Marquette Casualty Co., 235 La. 355, 103 So.2d 895; and Wright v. National Surety Corp., above. For a detailed discussion of the problem, see Redding v. Cade, above. We conclude the trial court erred in awarding penalties on the total compensation awarded Appellee and reverse the judgment in this respect.

Appellee is entitled to the requested increase in the award of attorney’s fees. The initial award of $2,500.00 by the trial court appears fair and reasonable. We grant an increase of $500.00, in line with the jurisprudence which recognizes that such an award may be increased to reflect the value of legal services rendered on appeal. Chavis v. Maryland Casualty Company, La.App., 307 So.2d 663;. Payne v. Travelers Insurance Company, La.App., 299 So.2d 913; Thibodeaux v. Associated Distributing Company, above.

Appellee is also entitled to the sum of $74.10 incurred in taking the deposition of Dr. Davidson Texada. La.R.S. 13:4533 expressly provides that the cost of depositions used on the trial of a case shall be taxed as costs.

IT IS ORDERED, ADJUDGED AND DECREED: (1) That the judgment of the trial court declaring Louisiana Civil Service Commission Rule 11.21 invalid be and the same is hereby reversed and set aside and said rule declared legal and enforceable; (2) That the judgment of the trial court ordering the Department to refund plaintiff, Landry E. Basco, the sum of $417.87 representing workmen’s compensation benefits endorsed by said plaintiff to the Department, be and the same is hereby annulled, reversed and set aside; (3) That the judgment of the trial court be and the same is hereby amended to award plaintiff, Landry E. Basco, penalties of 12% on all compensation payments, past and future, which have been paid or which may hereafter be paid more than sixty days after due date; (4) That the judgment of the trial court awarding plaintiff, Landry E. Basco, attorney’s fees in the sum of $2,500.00 be and the same is increased to $3,000.00; (5) That the judgment of the trial court be further amended to award plaintiff, Landry E. Basco, judgment in the additional amount of $74.10 for taking the deposition of Dr. Davidson Texada.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that except as herein reversed and amended, the judgment of the trial court is affirmed, all costs of this appeal for which the Division and Department may be legally cast, to be paid by said agencies.

Affirmed in part, reversed in part, amended in part and rendered.

PER CURIAM.

In application for rehearing Appellee Landry E. Basco points out that in the assessment of costs herein we cast the State of Louisiana, through the Department of Corrections, and its Agri-Business Division, in solido for all costs for which state departments are amenable, but failed to assess remaining costs and also that we failed to assess any costs whatsoever against Insurer, Houston General Insurance Co.

The author of the original opinion accepts full responsibility for this oversight.

Counsel for all parties agree the error may be rectified without the necessity of granting a rehearing.

Accordingly our initial decree is amended by deleting therefrom that portion which assesses the State of Louisiana through the Department of Corrections and its AgriBusiness Division for costs. Our initial decree is also amended to assess Insurer, Houston General Insurance Co., for all costs of these proceedings.

The other grounds urged by Applicant for rehearing were considered and disposed of in our original decree.

Rehearing denied.