text:
    STATE of Louisiana v. Roger Glen SMITH.
    No. 82-K-2349.
    Supreme Court of Louisiana.
    Nov. 5, 1982.
   In re Roger Glen Smith, applying for remedial writs. LaSalle Parish. No. 23270.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana ex rel. Anthony MURRAY v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 82-K-2351.
    Supreme Court of Louisiana.
    Nov. 5, 1982.
   In re Anthony Murray, applying for remedial and supervisory writs. Parish of Orleans. No. 82-K-2351.

Writ denied.

CALOGERO and DENNIS, JJ., would grant the writ.


text:
    Adam FASTOFF v. HANDY STOP, INC. and Gerald G. Cruice.
    No. 82-C-2352.
    Supreme Court of Louisiana.
    Nov. 5, 1982.
   In re Handy Stop, Inc. and Gerald G. Cruice, applying for certiorari to review decision of the Fourth Circuit, Court of Appeal. Parish of Orleans, Fourth Circuit. No. 12992.

Writ denied.

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana ex rel., Jimmy Lee WILSON v. H. Ruphert SLEDGE, Clerk of Court, 2nd Judicial District Court.
    No. 82-KH-2496.
    Supreme Court of Louisiana.
    Nov. 5, 1982.
   In re Jimmy Lee Wilson, applying for writ of mandamus. Parish of Claiborne. No. 18744.

Denied. Claim in support of relator’s motion to vacate should be presented by use of the form provided relator by the district court.


text:
    Carolyn Parker MARTIN v. RILEY STOKER CORPORATION, et al.
    No. 82-C-2572.
    Supreme Court of Louisiana.
    Nov. 5, 1982.
   In re Riley Stoker Corporation, et al, applying for writs of certiorari, prohibition and mandamus and stay order, Eighteenth Judicial District Court. No. 16409. Parish of Pointe Coupee. First Circuit, Court of Appeal. No. 82-CW-2572.

Denied.


text:
    Yvonne Howorka HATTIER v. Jules HATTIER.
    No. 82-C-2644.
    Supreme Court of Louisiana.
    Nov. 5, 1982.
   In re Yvonne Howorka Hattier, applying for stay order and for supervisory or remedial writs, Civil District Court, Parish of Orleans. No. 82-14604; Court of Appeal, Fourth Circuit. No. C-0243.

Denied. Although it appears that the ex parte order granting custody to the father should not have been granted, this application is denied because the rule for custody is presently fixed for trial on Nov. 15, and relator makes no showing that the child will suffer in the meantime. If the matter is not tried and decided on Nov. 15, relator may re-apply to this Court.

CALOGERO and DENNIS, JJ., would grant and vacate the order.


author: KLEES, Judge.

text:
    Joseph BERNSTEIN v. Edward L. PICK and Tilden Pick.
    No. 12942.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 8, 1982.
    Rehearing Denied Nov. 19, 1982.
    Nathan Greenberg, Greenberg & Dallam, Gretna, for defendants-appellants.
    Joseph Bernstein, in pro per.
    Before KLEES, BYRNES and CIACCIO, JJ.
   KLEES, Judge.

On January 25, 1978, Joseph Bernstein commenced an action for partnership dissolution and liquidation. He alleged that he was a partner with Tilden and Edward L. Pick in the business known as “Spaghetti Eddie’s Warehouse and Boston Bar” and as such he had the unilateral right to withdraw from the partnership. He prayed that the partnership assets be liquidated, that the partnership be dissolved, that the creditors be paid and that the court determine the amount of a royalty which he claimed he was entitled to by virtue of a separate agreement for his services, equipment, recipes, etc.

The trial court appointed a liquidator and ordered him to ascertain the debts of the partnership to the various creditors. Thereafter the liquidator disbursed approximately 55% of the value of the debts to the creditors who had filed claims in the liquidation pursuant to a judicial decree.

On the same date that the tableau of distribution was homologated, the court also rendered the following judgment:

“IT IS ORDERED, ADJUDGED AND DECREED THAT:
1. The claim of Weiner-Bernstein for storage charged is denied.
2. The bar is held to be movable and as such was sold with the other movables.
3. Those movables claimed by Mr. Bernstein as having been loaned by him or Turci’s to Spaghetti Eddie’s are recognized as such.
4. Mr. Bernstein is recognized as entitled to a royalty of 2% of gross sales, in 1977 of $688,582.00 and in 1978 of $270,400.00 or a royalty totaling $19,-179.00. This claim is secondary to the claims of other partnership creditors.
5. The prayer by Mr. Bernstein to have determined the effective date of his withdrawal from the partnership is denied as being a request for an advisory opinion.
JUDGMENT READ, RENDERED AND SIGNED, this 8th day of November, 1979.”

The appellants accept the first three portions of the judgment and appeal the latter two claiming that the court erred in not indicating the date of dissolution and by making a finding as to the management fee. They also assert that the finding relative to the management fee was premature.

The appellee, on the other hand, avers that the court erred when it denied the storage fee. However, the appellee has . failed to answer the appeal, and this Court will not consider this issue.

The trial judge was of the opinion that to disclose a dissolution date would be to render an advisory opinion, although requested to do so by appellants during the trial. It is clear from the colloquy between the Trial Judge and Mr. Greenberg, appellants’ attorney, that the Court properly excluded fixing a concluding date.

The trial court carefully considered whether a determination of the concluding date of the partnership would “terminate the uncertainty or controversy giving rise to the proceeding”, (See LSA CCP Art. 1876) and properly refused to render an advisory opinion.

Trial Court must render declaratory judgment where such judgment would terminate uncertainty or controversy giving rise to proceeding however within its sound discretion it may choose or refuse to render declaratory judgment which would not terminate such uncertainty. Morial v. Guste, 365 So.2d 289 (App. 4th Cir.1978) Writ refused 365 So.2d 1375 (La.1978).

The Trial Judge found that Bernstein was entitled to a royalty of 2% of gross sales for both 1977 and 1978, although he found that there were no funds from which to satisfy the claim.

Appellants contend that the judgment of the trial court was premature, as the partnership was never completely liquidated or alternatively, that' the fee is only payable out of partnership assets (of which there are none).

Our law recognized contributions by partners to the partnership.

LSA CC
Art. 2809 Elements of contribution by partners
Property, credit, skill and industry being the sources from which the profits of a partnership may be drawn, each of the partners may furnish either or all of these, in such proportions as they may mutually agree.
Art. 2810 Credit as contribution
By credit, in the foregoing article, is meant not only a reputation for responsibility as to the pecuniary concerns, but also any quality or other circumstance that may acquire the good will of others, and contribute to the prosperity of the partnership.

In the present case the royalty or management fee was for the use of certain recipes, concepts and other benefits. This would appear to be in the nature of a credit, which is a contribution. In addition, the partnership agreement itself indicates that this is a contribution from Joseph Bernstein.

As far back as 1890 the jurisprudence has recognized that partnership contributions are generally not compensable. However, with a separate agreement the partners can agree that one or more of them should receive compensation for his or her contribution. Taylor v. Ragland, 42 La.Ann. 1020 8 So. 467 (1890). The parties in this instance did enter into a separate agreement specifically recognizing Mr. Bernstein’s contribution.

“For these purposes costs shall include a royalty payable to Joseph Bernstein in consideration of his contribution of recipes to Spaghetti Eddie’s equal to the amount of 2% of gross sales per month.” emphasis added.

While this is listed as a cost to be deducted from gross sales we conclude that it was an attempt to compensate Mr. Bernstein for his contribution.

A careful reading of the following language in Jeffries vs. Moore, 219 La. 692, 53 So.2d 898 (La.1951) leads us to conclude that as a contribution only the partnership “assets can be used to satisfy the amount due the appellee”.

In Martin v. Seabaugh, 128 La. 442, 54 So. 935, 937, it was said: “Nothing is better settled in our law than that a partner has no cause of action against his partner for any definite sum as representing his share of the profits of the partnership, but only for a settlement of the partnership. Seelye v. Taylor, 32 La. Ann. 1115; Hart v. McDonald, 52 La.Ann. 1686, 28 So. 169; Reddick v. White, 46 La.Ann. 1198, 15 So. 487,” See also Ingersoll Corporation v. Rogers, 217 La. 79, 46 So.2d 45 and cases there cited.
Obviously then, it was improper to consider the individual demands of plaintiff and Moore in advance of a settlement of the partnership affairs. The reason for this is stated in Quintero v. Caffery, 160 La. 1054, 108 So. 87, 99, to be that “Partners, inter sese, are not liable as they would be to third persons, each for his share of the debt, but each partner is liable to the firm for what he has overdrawn, and the firm is liable to the other partner or partners for the balance due him or them.”
A partner may in some instances be a creditor of a partnership:
LSA CC
Article 2864, Partner as creditor of partnership
A partner may be a creditor of the partnership not only for the sums which he has disbursed, but likewise for the obligations he has entered into bona fide for the partnership, and for losses reasonably incurred in his administration.

The trial judge specifically stated that Mr. Bernstein was entitled to the management fee citing C.C. Art. 2823 to support the fact that Mr. Bernstein’s claim should come after the creditors.

Article 2823. Preference of partnership creditors on partnership property; rights of creditors of individual partner.
The partnership property is liable to the creditors of the partnership, in preference to those of the individual partner; but the share of any partner may, in due course of law, be seized and sold to satisfy his individual creditors, subject to the debts of the partnership; but such seizure, if legal, operates as a dissolution of the partnership.

And although the appellants contend that it was very premature for the court to consider the management or royalty fee, as it is not to be considered until after the dissolution and liquidation of the partnership has been accomplished, it is clear to us that the dissolution and liquidation has been accomplished.

