author: McCALEB, Justice. HAWTHORNE, Justice

text:
    214 La. 644
    STATE v. LABORDE.
    No. 39056.
    Supreme Court of Louisiana.
    Dec. 13, 1948.
    Rehearing Denied Jan. 10, 1949.

      Philo Coco, of Marksville, for defendant-appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., and Ea-rl Edwards, Dist. Atty., of Marksville, for ap-pellee.
   McCALEB, Justice.

Carlton Laborde was convicted for attempting' to commit theft of eleven ’hogs valued at $75 and sentenced to pay a fine of $200 and costs and to serve one year in the parish jail, nine months of the jail sentence being suspended upon the payment of the fine and costs. He has appealed and •the state moves to dismiss on the ground that the case is not within our appellate jurisdiction. Article VII, Section 10 of the Constitution defines the jurisdiction of this court and provides, in part as follows:

“The appellate jurisdiction -of the Supreme Court shall also extend to criminal cases on questions of law alone, whenever ■the penalty of death, or imprisonment at hard labor may be imposed; or where a fine exceeding three hundred dollars or imprisonment exceeding six months has been actually imposed.” (Italics ours.)

Inasmuch as the offense is a misdemean- or for which imprisonment at hard labor may not be given, the question is whether the sentence actually imposed exceeds six months imprisonment. It is the contention of the State that, despite the fact that appellant is condemned to serve one year in the parish jail, the case is nonetheless not within our appellate jurisdiction because nine months of the jail sentence is suspended upon payment of the $200 fine and costs. In support of this proposition, the State relies upon State v. Desimone, 143 La. 505, 78 So. 751 and State v. Roy, 152 La. 933, 94 So. 703, wherein it is held that, for purposes of determining appellate jurisdiction, the court will not take into consideration an imprisonment conditioned on default in payment of a fine because such imprisonment is not “actually imposed” within the meaning of the Constitution.

The cited cases, to which may be added State v. Peralta, 115 La. 530, 39 So. 550; State v. Hamilton, 128 La. 91, 54 So. 482; State v. Mitchell, 137 La. 1098, 69 So. 851; State v. Abraham, 139 La. 466, 71 So. 769 and State v. Authement, 139 La. 1070, 72 So. 739, merely reiterate a rule of constitutional interpretation now well established, but we fail to perceive that those ■authorities are applicable to the matter at hand. In all of those adjudications, the question presented was whether an imprisonment conditioned on a default in payment of a fine was' an imprisonment actually imposed -within the meaning of the Constitution. The answer in the negative is founded on the premise that a punishment dependent upon the failure of a condition is not a punishment actually inflicted because, if the condition is fulfilled, it becomes nugatory.

In the instant case, however, the sentence of one year in the parish jail has been “actually imposed” within the meaning of the Constitution. The mere fact that nine months of that sentence will be suspended if appellant pays the fine and costs assessed against him does not make the exaction of the one year imprisonment depend upon the payment of the fine. And it matters not that the judge limited the suspension to nine months; whether he suspended the entire sentence or whether the suspension was dependent upon payment of the fine or other consideration. The main factor which is determinative of our jurisdiction is that a sentence exceeding six months was actually imposed and the circumstance that a part or the whole of the execution of the sentence is suspended upon the happening of a condition is immaterial.

It must be borne in mind that there is a marked distinction between the suspension of the imposition of a sentence and the imposition of a sentence with suspension ■of its service by placing the offender on probation. The Supreme Court of the United States recognized this in the case of Berman v. United States, 302 U.S. 211, 58 S.Ct. 164, 82 L.Ed. 204. There, the petitioner had been convicted on several counts for using the mails to defraud and was sentenced on each count to serve a year and a day. Execution of the sentence was however, suspended and petitioner was placed on, probation for two years. He appealed to the Circuit Court of Appeals where the appeal was dismissed on the ground that the judgment was interlocutory. 2 Cir., 88 F.2d 645. Later, the Supreme Court, on his application for writ of certiorari, found that the Court of Appeals had erred in dismissing the appeal, stating [302 U.S. 211, 58 S.Ct. 166]:

“Petitioner was oonvicted and sentenced. Final judgment in a criminal case means sentence. The sentence is the judgment * * *. Here, the imposition of the sentence was not suspended, but only its execution.
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“Placing petitioner upon probation did not affect the finality of the judgment. Probation is concerned with rehabilitation, not with the determination of guilt. It does not ’secure reconsideration of issues that have been determined or change the judgment -that has been rendered. Probation or suspension of sentence 'comes as an act of grace to one convicted of a crime.’ Escoe v. Zerbst, 295 U.S. 490, 492, 493, 55 S.Ct. 818, 819, 79 L.Ed. 1566, [1568, 1569].

Thus, in the case at bar, the suspension of nine months of appellant’s sentence, conditioned upon his payment of a fine and costs, cannot be viewed as a sentence which has not been actually imposed. Indeed, Article 536 of the Code of Criminal Procedure, which authorizes the judge to suspend the sentence of any person found guilty of a misdemeanor, contemplates the imposition of a 'sentence and merely the suspension of its service by release of the offender during good behavior. The only condition on the suspension authorized by the article is “good behavior” which, as used therein, “means that the offender shall not be convicted of any other crime during the time of such suspended sentence.” The Article also provides “'that if - sentence is suspended such sentence shall not become final except upon the conditions and in the manner provided herein.”

Accordingly, there can be little support for the contention of the State that a sentence, which has been decreed but its service suspended, is on a parity with a sentence which is imposed only in default of payment of a fine. The wide difference in the nature of the sentences is clearly demonstrated by air examination of the effect of each. Where imprisonment is imposed in default of payment of a fine, payment nullifies the jail sentence. But the same result would not follow in the instant case, for if appellant served three months of the one year sentence and paid his fine, the balance of the sentence would -not be voided. True, he would be released from jail but, if he should be convicted of a violation of the law during the nine month period of the suspension, such suspension-would be automatically revoked under Article 536 of the Code of Criminal Procedure and if would .then become the duty of the court, under the provisions of Article 538, to oau-se his -arrest and cumulate the. punishment of the first conviction with the punishment of the subsequent conviction.

The motion to dismiss the appeal is denied.

Since we find that we have jurisdiction, we pass on to a consideration of the merits of the appeal. Three bills of exception were reserved during the trial. The first hill was fak-eu to the -refusal of the judge to grant -a continuance. It appears that ■the ca'se came up for trial upon -regular assignment before a jury to be tried as a felony. Appellant’s counsel objected to a trial -by jury on the ground that the offense was a misdemeanor, triable only before the judge. The judge agreed and called the case for trial. Counsel thereupon filed a motion for a continuance, which was overruled, to which ruling he reserved a bill.

We fail to discern ho-w appellant was prejudiced by the ruling. The trial court has broad discretion -in granting or refusing a continuance and this court will not interfere therewith in the absence of abusé.

The second bill of exception resulted from the -overruling of a motion to recuse the judge. When the case was called and appellant’s counsel objected to a trial by jury, he -stated that he did not wish to try the case before a jury because appellant was too well known to the jurors, whereupon the trial judge remarked, in the presence of appellant’s attorney and the district attorney, “the accused would have a better chance before a jury than before this court”. It is stated in the motion that the remark of the judge was prejudicial “and -will prevent your mover from having a 'fair and impartial trial”. It is further alleged as a ground 'for the motion to recuse that the judge had been district attorney of the Twelfth Judicial District for twelve years, during which time he prosecuted appellant on several occasions for infraction of criminal laws.

Counsel for appellant maintains (1) that the remark of the judge shows that he was prejudiced and biased and, therefore, legally incompetent to sit in judgment and (2) that he had no right to overrule the motion for recusation but should have referred it to a judge of an adjoining district for trial and determination in accordance with Article 309 of the Code of Criminal Procedure.

There are five legal causes for recusation of a judge in a criminal case. These are set forth in Article 303 of the Code of Criminal Procedure. None of the five causes is applicable here, save possibly the first which requires the recusation of the judge if he has an interest in the case. The complaint that the judge prosecuted appellant for other offenses while 'he was district attorney is not a ground for recusation under the statute. However, it is claimed that, when the judge -remarked ■that -appellant “would have a better chan-ce before a jury than before -this court”, he exhibited that he was prejudiced and that, therefore, he should -have submitted the motion to another judge for determination. I-f -this statement of the judge be regarded ■as a declaration of fact which might justify the conclusion that the judge -had -an interest in the cause, then it was his duty under Article 309 of the Code of Criminal Procedure to submit the matter of his re-cusation to another judge. On the other hand, -if the -statement cannot be viewed as a recitation of fact from which a conclusion of interest may -be fairly drawn, then, under the established jurisprudence, the judge had the right to overrule the motion him-self and -not refer it to another judge for trial.

In State v. Doucet, 199 La. 276, 5 So.2d 894, 897, we said:

“The jurisprudence of this State is well-settled that if the allegations of the petition for the recusation of a judge are -mere general statements of conclusions that the judge is prejudiced and -biased against or hostile t-o the defendant because of personal or political reasons, or that if the petition does state facts which, if proved, would not constitute a legal ground for re-cusation, the judge who -is sought to be recused may himself overrule the motion and need not refer i-t to another judge -for •trial. State v. Chantlain, 42 La.Ann. 718, 7 So. 669; State v. Blount, 124 La. 202, 50 So. 12; State v. Woods, 124 La. 738, 50 So. 671; State v. Hayes, 127 La. 762, 53 So. 983; City of Lafayette v. Milton, 129 La. 678, 56 So. 635; State v. Morgan, 142 La. 755, 77 So. 588; State v. Nunez, 147 La. 394, 85 So. 52; State v. Rini, 153 La. 57, 95 So. 400; State v. Davis, 154 La. 928, 98 So. 422; State v. Phillips, 159 La. 903, 106 So. 375; State v. Henry, 197 La. 999, 3 So.2d 104; State v. Hutton, 198 La. 174, 3 So.2d 549; and State ex rel. Martin v. Judge of Twenty-Ninth District, 152 La. 768, 94 So. 389.”

