author: HAMITER, Justice. McCALEB, Justice,

text:
    215 La. 703
    ORLEANS PARISH SCHOOL BOARD v. LOUISIANA STATE BOARD OF EDUCATION et al.
    No. 39331.
    Supreme Court of Louisiana.
    May 9, 1949.
    Rehearing Denied May 31, 1949.
    Bolivar E. Kemp, Jr., Atty. Gen., Carroll Buck, First Asst. Atty. Gen., C. Ellis. Ott, Special Counsel, Bogalusa, for defendants-appellants.
    Henry B. Curtis, Grady C. Durham, New Orleans, for plaintiff-appellee.
   HAMITER, Justice.

The dispute in this injunction proceeding concerns the disbursement of an appropriation made by the Legislature of 1948 in the General Appropriation Act, Act No. 350, section 4, Schedule 110, Item 8, to carry into effect the minimum salary schedule for public elementary and high school teachers-of which Act No. 155 of 1948 directs the establishment and maintenance.

The Orleans Parish School Board instituted the suit and cited as defendants the State Board of' Education, the State-Superintendent of Education and the State Treasurer. In the petition plaintiff alleged :

“I. That, by virtue of Act No. 155 of the Regular Session of the Louisiana Legislature for 1948, the Louisiana State Board of Education was authorized and directed to establish and maintain a minimum salary schedule to be paid public elementary and high school teachers in the schools in the State of Louisiana and that by virtue of Item 8, Schedule 110 of Act 350, being the General Appropriation Act of the Regular Session of the Louisiana Legislature for 1948, there was appropriated to be distributed and apportioned by the Treasurer, out of the State Public School Fund, to the Teachers Salary Fund created by said Act No. 155, to be withdrawn from the treasury and distributed by the Louisiana State Board of Education to the various Parish and State School Boards to carry into effect said minimum salary schedule the sum of Eight Million Dollars ($8,000,000.00) for the fiscal year 1948-49, and the sum of Eleven Million Three Hundred Thousand Dollars ($11,300,000.00) for the fiscal year 1949-50.
“II. That pursuant to said Act No. 155 o'f 1948, the State Board of Education and the members thereof, and/or the State Superintendent of Education, the Hon. Shelby M. Jackson, have devised a formula or a plan, or are about to devise and adopt a formula or plan for the apportionment and distribution of the appropriation made in the State General Appropriation Act of 1948, for the purpose of carrying into effect said minimum salary schedule authorized by Act No. 155 of 1948.
“III. That if defendants, the said State Board of Education and the members thereof, and/or the State Superintendent of Education, the Hon. Shelby M. Jackson, or if the State Treasurer, the Hon. A. P. Tugwell, distribute the said funds pursuant to any other plan or formula than that authorized by Article 12 of the Constitution of the State of Louisiana, they will be in contravention of that section of the Constitution, and said funds will be distributed in an illegal and unconstitutional manner.
“IV. Petitioners further aver that, if defendants distribute the State Funds in compliance with Article 12 of the Constitution of the State of Louisiana, there will be paid to the Orleans Parish School Board approximately One Million Dollars ($1,-000,000.00), whereas if the distribution of said State Funds is made in accordance with the said proposed plan or formula, the amount which the Orleans Parish School Board will receive will be less than Two Flundred Thousand Dollars ($200,000.00); that petitioners have advised the members of the Louisiana State Board of Education and the Superintendent of Education, Honorable Shelby M. Jackson, and also Honorable A. P. Tugwell, State Treasurer, all of said officials having their legal domicile in the Parish of East Baton Rouge, that petitioners believe and contend that such proposed action is unconstitutional, null and void for the reasons above stated, and particularly because it is in contravention of Article 12 of the Constitution of 1921, and that if Act No, 155 of 1948 provides for any other method of distribution than that set forth in the constitution it is unconstitutional for the reasons stated.
“V. That despite petitioners’ protest, they are advised and believe and so aver that the State Board of Education and the State Superintendent of Education will undertake to withdraw from the State Treasury the funds appropriated for the support of the public schools and will proceed to distribute said funds under the purported authority of Act No. 155 of 1948 and in violation of the constitutional provision here-inabove referred to.
“VI. That petitioners will thereby suffer irreparable injury in that they will be deprived of approximately Eight Hundred Thousand Dollars ($800,000.00), of the State Funds appropriated for the support of public schools, and that they have no adequate remedy at law.
“VII. That petitioners are entitled to a temporary restraining order enjoining and prohibiting the State Board of Education, the State Superintendent of Education and the Hon. A. P. Tugwell, State Treasurer, from withdrawing or permitting the withdrawal from the State Treasury of the funds appropriated by the Louisiana Legislature for 1948 for the support of public ■schools, or from distributing or disbursing any of said funds except in accordance with the Constitution, and particularly enjoining the defendants from complying with Act No. 155 of 1948; that defendants should be ordered to show cause why a preliminary injunction should not be issued, and, after due proceedings, why said injunction should not be made permanent.”

In keeping with its allegations plaintiff prayed for appropriate injunctive relief.

On the filing of the petition the court directed the issuance of a temporary restraining order and also a rule 'to show cause why a preliminary writ o-f injunction should not issue.

When the rule came on for a hearing defendants tendered exceptions of no right and no cause of action. These were argued by counsel, and the court reserved its ruling thereon. Then evidence in connection with the rule was received (introduced only by plaintiff’s counsel in support of the allegation that a plan was being devised to carry into effect the minimum salary schedule), although defendants filed no formal answer, and the hearing was concluded.

Some two weeks later the court overruled the exceptions of no right and no cause of action and ordered the issuance of a preliminary writ of injunction. Following that ruling counsel agreed to submit the application for a permanent injunction on the evidence received during the hearing of the rule nisi. Thereupon, the court, on February 10, 1949, signed a formal judgment, the decretal portion of which states: “It is ordered, adjudged and decreed that there be judgment herein in favor of the plaintiff, Orleans Parish School Board, and against the defendants, the Louisiana State Board of Education, Shelby M. Jackson, Superintendent of Education, and A. P. Tugwell, Treasurer of the State of Louisiana, overruling the exceptions of no right or cause of action filed by the defendants and permanently enjoining the said defendants from withdrawing, distributing, or disbursing any of the funds appropriated in Item 8, Schedule 110, of Act 350 of 1948, for the purpose of carrying out the provisions of Act 155 of 1948, except as provided by paragraph 5, Section 14, Article 12 of the Constitution, as amended by Act 2 of the Extra Session of 1947, which is to say that the distribution of said appropriation shall be made by the State Board of Education on the basis of three-fourths to •the several parish school boards, paid in monthly installments in the proportion that the number of educable children from six to eighteen years of age, inclusive, from each parish bears to the total number of such educable children in the state, and one-fourth to be apportioned and distributed on the basis oí equalization, so as to provide and insure a minimum educational program in the common public schools, which shall be set up by the State Board of Education for all the parishes in the state, the administration and regulation of this apportionment, distribution, and payment of this fund to be under plans, rules, and regulations to be provided by the State Board of Education.”

Immediately thereafter counsel further agreed that the exceptions of no right and no cause of action filed to the rule nisi should be deemed as having application to both the preliminary and permanent injunctions; that the return date respecting an appeal (the statutory delays were waived) be fixed as February 14, 1949; and that the transcript of appeal should consist of the original records. Then counsel for defendants moved for and obtained a devolutive appeal, without bond, returnable in accordance with the mentioned agreement.

On the return date of February 14, 1949, the transcript of appeal, containing the original pleadings and offerings, was lodged in this court. It was not placed upon our calendar for consideration, however, until April 12, 1949, at which time counsel filed a joint motion, pursuant to Rule IX, Section 8 of the Supreme Court Rules, stating that “they desire to submit this cause for decision, without oral argument, upon their briefs which accompany this motion.”

By Act No. 155 of 1948, in Section 1, the Legislature authorized and directed the Louisiana State Board of Education “to establish and maintain a minimum salary schedule to be paid public elementary and high school teachers in the schools of the State of Louisiana by including the schedule hereinafter set out in the formula for computing' the state equalization fund distribution.”

Section 3 thereof provides:

“Beginning with the session 1948-49 and continuing thereafter all public elementary and high school teachers in the schools of the State of Louisiana shall receive a minimum salary on a nine-month basis in accordance with the schedule hereinafter given as follows:
“No teacher will receive less than the salary received during 1947-48 for nine-month’s work.”

And Section 5 of such statute reads:

“There is hereby appropriated, out of the State General Fund, to a special -fund in. the Treasury, to be known as the Teachers Salary Fund, the sums of $8,000,000.00 for the fiscal year 1948-1949 and $11,300,000.-00 for the fiscal year 1949-1950, or as much of said sums as is necessary, to be withdrawn from the Treasury and distributed by the Louisiana State Board of Education to the various parish and city school boards to carry this minimum salary schedule into effect. The amounts hereby appropriated shall form no part of the State Public School Fund. Provided, that if the appropriations for the purposes of this act made by the Legislature, together with funds provided from any other source, are insufficient to fully comply with this act and to pay the minimum salaries herein provided for, such minimum salaries shall be reduced proportionately to come within the funds appropriated or made available for the purpose of this act.”

Immediately beneath this fifth section Governor Long wrote:

“I hereby veto the items of appropriation contained in Section 5, for the reasons stated below.
“(sgd) Earl K. Long
“Governor”

The reasons assigned for the veto, which appear after Section 6 (the repealing clause), are:

“Approved: June 25, 1948: Except that I have vetoed the items of appropriation contained in Section 5 of this act, as the items of $8,000,000.00 for fiscal year 1948-1949 and $11,300,000.00 for fiscal year 1949-1950 are contained in the General Appropriation Bill — H. B. 777.”

The veto, as the notation of it clearly states, affected only the appropriation. It did not nullify the remaining provisions of the section, including that which designated a special fund in the treasury to be known as the Teachers Salary Fund.