The partnership assets have been sold off, the various creditors have been paid on a pro-rata basis on their claims, and the partnership has been dissolved and liquidation accomplished. Accordingly, we conclude that the trial court was not premature in recognizing the claim of Bernstein for the royalty or management fee and fixing the amount due.

Accordingly, for the foregoing reasons the judgment appealed from is affirmed, costs to be borne by appellants.

AFFIRMED.

ON APPLICATION FOR REHEARING:

PER CURIAM.

In this application for rehearing, Edward L. Pick and the Succession of Tilden Pick, defendants-appellants herein aver that this court decree is “confusing from the standpoint of the parties herein, in that it seems to affirm the trial judge’s recognition of the Bernstein claim, while at the same time indicating that the said claim is not com-pensable.” They ask for rehearing for clarification purposes.

In his reasons for judgment, the trial judge found that the partnership recognized that a specific management fee was to be paid one of the partners (Mr. Bernstein). The trial judge recognized the Bernstein claim for 2% of gross sales, for both 1977 and 1978; and concluded that this claim was subordinate to the claims of other partnership creditors. Although the trial judge fixed the amount of compensation, he concluded that this was a partnership debt. The record clearly shows from the management agreement that this royalty was due by the partnership and not a personal obligation of the individual partners themselves.

For these reasons, as well as those éx-pressed in our earlier ruling, we conclude that the trial judge was correct in recognizing the Bernstein claim, and that it is a claim against the partnership assets alone, secondary to the claims of other partnership creditors.

Accordingly, we supplement our previous opinion for the reasons mentioned above, and in all other respects deny rehearing.


author: REDMANN, Chief Judge.

text:
    Dr. Henry G. SIMON v. Sarah Allen SIMON.
    No. 13012.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 15, 1982.
    On Rehearing Oct. 20, 1982.
    Writ Denied Dec. 20,1982.

      David Band, Jr., Sidney J. Parlongue, New Orleans, for plaintiff-appellant.'
    Sylvan J. Steinberg, Bronfin, Heller, Feldman & Steinberg, New Orleans, for defendant-appellee.
    Henry W. Kinney, III, New Orleans, for notary and appraisers.
    Before REDMANN, C.J., and SCHOTT and KLEES, JJ.
   REDMANN, Chief Judge.

In this suit to partition community property, a divorced husband on March 30, 1981 appealed from a judgment of March 18, 1981 that fixed notary’s and appraisers’ fees for an inventory of the community and “ordered . .. that [the ex-spouses] pay the foresaid amounts to such parties. Such amounts are to be recognized as a debt of the community.”

The ex-husband’s briefs argued primarily the validity of a June 10, 1981 judgment making absolute the notary’s rule to have the community property sold by the sheriff. The June 10 judgment was not appealed, however, by the ex-husband’s appeal of March 30. Accordingly, the questions of whether the notary had authority to bring a rule to sell the property and, if not, whether the ex-wife’s ratification of his doing so is the equivalent of the ex-wife’s having brought the rule and related questions arising from the June 10 judgment are not before us.

What is before us is the March 18 judgment. The ex-husband argues that the fixing and ordering payment of the costs of inventory was premature because prior to “final termination” of the partition suit, when La.R.S. 13:843.1 provides for payment of costs “[n]ot later than” 120 days after final termination of a civil suit. We have considerable doubt that that provision is controlling. The ordinary final judgment for costs is certainly executable after 30 days, C.C.P. 2123, unless a suspensive appeal is taken. Furthermore, in a complex succession that might take years to administer, the notary and appraisers whose work is all done at the outset should not have to wait years to be paid.

Nevertheless we agree that the ex-husband should not, at this stage of the proceedings, be obliged to pay any part of notary’s and appraisers’ fees.

We first observe that it was the ex-wife who, instead of merely filing the “detailed descriptive list” of assets authorized by La. C.C.P. 3136, elected to ask in her petition of May 14, 1976 to have her lawyer appointed notary to take a formal inventory. (The trial judge denied that request, but on a later motion by the wife selected another notary.)

We second note that the ex-husband’s June 18, 1976 answer to that petition annexed a list of the remaining community assets that reasonably complied with C.C.P. 3136 as well as a list of assets the ex-spouses had already divided (including one piece of immovable property they had sold, splitting the proceeds).

We third note that, for purposes of a partition by judicial sale, C.C.P. 4607 does require advertisement as in sales under execution, but does not require appraisement. Indeed, if an appraisement is made, C.C.P. 2336’s rule that a sale under seizure must bring two-thirds of the appraised value is not applicable; “[n]o one can be compelled to hold property with another,” C.C. 1289, and a co-owner is entitled to have the judicial sale of property indivisible in kind for the highest bid, regardless of appraisement, Ventress v. Brown, 30 La.Ann. 1012 (1878), or even without appraisement, Martin v. Nassan, 14 Orl.App. 207 (La.App.1917). Thus the appraisement in a formal inventory is of no value for purposes of a partition by judicial sale.

We fourth note that the assets of the community are very few. The husband’s list’s apparent omission of three or four items could have been corrected by rule to traverse, C.C.P. 3137.

In the absence of” some showing that the ex-husband somehow necessitated the formal inventory, we conclude that the costs of the inventory must be borne by the ex-wife because she unnecessarily caused those costs, and the clear, basic principle of the law is that “the party whose behavior unjustifiably causes costs to be incurred ought to pay them,” Bowman v. New Orleans Pub. Svc., Inc., 410 So.2d 270 (La.App. 4 Cir.1982).

The judgment of March 18, 1981 is amended to cast the ex-wife alone for the costs of the inventory. Costs of this appeai are to be equally divided.

ON REHEARING

The original record in this matter contained no petition for nor order of appeal from the June 10, 1981 judgment and we therefore believed no appeal had been taken from that judgment. In fact the ex-husband did appeal from that judgment, as he establishes by certified copy of a timely order of appeal. We therefore grant rehearing to consider that appeal, without a repetition of the oral argument already had on its subject matter.

The law on the partition of a marital “partnership or community of acquets and gains,” C.C. 2399, in force at the time of the trial court action in this case (applicable also to any partnership, then C.C. 2890) must be derived from La.C.C.P. 4601-4630, “Partition Between Co-owners” (made applicable to all partitions by C.C. 1290). Many of those provisions seem inapt for the partition of a marital community, and the difficulty of applying them presumably prompted La.Acts 1982 No. 439, enacting La.R.S. 9:2801, to govern partitions of communities. At the time of this proceeding, however, the lawyers and the trial court had the difficult task of sorting through a mass of statutory material which sometimes does not afford clear direction.

We pretermit the ex-husband’s argument about the meaning of C.C.P. 4605 in a marital community partition and his contention that a notary appointed to partition a community has no standing to seek a judicial sale. On other grounds, we conclude that the judgment ordering all inventoried property to be sold must be reversed on its merits.

The civil code articles on the partition of a succession are made applicable to C.C. 1290 to the partition of a community estate. .Those articles provide each heir “may demand in kind his share of the movables and immovables,” art. 1337, except insofar as it is necessary to sell them to pay succession debts. The articles provide that the first step in a partition is the settling of accounts owed by the heirs to the succession, C.C. 1349. Then the “active mass” of all the property of the succession, including debts due to the succession by the heirs and others, C.C. 1356, less deductions of debts (and collations) due to the heirs, C.C. 1359, is divided into lots, C.C. 1364, including, “if possible, in each lot, the same quantity of movables, immovables, rights and credits of the same nature and value,” C.C. 1365 (emphasis added). “When the lots are of unequal value,” receipt of a lot of greater value obliges the recipient to pay money to restore equality, C.C. 1366. The lots are “drawn for by the coheirs,” C.C. 1367.

The codal scheme for the partition of an estate does not consider whether each separate asset is divisible in kind, but whether the estate is divisible in kind by the distribution of its assets themselves into shares or lots for the heirs. The code expressly anticipates that the. distribution of the assets themselves may produce preliminarily unequal shares among the heirs, and that could not occur if only assets individually divisible in kind were distributed in kind and assets not individually divisible in kind were all sold so as to divide their cash proceeds with mathematical equality.

Under the law prior to Acts 1982 No. 439 (ignoring the brief life of C.C. 2369.1, enacted by Acts 1981 No. 751), a marital community’s estate is to be divided in kind under the rules applicable to a succession. The first step is to settle the debts owed to the community by the separate estates of the spouses, C.C. 1349. Then the active mass of the community estate is formed (including the debts owed by the spouses as well as by others), C.C. 1356. Then there are deducted the debts owed by the community to the separate estates of the spouses, C.C. 1359, “and the balance remaining forms the mass to be divided,” C.C. 1360, into two lots (as if for two heirs), C.C. 1364, including, “if possible, in each lot, the same quantity of movables, immovables, rights and credits of the same nature and value,” C.C. 1365. The spouses then draw for the lots, C.C. 1367, and if the lots are of unequal value the recipient of the more valuable lot, in order to restore equality, must either pay the other spouse half of the difference in value, C.C. 1366, or else “be charged with the payment of a larger portion of the debts” of the community, C.C. 1371. (Otherwise, each spouse owes, as between themselves, half of the debts, C.C. 1371 and former C.C. 2409.)

The law’s plain preference is partition in kind. C.C. 1339 forces sale only on grounds of the practical indivisibility of whatever is sought to be partitioned, whether the entire estate of a decedent, or an entire former marital community, or a single co-owned asset. If co-owners had nothing to partition but a typical city house on a lot of ground only large enough for the house, as a practical matter that asset is not itself divisible and therefore must be divided by selling it and dividing its proceeds. But if, for example, there are two such houses and two equal co-owners, partition in kind is possible, notwithstanding that one house is worth more than the other. Perhaps if such an indivisible house constitutes nearly all of the value of a community then the community may be not conveniently divisible in kind into two lots (although perhaps the other assets might be divided into lots and only the immovable sold). But when, as here, a community contains two immova-bles, the circumstance that each immovable considered alone may be indivisible in kind, or that one is more valuable than the other, does not make the community indivisible in kind.