An examination of the applicable authorities (most of which are ci-ted in the quotation above given fro-m the Doucet case) will reveal that there has been a lack of uniformity on the question of -whether a judge, who is prejudiced against a defendant, is -subject to recusation on the ground that he has an interest in the cause. Since State v. Morgan, 142 La. 755, 77 So. 588, it -has been unequivocally held that, inasmuch a-s the statute does not provide that bias and prejudice of the judge i-s a ground for recusation, the accused must offer additional proof to show that the judge has an interest in the case whch -means that “it is to the judge’s personal advantage, whether he would be influenced by such advantage or not, to decide the oa-se or to seek to bring about a decision therein, for or against one of the parties to i't, without reference to the law and the evidence.” State v. Phillips, 159 La. 903, 106 So. 375, 376.

We do not find it necessary in the case at bar to consider whether the provisions of Section 9 of Article I of the Constitution affect the soundness of the pronouncements that bias or prejudice of a judge is not, of itself, sufficient to warrant his recusation in a criminal case.— for, assuming that it is, we do not think that the remark of the judge -in this matter authorizes the conclusion that he was biased or prejudiced against appellant or that he was unable to give -him a fair and impartial trial. The remark, as above stated, was that appellant would have a better chance before a jury than before the court. This does not indicate that the court, in trying -the case, would not be guided by the evidence adduced or that appellant would be convicted if the proof did not show his guilt beyond a reasonable doubt. On the contrary, it strikes us that the judge was merely expressing a fact, well known to members of the Bar, that a jury ofttimes is motivated in its deliberations by considerations of sympathy or other extraneous matters, whereas, the judge, as a trained trier of facts, will invariably be guided by the law and the evidence.

The other bill of exception was taken to the refusal of the judge to grant a new trial. The motion was founded on his adverse rulings on the motions for continuance and recusation (which have been already determined), and coupled with the complaint that the judgment was contrary to the law and the evidence in that the state failed to prove asportation of the hogs, which appellant was accused of attempting to steal.

We have many times said that a bill taken to the overruling of a motion for a new trial on the ground that the verdict is contrary to the law and the evidence presents nothing for review. In this case, while it is true that appellant bases his motion on the ground that the State failed to prove an element of the crime charged, we are unable to consider his complaint as the 'evidence presented to the trial judge was not transcribed and is not 'made part of the record.

The conviction -and sentence are affirmed.

O’NIELL, C. J., and MOISE, J., concur in the decree.

HAWTHORNE, J., is of the opinion that this court is without appellate jurisdiction and dissents from the ruling on this motion to dismiss the appeal.

HAWTHORNE, Justice

(dissenting).

Defendant, Carlton Laborde, charged with the attempted theft of 11 -hogs valued at the sum of $75, after trial was adjudged guilty and sentenced by the lower court “to pay a fine of $200.00 and costs and to serve one year in the Parish Jail, nine (9) months of jail sentence being suspended upon the payment of fine and costs”. From this conviction and sentence he appealed to this court.

■In this court the State has filed a motion to dismiss 'the appeal on the ground that the Supreme Court is without appellate jurisdiction under the provision of Article 7, Section 10, of the Louisiana Constitution of 1921.

Article 7, Section 10, of the Constitution, insofar as it may be applicable here, reads as follows: “The appellate jurisdiction of the Supreme Court shall also extend to criminal cases on questions of law alone, * * *. where a fine exceeding three hundred dollars or imprisonment exceeding six months has been actually imposed.”

As I interpret the sentence of the lower court, a sentence exceeding six months’ imprisonment within the meaning of the Constitution has not been actually imposed, and therefore this court is without appellate jurisdiction, and the motion to dismiss filed by the State should be sustained. In my opinion the sentence “to pay a fine of $200.00 and costs and to serve one year in the Parish Jail, nine (9) months of jail sentence being suspended upon the payment of fine and costs” is susceptible of only one meaning, and that is: To pay a fine of $200.00 and to serve three months in jail, and in default of payment of fine and costs to serve nine additional months in jail. That portion of the sentence suspending nine months of the jail sentence imposed, upon the payment of the fine and costs, no matter how inartistically drawn, was intended only to compel the accused to pay his fine, and was in actual effect nothing more than a sentence “in default” under Revised Statutes, Section 980. Dart’s La. Code of Crim. Law and Proc. § 682. That section reads:

“Every person being adjudged to pay a fine, shall, in default of payment or recovery thereof, be sentenced to be imprisoned for a period not exceeding one year.”

Where a jail sentence is imposed in default of the payment of a fine, payment of the fine nullifies the jail sentence, and in my opinion, if the appellant pays his fine in the instant ca-se, the jail sentence of nine months will be nullified. The sentence actually imposed, therefore, was merely a fine of $200 and costs and a jail term of three months, neither of which -is sufficient to confer appellate jurisdiction upon this court. The additional sentence of nine months, conditionally and anticipatorily pronounced, cannot be said to have been imposed as a penalty for the commission of the crime; hence it cannot be considered in determining the appellate jurisdiction of this court. State v. Peralta, 115 La. 330, 39 So. 550; State v. Hamilton, 128 La 91, 54 So. 482; State v. Mitchell, 137 La. 1098, 69 So. 851; State v. Abraham, 139 La. 466, 71 So. 769; State v. Authement, 139 La. 1070, 72 So. 739; State v. Desimone, 143 La. 505, 78 So. 751; State v. Roy, 152 La. 933, 94 So. 703.

If, on the other hand, my interpretation of the sentence is erroneous, and the majority opinion is correct that the suspension of nine -months of the prison sentence upon payment of the fine and costs is properly a suspension of sentence as contemplated by Act No. 48 of 1942, Dart’-s Code ,of Crim. Law and Proc. art. 536, the sentence, in my opinion, is illegal and unauthorized by law in two respects:

1. At the time of the imposition of the sentence, a part of it was suspended, and

2. The suspension was made dependent upon an unlawful condition precedent.

This court has expressly recognized that Article 536 of the Code of Criminal Procedure, which deals with the suspension of sentences in misdemeanor cases, “ * * * ■authorizes only the suspension of the entire ■sentence or the remaining part which has not been served by the prisoner”, and that the action of a judge suspending less than that part of the prison sentence not served is void. Cox v. Brown, 211 La. 235, 29 So. 2d 776, 778.

Under the -majority’s interpretation of the sentence, the suspension of nine months of the jail sentence im-posed is subject to two conditions, a condition precedent and a condition subsequent, as disclosed by the plain language which we quote therefrom:- “* * * jf appellant [Carlton Labo-rde] served three months of the one year sentence and paid his fine, the balance of the ■sentence -would not be voided. True, he would be released from jail but, if he should be convicted of a violation of the law during the nine month period of the suspension, -such suspension would be automatically revoked under Article 536 of the Code of Criminal Procedure and it would then become the duty of the court, under the provisions of Article 538, to cause his arrest and cumulate the punishment of the first conviction with the punishment of the subsequent conviction.” To fulfill the condition precedent, the defendant must pay a fine of $200 and costs. To fulfill the condition subsequent, he must comply, during the nine months, with the provisions of Article 536 of the Code of Criminal Procedure relative to “good behavior”.

I know o'f no law that authorizes a judge to make the suspension of a prison sentence subject to a condition precedent that the accused pay his fine and costs, nor is any cited in the majority opinion. In the absence of any statute or authority permitting such condition, in my opinion it was an illegal one. The only condition that the law contemplates as attaching to the suspension of a prison sentence is the condition of “good behavior” under Article 536 of the Code of Criminal Procedure.

In my opinion, a sentence -should be interpreted to give it a legal effect rather than an illegal one, if it is at all susceptible of such an interpretation. For this reason also, I consider my interpretation of the sentence preferable to the interpretation of the majority of the court.

Since the sentence is an illegal one under its interpretation by the majority of this court, the case is in the same condition as if no sentence at all had been imposed, and the proper disposition of the case under the majority’s interpretation would be to remand the case to the lower court for tfie imposition of a legal, valid sentence. State v. Blakeney, 164 La. 669, 114 So. 588; State ex rel. Cutrer v. Pitcher, 164 La. 1051, 115 So. 187. It would be the better procedure to withhold the consideration of the motion to dismiss the appeal, based on lack of jurisdiction, until the proper and legal sentence is before this court, because the appellate jurisdiction o'f this court is determined in this case by the sentence actually imposed, defendant being charged with a misdemeanor, attempted theft under Article 27 of the Criminal Code.

Being of the opinion that this court is-without appellate jurisdiction, I express no-view on the ruling of the majority on the merits of the case.

respectfully dissent.

       We held accordingly in Cox v. Brown, 211 La. 235, 29 So.2d 776, 778, whore we said “Under Article 536 of the Code of Criminal Procedure the only condition which the judge may, in suspending a sen-fence, impose upon a prisoner is ‘good behavior’ —that is, that the suspended sentence is conditioned upon the prisoner not being convicted of any other crime during the period of the suspension.”

       See 48 C.J.S., Judges, § 83a (3), page 1067.

       See also State v. Davis, 154 La. 928, 98 So. 422 and State v. Hutton, 198 La. 174, 3 So.2d 549. In State v. Davis the court specifically overruled its prior decision in State v. Banta, 122 La. 235, 47 So. 538, wherein it was held that a motion to recuse the judge on the ground that he is a personal enemy of the accused and is so biased and prejudiced as to be incapable of giving him a fair and impartial trial was well taken and exhibited that the judge had an interest in the cause. Justice Land wrote a dissenting opinion in the Davis case which was founded on the premise that, even in the absence of statute, a biased or prejudicial judge is subject to recusation under Section 9 of Article I of the Constitution (Bill of Rights) ordaining that “In all criminal prosecutions the aceused shall have the right to a speedy public trial by an impartial jury”. This court did not discuss, either in the Davis case or in the other cases like it (Blount, I-Iayes, Morgan, Rini and Simone (State v. Simone, 154 La. 73, 97 So. 302) cases) the question relative to the effect of the constitutional provision as affording a ground for the recusation of a judge solely because of prejudice.

