author: McBRIDE, Judge.

text:
    W. D. WALKER & SON v. MARKEY.
    No. 19207.
    Court of Appeal of Louisiana. Orleans.
    May 9, 1949.
    Rehearing Denied May 23, 1949.
    Matthew A. Grace, New Orleans, for plaintiff and appellee.
    J. L. Warren Woodville, New Orleans, for defendant and appellant.
   McBRIDE, Judge.

Plaintiff, a partnership composed of W. D. Walker and his son, Olander B. Walker, which, under a written contract dated June 10, 1948, undertook to level to its previous standing a double house owned by defendant, for a stipulated price of $590.00, brings this suit against defendant seeking to recover $190.00, the alleged unpaid balance due on the contract, plus $43.00 for extra work. Defendant, in his answer, avers that the contract was never fully performed, and that whatever work was done was so imperfect that it was necessary that he employ the services of another contractor at a cost of $378.00. Defendant alleged that the extra work amounted to $16.00, and not $43.00 as claimed in the petition. Defendant prayed for the dismissal of the suit, and for $188.00 in reconvention. This appeal has been taken by defendant from the judgment below, which awarded plaintiff the amount sued for and dismissed the reconventional demand.

Defendant paid plaintiff $200.00 upon the confection of the contract, and another $200.00 on Saturday, July 3, 1948, thus leaving the alleged balance of $190.00. The salient point in the case is the status of the work as of the date of the payment of the second $200.00. Both Walkers testified that all of their work had been fully and completely performed, and that the defendant then owed them $390.00 under the contract, plus $43.00 for the extra work, but that he refused to pay the full amount and paid only $200.00, withholding the balance because of his claim that the electric wires in the house had been damaged by plaintiff. On the other hand, defendant advances a different version. He claims that the $200.00 constituted an .advance which he made to the Walkers at their request, in order that they might meet their weekly payroll. Defendant asserted that the job was not finished at the time, and that jacks and other equipment belonging to plaintiff were still under the house. This the Walkers vehemently deny. They state that all of their jacks and equipment had been removed a few days previously, and were actually being used at the time on another job in the neighborhood.

The parties concede that there was some discussion regarding the electrical wiring in the house. On the same day, but after the $200.00 was paid, plaintiff sent to the scene a workman, who found that the difficulty existing in the electrical wiring system emanated from a burned out fuse, which he promptly replaced.

The Walkers returned on the following Monday. The testimony of the younger Walker intimates that the defendant was not at home then. However, defendant’s story is that he was there when the Walkers called on Monday, and_ that he spoke to them about completing the job. The import of the Walkers’ testimony is that they had no conversation with the defendant, but that they spoke with defendant’s brother, and that the brother complained that some sills had not been changed and that the contract, in that respect, had not been complied with.

On the following day, plaintiff placed the matter in the hands of an attorney, who made demand by letter upon defendant for the payment of the balance due on the contract and for the amount of the extra work. Defendant’s testimony is that upon returning from his work on Tuesday, he noticed that the jacks and equipment had been removed from under the house.

Upon receipt of the letter on Wednesday, defendant immediately visited plaintiff’s attorney and complained that the Walkers had not complied with their contract. At defendant’s invitation, the attorney made an inspection of the premises and informed defendant that he would consult his client regarding the matter.

After receiving a letter dated July 12 from plaintiff’s attorney, which in substance stated that W. D. Walker & Son contended that all work contracted for had been completed in accordance with the contract, and that any unevenness existing in the floor was due to weak or warped floor supports, Markey then retained his own attorney, who, on July 13, wrote to plaintiff’s counsel reiterating Markey’s plea of noncompliance with the contract. Plaintiff’s counsel was given to understand that the defendant was seeking bids from other contractors for the completion of the work.

Defendant ultimately obtained a bid from the Southern Shoring Company for $378.-00, and a copy thereof was sent to plaintiff’s attorney on July 23. Plaintiff was informed that defendant intended to employ Southern Shoring Company to finish the job, unless plaintiff evidenced an intention to complete it by starting work thereon not later than July 28.

On July 29, one day after the time limit thus set, . Markey, having heard nothing from W. D. Walker & Son or its attorney, entered into a contract with the Southern Shoring Company for $378.00. The Southern Shoring Company started its job about August 1 and completed the work about August 15; defendant paid the contract price, plus $89.00 for extra work in replacing sills. No defects appeared in the premises after the Southern Shoring Company finished its job.

It appears that on July 30 Hiram A. R. Gray, an engineer, was employed by plaintiff to make an inspection of the premises. However, Gray did not visit the premises for that purpose until August 18, by which date Southern Shoring Company had completely performed its contract. Gray’s testimony is interesting. He found the premises completely leveled, and testified that the mortar on 'the chimneys showed an age of about twenty to twenty-eight days, which he determined by making certain scientific tests. That the witness was incorrect in his estimation of the age of the mortar is attested to by the fact that plaintiff did no work on the premises after July 3, and Southern Shoring Company did not commence its job until about August 1; therefore, according to Gray, the mortar was placed on the chimneys some time during the interval between the two jobs. Gray further stated that he knows the masonry work on the chimneys was that of Olander B. Walker, because he was familiar with Walker’s handiwork and readily recognized it on the chimneys.

Three employees of the Southern Shoring Company were produced as defense witnesses. The estimator and the manager of that company testified that the floor of the house, as W. D. Walker & Son left it, sloped from both sides towards the center line along which the chimneys were constructed, and that the depression was greatest in the front part of the house and gradually decreased towards the rear. These three witnesses also found that the front porch had a backward pitch instead of sloping away from the house. These conditions were denied by the Walkers. W. D. Walker’s testimony is that after the jacks were removed the house was perfectly level, and that the defects testified to by the employees of Southern Shoring Company were not present.

W. D. Walker also testified that he “fell out” with Markey because, “What E, Markey wanted me to do was to change the sills without any pay, which wasn’t in my contract.”

During the course of the Walkers’ job, the defendant’s attention was directed to some sills which were rotten. Plaintiff replaced 14' of sill. The record does not reflect who paid the cost of the lumber used, but we gather that Markey purchased the sill himself and plaintiff installed it without charge. W. D. Walker further testified that, in regard to the other sills, Markey said, “I think we can get by.”

That some of the sills were in poor condition is clearly shown by the testimony of the employees of Southern Shoring Company. When they embarked on the contract, defendant had them to replace certain of the sills for an extra price of $89.00.

The judge a quo examined the Southern Shoring Company’s employees at considerable length, particularly as to whether a building could be properly leveled if it rested on rotten or defective sills. Cutror testified:

“Q. You know with rotten sills under a house it is impossible to bring the house to a complete level, don’t you? A. I know that, yes sir.”

LeBlanc, when asked if the house could have been leveled under such condition, answered, “No sir, it can’t be done, I don’t believe.”

Reynolds, the manager, stated that the sills on the downtown side and around the rear were in bad enough condition to warrant their being replaced. However, he was in disagreement with his two fellow workers, for we find that he stated that notwithstanding the rottenness of the sills the house could have been completely leveled by building up the piers to the bottom of the floor joists.

The trial judge, who did not favor us with written reasons for judgment, was evidently of the opinion that the condition of the sills prevented plaintiff from bringing the flooring to a perfect level, and there appears no manifest error in this finding. Our study of the record satisfies us that the judgment is correct. It is conceded that plaintiff was- under no obligation whatever to replace the sills, and we are inclined to believe that the contention of defendant’s brother, that plaintiff should have replaced the rotten sills, prompted the defendant also to adopt this position. Why, we ask, did Markey pay Southern Shoring Company $89.00 extra for replacing rotten sills, if the floor could have been leveled without such replacement?

The item of $43.00 is for raising the front steps to compensate the new level of the porch. Defendant admits that he authorized the work, but contends that plaintiff quoted a price of $16.00 therefor. Defendant alternatively contends that the item cannot be allowed because plaintiff has not proved it with certainty. We think that the proof is ample, dander B. Walker worked for seventeen hours on this extra work, and there is nothing which leads us to believe that the charge is exorbitant. There is no merit in defendant’s contention that the job was to be done for $16.00. His testimony alone supports this contention, and the Walkers emphatically deny it.

For the reasons assigned, the judgment appealed from is affirmed.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ROGERS et al. v. ILLINOIS CENT. R. CO. et al.
    No. 19300.
    Court of Appeal of Louisiana. Orleans.
    May 9, 1949.
    Ernest A. Carrere, Jr., and Edward F. Stauss, Jr., New Orleans, for plaintiffs and appellants.
    Rosen, Karnmer, Wolff, Hopkins & Burke and George Piazza, New Orleans, for defendants and appellees.
   PER CURIAM.