In lieu of the vetoed appropriation there was placed in the General Appropriation Act of 1948, the referred to H. B. 777 which became Act No. 350, under section 4, Schedule 110, styled Department of Education, the following:

“Item 1948-1949 1949-1950
* * * * * *
“8. There is hereby appropriated, and there shall be distributed and apportioned by the Treasurer, out of the State Public School Fund, to the Teachers’ Salary Fund created by House Bill No. 178, to be withdrawn from the treasury and distributed by the Louisiana State Board of Education to the various parish and city school boards to carry into effect the minimum salary schedule as provided in said House Bill No. 178, a sufficient amount, estimated at_8,000,000.00 11,300,000.00
******
“Provided, that should insufficient funds accrue to the State Public School Fund to make the apportionment and distribution herein provided for, the amount of the deficit is hereby appropriated out of any money in the General Fund not otherwise appropriated.”

In view of all of which it can be said with certainty that the Legislature and the Governor clearly displayed an intention to provide the listed sums for carrying into effect the minimum salary schedule, irrespective of whether payment was to be made from the State Public'- School Fund or the General Fund or from both.

In their brief, following an extract of the first paragraph of the quoted Item 8, plaintiff’s counsel state: “The question squarely presented is, can the Legislature disregard the formula for distribution of the State Public School Fund as specified in paragraph 5, Section 14 of Article XII of the Constitution, as amended by Act No. 2 of the Extra Session of 1947?”

Section 14 of Article XII of the Louisiana Constitution of 1921, as last amended by the adoption in April, 1947, of Act 2 of the Extra Session of 1947, reads in full as follows:

“State funds for the support of the public common schools of elementary and secondary grades shall be derived from the following sources and shall be apportioned to the parish school boards in the manner herein provided:
“First: A two and one-half mill ad val-orem state-wide tax upon each dollar of the assessed valuation, for state purposes, of all property subject to state taxation; provided, that out of the said taxes, fifty thousand ($50,000.00) dollars shall be paid annually to the Isaac Delgado Trade School, located in the City of New Orleans.
“Second: The residue of the Severance Tax Fund of the State, after allowing funds and appropriations as provided for elsewhere by this Constitution, and providing that not more than Five Hundred Thousand ($500,000.00) Dollars per annum may be appropriated by the Legislature for the cost of administering and inspecting and enforcing of the taxes accruing to the Severance Tax Fund, and for the administration of the conservation laws incident to the severance of natural resources from the soil and water of the State, which severance tax fund shall be devoted, after allowing such funds and appropriations, as fixed in this Constitution, first, to supplying free school books, second, to supplying free school supplies such as library books, pencil and ink, writing paper, pencils, pens, ink, and the like, to the school children of the State. After July 1st of each year, the State Treasurer shall forthwith set up a fund for the payment of the fixed charges hereinabove mentioned. When sufficient funds have accumulated for the payment of all such school books and supplies and other fixed charges, then, before the tenth day of each month, the State Treasurer shall transfer to the State Public School Fund such balances, as have accrued. This section shall be self-operative and all State officers affected hereby are required to carry out the provisions of this Section without further legislative action.
“Third: The proceeds of particular taxes, now or hereafter, levied by the Legislature and dedicated, allocated, destined to or designated for said State Public School Fund.
“Fourth: The proceeds and all net avails of a tax of one-half of one cent (%c) per gallon levied upon the retail sale of gasoline, benzine, naptha or other motor fuel, as defined in the present Section 22 of Article 6 of the Constitution of 1921.
“Fifth: Such other funds as the Legislature has or hereafter may designate, allocate, appropriate, or otherwise provide therefor or destine thereto;' provided, that the Legislature must and shall provide, by appropriate tax levies, appropriation or otherwise, a minimum, amount in. this State Public School Fund of not less than Ten Million' Dollars ($10,000,000.00) per an-num. The State Auditor and the State Treasurer shall transfer all balances on hand for public common schools to the State Public School Fund herein provided for, promptly after these amendments and laws shall have gone into effect.
“All State 'funds for the support of public- schools as herein, heretofore, or hereafter provided for, shall be segregated and kept in separate bank accounts, apart from all other State funds. Such funds as may ■be appropriated out of the general fund shall be paid into the State Public School Fund herein provided for, in twelve equal monthly payments, and all such funds, including any appropriation from the general fund, shall be apportioned and distributed to the parishes and paid out to the parish s'chool boards on the following basis :
“(a) Three-fourths (%) of this State fund shall be apportioned and distributed to the several parish school boards in this State and shall be paid in monthly installments, in the proportion that the number' of educable children from six (6) to eighteen (18) years of age, inclusive, in each' parish, bears to the total number of such educable children in the State; and the Legislature shall provide for the enumeration of said educable children.
“(b) One-fourth (%) of this State fund shall be apportioned and distributed to the parish school boards on the basis of equalization,- so as to provide and insure a minimum educational program in the common public schools, which shall be set up by the State Board of Education for all parishes of the State; provided, that the administration and regulation of this apportionment, distribution and payment of this fund to the respective parish school boards, shall be, under plans, rules and regulations to be made and provided by the State Board of Education, and shall be under the jurisdiction and supervision of said- Board.
“(c) Any other State funds provided by law for the support <jf public schools shall" be apportioned and distributed in like manner, after payment thereof in accordance with the Act appropriating the same.
“In addition to the State funds for the support of the public common schools, as above provided for, the following funds are recognized to be therefor and shall be distributed and paid out to the several parishes, under the authority and jurisdiction of the State Board of Education, and in accordance with the terms of the law governing such funds or the valid stipulations of the source thereof, to-wit:
“1. The interest on the proceeds of lands heretofore or hereafter granted by the United States for school purposes and such revenues as may be derived from unsold portions of such lands.
“2. All funds and the proceeds of lands and property, other than unimproved lands, heretofore or hereafter bequeathed, granted or escheated to the State, not designated for any other purpose.
“3. Appropriations or grants made for Vocational Education or any other phase of education by the United States Office of Education or any other agency of the federal government.
“4. Sums received from philanthropic agencies.
“5. All such other educational funds as the Legislature may provide or as may be otherwise received for educational purposes.
“Any appropriation made by House Bill No. 3 of this Session for the increase of salaries of teachers and of the compensation of other employees of the parish school boards made at the current special session of the Legislature for the fiscal year 1946-1947 and 1947-1948 is hereby ratified, shall not be reduced or repealed by the Legislature, shall upon the adoption of this amendment be retroactive to the beginning of the 1946-1947 and 1947-1948 respectively session of the public schools and any portion thereof then due shall be paid and disbursed.”

A reading of the provisions of this section ’as presently constituted, without taking into consideration the history of their development or the legal principles relating to ■ the Legislature’s control over state finances, furnishes the impression that an appropriation from the State Public School Fund can legally be made only if and when the money is apportioned and distributed to the parishes and paid out to the parish school hoards in accordance with the prescribed formula of %ths on a per educable basis and 14th on the basis of equalization. If such be the correct interpretation of those provisions the appropriation by the 1948 Legislature from the State Public School Fund to carry into effect the minimum Teachers Salary Schedule provided in Act No. 155 of 1948 (unless apportioned and distributed on the %th — 14th, basis) is, of course, unconstitutional and illegal. Likewise stricken with nullity are those other appropriations of 1948, as well as many made during preceding years, for such items as teachers’ retirement, education for crippled children, vocational rehabilitation, and salary and expenses of State Superintendent of Education, because the appropriation for each of those has been from the State Public School Fund without apportionment and distribution to the parish school boards on a per educable and equalization basis.

The provisions of the present Section 14 of Article XII of our Constitution, however, are not free of ambiguity; and, when considered in the light of the history of their development, they can reasonably be construed as requiring the Legislature only to maintain in the State Public School Fund, to be apportioned and distribitted therefrom under the prescribed formula, an annual sum of at least $10,-000,000.00. Any excess in such fund, it logically follows under that construction, may be similarly apportioned, or it may be otherwise distributed for the support of public schools in such manner as the Legislature deems advisable, because, subject only to constitutional restrictions,. that body’s power over state funds is plenary.

As originally written' into the Constitution of 1921, Section 14 of Article XII provided :

“The public school funds of the State shall consist of:
“First, The proceeds of two and one-half mills of the taxes levied and collected by the State; provided, that out of the portion of said taxes collected in. the city of New Orleans fifty thousand dollars ($50,000.00) shall be paid annually to the Isaac Delgado Trade School.
“Second, The proceeds of the poll tax which shall be applied exclusively to the support of public schools in each parish in which collected and shall be paid by the tax collector directly to the parish school board.
“Third, The interest on the proceeds of lands heretofore or hereafter granted by the United States for school purposes, and the revenues derived from unsold portions thereof.
“Fourth, All funds and the proceeds of lands and property, other than unimproved lands, heretofore or hereafter bequeathed, granted, or escheated to the State, not designated for any other purpose.
“Fifth, Such other, funds as the Legislature may appropriate.
“All school funds, except the poll tax and the.interest on proceeds of lands granted by the United States for the support of public schools, shall be distributed to each parish in proportion to the number of children therein between the ages of six and eighteen years. The Legislature shall provide for the enumeration of educable children.”

. Under these provisions all school funds, other than those specifically excepted, had to be apportioned on a per educable basis. Therein certain proceeds were definitely allocated for school purposes; but the Legislature was not charged with the duty of augmenting them so as to create and maintain a minimum school fund.

In 1930, on the ratification of Act No. 6 of the Extra Session of the Legislature of that year, the establishment and maintenance of a minimum school fund of $12 per educable was required, it to be realized from the following sources:

(a) A two and one-half mill tax on the state assessment;

(b) The residue of the severance tax fund after supplying school books;

(c) Appropriations by the Legislature sufficient in amount to bring the total of state school funds to said minimum of $12 per educable.

