author: BLANCHE, Justice. LEMMON, Justice,

text:
    In re J. A. “Bob” WILKES, Justice of the Peace.
    No. 81-0-0851.
    Supreme Court of Louisiana.
    June 22, 1981.
    Rehearing Denied Sept. 4, 1981.

      William R. Alford, Jr., Eugene J. Murret, New Orleans, for plaintiff-applicant.
    George C. Stringer, Jr., Harahan, for defendant-appellee.
   Disciplinary Proceeding

BLANCHE, Justice.

This is a disciplinary proceeding against a justice of the peace. La.Const. Art. V, § 25(C); Supreme Court Rules, Rule 23. The Louisiana Judiciary Commission conducted an evidentiary hearing, made findings of fact and law, and recommended that Justice of the Peace Wilkes be suspended from his office for a period of ninety days. The Commission then filed its recommendation with this Court for review.

The Judiciary Commission grouped its allegations of misconduct into two general charges. Charge I alleges that Judge Wilkes, in his official capacity, collected and attempted to collect illegal fees from people or businesses in whose behalf he had collected amounts due on open accounts and “N.S. F.” checks. It is alleged that these actions amounted to willful misconduct and conduct prejudicial to the administration of justice, proscribed by La.Const. Art. V, § 25(C), violations of Canons 1, 2 and 5(C)(1) of the Code of Judicial Conduct, and violations of R.S. 13:2586.1, proscribing the collection of fees in criminal matters. Charge II alleges that Judge Wilkes, in his official capacity, threatened to arrest individuals for failure'to satisfy purely civil obligations. It is alleged that these actions also amounted to willful misconduct and conduct prejudicial to the administration of justice, proscribed by La.Const. Art. V, § 25(C), and violations of Canons 1 and 2 of the Code of Judicial Conduct. The Commission found Judge Wilkes guilty of all violations alleged.

FACTS RELEVANT TO CHARGE I

Eight witnesses testified before the Commission concerning Charge I. Mr. Sal Mor-tillaro testified that sometime in 1978 he attempted to collect on an N.S.F. check. The Jefferson Parish Sheriff’s Office referred him to Judge Wilkes’ office. Mr. Mortillaro left the check with one of Judge Wilkes’ employees. The debtor on the check then contacted Mr. Mortillaro to inform him that the check amount had been paid to Judge Wilkes. When Mr. Mortillaro went to pick up the money, an employee gave Mr. Mortillaro a portion of the check amount, but informed him that the remaining percentage was being withheld as a collection fee. Mr. Mortillaro contacted his brother Steve, an attorney and twice-unsuccessful political opponent of Judge Wilkes, about collecting the remainder from Judge Wilkes. Then Judge Wilkes personally went over to Sal Mortillaro’s office and brought the remainder of the money. Judge Wilkes was said to have told Sal Mortillaro that there was a mistake, since he did not charge friends.

Steve Mortillaro testified that he sent two demand letters to Judge Wilkes requesting the return of an alleged twenty-five (25%) percent fee. When this testimony is coupled with the testimony of Sal Mortillaro, the implication is that except for Steve Mortillaro’s actions, Judge Wilkes would never have been prompted to return the money which represented the fee.

Ms. Shirley Taylor, a manager of the Taylor Furniture Company, testified that sometime in 1979, the Jefferson Parish District Attorney’s Office referred her to Judge Wilkes after she had trouble collecting amounts due on two N.S.F. checks. Ms. Taylor brought the two checks to Judge Wilkes’ office. After Judge Wilkes presumably took some action, the debtor on one of the checks personally tendered payment to Ms. Taylor. Ms. Taylor then contacted Judge Wilkes’ office and she testified that the secretary in the office informed her that she must pay a fee of twenty-five (25%) percent. However, Ms. Taylor never did pay the fee. After this turn of events, Ms. Taylor never heard anything further from Judge Wilkes concerning collection of the other check.