       It is well established in other jurisdictions that, in the absence of statute or constitutional enactment, bias or prejudice of the judge is not a ground for recusation. See 48 O.J.S., Judges § 82a, page 1057 and cases cited.


source: Caselaw Access Project

author: HAMITER, Justice. HAWTHORNE, Justice

license: Public Domain

text:
    214 La. 664
    STATE v. McNEAL.
    No. 39055.
    Supreme Court of Louisiana.
    Dec. 13, 1948.

      Philo Coca, of Marksville, for defendant-appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen. and Earl ’ Edwards, Dist. Atty., of Marksville, for ap-pellee.
   HAMITER, Justice.

In a bill of information the defendant, Avery McNeal, was charged with the theft of a horse, valued at $100, the property of E. S. McCain. A jury of five, after trial, found “the accused guilty as charged with the value less than $100 and more than $20.” For this offense (a felony) he was sentenced to a term of twelve months in jail, six months thereof being suspended.

From the conviction and sentence defendant is1 appealing.

Whether the district judge had authority to suspend a portion of the term of the sentence imposed, in view of the jury’s failure to recommend the suspension, is a question we need not and do not pass upon. The state has not suggested the illegality of the sentence, either on an appeal of its own, which it could have perfected — Criminal Code of Procedure, Article 527, or on this appeal of defendant; and, naturally, the accused is not complaining of the suspension. Moreover, our jurisdiction of the case is unaffected by the fact that a portion of the sentence actually imposed has been suspended. See State v. Laborde, 214 La. 644, 38 So.2d 371.

For a reversal of his conviction and sentence, defendant relies on three bills of exceptions. Under the first he urges, without particularizing, that the verdict of ■the jury was contrary to the law and the evidence. According to our well settled jurisprudence this presents nothing for review. State v. Washington, 207 La. 849, 22 So.2d 193 (and cases therein cited).

The second bill of exceptions brings before us for consideration the following remark made by the district attorney in his closing argument to the jury:

“ ‘It was quite significant that accused had placed none of his near neighbors to testify in his' behalf to the effect that he (defendant) did at one time own an animal such as the one in question today, although he had admitted that he had near neighbors.’ ”

Defendant objected to the remark on the ground that the state carried the burden of proving beyond a reasonable doubt the guilt of the accused; that it was not incumbent on defendant to produce any witnesses to establish his innocence; and that the argument was prejudicial and denied the constitutional right of a fair and impartial trial.

Defendant having testified that certain of his neighbors knew of his ownership of .the horse, it was proper for the district attorney to offer the commént to which objection is urged. “Counsel have the right to draw from the evidence received, or from the failure to produce evidence shown to be in the possession of the opposite party, any conclusion which to them may seem fit, but counsel have no right to draw from such evidence or suppression of evidence an incorrect conclusion of law.” , Art. 382, Code of Criminal Procedure. See also State v. Flattmann, 172 La. 620, 135 So. 3; State v. Simmons et al., 167 La. 963, 120 So. 612; State v. Scruggs, 165 La. 842, 116 So. 206.

Under the remaining bill of exceptions appellant 'complains of the court’s refusal to grant a new trial for alleged newly discovered evidence, it being in the nature of opinions rendered by three veterinarians, who examined the horse in question following the jury’s verdict, that the animal was from six to twelve months under the age of four years. Those opinions, defendant insists, were extremely material inasmuch as age was an important factor in determining"*ownership, the prosecuting witness having testified that his animal was about five years old whereas defendant placed the age of the horse possessed by him at three years.

Much discretion is vested in the trial judge with reference to the granting of a new trial on the ground of newly discovered evidence (State v. Heintz, 174 La. 219, 140 So. 28), and in this case we are not satisfied that he has abused it. If age was an important factor, as defendant contends, it seems to us that with due diligence the desired expert testimony to establish it could have been timely obtained. On this point, to be sure, defendant argues that he could not anticipate that the animal’s age would be important in determining his guilt or innocence, and that during the trial, when the issue arose, there were no veterinarians immediately available or near enough to give their opinions. But, even in view of those circumstances, we do not find from the record that defendant moved for (and was denied) a continuance so that he might have an opportunity of obtaining and offering the expert evidence.

The conviction and sentence are affirmed.

HAWTHORNE, J., fully subscribes to the decree affirming the verdict and to the reasons given therefor, but respectfully dissents from that portion which affirms the sentence, and assigns written reasons.

HAWTHORNE, Justice

(dissenting in part).

I fully subscribe to the decree in the majority opinion insofar as it affirms the verdict of the conviction, and to the reasons given therefor, but cannot subscribe to that portion of the decree which affirms the sentence because I am of the opinion that the sentence is illegal, null, and void and is no sentence whatsoever, and that for this reason the case should be remanded to the district court for the judge to impose a legal sentence.

Since the defendant was charged in the bill of information with the theft of a horse valued at $100, under Article 67 of the Louisiana Criminal Code, for which the punishment may be imprisonment with or without hard labor for not more than 10 years, this court has appellate jurisdiction. Article 7, Section 10, of the Louisiana Constitution of 1921 provides, insofar as it is applicable to this case, that the appellate jurisdiction of the Supreme Court extends to criminal cases on questions of law alone whenever the penalty of imprisonment at hard labor may be imposed. See State, v. Melancon, 163 La. 435, 112 So. 37; State v. Price, 164 La. 376, 113 So. 882.

The minutes of the lower court disclose that after trial the jury retuméd the following verdict:

“We the Jury find the accused guilty as charged with value less than one hundred dollars and more than twenty dollars. H. A. deNux, Foreman.”

In due course, the district judge imposed a sentence upon the defendant under the above conviction of 12 months in the parish jail, and at the same time suspended six months of the sentence so imposed.

Article 530 of the Code of Criminal Procedure, as amended, insofar as it is applicable to this case, provides:

“ * * * when any person is convicted by a jury of a felony, other than a capital offense, and probation is recommended by the jury, the court shall have the power to suspend execution of the sentence imposed and to place the offender on probation for such period and upon such terms as the court may deem best. * * * ” (All italics mine.)

■ In the instant case, since the jury failed to recommend probation, the judge of the lower court had no authority whatever to suspend any sentence which he should see fit to impose within the terms of the statute, and, even if the jury had recommended probation, he would not have had authority at the time of imposition of sentence to suspend only a portion of the sentence imposed.

In the case of State v. Blakeney, 164 La. 669, 114 So. 588, 589, this court found that the sentence imposed on defendant therein was illegal under the indeterminate sentence law, and during the course of the opinion we said:

“ * * * It is the duty of the district judge to impose a sentence according to law, and to determine whether the minimum sentence shall be exactly two-thirds of the maximum, or less than two-thirds of the maximum, and, if less, how much less. The sentence being illegal, the case is in the same condition as if no sentence at all had been imposed, and it must be remanded for the judge to impose a legal sentence. The invalidity of the sentence, of course, does not affect the validity of the verdict.”

This rule was followed and the language quoted with approval in State ex rel. Cutrer v. Pitcher, 164 La. 1051, 115 So. 187.

Article 527 of the Code of Criminal Procedure provides that, when a sentence is illegal, it may be reviewed by the appellate court at the instance either of the State or of the defendant, and, as pointed out in the majority opinion, the State has not appealed from the illegal sentence imposed herein. I am mindful of the fact that, under Article 558 of the Code of Criminal Procedure, an appellate court cannot determine or consider any question which was not submitted to, and passed upon by, the trial judge unless the error is patent on the face of the record, but in such a case this court is charged with noticing ex proprio motu such nullities or defects as may be apparent on the face of the record. State v. Toney et al., 205 La. 451, 17 So.2d 624, and authorities therein cited. In that case this court said: “ * * * As a matter of fact, this court is clvarged with noticing ex proprio motu such nullities or defects as may be apparent on the face of the record. * * * ”

In the instant case, the error is one patent on the face of the record, for in a criminal case the record includes the caption, a statement of the time and place of holding the court, the indictment or information with the arraignment, the plea of the accused, the motion for empaneling of the jury, the verdict, and the judgment of the court. United States v. Taylor, 147 U.S. 695, 13 S.Ct. 479, 37 L.Ed. 335; State v. McCrocklin, 130 La. 106, 57 So. 645; State v. Leon, 177 La. 293, 148 So. 54; State v. Daleo, 179 La. 516, 154 So. 437; State v. Eubanks, 179 La. 92, 153 So. 31.

Article 527, which gives the State the right to appeal from the imposition of an illegal sentence, provides also that nothing contained therein shall be construed to deprive any person of his right in proper cases to a writ of habeas corpus. In the instant case, since the decree of the majority has failed to remand the case for proper sentence, the defendant herein is entitled to his release from his imprisonment in the parish jail under this illegal sentence under a writ of habeas corpus, subject, of course, to imprisonment under a valid sentence by the district court, as in State ex rel. Cutrer v. Pitcher, supra. To me, therefore, in order to preclude the possibility of further proceedings in such a case as this one, the better practice would be for this court, under the authorities cited hereinabove, to affirm the verdict, but to take notice of the error patent on the face of the record— that is, the illegal sentence — and to remand the case to the lower court so that a legal sentence may be imposed.


author: HAMITER, Justice.

text:
    214 La. 673
    REICH v. GRIEFF.
    No. 35999.
    Supreme Court of Louisiana.
    Jan. 10, 1949.