Defendants-appellees move to dismiss this devolutive appeal taken by plaintiffs from the judgment dismissing their suit.

The record reflects the following:

The judgment was rendered on March 25, 1948, after .a trial on the merits of the case. On March 31, 1948, plaintiffs applied for a rehearing, but through inadvertence, and without having disposed of the .application, the judge a quo signed the judgment on April 1, 1948, and the application for rehearing was not disposed of until April 23, 1948, on which date a rehearing was refused. In refusing a rehearing, the judge, in a per curiam, stated:

“This judgment was -signed on April 1, 1948. It was signed through inadvertence. The rehearing is now refused. Nome pro tunc.”

This appeal was t-alcen on March 28, 1949, and the appeal bond of $100 required ■by the 'Order granting the appeal, was furnished by appellants on April 13, 1949. The ground urged for dismissal is that the appeal bond was not filed until more ■than one year after the judgment was signed 'and became final. In support of ■the motion, appellees cite several cases which 'hold that a devolutive appeal is to be dismissed where the bond therefor is not furnished before the delay >for the appeal expires.

It is appellants’ contention that the delay for the appeal did not commence to run until April 23, 1948, the date on which the rehearing was refused, and that the appeal was completed, including the filing of the bond, within the one year .period, and that the judge, iby employing the phrase “nunc pro tunc” .in dismissing the •application for the rehearing, could not jeopardize appellants’ -rights.

.Until a final judgment is signed, the party cast may apply for a new trial. Rivers & Rails Terminals, Inc., v. Louisiana Ry. & Nav. Co., 160 La. 931, 107 So. 700. Where a judgment is signed whilst a motion for a new trial is pending, the signing of the judgment is premature. See Mercer et ux. v. Natchez, B. & S. R. Co. et al., 136 La. 187, 66 So. 774, 776, wherein the Court said:

“It has frequently been held that, so long as a judgment -remains -unsigned, it remains open to revision, -and hence that a -motion for new trial may, in such ease, be filed after the 'expiration of the -delay ■by which it would otherwise be excluded. (Citing’-cascs.) It has also been held that, though a judgment, -prematurely 'signed, does not preclude the exercise, by the party -cast, of the right to move; within the delay allowed -by law, for a new trial, yet that, in the -absence of su-c-h motion, the signing will become effective upon the expiration of such delay. (Citing cases.) It follows therefore that the motion -filed on behalf of plaintiff, 'by defendant 'counsel, operated as a ,bar to the signing of the judgment of nonsuit which the -counsel had obtained, and that, * * * notwithstanding that the judgment was actually signed, the signing was premature, because of the pen--dency of the motion, which kept it open to revision until it (the motion) was disposed of.” (Italics ours.)

In Succession of Gilmore, 12 La.Ann. 562, it was held that:

“A judgment signed before a motion for a new trial is overruled, cannot 'be considered as having its effect until -the motion is disposed of.”

In Auto-Lec Stores, Inc. v. Ouachita Valley Camp No. 10, W. O. W., 185 La. 876, 171 So. 62, 63, the Court said:

“The motion for rehearing being timely filed, -the judgment rendered in this ease, though signed, is considered as not becoming legally effective unless and until the motion is overruled. Herold v. Jefferson, 172 La. 315, 134 So. 104.

“As the motion for rehearing was not denied until February 19, 1936, the judgment in this case did not become final until that date; and, as plaintiff perfected its appeal by filing its appeal bond in the lower court March 18, 1936, it is clear that the appeal was taken within the year after rendition of final judgment.”

In Durbridge v. State, 117 Da. 841, 42 So. 337, the question for decision was:

“ * * * whether the year in which plaintiff had to take an appeal commenced to run from October 17, 1903, the day after the judge signed the judgment, or from June 23, 1904, 'the day the judge overruled the motion for a new trial. If from the former, the appeal was -taken too late; if from the latter, it was in time.”

The Court answered the question in the following language:

“ * * * We think the action of the district court in holding back for decision the motion for a new trial postponed to the date of the action on that subject the date from which the time for taking the appeal should run. * * * ”

As the application 'for rehearing was not denied until April 23, 1948, the judgment in this case did not become final until that date; and, as plaintiffs perfected their appeal by filing the appeal bond in the lower court on April 13, 1949, it is clear that the appeal was taken and completed within the year after the rendition of the final judgment. The judge a quo was without authority or right to give a retrospective effect to 'his ruling refusing the rehearing, so as to shorten the delay ■accorded plaintiffs by law for the taking of their appeal. Actus 'curiae nominem gravabi-t

The motion to dismiss is denied.

Motion denied.


author: KENNON, Judge.

text:
    FUQUA et al. v. MARTIN et al.
    No. 7284.
    Court of Appeal of Louisiana. Second Circuit.
    April 29, 1949.

      Hudson, Potts, Bernstein & Davenport, of Monroe, for appellants.
    Theus, Grisham, Davis & Leigh and Fink & Fink, all of Monroe, for appellees. -
   KENNON, Judge.

This is a suit by the children and heirs of Mrs. Rosa L. Rinehart to recover damages as a result of their mother’s injury and subsequent death after an' automobile accident which occurred in the 600 block of North Third Street in the city of Monroe, Louisiana, on October 30, 1946. Defendants are Mrs. Martin, driver of the vehicle which struck Mrs. Rinehart, her husband, and his liability insurer. Plaintiffs alleged that at 5:40 p. m. their mother was walking north on the west side of North Third Street when, coming to a driveway, she turned east, walking in front of a parked automobile with the intention to cross to the east side of the street and after she had progressed three steps beyond the parked automobile and while she was so walking in a careful manner, she was struck by the right front fender of the car driven by the defendant, Mrs. B. B. Martin.

The petition charged Mrs. Martin with driving at an excessive rate of speed in a congested area; with failing to keep a proper lookout for pedestrians and, particularly, with failing to see Mrs. Rinehart before striking her; with failing to sound warning, apply brakes or take other action to avoid striking Mrs. Rinehart. In the alternative, and in the event the Court should find that the negligence of Mrs. Rinehart contributed to the accident, plaintiffs pleaded that Mrs. Martin had the last clear chance to avoid the accident, and that she failed to take the necessary action to avoid striking Mrs. Rinehart.

The answer denied that Mrs. Martin was guilty of any negligence and in the alternative alleged that the deceased was guilty of contributory negligence in attempting to cross one of the principal business streets in the city of Monroe in the center of the block instead of at the intersection and in walking from immediately in front of the parked automobile without looking to see that the way was clear and in walking into the side of the automobile driven by Mrs. Martin.

The case is before us on an appeal by plaintiffs from a District Court judgment rejecting their demands against all the defendants.

The District Court filed no written opinion, but we have no difficulty in determining from the record the relevant facts. Mrs. Rinehart, an elderly lady in good health, was proceeding north in the 600 block of North Third Street in down town Monroe just as darkness was falling on the fatal evening. Just.before she reached a driveway extending out of North Third Street across the west sidewalk, a young man by the name of Bobby Hinton, while driving his car southward, brought it to a stop parallel with the street, half in and half out of this driveway, and raised the hood and began working on the engine under the hood. As he pulled into the driveway (approximately middle way the block), he observed Mrs. Rinehart, who was then about half way between him and the corner, walking' north along the west sidewalk.' He spoke to her as she approached the driveway and saw her turn eastward to walk in front of his parked automobile. He estimated that before being struck, “she must have gone a couple of steps out into the street.” He saw her next as' she was rolling over at an angle of about 45 -degrees with the street.

Mrs. Martin, accompanied by her mother, Mrs. Moore, was traveling southward at a reasonable speed. She observed the parked Hinton car, but did not see Mrs. Rinehart until “just as she struck the fender.” After the impact Mrs. Martin applied her brakes and observing that Mrs. Rinehart’s body was clear of the car, she proceeded southward, past where the injured pedestrian lay, and stopped at the west curb.

Mr. Joe Ammon was driving northward along the' same street when he noticed that the car approaching him (the Martin car) had “hit something.” His testimony was that it was “just dusk;” that he thought Mrs. Martin had her headlights on, although it was not dark enough for lights to be. really necessary. He testified that it was hard to determine how fast. Mrs. Martin was traveling as he was coming in the opposite direction, but thought her speed to be less than 25 miles an hour. He came forward to render assistance and talked with Mrs. Martin, who told him that Mrs. Rinehart had walked into the side of her car; that the two of them examined the Martin car and found an impact dent on the front of the right fender. He testified that Mrs. Martin said she expected to find the point of impact further back and that she first examined the back portion of the fender near the front door. He did not notice any headlights burning on Hinton’s parked car.