Mr. Michael J. Marino is the owner of International Bicycle Shop, Inc. He testified that he contacted Judge Wilkes in 1974, after an individual with Mississippi identification stopped payment on a check issued one day earlier for the purchase of a bicycle. The Jefferson Parish Sheriff’s Office suggested that Mr. Marino contact Judge Wilkes concerning the swearing of a criminal affidavit. Marino testified that when he went to Judge Wilkes’ office, the judge informed Marino that he would call the debtor and scare him, but that there would be a forty (40%) percent fee. Judge Wilkes told Marino that he couldn’t help Marino collect the debt if Marino did not want to agree to those terms.

Eventually, Marino “made enough noise” that Wilkes issued a warrant for the arrest of the debtor. Marino mailed a copy of the warrant to the debtor and the debtor promptly paid Marino. Marino paid no fee to Judge Wilkes.

Three employees of the Gaylord’s Department Store chain also testified as to the systematic deduction of a twenty-five (25%) percent collection fee on N.S.F. check collections. William Hornberger, Jr., regional security supervisor with Gaylord’s National Corporation, testified that in approximately 1978, when he personally asked Judge Wilkes to let him examine opened files and queried Wilkes regarding the twenty-five (25%) percent collection fee, “he (Wilkes) got made as heck and threw me out of his office.” Mr. Hornberger also testified that although Judge Wilkes claimed to have made the fee arrangement with one of the corporation people in New York, he had contacted people in the company and could discover no formal arrangement of any kind.

Janet Pilgrim and Diane Christian, local employees of two Gaylord’s stores, testified that they each brought several bad checks each month to Judge Wilkes. The cumulative time period of these activities ran from some time in 1979 until August of 1980. They also testified that Judge Wilkes’ office always deducted a twenty-five (25%) percent collection fee on all checks collected. Ms. Pilgrim added that in July of 1980, Judge Wilkes queried her as to whether she felt that Gaylord’s was forced to pay the fee and whether she could get a letter from Gaylord’s that they voluntarily gave him the fee. She further stated that at that time, Judge Wilkes informed her that until allegations of misconduct had been cleared, he would no. longer make collections for Gaylord’s.

Ms. Margante Smitherman, an employee of Judge Wilkes from October 1978 until March 1980, testified concerning the collection procedure. When a person brought in a bad check, a letter would be sent to the debtor and a copy of the check would be stapled to a carbon copy of the demand letter and retained in a file. When a debtor came in and paid an N.S.F. check, the check would be returned to the debtor. The payment would be turned over to the Judge or placed in petty cash. When the creditor came into the office, he would be paid the amount of the debt less a twenty-five (25%) percent deduction labelled a collection fee.

FACTS RELEVANT TO CHARGE II

Mr. Don Johnson, a publisher, testified that about two years ago, a dispute arose between himself and another company which claimed that Johnson owed it $1600 on an open account. Although Johnson had retained counsel to represent him in the dispute, he testified that he received a letter from Judge Wilkes threatening to send him to jail if the debt was not satisfied. Johnson then called Judge Wilkes, and testified that Judge Wilkes told him that “people who don’t pay bills in my District go to the penitentiary.”

Mr. Harold Quinlivan, a tax accountant and contractor, testified that he received a letter dated December 2, 1977 to the effect that if he did not pay a particular bill for $11.50, “. . . a warrant for [his] arrest [would] be issued.” Mr. Quinlivan further testified that he does one million dollars’ worth of purchasing each year for his business, and often has disputes on bills. Enraged by the letter, Quinlivan called Judge Wilkes. Judge Wilkes told Mr. Quinlivan to “just forget about” the entire incident.

A photostatic copy of the letter to Mr. Quinlivan was filed in the record. In addition, two other letters addressed to individuals in behalf of Gaylord’s were filed in the record. All of the letters are form letters bearing the name and seal of the Parish of Jefferson, as well as Judge Wilkes’ name, title and address. The form content is as follows:

“This Court is holding a check dated_ in the amount of $_given by you to -This check has been returned by your bank as being
Restitution is now being demanded. If this Court does not hear from you immediately, a warrant for your arrest will be issued.”

The form letter also bears Judge Wilkes’ signature. In Mr. Quinlivan’s case, the form was altered to state that Judge Wilkes was holding a bill given to Mr. Quinlivan by Phil’s Window Repair. The second sentence of paragraph one was deleted by typewriter through the generous use of the letter “X” over each space in the sentence.