Oí that $12 minimum the State Board of Education was authorized to apply as much as $2 per educable towards equalizing public school facilities in all of the parishes of the state. Further, the Legislature was given authority (but not required) “to make appropriations for the support of the public schools in excess of twelve ($12.00) dollars per educable.” Finally, the amendment of 1930, as did the original draft, provided that all school funds (except the equalizing fund and others mentioned) should be distributed on a per educable basis. But this directed distribution very, well could have been intended to apply to school funds only to the extent of the established and required minimum. If not so intended what was there to prevent the Legislature itself from restricting the distribution to the minimum? It could have refused to make appropriations sufficient in amount to provide an excess. It is significant, in this connection, that the amendment merely authorized (it did not direct) the Legislature to make appropriations for the support of the public schools in excess of the minimum.

The next amendment approved was that proposed by Act No. 76 of 1934. Except as hereafter pointed out, it placed Section 14 of Article XII of the Constitution (insofar as pertinent here) in substantially the present form, fully set out above. But it (especially the fifth paragraph thereof) made numerous material and drastic changes ,in the previously existing provisions. Its paragraph one again provided for the two and one-half mill state-wide ad valor-em tax for school purposes. The second paragraph stated that the residue of the severance tax fund, accumulated after the payment of school books for the children of the state and other fixed charges, should be transferred to the State Public School Fund (this fund, as such, was thereby created). The third and fourth paragraphs provided respectively that school funds should be derived from the proceeds “of particular taxes, now or hereafter, levied by the Legislature and dedicated, allocated, destined to or designated for said State Public School Fund,” and from the net avails of a one-half cent per gallon levied on motor fuel.

The fifth paragraph of the 1934 amendment (that which furnished the most important changes) recited that support of public common schools should also come from such other funds as the Legislature has or hereafter may designate, allocate, appropriate or otherwise provide therefor; "provided, that the Legislature must and shall provide, by appropriate tax levies, appropriation or otherwise, a minimum aanoamt in this State Public School Fmtd of not less than Ten Million Dollars ($10-000,000.00) per ammtm.” (Italics ours.)

Further, the fifth paragraph of the 1934 amendment wrote into the Constitution for the first time the discussed %th — 14th formula. As to the distribution under this formula, however, it stated:

“ * * * Provided, that the fractional apportionments hereinabove required shall not become effective until such time as funds expected annually from tax levies, Legislative appropriations, or other sources, shall amount to the sum of ten million ($10,000,000.00) dollars; until and unless such amount is reached, said fractional ap-portionments shall be no more than five-sixths (%), on the basis of educables, and no more than one-sixth (%), on the basis of equalization.

"Provided, that in no case shall the state support for any parish exceed ninety (90%) per centum of the cost of the minimum state educational program in that parish " (Italics ours.)

In conclusion, the fifth paragraph recognized other and additional funds as being for the support of the public common schools, but distributable under the authority and jurisdiction of the State Board of Education in accordance with the terms of the law governing such funds or the valid stipulations of the source thereof.

Considered in its entirety the 1934 amendment seemingly indicated a purpose on the part of its framers primarily to create and maintain a definite fund in the treasury, dedicated to the support of public common schools and distributable on the %th — 14th basis, sufficient to defray no more than 90% of the cost of the minimum state educational program in every parish of the state, for the carrying out of which plan the sum of $10,000,000.00 was estimated as being necessary. In keeping with that apparent purpose the Legislature was directed to build up the State Public School Fund to the estimated amount and thereafter to so -maintain it, employing therefor the proceeds from the constitu-' tionally dedicated taxes and additionally (to care for any deficiency up to the minimum) such other funds (from tax levies, appropriations or otherwise) as it thought best. Until the sum of $10,000,000.00 was reached in that fund, the apportionment would continue to be (as under the 1930 amendment) not more than %ths on the basis of educables and %th on an equalizing basis. But the Legislature was not required by the 1934 amendment to maintain a surplus (in excess of $10,000,000.00) in the State Public School Fund to be apportioned on the %th — basis; hence, ■ it could regulate its appropriations and the proceeds of tax levies (assuming that the constitutionally dedicated taxes did not provide the necessary sum) so as to restrict that fund to the directed minimum. Moreover, if 90% of the cost of the state educational program did not equal the $10,000,-000.00 minimum Public School Fund, the entire minimum could not have been disbursed, even though sought to be distributed in accordance with the formula.

The present Section 14 of Article XII of the Constitution, it is 'true, does not contain the 90% maximum disbursement provision of the 1934 amendment, it having been deleted in 1947. The reason for the deletion, obviously, was to afford the Legislature the right to disburse a surplus, which had accumulated in the State Public School Fund, without regard to the cost of the minimum state educational program. The deletion, however, did not militate against the discussed primary purpose seemingly indicated by the provisions of the 1934 amendment.

Neither is a contrary purpose disclosed by the concluding provisions of the 1947 amendment, which ratified specific appropriations for the increase of compensation for teachers and other school personnel, or by the rejected proposed amendment of 1948, Senate Bill No. 29, Act No. 512 of 1948, which sought to authorize the Legislature to make certain appropriations from the State Public School Fund. These, undoubtedly, were in the nature of precautionary measures taken by reason of the ambiguity attending the constitutional provisions under consideration.

The ambiguous provisions of Section 14, Article XII of the Louisiana Constitution with reference to disbursements from the State Public School Fund, it is thus seen, are reasonably susceptible of two different interpretations, namely, (1) the entirety of that fund, irrespective of the amount therein, must be apportioned and distributed to the parishes and paid out to the parish school boards on the basis of %ths per educable and for equalization; or (2) the Legislature is required to disburse in accordance with the prescribed 94th — 14th formula only $10,000,000.00 per annum, and it may pay out and distribute for public school purposes, but solely for those purposes, any excess of that sum in such manner as it deems advisable. Of these two possible interpretations the latter seems preferable, and, in our opinion, it should and must be adopted. Of course, a few of the parishes under that interpretation may not obtain as much of the state educational funds as they would if the %th — 14th formula were applied to all money entering and disbursed from the State Public School Fund; yet no parish will be denied the minimum state educational program, the providing of which Article XII, Section 14 of the Constitution primarily purposes to insure, as its historical development indicates. It is well to observe, in this connection, that the Legislature of 1948 approved an apportionment and distribution on the %th — 14th basis of much more than the guaranteed $10,000,000.00, the appropriation, Schedule 110, Act No. 350, under that formula being:

“Item 1918-1919 1949-1950
• *•**«**».
“Support of Free Public Schools
“Out of Public School Fund:
“6. For distribution to parishes on basis of per educable (estimated) $27,777,796.00 $27,777,796.00
“7. For distribution on equalization basis (estimated) 9,259,265.00 9,259,265.00“

Then, too, under the latter interpretation, the assailed appropriation from the State Public School Fund to the Teachers Salary-Fund, to carry into effect the minimum salary schedule provided ¡by Act No. 155 of 1948, would be legal, constitutional and payable as intended. This result would accord with .the manifest intention of the Legislature and of the Governor to effectuate the minimum salary schedule for teachers, and it would be consistent with the well established principle of law that legislative acts are entitled to great re'spect and are presumed to be constitutional.

The adoption of the former interpretation, on the other hand, would not only prevent payment from the Teachers Salary Fund as intended, but is would also render vulnerable, with assured success attending the probable attacks, the following items of the mentioned 1948 General Appropriation A,ct, to-wit:

■“Department oí Education
“Item 1948-1949 1949-1950
“Out of the State Public School Fund:
“1. Salary of State Superintendent of Education $ 7,500.00 I 7,500.00
“la. Additional salary of Superintendent of Education in the event of final passage of House
Bill No. 658 . 2,500.00 2,500.00
“2. For other salaries, fees, dues, postage, and transportation charges, printing, rents, services, aid to local government agencies, travel, office, and other expenses and supplies . 306,531.00 . 312,197.00
* * # * * #.*
“Vocational Rehabilitation
“Payable from State Public School Fund:
“3. For Vocational Rehabilitation . $ 207,181.00 $ 207,181.00
* * * * * * ■ * * *
“Contribution to Teacher’s Retirement System
*Out of State Public School Fund:
“11. To reimbuse Parish School Boards for employers’ contribution to State Teachers’ Retirement System and Teachers’ Retirement System of Orleans
Parish (estimated).... $3,400,000.00 $3,400,000.00
*********
“Teachers’ Retirement System
“Out of State Publio School Fund:
“1. For the expense of the Administration of the Teachers’ Retirement System; as provided in Act 83 of 1936. $ 31,500.00 ? 31,500.00
“2. To provide assistance to aged and disabled teachers not otherwise eligible under the Retirement Daw; as provided in Act 108 of 1942 and Act 228 of 1944.... 108,000.00 108,000.00
“2a. Additional funds required in the event of final passage of House Bill No. 177 [Now Act No. 68] (Brackets ours.) . 279,000.00 279,000.00”

And there would likely result, should the former interpretation be adopted, im-' measurable confusion, if not serious disorder, in the public educational system of Louisiana. Surely such a result is undesirable.

For the reasons assigned the judgment appealed from is reversed and set aside, and it is now ordered that the injunction granted herein be dissolved and plaintiff’s suit dismissed.

McCALEB, J., dissents with written reasons.

O’NIELL, C. J., takes no part.

McCALEB, Justice,

(dissenting).

The question presented by this appeal is whether the Legislature may validly appropriate, out of the State Public School Fund, monies to a teachers’ salary fund created by Act No. 155 of 1948, and authorize the State Board of Education to distribute those monies in a manner other than that provided by Section 14 of Article XII of the Constitution, as amended by Act No. 2 of the Extra Session of 1947, which declares:

“All State funds for the support of public schools as herein, heretofore, or hereafter provided for., shall be segregated and kept in separate bank accounts, apart from all other State funds. Such funds as may be appropriated out of the general fund shall be paid into the State Public School Fund herein provided for, in twelve equal monthly payments, and all such funds, inr chiding any appropriation from the general fund, shall be apportioned and distributed to the parishes and paid out to the parish school boards on the following basis:
“(a) Three-fourths (%) of this State fund shall be apportioned and distributed to the several parish school boards in this State and shall be paid in monthly installments, in the proportion that the number of educable children * * *. ■
“(b) One-fourth (^4) of this State fund shall be apportioned and distributed to the parish school boards on the basis of equalization, so as to provide and insure a minimum educational' program in the common public schools, * * * ”. (Italics mine).