      George Sladovich, Jr., of New Orleans, for plaintiff-a-ppellant.
    Signey G. Roos, of New Orleans, for de f endant-app ell ee.
   HAMITER, Justice.

This appeal presents for our consideration the claim of a divorced wife for benefits under the provisions of Revised Civil Code, Article 160.

On October 16, 1939, the husband, Ralph A. Reich, instituted suit against his wife, Edna Grieff Reich, praying for a judgment of divorce. In the petition he alleged •that they were married in St. Bernard Parish on June 25, 1937, and that continuously from such date they had been living separate and apart.

The wife, in her answer, generally denied the allegations of the petition. In recon-vention, she averred that plaintiff abandoned her, without any cause whatever and without any fault on her part, and that she is entitled to monthly alimony from him in a sum to be fixed by the court. She prayed for a dismissal of the suit and, further, that plaintiff be condemned to pay her monthly alimony.

On a rule, issued in connection with defendant’s prayer and heard on December 5, 1939, the court ordered plaintiff to pay alimony pendente lite at the rate of twenty-five cents per week.

Trial of the merits occurred on June 5, 1940, after which (on July 16, 1940) the court rendered judgment decreeing a divorce between the parties and condemning the plaintiff to pay to defendant the sum of $5 per week beginning January 30, 1940. From the judgment plaintiff appealed.

The transcript of appeal was filed in this court on October 7, 1940, and the cause then placed on our ordinary or regular docket. But neither of the litigants sought to have it advanced to the preference docket for a hearing (as each had the right to do) until October 27, 1947, when defendant’s counsel filed a motion, and obtained an order, to that effect.

Meanwhile, on July 16, 1946, pursuant to a joint motion of counsel, this court ordered “that the appeal in this cause be considered as an appeal' only from that portion of the judgment granting alimony in favor of the defendant, and that, accordingly, the appeal, insofar as it may have been deemed to be taken from that portion of the judgment of the lower court granting a divorce between the parties, be dismissed in this court, and that portion of the judgment of the lower 'court granting a divorce be affirmed, at plaintiff’s costs.”

Article 160 of the Revised Civil Code, as amended, under which appellee is claiming benefits, recites:

“If the wife who has obtained the divorce has not sufficient means for her maintenance, the court may allow her in its discretion, out of the property and earnings of her husband, alimony which shall not exceed one-third of his income; provided, however, that in cases where, under the laws of this state a divorce is granted solely on the ground that the married persons have been living separate and apart for a certain specified period of time, and the husband has obtained a divorce upon the ground of such living separate and apart, and the wife has not been at fault, then the court may allow the wife in its discretion, out of the property and earnings of her husband, alimony which shall not exceed one-third of his income.
“This alimony shall be revocable in case it should become unnecessary, and in case the wife should contract a second marriage. Jjc ‡ * ”

Since' no obligation of support arises from a dissolved marriage the benefits thus authorized are in the nature of a pension accorded by law to the divorced wife under certain conditions. If is fixed in the discretion of the court at an amount not to exceed one-third of the husband’s income. Player v. Player, 162 La. 229, 110 So. 332; Fortier v. Gelpi, 195 La. 449, 197 So. 138; Matheny v. Matheny, 205 La. 869, 18 So.2d 324. For the wife to be eligible for the benefits, as the codal article states, it must appear (1) that she has not sufficient means for her maintenance and (2) that either she has obtained the divorce (which implies her freedom from fault) or if the husband has secured the divorce upon the ground of living separate and apart that she has not been at fault.

At the time of the granting of the divorce in the present case the 'husband, according to the record, was earning approximately $60 per month. From his earnings the wife was awarded $5 per week. This amount is not in excess of the maximum of one-third authorized to be awarded, and we are unable to conclude that in fixing it the trial judge abused the discretion with which be is vested. See Gerstner v. Stringer, 205 La. 791, 18 So. 2d. 195.

As to whether the defendant was without sufficient means for her maintenance, she testified that she was dependent entirely upon her mother and father and that she had no income other than what she received from them. This testimony is in no manner contradicted.

A more serious question is presented by the requirement that the divorced wife, to be eligible for the benefits, be not at fault in the marriage’s dissolution, the divorce herein having been obtained by the husband on the ground of living separate and apart. The only evidence in the ¡record that seems to relate to this important issue is a letter purportedly written by plaintiff to defendant which we quote verbatim as follows:

“July 3, ,1937
“New Orleans, La.,
“Edna
“I am leaving to-nite to go way I dont know. I found out I couldn’t make a go of being married.
“Sorry I cause you so much trouble but it a good thing it happen soon.
“Your life, if I 'had stayed would have been hell so I am taken the best way out.
“I don’t know where I going. Am returning the ring. I could not make a loan so I couldn’t stay.
‘‘Good luck and goodbye.
“(Sgd.) Ralph.
“P. S. I didn’t have enough money to pay the judge.”

But this letter does not disclose with certainty freedom from fault on the part of the divorced wife; at the most it is merely suggestive of such a conclusion. Also, no testimony was adduced identifying it as actually having been written by the husband. Furthermore, there is nothing to show that such letter was even offered in evidence at the trial of the instant claim which occurred June 5, 1940; it is marked “Filed 12-5-39”, the date of the hearing on the rule for alimony pendente lite, at which the matter of the wife’s freedom from fault was of no importance.

In this connection it is noticed that during the trial of the instant claim plaintiff’s counsel asked the divorced wife: “After your marriage how long did you live together?” On an objection from her counsel, the court ruled: “That has no bearing on this rule for alimony.” Again, plaintiff’s father testified: “* * * they never lived together five minutes”; but' the court ordered: “Strike all of that out of the record.” In so ruling error, in our opinion, was committed. Evidence disclosing the circumstances respecting the marital relationship of the parties hereto is relevant, we think, in determining the issue of whether the wife was at fault, particularly since plaintiff has charged in his petition that their living separate and apart had been continuous from the date of the marriage.

Because of those rulings, of the-uncertainty attending the above quoted letter, and of the unsatisfactory condition of the record generally, we are presently unable to pronounce definitely on this cause and have concluded tp remand it for further proceedings. Authority for this procedure is found in Code of Practice Article 906, reading:

“But if the court shall think it not possible to pronounce definitely on the cause, in the state in which it is, either because the parties have failed to adduce the necessary-testimony, or because the inferi- or -court refuse to receive it, or otherwise, it may, according to circumstances, remand the cause to the lower court, with instructions as to the testimony which it shall receive, to the end that it may decide according -to law.”

On -the remand the district court -shall hear and receive any competent evidence offered by either litigant relating to the issue of the wife’s alleged freedom from fault, including that tending to disclose the circumstances surrounding the marital relationship of the parties and their separation. After the hearing if the court concludes from all of the evidence in the case that -the wife was free from fault in the dissolution of the marriage it shall reinstate the judgment rendered and signed by it on July 16, 1940; if otherwise it shall reject defendant’s demands. And from the court’s decree the right of further appeal is r&served to the litigant adversely affected.

For the reasons assigned that portion of the judgment appealed from is now •reversed and set aside and the case is remanded for further proceedings according to law and consistent with the views herein expressed. Each litigant shall pay one-half of the cost-s of this appeal. All other costs shall await the final determination of the litigation.

PONDER, J., absent.


text:
    214 La. 683
    STATE ex rel. THOMPSON v. DEPARTMENT OF CITY CIVIL SERVICE et al.
    No. 38706.
    Supreme Court of Louisiana.
    Dec. 13, 1948.
    Rehearing Denied Jan. 10, 1949.
    Henry G. McCall, City Atty. and Henry B. Curtis, Asst. City Atty., both of New Orleans, for defendants and appellants.
    Moise W. Dennery, of New Orleans, for respondents and appellants.
    Charles J. Rivet, of New Orleans, for appellee.
   HAMITER, Justice.

In this mandamus proceeding relator, Albert T. Thompson, seeks to obtain reinstatement as one of the Judges of the Recorders’ Courts in the City of New Orleans and to compel payment of his salary of $350 per month, beginning May 15, 1946, and continuing until he legally occupies that position. Those impleaded as defendants are the members of the New Orleans Civil Service Commission, and also the Mayor, the members of the Commission Council, and the Director of Personnel, all of the City of New Orleans.

On May 14, 1934, relator was appointed as Judge of the Second Recorders’ Court of New Orleans, and thereafter served continuously in the position until May 17, 1946, when, by action of the Commission Council of that city, he was replaced by Judge Al-wyn J. Justrabo. This action was reaffirmed by the Council on August 2, 1946, at which time it also fixed the compensation of each of the four members of the Recorders’ Courts in the amount of $4200 per an-num.

Judge Thompson, thereupon, appealed to the City Civil Service Commission, alleging that he had been discharged without good and sufficient cause and without a compliance with the provisions of the City Civil Service Law, Act No. 171 of 1940, by which his position was governed, and praying for reinstatement and for all compensation lost as a result of the alleged illegal removal. After a hearing the City Civil Service Commission concluded that the position of Judge of the Recorders’ Court was controlled by the provisions of the City Civil Service Law from January 1, 1943, until July 31, 1946, on which latter date an amendment to the City Charter, Act No. 301 of 1946, removed it from the classified service; and that Judge Thompson, since he had not been discharged for cause, was entitled to reinstatement until July 31, 1946, with full pay for all time lost.

Commencement of the instant cause followed; and in it, after trial, the district court found (as did the City Civil Service Commission) that the City Civil Service Law, Act No. 171 of 1940, blanketed the judges of the Recorders’ Courts in the classified service. But the court also .held that they were not removed from the protection of that law by virtue of the provisions of Act No. 301 of 1946, which amended certain sections of the Charter of the City of New Orleans. Accordingly, there was judgment rendered ini favor of plaintiff and against the defendants “commanding them, and each of them, to recognize the position of Judge of Recorders’ Court in New Orleans, which relator occupied on May 15, 1946, to be in the classified service of the City of New Orleans; commanding said defendants and each of them, to reinstate relator in his said position, and commanding them, and each of them, to provide relator with such certification of facts as may be necessary to support relator’s claim to, and compel payment of his salary as Judge of Recorders’ Court in New Orleans since May 15, 1946, and continuously thereafter so long as relator legally occupies said position; defendants to pay all costs.”

