author: DENNIS, Justice. MARCUS, Justice

text:
    Dorothy Hebert ARDOIN et al. v. HARTFORD ACCIDENT AND INDEMNITY CO. et al.
    Nos. 60992, 61008 and 61011.
    Supreme Court of Louisiana.
    June 19, 1978.
    Rehearing Denied July 26, 1978.
    Welton P. Mouton, Jr., Law Office of Welton P. Mouton and Richard R. Kennedy, Law Office of Richard R. Kennedy, Lafayette, for defendants-respondents in three cases.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Timothy J. McNamara, Daniel G. Fournerat, Lafayette, for plaintiffs-applicants in 60992 and for respondents in 61008 and 61011.
    H. Lee Leonard, Voorhies & Labbe, Lafayette, for defendants-respondents in all three cases.
    Lynn C. Woods, Jr., Houston, Tex., for plaintiff-applicant in 61011 and for respondent in 60992 and 61008.
    James T. Guglielmo, Lewis & Lewis,' Opelousas, for applicant in No. 61008 and for respondents in 60922 and 61011.
    Stephen J. Ledet, Jr., Opelousas, amicus curiae for St. Landry Parish Medical Society-
    Thompson & Sellers, Charles M. Thompson, Jr., Abbeville, amicus curiae for Vermilion Parish Medical Society.
    J. William Pucheu, Fuselier, Pucheu & Soileau, Ville Platte, amicus curiae for Evangeline Parish Medical Society.
    Paul H. Due and Robert D. Downing, Due, Dodson & deGravelles, Baton Rouge, amicus curiae for The La. Trial Lawyers Association.
    Richard R. Kennedy, Lafayette, amicus curiae for Lafayette Parish Medical Society.
    John V. Parker, Sanders, Downing, Kean & Cazedessus, Baton Rouge, amicus curiae for La. State Medical Society.
   DENNIS, Justice.

In this case we are called upon to decide if Louisiana courts are governed by the “locality rule” in determining whether an act of a medical specialist that causes damage to his patient constitutes fault which obliges the physician to repair it.

On July 9, 1976, Lorrie Ardoin died during a “coronary artery by-pass” operation which was being performed by Dr. James Bozeman, a cardiovascular surgeon, at Our Lady of Lourdes Hospital in Lafayette, Louisiana. This type of operation requires that the patient’s heart be stopped and that his vital functions be maintained by a “heart-lung” machine throughout the surgery. The apparatus consists of a pump with tubes which are used to suction blood from the patient’s body and return it to his arteries after the blood has been oxygenated. This process is known as cardiopulmonary perfusion and the hospital attendants who operate the heart-lung machine are called perfusionists. Coincidentally with Ardoin’s operation the hospital initiated the use of new tubing manufactured by Bentley Laboratories, Inc. in its cardiopulmonary perfusion. Because the hospital previously used another medical supplier’s tubing, Bentley Laboratories’ district manager, Travis Bohannon, was present during the operation for the purpose of assisting Darrell Gregory and Ronald DeBlanc, the hospital perfusionists, in attaching the new tubing to the heart-lung machine. After the cardiopulmonary apparatus had been assembled and the surgery was underway, Dr. Bozeman attached one of the tubes to the ventricle of the patient’s heart for the purpose of pumping blood from the patient into the oxygenator. Instead of suctioning blood as it should have, however, the tube pumped air into Ardoin’s heart. Death followed instantaneously when a massive air embolism reached the patient’s brain.

The decedent’s wife and nine children brought a wrongful death action alleging various acts of negligence on the part of the following defendants: Dr. James Bozeman, the cardiovascular surgeon; Darrell E. Gregory, perfusionist; Ronald DeBlanc, perfusionist; Our Lady of Lourdes Hospital; Travis Bohannon, district manager for Bentley Laboratories, Inc.; and Bentley Laboratories, Inc. Numerous third party demands were filed by the defendants and their insurers. Our review is limited to the third party action filed by Travis Bohannon, Bentley Laboratories, Inc. and its insurers against Dr. Bozeman.

At the time of the operation there were four physicians in Lafayette holding themselves out as specialists in cardiovascular surgery, viz., Dr. Bozeman, Dr. Leslie Gui-dry, Bozeman’s expert witness, and Dr. Gui-dry’s two partners. During a trial by jury Dr. Bozeman testified that in Lafayette the customary practice during a by-pass operation did not require a cardiovascular surgeon to test a perfusion tube to determine if it was properly working before inserting it into a patient’s heart. Dr. Bozeman admitted that the direction of air flow in such a tube can be tested easily by dipping it in a sterile solution or in the blood draining into the patient’s chest cavity. However, the surgeon stated that he did not perform this test but only looked at the line to see if it was the correct one. Dr. Bozeman testified that he depended on the perfusionists to check the heart-lung machinery for proper directional flow of air in the lines because his attention must be directed to other matters of importance during the operation. Testimony given by Dr. Guidry as to the customary practice in Lafayette was in accordance with that of Dr. Bozeman.

In an effort to prove negligence on the part of Dr. Bozeman in not testing the tube before inserting it into Ardoin’s heart the third party plaintiffs sought to introduce the testimony of Dr. Prentiss Smith, a cardiovascular surgeon. Because Dr. Smith practiced in Baton Rouge and was not familiar with the care or skill of cardiovascular surgeons in Lafayette the trial judge ruled that Dr. Smith was not a competent witness. A proffer by statement was made which indicated that Dr. Smith would have testified that the degree of skill possessed and care ordinarily exercised by physicians within his specialty in the performance of a coronary artery by-pass operation requires a surgeon to test a perfusion tube by dipping it in either blood or a sterile solution before inserting it into a patient’s heart.

Upon conclusion of the trial, the jury found negligence on the part of Gregory, one of the perfusionists, and Bohannon, the district manager of Bentley Laboratories. No negligence was found by the jury on the part of Dr. Bozeman. The demands of the plaintiffs and third parties against Dr. Bozeman were dismissed and judgments to-talling $405,000 were rendered in behalf of the plaintiffs against Gregory, Bohannon and their employers and insurers. Appeals were perfected by defendants Gregory and Bohannon, their employers and their insurers. Plaintiffs answered the appeals asking for an increase in the amount of damages awarded.

On appeal the court of appeal refused to vacate or modify the awards made to the plaintiffs and affirmed the dismissal of the third party demands against Dr. Bozeman. Ardoin v. Hartford Accident & Indemnity Company, 350 So.2d 205 (La.App.3d Cir. 1977). In rejecting the third party plaintiffs’ assertions that the trial court erred in precluding the testimony of Dr. Prentiss Smith, the Baton Rouge specialist, the intermediate court relied primarily on this Court’s opinion in Meyer v. St. Paul-Mercury Indemnity Co., 225 La. 618, 73 So.2d 781 (1953). In that cáse this Court stated that a physician, surgeon or dentist has a duty to exercise the degree of skill ordinarily employed, under similar circumstances, by the members of his profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his best judgment in the application of his skill to the case. Since Dr. Smith was not qualified to testify as to the degree of skill ordinarily employed by specialists performing cardiovascular surgery in Lafayette, the court of appeal concluded that his testimony was correctly excluded. Secondarily, the intermediate court held that no modifications in the law favorable to medical patients had been effected by La.R.S. 9:2794 and that the trial court’s ruling was therefore consistent with this statute.

We granted writs on behalf of third party plaintiff Bohannon, his employer and their insurers, to review the questions of law raised by the exclusion of Dr. Smith’s testimony, viz., whether the interpretation of the law as to a physician’s duty to his patient was correctly set forth in Meyer v. St. Paul-Mercury Indemnity Co.; whether the law in this regard was altered by La. R.S. 9:2794; and, if so, whether the legislation applies to quasi-offenses occurring before its effective date.

The standard of conduct required of persons in Louisiana in their relationships with one another is stated in simple, general terms set forth in Article 2315 of the Louisiana Civil Code of 1870:

“Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it.
a * * * y*

This single article forms the basis of all tort liability in Louisiana. The remaining articles of the Civil Code’s chapter of legal principles regulating offenses and quasi-offenses, Articles 2316 through 2324, contain amplifications as to what constitutes “fault” and under what circumstances a defendant may be held liable for his act or that of a person or thing for which he is responsible.

Under the civilian tradition of our state the courts have been given a broad, general principle of legislative will from which they are required to determine when the interest of society is best served by requiring one who harms another to respond in damages for the injury caused. In deciding whether the conduct in a specific case falls below that in which a person can engage without becoming responsible for resultant damage, a court must refer first to the fountainhead of responsibility, Article 2315, and next in applying the article to the many other articles in our code which deal with the responsibility of certain persons or that which arises due to certain types of activity. After searching through the code itself a jurist should refer in turn to the acts of the legislature, local governments, and other legislative and administrative bodies. Then, having explored the legislative and administrative sources of standards of proper conduct, a court should turn next to the experience of the judiciary in the interpretation and application of these standards to actual situations.

In deciding the issue before us the lower courts did not follow the process of referring first to the code and other legislative sources but treated language from a judicial opinion as the primary source of law. This is an indication that the position of the decided case as an illustration of past experience and the theory of the individualization of decision have not been properly understood by our jurists in many instances. Therefore, it is important that we plainly state that, particularly in the changing field of delictual responsibility, the notion of stare decisis, derived as it is from the common law, should not be thought controlling in this state. The case law is invaluable as previous interpretation of the broad standard of Article 2315, but it is nevertheless secondary information.

Starting first with the keystone for tort responsibility in Louisiana, Article 2315, we notice that it places no geographical or occupational limitations on the notion of “fault.” Likewise, Article 2316 speaks very broadly of every person’s responsibility for the damage he shall occasion “not merely by his act, but by his negligence, his imprudence, or his want of skill.” Under these articles a medical specialist who injures a patient through his negligence, imprudence or want of skill must respond in damages. The code does not in any of its articles condition recovery by an injured patient upon proof of the physician’s fault in relation to the medical standard of care or skill within a particular community or locality. Accordingly, the code itself does not provide for special or localized definitions of negligence, imprudence or want of skill by doctors.