The majority hold that Section 14 of Article XII, as amended, is ambiguous and equivocal. Based on this premise, the Court'proceeds to interpret the fifth paragraph of the section in such a fashion as to transpose its plain language and substitute therefor a new concept which may produce unheralded results. For my part, I find no room for judicial interpretation or construction as the language in the Section is perfectly clear and expresses', beyond peradventure, the intention of the people that all monies dedicated, appropriated or otherwise paid into the State Public School Fund must not only be segregat-éd and kept apart from all other State funds but also that they cannot be paid out or distributed to anyone other than the various parish school boards and upon any other basis than the % — ^4 apportionment set forth in subparagraphs (a) and (b)- of the fifth paragraph.

The majority concede the literal clarity of Section 14 of Article XII — for, after quoting the section in full, the opinion states that “A reading of the provisions of this section as presently constituted, without taking into consideration the history of their development or the legal principles relating to the Legislature’s control over state finances, furnishes the impression that an appropriation’ from the State Public School Fund' can legally be made only” by' distributing the1 money to the Parish school boards in accordance with the % — y4 formula set forth therein. But, by assuming the obscurity of the provisions “when considered in the light of the history of their development” and employing this as a base for pursuing an investigation of their spirit, the opinion goes on to declare that it never was intended that the public school fund was to be rendered immutable fr’om legislative control, disposal and appropriation insofar as concerns the excess of the $10,000,000 minimum which the Legislature is required to furnish by tax appropriation and otherwise under the first subparagraph of the 'fifth paragraph of the Section. In this construction, the Court has judicially changed the minimum $10,000,000 requirement to a maximum fund in respect to legislative control over the public school fund and, perhaps, with dire future effects — for, now that the legislative restraint is lifted,- that department 'of government can allocate all school funds in excess of $10,000,000" to any purpose which it desires without any basis of equality so long as it is tagged for public school support:

As shown by items -six and seven of Schedule 110 of the General Appropriation Act, No. 350 of 1948, the amounts allocated for distribution to parishes out of the State Public School Fiind, in accordance with the provisions of the "Constitution, are for the years 1948-1949, 1949-1950, $27,777,796 on the % per educable basis and $9,259,265 on the *4 equalization basis, or a total of $37,037,061 for each school year. Under the ruling of the majority, no more than $10,000,000 of this total amount was ■ required to be allocated in conformity with the educable and equalization formula and the Legislature could have appropriated the huge balance of $27,037,'061 to the State Board of Education for distribution or it -could have disposed of it by numerous and sundry school appropriations in the manner which it deemed best.

Even if the constitutional provision be viewed as ambiguous,- any reasonable interpretation of the language used therein, with due consideration being given to the history of the provision, would not, in my opinion, warrant the conclusion of the majority. In discussing this feature of the case, the opinion harks back to the original provisions of Section 14 of Article XII as written in 1921, which merely designate the proceeds of various taxes for the public schools. No drastic changes were made in the Section until 1934, when the people voted to amend it in accordance with Act No. 76 thereof. That amendment sets forth, for the first time, the .policy of the people respecting the funds for the support of the public schools and their express will to dedicate and earmark those funds for allocation among the various parish school boards on the % — basis. The opening sentence of the section, which is unchanged in its present form, reads: “State funds for the ■ support of the public common schools of elementary and secondary grades shall be derived from the following sources and shall be apportioned to the parish schoolboards in the manner herein provided: * *

Thus, there can be no doubt as to the 'intention of the people to create a fund for the support of the public schools, provide the source of the fund and the manner of its apportionment. The first, second, third and fourth paragraphs of the Section refer exclusively to the source of the fund and the all important fifth paragraph provides for the allocation of all monies in the fund on the % — % formula in exactly the same ■language as contained in the Section as presently amended — except that it is provided that, in the event the annual $10,000,000 required in the fund is not received, then the apportionment shall be on a % — Y& instead of the % — Yi basis. In addition, there is another exception which has been deleted from the Section in its present form — that is, that the State’s support for schools for any Parish shall not exceed 90% of the cost of the minimum State educational program in that Parish.

The constitutional provision, as first incorporated by the amendment in 1934, has continued without change up to the present time — except in the particulars above pointed out and also certain changes in 1936 and 1940, which are unimportant here. The majority think that the elimination, in 1947, of those provisions, relative to the change in fractional apportionment in case the tax collections are insufficient to provide the $10,000,000 minimum and the proviso that the State support shall not exceed 90% of the Parish cost, supplies a foundation for the holding that the $10,000,000 minimum appropriation for the fund is really a maximum requirement insofar as legislative control is concerned. I cannot see how the omission of these provisions in 1947 had any significance or effect upon the construction to be given that amendment or that it forms any basis for the transposition of the $10,000,000 minimum into a maximum.

But, aside from all other considerations, the most serious objection to the ruling herein is that it has the effect of overriding the will of the people expressed at the last Congressional election. After House Bill 178, which later became Act No. 155 of 1948, had been finally passed by both houses of the Legislature and had been sent to the Governor, but before the Governor had acted upon it, the House of Representatives, on June 23, 1948, amended Senate Bill No. 29 to add thereto a proposal to amend Section 14 of Article XII of the Constitution by adding a new paragraph (numbered 6) to the Section, reading as follows: “Sixth. Anything contained in this section or any other provision of this constitution to the contrary notwithstanding, the Legislature may appropriate sufficient moneys out of the State Public School Fund to pay the salary of State Superintendent of Public Education, the expenses of operating the State Department of Education, the amounts necessary for vocational education and vocational rehabilitation, the amounts necessary to participate in furnishing lunches to the school children of the state, the amounts necessary for the operation of the Teachers’ Retirement System including reimbursement to the parish and city schoolboards for their contributions as employers to the teachers’ retirement fund, and the, amounts necessary to provide for the payment of minimum salaries, as may be fixed by the Legislature, to teachers in the public common schools of elementary a/nd secondary grades. Any provision of paragraph Fifth of this Section, or any other provision of this Constitution, in conflict with the provisions of this paragraph, are, to the extent of such conflict only, repealed. Any such appropriations made by the Legislature prior to the adoption of this section are ratified-and confirmed.” (Italics mine).

This amendment became Act No. 512; it was submitted to the electors and defeated at the Congressional election held on November 2, 1948. The majority opinion asserts that this amendment, which squarely placed before the people the question of whether it was desirable to permit distributions out of the State Public School Fund in a manner other than that provided for in Section 14 of Article XII, was in the nature of a precautionary measure “taken by reason of the ambiguity attending the constitutional provisions under consideration.” If the correctness of the majority statement be conceded, the view does not provide a satisfactory explanation of the fact that the Legislature asked the people to change the Constitution in order that monies could be diverted from the State Public School Fund in a manner other than that provided for and that the proposal was rejected. This disapproval of the people constituted their own interpretation of the meaning of Section 14 of Article XII and furnishes, in my opinion, a complete answer to any charge that the provision, as it presently stands, is vague and indefinite.

After all, if the Section is to be regarded as obscure, it is the duty of the Court to discover the intention of the people by interpretation and construction. What better guide could be had to .that discovery than the answer given by the people on November 2, 1948 to the proposal to amend thé Section?

I believe that the judgment of the district court should be affirmed.

       It is a cardinal rule of statutory construction that “When a law is clear and free from all ambiguity, the letter of it is not to he disregarded, under the pretext of pursuing its spirit.” Article 13 of the Civil Code.

       This is pure speculation, as there is nothing to show that the Legislature submitted the amendment to the people as a matter of precaution or that it entertained the belief that the constitutional provisions were ambiguous. As long as we are in the realm of conjecture, I think that it would be more reasonable to assume that the Legislature, acting upon competent legal advice, felt the necessity for the amendment in view of the clear provisions of Section 14 of Article XII of the Constitution. .

       Article 18 of the Civil Code provides: “The universal and most effectual way of discovering the true meaning of the law, when its expressions are dubious, is by considering the reason and spirit of it, or the cause which induced the Legislature to enact it.” See also .In re Hibernia Bank & Trust Co., 185 La. 448, 169 So. 464 and cases there cited.


source: Caselaw Access Project

author: HAWTHORNE, Justice.

license: Public Domain

text:
    215 La. 741
    MORGAN v. CEDAR GROVE ICE CO., Inc.
    No. 37774.
    Supreme Court of Louisiana.
    May 31, 1949.
    Rehearing Denied June 30, 1949.

      D. C. Scarborough, Jr. and W. B. Massey, Shreveport, for plaintiff and appellee.
    Dickson & Denny, Shreveport, for defendant and appellant.
   HAWTHORNE, Justice.

Defendant, Cedar Grove Ice Company, Inc., has appealed to this court from a judgment in favor of plaintiff, Mrs. Maude W. Morgan, in the sum of $2736.00, which the lower court found to be due as liquidated damages for breach of. a contract to deliver ice, this amount representing 1368 tons of ice at $2.00 per ton.