The order for partition by licitation is not justified on the record before us, and it is therefore reversed.

We remand for partition in kind. Moreover, because nothing has been done in respect to the partition except an inventory whose values are presumably' outdated by the intervening period of almost two years in any case (see C.C. 1325), we rule that the partition is to be governed by the procedure established by Acts 1982 No. 439, enacting R.S. 9:2801.

The 1982 procedure is basically the same as the previous procedure described above. The principal differences are (1) that each spouse must file a sworn list of all assets and their values and of all liabilities, and each must then traverse or concur as to each item of the other’s list, and (2) that the court may allocate assets and liabilities to a particular spouse (instead of having the spouses draw lots). These differences should accommodate, rather than impede, an equitable partition of this community. For example, it makes more sense to allow the trial judge to allocate the equipment of a medical office used by a spouse who is a doctor to that spouse, rather than to allot it by chance to the spouse who is not a doctor.

In any event, the statute is procedural and we conclude that it now governs save as to partitions already so far under way that it would cause unnecessary expense or delay.

The judgment of June 10 is therefore reversed and the matter remanded for further proceedings consistent with this opinion. In all other respects rehearing is refused.

      . La.C.C.P. 4607 would still allow the parties, “[a]t any time prior to the sale,” to agree to nonjudicial partition, if that is their desire.


author: PONDER, Judge.

text:
    Columbus P. MILLET, Jr., et al. v. ROLLINS ENVIRONMENTAL SERVICES OF LOUISIANA, INC., et al.
    No. 82 CA 0413.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 21, 1982.
    Patrick W. Pendley, Plaquemine, for plaintiff-appellee Columbus P. Millet, Jr.
    Wallace A. Hunter, Baton Rouge, for defendant-appellant Rollins Environmental Services of Louisiana, Inc., et al.
    Before LOTTINGER, PONDER and SHORTESS, JJ.
   PONDER, Judge.

Plaintiffs filed a class action suit against defendants who filed a Peremptory Exception of Improper Use of Class Action, which the trial court denied. After defendant was granted an order for a devolutive appeal, plaintiffs filed a motion to dismiss the appeal as one taken from an interlocutory judgment which will not cause defendant irreparable harm.

A judgment allowing a class action is interlocutory. State v. General Motors Corporation, 354 So.2d 770 (La.App. 4th Cir. 1978) affirmed and remanded 370 So.2d 477 (La.1979).

A judgment does not cause irreparable injury if, as a practical matter, the error can be corrected on appeal. Cheramie v. Vegas, 385 So.2d 453 (La.App. 1st Cir.1980).

The court in State v. General Motors Corporation, supra, stated that irreparable injury could result from difficulty in assessing damages, and “immeasurable expense and innumerable wasted court days will have resulted” if the class action were later disallowed.

We find the instant case, with the large number of the class, to be comparable to the case of State v. General Motors Corporation, supra.

MOTION TO DISMISS DENIED.


text:
    Blaz TOUPS v. DEPARTMENT OF HEALTH & HUMAN RESOURCES, South Louisiana Medical Center.
    No. 82 CM 0549.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 21, 1982.
    Jerry H. Bankston, Baton Rouge, for DHHR, appellee.
    Laura Denson Holmes, Baton Rouge, for Herbert L. Sumrall, appellee.
    David W. Arceneaux, Houma, for Blaz Toups, appellant.
    Before LOTTINGER, PONDER and SHORTESS, JJ.
   PONDER, Judge.

On motion of the Director of the Department of State Civil Service, we issued an order to show cause why an appeal should not be dismissed.

After plaintiff appealed from his suspension and removal, by opinion filed May 21, 1982, the Civil Service Commission ordered him reinstated with back pay, subject to an offset for wages earned since termination. Complaining of the offset, failure to require payment of attorney fees, and other items, plaintiff filed an appeal of that decision on June 30, 1982.

Civil Service Rule 13.28(a) states that the “decision of the Commission shall be final on the day that it is filed with the Director.” Article X, Section 12 of the Louisiana Constitution of 1974 provides that “[t]he decision of a commission shall be subject to review of any question of law or fact upon appeal to the court of appeal wherein the commission is located, upon application filed within thirty calendar days after its decision becomes final.”

The appeal to this court was not timely and is therefore ordered dismissed. Smith v. DHHR, Office, of Charity Hospital at New Orleans, 416 So.2d 94 (La.1982).

APPEAL DISMISSED.


author: COVINGTON, Judge.

text:
    PRENTICE OIL AND GAS COMPANY v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 15047.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Writ Denied Dec. 10,1982.

      Bryan Miller and Johnie E. Branch, Jr., Baton Rouge, for defendant and appellant.
    H. Minor Pipes, Sr., Houma, A.J. Gray, III, Lake Charles, for plaintiff and appel-lee.
    Before COVINGTON, LEAR and LANIER, JJ.
   COVINGTON, Judge.

The State of Louisiana, through the Department of Transportation and Development (DOTD), has suspensively appealed the judgment of the District Court in favor of the plaintiff, Prentice Oil and Gas Company, and against DOTD, which adjudged the defendant indebted unto the plaintiff in the amount of $49,575.41, with interest and costs, and denied the motion of DOTD to have the court release the funds in the registry of the court deposited as an estimate of just compensation pursuant to LSA-R.S. 48:441-460, the “quick-taking statute.”

The background for the present suit begins with an expropriation suit filed on March 7,1977, against Prentice Oil and Gas Company for condemnation of certain lands owned by Prentice, for construction of a proposed highway. Pursuant to the “quick-taking statute”, DOTD deposited the estimated just compensation into the registry of the Thirty-second Judicial District Court, Parish of Terrebonne. Prentice filed a motion to dismiss the taking, based upon the failure of DOTD to follow various statutory requirements. On September 13, 1977, the motion to dismiss was granted, and judgment was rendered in favor of Prentice. The judgment, in pertinent part, reads as follows:

“IT IS FURTHER ORDERED, ADJUDGED AND DECREED that any right of Prentice Oil and Gas Company for damages and/or attorney fees be and the same are reserved for further proceedings and I. Robert Boudreaux, Clerk of this Court is hereby ordered to retain the funds deposited by plaintiff in the registry of this Court in this proceeding on March 7,1977, and the proceeds resulting from the investment thereof, to satisfy any judgment which may be rendered in favor of Prentice Oil and Gas Company for damages and/or attorney fees.”

That judgment was not appealed by either party, and has now become final.

Subsequently, Prentice instituted the present suit against DOTD, as a separate action from the expropriation suit. This action is in the nature of a tort claim, with damages alleged as to attorney fees, deposition costs, physical damage to properties and trespass, loss of management time and personal disruption, and loss of use of properties, condemnation blight, and property being kept out of commerce. Prior to the trial, plaintiff abandoned its claims for physical damage and loss of management time. The parties stipulated that the rental value or the loss to Prentice for its property being taken out of commerce during the period of time the property was in possession of DOTD amounted to $20,182.00. The department took issue with the expenses of litigation, the award of attorney fees, and with the payment of any judgment rendered against it from the funds deposited in the registry of court. DOTD also objects to the awarding of interest on the judgment.

On the question of attorney fees and other expenses of litigation, the trial court applied LSA-R.S. 19:201, which reads in part as follows:

“A court of Louisiana having jurisdiction of a proceeding instituted by the State of Louisiana, a parish, a municipality or an agency of any of them vested with the power of expropriation, to acquire real property by expropriation, shall award the owner of any right, or title to, or interest in such real property such sum as will, in the opinion of the court, reimburse such owner for his reasonable attorney fees actually incurred because of the expropriation proceeding, if the final judgment is that the plaintiff cannot acquire the real property by expropriation or if the proceeding is abandoned by the plaintiff. Any such award shall be paid from the same funds from which the purchase price of the property would have been paid ...”

Thus, the cited statute clearly provides for reasonable attorney fees actually incurred by a landowner because of an unsuccessful expropriation suit. See Parish of Jefferson v. Harimaw, Inc., 297 So.2d 694 (La.App. 4 Cir.1974).

The trial court also considered that in the judgment in the expropriation suit there was reserved to Prentice the right to make a claim for any litigation expenses involved in that proceeding. We agree. Also, as noted by the trial judge, it is of no concern that the landowner chose to proceed in a separately numbered suit; it is proceeding out of rights reserved to it in the expropriation suit judgment.

On the question of attorney’s fees and litigation expenses, the trial judge made the following finding:

“Upon entering an agreement concerning attorneys fees the attorneys agreed to a contingent contract based on proving of an excess amount above the original estimate of just compensation within the expropriation suit itself. Prentice Oil & Gas and the attorneys did not contract any specific amount of attorneys fees or rate of attorneys in the event they were completely successful in defeating the expropriation.
“However, the attorneys were employed by Prentice Oil & Gas Company to oppose and defeat the expropriation wholly. The attorneys proceeded to do so and were totally successful.
“The court finds that the plaintiff actually contracted with the attorneys that the attorneys seek to totally defeat the expropriation by the State and even though no specific contract for attorneys fees in specific sums were contracted the plaintiff actually incurred an obligation to pay attorneys fees on the quantum merit [sic].
“The court finds that the plaintiff has proved that the reasonable attorneys fees which [were] actually incurred and are hereby recognized as proved on the quantum meruit, are as follows:
“To Mr. A.J. Gray, III $20,000.00
“To Mr. H. Minor Pipes $ 5,000.00
“TOTAL ATTORNEYS FEES $25,000.00
“The plaintiff has also proved the following expenses:
“Expenses paid by the law office of plaintiffs attorney Mr. Gray $2,569.28
“Other expenses paid by the plaintiff $1,824.13 $4,393.41”

The record fully substantiates the trial court’s finding. See Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The record reflects that counsel for the landowner, Prentice, were employed for the purpose of defending against the expropriation proceedings brought by DOTD. Any contention by DOTD to the contrary is unsubstantiated by the evidence. Counsel for Prentice explicitly stated that he was requested by Prentice “to attempt to defeat the taking of the property.” It is clear that the attorney fees in question were incurred by Prentice solely because of the condemnation proceeding and that such charges, which are the subject of the present lawsuit, are attributable only to the legal fees for the earlier condemnation proceeding.