By Act 807 of 1975, which became La.R.S. 9:2794, however, the legislature enacted legislation apparently intended to have an effect of this sort upon the proof of fault by physicians and dentists not engaged in a specialized practice. The statute expressly states that a patient who has been damaged by the act or omission of a physician or dentist must prove the degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians or dentists practicing in the same community or locality in which the defendant practices. The statute further requires that in order to recover a patient must also prove that he suffered injuries proximately caused by the defendant’s lack of knowledge or skill or the failure to use reasonable care and diligence, along with his best judgment.

In contrast with the standard of conduct and burden of proof affecting practitioners not engaged in a specialty, the statute further provides that where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff “has the burden of proving the degree of care ordinarily practiced by physicians or dentists within the involved medical specialty.” Thus, the legislature has provided guidance in applying the Civil Code’s general principle of fault to the acts of a particular medical specialist by directing that they be measured by the degree of care ordinarily practiced by others involved in the same specialty. Unlike the statute’s standard of care for practitioners not engaged in a specialty, the specialist’s duty is not governed by the professional standard within a particular locality or community.

The court of appeal read the statute differently and concluded that it impliedly provides localized definitions of negligence, imprudence and want of skill by medical specialists. This erroneous interpretation resulted from a misapprehension of the civilian nature of our delictual responsibility laws as well as a disregard of the rules for their interpretation set forth in Articles 13-20 of the Civil Code.

Instead of beginning with the keystone of responsibility, Article 2315, and reading La. R.S. 9:2794 in the light of it and other pertinent articles, the intermediate court approached the problem as one of deciding the extent, if any, to which the jurisprudence had been amended by the legislative act. Thus, rather than reading La.R.S. 9:2794 as the lawmakers’ indication of how the basic principle of Article 2315, as amplified by Article 2316, should be applied in a particular class of cases, the appeals court measured the enactment solely against language contained in a judicial opinion. The basic error in this method of interpretation is that it not only ignores the first principles of our law but it also assumes that jurisprudence is equivalent to legislation instead of treating it as judicial interpretation which may or may not adequately reflect the meaning of the laws for contemporary purposes.

On the other hand, adherence to civilian theory requires a jurist to begin with the broad principle of Article 2315 that everyone must repair the damage caused by his fault, and with the amplification of Article 2316 that fault includes everyone’s negligence, imprudence or want of skill as measured against a general standard of conduct. Due notice next should be taken of our constitution’s virtual prohibition of local legislation and the lack of any geographical differentiation between physicians licensed in Louisiana under the medical practice act. A comparison should be made of the laws prescribing uniform standards of competence or conduct for other professions or classes of occupations. At this point a tenet of our legal philosophy becomes apparent, i. e., that civil and criminal sanctions imposed for socially unacceptable conduct should be applied equally throughout the state to all citizens within the same class or set of circumstances. Therefore, one must conclude that, if the legislature were to act contrary to this policy by establishing a different definition of negligence, imprudence or want of skill by a medical specialist within each locality, the lawmaking body would express its intention explicitly. Since La.R.S. 9:2794 contains no such expression pertaining to medical specialists, the statute should not be given the effect of Balkanizing those representing themselves as having superior skill or knowledge beyond that common to the medical profession by the application of varying geographic standards of fault.

Furthermore, an application of the Civil Code rules of statutory construction leads to the same conclusion. As the court of appeal opinion plainly reflects, words must be added by the court to the portion of the statute pertaining to medical specialists in order to tie the standard of conduct prescribed therein to the locality rule. Such an interpretation tends to disregard the expression of the legislative will. Courts must give to the words used by the legislature the meaning they are ordinarily understood to have, and when the law is clear and free from any ambiguity, the letter of it must not be disregarded under the pretext of pursuing its spirit. La.C.C. arts. 13, 14.

Since the meaning of the law is not dubious, it is unnecessary to consider the reason and spirit of it, cf. La.C.C. art. 18, but a survey of the possible considerations underlying its enactment confirms our interpretation.

By refusing to adopt a standard tied to locality for specialists, the legislature simply may have chosen to recognize the realities of medical life. The various medical specialties have established uniform requirements for certification. The national boards dictate the length of residency training, subjects to be covered, and the examinations given to the candidates for certification. Thus the medical profession itself recognizes national standards for specialists that are not determined by geography. Indeed, whatever may have justified a locality rule for physicians fifty or a hundred years ago cannot be reconciled with the actualities of medical practice today. The quality of medical school training has improved dramatically. With modern transportation and communication systems, new techniques and discoveries are available to all doctors within a short period of time through seminars, medical journals, closed circuit television presentations, special radio networks for doctors, tape recorded digests of medical literature, and current correspondence courses.

It is generally recognized that a rule of law which restricts proof of medical negligence to a standard of care within a locality tends to promote three evils: (1) It may effectively immunize from liability any doctor who happens to be the sole practitioner in his community. “He could be treating bone fractures by the application of wet grape leaves and yet remain beyond the criticism of more enlightened practitioners from other communities;” (2) The practitioners in a community are able to establish the standard of care which could, perhaps, be an inferior one; (3) A “conspiracy of silence” in the plaintiff’s locality could effectively preclude any possibility of obtaining expert ■ medical testimony. Because fewer specialists than generalists are likely to be found in most communities, the potential for these detrimental effects would only be exacerbated by extending the locality rule to specialists.

In recognition of the locality rule’s possible harsh consequences and the fact that the practice of medicine by certified specialists within most medical specialties is similar throughout the country, many jurisdictions have abandoned entirely the locality rules as to specialists. Bruni v. Tatsumi, 46 Ohio St.2d 127, 346 N.E.2d 673 (1976); Shilkret v. Annapolis Emergency Hospital Association, 276 Md. 187, 349 A.2d 245 (1975); Shier v. Freedman, 58 Wis.2d 269, 206 N.W.2d 166 (1973); Naccarato v. Grob, 384 Mich. 248, 180 N.W.2d 788 (1970); Wiggins v. Piver, 276 N.C. 134, 171 S.E.2d 393 (1970); Kronke v. Danielson, 108 Ariz. 400, 499 P.2d 156 (1972); Brune v. Belinkoff, 354 Mass. 102, 235 N.E.2d 793 (1968). This is consistent with the position advocated by the American Law Institute. Restatement of Torts (Second) § 299A (1965) (comment d).

Moreover, only a distinct minority of states still adhere to the strict locality rule. Dunham v. Elder, 18 Md.App. 360, 306 A.2d 568 (1973); Gandara v. Wilson, 85 N.M. 161, 509 P.2d 1356 (1973); Levett v. Etkund, 158 Conn. 567, 265 A.2d 70 (1969); Lockart v. Maclean, 77 Nev. 210, 361 P.2d 670 (1961). A plurality of states now apply the “similar locality” rule, see, e. g., Mecham v. McLeay, 193 Neb. 457, 227 N.W.2d 829 (1975); Karrigan v. Nazareth Convent & Academy, Inc., 212 Kan. 44, 510 P.2d 190 (1973); Runyon v. Reid, 510 P.2d 943 (Okl.1973); Burton v. Smith, 34 Mich.App. 270, 191 N.W.2d 77 (1971); Incollingo v. Ewing, 444 Pa. 263, 299, 282 A.2d 206 (1977); whereas some courts have extended geographic boundaries to include those centers readily accessible for appropriate treatment. See, Gist v. French, 136 Cal.App.2d 247, 288 P.2d 1003 (1955); Josselyn v. Dearborn, 148 Me. 328, 62 A.2d 174 (1948); Tvedt v. Haugen, 70 N.D. 338, 294 N.W. 183 (1940); cf. Pederson v. Dumouchel, 72 Wash.2d 73, 431 P.2d 973 (1967).

Although as noted by the court of appeal, La.R.S. 9:2794 was enacted as part of a legislative campaign to provide the medical profession with additional protection from occupational litigation, there is no justification for assuming that every sentence in this body of laws must be construed against its obvious meaning and in favor of the interest group which it generally benefits. Casual observation tells us that all legislation is founded on the principle of mutual concession. To interpret a statute in a totally one-sided manner simply because it was introduced and passed at the behest of one class of citizens may in effect read out of the law compromises which were crucial to its enactment. There is no logical reason why the legislature could not have intended to afford various protections to the medical profession and at the same time reject the idea of localized standards of conduct as to specialists. It is evident, in fact, that a locality rule for specialists would not be rooted in reality.

If La.R.S. 9:2794 does not adopt a standard tied to locality for specialists, counsel for respondent Dr. Bozeman alternatively contends that the statute can have no application to the instant case. Although the statute was in effect before the trial, he argues that because it was enacted subsequent to Ardoin’s death it cannot be applied retrospectively to the wrongful death action resulting therefrom.

The general principle of non-retroactivity of laws is stated in Article 8 of the Civil Code, which provides:

“A law can prescribe only for the future; it can have no retrospective operation, nor can it impair the obligation of contracts.”

According to civilian theory, however, the principle of non-retroactivity of existing legislation admits three exceptions: laws that suppress or lessen penalties, laws that are merely interpretive of existing legislation, and those that the legislature has expressly or impliedly declared to be retroactive. 1 M. Planiol, Civil Law Treatise, Nos. 249-252 (La.St.L.Inst.Transl.1959); A. Yiannopoulos, Civil Law System, 68 (1977).

The exception relating to interpretive laws has been explained by Professor Yian-nopoulos as follows:

“ * * * The exception ... is justified on the ground that these laws do not establish new rules; they merely determine the meaning of existing laws and may thus be applied to facts occurring prior to their promulgation. In these circumstances, there is an apparent rather than real retroactivity, because it is the original rather than the interpretive law that establishes rights and duties. * * ” Yiannopoulos, supra, at p. 68.