Mrs. Martin’s mother testified that she was not noticing ahead at the time of the impact, but that her daughter was driving carefully in her normal traffic lane to- the right of the center of the street.

The testimony fails to establish plaintiffs’ allegations that Mrs. Martin was operating her automobile at an excessive rate of speed. Nor does the testimony establish the other acts of negligence set forth in the petition.

Mrs. Rinehart was not in the view of the driver of the approaching automobile for sufficient length of time for Mrs. Martin to have taken effective action to avoid striking the deceased as she was stepping into the street from in front of the parked Hinton automobile. As stated in the case of Matassa v. Economy Cab Co. et al., La.App., 158 So. 239, 240, citing Fernandez v. Montz, 151 La. 299, 91 So. 742, 743 and Owens v. Tisdale, La.App., 153 So. 564:

“The driver of a vehicle on the streets of a city has no reason to anticipate the presence of pedestrians between intersections, whereas a pedestrian in the same situation has every reason to expect the vehicle.”

We conclude that Mrs. Rinehart walked into the right front fender of the Martin car. The place and nature of the bodily injuries and the location of the slight damage to the automobile support this conclusion. The deceased received a fracture of both bones of the left leg below the knee, a fractured pelvis, internal injuries and suffered a severe bruise on the left forearm, indicating that- her left leg struck the right edge of the bumper or right fender or right wheel, and that the impact of the right fender with her left elbow caused the dent which was discovered near the headlight of the right fender of the Martin car after the accident.

Since the testimony conclusively establishes that Mrs. Rinehart was guilty of negligence in crossing North Third Street in the middle of the block and without looking in both directions for approaching traffic, even-assuming that there had-been-some negligence on the part of Mrs. Martin,, the- contributory negligence of Mrs. Rine-hart would bar plaintiffs’ recovery, unless the evidence would show that the doctrine of “last clear chance” or “discovered peril” or “apparent peril” is applicable.

Plaintiffs’ contention is that Mrs. Rine-hart was within view of the driver of the Martin car for a sufficient time, after she walked out from in front of the parked Hinton car, for Mrs. Martin to have taken effective avoiding action. Had this fact been established, it would have been immaterial whether Mrs. Martin saw or did not see Mrs. Rinehart, she would be charge.able with seeing what was within her view .and what she should have seen, and the ■defendants would have been responsible ■under the doctrine of apparent peril, or ■discovered peril, or last clear chance, as it has been variously denominated.

However, the record discloses that Mrs. Rinehart left the safety of the sidewalk and began to cross the street in the «enter of the block where the presence of pedestrians is not normally expected and ■that she was in a position to be seen from the driver’s seat of the Martin car for a period of time wholly insufficient for Mrs. Martin — supposing her eyes had been on ■the right side of her car instead of down the street in the direction in which she was traveling — to have sensed the dangerous situation and taken effective action to avoid the accident by the application of brakes ■or the veering of her car to the left. Taking the view of the evidence most favorable to plaintiffs, the fact remains that there was still insufficient time between the appearance of Mrs. Rinehart in a position of ■danger and the impact for Mrs. Martin to 'have taken steps to avoid the accident, and therefore the doctrine pleaded has no appli•cation under the facts disclosed by the record.

The plaintiffs offered in evidence photographs showing the southern and west ■.portions of the 600 block of North Third Street, with an automobile parked in the ■same relative position as the Hinton automobile occupied at the time of the accident. The defendants objected to the introduction of these photographs for the reason that the automobile was of a different make from the Hinton car and had its hood • down and that the pictures were taken at 10:00 o’clock in the morning instead of in the late afternoon and for the further ■reason that a change had occurred in the •.physical condition of the property in that a store building had replaced the residence which occupied the lot just west of the sidewalk on which Mrs. Rinehart was walking just before she turned into the driveway to cross North Third Street.

The District Court, over the objection of plaintiffs, sustained this objection, but permitted the photographs to come up with the record as a part of a special bill of exceptions.

In the trial of automobile accident cases, it is not unusual for the litigants to introduce in evidence pictures showing the locale and the condition of the vehicles subsequent to the accident. Of course, it would be preferable to have the pictures made with all objects and conditions the same as at the time of the accident. No better evidence could be imagined than to have presented to the Court trying an accident case a moving picture or a series of still pictures showing the situation of the parties and vehicles while the accident was in the making. Of course, this is usually impossible.

We consider it incumbent upon a party offering a photograph of a locus in quo to show that he exercised reasonable effort to make the photograph reflect the conditions as they existed at the time of the accident. This is particularly true as to the location and type of objects that may be included in an effort to restage conditions at the time of the occurrence. However, in the absence of a showing that the party offering the photograph was guilty of bad faith in making the pictures and staging the objects shown at the scene, photographs of the locale should be admitted when properly identified and offered in evidence. The opposing litigant has the right, of course, to bring out the differences in conditions and circumstances between the time of the accident and the taking of the picture, both by cross-examination of the witness presenting the photographs and by other competent evidence. The District Judge in sustaining the objection stated that he didn’t see that the pictures would be of any value in the present case as the other testimony had established what was shown on the pictures. The conclusion we have reached would be the same either with or without the pictures offered in evidence by the plaintiffs and rejected by the District Court.

The judgment appealed from is affirmed, with costs.


text:
    ASEVEDO v. FIRST NAT. LIFE INS. CO.
    No. 19133.
    Court of Appeal of Louisiana. Orleans.
    May 9, 1949.
    John R. Perez, Sr., New Orleans, for plaintiff and appellee.
    Normann & Jones and Russell J. Schon-ekas, New Orleans, for defendant and appellant.
   PER CURIAM.

In a brief in support of an application for rehearing, counsel for defendant indicate that they interpret our opinion as holding that any person who is injured while standing or walking on any part of any shoulder of any road is within the provisions of such a policy as is here sued on.

We were careful to say that it is not our intention to hold that any part of such an adjoining portion of a road must always he considered as a part of the highway for the purpose of determining whether the spot at which the insured is struck is within the contemplation of such a policy.

Asevedo was on a shelled portion of the shoulder which was maintained as a connecting link between the paved portion of the highway, the side road which connects with the highway, and the entrance to a nearby filling station and to a nearby beer parlor.

In Rudd v. Great Eastern Casualty & Indemnity Co., 114 Minn. 512, 131 N.W. 633, 634, 34 L.R.A., N.S., 1205, Ann.Cas. 1912C, 606, there was involved a policy very similar to the one sued on here. It provided coverage to the insured if injured “while walking on a public highway * * *.” It was provided that the policy did not cover injuries sustained while on the roadbed or bridge of any railroad. The insured was killed while using a platform at a railroad depot which was used by the public in travelling between two streets. The Court held that there should be recovery under the policy saying that the provision in the policy which required that the insured be “walking on a public highway” is not limited in its contemplation to legally laid out or dedicated public highways and that it might “reasonably refer to any walk or way where the public are accustomed to travel for certain purposes.” That is all that we say here. The point at which Asevedo was struck was certainly to a limited extent a part of the public highway.

The rehearing is refused.


author: McCALEB, Justice.

text:
    215 La. 300
    GRAND LODGE OF THE STATE OF LOUISIANA, KNIGHTS OF PYTHIAS, v. NATCHITOCHES LODGE NO. 89, KNIGHTS OF PYTHIAS, NATCHITOCHES, L.A.
    No. 38993.
    Supreme Court of Louisiana.
    April 25, 1949.
    Gahagan & Pierson, of Natchitoches, for defendants-appellants.
    Carstarphen & Carstarphen, of Shreveport, and Walter E. Adolph, of New Orleans, for plaintiff and appellee.
   McCALEB, Justice.

Grand Lodge of the State of Louisiana, Knights of Pythias, an incorporated fraternal organization, brought this suit to be declared owner of the property and effects of Natchitoches Lodge No. 89, an unincorporated body created by plaintiff corporation. It alleged that, on March 8, 1945, it forfeited, in accordance with its laws and orders, the property belonging to Natchi-toches Lodge No. 89 because the subordinate Lodge had violated the provisions of its charter by failing to hold meetings and pay taxes and dues exacted by plaintiff. It joined as defendants to the proceeding the last-known officers of the subordinate Lodge and obtained an order appointing a curator ad hoc to represent all unknown and absentee members.