DOTD states the trial court was “clearly wrong” in finding the attorneys entitled to $25,000 on a quantum meruit basis since no evidence was introduced to prove fees on that basis or in that amount. The record contradicts such contention. Following testimony of the details of the work involved in defeating the taking, and the typical hourly rates charged, A.J. Gray, III, one of the attorneys, testified as follows:

“... [W]hen you realize the complexity of the issues, the uniqueness of the case and the fact that it is res nova, or one of first impression — and I must say have been absolutely correct or there would have been an appeal — it’s the type of case where a premium fee would have been entirely justified. Had I rendered a bill at that time, I would have rendered a bill for $25,000, plus the expenses which I incurred.” (Emphasis added)

H. Minor Pipes also testified to the work performed and to his legal expertise in expropriation matters.

The Court in State v. Ransome, 392 So.2d 490 (La.App. 1 Cir.1980), set out the factors to be considered in awarding attorney fees, as follows:

“In considering reasonable attorney fees the Court must first consider these factors in awarding attorney fees, namely: (1) the ultimate result obtained; (2) responsibility incurred; (3) the importance of the litigation; (4) the amount involved; (5) the extent and character of the labor performed; (6) the legal knowledge and attainment and skill of the attorney; (7) the number of appearances made; (8) the intricacies of the facts and law involved; (9) the diligence and skill of counsel; and (10) the Court’s own knowledge.”

In making such an award, the trial court is vested with considerable discretion, and the award will not be disturbed in the absence of “clear abuse”. State, Department of Highways v. Terrebonne, 349 So.2d 936 (La.App. 1 Cir.1977), writ denied, 351 So.2d 166 (La.1977).

The Court in Terrebonne, 349 So.2d at 940, stated:

“It is well settled that a trial court is capable of assessing attorney’s fees without proof of the value thereof where such services are performed under the eye of the court. Cain v. Employers Casualty Company, 236 La. 1085, 110 So.2d 108 (1959); Thigpen v. Thigpen, 231 La. 206, 91 So.2d 12 (1956). In making awards for attorney’s fees, the trial court is vested with considerable discretion, the exercise of which will not be interfered with save in a case of clear abuse.”

There is no basis for disturbing the award for the expenses of litigation and the attorney fees actually incurred because of the expropriation’ proceeding.

Next we consider DOTD’s efforts to have the deposited funds released. The department urges that the funds must be returned to it, and that any award for expenses and attorney fees must come from an appropriation by the State Legislature. Appellant relies on LSA-R.S. 48:453 E and LSA-R.S. 13:5109-13:5112 in support of its position. These statutes are not applicable to the issues involved herein.

LSA-R.S. 48:453 concerns the measure of compensation “for the property expropriated,” and measure of damages “to the [landowners] ... remaining property.” The statute is inapplicable, both on its face and under the jurisprudence interpreting it. See, e.g., Louisiana Intrastate Gas Corporation v. Ledoux, 347 So.2d 4, 7 (La.App. 3 Cir.1977), writ refused, 350 So.2d 901 (La. 1977), where a taking was denied to a private company. In discussing an award of attorney fees for the unsuccessful taking, the Court discussed' LSA-R.S. 19:8 and 48:453, as follows (in footnote 3):

“LSA-R.S. 19:8 and LSA-R.S. 48:453 provide for attorney fees under certain conditions ... Neither statute can be applied herein. One applies to the ‘quick taking statute’ and both anticipate reaching the question of just compensation. The latter stage was not reached herein.” (Emphasis added)

Likewise, the question of “just compensation” was never reached in DOTD’s expropriation suit, since the taking was denied.

Contrary to appellant’s contention, Prentice is not attempting to “seize public funds” within the intendment of LSA-Const., Art. 12, § 10(C). Moreover, the jurisprudence has made it clear that LSA-R.S. 13:5112, upon which DOTD primarily relies, is applicable only to successful expropriation suits instituted by the department. See State Department of Transportation and Development v. Boyce Gin Cooperative, Inc., 397 So.2d 1087 (La.App. 3 Cir.1981). The statute has no application where a party is asserting certain rights which were reserved to it in a previous judgment. Appellant deposited $168,298.00 in the registry of the court. Prentice seeks recovery of $49,575.51 thereof, plus interest and costs, pursuant to the previous judgment. Prentice is entitled to have the deposited funds used to satisfy its judgment under the express judicial reservation to it.

Turning to the question of interest, the department argues that it was error for the lower court to award interest in this case. We find that under the express provisions of LSA-R.S. 48:455 the plaintiff is not entitled to interest. Hence, we must amend the judgment to exclude the allowance of interest.

Further, we conclude that the State is liable for all costs of these proceedings. See LSA-R.S. 13:4521; 13:5112; Hopkins v. Department of Highways, 364 So.2d 616 (La.App. 1 Cir.1978); Toomer v. City of Lake Charles, 392 So.2d 794 (La.App. 3 Cir. 1980), writ denied, 396 So.2d 931 (La.1981). We assess the State with costs in the amount of $246.48.

AMENDED AND, AS AMENDED, AFFIRMED.

      . LSA-R.S. 48:455 provides
      “The judgment rendered therein shall include as part of the just compensation awarded, legal interest on the amount finally awarded, as of the date title vests in the plaintiff to the date of payment, but interest shall not be allowed on so much thereof as has been deposited in the registry of the court.”


text:
    In the Matter of SUCCESSION OF Warren D. FARR.
    No. 82 CA 0074.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Writ Granted Dec. 10,1982.

      Ashton L. Stewart, Baton Rouge, for Mrs. Alice A. Farr and Louisiana National Bank.
    Carlos G. Spaht, Baton Rouge, for Presbyterian Church of Baton Rouge and Presbyterian Church of Cranbury, N.J.
    Robert D. Hoover, Baton Rouge, for certain defendants-appellees absentees.
    Frank W. Middleton, Jr., Baton Rouge, for Burden Memorial Hosp., Inc.
    John Dale Powers, Baton Rouge, for Baton Rouge Recreation and Park Comn.
    Charles H. Dameron, Baton Rouge, for Our Lady of the Lake Hosp., Inc.
    Paul M. Hebert, Jr., Baton Rouge, for Hosp. Affiliates Intern, d/b/a Doctors Memorial Hosp.
    Harvey H. Posner, Baton Rouge, for Woman’s Hosp. Foundation.

      Robert Roland, Baton Rouge, for Baton Rouge General Hosp.
    Before COVINGTON, LEAR and LANIER, JJ.
   COVINGTON, Judge.

This is an appeal by the First Presbyterian Church of Baton Rouge and the First Presbyterian Church of Cranbury, New Jersey, defendants, from a judgment of the district court, signed on December 7, 1981, in favor of plaintiff, Louisiana National Bank of Baton Rouge, as trustee of the Alice A. Farr Marital Trust and of the Warren D. Farr Residuary Trust, and against the defendants, declaring and decreeing:

“[T]hat the legacy under a universal title to the Alice A. Farr Marital Trust in the last will and testament of Warren D. Farr of ‘one-half (V2) of all my property, both movable and immovable and wherever located, owned at my death’ included one-half of all of the property left by Warren D. Farr at his death including, by way of illustration and not as a limitation, one-half of all of the shares of stock of General American Oil Company of Texas, and which legacy included at the termination of the said Alice A. Farr Marital Trust, on August 19, 1980, all of those properties, as set forth in Exhibit III-A, annexed to the petition in this matter, ... and that the residuary legacy to the Warren D. Farr Residuary Trust in the said last will and testament of Warren D. Farr ‘of the residue and remainder of my estate of every nature and description and wherever located owned at my death’ included only the residue of all of the property left by Warren D. Farr at his death, after the said legacy to the said Alice A. Farr Marital Trust, had been deducted, but subject to the other provisions of said last will and testament, and which residuary legacy only included at the termination of the said Warren D. Farr Residuary Trust on August 19,1980, those properties as set forth in Exhibit III-B, annexed to the petition in this matter...”

This cause commenced as a suit for declaratory judgment brought by the trustee of the two trusts created in the last will and testament of Warren D. Farr, deceased. Mr. Farr died, at the age of 86 years, on April 21, 1976, leaving his widow, Alice A. Farr, and collateral relatives, but no ascendants or descendants. In his testament, a nuncupative will under private signature, dated February 5,1971, he left certain movable property to his widow, and created two trusts which subsequently terminated by their own terms on the death of Mrs. Farr on August 19, 1980.

The Farr testament consists of five typewritten legal-size sheets and contains three dispositions: first, a bequest to his wife of certain movable property (which is not an issue in this case); second, a bequest to the bank in trust for his wife (the marital trust); and third a bequest in trust for his wife as income beneficiary and 25 others as principal beneficiaries, including the two churches (the residuary trust). There is an alternative bequest, which is of no moment since the contingency of the wife’s prior death did not happen.