This Court has recognized that interpretive legislation cannot properly be said to divest vested rights, because, under civilian theory, such legislation does not violate the principle of non-retroactivity of laws. The interpretive legislation does not create new rules, but merely establishes the meaning that the interpreted statute had from the time of its enactment. It is the original statute, not the interpretive one, that establishes rights and duties. Gulf Oil Corporation v. State Mineral Board et al., 317 So.2d 576 (La.1974); 1 M. Planiol, Treatise on the Civil Law, § 251 at 179 (La.State L.Inst. Transl.1959); cf. Green v. Liberty Mutual, 352 So.2d 366 (La.App. 4th Cir. 1977).

According to this Court’s consistent interpretation, Article 8 of the Civil Code contemplates substantive laws as distinguished from merely procedural or remedial laws which will be given retroactive effect in the absence of language showing a contrary intention. General Motors Acceptance Corporation v. Anzelmo, 222 La. 1019, 1028, 64 So.2d 417, 420 (1953); Stallings v. Stallings, 177 La. 488, 148 So. 687 (1933); State v. Brossette, 163 La. 1035, 113 So. 366 (1927).

Applying these principles to La.R.S. 9:2794, we conclude that the statute should be given retrospective effect. To the extent that the statute establishes a burden of proof in malpractice actions, it clearly should be characterized as procedural and therefore applied to pre-existing facts and relations. Insofar as the statute describes a standard of conduct, it merely determines more precisely the meaning of certain kinds of fault by certain classes of defendants, i. e., professional negligence, imprudence and want of skill by medical generalists and specialists, who were originally responsible for the damage occasioned by such fault under Articles 2315 and 2316. Accordingly, La.R.S. 9:2794 is an interpretive statute which does not establish new rights and duties but merely determines the meaning of existing laws and may thus be applied to facts occurring prior to its promulgation.

Having consulted the pertinent legislative sources for standards of proper conduct, we turn next to the experience of the judiciary in search of assistance in the interpretation and application of these standards to the actual situation at hand. Unfortunately, there does not appear to be any previous case in which a court has actually utilized either the civil code or La.R.S. 9:2794 in determining a physician’s standard of conduct. Before the enactment of La.R.S. 9:2794 this Court had several opportunities to refer to Articles 2315 and 2316 in suits based on medical negligence, imprudence or want of skill, but in each case it either failed to disclose the legal basis of its decision or chose to rely on the jurisprudence of other states. Consequently, there does not appear to be any authoritative judicial interpretation of Louisiana statutory law pertinent to a physician’s duty toward his patient. Moreover, the extant court opinions based on foreign authorities are inconsistent in the articulation of a standard of medical care and in the application of the varying standards to the facts of each case.

In one of the earliest cases on the subject, this Court, without citing any authority, declared in its syllabus that an oculist “must exercise . . . the care and skill usually exercised by oculists in good standing . . [and] may be rendered liable for his gross mistakes.” No mention of geographical limits appeared in the jurisprudence until Roark v. Peters in which a common law cyclopedia was relied upon to announce that physicians would be held to the standard of skill and learning in “similar localities.” Twenty-eight years later this Court again relied on common law authorities in narrowing the similar locality rule to a “strict” or “same locality” rule in Meyer v. St. Paul-Mercury Indemnity Co. Although the rule was proclaimed once more in 1966 by the opinion of Uter v. Bone and Joint Clinic, the Court ignored it in discussing with seeming approval the testimony of a New Orleans specialist in the trial of the defendant Baton Rouge doctor. In view of the lack of coherence in this Court’s decisions it is not surprising that the courts of appeal have also been inconsistent.

Prom our review of these cases, we conclude that in this field this Court and the intermediate courts have failed to base their decisions on applicable civil code articles and statutes. Instead, the courts uncritically adopted from common law cyclopedias malpractice rules which no longer represent either the prevailing or the emerging view in the nation. The past decisions by Louisiana appellate courts demonstrate the danger of forsaking the first principles of our own law for the momentary consensus of the law in other states. Insofar as Meyer v. St. Paul-Mercury Indemnity Co. and our jurisprudence are in conflict with the views expressed in this opinion, they are expressly overruled.

Conclusion

For the foregoing reasons, we hold that a medical specialist is required by La. Civil Code Articles 2315 and 2316, and La. R.S. 9:2794, to exercise the degree of care and possess the degree of knowledge or skill ordinarily exercised and possessed by physicians within his medical specialty; that the plaintiff seeking to prove that a medical specialist failed to adhere to these standards of care or skill is not limited to expert medical testimony by witnesses practicing or familiar with the standards of care and skill within the defendant specialist’s community or locality; and that, accordingly, the lower courts fell into error in the instant case by ruling that testimony pertaining to the standard of care or skill within the involved medical specialty could not be presented because of a locality rule.

Accordingly, testimony of qualified experts, regardless of whether practicing within or familiar with the defendant doctor’s locality is admissible to prove the degree of care ordinarily exercised and the degree of skill or knowledge ordinarily possessed by physicians within the involved medical specialty. However, evidence of the local facilities and resources available, as well as evidence of other pertinent local conditions, is also admissible and should be considered by the trier of fact in determining whether a physician exhibiting the care, knowledge and skill ordinarily exhibited by physicians within the involved medical spe-ciality would have acted or failed to act in the manner of the defendant doctor at the time in question.

The judgment of the court of appeal is reversed and the third party demand of Bohannon, his employer and their insurers against Dr. Bozeman is remanded to the trial court for a new trial in accordance with the views expressed herein. Costs in this Court are assessed to the third party defendants.

SANDERS, C. J., concurs.

SUMMERS, J., dissents.

MARCUS, J., concurs and assigns reasons.

MARCUS, Justice

(concurring).

La.R.S. 9:2794 provides in pertinent part:

A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., or a dentist licensed under R.S. 37:751 et seq., the plaintiff shall have the burden of proving:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians or dentists practicing in the same community or locality to that in which the defendant practices; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians or dentists within the involved medical specialty-

The issues presented for determination in the instant case are whether the above statute should be given retrospective effect and, if so, whether the legislature intended by this statute to extend the “same community or locality” rule applied generally to physicians or dentists in the first part of subsection A(l) to medical specialists referred to in the second part.

First, I agree that the statute should be given retrospective effect for the reasons assigned in the majority opinion. Secondly, the statute provides that, where a defendant (physician or dentist) practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the “burden of proving” the degree of care ordinarily practiced by physicians or dentists “within the involved medical specialty.” In my view, the statute makes it clear that the “same community or locality” rule which applies generally to physicians or dentists in the first part of the subsection does not apply to medical specialists in the second part; rather, medical specialists are required to exercise the degree of care and possess the degree of knowledge or skill ordinarily exercised by physicians “within the involved medical specialty.” Hence, the courts below erred by ruling that testimony pertaining to the standard of care or skill within the involved medical specialty could not be presented because of the locality rule. Accordingly, I respectfully concur.

      . Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133 (1971); Stone, Tort Doctrine in Louisiana, 17 Tul.L.Rev. 159, 163 (1941).

      . Loescher v. Parr, 324 So.2d 441 (La.1976).

      . Langlois v. Allied Chemical Corp., supra, 249 So.2d at 137.

      . Langlois v. Allied Chemical Corp., supra, 249 So.2d at 137; see, Loescher v. Parr, 324 So.2d 441 (La.1976); Turner v. Bucher, 308 So.2d 270 (La.1975); Holland v. Buckley, 305 So.2d 113 (La.1974); Stone, Tort Doctrine in Louisiana, 17 Tul.L.Rev. 159, 212.

      . Langlois v. Allied Chemical Corp., supra, 249 So.2d at 137; Pierre v. Allstate Ins. Co., 257 La. 471, 242 So.2d 821 (1971); Stone, Tort Doctrine in Louisiana, 17 Tul.L.Rev. 159, 213 (1942).

      . See, Stone, Tort Doctrine in Louisiana, 17 Tul.L.Rev. 159, 214 (1942); Morrow, Louisiana Blue Print: Civilian Codification and Legal Method for State and Nation, 17 Tul.L.Rev. 351 (1943); Daggett, Dainow, Hebert & McMahon, A Reappraisal Appraised: A Brief for the Civil Law of Louisiana, 12 Tul.L.Rev. 12, 20 (1937); Cf. Holland v. Buckley, 305 So.2d 113, 119 (La.1974); Miami Corporation v. State, 186 La. 784, 173 So. 315 (1936).

      . As Professor Stone observed:
      “There is much wisdom in the reports, much useful analogy, much experience, but even so, we must remember that neither wisdom nor experience is the monopoly of any one age or of any one set of judges. The search for truth and justice must be a continual search, a building from the truth and error of the past to the solution of the present and the hope for the future.” 17 Tul.L.Rev. 159, 214.

      . La.R.S. 9:2794 provides, in pertinent part:
      “(A) In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., or a dentist licensed under R.S. 37:751 et seq., the plaintiff shall have the burden of proving:
      “(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians or dentists practicing in the same community or locality to that in which the defendant practices; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians or dentists within the involved medical specialty.
      “(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill, and
      “(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

      . La.R.S. 9:2794.

      . See, Holland v. Buckley, 305 So.2d 113, 119 (La.1974).

      . See, La.Const.1974, Art. 3, § 12, prohibiting local or special laws concerning civil actions including “changing the rules of evidence in any judicial proceeding or inquiry before courts * * *.”

      . La.R.S. 37:1261 et seq.

      . See, e. g., The Code of Professional Responsibility in the Articles of Incorporation of the Louisiana State Bar Association (attorneys); La.R.S. 37:141 et seq. (architects); La.R.S. 37:911 et seq. (nurses); La.R.S. 37:1171 et seq. (pharmacists); La.R.S. 37:1431 et seq. (real estate brokers).