The curator resisted the demand on behalf of all defendants (known and unknown) and, after a hearing, there was judgment in plaintiff’s favor recognizing it as owner of all property, real and personal, standing in the name of Natchitoches Lodge No. 89. The curator appealed from' the adverse decision.

Although the curator was duly notified of the fixing of the case for hearing, he did not appear or file a brief in support of the appeal. Instead, he addressed a letter to the Clerk of Court in which he stated that, since plaintiff’s action was instituted merely for the purpose of clearing title and because of the fact that he had no defense thereto, he was not contesting the matter.

It is the well-settled jurisprudence of this State that, where the appellant makes no appearance whatever in the appellate court, it will be presumed that he has abandoned his appeal. Quilter v. Kearns, 135 La. 807, 66 So. 229; Salassi v. Dougherty, 138 La. 1089, 71 So. 194; Conti v. Southern Ry. & Nav. Co., 144 La. 128, 80 So. 223; Berot v. Porte, 148 La. 957, 88 So. 231; Cain v. Jones, 177 La. 24, 147 So. 489; Johnson v. Continental Casualty Co., 183 La. 1042, 165 So. 194; Prevost v. Prevost, 193 La. 352, 190 So. 578; Willis v. Belle, 16 La.App. 320, 134 So. 263; Blount v. Woodward, La.App., 137 So. 880; De Soto Securities Co. v. Walker, La.App., 170 So. 277; Calhoun v. Hodges, La.App., 174 So. 209; Bridges v. Gantt, La.App., 187 So. 829; Ford v. Cohen, La.App., 187 So. 830; Brooks v. Coca-Cola Bottling Co. La.App., 1 So.2d 813; Kelly v. Elliott, La.App., 3 So.2d 295; Williams v. Frost Lumber Industries, La.App., 6 So.2d 781; Saline Lumber Co. v. Stewart, La.App., 17 So.2d 320; W. R. Ross & Sons v. Riverton Gin Co. Inc., La.App., 154 So. 368; Southern Kraft Corp. v. Louisiana Tax Comm., La.App., 157 So. 775; Carroll v. David, La.App., 158 So. 250; State ex rel. Bolin v. Webster Parish School Board, La.App., 159 So. 123; Abney v. Sneed, La.App., 160 So. 832; State ex rel. Blocker v. Simmons, La.App., 169 So. 131 and Reneau v. Seybert, La.App., 170 So. 375.

In some of the cited cases, the courts have taken the position that the failure of appellant to make an appearance is tantamount to an acquiescence in the judgment appealed from and, on this theory, the judgment has been affirmed. In other cases, the courts have viewed the failure to appear solely as an 'abandonment of the appeal which authorizes its dismissal. We think that the latter aspect constitutes a better practice as we are disinclined to ratify judgments s in cases where the appealing parties abandon the contest and tacitly acquiesce by their failure to appear. This is particularly so with respect to cases like the instant one, in which the court is asked to approve title resulting from a conventional forfeiture of property under a corporate charter.

After all, an appeal is the recourse pursued in a superior tribunal to have the judgment of an inferior court corrected. Article 564 of the Code of Practice. ' It is not intended as a remedy for those who do not complain of error in the judgment of the inferior court. Rausch v. Barrere, 109 La. 563, 33 So. 602.

The appeal is dismissed.

O’NIELL, C. J., takes- no part.


author: PONDER, Justice.

text:
    215 La. 304
    STATE v. SALONE.
    No. 39364.
    Supreme Court of Louisiana.
    April 25, 1949.
    Wellborn Jack -and Ashley J. Gold, both of Shreveport, for defendant-appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., and Edwin L. Blewer, DiSt. Atty., of- Shreveport, for plaintiff-appellee.
   PONDER, Justice.

The defendant, Asa Salone, was convicted of murder without .capital punishment and sentenced to life imprisonment in the penitentiary. He has appealed from the conviction and sentence. ■

Two bills of exception were taken to the ruling of the trial court, during the course of the trial, permitting the State to bring out on cross-examination from the defendant that he had been arrested on more than one occasion since, the commission of the alleged offense.’ One of the bills was taken at the time of the ruling and the other taken to the overruling of a motion for a new trial predicated on the same ground.

Counsel for the defendant, contends that the defendant may be cross-examined only concerning arrests prior to the alleged offense and that permitting the State to bring out on cross-examination the subsequent arrests was prejudicial error.

The pertinent part of Article 495 of the Code of Criminal Procedure reads as follows : “ * * * provided, always, that a witness, whether he be the defendant or not, may be compelled to answer on cross-examination whether or not he has ever been indicted or arrested and how many times.”

Counsel 'takes the position that the numerous cises cited'under the article of the Code of Criminal Procedure deal with arrests prior to an alleged offense and that the question here presented has never-been directly passed on by this Court.

It is apparent from a mere reading of this provision of the Code of Criminal Procedure that it applies to arrests prior to the time of the cross-examination. It is significant that it is stated in this provision that the person under cross-examination may be compelled to answer whether he has ever been arrested and how many times. There is no language in this provision to indicate a restriction of its application solely to arrests prior to the commission of the alleged offense. If the lawmakers had intended otherwise, some language would have been used to indicate such intent.

For the reasons assigned, the conviction and senteñce are affirmed.

O’NIELL, C. J., takes no part


author: HAWTHORNE, Justice.

text:
    215 La. 307
    REDON et ux. v. ARMSTRONG et ux.
    No. 38368.
    Supreme Court of Louisiana.
    April 25, 1949.
    Harold J. Winling, of New Orleans, for defendants-appellants.
    Sidney G. Roos and Robert J. Oster, both of New Orleans, for plaintiffs-appel-lees.
   HAWTHORNE, Justice.

Defendants, Mr. and Mrs. Paul Armstrong, appealed suspensively to this court from a judgment of the district court cancelling a written lease contract and ordering them to vacate the premises located at 1708 St. Charles Avenue in the City of New Orleans for failure to pay promptly the rent due pursuant to the terms and conditions of the lease contract.

In this court plaintiffs-appellees filed a motion to dismiss the appeal taken by defendants-appellants, “the motion being based on the insufficiency of the surety signing the appeal bond of $5,000”. This court sustained the motion insofar as it stayed or suspended the execution of the judgment appealed from, but denied it as to a de-volutive appeal. See Redon et ux. v. Armstrong et ux., 211 La. 165, 29 So.2d 708.

Plaintiffs leased the property to defendants for a term of three years, commencing on November 15, 1944, and ending on October 31, 1947, for and in consideration of a monthly rental of $200, represented by 36 promissory notes for $200 each, payable in advance on the first day of the month. Defendants failed to pay the rent for August, 1946, and plaintiffs, after notices to the defendants to vacate the premises, instituted this suit.

Defendants contended that the plaintiffs had previously, on several occasions, accepted the rental payments a few days after the maturity date of the note, and that such acceptance was a tacit modification by plaintiffs of the terms and conditions of the written lease contract.

On the trial of the case on its merits, the evidence disclosed that plaintiffs did accept the amount of rent in several instances a few days after the notes matured, but on these occasions they warned defendants that the rent must be paid promptly and that their acceptance was not to be considered as a waiver of their right to enforce the lease according to its terms and conditions.

Appellants made no appearance in this court, but, some time after the case was submitted, filed a brief in this court in which they ask that the judgment of the lower court be reversed and the lease maintained to the extent that appellants should have the right to exercise their option, contained .in the lease contract, to purchase the property for the sum of $25,000. Appellants in this brief cite no authority in support of their contention, and the record itself, in our opinion, discloses no error of law. On the contrary, since it was clearly established by the trial of the case on its merits that the defendants-lessees violated the terms and conditions of the -lease, the judgment based on these facts is entirely correct, and the plaintiffs are therefore entitled to the relief sought.

For the reasons assigned, the judgment appealed from is affirmed; defendants-appellants to pay all costs.

O’NIELL, C. J., takes no part.

MOISE, J., recused.


text:
    215 La. 310
    SMITH v. ATKINS.
    No. 39295.
    Supreme Court of Louisiana.
    April 25, 1949.
    Hussey •& Smi-t-h, of Shreveport, -for defendant and appellant.
    Robert J. N-ew-so-n, of Shreveport, for plain-tiff and appellee.
   PONDER, Justice.

The plaintiff, -appellee, moves to dismiss the appeal in this -c-ase on the -ground that the transcript is incomplete.

. An appeal will -not he dismissed without first allowing the appellant time to complete -the -transcript -in -compliance with th-e provisions of Act 234 of 1932.