All defendants appealed from the judgment.

The first and most important question presented by this controversy for determination is whether the judges of the Recorders’ Courts in the City of New Orleans are within the classified service outlined in Act No. 171 of 1940, the City Civil Service Law.

Act No. 159 of 1912 (the City Charter), in Section 21 thereof, made provision for not fewer than three police courts in the City of New Orleans to be known as the Recorders’ Courts. Further, it directed that each court have one judge, at least 35 years of age, and that the Commission Council should choose him, fix the hours for holding court, and provide the method and mode of the court procedure. Under later amendments, Act No. 122 of 1914, Act No. 115 of 1921, Ex.Sess., and Act No. 338 of 1936, four courts were authorized and the minimum age of each judge was fixed at 25 years.

In Article VII (Judiciary Department), Section 94, of the Constitution of 1921, it was provided :

“The judges of the Recorders’ Courts in the City of New Orleans shall be qualified electors, not less than twenty-five years of age, and need not be attorneys at law. The jurisdiction of said courts shall extend to the trial of offenses against city ordinances; they shall have no other jurisdiction. The judges of said courts shall be elected and removed by the Commission Council, or other governing authority, of the City of New Orleans.”

The same Constitution in Section 15 of Article XIV (Parochial and Municipal Affairs) said:

“The Legislature shall provide for civil service in municipalities having a population of one hundred thousand (100,000) or more, and for the recognition and adoption of the merit system in the employment or appointment of all applicants; and shall provide against the discharge of employees or appointees without good and sufficient cause.”

As directed by the latter constitutional provision the Legislature of 1940 adopted Act No. 171, the title of which, insofar as pertinent, reads:

“To create and establish a Classified Civil Service, based upon the merit system of personnel administration, to administer, control and regulate employment in the service of all cities in the State of Louisiana having a population exceeding One hundred Thousand (100,000) * * * to define the Classified Service and the Unclassified Service; to regulate and control employees in the Classified and Unclassified Services and the method of employing certain personnel by such cities having a population in excess of One Hundred Thousand (100,000); to provide, and to authorize the establishment of, rules for personnel administration in the service of such cities; to require the classifying of, alid to provide pay plans for, positions in the service of such cities; * * * to determine the status of existing employees; to provide for reduction or increase in personnel, and for regulations for the transfer, promotion, demotion, lay-off, dismissal, suspension, reduction in pay, or retirement of employees in the Classified Service; * * * to prohibit political activities by employees in the Classified Service; * *

Section 1 of the Act states:

“The purpose of this Act is to guarantee to all citizens a fair and equal opportunity for public service, irrespective of religious, political or factional considerations; to establish for all cities in the State of Louisiana having a population exceeding One Hundred Thousand (100,000) according to the last preceding decennial census of the United States for which the official figures have been prepared a system of personnel administration based on merit principles and scientific methods, governing the appointment, promotion, transfer, lay-off, removal and discipline of its officers and employees, and other incidents of City employment. Except as hereinafter specified, all appointments and promotions to positions in the City service shall be made on the basis of merit and fitness, to be ascertained by competitive examinations.”

In Section 3 are to be found definitions of certain words and phrases used in the statute, those appropriate to this discussion being:

“ ‘Appointment’ means the designation of a person, by due authority, to become an employee in a position, and his induction into employment in such position.”
“ ‘Classified Service’ means all offices and positions of trust or employment in the City Service, except those placed in the unclassified service by this Act.”
“ ‘Employee’ means a person legally occupying a position.”
“ ‘Regular employee’ means an employee who has been appointed to a position in the classified service in accordance with this Act after completing his working test period.”
“ ‘City Service’ or ‘Civil Service of the City’ means all offices and positions of trust or employment in the employ of the City, or any department, independent agency or other agency, board or commission thereof, or corporation organized for public purposes, of which fifty per cent. (50%) or more of the stock thereof is owned or controlled by the City, including persons employed by City or joint Federal and City agencies administering City and Federal relief and other funds, other than the military and naval service, irrespective of whether the pay for such offices and positions of trust or employment be paid out of the City Treasury, either in whole or in part, except those hereinafter excepted by the provisions of this Act.”

Section 10 of the Act describes the unclassified and classified services as:

“(a) The unclassified service shall include the following positions:
“(1) The Mayor and other members of the Commission Council or other governing body of the city and all officers of all cities to which this Act applies, elected by popular vote and all persons appointed to vacancies occuring in such elective offices.
“(2) All heads of principal executive departments including the members of the Civil Service Commissions of all Cities to which this Act applies.
“(3) Members of the advisory boards and committees appointed by the mayors of all cities to which this Act applies, and serving without pay.
“(4) Members of boards, authorities or commissions appointed by the Commission Council, or other governing body of 'any city to which this Act applies.
“(5) Members and employees of the Board of the New Orleans City Park Improvement Association.
“(6) One principal assistant or deputy and one private secretary for the Mayor, the members of the Commission Council or other governing body of the city, each board or head of a department, except the Civil Service Commission.
“(7) Persons retained or employed by the Director for the purpose of conducting or assisting in the conduct of examinations under (d) of Section 8.
“(8) Officers, Secretaries and employees of the offices of the Mayor and City Attorney, Board of Liquidation City Debt and one member of the Louisiana Bar occupying a position in the City Service as legal counsel to any appointing authority.
“(9) All those employees and deputies of parochial offices and officials .who have been placed in the unclassified Civil Service by sub-paragraph (14), as amended, of Section 10 of House Bill No. 484 relative to the State Department Civil Service.
“(b) The classified service shall comprise all other positions now existing or hereafter created in the City service.”

The remaining provisions of the statute relate principally to the establishment of the Department of Civil Service, to the selection of those intrusted with its conduct, and to the rules, regulations, and procedure provided and necessary for its operation. Reference to some of these will be made hereinafter.

As above shown, Section 10(a) lists nine categories of positions excepted from the classified service, in not one of which are the positions of judges of the Recorders’ Courts specifically mentioned; further, following that listing, Section 10 of the statute declares “(b) The classified service shall comprise all other positions now existing or hereafter created in the City service.”

But, even though not so specifically mentioned, the positions of those judges might well come within the exceptions provided in Paragraph 4 of Section 10(a), reciting: “Members of boards, authorities or commissions appointed by the Commission Council, or other governing body of any city to which this Act applies.” To say that the judges of the Recorders’ Courts are members of judicial authorities appointed by the Commission Council seemingly would not be an incorrect statement. Often the United States Supreme Court is referred to as the highest judicial authority of our nation, and this court as the highest judicial authority of Louisiana. Furthermore, the noun “authority” is defined in Webster’s New International Dictionary, Second, Edition, Unabridged, as: “b. (Chiefly in pi.) Government; the persons or the body exercising power or command; as, the local authorities of the States; the military authorities.” And in the New Century Dictionary one of the definitions given is “the person or persons exercising power or control.” Undeniably, the judges of the Recorders’ Courts exercise judicial power, command, and control respecting matters within their jurisdiction.

Be that as it may, however, after our careful analysis and study of all of the provisions of Act No. 171 of 1940, made in the light of established rules for statutory interpretation, we are convinced that the Legislature did not intend that the judges of the Recorders’ Courts of the City of New Orleans should be iri the classified service as outlined in such statute; and, for that reason, we hold that they are not governed by the rules, regulations and procedure prescribed for City Civil Service.

Appropriate here is the following found in Re Hibernia Bank & Trust Co., 185 La. 448, 169 So. 464, 472:

“ ‘In the case of Church of Holy Trinity v. United States, 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226, and glaringly in the case of [Territory of] Hawaii v. Mankichi, 190 U.S. 197, 23 S.Ct. 787, 47 L.Ed. 1016, the Supreme Court of the U. S. laid down with great force and clearness the doctrine that in construing a statute it is the duty of the Court to seek out the intention of the Legislature and to give effect thereto in the same manner and to the same extent that it construes a will to determine the intention of the testator, or a contract to determine the intention of the parties thereto, and that no matter how broad and comprehensive may be the language employed by the statute, if it was not the intention of the Legislature to cover a particular case by that broad and comprehensive language, that then no effect should be given to it because the Legislature did not so intend. * * * But even if the language of the act -is as broad as opponents contend, it is then the duty of the court to restrain its operation within narrower limits than its words import, if the Court is satisfied that their literal meaning would extend to cases which the legislature never intended to include.’ ”

That doctrine was affirmed in Smith v. Town of Vinton, 209 La. 587, 25 So.2d 237, 239, in which we further quoted approvingly from Gremillion v. Louisiana Public Service Commission et al., 186 La. 295, 172 So. 163, as follows:

“ ‘In the construction of statutes absurd results should be avoided, and when the literal construction would produce such a result, the letter of the law must give way to its spirit and the statute should be construed so as to produce a reasonable result. * * * > »

Also appropriate is the rule that although a title is no part of a statute it may be considered in determining the legislative intent where doubt exists. Succession of Baker, 129 La. 74, 55 So. 714, Ann.Cas.1912 D, 1181; Pritchard et al. v. Southern Insurance Company of Nashville, Tennessee, et al., 176 La. 187, 145 So. 374; Hughes v. Rudd, 178 La. 588, 152 So. 300; Schimpf v. Thomas, 204 La. 541, 15 So.2d 880.

When the title to Act. No. 171 of 1940 is examined it will be noticed that there is nothing contained therein indicative of an intention that judges of Recorders’ Courts, who are judicial officers, should be within civil service. To the contrary, throughout the title, reference is made to “personnel,” to “employment,” and to “employees,” indicating that the act was intended to affect only those persons popularly and commonly termed “employees,” in which class judicial officers are not generally considered.