      .The court of appeal interpreted the statute in the following manner:
      “ * * * The initial phrase in sub-section A(l) modifies the second phrase in that subsection to the end that plaintiffs burden in a malpractice suit involving alleged acts of medical negligence peculiar to a particular medical specialty is to prove the degree of care ordinarily practiced by physicians within the involved medical specialty ‘in the same community or locality to that in which the defendant practices.’ ” 350 So.2d 205, 219.

      . Shilkret v. Annapolis Emergency Hospital Association, 276 Md. 187, 349 A.2d 245 (1975); Comment, Medical Specialties and the Locality Rule, 14 Stan.L.Rev. 884 (1962).

      . The rationale for the geographically limited standard of care developed by the courts many years ago was to protect doctors practicing in rural areas who were unable to keep current with developments emerging in the urban centers because of slow modes of transportation and communication. The rural practitioner was not expected to meet the same standard of care as the city doctor who had access to a metropolitan hospital and its facilities for both treatment and learning. See, discussion in Brune v. Belinkoff, 354 Mass. 102, 235 N.E.2d 793 (1968) and authorities cited in footnote 17, infra.

      . J. Waltz, The Rise and Gradual Fall of the Locality Rule in Medical Malpractice Litigation, 18 DePaul L.Rev. 408 (1969); Comment, A Review of the Locality Rule, 1975 Univ. of Ill.L. Forum 96; Comment, Standard of Care for Medical Specialists, 16 St. Louis Univ.L.J. 497 (1972); Comment, An Evaluation of Changes in the Medical Standards of Care, 23 Vand.L.Rev. 729 (1970); Comment, Standard of Care for Medical Practitioners—The Locality Rule, 14 S.Dak.L.Rev. 349 (1969); Comment, The Locality Rule in Medical Malpractice Suits 5 Cal.W.L.Rev. 124 (1968); Comment, Recent Developments—Medical Specialties and the Locality Rule, 14 Stan.L.Rev. 884 (1962); Note, 38 Ohio St.L.J. 202 (1977); Note, 25 Ark.L.Rev. 169 (1971); Note, 18 DePaul L.Rev. 328 (1968). Bruni v. Tatsumi, 46 Ohio St.2d 127, 346 N.E.2d 673 (1976); Shilkret v. Annapolis Emergency Hospital Association, 276 Md. 187, 349 A.2d 245 (1975).

      . J. Waltz, The Rise and Gradual Fall of the Locality Rule in Medical Malpractice Litigation, 18 DePaul L.Rev. 408, 411 (1969).

      . See authorities cited in Footnote 17 supra.

      . Comment, Medical Specialties and the Locality Rule, 14 Stan.L.Rev. 884, 887-89 (1962).

      . See, La.R.S. 9:2793, 2794; La.R.S. 40:1299.41 et seq.; Everett v. Goldman, 359 So.2d 1256 (La.1978).

      . See, Percle v. St. Paul Fire and Marine Ins. Co., 349 So.2d 1289 (La.App. 1st Cir. 1977), in which the court of appeal mistakenly assumed La.R.S. 9:2794 could not be applied retrospectively.

      . Stern v. Lanng, 106 La. 738, 31 So. 303 (1901).

      . 162 La. 111, 110 So. 106 (1926).

      . 225 La. 618, 73 So.2d 781 (1954). Although the opinion cites Louisiana appellate decisions, along with Corpus Juris Secundum, the cases do not support the rule as announced.

      . 249 La. 851, 192 So.2d 100 (1966).

      . Although the courts of appeal often cite Meyer as establishing the standard of care owed by physicians, its language has not been followed consistently in determining the competency of an expert witness to testify on the issue of negligence. Some intermediate courts have held that an expert witness who does not practice in the defendant’s community and who is not familiar with the standard of care practiced in that community is incompetent to testify. See, Caldwell v. Parker, 340 So.2d 695 (La.App. 4th Cir. 1976); cf. Charoleau v. Charity Hospital, 319 So.2d 464 (La.App. 4th Cir. 1975); Samuels v. Doctors Hospital, Inc., 414 F.Supp. 1124 (W.D.La.1976). Others, however, have considered the testimony of “non-local” experts. Chapman v. Argonaut-Southwest Ins. Co., 290 So.2d 779 (La.App. 1st Cir. 1974); Zachary v. St. Paul Fire and Marine Ins. Co., 249 So.2d 273 (La.App. 1st Cir. 1971). Another departure from the Meyer strict locality rule is found in the approach taken by the appellate court in Favalora v. Aetna Casualty and Surety Co., 144 So.2d 544 (La.App. 1st Cir. 1962). In that case the court held that a doctor’s compliance with the community standard of care would not shelter him from liability if the procedure followed by the doctor is recognized by members of the same profession not only as being faulty but also contrary to what members of the profession have been taught in medical institutions of learning.


source: Caselaw Access Project

author: DENNIS, Justice.

license: Public Domain

text:
    STATE of Louisiana v. W. D. ATKINS, Jr.
    No. 61156.
    Supreme Court of Louisiana.
    June 19, 1978.
    Rehearing Denied July 26, 1978.

      Richard V. Burnes, Gravel, Roy & Burnes, Alexandria, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., for plaintiff-appel-lee.
   DENNIS, Justice.

Defendant W. D. Atkins, Jr. was charged by short form indictment with “a theft of $20,373.46 in U.S. currency belonging to one Pamela B. Gray in violation of the provisions of R.S. 14:67.” Following a jury trial, defendant was found guilty as charged and sentenced to six years at hard labor. On appeal Atkins relies upon ten assignments of error for reversal of his conviction and sentence.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

Defendant contends that the trial court erred in denying his motion to quash the indictment, both as to the indictment standing alone and as to the indictment when considered in light of the state’s answers to the defendant’s motion for a bill of particulars. He presents four specific arguments for our consideration: (1) an essential averment was deleted from the short form indictment because of the failure to specify the value of the property taken; (2) the indictment and bill of information failed to state an offense which occurred within Lafayette Parish; (3) the indictment and answers to the bill of particulars failed to provide the defendant with adequate information concerning the charges against him; and (4) a transcript of defendant’s deposition, taken in a civil case involving the same parties and introduced by stipulation at the hearing on the motion to quash, indicates defendant’s innocence of the charged offense.

We will consider the arguments in the order presented:

(1) The defendant’s contention that the short form indictment was fatally defective for failure to set forth the value of the stolen property is unmeritorious. The allegation that defendant was guilty of theft of “$20,373.46 in U.S. currency” sufficiently fulfills the requisites of the statutory short form indictment, since the value of all stolen property must, of necessity, be expressed in monetary terms.

(2) Defendant’s second argument in effect urges that the prosecution was brought in an improper venue because the indictment, along with the State’s answers to the bill of particulars, does not allege that any element of the charged offense occurred in the parish where the trial was scheduled. La.C.Cr.P. art. 611. However, defendant’s motion to quash the indictment did not contain an allegation that the venue was improper. La.C.Cr.P. art. 615. Nevertheless, even in the absence of a motion to quash for improper venue, the State must prove proper venue at trial beyond a reasonable doubt. La.C.Cr.P. art. 615; State v. Frank, 355 So.2d 912 (La.1978); State v. Dillon, 260 La. 215, 255 So.2d 745 (1971). While this Court may not weigh for sufficiency the State’s evidence as to venue, when the jury has determined the issue adversely, to the defendant by a verdict of guilty, we may, provided that the issue is presented by the defendant’s motion for a new trial, grant relief if there was no evidence whatsoever as to the proper venue. State v. Dillon, supra; see also, State v. Richard, 245 La. 465, 158 So.2d 828 (1963). In the instant case, however, the defendant’s motion for new trial contained no allegation that the State had failed to prove that the proper venue of the charged offense was Lafayette Parish. Moreover, our review of the record indicates that there is substantial evidence that an “act or element” of the offense of theft occurred in Lafayette Parish. Defendant’s second contention relating to the motion to quash lacks merit.

(3) Defendant contends that the trial court erred in determining that the short form indictment and the State’s answer and amended answer to the bill of particulars gave him sufficient information to prepare a defense. Article I, § 13 of the Louisiana Constitution of 1974 grants an accused the right to “be informed of the nature and cause of the accusation against him.” One implementation of this constitutional guarantee is Louisiana Code of Criminal Procedure Article 484, which gives to a criminal defendant the right to require the district attorney to furnish a bill of particulars “setting up more specifically the nature and cause of the charge against [him].” Although a defendant is not entitled by a bill of particulars to discover the details of the evidence with which the State expects to prove its case, and although the trial court is vested with wide discretion in determining the sufficiency of the State’s answers, this Court has found reversible error in the failure to provide information of the nature and cause of the accusation against the accused as required by the constitution. For example, in State v. Miller, 319 So.2d 339 (La.1975), in reversing a conviction on these grounds, this Court set forth some of the factors to be considered in determining whether a defendant was given all of the information to which he is constitutionally entitled;

“The state is required, upon defendant’s motion, to provide a criminal defendant with enough information so that he can identify the criminal transaction. There is no exact formula which can be applied to every charge to determine in a particular case whether a defendant has all of the information to which he is constitutionally entitled. In general, however, the extent to which the bill should be granted turns on the complexity of the case. If the crime is a single event, such as a murder, the scope of the bill will be less extensive than it will be if the crime involved is a series of occurrences, such as tax fraud or bootlegging. When a crime charged may be committed in a number of different ways, this Court has always recognized the accentuated need for the state to furnish particulars. Likewise, when the crime involves not a single occurrence but a series of occurrences, the state must supply enough information so that the accused can identify each criminal transaction. 319 So.2d at 342-3. [citations omitted]

In the instant case, the State’s original answer, to the defendant’s motion for a bill of particulars provided little information relating to the acts which constituted the alleged theft. However, prior to trial, the State amended its answers to provide a detailed summary of the manner in which the offense was committed. Defendant was informed that he was charged with the theft of a specific amount of money from a particular identified client between the dates of February 3, 1975 and July 17, 1975 by taking them from an account in the American Bank & Trust Company in Baton Rouge which defendant had opened for the purpose of safekeeping and investment of the funds. Although the State could not inform defendant of the exact time and manner of the taking the information was specific enough to enable him to identify the alleged criminal transaction and to prepare a defense. Therefore, we find that defendant’s contention relating to the sufficiency of the answers to the bill of particulars is meritless.