On February 10, 1943, defendant, Cedar Grove Ice Company, Inc., represented by David F. Spencer, its president and general manager, entéred into a contract with plaintiff, Mrs. Maude W. Morgan, in which the :ice company agreed to sell, and Mrs. Morgan agreed to buy, 15 tons each day of Grade A, merchantable ice, suitable for consumers’ use, during the period from May 20, 1943, to September 20 of the same year at the price of $3.25 per ton. This contract provided that the purchaser was to pay each week for all ice delivered the previous week, and contained the following provision:

“It is further agreed that in thq, event the said Cedar Grove Ice Co. Inc. fails to deliver to the said Maude W. Morgan the fifteen tons of ice per day, that the said company shall pay to the said Maude W. Morgan, as liquidated damages the sum of Two (2.00) dollars per ton for each ton they fail to deliver, and it is also agreed that the said Maude W. Morg'an, shall pay to the said Cedar Grove Ice Co. Inc. the sum of Two ($2.00) Dollars per ton for each ton less than the agreed amount of Fifteen Tons per day taken by her.”

The contract further recited that there was deposited with the ice company by Mrs. Morgan the sum of $1000.00 as a guarantee of prompt payment for all ice delivered under the contract. The contract was signed by David F. Spencer as president and general manager of the Cedar Grove Ice Company, Inc., and recited that he was authorized by a resolution of the board of directors of the ice company.

Mrs. Morgan deposited $1000.00 with the defendant, and the ice company proceeded to deliver the required 15 tons of ice per day pursuant to the contract through June 5, 1943, and accepted payment therefor at the rate of $3.25'per ton. Thereafter until June 23, 1943, defendant failed to make delivery of the full quota of 15 tons per day, and after June 23 no further deliveries of ice were made for the remaining term of the contract. For the period during which partial deliveries of the 15 tons per day were made, the purchaser deducted from the bill covering the amount actually delivered a sum equal to $2.00 per ton for.each ton less than the 15 tons per day, all as provided in the contract, and paid to the seller the difference, which was accepted without any protest or objection.

Defendant was engaged in the manufacturing and sale of ice, and during the summer of 1943 there developed in the area in which its plant was located an acute: ice shortage. Upon plaintiff’s insisting on delivery of ice according to the terms of the contract, defendant through its president, Mr. Spencer, according to testimony which is not denied by defendant, informed plaintiff that it was unable to make any further deliveries of ice pursuant to the terms of the contract for the reason that in the contract the price stipulated was $3.25 per ton, whereas due to the ice shortage the company had a market for ice at $8.00 per ton, and that it would be foolish to sell the ice for $3.25 per ton when it could get $8.00 per ton for it. Plaintiff then wired the defendant on July 5, requesting it to fulfill the contract with reference to the delivery of ice, and agreed to waive or refund all penalties incurred at that time under the contract if deliveries were resumed and the shortages made up. In reply thereto, on July 6, defendant informed the plaintiff by letter that it was not obligated under the contract, but gave no reason why, and returned the $1000.00 previously deposited by plaintiff.

Defendant-appellant takes the position in this court that the'contract upon which this suit is based is invalid for the reason that David F. Spencer, who signed in behalf of the defendant, Cedar Grove Ice Company, Inc., as its president and general manager, had no authority to represent the corporation and was not duly authorized by resolution of its board of directors. Although it concedes in brief that Spencer had the full authority in the ordinary course of business to bind' the company with reference to the sale of ice, it contends that he had no authority to incorporate in such a contract a penal clause for non-delivery of ice.

Defendant was engaged in the business of manufacturing and selling ice. The contract in the instant case was in the scope of defendant’s business and was of an ordinary nature and in the usual course of the business of the corporation. The contract was one which was within the apparent or implied authority of Spencer, as president and general manager of the corporation. Moreover, the corporation accepted all payments made for the delivery of ice thereunder without any objection or protest as to the want of authority of Mr. Spencer to make and execute the contract on behalf of the corporation.

Fletcher, Cyclopedia Corporations (Perm Ed.), sec. 466, pp. 316, 317, gives the rule applicable to the instant case as follows:

“ * * * a corporation is bound by contracts entered into by its officers and agents acting on behalf of the corporation and for its benefit, provided they act within the scope of their express or implied powers, and it makes no difference that the contracts are improvident, for the principal is bound as if the errors of judgment of the agent had been made by it, unless the agent was guilty of 'fraud in making the contract. An agent to whom a corporation intrusts the management of its local affairs may bind- his company by a contract necessary and proper to be made in the ordinary prosecution of its business. And a defense interposed by a corporation that its agent had no authority to execute a contract on its behalf is looked upon with disfavor, especially where the contract has been executed in whole or in pa/rt. 'It is the policy of the law and the endeavor of the courts to hold corporations as well as natural persons to their contracts.’ ” (Italics ours.) See also 2 Thompson On Corporations (3d Ed.), sec. 1518, p. 1110.

The fact that the contract in the instant case contains the provision for liqtri-dated damages in no way affects the authority of Mr. Spencer to bind the corporation, as this provision is merely incidental to the contract itself, which was for the sale and delivery of ice in the usual and ordinary course of the business of the corporation. Even in the absence of any such provision, the corporation would be liable in damages for the breach of the contract, and the fact that the contract contained a provision for liquidated damages in no- way affects its validity. :

Defendant also contends that the plaintiff breached the contract, but a reading of the record discloses that there is no-merit in this contention. The conclusion is inescapable that defendant itself breached the contract for the reason that the market price of ice had advanced due to the acute ice shortage. It is interesting to note that Mr. Spencer, its president and general manager, admitted that the corporation had other customers whom it supplied with ice, and that during the ice shortage it delivered ice to them in preference to the plaintiff for a greater price than that called for in the contract.

For the reasons assigned, the judgment appealed from is affirmed, defendant-appellant to pay all costs.

O’NIELL, C. J., does not take part


author: KENNETH BOAGNI, Judge ad hoc,

text:
    STATE ex rel. CHAPMAN v. GUIDRY, Mayor, et al.
    No. 3059.
    Court of Appeal of Louisiana. First Circuit.
    June 30, 1949.
    Atlee P. Steckler, Ville Platte, for appellants.
    L. Austin Fontenot, Opelousas, for ap-pellee.
   KENNETH BOAGNI, Judge ad hoc,

This is a mandamus suit wherein relator prays that alternative writs of mandamus issue herein directing the Honorable Z. J. Guidry, who was then Mayor of the Town of Ville Platte, and J. Emile Pucheu, Town Clerk, commanding them to perform the ministerial duties of their respective offices by signing pay vouchers in favor of Orise Chapman, relator herein, to pay his salary of One Hundred Thirty-five ($135.00) Dollars per month for a period of time commencing November 4, 1947 to January 4, 1948, or the total sum of Two Hundred Seventy ($270.00) Dollars, and monthly thereafter to issue to said relator pay vouchers in the sum of One Hundred Thirty-five ($135.00) Dollars per month in payment for his services as Grader Man in the Town of .Ville Platte. The defendant has answered the said writ of mandamus. The Town Council of Ville Platte has intervened, requesting that the proper judgment be rendered in the premises.

This is a dispute which arose between the Honorable Z. J. Guidry, Mayor of the Town of Ville Platte, and the Town Council in regard to the employment of Orise Chapman, relator herein. The Town Council adopted a resolution on August 9, 1947, appointing the said relator as Grader Man for the Town of Ville Platte at a salary of One Hundred Thirty-five ($135.00) Dollars per month, his employment to be effective August 11, 1947. This Resolution was adopted by the Town Council. The Mayor vetoed this Resolution of the Town Council. The Town Council met again on September 2, 1947 and adopted another Resolution which specifically referred to the Mayor’s veto of August 9, 1947 as being contrary to the wishes of the Town Council. The Town Council then adopted another Resolution appointing Orise Chapman and then voted to override the May- or’s veto by a two-thirds (%) vote of the membership of said Council. The Mayor then vetoed this Resolution of the Council The question then arises: Can the Mayor veto a two-thirds (%) vote of the Council when they are voting to override the said Mayor’s veto? The Town Council, however, postponed their meeting until November 4, 1947, at which regular meeting, the Mayor and Councilmen were present and the Council again appointed Relator Grader Man at a salary of One Hundred Thirty-five ($135.00) Dollars per month. This Resolution was adopted by a two-thirds (%) vote of the Aldermen. The Honorable Z. J. Guidry, Mayor, then waited until the adjournment of the meeting and, then, to prevent the overriding of the said veto, he wrote across the Resolution the word “Vetoed.” He then had the Town Clerk to include in the Minutes, after the meeting had adjourned, the said word “Vetoed.”

The evidence seems to substantiate the fact that the said relator was ready and willing to work but did not work on account of the fact that the Mayor refused to issue his pay vouchers. The Town Council, in adopting the said Resolution of November 4, 1947, stated that relator’s appointment as Grader Man is hereby recognized and confirmed by the Council at a salary of One Hundred Thirty-five ($135.-00) Dollars per month, and that his employment is to be effective as of November 4, 1947. The Town Council, at the meeting of December 26, 1947 again ratified the appointment by a two-thirds (%) vote of the said relator as Grader Man at a salary of One Hundred Thirty-five ($135.00) Dollars per month, effective as of November 4, 1947. This Resolution was likewise vetoed by the said Mayor.

The said relator was ready and willing to work but did not do so on account of the refusal of the Mayor to issue the said vouchers. Relator was legally employed by the Town Council and the fact that he did not actually perform the duties incumbent upon him as an employee of the Town was through no fault of his own but was due solely through the fault of the Mayor in illegally vetoing the proceedings of the Town Council after overriding his veto by a two-thirds (%) vote. The Mayor’s action in this regard was unlawful and in direct controvention of the powers of the Mayor incorporated in the Town Charter under the Lawrason Act. There can be no doubt that the law is clear that the Town Council can override the veto of the Mayor by a two-thirds (%) vote. This seems to be clear, according to the Charter of the town of Ville Platte, Section 20 of Act No. 136 of 1898, as amended, Act No. 309 of 1910, § 1. The said law reads as follows, to wit: •

• “The Mayor — Powers—: * * * he shall have the power to veto any law, bylaws or ordinance adopted; notwithstanding the exercise of the veto power, any law or ordinance may be adopted, if two-thirds of the Aldermen vote thereafter in favor of its adoption.”