Upon submission of the motion to dismiss the appeal, the appellant has filed a supplemental transcript containing -the documents -that the -ap-pell-ee claims were left out of the transcript. On three prior occasions we ha-v-e entertained controversies -between the parties to -this -suit involving the -property in dispute herein. See Atkins v. Smith, 204 La. 468, 15 So.2d 855; Atkins v. Smith, 207 La. 560, 21 So.2d 728 and Smith v. Atkins, 211 La. 369, 30 So.2d 121. It w-as not necessary -to incorporate in the transcript a co-py -of -our opinions in those -cases or portions of ou-r records -in th-e prior -suits -because we can take -cognizance of -our -own -records.

For the reasons assigned, the motion is denied.

O’NIELL, C. J., takes no -part.


author: MOISE, Justice.

text:
    215 La. 312
    JOLY v. WILLIAMS.
    No. 38247.
    Supreme Court of Louisiana.
    April 25, 1949.
    Eugene Stanley, of New Orleans, for defendant-appellant.
    Henry J. Voss' and Robert J. Pitard, both of New Orleans, for plaintiff-appellee.
   MOISE, Justice.

The plaintiff filed suit against his wife for a divorce under the provisions of Act 269 of 1916, amended by Act 31 of 1932, a9 amended by Act 430 of 1938, alleging that they had lived separate and apart for more than two years. The defendant answered, averring that plaintiff was not entitled to a divorce for the reason that he had been living in open and notorious adultery with a woman named in the answer. A rule for alimony was filed pen-dente lite. On November 2, 1945, the court made this rule absolute, granting alimony to the mother and. child at the. rate of $100 per month. On March 20, 1946, a judgment of divorce was granted in favor of the plaintiff, also perpetuating the alimony heretofore awarded in the amount fixed by the court.

On the trial of'the merits, the proof of the main demand (as to the living separate and apart for more than two years) was conclusive. On introduction of the evidence, the wife enlarged her pleadings on a m'atter of substance by testifying that she had cohabited with her husband during the two year périod. This defense was not urged át the time issue was joined nor was an amendment' sought to made-to the pleadings. The record discloses that this enlargement of the answer was not objected to by the plaintiff. The rule of law is that evidence introduced without objection can be considered by the court.

To corroborate this defense, the defendant offered her two adult children as witnesses. One of them testified that he only saw his father once and that was when he drove up in an automobile, as his father was leaving their home. The other testified, in part:

“Q. * * * Did he eat breakfast and dinner there? A. No.
“Q. He did not keep his clothes there ? A. 'No.
“Q. He did not have any room to sleep in? A. Just my mother’s bedroom, that was his, too.”

There was no other evidence to substantiate the mother’s testimony as to cohabitation. In the testimony of the children there is not a scintilla of evidence showing any affection by the parents for one another, not even a caress or kiss.

The' record shows that the living in open adultery by the father was likewise pleaded to show that the separation' wa's caused through no fault of the defendant. Freedom from fault is a prerequisite to obtain alimony under the statute.

The call of the procreative passion by the husband for his paramour must have been urgent and insistent. When he yielded to that call, h° defied all conventions set up by society, abandoned his family and brought about a moral desolation in the home.

It is possible but highly improbable that copulation took place between the parties during the two year period. It would seem from the manner and the way in which this , defense was set up, that it was an afterthought on the part of, the wife. This court, in giving consideration to the unpleaded defense, must apply the same rule and the same formula as to any other material fact in the case — the defense must be proved by a reasonable certainty. On the other hand, we have the emphatic denial by the plaintiff that the alleged cohabitation took place and, that denial, coupled with the corroborating physical facts, is conclusive that defendant did not carry her burden of proof.

For the reasons assigned, the judgment appealed from is affirmed at plaintiff's costs.

O’NIELL, C. J., takes no part.


author: MOISE, Justice. McCALEB, Judge

text:
    215 La. 315
    STATE ex rel. KEMP, Atty. Gen. of Louisiana v. CITY OF BATON ROUGE et al.
    No. 39384.
    Supreme Court of Louisiana.
    April 6, 1949.
    Rehearing Denied April 25, 1949.

      Bolivar E. Kemp, Jr., Atty Gen., Carroll Buck, 1st Asst. Atty. Gen., and John L. Madden, Asst. Atty. Gen., for plaintiff and appellant.
    Henry G. McMahon, Parish Atty. and R. Gordon Kean, Jr., both of Baton Rouge, and Robt. L. Roland, Asst. Parish Attys. (Fred G. Benton, C.C. Bird, Jr., Borron, Owen, Borron & Delhaye, Breazeale, Sachse & Wilson, Brumfield, Hebert & Rush, Jess Johnson, Byron Kantrow, Fred S. LeBlanc, G. T. Owen, Jr., Sanders, Miller, Downing & Rubin, Taylor, Porter, Brooks & Fuller, Geo. M. Wallace and Watson, Blanche, Fridge & Wilson, all of Baton Rouge, of counsel), for defendants.
   MOISE, Justice.

The State of Louisiana, acting through its Attorney General, brings this action, seeking to test the constitutionality and legality of a Plan of Government for the Parish of East Baton Rouge and the City of Baton Rouge, and of the constitutionality of the amendment authorizing its adoption.

■ The petitioner alleges six different grounds of nullity of the constitutional amendment, pleaded on the main demand and in the alternative. Injunctive relief is sought to restrain the named defendants from performing the functions and duties of the respective offices because of the alleged nullity of Act No. 389 of 1946, creating provisions for the Plan of Government upon which these particular duties are based, and petitioner likewise prays for a recognition of the nullity of certain actions of the councils.

Defendants, in their answer, deny the allegations of unconstitutionality and the illegality of the Plan of Government, of the nullity of the constitutional amendment authorized by the plan, and of the illegality of any of the acts of the respective councils. (The plan contains a severance clause.)

The district court dismissed the plaintiff’s suit and the plaintiff appeals.

The plaintiff contends that if the Constitution of the State of Louisiana has been amended by this single amendment, the following separate things have been accomplished: The municipal limits of the City of Baton Rouge háve been extended; the powers of local governmental units within the Parish o'f East Baton Rouge have been redistributed; three distinct areas within the Parish not otherwise recognized by the Constitution, that is, industrial, rural and urban areas, have been created and these areas have been made subj ect to varying tax limits; the governing authorities have been given the right to give to the municipality ■of the City of Baton Rouge revenue derived from taxes on property located outside that urban area; and the governing authorities have been given the power to tax property within the municipality or urban areas for the benefit of property outside that area.

Before entering into a consideration of the above constitutional questions, the court will observe that there are factors which should never be absent from the judicial mind: The first is that we are concerned in the power of the Legislature to adopt the constitutional amendment attacked and not its wisdom; the second, that “while the exercise of constitutional power by the Legislature is subject to restraint by the court, the only check upon our exercise of power is our own sense of self-restraint”; •and the third, that every presumption of law and fact must be indulged in favor of the legality of the constitutional amendment, unless the contrary is made clearly manifest. Therefore, where one contests •a provision of the organic law of the State, the onus is on him to prove the nullity thereof to the exclusion of every reasonable hypothesis. The rationale of this rule is well expressed in the opinion of our own court' in the case of Board of Liquidation v. Whitney-Central Trust & Savings Bank, 168 La. 560, 563, 122 So. 850, 851, as follows :

“ * * * In reaching the decision, the court must necessarily have, in mind the universal rule that, whenever a constitutional amendment is attacked as not constitutionally adopted, the question presented is, not whether it is possible to condemn, but whether it is possible to uphold; that every reasonable presumption, both of law and fact, is to be indulged in favor of the legality of the amendment, which will not be overthrown, unless illegality appears beyond a reasonable doubt. People v. Sours, 31 Colo. 369, 74 P. [167] 169, 102 Am.St. Rep. 34; People v. Prevost, 55 Colo. 199, 134 P. 129; Martien v. Porter, 68 Mont. 450, 219 P. 817.”

We, therefore, ask ourselves, what is the rule of law relating to Article 21, Section 1 of the Constitution, the pertinent part of which provides:

“ * * * When more than one amendment shall be submitted at the same election, they shall be so submitted as to enable the electors to vote on each amendment separately. * * * ”

The following is an excerpt from Vol. 11, American Jurisprudence, page 635, Constitutional Law, Section 31:

“ * * * The rule has been laid down that a constitutional amendment which embraces several subjects, all of which are germane to the general subject of the amendment, will, under such a requirement, be upheld as valid and may be submitted to the people as a single proposition.”