(4) Defendant contends that the trial court erred in failing to quash the indictment because the defendant’s deposition, which was taken in connection with a civil action involving the victim of the alleged offense and introduced by stipulation at the hearing on the motion to quash, indicated that the defendant was innocent of the charged offense.

The question of factual guilt or innocence of the offense charged is not properly raised by the motion to quash. State v. Rembert, 312 So.2d 282 (La.1975). Further, the only issue presented to the trial judge for his consideration was whether the indictment charging the defendant with theft was insufficient as a matter of law or unconstitutionally vague. Since the instant objection was not contemporaneously urged, and since the trial judge could not at any rate have properly considered the issue of guilt or innocence in such a proceeding, defendant’s contention is insubstantial.

ASSIGNMENT OF ERROR NO. 3

Defendant contends that the trial court erred in failing to grant a motion for a continuance based upon the absence of a material witness. La.C.Cr.P. art. 709, which governs applications for continuance based upon the unavailability of witnesses, provides:

“A motion for a continuance based upon the absence of a witness must state:
“(1) Facts to which the absent witness is expected to testify, showing the materiality of the testimony and the necessity for the presence of the witness at the trial;
“(2) Facts and circumstances showing a probability that the witness will be available at the time to which the trial is deferred; and
“(3) Facts showing due diligence used in an effort to procure attendance of the witness.”

In the instant case, the victim of the alleged theft was a client of defendant, an attorney. The State’s theory of the case was that defendant wrongfully misappropriated funds which he received as the proceeds of a settlement between Mrs. Gray and an insurance company following the death of her husband. Following the settlement, Mrs. Gray and defendant entered into a contract which allowed him to hold and invest the proceeds, at his discretion, for a certain period of time.

Prior to trial, defendant sought a continuance because Janice Deshotels, his former secretary and a witness to the signing of the contract, was absent from the state and presently unavailable to testify at trial. At the hearing on the motion, defendant’s counsel stated that the witness, who was in California where her husband had recently undergone surgery, would testify that Mrs. Gray understood the contract and that the defendant was not present when the contract was signed, thereby refuting any charge of misrepresentation which the State might make. Defendant’s counsel further stated that, although he had not issued a subpoena to compel the attendance of Mrs. Deshotels, he had only recently learned of her location, and she had informed him by telegram that she would appear in three to seven weeks.

The trial judge, in his per curiam to the instant assignment of error, stated that defendant’s failure to subpoena Mrs. Desho-tels indicated that the codal requisite of due diligence had not been met; he further stated that he believed that the witness’ testimony as to Mrs. Gray’s understanding of the contracts would be inadmissible because the witness would be stating a conclusion of law.

Our review of the record reveals no abuse of discretion on the part of the trial judge which would constitute reversible error under the prior decisions of this Court. The trial court’s finding that under the circumstances the defendant’s failure to subpoena the witness indicated a lack of due diligence, and its holding that defendant did not demonstrate that material, admissible testimony would be produced if the continuance were granted, is supportable under the record in this case. Since we find that the trial judge’s decision did not constitute an abuse of the discretion accorded him under the article, we find defendant’s third assignment of error to be without merit.

ASSIGNMENTS OF ERROR NOS. 4 AND 5

Defendant contends that the trial judge erred in refusing to grant a mistrial when the prosecutor referred in his opening statement to defendant’s deposition and worksheet which were taken in a civil proceeding involving the same parties. He further asserts that the court’s admonition to the jury was insufficient to mitigate the damage ensuing from the prosecutor’s remarks. The prosecuting attorney stated:

“The money was not paid and a suit was filed on behalf of Pamela Gray against W. D. Atkins for payment of the money that she claimed she was entitled to. During the proceedings' of this suit, Mr. Wright took Mr. Atkins deposition in a civil matter, took his testimony, and as a result of that, a certain worksheet was produced by Mr. Atkins explaining how . . ..”

At this point, defense counsel objected and moved for a mistrial on the basis of Louisiana Code of Criminal Procedure Article 767, which provides that the prosecution “shall not, in the opening statement, advert in any way to a confession or inculpatory statement made by the defendant.” The court denied the motion, but did admonish the jury that “the statements made by either side in this matter on opening statement . as any statements of facts, are not evidence and should not be considered by you as such.” Defendant asserts that the court’s refusal to grant the motion for a mistrial constitutes reversible error. The State, however, contends that the deposition and worksheet were exculpatory rather than inculpatory in nature and that, in any event, the defendant suffered no prejudice since the documents were subsequently introduced into evidence. Since we agree with the latter assertion, we find it unnecessary to reach the issue of whether the documents constituted inculpatory statements within the contemplation of Article 767.

In State v. Snedecor, 294 So.2d 207, 209 (La.1974), this Court considered a defendant’s contention that the prosecutor, in his opening statement, had violated the mandate of Article 767. Therein this Court stated:

“Defendant contends that the prosecutor’s reference in his opening statement to a ‘police informer’, ‘bugged automobile’, ‘mike’, and ‘tape recorder’ made the jury aware that the State had an inculpa-tory statement of the defendant. Thus the denial of defendant’s motion for a mistrial under Article 767 of the Code of Criminal Procedure was erroneous.
“The article states: ‘The state shall not, in the opening statement, advert in any way to a confession or inculpatory statement made by the defendant.’ The reason for this prohibition is that, should the confession or statement not be admissible at trial, the jury’s knowledge of its existence is prejudicial to defendant’s rights. However, where the statement is subsequently introduced at trial, there can be no prejudice to the defendant flowing from the reference in the opening statement.”

See also State v. Roddy, 270 So.2d 508 (La.1972).

The situation presented in the instant review is similar to that found in the Snede-cor case. Since the civil deposition and “worksheet” of the defendant were introduced into evidence at trial, he could not have been prejudiced by the references to them in the prosecutor’s opening statement. Accordingly we find that defendant’s fourth and fifth assignments of error lack merit.

ASSIGNMENT OF ERROR NO. 6

In this assignment of error defendant contends that the trial court erred in allowing Mrs. Gray to testify as to her state of mind at the time defendant originally received the settlement funds and whether she was allowed to read the settlement contract because defendant was accused of a theft without the consent of the victim and not a taking by means of fraud. The trial court did not err in allowing Mrs. Gray to testify. Defendant’s conduct toward his client at this time was relevant to show the nature of his intent at the time of later disbursements of the settlement funds from the bank account and also tended to prove a lack of consent by Mrs. Gray to later takings.

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 10

Defendant contends that the trial court’s refusal to give requested special jury charges constitutes reversible error. Louisiana Code of Criminal Procedure Article 807 gives to both the state and the defense the right to submit to the court special written charges for the jury. The article further requires the court to charge the jury pursuant to the written request if “it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent.” However, the charge need not be given if it is included in the court’s general charge to the jury, or if it forms a part of another special charge which is given by the court.

Our examination of the record indicates that the trial court did not err in refusing defendant’s special charges numbers one and eight. Both of these charges were attempts to set forth the necessary elements which the state must prove in order to establish the commission of the crime of theft, a matter fully covered by the trial judge in his general charge. Therefore, the charges were properly refused. State v. Luckett, 327 So.2d 355 (La.1976). Accordingly, we find defendant’s tenth assignment of error to be meritless.

ASSIGNMENT OF ERROR NO. il

In this assignment, defendant complains of the action of the trial court in allowing the prosecuting attorney, during closing argument, to distribute to the jury copies of documents which had already been introduced into evidence and examined by the jury at the time of their admission. Louisiana Code of Criminal Procedure Article 774 provides that closing argument “shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the State or defendant may draw therefrom, and to the law applicable to the case.”

In State v. Rowell, 306 So.2d 668 (La.1975), this Court found no error in a procedure whereby the jury was allowed to examine, during closing argument, evidence which had previously been admitted but which had not been examined by the jury at that time. The defendant argues that Ro-well is distinguishable because, in the instant case, the jury had already viewed the evidence, and its subsequent distribution to the jury resulted in its being accorded undue weight. Our reading of Rowell, however, indicates that the court approved the procedure not because the jury had not previously viewed the documents, but because they had been introduced into evidence prior to the commencement of the closing argument. Therefore, we find that the trial judge did not err in permitting the evidence to be displayed to the jury during closing argument.

Further, we find no merit to the defendant’s argument that he was prejudiced by the distribution of multiple copies, rather than a single copy, of the documents in question. Defendant has failed to demonstrate any prejudice resulting from a procedure which was apparently intended only to facilitate the jurors’ viewing of the exhibits. Defendant’s tenth assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS.

12 AND 13

Defendant contends that the trial court erred in overruling his motion for a new trial, which was based upon the contention that the state presented no evidence of certain essential elements of the crime of theft. Our review of the record indicates that the State presented at least some evidence of each of the essential elements of the offense; therefore, we find that the trial judge did not err in his ruling. See, State v. Finley, 341 So.2d 381 (La.1977). Accordingly, we find defendant’s final assignments of error to be meritless.

For the reasons herein expressed, defendant’s conviction and sentence are affirmed.

      . See, e.g., State v. Ford, 349 So.2d 300 (La.1977); State v. O’Blanc, 346 So.2d 686 (La.1977); State v. Jenkins, 338 So.2d 276 (La.1976); State v. Marks, 337 So.2d 1177 (La.1976). This rule was modified as to future prosecutions by Act 515 of 1977.

      . State v. Huizar, 332 So.2d 449 (La.1976); State v. Nelson, 306 So.2d 745 (La.1975); State v. Vince, 305 So.2d 916 (La.1975); State v. Bailey, 261 La. 831, 261 So.2d 583 (1972).