Relator should not be penalized because of the arbitrary and illegal act of the said Mayor. The amount that he earned by outside employment during this period should not be deducted from the salary fixed by the Town Council, as he was ready and willing to work but, through no fault of his own, had to seek employment elsewhere in order to earn a livelihood. We therefore think that it would be inequitable and unjust to make any' deductions of his-said earnings in this regard from the salary fixed by the Town Council. We disagree with our learned brother of the lower' Court in allowing a deduction of Thirty-five dollars per month from the said salary which had been previously fixed, as aforesaid. It appears clear that the Town Council has authority, under such circumstances, to employ whomever they wish to grade the streets of the Town of Ville Platte, or for any other purpose. This function cannot be usurped by the illegal actions of the Mayor. It therefore being clear that the Town Council has this undisputed authority, and since the Town Council exercised this authority on November 4, 1947, employing the said relator, he is, under the law, entitled to his salary from November 4, 1947 and monthly thereafter. Relator should be paid this salary due to the fact that he clearly remained an employee of the Town of Ville Platte, ready and willing to perform his work, and the only reason for not performing his work was through the illegal actions of the said Mayor of the Town of Ville Platte. If the Town Council had not intended that his salary would be effective commencing November 4, 1947, it would have adopted a Resolution providing otherwise. But, the Town Council did not take this action and the Court has no other alternative except to construe the Resolution of the said Council as written, and, that is, that the said relator was to be considered an employee of the Town of Ville Platte commencing November 4, 1947 at a salary which' was fixed at the rate of One Hundred Thirty-five ($135.00) Dollars per month. There is no reason why this amount should be reduced, under the facts and circumstances of the case. It is apparent that it was the intention of the Town Council that his salary should run from month to month, from November 4, 1947.

We are further of the opinion that the said amount is due and owing by the municipality of Ville Platte without the payment of interest. We do not think it would be just and equitable to force the municipality, under the circumstances, to pay interest on this claim.

We amend the judgment of the trial Court in that we are of the opinion that the Judge was in error in reducing the amount due relator by the sum of Thirty-five ($35.-00) Dollars per month for the time he was engaged in another occupation. The relator was ready to perform the services of his employment and he only sought other employment-after the Mayor had refused to sign the said pay vouchers in order to compensate him for his services. The judgment should be amended in this respect but otherwise affirmed.-

It is, therefore, ordered, adjudged and decreed that alternative writs of mandamus issue herein directing the said Mayor of the Town of Ville Platte, Z. H. Guidry, or his successor, and the Town Clerk, commanding them, and each of them, to perform the ministerial duties of their respective offices, and acting in their said capacities, to sign a warrant or warrants, or pay voucher or vouchers, on the Town Treasury in favor of relator, Orise Chapman, at the rate of One Hundred Thirty-five ($135.00) Dollars per month, commencing on November 4, 1947 and monthly thereafter until his employment is terminated.

The judgment appealed from is therefore amended as aforesaid and, as amended, is affirmed at the cost of the defendant-appellant.

DORE, J., recused.


author: ELLIS, Judge.

text:
    GREER v. SUMNEY.
    No. 3119.
    Court of Appeal of Louisiana. First Circuit.
    June 30, 1949.

      James C. Terrell, Jr., Leesville, for appellants.
    Wood & Wood, Leesville, Kay & Kay, DeRidder, for appellee.
   ELLIS, Judge.

On March 1st, 1947 the plaintiff, Hudnell T. Greer, purchased from the defendant, Walter. R. Sumney, by warranty deed for a cash consideration of $800.00 the following described land, to-wit:

“That part of the Northwest comer of Lot 4, Block 12 of the Schweitzer-McFarland Addition to the Town of Leesville, Louisiana situated on the West side of paved Highway No. 171, together with all buildings, structures and improvements located thereon.”

On the ground which plaintiff thought he was purchasing was a building which plaintiff immediately took down in order thát he might construct a new building for his welding business. After he had removed this building, he was informed by a prior owner of Lot 4 of Block 12 of the Schweitzer-McFarland Addition to the Town of Leesville that the property described in the deed was located within the bounds of the right of way of the Rosepine-Leesville Highway, being No. .171, and was, therefore, completely owned by the Department of Highways of the, State of Louisiana. Plaintiff accordingly filed this suit for the annulment of the sale and for the return of the consideration.

Plaintiff alleged that the property which he attempted to purchase from the defendant belonged to the Department of Highways of the State of Louisiana and the Town of Leesville, Louisiana, and that the defendant owned no land whatsoever situated in Lot 4, Block 12 of the Schweitzer-McFarland Addition to the Town of Lees-ville, and that the attempted and purported sale was null and void as being the sale of land belonging to another. Plaintiff made the further allegation that he had made demand upon the defendant Sumney in the presence of two competent witnesses to deliver to the plaintiff a valid title to the land or refund to plaintiff the purchase price, and that the defendant refused.

The defendant Sumney denied the material allegations of plaintiff’s petition and alleged that he had bought the property February 2, 1946 from George Sliman, Peter Sliman and James Mulroy with full warranty of title for the consideration of $900.00, and that he purchased the property in good faith and without any knowledge of defect in the title. He therefore prayed that his three vendors be called in warranty and that there be judgment in hi's favor and against the plaintiff, rejecting the demands of the plaintiff, and, in the alternative, should there be judgment against him that there be judgment also in his favor and against his warrantors. The warrantors excepted on the ground that plaintiff’s suit and defendant’s call in warranty set forth no cause or right of action.

The three warrantors also filed an exception of prematurity on the following grounds:

“(A) That the suit of Plaintiff, and the Defendant’s call in warranty against your Respondents is premature.
“(B) That plaintiff has not been dispossessed or evicted from his property and is still in possession thereof.
“(C) That there has been no judicial or official showing that the land is not there.
“(D) That there has not been any offer to return the property to Respondents.
“(E) That the property- purchased cannot be returned, because Plaintiff has torn down and removed the house.”

All of the above exceptions were by consent of counsel referred to the merits. The warrantors answered subject to their exceptions and denied all of the essential allegations of the petition and of the defendant Sumney’s answer and call in warranty. The warrantors set up the title whereby they acquired the property in question from one E. L. Oxendine and, therefore, called him in warranty. The Warrantor, E. L. Oxendine, filed an exception to the citation which was properly overruled, and also exceptions of prematurity and no right or cause of 'action, all of which were referred to the merits.

The case was duly tried and judgment rendered in which all exceptions filed were overruled and there was judgment in favor of the plaintiff and against the defendant Sumney in the principal sum of $800.00 with legal interest thereon from judicial demand until paid, subject to a credit of $200.00 allowed defendant for all materials, furniture and fixtures taken and removed from the búilding torn down by plaintiff, and also further judgment in favor of defendant Sumney and against his warrantors in the principal sum of $600.00 with legal interest and costs and also judgment in favor of the warrantors, George Sliman, Peter J. Sliman and James Mulroy and against their warrantor E. L. Oxendine in a like amount.

From this judgment the defendant’s war-rantors, George Sliman, Peter J. Sliman and James Mulroy, were granted a suspen-sive appeal to this Court. The plaintiff has answered the appeal praying that the judgment he amended by increasing the amount thereof, both in favor of the plaintiff against the defendant, and in favor of the other parties and against their respective warrantors from $600.00 to $800.00.

Plaintiff’s cause of action is based upon Article 2452 of the Civil Code which states that: “The sale of a thing belonging to another person is null; it may give rise to damages, when the buyer knew not that the thing belonged to another person,” and also upon Article 2506 of the Civil Code which states in part that: “When there is a promise of warranty, or when no stipulation was made on that subject, if the buyer be evicted, he has a right to claim against the seller: 1. The restitution of the price. * * *»

While the record is bare of any facts showing any actual eviction of the plaintiff, counsel for plaintiff bases his claim to eviction upon the well-settled law that if there is a perfect outstanding title in another, this alone amounts to eviction as a matter of law and renders it impossible for the vendor to put the purchaser in possession. See Voss v. Roach, La.App., 35 So.2d 142; Bologna Brothers v. Stephens, 206 La. 112, 18 So.2d 914; McDonold & Coon v. Vaughan, 14 La.Ann. 716.

The defendant contends that the judgment of the Lower Court is erroneous for five reasons. We will discuss only the first two as we agree with both contentions which are as follows:

(1) The third party (the State of Louisiana) in whom it is alleged title is vested is a necessary party to this suit.
(2) The title or servitude alleged to be vested in a third party (the State of Louisiana) is not a perfect title.

It is necessary for plaintiff’s' recovery in .this suit that he show that the title of the State of Louisiana to the property in question is a perfect title, otherwise there is a non-joinder of necessary parties.