The provisions of the testament pertinent to this suit are:

“Article II
2.1 To the Louisiana National Bank of Baton Rouge, Louisiana, as Trustee for my wife, Alice A. Farr, I will one-half (Vfc) of all my property, both movable and immovable and wherever located, owned at my death.
2.2 This trust is to be known as the Alice A. Farr Marital Trust and all of the income from this entire trust shall be paid to my wife during her lifetime annually, or, at the Trustee’s election at more frequent intervals. My wife shall have the full and unrestricted right to bequeath her entire interest in favor of her estate or to whomever she may see fit, and no person may divert any part of this to any other person than my wife.
2.3 If my wife, Alice A. Farr, survives me, then I will to Louisiana National Bank of Baton Rouge, Baton Rouge, Louisiana, as Trustee, all of the residue and remainder of my estate of every nature and description and wherever located owned at my death in a separate trust to be known as the Warren D. Farr Residuary Trust.
2.4 My wife, Alice A. Farr, shall be income beneficiary of the Warren D. Farr Residuary Trust for her lifetime. All trust income shall be payable to her at least annually or at more frequent intervals as agreed between my wife and trustee.
2.5 The hereinafter listed individuals and institutions are instituted as the principal beneficiaries and successive income beneficiaries of said Warren D. Farr Residuary Trust, in which trust the trustee shall hold all of the remainder of my estate, of every nature and description, for said beneficiaries until the death of the said Alice A. Farr, at the happening of which event the Warren D. Farr Residuary Trust shall terminate and its assets distributed to said beneficiaries, who shall take as special and residuary legatees of said trust funds, the residuary legatees, however, being distributed any other property I might own at my death. The said beneficiaries (and heirs) shall take said property in the following amounts and proportions, provided, however, that any asset not specifically disposed of, or accruing as a result of the death of any beneficiary or legatee shall be allotted to the residuary legatees.
Special:

In its petition, the trustee seeks a declaratory judgment decreeing that Mr. Farr’s testament bequeathed “one-half (%) of all” his property at his death to the marital trust in which the widow was named as both income and principal beneficiary and the “residue and remainder” of his estate, after payment of taxes, to the residuary trust in which Mrs. Farr was named as income beneficiary and 25 individuals and institutions as principal beneficiaries. Only the two churches have questioned the trustee’s construction of the will. They contend that under the specific language of the nun-cupative testament the shares of General American Oil should not be placed in the marital trust, but rather all of such stock belongs to the residuary trust (and now to the two churches).

Simply stated, the issue involved is the interpretation to be given certain language in the testament of the deceased. The only assets in dispute are the aforementioned shares of General American Oil. Specifically, the question is whether one-half of the stock, which was owned by Mr. Farr’s separate estate was left to the bank in trust for his wife (in the marital trust) and the remaining half left in the residuary trust, or whether all of said shares were left to the residuary trust.

We believe that the interpretation placed upon the testament by the trustee and confirmed by the district court is the correct one. We have carefully examined the testament, and the relevant codal articles and jurisprudence in connection therewith, and conclude that one-half of the stock was left to the marital trust and one-half to the residuary trust. All of said stock was not left to the residuary trust.

The function of the court is to determine and carry out the intention of the testator if it can be ascertained from the language of the will. This intention must be determined from the will as a whole, and effect must be given to every part of the will as far as the law will permit. No part of a will should be rejected, except that which the law makes it necessary to reject. Where it is a question of the choice between two interpretations, one of which will effectuate, and the other defeat, a testator’s intention, the court will choose the one which will effectuate. Courts have also recognized that in the interpretation of wills, the first and natural impression conveyed to the mind on reading the will as a whole is entitled to great weight. Moreover, in order to interpret a will the testator’s intention must be ascertained without departing from the proper significance of the terms of the will, LSA-C.C. art. 1712. The law presumes that the testator intends to dispose of all of his estate in the will if the will contains no declaration to the contrary. Principally, then, the court must endeavor to find out the testator’s intention. All of the rules are but means to that end. These principles of interpretation are sanctioned in Carter v. Succession of Carter, 332 So.2d 439 (La.1976); and. in Successions of Johnson v. Williams, 387 So.2d 1378 (La.App. 2 Cir.1980).

Assignment of Error No. 1

The churches contend that the trial court erred in finding that title to the trust property was in the trustee. They urge that in the case of Succession of Stewart, 301 So.2d 872 (La.1974), the court held that the bequest to a trustee is not made to it as owner or as beneficiary but rather “in trust” subject to the trust instrument. And, that the court held further that the trustee is charged only with the administration of the trust property for the benefit of the beneficiaries pending its distribution to them. We need only say that the Stewart case is factually distinguishable; that case was primarily concerned with holding that a bequest in trust for named beneficiaries did not constitute a prohibited substitution. Thus, we find that the interpretation of Succession of Stewart by the appellants is not controlling in the instant case and has no bearing on the question before this Court. In any event, it is inconsequential in the resolution of the case before us whether the title or ownership in the marital trust is in the bank as trustee, or in Mrs. Farr as beneficiary; the thing bequeathed is “one-half (Vz) of all my property.” By the same token, it is immaterial whether title or ownership is in the bank as trustee for the beneficiaries of the residuary trust, or in the beneficiaries; in either case, title is to “all of the residue and remainder” of Mr. Farr’s estate.

Assignment of Error No. 2

It is the appellants’ position that the trial court’s finding that “it was Farr’s intention to give the maximum amount to Mrs. Farr while minimizing the federal tax consequences” does not support the court’s ultimate conclusion that Mr. Farr intended that the churches receive only one-half, instead of all, of his shares of General American Oil. Appellants argue that, inasmuch as the value of Farr’s half interest in the community property exceeded the maximum amount of the marital deduction, he could have satisfied the marital deduction by the use of community property alone, without using any of his separate property. Then, the appellants surmise that Mr. Farr intended to treat his separate property differently than he treated his community property. This assignment is without merit. The will shows that Mr. Farr bequeathed to the marital trust “one-half (V2) of all my property.” This will does not exclude Farr’s separate property from this disposition, or limit the disposition to just community property. The disposition embraces a fractional part of all property, both community and separate.

In remarking on this issue, the trial judge said:

“It is inconceivable to this court that Farr intended to omit his largest single item of property and his only separate property when he established the marital trust using the words, ‘one-half (V2) of all my property.’ ”

Assignment of Error No. 3

In this assignment of error, the appellants argue that the trial court failed to give proper meaning to the language used by the testator himself in his testament. They assert that reference to the testament will show that it provides that at the death of the wife of the deceased, the residuary trust was to terminate and the assets distributed to “beneficiaries, who shall take as special and residuary legatees said trust funds ...” And, further, they point out that to each of the churches under “Special,” he bequeathed “50% of the total number of shares of stock owned by me in General American Oil at my death.” In this assignment of error, appellants complain that the trial court ignored the principle that a court must give meaning to all testamentary language. From our reading of the trial judge’s reasons for judgment, we believe that, rather than disregarding the foregoing rule of interpretation, he gave full measure to it. Pertinent herein is the rule that a court must give meaning to all testamentary language in a will and avoid an interpretation which renders such language meaningless or reduces it to surplusage. Succession of Waterman, 298 So.2d 731 (La.1974); Succession of Griffin, 366 So.2d 1029 (La.App. 1 Cir.1978). It appears that the court relied on the words of the will in their entirety in order to determine the intention of the testator.

If only the “special” dispositions were considered, it might be arguable that the testator intended each church to have 50% of all General American Oil shares at his death. Considering however, the language of the will in its entirety and, including particularly the disposition to the marital trust of one-half of “all my property,” it appears to us that Mr. Farr intended that all of his property, of whatever nature, whether community or separate, was to be included within that disposition. Moreover, the testator used the language “no person may divert any part of this to any other person than my wife.” It is clear that Mr. Farr’s wife was to come first in his testament; all other dispositions were subject to her favored treatment, as indicated. To hold otherwise would be to completely ignore the language of the disposition to the marital trust, as well as the language of the will in its entirety, which clearly reflects the intent of the testator that his wife share in all property.

Assignment of Error No. 4

Finally, the appellants submit that the trial court erred in failing to conclude that it was the testator’s intention to will and bequeath to the two churches exactly what he specified, to-wit: to each “50% of the total number of shares of stock owned by me in General American Oil at my death.” From the record, and especially the language of the will in its entirety, we deem that the testator intended to leave his wife one-half of all his property, without exception. The deceased’s will, while fairly lengthy, is relatively simple. Mr. Farr made only three dispositions: first, a bequest to his wife of certain movable property (which is not an issue before us); second, a bequest to Louisiana National Bank in trust for his wife (as both income and principal beneficiary); and third, a bequest to the bank in trust for his wife as income beneficiary, and for some twenty-five parties as principal and successor income beneficiaries, including the two Presbyterian churches opposing the declaratory judgment. There was also an alternative bequest in the event his wife predeceased him.

There is certainly no ambiguity in either paragraphs 2.1 or 2.3. The deceased left one-half of all of his property to his wife, in trust. He left in trust, for the benefit of the named income and principal beneficiaries, all of the residue and remainder of his estate. However, if we were to consider that the reference in paragraph 2.5 to the interest of the two churches as principal beneficiaries in the residue of the residuary trust causes an ambiguity, the will construed as a whole makes the intention of the testator clear. In paragraph 2.2 all income from the marital trust is to be paid to Mrs. Farr, she is to have unrestricted right to bequeath her entire estate to whomever she may see fit, and no one is to divert any part thereof to any one other than the wife. In addition, in paragraph 2.4 she is named as the income beneficiary for life of the residuary trust, under paragraph 5.3, legacies to her are to be free of death taxes, which are to be borne by the residuary legatees. Furthermore, the language which appellants contend encompasses all of the shares of General American Oil is subordinate to the bequest to the trust, of which the named churches are but two of the twenty-five named principal beneficiaries. Their bequest was of the “residue and remainder,” and not all of the particular stock. We consider the contention of the appellants to the contrary to be a strained interpretation of the testament, running contrary to well-established rules of testamentary interpretation set out above.