In the body of the act, it is true, Section 1 speaks of “officers and employees,” and subsections 6 and 28 of Section 3 refer to “all offices and positions of trust”. But when these words are examined in their context and along with all of the other provisions of the statute and of its title, and considered in the light of Section 94 of Article VII of the Constitution of 1921 (relating to judges of the Recorders’ Courts), it is clear that they do not embrace the judicial offices in question.

The statute, together with its title, contains numerous provisions respecting matters that are obviously inconsistent with the position of a judge of a Recorders’ Court. For example:

It is the duty of the personnel director “To develop, in cooperation with appointing authorities and others, training and educational programs for employees in the City service.” Section 8(a) (4).

“ * * * Every person who, on the first day of July, 1942, is legally occupying, by permanent appointment thereto, a position placed by this Act in the classified service, shall be entitled to continue to occupy such position, without further tests of fitness for such employment, * * Section 11.
“The rate of pay of any employee may be decreased under the conditions and subject to the procedural requirements hereinafter prescribed in this Act. The pay of all positions in the classified service shall be determined with reference to the pay plan .in effect and in accordance with the provisions of this Act, any provision of law appropriation for any different salary rate or mode of payment for any position to the contrary notwithstanding, and no employee in such service shall be paid any compensation for service as such except in accordance with the rate fixed under the provisions of this Act, and the rules adopted under its provisions. * * Section 16 (b).
“The rates of pay prescribed in the pay plan provided under the requirements' of this Act shall be deemed to be the rates prescribed for full-time employment for the regularly established working hours, * * Section 16(d).
“Vacancies in positions in the classified service may be filled by demotion, transfer, reinstatement, reemployment, promotion, original appointment, or temporary appointment, in accordance with the provisions of this Act and the rules. Preference shall be given to the methods named in the order in which they are so named in this Section, under the conditions and subject to the restrictions and limitations set forth in the rules.” Section 17(a).

Every person appointed to a position in the classified service after certification of his name from an employment list shall be tested by a working test while occupying such position. * * *” Section 25(a).

“ *' * * Each employee shall be notified of his serivce ratings from period to period with a view of his being afforded opportunity for correcting his obvious wekk-nesses.'' The reports and records of the ratings of each employee may be inspected by him or his duly authorized representative, by his appointing authority, and, in the discretion of the Director, by any other appointing authority who is considering a transfer of the employee to his own jurisdiction,, * * Section 29(b).

■Further, it will be recalled that Article VII, Section 94 of the Constitution of 1921 asserts that the judges of the Recorders’ Courts shall be qualified electors and not less than 25 years of age. Yet, Section 20 of the statute provides, that “* * * Whenever, after diligent effort, it has been found impracticable to obtain a sufficient number of eligibles who are citizens and if over twenty-one (21) years of age are qualified voters of the City, for positions of any class, persons otherwise qualified who are not citizens may be admitted to the tests and may become eligible for appointment and be appointed to such positions subject to all other provisions of this Act. * * * ” Section 24 states that, " * * * provided that preferences in certifications shall be given to eligibles who are residents and if over twenty-one (21) years of age are qualified'voters of the city, but in any casé where there are not enough eligibles who are such residents, other eligibles who are non-residents of the city may be certified. * * * ” And Section 26(1) declares that "* * * When a vacancy is to be filled in a position of a class for which there are no ¡eligibles available for certification, the appointing authority, with the prior approval of the Director, may make a provisional appointment of any person whom he deems qualified. * * * ” Surely, by these statutory provisions the Legislature did riot intend to contravene the constitutional mandate respecting the age and residential qualifications for an eligible Recorders’ Court judge. In this connection we notice that in enacting them it did not also stipulate that the constitutional qualifications should govern in the event of a conflict, just as it cared fór a conflicting situation when it provided in Section 45:

. “ * * * Wherever the provisions of any law of the United States, or of any rule, order or regulation of any Federal Agency or authority, providing or administering Federal funds for use in Louisiana, either directly or indirectly or as a grant-in-aid, or to be matched or otherwise, impose other or higher, civil service or merit standards or different classifications than are required by the provisions of this Act, then the provisions of such laws, classifications, rules or regulations of the United States or any Federal Agency shall be adopted by the Commission as rules and regulations of the Commission, and shall govern the class of employment and employees affected thereby, anything in this Act to the contrary notwithstanding.”

When, therefore, all of the provisions of Act No.-171 of 1940 are considered together, properly analyzed, and construed with a view of reaching a reasonable result, the conclusion is inescapable that there was no legislative intent to place the judges of the Recorders’ Courts within the City Civil Service Law, a conclusion that is fortified by the well recognized doctrine, as announced in 10 American Jurisprudence verbo Civil Service, Section 13, that the scope of Civil Service laws is generally limited so as to exclude from their operation judicial officers.

For the reasons assigned the judgment of the district court is reversed and set aside, and there is now judgment rejecting the demands of relator and dismissing this suit at his costs.


author: FOURNET, Justice.

text:
    214 La. 700
    ACOSTA et al. v. WHITNEY NAT. BANK OF NEW ORLEANS.
    No. 38381.
    Supreme Court of Louisiana.
    Dec. 13, 1948.
    Donald R. Brian, of New Orleans, for plaintiffs-ap'pellees.
    Milling, Godchaux, Saal & Milling and Elizabeth Ridnour Haak, all of New Orleans, for defendant.
   FOURNET, Justice.

The heirs of the late Casamere Acosta and his deceased wife, Mrs. Malvina Nunez, instituted this petitory action to recover from the Whitney National Bank of New Orleans a certain tract of- land in St. Bernard Parish and the improvements thereon as their homestead, claiming that the bank’s acquisition of the property at a foreclosure sale was a nullity. They also seek to-recover $1,500 for .rents and revenues derived from the property. In the. alternative, they seek to recover the sum of $2,000, the homestead value of -the property.

The defendants first pleaded to the jurisdiction of the court rationae personae and then filed an exception of no cause of action. When these pleadings were overruled, the defendant filed a general denial. It is now appealing from a judgment decreeing the plaintiffs to be the owners of the property in indivisión and ordering the bank to pay them the sum of $568, being the rents and revenues derived from the property.

It appears that Casamere Acosta, subsequent to his acquisition of the property in controversy on December 26, 1923, moved thereon with his family, occupying one of the buildings as a home and, in the other, operating a store. ' He continued to reside there with his family until his death on September 8, 1938. His succession was opened on September 23 thereafter by his widow, who, with their children, continued to occupy the property as a home until, on November 15, 1938, some nine weeks later, she also died. From that time the five minor children of the decedents, ranging in ages from 5 to 17, made their home with an uncle and aunt, Mr. and Mrs. Louis Nunez, who lived some two blocks away. In March of 1939, at the instigation of one Richard Acosta, allegedly a brother of Casamere Acosta, the successions of the two Acostas Were consolidated, inventories were taken, Richard Acosta’s application for appointment as administrator was duly published and approved, but he never qualified as such. No further action was taken in the matter until on May 15, 1945, the plaintiff, Casa-mere Acosta, Jr., who had been appointed dative tutor of his three minor brothers (Earl, Jesse, and Jerry), and Marion Acosta, the daughter who had reached the age of majority, accepted the successions of their parents and asked to be sent into possession of all of their rights, credits, and property.

In the meantime, however, during October of 1939, the Whitney National Bank of New Orleans foreclosed on a $7,000 mortgage note executed by Casamere Acosta on October 29, 1931, by proceeding via executiva against the properties of Acosta given as security, including the property here in controversy, and became the adjudicatee of the property on April 9, 1940, for the sum of $1,000. It appears that since that time 'the bank has been in possession of the property and that from its rental thereof has realized the sum of $568, out of which amount taxes totalling $334.37 have been paid. In these foreclosure proceedings the bank, alleging the minors were without legally qualified tutor, secured the appointment by the court of an attorney at law to represent them, and it was with this attorney that the proceedings were carried on contradictorily.

Soon after Casamere Acosta, Jr., qualified as the tutor of his minor brothers, he, individually and on their behalf, joined by his sister, instituted this suit, alleging that the foreclosure by and the sale to, the bank of this property that had constituted the homestead of their parents, to whose rights they as their heirs had succeeded, was null and void and the legal title thereto had remained in these heirs since the mortgage under which the property was seized and sold contained no waiver of homestead exemption and the property sold for less than $2,000. They prayed for judgment recognizing them as the owners of the property and for $1,500 for the rents and revenues derived therefrom. In the alternative, they prayed for a money-judgment for the value of the homestead exemption, $2,000.

The provisions of Section 1 of Article XI of the Constitution of 1921 granting to every head of a family the right to have exempt from seizure and sale the homestead, is not self-operative. That right can. only be successfully claimed upon proper showing that the debtor is the head of a family or a person having a mother or father or person or persons dependent upon him or her for support and that the property is bona fide owned and occupied by him as such, provided that the sale does not exceed the value fixed in the constitution ($2,000 at the time the property in controversy was sold, $4,000 under the 1938 amendment), in which case the beneficiary is entitled to its value in cash. Brannin v. Womble, 32 La.Ann. 805; Tilton v. Vignes, 33 La. Ann. 240; Galligar v. Payne, 34 La.Ann. 1057; Denis v. Gayle, 40 La.Ann. 286, 4 So. 3; Hayden v. Slaughter, 43 La.Ann. 385, 8 So. 919; Roy v. Godfrey, 142 La. 262, 76 So. 707; Jefferson v. Gamin, 150 La. 372, 90 So. 682; Andrews v. McCreary Lbr. Co., 155 La. 730, 99 So. 579, 33 A.L.R. 608; and Brantley v. Pruitt, 175 La. 879, 144 So. 604.