The law covering this case is set forth in Bologna Brothers v. Stephens, supra. In that case, Bologna Brothers sued the heirs of Benjamin J. Stephens for the return of tlie purchase price by the Stephens of the south 37 feet of Lot 21, Square No. 1 of the Bonnecaze Subdivision, City of Baton Rouge, contending that their father, Stephens, did not own the property 'but that Stephens Realty Company owned it and conveyed the same to Cecil M. Bankston. The Court took cognizance of the fact that the deed purporting to convey Lot 21 of the Bonnecaze Subdivision to the Stephens Realty Company omitted the square number and, therefore, the Court held: “Since we are unable to hold that Bankston’s title on its face is perfect, it becomes necessary to and we will remand the case so that plaintiffs can make him a party to the suit; * * *." [206 La. 112, 18 So.2d 916.] Further, the Supreme Court in the Bologna case in discussing the law applicable stated:

“In Bonvillain v. Bodenheimer, 117 La. 793, 42 So. 273 (a case cited and relied on by appellees), plaintiff sued to recover the price that he paid to defendant for property which the latter had never owned, and this court, on rehearing, held that he was. entitled to restitution of the money, even though he may not have been actually evicted or disturbed in his possession by the true owner. Our conclusion was founded on R.C.C. Article 2452, which declares that the sale of a thing belonging to another person is null, and also on the rule announced in Robbins v. Martin, 43 La.Ann. 488, 9 So. 108, and McDonold & Coon v. Vaughan, 14 La.Ann. 716, to the effect that actual eviction is unnecessary ‘if a perfect title exists in some third person, whereby it is rendered legally certain that his vendor had no title.’
“Such doctrine or rule was later recognized and approved in Kuhn v. Breard, 151 La. 546, 92 So. 52, in Bickham v. Kelly, 162 La. 421, 110 So. 637, and in Abney v. Levy, 169 La. 159, 124 So. 766, 767.
“Moreover, in the Abney case, which was also a suit for the return of the purchase price, it was said:
“ ‘It is a matter of no importance that, in this case, the third person, in whom it is alleged title is vested, is not a party to this suit. He is not a necessary party to it. The court, even in his absence, may inquire to ascertain whether it appears that a perfect title is vested in him. For the court to be legally in position to do this it is not necessary that the third person to the sale be 'bound by the decree. The only necessary parties, to the suit are the parties to the sale, the plaintiff, and the defendant herein. The third person is not concerned as to whether defendant be ordered to return the purchase price to plaintiff or not.’
“The discussed principles of law, it will be noticed, are applicable only when a perfect title exists in some third person, thus showing with legal certainty that there is none in the vendor of him who claims the restitution. And from this the question arises: Did Bankston, who has not been made a party to this suit, have a perfect title to the disputed 37' of ground?
“ ‘The purpose of registry is that third persons may have notice of the transfer, and, if the description in the deed is so vague, indefinite, and uncertain that the property cannot be located and identified, the sale is void as to third persons who deal upon the faith of the public records.’ This was a comment in Hargrove v. Hodge et al., 9 La.App. 434, 121 So. 224, 22S, a case decided by the Court of Appeal, Second Circuit. And therein the court further observed :
“ ‘The description in a deed must be such that the property intended to be conveyed can be .located and identified, and the general rule is that the description must fully appear within the four corners of the instrument itself, or that the deed should refer to some map, plat, or deed as a part of the description, so that the same may be clear.’
“A writ of certiorari was refused by this court in the Hargrove case. Furthermore, in two recent decisions we specifically affirmed its holding. Daigle v. Calcasieu Nat. Bank in Lake Charles, 200 La. 1006, 9 So.2d [392], 394; Cupples v. Harris, 202 La. 336, 11.So.2d 609.”

It would appear from the above that the question necessary for decision is: Did the State of Louisiana, which has not been made a party to this suit, have a perfect title to the disputed “part of the northwest corner of Lot 4, Block 12 of the Schweitzer-MdFarland Addition to the Town of Leesville, Louisiana, situated on the West side of paved Highway No. 171, together .with all 'buildings, structures and improvements located thereon ?”

On the 2nd day of February, 1917, Mrs. .Charley Walker sold to Mr. James M. Oakes “all that certain lot or parcel of land situated in the Town of Leesville, Louisiana, and described as being Lots three and four of Block Twelve (12) of the Schweitzer and McFarland Addition to said Town, and being situated in the southwest quarter of the southwest quarter of Section 23, Township Two, North of Range nine, West.”

We find introduced by plaintiff a “Right of Way Deed” wherein J. M. Oakes, for a consideration of $100.00, did “dedicate, transfer, assign, set over and deliver unto the State of Louisiana the following described property, to-wit:

“That portion of the right-of-way of the Ro'sepine Leesville State Highway, (Route No. 42), as located by the State Highway Engineer, which extends over and lies upon my, our, property, more particularly described as follows, to-wit: A strip or parcel of land having a width of 30 feet from the center line to the right side of said right-of-way, and 30 feet from the center line to the left side of said right-of-way, or a total right-of-way 60 feet over and across my certain tract or parcel of land located in the aforesaid parish, which said right-of-way extends approximately along the line shown on the map showing the approximate lines of the Rosepine-Leesville State Highway (Route No. 42), prepared by the State Highway Engineer, copy of which map is on file,in the office of the Clerk of the Court of the Parish of Vernon and office of State Highway Engineer at Baton Rouge, La.” (Emphasis ours.)
“The above named consideration is in full payment of all claims of damages to Lots three and four of Block twelve of the Schweitzer McFarland 2nd Addition to the Town of Leesville.”
“It is expressly understood and agreed that this dedication and transfer of the above described right-of-way is made for and shall be used solely for the construction and maintenance of the said “Rosepine Leesville State Highway (Route No. 42), the exact location thereof to be hereafter determined by the State Highway Engineer, and for no other purpose. The grantor waives and abandons all claims for damages on account of the exercise of the privileges herein granted.” (Emphasis ours.)

We find 'by another exhibit of plaintiff that J. M. Oakes then sold to W. L. Lucky “Lots Three (3) and Four (4) of Block Twelve (12), of Schweitzer & McFarland Addition to Leesville, Louisiana, less that portion of said lots 3 and 4, conveyed by vendor to the Louisiana Highway Commission by deed dated May 27th, 1931, and recorded in Book No. 95, page 355 of the Conveyance records of Vernon Parish, Louisiana.” The property then passed on down by various sales to defendant and warrantor Eldridge L. Oxendine and was described as being Lots 3 and 4 in Block 12 of the Schweitzer-McFarland Addition to the Town of Leesville “with all improvements thereon, less that portion sold to the Louisiana Highway' Commission, covered by Highway No. 171 and that portion off the North end of Lot Three (3) sold to Ashton A. Foster, as per map of said block hereto attached * * *.” Attached to this deed is the map referred to which shows the Highway No. 171 as crossing a portion of Lots 3 and 4 and leaving a triangular shaped piece of land in the northwest corner of Lot 4. There is nothing in the record to show by whom this map or plat was drawn and nothing on the map itself to identify its maker.

When E. L. Oxendine sold this property to Ellsworth É. Mapes it was described as follows:

“That certain part of the Northwest corner of Lot Four (4) of Block Twelve (12) of the Schweitzer & McFarland Subdivision to the Town of Leesville, Louisiana, lying North and West of Highway 171, being that certain tract of land covered by 'building formerly occupied by the American Liquor Store, together with all improvements situated thereon.”

This description coincides with the description of the property as shown by the map or plat annexed to the deed wherein Oxendine purchased the property and which we have already mentioned. The description from then on in all material aspects is practically the same, no reference being made in the subsequent deeds down through plaintiff’s deed to any portion sold to the State for highway purposes.

Mr. Jack Hadnot, Clerk of Court for the Parish of Vernon, testified that there was no plat of record showing the right of way of the Rosepine-Leesville Highway, Route 42, recorded in the Clerk’s office, neither does the transcript contain any offering of any map showing the exact location of the highway with reference to Lots 3 and 4 of Block 12, although the right of way deed states that such a map was on file in the Clerk of Court’s office of the Parish of Vernon and in the office of the State Highway Engineer in Baton Rouge, Louisiana. It would appear from a reading of the description in the right of way deed that it would be impossible without the maps referred to therein to definitely locate with any certainty what portions of Lots 3 and 4 of Block 12 of the Schweitzer-McFarland Addition is actually taken up by the highway. It would further be reasonable to presume from the statement in the right of way deed that the exact location of the Rosepine-Leesville State Highway, Route No. 42, was to be “hereafter determined by the State Highway Engineer,” and on the date of the transfer as shown by the right of way deed a highway had not definitely been mapped or located across Lots 3 and 4, and if this be true it would follow that it would 'be impossible from this deed to decide whether the State had a perfect title to the northwest portion of Lot 4 or not. It is therefore necessary that the record contain a map of the State Highway Engineer as stated in the title, either as on file in the office of the Clerk of Court or in the office of the State Highway Engineer, and since' such a map is totally absent from the record, we are of the opinion that from a reading of the title itself, the State does not have a perfect title.

Plaintiff filed a supplemental petition herein and annexed to that petition a survey and map, made by R. E. Oxford, a licensed surveyor, September 13, 1947, showing Block 12 and Louisiana-U. S. Highway No. 171 as it crosses Lot 3 and 4 of Block 12 of the Schweitzer-McFarland Addition to the Town of Leesville. According to this map and'the testimony of the surveyor, the northwest corner of Lot 4 of Block 12 is approximately two feet east of the west right of way line of Louisiana-U. S. Highway 171. According to his testimony, there was no sign of any improvements located on the northwest portion of Lot 4 as shown by his map and survey. It is contended by defendants that the building which plaintiff removed was located on the triangular northwest portion of Lot 4 and that the west line of the right of way of U. S. Highway 171 is the east boundary line of the small triangular portion of property in dispute. R. E. Oxford, the surveyor, testified that he started from the purported northwest corner of Lot 4 but that there was no evidence of a corner at that point. He further testified that he located this point “by measuring from a point that was pointed out to me by Mr. Oakes and by measuring in all directions along the purported land lines.” In other words, this surveyor referred to the plat of this addition and after having the purported northwest corner pointed out to him by Mr. Oakes, took information such as distances and directions from the official plat of this subdivision. The case of Simmons v. Miller, La.App., 170 So. 521, would be applicable. In'that case, the Court held that: “Landowner seeking to establish boundary line must be able to show that line he relies on has formerly been fixed, either judicially or extrajudicially by mutual consent.” Civ. Code, Articles 823, 824, 832. There is nothing in this record to prove that the lines or cornér of Lot 4 had been fixed, either judicially or extrajudicially, and although Mr. Oxford was a licensed surveyor, he relied altogether on information furnished him by J. M. Oakes as to the location of the northwest corner of Lot No. 4, when he should have proven the location of this corner by referring to the map of the highway engineer, if there be one, or other field notes from which the Schweitzer-McFarland Addition to the Town of Leesville was originally laid out.