JUDGE WILKES’ TESTIMONY

Judge Wilkes testified in his own behalf. He presented an affidavit from a former manager of one Gaylord’s branch store in which the manager claims to have had an “arrangement” with Wilkes from 1965 to 1972, whereby Wilkes was allowed to keep ten (10%) percent of all amounts collected on bad cheeks in order to offset office expenses, which amount generally totalled $100 per year. He also admitted that on some occasions, he did collect a percentage on check collections to help defray office expenses.

Concerning the particular factual allegations contained in the charges, Judge Wilkes denied making any statements to the Mortillaro brothers regarding a collection fee or favored treatment for friends. However, concerning the other factual allegations, Wilkes stated that he could not recollect specific statements or arrangements with the other witnesses concerning collection fees, nor could he remember threatening anyone with incarceration for failure to pay civil obligations and, therefore, could not deny these charges. With regard to imprisonment threats against Mr. Quinlivan, he denied knowledge of the letter sent to him, since Wilkes claims to have known that he could not put people in jail for failing to pay debts.

The remainder of Judge Wilkes’ defense was an attempt to discredit the witnesses against him. He characterized the Mortilla-ros’ testimony as an attempt to discredit him after he defeated Steve Mortillaro twice at the polls. Through cross-examination, counsel for Judge Wilkes elicited testimony from Mr. Marino that Mr. Mortillaro once bought a bicycle from him. Counsel also elicited testimony from Mr. Johnson that he met Mr. Mortillaro after the occurrence of the events which he related at the hearing. And finally, Mr. Quinlivan testified that he was a client of Steve Mortilla-ro’s law associate and allowed Mr. Mortilla-ro to utilize the letter forming a basis of Charge II during one of Mortillaro’s unsuccessful bids for Judge Wilkes’ office.

FINDINGS OF THE COMMISSION

The findings of fact with regard to Charge I can be summarized as follows:

(1) Judge Wilkes attempted to collect a twenty-five (25%) percent fee from Mr. Sal Mortillaro.

(2) Judge Wilkes informed Michael Mari-no, Jr., that a forty (40%) percent collection fee would be charged if Mr. Marino wished the Justice of the Peace to aid him in collecting checks.

(3) Judge Wilkes’ office attempted to collect a twenty-five (25%) percent collection fee from Ms. Shirley Taylor on an N.S.F. check which she presented to the office of the Justice of the Peace.

(4) Between 1974 and August 1980, Judge Wilkes systematically used his office as a collection agency for Gaylord’s National, Inc. The fee was twenty-five (25%) percent of the amount collected.

(5) Judge Wilkes charged Dr. Dan Fri-sard $5.00 for collecting $27.50 due on an N.S.F. check.

With regard to Charge II, the Commission found that Judge Wilkes did cause to be sent to Mr. Quinlivan a letter threatening him with arrest for failure to pay an amount due on an “open account”. It also found that Judge Wilkes caused a letter to be sent to Don Johnson threatening him with arrest for his failure to pay a totally “civil” obligation.

The Commission found as a matter of law that the foregoing actions constituted willful misconduct relating to Judge Wilkes’ official duty and persistent public conduct prejudicial to the administration of justice that brings the judicial office into disrepute, and also constituted violations of Canons 1 and 2 of the Code of Judicial Conduct. With regard to the findings forming the basis of Count I, the Commission also concluded that Judge Wilkes violated Canon 5(C) of the Code of Judicial Conduct and R.S. 13:2586.1.

REVIEW BY THIS COURT

At the outset, this Court finds manifest error in the factual finding concerning Dr. Dan Frisard. The only substantial mention of Dr. Frisard was during the examination of Judge Wilkes. Judge Wilkes could not recall imposing a collection fee upon Dr. Frisard, but added, “. . . if that’s what he says, that would also be correct.” However, Dr. Frisard did not testify at the hearing and there is no evidence that Fri-sard would clearly and convincingly substantiate the charges other than an orally offered stipulation, assented to by counsel for Judge Wilkes, that “if these witnesses were called, they would testify to these charges.”