      . This Court in the past has demonstrated a noticeable reluctance to reverse in Article 709 cases absent a clear showing of abuse on the part of the trial judge. See, e. g., State v. Chavers, 294 So.2d 489 (La.1974); State v. Valentine, 262 La. 571, 263 So.2d 893 (1972).

      . For cases holding that the “due diligence” requirement is ordinarily not satisfied when defense counsel fails to have the potential witness subpoenaed, see, State v. Terry, 359 So.2d 172 (La.1978); State v. Bennett, 341 So.2d 847 (La.1977); State v. Larue, 324 So.2d 384 (La.1975); State v. Elias, 230 La. 498, 89 So.2d 51 (1956).


text:
    DOUCET BROS. CONSTRUCTION COMPANY, INC. v. TOMENY CONSTRUCTION COMPANY, INC.
    No. 62427.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Doucet Bros. Construction Co., Inc. applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 359 So.2d 712.

Denied.

CALOGERO, J., would grant the writ.

TATE, J., believes summary judgment improper under circumstances.


text:
    Luddie P. WEAVER v. Glenn J. O’BANION et al. Luddie P. WEAVER v. LOUISIANA STATE POLICE DEPT.
    No. 62353.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Luddie P. Weaver applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 359 So.2d 706.

Writ denied.

SUMMERS, TATE and DENNIS, JJ., would grant the writ.


text:
    Luddie P. WEAVER v. Glenn J. O’BANION et al. Luddie P. WEAVER v. LOUISIANA STATE POLICE DEPT.
    No. 62359.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Houston General Ins. Co. applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 359 So.2d 706.

Writ denied.

SUMMERS, TATE and DENNIS, JJ., would grant the writ.


text:
    FIRST GUARANTY BANK v. C. D. ALFORD et al.
    No. 62508.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: First Guaranty Bank applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Tangipahoa. 359 So.2d 700.

Granted.

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


text:
    Henry ARNOLD and John F. Robbert v. The BOARD OF LEVEE COMMISSIONERS OF the ORLEANS LEVEE DISTRICT, Guy Le Mieux, the F. Edward Hebert Foundation and Ernest A. Carrere, Jr.
    No. 62453.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: The Board of Levee Commissioners of the Orleans Levee District applying for writs of certiorari, prohibition or mandamus to the Court of Appeal, Fourth Circuit. Parish of Orleans. 359 So.2d 748.

Granted.

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


text:
    Henry ARNOLD and John F. Robbert v. The BOARD OF LEVEE COMMISSIONERS OF the ORLEANS LEVEE DISTRICT, Guy Le Mieux, the F. Edward Hebert Foundation and Ernest A. Carrere, Jr.
    No. 62385.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: The F. Edward Hebert Foundation, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of New Orleans. 359 So.2d 748.

Granted.

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


text:
    Cylyce Eidson CRAIG v. Johnnie Floyd CRAIG, Jr.
    No. 62396.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Cylyce Eidson Craig applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. 359 So.2d 1119.

Writ granted.

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


text:
    STATE of Louisiana v. Marline WINIARSKI.
    No. 62474.
    Supreme Court of Louisiana.
    June 30, 1978.
   In re: Marline Winiarski applying for writ of review. Parish of Catahoula.

Writ granted. Ruling of the trial judge denying motion to suppress is set aside; case remanded to district court for new suppression hearing in accordance with law. La.Code Crim.P. art. 703 C. See State v. Schmidt, 359 So.2d 133 (La.1978); State v. Braud, 357 So.2d 545 (La.1978); State v. Franklin, 353 So.2d 1315 (La.1977).


author: HALL, Judge.

text:
    W. E. PERRY, Plaintiff-Appellant, v. The CITY OF MONROE et al., Defendants-Appellees.
    Nos. 13585, 13586 and 13587.
    Court of Appeal of Louisiana, Second Circuit.
    June 5, 1978.

      Law Offices of Robert P. McLeod by Robert P. McLeod and Barbara G. Danos, Monroe, for plaintiff-appellant.
    Hayes, Harkey, Smith & Cascio by Haynes L. Harkey, Jr., Monroe, Snellings, Breard, Sartor, Shafto & Inabnett by George M. Snellings, Jr., Monroe, for defendants-appellees, The City of Monroe and City of Monroe Utilities Commission.
    Before PRICE, HALL and JONES, JJ.
   HALL, Judge.

In these three consolidated actions, plaintiff, a resident and elector of the city of Monroe, challenges the validity of four propositions approved by the electors at special elections held on July 9, 1977. The propositions were submitted to the electors pursuant to a plan of the Monroe Commission Council to transfer the operation, and eventually ownership, of the municipally-owned electric power and light system to Louisiana Power & Light Company. From judgments dismissing the three actions, plaintiff appealed.

Background Facts

The city of Monroe has owned and operated its own electric power generating and distribution system and its own water system for many years. Management of the systems has been vested in the City of Monroe Utilities Commission since 1956.

Expansions and improvements to the electrical and water systems have been financed through revenue bonds issued at various times pursuant to authorization of the qualified electors of the city, without designation of the amounts to be used for each system. The amount of revenue bonds currently outstanding is approximately $32,000,000.

The city’s electric power plant consists of four currently operable generating units, the largest of which was added in 1968. All units were designed to operate on natural gas but can be operated for short periods of time on fuel oil, which is more expensive and less efficient than natural gas.

In January 1973, as a result of the energy crisis, the Federal Power Commission entered orders curtailing the use of gas as fuel for generating electricity. With interstate gas no longer available to meet its needs the city was required to seek sources of intrastate gas for its gas supply. In 1976 the city’s requirements for natural gas during peak periods in the summer months amounted to approximately 23,000,000 cubic feet per day, but the city had firm contracts for only approximately 3,000,000 cubic feet per day. Natural gas was obtained from suppliers on an “if available” basis. Fuel oil was used to supplement the available gas supply.

Due to the increased regulation of natural gas, the increase in price, and the uncertainty of its supply, the city abandoned plans to construct additional gas-fired generating units. As a consequence the generating capacity has been unable to keep pace with the increased demand for electricity. It is considered essential for safety reasons that “firm capacity” (the amount of power which a generating plant is capable of producing with its largest unit out of service) should always exceed “peak load” (the highest demand at any given time by customers of the system). Peak load exceeded firm capacity in the summers of 1976 and 1977 and, considering normal increases in the growth of electrical power consumption, peak load will exceed firm capacity frequently by 1980.

In July 1976 an energy committee was appointed to study the energy needs of the city and to make recommendations concerning those needs. The committee commissioned the engineering firm Ford, Bacon & Davis Construction Corporation to make a study of the problem and to recommend a course of action which would assure the city a dependable source of electricity at competitive prices. The study was made and a report submitted on October 4, 1976. The report concluded that Louisiana Power & Light Company, which provides electrical service to much of the area near Monroe, was the best source of dependable electricity for the city and recommended that negotiations be undertaken for a sale, lease or other disposition of the entire system to LP&L. Pursuant to negotiations LP&L, in April 1977, proposed an operating agreement by which it would assume operation of the city’s electric system. Under the proposed agreement LP&L is required to operate and maintain the city’s electric distribution system, with the option to operate the city’s generating plants; to provide for the entirety of the electric power supply requirements of the city and its consumers; to make necessary improvements and extensions to the system; to maintain insurance on the system; to pay the bonded indebtedness attributable to the electric system, with the city obligated to pay the bonded indebtedness attributable to the water system; and to pay to the city 2 percent of monthly revenues from the sale of commercial and residential electric services or a minimum of $700,000 annually. The city is prohibited from granting anyone else a franchise, from issuing additional electric revenue bonds, and from selling or mortgaging the electric system. The city shall not have the power to regulate rates within or without the city and the regulatory power shall be surrendered to the Louisiana Public Service Commission without right to reinvest during the franchise period. LP&L is granted a 60-year franchise with an option to purchase the electric utility system when the outstanding bonds are paid. The agreement specifically provides that it is not a sale or lease as long as the existing bonds are outstanding. Rates to be charged the consumers are to be those rates presently being sought by LP&L before the Public Service Commission pending final approval; thereafter, all rates are to be regulated by the Public Service Commission. The agreement provides for and contemplates, but does not require, the issuance of refunding revenue bonds in order to retire the currently outstanding bonds.

Constitutional and statutory provisions required that several aspects of the proposed agreement be submitted to the electorate for approval. Since the agreement provided for a 60-year franchise and possible ultimate sale of the city’s utility to LP&L, Proposition No. 1 was submitted to the electorate pursuant to R.S. 33:4341, et seq. Since the agreement provided for investing of supervision, regulation and control in the Louisiana Public Service Commission, Proposition No. 2 was submitted to the electorate pursuant to La.Const. art. 4, § 21(C) and R.S. 33:4491, et seq. Additionally, Proposition No. 4 was submitted to the electorate in a separate election. Proposition No. 3 authorizing the issuance of refunding bonds was placed on the ballot pursuant to the requirements of R.S. 33:4251, et seq.

All four propositions were overwhelmingly approved (7 or 8 to 1) by a substantial majority of the electors voting in the July 9, 1977 election.

Exceptions of Peremption and No Right of Action

The trial court sustained an exception of peremption in the suit attacking the proposition authorizing issuance of refunding bonds and dismissed the suit, based on plaintiffs failure to timely comply with the provisions of the Bond Validation Law, R.S. 13:5121, et seq., governing such actions. Although plaintiff appealed from this judgment, no specification of error on appeal is directed to the judgment dismissing that suit and the correctness of that judgment will not be considered by this appellate court. See Rule IX-A, Uniform Rules of the Courts of Appeal, effective December 1, 1977. It is noted, however, that the same grounds of illegality urged in that suit are also urged in the suit attacking the operating agreement, which contains provisions relating to the issuance of the refunding bonds, and will be discussed in that context.