In an annotation to the case of Kerby v. Luhrs, 44 Ariz. 208, 36 P.2d 549, found in 94 A.L.R. 1502, at page 1511, the question here considered-was passed upon by various states, as appears from the analysis of a number of cases, including State ex rel. Morris v. Mason, 43 La.Ann. 590, 9 So. 776. The cases of Graham v. Jones, 198 La. 507, 3 So.2d 761 and Hotard v. City of New Orleans, 213 La. 843, 35 So.2d 752, have likewise considered the same question. In all of these cases, by a plastic adaptation, the courts have accepted the rule laid down in Vol. 11, American Jurisprudence, page 635, hereinabove quoted.

We have before us a factual situation similar to that presented in the case of People ex rel. Elder v. Sours, 31 Colo. 369, 74 P. 167, 178, 102 Am.St.Rep. 34. There, one of the objections raised -to the constitutional amendment of the Colorado Constitution was that the amendment embodied a plurality of objects and purposes in violation -of Article 19, Section 2 of the Constitution of that State, which is almost identical with ours. The Supreme Court of Colorado disposed of the question in the following language:

“We therefore conclude * * * that, if an amendment embraces more than one subject, said subjects need not be separately submitted, if they are germane to the general subject of the amendment, or if they are so connected with or dependent upon the general subject that it might not be desirable that one be adopted, and not the other; that this amendment does relate to a single definite object or purpose; and that the several matters objected to as not germane thereto do appear to be so connected with or dependent upon that object or purpose that they ought not to have been separately submitted.”

It does, therefore, seem that the proposed amendment must be logically viewed as a Plan of Government which, while embracing several subjects, all are germane to the general purpose of the amendment, and that the constitutional requirements have been met in their submission by one amendment. All constitutional provisions use broad terms and are designed to have a comprehensive scope and operation, and when we examine the constitutional amendment itself, it is apparent that it has one purpose, one design — a Plan of Government.

It is true that this authority of the Constitution in the constitutional amendment was made subject to the organic laws and the laws of the State with respect to the power and function of local government, but the State contends that such authority could not be exercised without affecting other constitutional provisions and, as a matter of fact, was so exercised as to affect a number of other constitutional provisions. The Act directed the Commission .to provide for and define urban and rural areas, and the State contended that the statute attempted to establish limitations of taxation applicable to urban, rural and industrial areas. The entirety of the plan was made subject to amendment by election of the people as provided therein.

The State cites Article 4, Section 12 of the Constitution, the pertinent part of which provides:

“The funds, credit, property or things of value of the State, or of any political corporation thereof, shall not be loaned, pledged or granted to or for any person or persons, associations or corporation, public or private * *

And Article 10, Section 1 thereof, providing in part that:

“The power of taxation shall be vested in the Legislature; shall never be surrendered, suspended or contracted away; and all taxes shall be uniform upon the same class of subjects throughout the territorial limits of the authority levying the tax, and shall be levied and collected for public purposes only. * * * ”

The provisions of Section 3(a) of Article 14 of the Constitution removed these limitations and restrictions insofar as the Parish of East Baton Rouge is concerned in express language and authorizes the allocation of parish revenues and funds to the city. In this connection, Subdivision (2) of Section 3(a) of Article 14 of the Constitution of Louisiana provides:

“(2) Subject to the Constitution and laws of this state with respect to the powers and functions of local government, as distinguished from structure, organization and particular distribution and redistribution of such powers and functions among the several units of local government within the Parish, such plan of government may provide, among other things:
“(a) For consolidation, or reorganization, of all or part of the local governmental units, agencies cmd subdivisions * * * and for all matters necessary or appropriate to the effectuation of such provisions, including, without limitation, the assumption by one local governmental unit, agency amd subdivision of indebtedness of another or other <cmd transfer of official personnel records, funds and other property and assets; and
“(b) For revenue for the support of the one or more local governmental units, agencies or subdivisions proposed by the plan, including, without limitation, allocation of parish revenues to other units, agencies or subdivisions(Italics ours.)

Express and specific authority for the allocation of Parish revenues and funds to the municipal government are contained in this constitutional amendment; and to the extent that Article 4, Section 12 and Article 10, Sections 1 and 5 are in conflict therewith, they must yield to the latest expressions of the will of (the people. State ex rel. Corry v. Cooney, 70 Mont. 355, 366, 225 P. 1007, 1011 and cases cited therein; People ex rel. Elder v. Sours, 31 Colo. 369, 403, 74 P. 167, 175, 102 Am.St.Rep. 34; 11 Am.Juris. 663, 664, Const.Law, Sec. 54; 16 C.J.S., Constitutional Law, § 26, pages 66, 67.

While the language of Article 4, Sec. 12 of the Constitution provides, among other things, that “The funds, credit, property or things of value of the State, or of any political corporation thereof, shall not be loaned, pledged or granted * * * ”, this is not the loaning of the funds, credit and property or other things of value of the State or any political corporation thereof. The entire matter is for a public purpose— for the establishment of a plan of government.

It is the settled jurisprudence that counties and municipalities are creatures of the State, established for the purpose of providing effective government with functions, powers, duties and obligations delegated or imposed by the State and that there is nothing in the Fourteenth Amendment of the Federal Constitution or any other provision of (the Constitution of the United States which would prohibit the State from making any change of such functions, powers and obligations. In this field, the State of Louisiana is supreme and may do as it wills, unrestrained by the Federal Constitution.

In the case of Laramie County Com’rs v. Albany County, 92 U.S. 307, 23 L.Ed. 552, the United States Supreme Court held:

“Political subdivisions of the kind are always subject to the general laws of the State; * * *.
“Such corporations are the mere creatures of the legislative will; and, inasmuch as all their powers are derived from that source, it follows that those powers may be enlarged, modified or diminished at any time, without their consent, or even without notice. They are but subdivisions of the State, deriving even their existence from the Legislature. * * * ”
In holding that it is powerless to set aside the legislative will, as a result of legislative changes in the powers and obligations of counties and municipalities, injustices might be done to some of the taxpayers, the Count goes on to say:
“Cases doubtless arise where injustice is done by annexing part of one municipal corporation to another, or by the division of such a corporation and the creation of a new one, or by the consolidation of two or more such corporations into' one of larger size. Examples illustrative of these suggestions may easily be imagined. (1) Consolidation will work injustice where one of the corporations is largely in debt and the other owes nothing, as the residents in the nonindebted municipality must necessarily submit to increased burdens in consequence of the indebtedness of their associates. (2) Like consequences follow where the change consists in annexing a part of one municipal corporation to another, in case the corpoartion to which those set off are annexed is greatly more in debt than the corporation from which they were set off.
“Hardships may also be suffered by the corporation from which a portion of its inhabitants, with their estates, may be set off, in case the corporation is largely in debt, as the taxes of those who remain must necessarily be increased in proportion as the polls and estates within the municipality-are diminished. Even greater injustice may arise in cases where the -legislature finds it necessary to circumscribe the jurisdiction of a county or town -by dividing their territory, and creating new counties or towns out of the territory withdrawn from their former boundaries.”

The settled doctrines of the courts to be acted upon whenever applicable, are that the State, at its pleasure, may modify or withdraw all such powers, may take without compensation such property, hold it itself, or vest it in other agencies, expand or contract the territorial area, unite the whole or a part of it with another municipality, repeal the charter and destroy the corporation. All of this may be done conditionally or unconditionally with or without the consent of the inhabitants or even over their protest. The State in all respects is supreme and its legislative body, conforming its action to the State Constitution, may do as it will, unrestrained by any provision of the Constitution of the United States. Although the citizens and property holders may by such changes suffer inconvenience and their property may be lessened in value by the burden of increased taxes, or for any other reason, they have no right by contract or otherwise, in the unaltered or continued existence of the corporation or its powers, and there is nothing in the Federal Constitution which protects them from these injurious consequences. The power is in the State and those who legislate for the State are alone responsible -for any unjust or oppressive exercise of it. Hunter v. Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151; City of Pawhuska v. Pawhuska Oil & Gas Co., 250 U.S. 394, 398, 39 S.Ct. 526, 528, 63 L.Ed. 1054, 1057; City of Trenton v. New Jersey, 262 U.S. 182, 186-187, 43 S.Ct. 534, 536, 67 L.Ed. 937, 941, 29 A.L.R. 1471; Faitoute Iron & Steel Co. v. Asbury Park, 316 U.S. 502, 509, 62 S.Ct. 1129, 1133, 86 L.Ed. 1629, 1635; Soliah v. Heskin, 222 U.S. 522, 524, 32 S.Ct. 103, 56 L.Ed. 294; Risty v. Chicago R. I. & P. Ry. Co., 270 U.S. 378, 390, 46 S.Ct. 236, 241, 70 L.Ed. 641, 650. However, it appears that in the instant Plan of Government no such injustice was wrought.