With regard to the factual findings based upon testimony of the other witnesses, our review of the record indicates that the factual findings substantially comport with the testimony and there is no evidence in the record which could lead this Court to dispute the implied credibility determinations of the Commission. ■ Thus, this Court treats these findings of the Commission as its own.

With the exception of the events related by Mr. Marino and some of the events pertaining to the Gaylord’s “account”, all of the facts found by the Commission occurred after the effective dates of the most recent Constitution and Code of Judicial Conduct.

Louisiana Constitution, Art. V, § 25(C), (1974) provides in pertinent part:

“On recommendation of the judiciary commission, the supreme court may censure, suspend with or without salary, remove from office, or retire involuntarily a judge for willful misconduct relating to his official duty, willful and persistent failure to perform his duty, persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute, conduct while in office which would constitute a felony, or conviction of a felony.”

In addition to these substantive grounds for disciplinary action against a judge, this Court, in accordance with its constitutional power of supervision over all lower courts, adopted the Code of Judicial Conduct, effective January 1, 1976. See La.Const. Art. V, § 5(A) (1974); In re Babineaux, 346 So.2d 676 (La.1977), U.S. cert. den., Berry v. Judiciary Commission of La., 434 U.S. 940, 98 S.Ct. 431, 54 L.Ed.2d 299 (1977). The Code is binding on all judges, and violations of the Canons provided by this Code can serve as a basis for the disciplinary action provided for by Article V, § 25(C) of the Constitution. See In re Babineaux, supra.

CHARGE I

The collection of a contingency fee by a justice of the peace for services performed in the line of duty is not permitted by law. R.S. 13:2586 prohibits justices of the peace from demanding any fees in civil matters other than those scheduled in the statute. Nowhere in the statute is a contingency fee allowed. With regard to criminal matters, R.S. 13:2586.1 and its predecessors’ provisions clearly prohibit justices of the peace from receiving any fees in criminal and peace bond matters other than salaries fixed by governing authorities. Since fee arrangements of the type employed by Judge Wilkes were unlawful regardless of whether the complaints of the witnesses were civil or criminal in nature, this Court need not determine, as the Commission did, that the arrangements were violations of R.S. 13:2586.1.

Not only did the imposed and attempted fee arrangements violate the express provisions of statutory law, they also violated Canons 1, 2 and 5(C)(1) of the Code of Judicial Conduct. The basic theme running throughout these articles is that a judge must at all times preserve the integrity, independence and impartiality of his own office and the judiciary. Canons 1 and 2 state this in a general manner while Canon 5 deals specifically with financial activities.

The Canon most closely related to the findings of fact is Canon 5. The standard fee arrangements which Judge Wilkes employed and attempted to employ in the conducting of his official duties gave and would give him a financial interest in the outcome of disputes before his court both in terms of the initial liability of an alleged debtor and the amount due. In order to receive a fee, Judge Wilkes would have to decide that the alleged creditor in the collection matter was entitled to recovery. After that, the dollar amount of his fee would depend upon the amount he would find due under the obligation.

While there is no testimony which indicates that Judge Wilkes acted partially because of the arrangements, Canon 5 proscribes financial and business dealings that “tend to reflect adversely on his impartiality”. There can be little doubt that a fee arrangement of the type utilized by Judge Wilkes tended to reflect adversely on his impartiality since his entitlement to a fee in collection cases depended on judgment in favor of a particular class of persons.

Similarly, it must be said that Judge Wilkes violated the provisions of Canon 1, which requires a judge to observe and maintain a high standard of conduct so that the integrity and independence of the judiciary may be preserved. By doing acts which tended to reflect adversely on his own impartiality with regard to his judicial tribunal, his conduct could only serve as a partial undermining of the soundness of the entire judiciary.

Canon 2 seeks to avoid the appearance of impropriety on the part of judges by requiring a judge to respect and comply with law as well as conduct himself in a manner that promotes public confidence in the integrity and impartiality of the judiciary. In addition, a judge must not allow personal and business relationships to interfere with his impartiality. It is quite clear that Judge Wilkes’ fee arrangements were not sanctioned by law. See discussion, supra. Thus, he failed to comply with the requirements of this Canon.