We are therefore of the opinion that this survey which was offered in evidence and then withdrawn (however, it is annexed to plaintiffs’ petition and made a part thereof and is therefore a part of the record without the necessity of being specifically offered) is of no value, and it has not been shown that the State has a perfect title to the property in question, as it is impossible to say from the record in this case what portion of Lots 3 and 4 was sold to the State in its right of way deed.

It is well settled that although no exception of non-joinder be filed, the Court on its own motion may take cognizance of the lack of necessary parties. Bologna Brothers v. Stephens, supra; Tafallo v. Jones et al., La.App., 23 So.2d 569; Whitney National Bank of New Orleans v. Little Creek Oil Co., La.App., 33 So.2d 693.

Therefore, being of the opinion that the State’s title on its face is not perfect, the case must be remanded so that the State may be joined as a party to the suit.

The highway in question was placed under the State Highway system, and by Act No. 4 of the Louisiana Legislature for the year 1942 the former State Highway system was continued in existence and consisted of all highways formerly included in the state system by any previous act of the Legislature. Also, by the terms of this Act, the present Department of Highways was created and all highways .were placed under its supervision, control and ownership. Section 8 of said Act stated that the Department of Highways could sue and be sued, implead and be impleaded and, therefore, the Department of Highways would be the proper party to be joined in this suit to settle the question involved herein.

It is therefore ordered that the judgment of the Lower Court be annulled and reversed, and it is further ordered that this case be remanded to the District Court to be proceeded with according to law and not inconsistent with the views herein expressed, and the plaintiff is hereby ordered to pay the costs of this appeal and all other costs to await the final determination.


text:
    DRAKE v. CROWLEY YELLOW CAB CO., Inc.
    No. 3122.
    Court of Appeal of Louisiana. First Circuit.
    June 30, 1949.
    J. Donald Aaron, Crowley, for appellant.
    H. Purvis Carmouche, Crowley, for ap-pellee.
   ELLIS, Judge.

This is a suit for damages arising out of an automobile collision in the City of Crowley, Louisiana, on or about the 6th day of February, 1948, between a car driven by the plaintiff and a car allegedly owned by the Crowley Yellow Cab Company, Inc. and being driven by an employee of the cab company. The petition alleged that the plaintiff was driving a 1934 Ford sedan in an easterly direction on West Hutchinson Avenue in the City of 'Crowley and that “a taxicab owned by Crowley Yellow Cab Company, Inc. and operated by one of its employees and/or drivers suddenly darted” from the rear of a car which was traveling in a northerly direction at the intersection of West Hutchinson Avenue and Western Avenue, and that the cab was traveling in a northerly direction on Western Avenue, the collision taking place in the intersection of West Hutchinson Avenue and Western Avenue. It further alleged that plaintiff was driving his car in a safe and prudent manner, and that the proximate cause of the accident was due solely to the negligence of the driver of the taxi.

Defendant’s answer was in the nature of a general denial and in reconvention it alleged that the sole and proximate cause a the accident was due to the negligence of the plaintiff and denies negligence on the part of the driver of the taxi, and, in the alternative, in the event the Court should find that the driver of the taxi at the time was guilty of the negligence alleged by plaintiff, that the plaintiff was also negligent and that his negligence was a direct and contributing cause of the collision and the resulting damages and injuries, plaintiff being guilty of contributory negligence which would bar recovery.

The plaintiff, in his petition, stated that his damages were $177.62, the cost of the repair of the automobile, and $27.00 for doctor’s fees for treatment of his wife and grandchild who were passengers in the car. Defendant reconvened and prayed for damages in the amount of $571.50, however, abandoned any claim for damages but specifically reserved its rights under the exception and all objections and its rights under its pleadings as to the accident being due solely to the negligence of the plaintiff and, in the alternative, due to the contributory negligence of the plaintiff.

At the beginning of the trial, the defendant filed an exception of no cause or right of action and made a general objection to any testimony which would tend to show that the Crowley Yellow Cab Company, Inc., was in any way responsible for any damage which the plaintiff in this suit might have sustained, arising out of the accident and collision, for the reason that there was no allegation contained in the petition showing that the driver of the taxi was acting within the course and scope of his employment with defendant at the time of the accident. The exception 'was referred by the Court to the merits and testimony was allowed subject to the objection and by agreement of counsel the objection was made general and to apply to all testimony solicited from any witness without being specially renewed.

The plaintiff in his petition alleged that the cab was owned by the Crowley Yellow Cab Company and “operated by one of its employees and/or drivers.” The defendant in its brief and arguments before the Court relies solely upon the contention that' this is not an affirmative statement ¡that the driver of the cab was acting within the scope of his employment by the defendant at the time of the accident, and that to permit any testimony showing the status of agency would be an enlargement of the pleadings and that his timely objection to such testimony should exclude any evidence showing that the driver of the cab was at the time of the accident engaged in the business of the defendant company.

The question then arises as to whether or not the allegations contained in the petition of plaintiff are sufficient to state a cause of action or was it also necessary that plaintiff allege facts which, if proven, would, affirmatively show that the driver of the cab at the time of the accident was engaged, in the business of the defendant company..

In the case of Truxillo v. De Lerno, La. App., 146 So. 71, 72, the plaintiff brought suit to recover damages to an automobile-which resulted from a collision between it and the driver of an automobile belonging to defendant. When the case was called for trial on the merits, the attorney for the defendant objected to the introduction of any evidence by the plaintiff for the purpose of showing that the driver of the Buiclc automobile was defendant’s agent or employee at the time he was driving defendant’s car because petitioner did not make that allegation. The Court, in deciding the case, quotes an article from plaintiff’s petition which is as follows:

“The damage hereinabove set forth, * * * was caused solely and exclusively through the defendant’s driver, who in his extreme haste to perhaps meet an appointment, ignored all traffic rules and regulations, carelessly and negligently running into your petitioner’s car, causing 'the following itemized damage.”

The -Court held that the language “the defendant's driver” was sufficient to permit the introduction of evidence which would, show the actual and true relationship of the driver and owner of the automobile, and rendered judgment accordingly.

In the case of Morales v. Burns et al., La.App., 21 So.2d 893, 894, arising out of' an automobile accident, the defendant filed an exception of no cause of action which. was referred to the merits. The Court held:

“We believe, therefore, that it may be fairly said that there is an admission that Burns was the owner of the car involved in the accident with the plaintiff’s automobile. Insofar as the want of allegation and lack of proof that the driver of the Burns car was engaged in his employer’s business at the time of the accident, the fact that he was driving the Burns car at the time, which is conceded, creates a presumption that he was acting in the course of his employment. Union Indemnity Co. v. Henry C. Faust, [Orleans] No. 9440, see Louisiana and Southern Digest; Norman et al. v. Little et al., 14 La.App. 298, 129 So. 459; Lovoi v. R. F. Mestayer Lumber Co., Inc. et al., La.App., 185 So. 473.”

In May v. Yellow Cab Company, 164 La. 920, 114 So. 836, 838, the Court states:

“We may say, however, that the great weight of authority, both from text-writers and the decisions of the highest courts of the states, seem to recognize the rule that, in an action for an injury or damage inflicted by an automobile, an allegation and proof showing the ownership of the automobile, and that' it was being operated at the time by an employee of the owner, is sufficient to make out a prima facie case and to raise the presumption that the servant was acting within the scope of his em--ployment, and that the burden is then thrown on the owner to show to the contrary. See list of cases noted in L.R.A. 1918D, 924. See, also, list of cases noted in Berry, Automobiles, beginning at page 1011.”

See also Antoine v. Louisiana Highway Commission et al., La.App., 188 So. 443.

Counsel for defendant cites and relies upon the case of Gaubert v. Ed. E. Hebert Co., Inc., La.App., 174 So. 716, the syllabus of which states that the complaint must allege that truck driver was at the time of the accident engaged in the service of the master; however, an examination of the case reveals the following statement in the opinion:

“He made the necessary allegation that the truck driver was, at the time of the accident, engaged in the-service of his master, and that is not a controverted issue in the case.”

Defendant also cites McCurdy v. City Cab Company, La.App., 32 So.2d 720, however, in that case the cause of action arose out of an altercation between the plaintiff and an employee of the defendant company.

It is, therefore, well established that an allegation of ownership and employment of the driver is sufficient to establish a prima facie case of agency or master and servant relationship and, this being true, the allegation that “a taxicab owned by the Crowley Yellow Cab Company, Inc. and operated by one of its employees and/ or drivers” is sufficient to state a cause of action. If an employee at the time of the collision was not acting in the scope or course of his employment, then such a fact would be a matter of defense to be plead by the employer. The judgment of the trial court in overruling the exception of no cause of action was correct-and is affirmed.

It is clear from the testimony that the driver of the car of the Crowley Yellow Cab Company was employed by that Company and was driving a fare from the office of the Cab Company, where he came to seek the services of the Company, to his home, and there is no question but that he was acting for the company and was within the scope of his employment and authority. The trial judge gave judgment in the amount of $177.69 for the damage caused to the automobile of plaintiff, which was not disputed by counsel for defendant, but refused the doctor’s bill on the ground that the proper persons to bring suit on behalf of the child were the parents of the child. This is correct and it is not urged by counsel for plaintiff in his argument or in his brief.

The only remaining question, then, is whether or not the driver of the cab was negligent and if his negligence was the proximate cause of the accident and whether or not plaintiff was guilty of contributory negligence to bar recovery.

The preponderance of evidence shows clearly that the trial judge was evidently correct in finding the driver of the cab negligent. The uncontradicted testimony in the record shows conclusively that the Drake car had traveled more than half way across the intersection at the time of the impact and had pre-empted the intersection. Counsel for defendant has not urged in his brief or in his argument before this Court that the trial judge was in error in any respect except in overruling the exception of no cause of action. Hence the brevity with which we dispose of the last-stated question.

It is therefore ordered that the judgment of the District 'Court be affirmed.