The trial court sustained exceptions of no right of action in the suit attacking the proposition authorizing the city to enter into the operating agreement and in the suit attacking the two propositions authorizing the city to surrender supervision and control, including rate-making authority, to the Public Service Commission. The suits contain multifaceted procedural and substantive attacks on the legality of the elections and the legality of the propositions submitted in the election. A determination of whether plaintiff has sufficient interest or standing to bring the actions depends on an analysis of each allegation of illegality, the nature of the city’s action complained of, plaintiffs interest as an elector or taxpayer in relation to each particular action complained of, and specific statutory provisions or general law applicable to each cause of action alleged. Our view is that plaintiff does have a right of action in respect to certain of the causes of action alleged in the two suits and that, consequently, the judgments of the district court dismissing the two suits on exceptions of no right of action are not entirely correct. The approach of this court in considering these appeals will be to consider and discuss each of plaintiff’s contentions of illegality. Some of the issues raised by the contentions are decided on the basis of plaintiff’s standing to sue and some are decided on the substantive merits of the issues, or both.

We note that although the trial court decided the cases on the basis of the exceptions, the trial court’s written opinion which thoroughly analyzed and discussed all of the issues has been very helpful to this reviewing court in its consideration of the issues on appeal.

Contention No. 1: “The people of Monroe may not be deprived of their right to reinvest themselves with rate-making authority.”

The operating agreement requires that the regulatory power of the city be surrendered to and vested in the Louisiana Public Service Commission. The agreement also provides that neither the city nor the Commission Council nor the Utilities Commission shall thereafter take any action seeking to effect the reinvestment of such regulatory powers in them so long as the franchise to LP&L remains in effect.

Plaintiff argues that the provision of the agreement prohibiting the citizens of Monroe or their governing body from taking any action, including the calling of an election, to reinvest the city with regulatory power over the electric utility is contrary to La.Const. art. 4, § 21(C) which provides:

“The commission shall have no power to regulate any common carrier or public utility owned, operated, or regulated on the effective date of this constitution by the governing authority of one or more political subdivisions, except by the approval of a majority of the electors voting in an election held for that purpose; however, a political subdivision may reinvest itself with such regulatory power in the manner in which it was surrendered

and to R.S. 33:4495 which provides:

“Any town, city, or parish which has voted to surrender its powers of supervision, regulation, and control respecting any class of public utilities may reinvest itself with such power by holding an election in the same manner and with all of the same formalities hereinabove provided, and if at the election a majority of the qualified electors voting on any proposition submitted to reinvest the municipality or parish with its powers of supervision, regulation and control the municipality or parish shall be deemed to have reinvested itself with its powers of supervision, regulation and control and such powers shall no longer be exercised by the Louisiana Public Service Commission when the clerk of the municipality or parish files in the office of the Louisiana Public Service Commission and with the Secretary of State a certified copy of the order.”

Neither the provision of the Constitution nor the statutory provision prohibits surrender by the governing body of a political subdivision, with approval by a majority of the electors of the subdivision, of its powers of supervision, regulation and control for a reasonable period of time. The authority to surrender or transfer regulatory power implies that it may be done for a specific reasonable period of time. Under the proposed agreement, the power of the city governing body or citizenry is not contracted away permanently, but only during the period of the franchise to LP&L. This provision of the proposed agreement does not conflict with the constitutional and statutory provisions. Implicit within the provisions of the law is the right to do just what the city is doing in this case, engaging a public utility to operate the system as the city’s agent, during which time the city agrees that the rates are to be fixed by an agency other than the contracting parties.

Plaintiff further contends that the agreement not to seek reinvestment of regulatory power constitutes a bartering away of the city’s police power by contract, contrary to established law. To the contrary, the agreement constitutes an exercise of the city’s police power in the interest of the health, safety and welfare of its citizens. The transfer of regulatory authority to the Louisiana Public Service Commission is specifically authorized by the Constitution and by statute.

Contention No. 2: “The transfer of the City’s electric utility system violates Act 45 of the 1976 legislative session.”

Plaintiff contends that the proposed operating agreement conflicts with Act 45 of 1976 in that the agreement proposes to turn the management of the electric utility system over to LP&L while Act 45 of 1976 places such management authority in the Utilities Commission.

The Utilities Commission was created by Act 256 of 1956, which was amended and reenacted by Act 756 of 1972 and again by Act 45 of 1976. The act creates the City of Monroe Utilities Commission as a part of the city government and empowers the Utilities Commission to exercise management and operation of and to prescribe rates for such public utilities as the Commission Council “may place under the management of the Commission.” Under the act the Utilities Commission has authority over only such public utilities as the Commission Council, in its discretion, may place under the Utility Commission’s management. Since the Commission Council has discretionary authority as to whether a utility will be placed under the management of the commission, it follows that the Commission Council may withdraw management of a utility from the Utilities Commission, as it proposes to do under the operating agreement with LP&L.

It is also to be noted that the proposed operating agreement is a three-party agreement, between the Commission Council, the Utilities Commission and LP&L. Nothing in the act precludes the Commission Council and the Utilities Commission from jointly entering into a contract with a third party to operate the electric power system. The act does not vest title to any of the utility properties in the Utilities Commission and the powers and duties of the Utilities Commission are subject in all respects to the final approval and authority of the Commission Council. The proposed operating agreement does not conflict with Act 45 of 1976.

Contention No. 3: “The City is required by law to retain rate-making authority over its electric utility.”

Plaintiff contends that the provisions of the operating agreement vesting rate-making authority in the Louisiana Public Service Commission violate R.S. 33:4256 which provides that no board or commission other than the governing authority of a municipality which has issued bonds and pledged the revenues of any utility for the payment thereof shall have authority to fix or supervise the making of the fees and charges for the products and services furnished by the utility.

The requirements of this statute are for the benefit and protection of the holders of outstanding utility revenue bonds issued by the municipality. Plaintiff is not the holder of any of the outstanding bonds and the district court correctly held that he has no standing or interest to assert a cause of action based on violation of this statute. Further, the plan contemplates the issuance of refunding bonds to retire the outstanding bonds which will remove any conflict with this statutory provision.

Contention No. 4: “The City had no authority to call the July 9, 1977 election.”

Plaintiff contends that R.S. 33:4341 authorizes the calling of an election only for a sale or lease of revenue-producing properties of a political subdivision and that since the proposed agreement in this case is expressly stated not to be either a sale or a lease, the election was unauthorized.

R.S. 33:4341 provides that any municipality may sell or lease any revenue-producing properties owned by them, including all proper franchises to operate the same not to exceed 60 years, provided the governing authority has been first authorized to do so by a vote of a majority of the qualified electors voting at an election held for that purpose. Since the proposed operating agreement grants a franchise and grants an option to purchase revenue-producing properties an election was properly called pursuant to the provisions of this statute.

Contention No. 5: “The transfer of the City’s Electric Utility constitutes a donation and/or loan of public funds, credit, property, or things of value to a private corporation.”

Plaintiff contends the proposed plan violates La.Const. art. 7, § 14(A) which provides:

“. . . the funds, credit, property, or things of value of the state or of any political subdivision shall not be loaned, pledged, or donated to or for any person, association, or corporation, public or private ...”

The proposed operating agreement is not a loan or donation to LP&L. The city is to receive substantial consideration for its agreement. LP&L is required to pay the bonded indebtedness of the city attributable to the electric system; pay the city a minimum of $700,000 per year; operate, maintain and extend the system at its expense; and supply the customers of the city with electricity during the life of the agreement. In no way can the agreement be considered gratuitous, or as a loan or donation in violation of the constitutional article.

Contention No. 6: “The Operating Agreement and proposed transfer violate the covenants of outstanding bonds.”

Plaintiff contends that the operating agreement violates the covenants contained in the outstanding revenue bonds which provide that rates, fees and charges will be fixed and maintained by the city sufficient to provide adequate revenue to service and pay the bonds and by which the city obligated himself not to sell, lease, encumber, or in any manner dispose of the system or to grant a franchise to any competing utility for operation within the city.

Since plaintiff is not the holder of an outstanding revenue bond he has no standing or interest to assert a cause of action based on breach of or enforcement of the covenants contained in the bonds. Furthermore, no bondholder has to date asserted such a cause of action and any problem in this connection will be removed with the issuance of the contemplated refunding bonds.

Contention No. 7: “The notice of the election was inadequate.”

Plaintiff contends that the notice of the election was not adequate, particularly in that the notice did not comply with R.S. 33:4344 which requires thirty days’ notice of the election, “. . . which notice shall include a reproduction of the proposition or a summary thereof.”

Proposition No. 1 contains an adequate summary of the proposed agreement, particularly when read with Propositions 2 and 3 which appeared in the published notices and on the ballot with Proposition No. 1. The public was advised that the proposal was for Louisiana Power & Light Company to operate the city’s electric power and light plant and system, that the city would grant to the company a 60-year franchise and the right and option to acquire the electric system, that refunding bonds were to be authorized, and that regulatory authority was to be surrendered to the Louisiana Public Service Commission, all in accordance with a proposal on file and available for inspection in the office of the Secretary-Treasurer in the City Hall. The notice given complied with the statutory requirement and was adequate to insure a fair and informed vote on the proposition.

Contention No. 8: “The City has no authority to transfer its rate-making authority.”

Plaintiff contends that R.S. 33:4491, et seq., and R.S. 45:1161, et seq., which authorize transfer of regulatory authority to the Louisiana Public Service Commission must be read in pari materia with and are limited by the provisions of R.S. 33:4256 which provides that no board or commission other than the governing body of the municipality which has issued revenue bonds shall have authority to fix or supervise the making of fees and charges. The plaintiff argues that there is no statutory authority for transferring regulatory jurisdiction where there are outstanding revenue bonds.