In defense, Judge Wilkes claims that he had not even heard of the Code of Judicial Conduct (and presumably the Constitutional proscriptions) prior to the institution of the instant proceedings. However, ignorance of these provisions of the Code (and Constitution) is no defense so long as Judge Wilkes intentionally or consciously committed acts for which Art. V, § 25(C) of the Constitution recognizes a disciplinary action. See In re Dupont, 322 So.2d 180, 184 (La.1975); In re Haggerty, 241 So.2d 469, 478; State v. O’Hara, 252 La. 540, 211 So.2d 641, 648 (La.1968); see also C.C. art. 7; R.S. 14:10, 11, 17.

Considering the facts in support of the statutory and Code of Judicial Conduct violations, this Court concurs in the findings of the Judiciary Commission that Judge Wilkes is guilty of willful misconduct relating to his official duty and persistent and public conduct prejudicial to the administration of justice that brings the judicial office into disrepute. La.Const. Art. V, § 25(C). While acting in his official capacity, he intentionally, over a course of years, entered and attempted to enter unlawful fee arrangements giving himself a stake in the particular outcome of disputes before his tribunal.

Judge Wilkes’ actions with respect to Mr. Marino in 1974 and the Gaylord’s account from 1974 through 1975 occurred prior to the effective date of the Code of Judicial Conduct, January 1, 1976. In addition, some of these same actions occurred prior to the effective date of the most recent Louisiana Constitution, midnight, December 31, 1974. However, the violations taken as a whole are so obviously improper that they are sufficient, standing alone, to constitute violations of the substantive provisions of Art. V, § 25(C) of the Constitution of 1974, as well as an almost identical provision of Art. IX, § 4(B) of the Constitution of 1921, as each applies to the facts at issue. CHARGE II

The failure of a person to make payments on an open account is not, of itself, a crime in Louisiana. It is, therefore, highly improper for a judge to threaten to imprison someone merely because he receives word that an account has not been paid. The proper remedy in such a situation is for a complainant to institute civil proceedings for recovery of the amount allegedly due.

The evidence clearly establishes that on at least two occasions, Judge Wilkes used his office to threaten individuals with arrest and incarceration for mere failure to make payments on open accounts. And since Judge Wilkes testified that he knew that the law did not allow incarceration for failure to pay one’s bills, he cannot claim that his conduct was excusable due to ignorance of the Constitution and Code of Judicial Conduct. Thus, his actions clearly constituted a low standard of conduct and clearly created an appearance of impropriety. Code of Judicial Ethics, Canons 1, 2. They also constituted willful misconduct related to his official duty and at least when combined with the long line of actions enumerated in Charge I, persistent and public conduct prejudicial to the administration of justice. La.Const. Art. V, § 25(C).

SANCTIONS

After considering the testimony, the Judiciary Commission recommended that Judge Wilkes be suspended without pay from the performance of any functions associated with his office for a period of ninety days.

In mitigation, Judge Wilkes argues that his primary concern during his tenure as Justice of the Peace has been the expeditious and fair resolution of disputes with minimum expense to the parties. He claims that if during his tenure any misconduct did occur, it was merely the result of bad judgment by one untrained in law and unaware that the Code of Judicial Conduct applied to him. In support of his claim of fairness, Judge Wilkes filed with this Court several letters from various individuals, businesses and civic organizations attesting to his impartiality and high integrity.

Judge Wilkes did testify that he voluntarily stopped all practices alleged in the charges as improper prior to the hearing date, and he assured the Commission at the hearing that he would refrain from engaging in those practices in the future. He also informed the Commission that he would inform other Justices of the Peace of the applicability of the Code of Judicial Conduct to them, and explain his situation to them in order that they might avoid similar improprieties.

While this Court does not question Judge Wilkes’ sincerity, it cannot condone his actions. Judge Wilkes, as Justice of the Peace, is governed by the same constitutions and laws which govern all courts and judges of this state. He is bound to apply the law as written by the legislature and construed by the various courts. That he is a layman untrained in law does not relieve him of his responsibility to follow the rule of law, nor does it empower him to unilaterally supersede substantive law and procedure, especially where, as here, there is not one scintilla of evidence indicative of a good faith attempt at compliance with law.