The City of Baton Rouge and ithe Parish of East Baton Rouge might have been coterminous and city taxes constitutionally levied upon rural as well as urban property, even though ithe inhabitants of the rural property would receive no benefit whatsoever from the municipal government.

In City of New Orleans v. Cazelar, 27 La.Ann. 156, it was held that where a city has extended its boundaries to include rural districts, those owning rural estates must pay city taxes. Therefore, the fishermen and trappers owning a little plot of marsh land at Chef Menteur must pay municipal taxes thereon, even though they receive no police or fire protection or any of the other benefits of the municipal government.

Plaintiff’s third contention concerns Section 1.08(b) of the Plan of Government, which section provides that “It shall henceforth be unlawful in the industrial areas to construct or alter any building for use in whole or in part for residential purposes.” It is contended that this provision is ultra vires as being unauthorized by any constitutional provision and that it restricts the use of land within these areas to industrial uses only, thus depriving the owners of their property without due process of law, in violation of Article 1, Section 2 of Louisiana’s Constitution, and the Fourteenth Amendment of the Constitution of the United States, and further denies them the equal protection of law, in violation of the same amendment to the Federal Constitution.

The general -rule of law is that only a person whose rights are injuriously affected by those provisions of the -law sought to be declared unconstitutional can 'be heard to challenge the constitutionality thereof. Ricks v. Department of State Civil Service, 200 La. 341, 369, 370, 8 So.2d 49, 61. The one exception to this rule is that a litigant has a right to challenge the constitutionality of provisions of a law which do not affect him, if other provisions thereof affecting the litigant must fall if the challenged provisions are held unconstitutional. State v. Louisiana Coca-Cola Bottling Co., 169 La. 167, 124 So. 769. This exception to the general rule relied upon by the plaintiff is evidenced by the petition which, after asserting the invalidity of this provision (Sec. 1.08(b), pleads the inseparability of all of the provisions o'f the Plan of Government. The right to challenge the validity of any of the provisions of the Plan of Government, if all of the provisions of the Plan of Government are inseparable, is admitted. However, there is no necessity, to decide this question, if the provisions of the Plan of Government are held to be severable and separable, and even if this single provision of Section 1.08(b) is decreed invalid, the validity of the remainder of the provisions of the Plan of Government can be sustained. Ricks v. Department of State Civil Service, 200 La. 341, 8 So.2d 49.

It is also a rule of law that the presence of a severability provision in a law is an admonition to the court of the intention that all valid provisions be retained in full effect, even though some provisions thereof be held invalid, and hence creates a presumption of severability in fact. State v. Baggott, 212 La. 795, 33 So.2d 523.

Section 11.10 of the Plan of Government provides:

“If any provision of this plan of government or the application thereto to any person or circumstance is held invalid the remainder of this plan of government and the applicability of such provision to other persons or circumstances shall not be affected thereby.”

Under this clause the single provision of Section 1.08(b) can be completely stricken out of the Plan of Government. The remainder of the provisions of the Plan of Government being declared sever-able, must stand. Under these circumstances, there is no necessity for this Court to pass upon the question presented.

In any event, it is clear that from constitutional authority, the State may directly or through its agencies limit land use, which is well recognized in the provisions of the Constitution relating to Zoning.

The fourth contention of plaintiff is that the provisions of Section 3.01(b) of the Plan of Government are ultra vires and invalid as having no constitutional or statutory authority.

Under the provisions of the Act No. 169 of 1898, as amended, known as the Charter O'f the City of Baton Rouge, as well as under the general laws of the State, the City of Baton Rouge was vested with the authority to construct, repair and maintain streets, sidewalks and public ways within its corporate limits. Section 3.01 (b) of the Plan of Government transferred these powers and functions to the Parish of East Baton Rouge. Authority for the transfer of these powers and functions from the City of Baton Rouge to the Parish of East Baton Rouge is expressly set out in Subdivision (2) of Section 3(a) of Article 14 of the Constitution of this State:

“(2) Subject to the Constitution and laws of this state with respect to the powers and functions of local government, as distinguished from structure, organization and particular distribution and redistribution of such powers and functions among the several units of local government within the Parish, such plan of government may provide, among other things:
“(a) For consolidation, or reorganization, of all or part of the local governmental units, agencies and subdivisions in the parish, for the elimination or transfer of power and -functions of such units, agencies, and subdivisions, * * * and for all matters necessary or appropriate to the effectuation of such provisions, including, without limitation, the assumption by one local governmental unit, agency and subdivision of indebtedness of another or other and transfer of official personnel records, funds and other property and assets; fj. ‡ ■ * ”

The power and function of constructing, repairing and maintaining streets, ways and sidewalks within the corporate limits of the City of Baton Rouge were granted to the City 'by Act 169 of 1898, as amended. Under the express provisions of the constitutional amendment, the Plan oí Government transfers such powers and functions to the Parish Government.

The plaintiff’s fifth contention challenges the validity, in whole or in part, of the four mill tax levied for general parochial purposes by the Parish Council, insofar as it affects taxable property within the present corporate limits of the City o'f Baton Rouge.

The question presented hinges on the construction of the following language of Section 3(a), Subdivision 3, of Article 14 of the State Constitution:

“The provisions of this Constitution relating to limitation of taxation by municipalities shall apply in the urban areas and those relating to the limitation of parish taxation shall apply in the industrial and rural areas.”

The contention is that as the tax limitation by municipalities, under Article 14, Section 12, as amended, is seven mills, the quoted provision was intended to limit taxation within the urban area to seven mills, and therefore, to exempt urban property from parochial taxes.

Prior to the adoption of Article 14, Section 3(a), the limitation of taxation by municipalities was seven mills, but this was never intended as preventing the parish from levying a tax upon property within municipalities. As a matter of fact, it could not be so understood, for the language is “by municipalities” and the four mill tax with which we are now concerned is not levied “by municipalities” but is levied by the parochial authorities. No language is used which exempts urban property from parochial taxes or which prevents such taxation of urban property. The quoted language must be read with all other language of Subdivision (3) of which it forms a part. All .that the quoted provisions of Subdivision (3) were designed to do, and all that they do; is to clarify the matter of taxation of these three areas, and to distinguish the tax limitations on industrial areas and rural areas, on the one hand, from the tax limitation on urban property, on the other. The quoted provision no more prevents the parish from levying a four mill tax on property within the City of Baton Rouge than it prevents the State from similarly levying a 5.7S mill tax on property within the City of Baton Rouge.

The argument advanced by plaintiff on this point asserts an exemption from parochial taxation in whole or in part of urban property in East Baton Rouge Parish. It is well recognized that .an exemption from taxation is strictly construed and must be clearly and unequivocally and affirmatively established. Pearce v. Couvillon, 164 La. 155, 113 So. 801. Not only does plaintiff’s argument on this point fail to meet the necessary test but all of the language of Article 14, Section 3(a) indicates a clear intention on the part of .the people of Louisiana not to exempt urban property in East Baton Rouge Parish from parochial taxes.

An alternative argument of plaintiff on this point is that the four mill parish tax levied on taxable property within the City of Baton Rouge is unconstitutional to the extent of one-half thereof, as being vi-olative of Article 14, Section 8 of the Constitution of Louisiana. This provision reads:

“No parish, parish of Orleans excepted, shall levy for parochial purposes, on property located wholly within incorporated cities and towns of the State, having a population in excess of one thousand (1000) inhabitants, according to the last census, which provide and maintain systems of street paving, any general parochial tax in excess of one-half the levy for general parochial purposes; provided, that this section shall not apply in a parish which had a general unbonded indebtedness on January 1st, 1921, until said debt has been paid or funded into bonds.”