The provisions in' Section 2 of this article that no court or ministerial officer shall ever have jurisdiction or authority to enforce any judgment, execution, or decree “against the property exempted, as a homestead,” except for those debts designated therein, has been construed to mean that the courts and ministerial officers are only without jurisdiction or authority “to seize a homestead that has been judicially declared exempt from seizure for the debt attempted to be collected” (Jefferson v. Gamm, supra [150 La. 372, 90 So. 685]), but that the district courts do have jurisdiction over the determination of the question of the claimant’s right to the homestead (see cases cited supra) and also whether a particular debt is or is not one for which the homestead may be seized and sold. See, also, Cunningham v. Steidman, 133 La. 44, 62 So. 346; and Andrews v. McCreary Lumber Company, supra. (Italics ours).

Furthermore, it is the settled jurisprudence of this court that the exemption is forever lost where the one entitled to claim it fails to do so at the time the property is seized and sold, and this is so even so far as the dependent wife and minor children, or other dependent members of the family, are concerned. See, Andrews v. McCreary Lumber Company, supra; also, Kuntz v. Baehr, 28 La.Ann. 90; Gilmer v. O’Neal, 32 La.Ann. 979; Babineau v. Guilbeau, 52 La.Ann. 992, 27 So. 549; Fruge v. Fulton, 120 La. 750, 45 So. 595; Cunningham v. Steidman, supra; and Edwards Co. v. Hano, 188 La. 632, 177 So. 691.

The defendant contends (1) that the plaintiffs cannot collaterally attack the sale of this property and that since they have failed to pray for the nullity thereof, they assumed the foreclosure and sale were absolute nullities; consequently, that their petition does not state a cause of action; (2) that the foreclosure proceedings, having been prosecuted against the minor heirs in the manner provided by law when such heirs are without qualified tutors, that is, contradictorily with an attorney at law appointed by the court to represent them, without any claim having been made for such homestead by this representative or by any one else on behalf of the minors at the time the property was sold, their right to claim this homestead was lost; in any event (3) that since the record conclusively shows the property was vacant from the time of the death of Mrs. Acosta and that at the time of the seizure and sale it was unoccupied by either the heirs or any one on their behalf, they are without right to claim the same as a homestead.

We think the defendant’s exception of no cause of action should have been maintained. The plaintiffs have not cumu-lated 'their petitory action with one of nullity for they have failed to ask that the proceedings under which the bank acquired this property be declared null and void. They merely seek to be decreed the owners of the property on their allegation that it had been used by their parents as a homestead until their death (to whose rights they succeeded under the express provisions of the constitution) and that it was sold under a mortgage containing no homestead waiver. The proceeding under which the bank acquired this property was carried on contradictorily with the minors represented by an attorney at law in the precise manner provided by law when minors are without tutors and undertutors and the plaintiffs, in choosing to ignore it by asking that the title to this property be decreed to, still be in them, assumed the proceeding to be absolutely null, needing no judicial action to set it aside, at their own risk. See, Beland v. Gebelin, 46 La.Ann. 326, 14 So. 843; Bankston v. Owl Bayou Cypress Co., 117 La. 1053, 42 So. 500; Gandy v. Caldwell, 169 La. 870, 126 So. 221; Reid v. Federal Land Bank of New Orleans, 193 La. 1017, 192 So. 688; Pryor v. Desha, 204 La. 575, 15 So.2d 891, and ■the authorities therein cited.

. For the, reasons assigned, the judgment of the lower court is annulled and set aside, the exception of no cause of action is maintained, and-the suit is dismissed at the cost of the plaintiffs.

HAWTHORNE, J., takes no part.


author: MOISE, Justice. ' O’NIELL, C. J.,

text:
    214 La. 709
    STATE v. HAMM et al.
    No. 39080.
    Supreme Court of Louisiana.
    Dec. 13, 1948.
    Booth, Lockard & Jack, of Shreveport, for défendants-appellants.
    Bolivar E.'-Kemp, Jr., Atty. Gen., M. H Culliga’n, Asst. Atty. Gen. and Edwin L. Blewer, D’ist. Atty. and John A. Richardson, Asst. Dist. Atty., both of Shreveport, for appellee.
   MOISE, Justice. '

The defendants herein were charged with having committed “the crime of gambling”', which is defined by Article 90 of the Louisiana .Criminal Code. From the judgment of their conviction and respective sentences, they have appealed.

The defendants urge in particular one bill of exception. This bill, even if if had merit, is of no value, because the defendants, having failed to file a motion for a new trial and to exhaust their remedies in the district court by submitting for review the rulings there made and complained of, before appealing to this Court, have not in conformity with the law placed themselves in a position to obtain relief. Article 559, Code of Criminal Procedure; State v. Stinson, 174 La. 510, 141 So. 44; State v. Eubanks, 179 La. 92, 153 So. 31; State v. Stephens, 183 La. 431, 164 So. 162 and State v. White, 195 La. 1028, 197 So. 745.

For the reasons assigned, the convictions and sentences are affirmed.

O’NIELL C. J., concurs in the decree and assigns reasons.

O’NIELL, C. J.,

(concurring).

Although there are expressions in the opinion rendered in State v. Cooley, 185 La. 1032, 171 So. 435, which are not quite reconcilable with the ruling in the present case, as a matter of fact the decree rendered in the Cooley case was not a departure from the provisions of article 559 of the Code of Criminal Procedure. The article'provides merely that no-new trial can be granted on appeal unless a motion for a new trial was made and refused in the court below. In Cooley’s case this court did not grant a new trial, but found that the sentence which had been imposed upon Cooley was erroneous, being in excess of the maximum sentence allowed by the statute. We, therefore, merely set aside the sentence and remanded the case for the defendant to be sentenced according to law.

In State v. Richard, 203 La. 722, 14 So.2d 615, the defendant, appellant, was convicted of murder and sentenced to suffer the death penalty. The State moved to dismiss his appeal because of the failure of his attorney to exhaust his remedies in the lower court by applying for a new trial. This court declined to dismiss the appeal, but considered the bills of exception on their merits, for no other reason than that the case was one in which the death sentence had been pronounced; There is no such reason why we should decline to enforce article 559 of the Code of Criminal Procedure in this case, where the defendants, appellants, were charged with and convicted of a misdemeanor, gambling, and were sentenced accordingly.

With this explanation I concur in the decree rendered in this case.


author: O’NIELL, Chief Justice.

text:
    214 La. 711
    STATE ex rel. LUCAS v. HICKEY.
    No. 39223.
    Supreme Court of Louisiana.
    Jan. 10, 1949.
    Benjamin Y. Wolf, of New Orleans, for defendant-appellant.
    Delvaille H. Theard, of New Orleans, for relator-appellee.
   O’NIELL, Chief Justice.

The defendant, William P. Hickey, as Recorder of Mortgages for the Parish of Orleans, has appealed from a judgment ordering him to erase from the records of his office the inscription of a certain mortgage for the sum of $5,000. The appellee, Ernest A. Lucas, has moved to'have tSie appeal dismissed on the ground that the recorder of mortgages cannot be aggrieved by the judgment and hence has no appedlable interest in the matter.

The identical issue was presented in the case of Tharp v. Edmiston, 175 La. 1075, 145 So. 12, and" in Succession of Burg, 194 La. 985, 195 So. 513. In both instances the motion' to dismiss the appeal was denied. In Succession of Burg, supra, it'was held that the recorder of mortgages was entitled to an appeal as a matter of right.

The case of Carrere v. Reddix et al., 211 La. 566, 30 So.2d 432, had been submitted on its merits after a motion to dismiss the appeal had been denied. See 210 La. 776, 28 So.2d 267. The court concluded, when the case was considered on its merits, that the appeal should have been dismissed because the recorder of mortgages had pot been ordered to perform or to refrain fróm performing any act. The Tharp and Burg cases were properly distinguished on that ground. ‘ ‘

The motion to dismiss the appeal is denied.


author: O’NIELD, Chief Justice.

text:
    214 La. 713
    STATE v. BYRD.
    No. 39042.
    Supreme Court of Louisiana.
    Jan. 10, 1949.

      Frank A. Blanchard, of Shreveport, for defendant-appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., and Edwin L. Blewer, Dist. Atty. and John A. Richardson, Asst. Dist. Atty., both of Shreveport, for plaintiff-appellee.
   O’NIELD, Chief Justice.

The defendant is appealing from a conviction and sentence of imprisonment for the crime of battery committed with a dangerous weapon.

He reserved four bills of exception during the trial, but we find no merit in any of them. Three of the bills were reserved to the overruling of objections made by the defendant’s attorney to the testimony of three witnesses for the state, who were officers of the law and who testified to admissions or confessions made by the defendant soon after the commission of the crime and while he was in prison awaiting trial. The objection was that the defendant was in the custody of the officers, in jail, “without counsel and was not warned or notified of his legal rights.”

The judge, in his per curiam, on each of the three bills of exception declares that each of the witnesses, before being allowed to relate what the defendant told him on the occasion in question, testified that the defendant’s statement was made freely and voluntarily, without any promise of reward or threat or coercion on the part of anyone. The law does not require that an arresting officer, or one having a prisoner in his custody, shall not receive a confession from the party under arrest, without first informing him that his statements may be used against him. State v. Smith, 156 La. 818, 101 So. 209; State v. Terrell, 175 La. 758, 144 So. 488; State v. Burks, 196 La. 374, 199 So. 220.