La.Const. art. 4, § 21(C) specifically provides for regulation by the Public Service Commission of a public utility, owned, operated or regulated on the effective date of the Constitution by the governing authority of a political subdivision upon the approval of a majority of the electors voting in an election held for that purpose. Neither the Constitution nor any of the statutory provisions authorizing transfer of regulatory jurisdiction contain any such limitation or prohibition with respect to municipalities which have outstanding revenue bonds. Any municipally-owned or operated utility system would almost certainly have outstanding revenue bonds. To apply the interpretation urged by plaintiff would be to render the constitutional and statutory provisions virtually meaningless. Had any such limitation or prohibition been intended, it would have been included within the constitutional provision and statutes specifically dealing with the subject. The transfer of jurisdiction authorized by the constitutional provision and statutes is not limited to those municipalities which do not have outstanding revenue bonds.

Contention No. 9: “L.R.S. 45:1161 et seq. repealed L.R.S. 33:4491 and the requirements of L.R.S. 45:1161 et seq. were not met.”

Plaintiff contends that the provisions of R.S. 33:4491, et seq., authorizing surrender of regulatory powers to the Public Service Commission after an election called either pursuant to an ordinance or to a petition were repealed by R.S. 45:1161, et seq., which provide for a transfer of regulatory authority under an election held pursuant to a petition only; the latter sét of statutes being the more recent enactment, having been adopted by Act 328 of 1975.

R.S. 33:4491 provides that any city desiring to surrender its powers of supervision; regulation and control over any local public utility may submit the question of surrendering these powers to the qualified electors of the city at a general or special election, either in pursuance of an ordinance adopted by the governing body or a petition of 10 percent of the qualified electors of the city. R.S. 33:4492, et seq., contain detailed provisions concerning the conduct of the election. The election for Proposition No. 2 was called pursuant to these statutes.

R.S. 45:1164 provides for exercise of regulatory authority by the Public Service Commission of municipally-owned utilities upon approval of the electors of the municipality and such other electors as are customers of the public utility in an election held pursuant to R.S. 45:1164.1, et seq., R.S. 45:1164.2 provides that “Notwithstanding any other law to the contrary” upon the petition of not less than 25 percent of or 7,500 of the qualified electors residing within any municipality, whichever is lesser, the governing authority shall order a referendum election to be held to determine whether any public utility owned by the political subdivision shall be under the jurisdiction and control of the commission. Subsequent sections of the law contain detailed provisions for the conduct of the election.

R.S. 45:1161, et seq., contain neither express nor implied language indicating an intention to repeal R.S. 33:4491, et seq., or to prevent a city governing body from proceeding by ordinance as authorized in the latter statute. R.S. 45:1161, et seq., merely supplement the provisions of R.S. 33:4491, et seq., by providing an additional method by which the citizenry can petition for an election transferring jurisdiction over a municipally-owned public utility to the Public Service Commission.

Chapter 5 of the Preliminary Title of the Louisiana Civil Code deals with the repeal of laws. Article 22 provides that laws may be repealed either entirely or partially by other laws. Article 23 provides that the repeal may be either express or implied. It is implied when the new law contains provisions contrary to or irreconcilable with the former law. It has been repeatedly held that implied repeals are not favored and that they will not be resorted to except where the inconsistency is too clear and plain to be reconciled. Chappuis v. Reggie, 222 La. 35, 62 So.2d 92 (1952).

We hold that R.S. 33:4491, et seq. relating to initiating an election for surrender of regulatory authority to the Public Service Commission by ordinance were not repealed and remain in full force and effect. The procedure followed in presenting Proposition No. 2 to the electorate pursuant to these provisions was proper. The approval of that proposition effectively authorizes the exercise of regulatory authority by the Louisiana Public Service Commission.

The Commission Council of Monroe also called a separate election by which Proposition No. 4, essentially the same as Proposition 2, was submitted to the electors of the city and other electors residing outside of the city who were customers of the public utility, following in part the procedure outlined in R.S. 45:1164.1, et seq. The votes were separately tabulated and promulgated on Proposition No. 4, which was approved by the city’s electors as well as those voting outside the city.

The election on Proposition No. 4 did not substantially comply with R.S. 45:1164.1, et seq., because it was not called pursuant to a petition of the electors. However, the election on Proposition No. 4 substantially complied with the provisions of R.S. 33:4491, et seq. and is valid as having been conducted pursuant to those statutory provisions in the same manner as Proposition No. 2. The fact that electors outside .of the city also voted is of no consequence and did not affect or change the outcome of the election.

Contention No. 10: “The Operating Agreement and Propositions No. 2 and 4 do not comply with the requirements of L.R.S. 33:4491 et seq.”

Plaintiff contends that the election and proposition conducted pursuant to R.S. 33:4491, et seq., does not comply with R.S. 33:4494, which requires that the regulatory power shall vest in the Public Service Commission “immediately” upon the filing with the Public Service Commission of a certified copy of the order of the governing body declaring the election result, whereas Propositions 2 and 4 provide that the regulatory power will not vest until LP&L assumes the operation of the utility and action upon the company’s pending request for a rate increase has been concluded. The term “immediately” must be given a reasonable meaning, recognizing that in complex matters such as are involved here numerous factors, conditions and requirements must be met and come together before the entire plan can be put into effect. The time fixed in Proposition 2 and in the operating agreement for vesting of authority in the Public Service Commission constitutes substantial compliance with the requirements of the statute. Plaintiff further contends that the result of the election was declared by the Commission Council on Tuesday instead of the first Monday after the election as required by the statute. Again, there was substantial compliance with the statute.

Contention No. 11: “Municipal governing bodies may not exercise police power in contravention of state law or bond covenants for any reason, including a ‘public emergency.’ ”

In view of the conclusions reached in this opinion it is unnecessary to consider the city’s alternative argument that even if it failed to comply with all constitutional and statutory requirements and with contractual requirements under the outstanding bonds, its plan constitutes a lawful exercise of the police power of the city to meet a public emergency; nor plaintiff’s response to that argument.

Conclusion

The effect of this decision is to uphold the validity of the elections held July 9, 1977 in which Propositions 1, 2, 3 and 4 were approved by the electors of Monroe and to uphold the legality of the plan encompassed in those propositions for transfer of the operation of Monroe’s electric power system to Louisiana Power & Light Company, including the proposed operating agreement, the authorization for issuance of refunding bonds, and the vesting of regulatory authority in the Louisiana Public Service Commission.

Decree

For the reasons assigned:

(1) The judgment in Appeal No. 13,587 (No. 111,147 in the District Court) sustaining the exception of peremption and dismissing plaintiff’s suit is affirmed.

(2) The judgment in Appeal No. 13,585 (No. 111,145 in the District Court) is reversed insofar as it sustained the exception of no right of action and is affirmed insofar as it dismisses plaintiff’s suit.

(3) The judgment in Appeal No. 13,586 (No.' 111,146 in the District Court) is reversed insofar as it sustained the exception of no right of action and is affirmed insofar as it dismisses plaintiff’s suit.

The costs of appeal are assessed to plaintiff.

      . Proposition No. 1:
      Shall the City of Monroe, State of Louisiana (the “City”), accept the proposal and offer of Louisiana Power & Light Company (the “Company”) to operate the City’s electric power and light plant and system (the “Electric System”), separately from and independently of the City’s waterworks plant and system, and pursuant to which the City will grant to the Company a 60-year franchise to operate the Electric System and the right and option to acquire the Electric System for the considerations resulting from the terms of the agreement thereby proposed to be entered into, all in accordance with a written and signed proposal dated April 26, 1977, on file and available for inspection in the office of the Secretary-Treasurer of the City in the City Hall?

      . Proposition No. 2:
      Shall the City of Monroe, State of Louisiana (the “City”), surrender its powers of supervision, regulation and control over all electric utilities, electric utility service and electric rates in the City, commencing at such time as Louisiana Power & Light Company’s presently pending rate proceeding before the Louisiana Public Service Commission shall have been finally determined, but not before said Company shall have begun to operate the City’s electric power and light plant and system and to be effective so long as any electric franchise from the City to said Company remains in effect?

      . Proposition No. 4:
      Shall the Louisiana Public Service Commission (the “Commission”) regulate the electric power and light plant and system (the “Electric System”) owned by the City of Monroe, Louisiana (the “City”), commencing at such time as Louisiana Power & Light Company’s presently pending rate proceeding before the Commission shall have been finally determined, but not before said Company shall have begun to operate the City’s Electric System and to be effective so long as any electric franchise from the City to said Company remains in effect?

      . Proposition No. 3:
      Shall the City of Monroe, State of Louisiana (the “City”) under the authority of and pursuant to the provisions of Sub-Part C, Part 1, Chapter 10, Title 33 of the Louisiana Revised Statutes of 1950, issue its revenue refunding bonds to an amount not exceeding $33,133,250, to run not exceeding twenty-seven (27) years from date thereof, with interest at a rate not exceeding nine per centum (9%) per annum, for the purpose of refunding and unifying its outstanding Water and Electric Revenue Refunding Bonds and Water and Electric Revenue Bonds, Series 1966, Series 1967, and Series 1974, dated February 1, 1965, August 1, 1966, November 1, 1967, and August 1, 1974 (such outstanding bonds being payable solely from the income and revenues of the City’s combined waterworks plant and system and electric power and light plant and system, and having been issued pursuant to resolutions adopted on March 1, 1965, as amended on June 21, 1966, December 12, 1967, and July 9, 1974), said revenue refunding bonds to be payable as to principal and interest solely from the income and revenues to be derived from the City’s waterworks plant and system (the “Waterworks System”) and electric power and light plant and system (the “Electric System”) which may be operated as separate and independent utilities, with the governing body of the City being authorized to issue such revenue refunding bonds in two series, one series to refund that portion of the outstanding bonds attributable to the Waterworks System and to be payable solely from the income and revenues to be derived from the Waterworks System, and the other series to refund that portion of the outstanding bonds attributable to the Electric System and to be payable solely from the income and revenues to be derived from the Electric System?