Moreover, to construe the language of the will relative to the stock to mean that the testator intended to leave 100% of such stock to the churches would require a finding that the testator had revoked, in part, his earlier bequest of one-half of all property to the marital trust. Such a revocation cannot be read into this will. The test of whether a legacy in a will is revoked by another legacy in the same will is whether the intention of the testator to revoke is expressed and unequivocal. Succession of Mulqueeny, 248 La. 659, 181 So.2d 384 (1965). We do not find an expressed and unequivocal revocation of any legacy in the will involved in the case at bar. On this same point, the appellants contend that under the definition of a particular legacy, LSA-C.C. art. 1625, they are particular legatees, and as such, under LSA-C.C. art. 1634, they are entitled to have their particular legacies discharged in preference to all other legacies. There is no merit in this contention. The bequest to each church was not a particular legacy. The disposi-tive language of the will distinctly leaves “all of the residue and remainder of my estate” in the residuary trust. Under the settled jurisprudence of this state, this bequest of the “residue and remainder” is a universal legacy, pursuant to LSA-C.C. art. 1606. Succession of Bannon, 341 So.2d 623 (La.App. 4 Cir.1977). Hence, the rules which apply to particular legacies are inapplicable to the instant dispositions.

Furthermore, even if we were to hold that the legacy in question is a particular legacy, rather than a universal legacy, the appellants’ problem would not be solved. We have a question of “what thing” was left to the churches, not a question of discharging it in preference to any other legacy. We find that the bequest to the residuary trust, in which the churches were named as principal beneficiaries, constituted a bequest of the residuum of the estate, one-half of which had already been granted to the marital trust in the same testament, so that only one-half of the stock in General American Oil was available for distribution to the churches as principal beneficiaries. The other half had already been given to the marital trust for the benefit of Mrs. Farr as principal beneficiary, and was, therefore, in her estate when she died.

These are the main questions which have been presented. The views we have expressed lead to the same conclusion that was reached by the trial judge; accordingly, we affirm the judgment appealed at the appellants’ costs.

AFFIRMED.

      . The defendants in this case are: the First Presbyterian Church of Baton Rouge and the First Presbyterian Church of Cranbury, New Jersey, each of whom filed answers contesting the plaintiff’s petition; and Warren David McNeely, Warren Lewis Tash, Mrs. Simon M. McNeely, Mrs. Everett Erickson, David Farr, Mrs. Clarence Cambell, Farr Chamberlin, Richard Christenson, Mrs. J.R. Peterson, Lewis Chamberlin, Jr., Mrs. Dorothy Clayton, Barry S. Clayton, Wilton Clayton, Jr., Carol Aaronsen and Alex T. Farr, all of whom being absentees appeared through Robert D. Hoover, the attorney ad hoc appointed by the court to represent them; Sidney V. Arbour, Mrs. Ted Tomeny, Burden Memorial Hospital, Inc., for the use and benefit of the Ollie Steele Burden Manor, Baton Rouge, Louisiana, Our Lady of the Lake Hospital, Inc., Baton Rouge, Louisiana, Woman’s Hospital Foundation, Baton Rouge, Louisiana, Baton Rouge General Hospital, as trustee, in trust to provide for the health and welfare of its patients, their families, through the Baton Rouge General Hospital Auxiliary (Pink Ladies), Hospital Affiliates, International, d/b/a Doctors Memorial Hospital, Baton Rouge, Louisiana, and Recreation and Park Commission of the Parish of East Baton Rouge, Louisiana, all of whom concurred in the prayer of the plaintiffs petition.

      . Mrs. Farr named the following as her residuary legatees: Burden Memorial Hospital, Inc. for the use and benefit of the Ollie Steele Burden Manor, Baton Rouge, Louisiana, Our Lady of the Lake Hospital, Inc., Baton Rouge, Louisiana, Woman’s Hospital Foundation, Baton Rouge, Louisiana, Baton Rouge General Hospital, as trustee, in trust to provide for the health and welfare of its patients, their families, through the Baton Rouge General Hospital Auxiliary (Pink Ladies), Doctors Memorial Hospital, Inc., Baton Rouge, Louisiana, and Recreation and Park Commission of the Parish of East Baton Rouge, Louisiana.


text:
    Terry W. MAYEAUX v. DEPARTMENT OF STATE CIVIL SERVICE.
    No. 82 CA 0094.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.

      Frank P. Trosclair, Jr., Taylor & Tros-clair, Opelousas, for appellant.
    Laura Denson Holmes, Dept, of Civil Service, Baton Rouge, for appellee.
    Before COVINGTON, LEAR and LANIER, JJ.
   COVINGTON, Judge.

This is an appeal by Terry W. Mayeaux, an employee of the Department of Health and Human Resources of the State of Louisiana, classified in 1979, as Welfare Case Supervisor I, from the decision of the State Civil Service Commission granting summary disposition of the matter and dismissing the appeal of Mayeaux.

The appeal arises out of the establishment of two classifications of personnel: Eligibility Determinations Supervisor I and Human Service Supervisor. On August 27, 1979, the Director of the Department of State Civil Service gave interim approval for the establishment of the two classes with the following pay ranges:

Eligibility Determinations
Supervisor I $ 931-1541
Human Service Supervisor 1200-1885

By letter dated September 24, 1979, May-eaux, who had been reclassified as Eligibility Determinations Supervisor I, sought to appeal the difference in pay between the two classifications. He alleged that the two classes were formerly a single class (Welfare Supervisor I) and had identical qualifications and pay. Appellant also alleged that the duties of a Human Service Supervisor are equal to or less than those of an Eligibility Determinations Supervisor I and the qualifications for the jobs are the same and thus, the pay ranges are discriminatory.

This letter was not docketed as an appeal, but was sent to the Classification and Pay Section, which responded to Mayeaux by letter from the Chief of the Section, dated November 29,1979 outlining the reasons for the pay differential between the two classes.

By letter dated December 13, 1979, May-eaux presented his reasons for rejecting the explanation given him by the Chief of the Section, complained of the difference in pay, and requested that his letter be docketed as an appeal. In response, the General Counsel, wrote to appellant on January 23, 1980, informing Mayeaux that the appeal was not being docketed and advising him that a public pay plan hearing was the proper forum for such an issue.

Appellant insisted on his appeal, and by letter of March 3, 1980, Mayeaux complained as follows:

“It isn’t because of a discrepancy or an unfair or unwise Civil Service Rule regarding the pay plan of the Eligibility Determinations Supervisor I. vs. the Human Service Supervisor that I am requesting an appeal hearing; it is because there is discrimination involved. All Eligibility Determinations Supervisor I’s are being discriminated against by having such an ‘out of line’ pay plan when compared with the Human Service Supervisors who have similar qualifications, duties and responsibilities.” (Emphasis by the appellant.)

Thereafter, on July 1,1980, a public hearing was held to consider classification and pay matters. Subsequently, the Commission approved the establishment of the two classes and approved an increase in the two ranges of pay. As promulgated as of September 1, 1980, the plan contained the following pay ranges:

Eligibility Determinations
Supervisor I $1131 - 1690
Human Service Supervisor 1316 - 2067

The pay plan was approved by the Governor on July 30, 1980.

A request for summary disposition of the appeal was filed by the Department, which the appellant opposed. A hearing was held on the request for summary disposition on September 1, 1981; and, thereafter, on November 6,1981, the Commission granted the request for summary disposition and dismissed the appeal.

The primary issue in the instant case is whether the appellant has stated a legal ground for an appeal of the pay plan implemented by the Department of Civil Service. After review of the record, we conclude that he has not stated a legal ground for an appeal. This ease falls within Civil Service Rule 13.34, which reads as follows:

“No appeal to the Commission shall lie from the adoption by the Commission, after public hearing, of a Classification Plan, a Pay Plan, or any Rule, or of any Amendment to said Plans or Rule.”

The record reflects that a public hearing was held on the pay plan. In the recent case of Clark v. Department of Transportation and Development, 413 So.2d 573 (La. App. 1 Cir.1982), we held that the quoted rule was valid, and barred an appeal of the establishment of classifications and pay ranges. We adhere to the Clark decision, and find it dispositive of this issue.

Appellant argues also that the State Civil Service Commission erred in finding that the letter of appeal failed to comply with the requirements of Rule 13.11(d).

This rule reads as follows:

“A notice of appeal must
(d) Contain a clear and concise statement of the actions complained against and a clear and concise statement of the basis of the appeal. Where discrimination is alleged to be a basis for appeal, specific facts supporting the conclusion of discrimination must be alleged in detail

It is appellant’s contention that he alleged discrimination, in that a pay plan adopted by the Department, which reallocated the class of Welfare Case Supervisor I to other classes, was discriminatory in the pay differential treatment in pay between Eligibility Determinations Supervisor I and Human Service Supervisor because the qualifications of the two were identical and the duties and responsibilities of the Eligibility Determinations Supervisor I were equal to or greater than those of Human Service Supervisor.

While there is no right to appeal classification and pay plans, an appeal may be considered by the Commission if “discrimination” is involved. Rule 13.10(i) allows an appeal if an employee alleges that he has been discriminated against by official action taken by the Director. Rule 13.10(e) allows an appeal if he alleges that he has been discriminated against by an application of the pay plan.

At the time this appeal was filed with the Commission, the aforementioned two classes had been established by the Director, in accordance with the provisions of Civil Service Rule 3.1(n). As such, the only basis for appeal which might be available to the appellant is that set out in Rule 13.10(i), which provides:

“An appeal may be made to this Commission by
(i) Any person who alleges that he has been discriminated against by any official action taken by the Director ...”