The fourth bill of exception was reserved to the refusal of the judge, on the objection of the prosecuting attorney, to allow the defendant’s attorney to recall a state witness for re-cross-examination after he had been examined by the prosecuting áttorney and cross-examined by the attorney for the defendant. It is argued by the attorney for the defendant that he was prejudiced by being obliged to recall the witness and examine him as his own witness, instead of being allowed to call him for re-cross-examination. The judge states in his per curiam that the witness was not a hostile witness, but on the contrary gave what aid he could to the defendant’s case. Be that as it may, the matter of allowing a witness to be recalled to the witness stand for further cross-examination, after he has been examined and cross-examined, is a matter which is left largely to the discretion of the trial judge. State v. Turner, 25 La.Ann. 573; State v. Fernandez, 157 La. 149, 102 So. 186; State v. Woods, 161 La. 863, 109 So. 519; State v. Scruggs, 165 La. 842, 116 So. 206. There is no showing of abuse of that discretion in this instance.

The conviction and sentence are affirmed.


author: WESTERFIELD, Judge.

text:
    BALTHAZAR et al. v. SWIFT & CO.
    Nos. 10540, 10541.
    Court of Appeal of Louisiana. Orleans.
    Feb. 20, 1928.

    See also 10 La.App. 25, 120 So. 896.
    John D. Miller, of New Orleans, for appellant.
    Paul A. Sompayrac and Frank S. Nor-mann, both of New Orleans, for -appellees.

       Furnished by the Court for publication Jan., 1949.

   WESTERFIELD, Judge.

Paul Balthazar and Elizabeth Bradley Balthazar brought separate actions, under the compensation law, against Swift & Co., defendant herein, and late employer of William Balthazar, deceased, who was accidentally killed in the course of his employment at Harvey, Louisiana, April 1, 1925. Each claim to be exclusively entitled to compensation, one as the father and the other as the wife of the deceased. The -cases were consolidated for convenient disposition below and were so considered on appeal.

The father’s claim is based upon subsection 2 of Section 8 of the Compensation Act, Act No. 20 of 1914, -as amended by Act No. 216 of 1924, p. 400. In the language of the Act he. has a claim, if dependent, only when and “if there be neither widow, widower nor child”. The argument is that the wife is not entitled to compensation because she did not live with nor was she dependent upon her husband at the time of his death and -that therefore there being no wife en-titléd to compensation there is, in the in-tendment of the law, no wife. Opposed to this contention is the view that the law in saying “no wife” means what it says and not as suggested “no wife entitled to compensation” as counsel would have it. But before considering this point, we must first determine whether the wife is entitled to compensation. A wife is entitled to compensation only when living with, or dependent upon her husband for support at the time of his injury or death. “No compensation shall be payable under this section (Sec. 8 subsection 1) to a widow unless she be living with her deceased -husband at •the time of -the injury -and death, or be then actually dependent upon him for support.”

Elizabeth Bradley or “Lizzie” as she is frequently styled in -the testimony, married the late William Balthazar in the Parish St. Mary. Both were illiterate Negroes and in lieu of their signatures to their marriage certificate 'affixed their mark. William proved to 'be inconstant and after a short residence with his bride, left for New Orleans, where for twenty years he led a rather purposeless and aimless existence, sometimes employed and more often otherwise, but ever and always, so far as the record shows, impecunious. Shortly before his death he, for the first time, obtained steady employment, and with the defendant. His wife was not living with him at the time of his death therefore if she has any claim it must rest upon her dependency.

The case on this point rests upon the genuineness of three letters produced and filed by defendant. These letters purport to show plaintiff’s dependence upon her 'husband, 'because, in them he refers to sums of money as being enclosed, and breathes a spirit of love and affection out of all proportion to the circumstances.

The letters, spelling and all, are as follows :

“New Orleans la Mar IS 1925
“Mrs. Elizabeth Balthazar dear wife to day i am ritting to let you heare from me i am well and do Hope (illegible word) -reach you Loving Hands will find you (in-terlineation as follows: i receive your Letter well dear wife i am send you $3 dollars i am exPect to Be home Soon excuse my short letter i come to a Close I reame your truly husband Mr. William Balthazar Ancer Soon Harvey La”
“New Orleans La Mrs ElizaBeth Balthazar dear wife only a few lines to let you hear from me which i am at Present and do hope this will find you well i rec you Letter dear wife i am sending you $5 dollar in this Letter -and i will Send you Some more in a few days dear wife i am Very Busy in work i Say more next time i reamine you truly Hus Band William Balthazar Send my mail -to Harvey La Hopein to heare from you Soon”
“New Orleans, La dec 18 1924
“Mrs. ElizaBeth Balthazar my dear Just a few to Let you hear from i am well and do hope you are the Same dear wife i re-cive your Loving Letter i find me well and i was glad to heare from you But was Sorry to Know you are sick and waryin aBout me Know dear wife dont worry aBout me for i am working i Be (illegible word here) Soon im Sending you 6 dollar dont Be an-easy i will Be home Soon if the Lord Say the (illegible word) i reamain you Truly husBan Mr William Balthazar dont answer i Be home Soon excuse my Short Letter.”'

Counsel for defendant denounces these letters as forgeries, and, is supported by Mr. L. C. Spencer, a handwriting expert. Mr. Spencer is opposed by Mr. E. A. O’Sullivan,, another handwriting expert-, who asserts a contrary opinion. It is interesting to note that these gentlemen have differed in 'the past and that our Supreme Court has -indulged in the following comment: “Two-experts were called, Prof. L. C. Spencer for the plaintiff and Mr. E. A. O’Sullivan for the defendant. These experts testify at length and explain the reasons for the conclusions they announce. Prof. Spencer is one of the acknowledged experts on handwriting in the South. The scientific study of penmanship has been his life work. He is one of a family of penmen and the Spencerian pen is known throughout the civilized world. In IS pages of the record he ■has delivered a thesis on penmanship and pointed out the ease with which a forgery may be detected in a most interesting and instructive manner, and he concludes by staking his reputation as an expert upon the correctness of his finding that the same individual who signed the -checks, leases, ■etc., that the defendant admits he signed, also signed the written agreement * * Mr. O’Sullivan has reached a different conclusion, but his testimony is lacking in technical detail as compared with the testimony of Prof. Spencer. It deals more with the slant and shading of particular stems than with the characteristics of the writer, and there is an element of halting and of doubt resulting in explanatory reasons, which leave the impression that that certainty which should be the basis of a judicial decree is wanting.” Burt v. Burt, 160 La. 387, 391, 107 So. 234, 235.

During William’s long absence Lizzie, unlike Penelope, was the victim of the grand passion on numerous occasions. She is proven to have .been very promiscuous and, in fact, may be said to have conferred her sexual favors upon only two classes of Negroes, residents and non-residents of the Parish of St. Mary.

The original cause of William’s absence is said to have been one of her early admirers Jules Prevost. William paid few visits to his matrimonial domicile and sometimes had to be assisted in getting bed and board while there. Lizzie claims he continued to provide for her and other witnesses say they saw him in St. Mary with her and one that he could write, and another that he sent a letter at quarterly intervals with money for his wife.

After William’s death Lizzie sought out several counsel without apparently disclosing the existence of the letters, which were so vital to her case. This recital is a brief summary of the facts. In a word, Lizzie’s case must stand or fall upon the letters we have reproduced. After much deliberation we are convinced that it must fall. We have been persuaded by the following considerations:

Prof. Spencer gives in this case, as in the Bunt case, supra, a more plausible reason for his deductions than M'r. O’Sullivan. The surrounding circumstances corroborate his views. The final production of the letters are very likely due to the progressive' education' her legal experience engenders. Grant v. Grant, 159 La. 535, 105 So. 611. The deceased did not know how to write when he was married, and his career thereafter did not necessitate his acquiring that knowledge, assuming he was capable of doing so, without the spur of necessity. We find it difficult to believe that the deceased, simply as a cultural accomplishment, would have applied himself sufficiently to achieve even such modest literacy •skill as was involved in writing these letters. No other letters are produced and in each letter reference is made to money as inclosed or forthcoming, a fact so helpful to the case of the wife. Finally and most convincing to our mind, William who had left Lizzie because of her soft dalliance with Prevost, would hardly have been so ■loyal and helpful, loving and fender, as the letters would have it, while she beguiled herself with numerous paramours.

Whether Lizzie wrote the letters or not is perhaps doubtful. She, like her husband, could not write when she was married, and may never have acquired the art, but we are convinced that William died in ignorance of their contents, whoever may have written them.

The father’s claim, as has been heretofore indicated, depends upon the construction of the law conferring a right of action, pretermitting for the moment the question of dependency. The language ■is “If there be neither widow, widower nor child, then to the Father or Mother of the deceased employee”, etc. Counsel insists that the act means “widow entitled to compensation” and not merely a widow like this one here who is not entitled to anything under the act but simply a widow, in esse. Perhaps the framers of the act may have intended to so qualify the word widow, but, certainly they did not do so. For us to do so would be legislation. Moreover, it is just as probable that a discrimination against the parent was intended for when the right of action given collaterals is treated of the qualifying phrase of counsel is used. Witness the following language of Section 8. “If there be neither widow, widower nor child, nor dependent parent entitled to compensation, then to the brothers and sisters and other members of he family of the deceased employee”, etc. (Italics ours).

We may have written the law, as counsel would interpret it, and, we are frank to say, were we to discriminate, the father would not suffer at our hands, but did not write the statute and cannot rewrite it by interpretation. Nor can the principle of liberal construction, often referred to by our courts, and frequently alluded to by ourselves as applicable to compensation cases, avail here.

The right of action conferred by the Statute. is limited and conditioned as the statute directs. No consideration of public policy impels or justifies the extension of the rights conferred or the condition of their exercise. Benjamin v. Standard Accident Insurance Company, 152 La. 874, 94 So. 428.

The Court, a qua, -allowed compensation to the wife and dismissed the father’s suit. The judgment appealed from in favor- of the wife Elizabeth Balthazar is reversed and it is now ordered that there be judgment in favor of the defendant, Swift & Co., dismissing her suit -at her cost.

The judgment dismissing the suit of -the father, Paul Balthazar, is affirmed.

Judgment affirmed in .part and reversed in part.