The City of Baton Rouge no longer provides and maintains a system of street paving and, therefore, the property within its territorial limits is subject to the full parochial levy. Section 3.01 of the Plan of Government provides:

“The parish council of East Baton Rouge Parish shall, in addition to the powers and duties conferred or imposed by other provisions of this plan of government, have:
“(b) Exclusive authority, saving the authority of the State o'f Louisiana, throughout the parish, including the City of Baton Rouge, with regard to the construction, opening, widening, extending, closing, narrowing, improving, grading, paving, repaving, adorning with trees, shrubs and vines, curbing, guttering, cleaning, repairing, and maintaining, of streets, highways, boulevards, parkways, bridges, alleys and other public ways, and the grading, improving, constructing and reconstructing of sidewalks, including the authority to assess the whole or part of the cost of any street, alley or sidewalk improvement on the owners o'f the abutting property. To that end there are hereby transferred to the parish and to the parish council as .the governing body thereof, except as specifically provided in this plan of government, all the powers and duties hitherto conferred or imposed on the City of Baton Rouge by its charter or by the general laws of the state relating -to the above enumerated matters, * *

Section 1.07 of t'he Plan of Government, in part, provides:

“ * * * There are hereby transferred, as of the first day of January, 1949, to. East Baton Rouge Parish the use of all lands, building and equipment, belonging to the City of Baton Rouge, used in the construction, maintenance, repair and cleaning of the streets, boulevards, parkways, bridges, alleys and other public ways. * * * ”

Under Section S.03 all costs and expenses of operation of t'he Division of Street Maintenance in the consolidated Department of Public Works are to be defrayed solely and exclusively by appropriations from the Parish Council. In 1949 the budg-et of the City of Baton Rouge, as shown by documentary evidence in the record, did not appropriate anything for street maintenance or repair. Such an appropriation would be illegal under the Plan o'f Government. Consequently, .the City of Baton Rouge no longer “maintains a system of street paving” which exempts property therein from one-half of the general parochial taxes. Under the Plan of Government, the City of Baton Rouge bears no part of the expense of maintaining its streets. The Parish of East Baton Rouge bears the entire burden thereof. There is no basis for tire claimed exemption from one-half the levy for general parochial purposes on property located wholly within the corporate limits.

Plaintiff’s sixth contention is that the extension of the corporate limits of the City of Baton Rouge effected by Sections 1.03 and 1.08(a) of the Plan of Government is invalid for the reasons: '(1) that there was no compliance with the provisions of Act No. 315 of 1946, setting forth the procedure for the enlargement of municipal limits; and (2) that if Article 14, Section 3(a) of the State Constitution is held to authorize the extension of such city limits in the Plan of Government, then both are unconstitutional as being violative of the due process of law clause of Article 1, Section 2 of the Constitution of Louisiana, and of the equal protection and due process of law clauses of the Fourteenth Amendment to the constitution of the United States.

The first argument can be easily disposed of and set aside. Subdivision 2 of Article 34, Section 3(a) of the Constitution of Louisiana expressly provides that such plan of government may provide among other things for the extension of municipal limits. There was, therefore, no need to comply with the provisions of Act No. 315 of 1946, as the extension of the corporate limits of the City o'f Baton Rouge could be made in the Plan of Government itself, and could be made effectual on the date when adopted by the majority of the electors of East Baton Rouge Parish voting at the election to accept the Plan of Government.

Constitutional provisions are subject to the same rule of interpretation and construction as are applicable to other laws. Nicholson v. Thompson, 5 Rob. 367; Landry v. Klopman, 13 La.Ann. 345; Orleans Parish School Board v. Murphy, 156 La. 925, 101 So. 268; 11 American Jurisprudence 658, Constitutional Law, Section 49; 16 C.J.S. Constitutional Law, § 15, page 51.

Plaintiff finally argues that even if Article 14, Section 3(a) of the Constitution did authorize the extension of the city limits by the Plan of Government, this extension, without the consent and approval of the voters and taxpayers of the territory thus annexed, deprives them of their property without due process of law and denies them equal protection of the laws, in violation of the Fourteenth Amendment to the Federal Constitution.

It is well settled that municipalities are creatures of the State, established purely for convenience in providing effective government at local levels, with functions, powers, duties and obligations delegated or imposed by the State, and that there is nothing in the Fourteenth Amendment and in other provisions of the Federal Constitution prohibiting the State from making any change in such functions, powers, duties and obligations. The State is supreme in this sphere of action. Municipalities are creatures of the Legislature, entirely subject to the legislative will. State ex rel. Porterie v. Walmsley, 183 La. 139, 162 So. 826 and cases therein cited.

The general rule, as stated in 37 American Jurisprudence 639, Municipal Corporations, Section 23, is:

'“In the absence of constitutional limitations, it is generally considered that the power of a state legislature over the boundaries of the municipalities of the state is -absolute and that the legislature has power to extend the boundaries of a municipal corporation, or to authorize an extension ■of its boundaries without the consent of the inhabitants of the territory annexed, or the municipality to which it is annexed, or even against their express protest. 5}s ‡ í]í »

In a specific consideration of the constitutional aspects of the matter, it is said, 37 American Jurisprudence 646-647, Municipal Corporations, Section 29:

“A statute annexing, or authorizing the annexation of territory to a municipal corporation has been held not to deprive the people in the territory affected of any constitutional right of local self-government. Nor does it in any way violate the rights of the individual residents of the affected territory either as citizens or as taxpayers. There is no contract between the citizens and taxpayers of a municipal corporation and the corporation itself that the citizens and taxpayers shall be taxed only for the uses of that corporation, and shall not be taxed for the uses of any like corporation with which it may be consolidated. It is held by the great weight of authority that the courts cannot interfere with the annexation of territory to a municipal corporation even if the effect is to subject the annexed territory to taxation for municipal purposes from which it derives no benefit. A statute providing for the annexation of territory to an existing municipality is not objectionable because it may result in the taxation of property within the annexed territory to pay a pre-existing indebtedness of the municipality to which it has been added. * * * Neither is it unconstitutional as depriving the people of the annexed territory of their property without due process of law through the imposition of taxes or additional taxes, as tvhere, by the method of voting prescribed by the annexing statute, the voters of the lesser municipality are overpowered by the voters of the larger and the annexation compelled without their consent and against their protest.” (Italics ours.)

In discussing the necessity for the consent of the electors or taxpayers of the annexed areas to the annexation, 37 American Jurisprudence 648, Municipal Corporations, Section 30 states the law on the subject as follows:

“ * *' * Inasmuch as the legislature may provide for the annexation of territory to municipal corporations without the consent of the inhabitants of the annexed territory, the inhabitants cannot complain of any limitation upon their ability to express their disapproval if the legislature sees fit to make the statute conditional upon its acceptance by the affected territory. Thus, if the annexation of a small municipal corporation to a large one is made conditional upon .its acceptance by a majority of the voters of the two municipal corporations taken together, the citizens of the smaller one cannot complain, although their vote is overpowered by that of the larger one; nor is it any ground for objection that the right to vote upon the acceptance of the act is limited to the taxpaying electors of the territory which it is sought to annex, or, still less, that it is left to those possessing the suffrage at general elections, so that owners of taxable property in the annexed district having no right to vote, such as nonresidents and corporations, have no voice in the matter.”

It is easier to find fault with a Plan of Government proposed than to propose a Plan of Government that is faultless, and by following the presumption of law and of fact which must be indulged in favor of the legality of Article 14, Section 3(a) of the Louisiana Constitution, the conclusion is inescapable that the judgment of the district court should be affirmed.

For the reasons assigned, the judgment appealed from is affirmed at appellant’s cost.

FOURNET, J., concurs in the decree.

McCALEB, Judge

(concurring).

I agree that the challenge on Act No. 389 of 1946, which amended Article XIV of the Constitution by adding thereto a new section designated as Section 3(a), is not well founded. Since the Act has become part of the organic law by vote of the people, the attack thereon is restricted to a determination of whether it has been legally adopted — for, if it was, any general clauses or other provisions of the Constitution with which it might conflict must yield as it is a special ordinance having reference solely to a plan of government for a particular parish.

The claim of invalidity relative to the adoption of the amendment is that it is violative of that portion of Article XXI, Section 1 of the Constitution, which provides that “When more than one amendment shall be submitted at the same election, they shall be so submitted as to enable the electors to vote on each amendment separately.”

This claim is not tenable. Unlike Graham v. Jones, 198 La. 507, 3 So.2d 761, where an attempt was made in one amendment to repeal twenty sections of the Constitution, amend and rewrite eight and add seventeen new ones, Act No. 389 of 1946 has but a single purpose and object — a plan for the government of a particular subdivision of the State. Indeed, the attack herein is on a parity with that in Hotard v. City of New Orleans, 213 La. 843, 35 So.2d 752, which, in my opinion, controls the decision in this case.

The other assaults, i. e., that the amendment violates the equal protection and due process clauses of the Federal Constitution, cannot be considered in a suit brought by the State. These constitutional guarantees are for the protection of the person and property of the .individual who alone may demand fulfillment upon invasion.

I concur in the decree.