It is not sufficient to satisfy this rule that the appellant merely recite that a particular action of the Director was discriminatory. Pursuant to Rule 13.11(d), quoted above, specific facts delineating the discriminatory action must be alleged in detail.

The rules of the Commission have the force and effect of law. La.Const.1974, Article 10, Section 10(A)(4); Pelletier v. Executive Department, Division of State Buildings and Grounds, 331 So.2d 72 (La. App. 1 Cir.1976). Thus, so long as the Commission’s rules are reasonable and not viola-tive of basic constitutional rights, they must be recognized and given effect by the courts. Heinberg v. Department of Employment Security, 256 So.2d 747 (La.App. 1 Cir.1971), writ refused, 260 La. 1135, 258 So.2d 381 (1972).

In LeGros v. Department of Public Safety, Division of State Police, 364 So.2d 162 (La.App. 1 Cir.1978), writ denied, 366 So.2d 562 (La.1979), the court stated:

“The obvious purpose of Rule 13.11(d) is to insure the appointing authority the same degree of specificity concerning its alleged discrimination as the employee is entitled to receive with respect to the charges on which the disciplinary action is predicated. The requirement is reasonable in that it relieves the appointing authority of the disadvantage of having to defend against vague and unspecified charges of discrimination and thereby clearly defines the scope of the hearing before the Commission.”

We find that the appellant has failed to comply with the requirements of Rule 13.11(d); such failure renders the appeal ineffective. See Civil Service Rule 13.-12(a); Toms v. Louisiana Health & Human Resources Administration, Division of Management, 349 So.2d 941 (La.App. 1 Cir. 1977), writ denied, 351 So.2d 162 (La.1977).

As stated above, Rule 13.10(e) allows an appeal where an employee claims the application of the pay plan discriminates against him. A careful reading of the appellant’s notice of appeal indicates that Mayeaux believes that an Eligibility Determinations Supervisor I should earn as much, or have the same pay range, as a Human Service Supervisor, and since that classification has a lower pay range than that of Human Service Supervisor, he has been discriminated against. We do not find that Rule 13.10(e) is applicable to this situation. We believe that the cited rule envisions a situation where an employee alleges that he is not earning the same pay as another employee filling the same position. See Hollingsworth v. State, Department of Public Safety, 354 So.2d 1058 (La.App. 1 Cir.1977), writ denied, 356 So.2d 1010 (La.1978). Appellant has not alleged that he is being paid any differently than any other employee in the same class; rather, he claims that he does not fall within the same pay range as persons occupying Human Service Supervisory positions. Rule 13.-10(e) does not apply to this situation.

In its decision, the Commission stated: Appellant admits in his letter that the application of the pay plan did not involve any discrimination since all employees of the state service with a similar classification as his received the same pay scale adjustment by the application of the pay plan which the Commission adopted. The only other “discrimination” that could be inferred was discrimination in the establishment of two classes, in lieu of one class, of a different name and pay scale. Appellant sets out that the former single class of Welfare Case Supervisor I was split into two classes of Human Service Supervisor and Eligibility Determinations Supervisor I. The pay scales, after being divided, were different. Appellant first alleged that the qualifications established for the two separate classes were “identical”. In the next letter, appellant admits that there are differences in the qualifications but disagrees that such differences warrant such a difference in salary range. Finally, appellant, in the last letter, concludes that the qualifications are “similar”. No specific facts whatsoever are alleged to support these three various conclusions. The Commission, upon taking judicial notice of the qualification requirements it adopted for these two different classifications, notes that there are indeed significant differences in the qualifications for the two positions. The Human Service Supervisor position requires graduation from a four year college or university plus four (4) years of professional level experience in social service work of which three (3) years must be above the beginning level. The qualifications for an Eligibility Determination Supervisor I requires graduation from a four (4) year college or university plus two (2) years of full time professional level social work experience. Additionally, the Commission notes that an Eligibility Determination Supervisor I is the first of four possible levels up to and including Eligibility Determination Supervisor IV which classification, if reached, would carry a higher pay scale than the highest attained as a Human Service Supervisor. The appellant concludes that the qualifications are “identical, similar, or insignificant”. The appellant, however, does not allege any specific facts to support a conclusion if proven. The Commission finds therefore that the appeal is subject to summary disposition for failure to conform with the requirements of Civil Service Rule 13.11(d).

We find that the record supports the decision of the Commission. We, thus, find no merit in any of the appellant’s contentions. Accordingly, for the above reasons, the decision of the Civil Service Commission is affirmed at Appellant’s cost.

AFFIRMED.


author: WATKINS, Judge.

text:
    Rosemary Campbell BROWN v. Billy Edwin BROWN.
    No. 82 CA 0579.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1982.
    Charles R. Ryan, Houma, for plaintiff-ap-pellee Rosemary Campbell Brown.
    Randall M. Alfred, Houma, for defendant-appellant Lafourche Parish School Bd.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   ON MOTION TO DISMISS

WATKINS, Judge.

This is an appeal from a judgment granting Rosemary Campbell Brown a divorce from Billy Edwin Brown, and ordering that Billy Edwin Brown pay alimony in the sum of $350.00 per month. Billy Edwin Brown has appealed. We find the appeal order was signed before judgment and that the attempted appeal, therefore, is of no effect.

The relevant dates are as follows:

Case tried and oral reasons announced May 10,1982
Appeal order signed May 11,1982
Judgment signed May 12,1982
LSA-C.C.P. art. 1911 reads as follows:
“Except as otherwise provided by law, every judgment shall be signed by the judge. For the purpose of an appeal as provided in Article 2083, no appeal may be taken from a final judgment until the requirement of this Article has been fulfilled.”

This article was amended into its present form by Act 618 of 1979. This article, after amendment, could not be more explicit. No appeal can be taken until there is a final judgment signed by the trial judge.

In Schiro v. Viola, 398 So.2d 1294 (La.App. 1st Cir.1981), we stated that an appeal may be taken only from a signed judgment, not from written or oral reasons for judgment. As we noted in Sehiro, the Louisiana Supreme Court reinstated an appeal from reasons for judgment in In the Matter of Parker, 399 So.2d 607 (La.1981), but because of the memorandum nature of the Supreme Court’s opinion in Parker, we are unable to determine what unknown factors motivated the Supreme Court’s decision. Furthermore, in the present case, a case in which both parties sought a judgment of divorce on the grounds of adultery, the decisional portion of the trial court’s oral reasons for judgment simply stated, “Now I don’t think that any of the evidence is so circumstantial as to preclude any other reasonable hypothesis that they were having adultery. I would let it go on that.”- The appeal was taken after that assertion in oral reasons, rather than after formal judgment. Unlike the situation in Parker, there was no language in the present case to suggest that the reasons for judgment constituted a formal judgment of court. No divorce had been proclaimed when the appeal order was signed, and the appeal must be dismissed, as there was no signed judgment or even definitive judgment from which to appeal.

We dismiss the appeal of Billy Edwin Brown, at appellant’s cost.

APPEAL DISMISSED.


author: DOMENGEAUX, Judge.

text:
    RAPIDES MERCHANTS ASSOCIATION, et al., Plaintiffs-Appellants, v. RAPIDES PARISH POLICE JURY, Defendant-Appellee.
    No. 8853.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.
    Rehearing Denied Dec. 2, 1982.
    Writs Denied Feb. 4, 1983.

      Chris J. Roy, Alexandria, for plaintiffs-appellants.
    Edwin 0. Ware and Gus Yoltz, Jr., Dan E. Melichar, Alexandria, Oliver Williams, Baton Rouge, for defendant-appellee.
    Before DOMENGEAUX, DOUCET and YELVERTON, JJ.
   DOMENGEAUX, Judge.

This case was consolidated on appeal with that of Rapides Merchants Association, et al. v. Rapides Parish Police Jury, et al., 421 So.2d 955 (La.App. 3rd Cir.1982) (our number 82-210). Inasmuch as the relevant facts are common to both lawsuits, we adopt by reference those facts prescribed by us in the consolidated case.

This suit was instituted by plaintiffs in an attempt to enjoin the Rapides Parish Police Jury from enacting Ordinance X. The trial court held for defendant dismissing plaintiff’s suit. We affirm.

We ascertain the issues on appeal to be:

1. Whether or not the trial court erred in finding that plaintiff’s petition failed to allege facts sufficient to establish a cause of action under La.R.S. 18:1401, et seq.; and

2. Whether or not the delegation of authority by the state legislature to local political subdivisions to hold local option elections is constitutional?

The trial court held that plaintiff’s petition failed to state a cause of action challenging the election results inasmuch as they failed to allege that “except for irregularities or fraud in the conduct of the election the result would have been different.”

La.R.S. 18:1401(C) provides:

“A person in interest may bring an action contesting any election in which any proposition is submitted to the voters if he alleges that except for irregularities or fraud in the conduct of an election the result would have been different.”

There can be no question but that La.R.S. 18:1401(C) supra requires that in order to state a cause of action challenging election results it is incumbent upon petitioners to allege that but for any irregularities or fraud in the elections the result would have been different. Plaintiffs, in their petition challenging the propriety of the local option election held in Wards 9,10, and 11 of Rapides Parish, fail to make any such allegation. Accordingly, we find that the trial judge correctly dismissed their suit on these grounds.

Additionally, plaintiffs contend that the legislative attempt to delegate its authority to regulate the sale, production, consumption, etc., of alcoholic beverages is an unconstitutional exercise of its power. Our courts have held time and time again that the Legislature possesses the authority to delegate to local governing bodies the right to enforce the will of the electorate as expressed through the outcome of local option elections. See State v. Sissons, 292 So.2d 523 (La.1974); Nomey v. State, 315 So.2d 709 (La.1975); Wyatt v. Vernon Parish Police Jury, 341 So.2d 468 (La.App. 3rd Cir.1977), writ refused 342 So.2d 677 (La.1977); and McGee v. Police Jury of Caddo Parish, 73 So.2d 424 (La.1954). We have reviewed plaintiffs’ constitutional attack, and find it to be without merit. Therefore, we affirm the judgment of the court below upholding the constitutionality of the local option statutes La.R.S. 26:581, et seq.

For the above and foregoing reasons the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.

      . Initially, plaintiffs failed to file a brief within 60 days in accordance with a then existing internal rule of this Court, and their appeal was dismissed by us. Subsequently, the Louisiana Supreme Court held that our 60 day rule was invalid, and reinstated the plaintiffs’ appeal. Although this appeal is now before us as being consolidated with Rapides Merchants Association, et al v. Rapides Parish Police Jury, et al, (our # 82-210), plaintiffs still have not filed any brief in this case with us, therefore, we assume as issues those prescribed to the court below.

      . Although defendant did not file an exception of no cause of action, La.C.C.P. Art. 927 allows the court to recognize the exception on its own motion.


text:
    RAPIDES MERCHANTS ASSOCIATION, et al., Plaintiffs-Appellants, v. RAPIDES PARISH POLICE JURY and Marshall T. Cappel, Sheriff, Defendants-Appellees.
    No. 82-210.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 13, 1982.
    Rehearing Denied Dec. 2, 1982.
    Writs Denied Feb. 4,1983.
    Chris J. Roy, Alexandria, for plaintiffs-appellants.
    Edwin 0. Ware and Gus Voltz, Jr., Dan E. Melichar, Alexandria, Oliver Williams, Baton Rouge, for defendant-appellee.
    Before DOMENGEAUX, DOUCET and YELVERTON, JJ.
   DOMENGEAUX, Judge.

This case was consolidated on appeal with that of Rapides Merchants Association, et al v. Rapides Parish Police Jury, 421 So.2d 953 (La.App. 3rd Cir.1982) (our docket number 8853), and as the law and relevant facts are common to both suits, our opinion herein, where appropriate, is equally applicable to each. Additionally, we render a separate judgment in the consolidated case.

Plaintiffs, Thomas O’Neal, Ben Givens, Pauline Givens, and Raymond Folse, individually and as members of the Rapides Parish Merchants Association, and the said Rapides Parish Merchants Association, instituted this action for a declaratory judgment and for injunctive relief against defendants, Rapides Parish Police Jury and Marshall T. Cappel, Sheriff of Rapides Parish. The petitioners seek a judgment decreeing local option elections held in Wards 9, 10, and 11 of Rapides Parish on October 17, 1981, and an ordinance (Ordinance X) adopted by the Rapides Parish Police Jury pursuant to those elections, to be declared illegal, null, void, and unenforceable. They also prayed for judgment enjoining the Sheriff of Rapides Parish and his agents or employees from enforcing Ordinance X.

Defendants filed exceptions of lis pen-dens and no right of action. Defendants’ exception of lis pendens was sustained in part by the trial court insofar as allegations of the present suit reiterates allegations raised in suit number 8853. The exception of no right of action was referred to the merits.

After trial of the rule directing the Sheriff to show cause why a preliminary injunction should not be granted, judgment was rendered by the trial judge rejecting plaintiff’s demands for such an injunction. The plaintiffs appealed.

The substantial issues presented in this suit on appeal are:

1. Does the Rapides Parish Police Jury have the authority to restrict the sale, manufacturing, producing, etc., of beverages containing 3.2 percent alcohol by weight and less?

2. Is Ordinance X consonant with the proposition submitted to the electorate?

FACTS

After having been properly presented with a petition to call local option elections under La.R.S. 26:582 et seq., the Rapides Parish Police Jury called elections in Wards 9, 10, and 11 of the parish for October 17, 1981. The City of Pineville is located in part in Ward 9 of Rapides Parish. The Ward extends outside of the incorporated limits of the City, and the City also extends into Ward 10 of Rapides Parish. Ward 11 is rural. La.R.S. 26:582 generally provides that in this situation the result of the election shall be binding upon both the incorporated and unincorporated parts of the Ward. In other words, the results are counted and tabulated separately, and this is true for each proposition.

Four propositions were submitted and the results separately tabulated for the areas outside incorporated municipalities and the areas inside municipalities. The propositions read as follows:

“PROPOSITION NO. 1
Shall the sale of beverages of low alcoholic content containing more than three and two-tenths percent alcohol by weight and not more than six percent alcohol by volume be permitted in Ward Nine, Rap-ides Parish, Louisiana?
PROPOSITION NO. 2
Shall the sale of beverages containing more than one-half of one percent alcohol by volume, but not more than three and two-tenths percent alcohol by weight be permitted in Ward Nine, Rapides Parish, Louisiana?
PROPOSITION NO. 3
Shall the sale of beverages of high alcoholic content containing more than six percent alcohol by volume for consumption on the premises be permitted in Ward Nine, Rapides Parish, Louisiana?
PROPOSITION NO. 4
Shall the sale of beverages of high alcoholic content containing more than six percent alcohol by volume be permitted by package only and not for consumption on the premises in Ward Nine, Rapides Parish, Louisiana?”

All propositions failed except the proposition permitting the sale of beverages containing more than 3.2 percent alcohol by weight, but not more than 6 percent alcohol by volume (Proposition No. 1) passed in that area of Ward 9 which is outside of the city limits of Pineville.

On October 27, 1981, the Police Jury met and promulgated the results of the election. Subsequently, on December 15, 1981, the Police Jury met and, pursuant to the previous election, enacted Ordinance X the pertinent provisions of which state as follows:

“Section 4. The sale of beverages of low alcoholic content containing more than one-half of one percent alcohol by volume but not more than three and two tenths percent alcohol by weight and the sale of beverages of high alcoholic content containing more than six percent alcohol by volume, whether for sale for consumption on the premises or by package is prohibited in Ward Nine outside the corporate limits of Pineville, Rapides Parish, Louisiana.
Section 5. The sale of beverages of low alcoholic content containing more than one-half of one percent alcohol by volume but not more than six percent alcohol by volume, and the sale of beverages of high alcoholic content containing more than six percent alcohol by volume, whether for sale for consumption on the premises or by package is prohibited in Ward Ten outside the incorporated limits in Rapides Parish, Louisiana.
Section 6. The sale of beverages of low alcoholic content containing more than one-half of one percent alcohol by volume but not more than six percent alcohol by volume, and the sale of beverages of high alcoholic content containing more than six percent alcohol by volume, whether for sale for consumption on the premises or by package is prohibited in Ward Eleven.”

Suit was filed by the plaintiffs to enjoin the passage of an ordinance in compliance with the election results. That suit # 8853, consolidated herein, was dismissed after hearing on the preliminary injunction.

On January 4, 1982, this suit was filed with almost the same allegations as the first suit, but seeking to enjoin the enforcement of the ordinance adopted by the Rap-ides Parish Police Jury (Ordinance X). Both suits contest the constitutionality of the local option election laws, but this suit also contests the validity of the Police Jury ordinance.

Plaintiffs contend that Ordinance X is ultra vires inasmuch as the State has not delegated the power to regulate alcoholic beverages containing 3.2 percent alcohol by weight or less to its political subdivisions. We disagree.

As noted by the trial judge, the right of local governments to control the sale of 3.2 beer has had a long and interesting history in both the legislative and judicial branches of government. Since 1948 by Act No. 372 of the 1948 Regular Session of the Louisiana Legislature, the State has attempted to reserve unto itself the right, at least in part, to regulate the sale, manufacture, production, etc., of 3.2 beer. Since that time Courts of this State have universally held that Section 588 prohibited local governing bodies from regulating beverages containing 3.2 percent alcohol by weight or less. State v. Sissons, 292 So.2d 523 (La.1974); Harper v. State, Department of Revenue, 328 So.2d 669 (La.1976); Helverson v. Rapides Parish Police Jury, 391 So.2d 516 (La. App. 3rd Cir.1980), writ denied 396 So.2d 1325 (La.1981).

By Act No. 663 of the 1980 Regular Session of the Louisiana Legislature, the Legislature repealed Section 588 in its entirety, and thereby, in our opinion, obviously intended to open the door to local political subdivisions to regulate and/or prohibit beverages containing under 3.2 percent alcohol. In short, by repealing Section 588 the Legislature chose to delegate its right to regulate or control said beverages to the local governing bodies. Consequently, plaintiffs claim that Ordinance X is ultra vires because it purports to regulate beverages containing 3.2 percent alcohol and less is without merit.

Plaintiffs next contend that Ordinance X is not consonant with the proposition submitted to the electorate. More particularly, plaintiffs claim that Proposition 1, supra, which was the only proposition to pass in Ward 9 outside the City of Pineville, varies from Section 4 of Ordinance X, supra. We disagree.

It is evident even from a casual reading of Proposition 1 and Ordinance X, Section 4, that they purport to restrict the same activity in Ward 9 outside the City of Pineville. They both prohibit the sale of any alcoholic beverages other than beverages containing more than 3.2 percent alcohol by weight but not more than 6 percent alcohol by volume. Ergo plaintiffs’ contention is without merit.

For the above and foregoing reasons the judgment of the district court is affirmed at appellants’ costs.

AFFIRMED.

      . The two cases were not consolidated on the trial level. The appeal of No. 8853 was pending when the present suit was tried.

      . The trial judge refused to grant the injunction sustaining defendants’ exception of no right of action.

      . We address the constitutional issues raised in both suits in the consolidated case herein (our # 8853).

      . Section 2 of Act 2 of the Extraordinary Session of 1950 repealed Act 372 of 1948, and local option laws were enacted as La.R.S. 26:581-596.

      .Ibid.