Judge Wilkes’ blanket disregard for the law seriously undermines the integrity of the entire judicial process. The testimony of all the witnesses indicates their impression that Judge Wilkes was using his official governmental position to act as a collection agency for private parties. When citizens in contact with any court get the impression that courts serve only the interests of a few, the legitimacy of the entire court system is seriously undermined. Mere censure for conduct so serious can only heighten the disdain.

In light of the seriousness of the offenses proven in relation to the particular office, it is ordered that Justice of the Peace J. A. “Bob” Wilkes, is hereby suspended from all rights and duties connected with his position, without any compensation, for a period of ninety days from finality of this judgment.

LEMMON, J., dissents and assigns reasons.

MARCUS, J., dissents for reasons assigned by LEMMON, J.

CALOGERO, J., dissents only from the extent of disciplinary action imposed and joins in the reasons assigned by LEMMON, J.

LEMMON, Justice,

dissenting.

Arguably Judge Wilkes, motivated by good intentions, attempted to collect on debts or bad checks by personal efforts and then illegally charged fees on successful collections to defray office expenses, when he could have accepted suits on the small claims and legally demanded and received fees under R.S. 13:2586. But even if proper motivation is assumed, the practice was wrong and must be condemned.

The difficult question is the appropriate penalty. This record contains almost 200 letters from businessmen and civic leaders who praise Judge Wilkes’ efforts, accomplishments and willingness to serve the public. It is also asserted that these same practices are widespread among justices of the peace, who may not know of the prohibitory laws. There are undertones in this case of political motivation in some of the charges against Judge Wilkes. Finally, and significantly, Judge Wilkes immediately discontinued all objectionable practices when notified by the Commission.

When all circumstances are considered, I believe that censure is sufficient disciplinary action to punish any misconduct by Judge Wilkes and to warn any other justices of the peace that such practices are wrong and will be dealt with more severely in the future.

      . The findings of fact all deal with a period of time prior to the adoption of a 1980 amendment to this statute which changed the amounts of most of the fees and deleted the word “and” at the end of paragraph (25).

        R.S. 13:2586 prior to this amendment provided as follows:
      “A justice of the peace may demand and receive the following fees and no others in civil matters: (1) Filing and docketing each suit, twenty-five cents; (2) Writing, taking, and signing affidavits, twenty-five cents; (3) Copy of any document, or making transcript of appeal when required, for each one hundred words, fifteen cents; (4) Issuing citations, fifty cents; (5) Issuing copy of citations, twenty-five cents; (6) Filing all documents, ten cents; (7) Rendering and entering any interlocutory judgment, twenty-five cents; (8) Rendering and entering a final judgment, fifty cents; (9) Issuing notice of judgment, fifty cents; (10) Issuing copy of notice of judgment, twenty-five cents; (11) Issuing order of appeal, fifty cents; (12) Issuing notice of appeal, fifty cents; (13) Issuing copy of notice of appeal, twenty-five cents; (14) Issuing writ of fieri facias, one dollar; (15) Filing return on writ on fieri facias, twenty-five cents; (16) Entering satisfaction of judgment, fifty cents; (17) Certified copy of judgment, fifty cents; (19) Issuing a subpoena for a witness, each, twenty-five cents; (19) Issuing a copy of a subpoena for a witness, each, twelve and a half cents; (20) Issuing an attachment for a witness, twenty-five cents; (21) Issuing order and writ of subpoena duces tecum, fifty cents; (22) Issuing order and writ of attachment, sequestration, or injunction, seventy-five cents; (23) Filing of any of above writs, twenty-five cents; (24) Filing and entering any return not provided for above, ten cents; (25) Writing, taking, and approving bond when required, one dollar; and (26) Executing a commission to take testimony, one dollar.” Added Acts 1960, No. 32, § 4.

      . R.S. 13:2586.1, added by Acts 1975, No. 87, § 1, provides:
      “Justices of the peace and constables shall receive no fees in criminal matters or in peace bond cases, but in lieu thereof they shall receive such salaries as are fixed by the parish governing authority and paid by the parish, which salaries shall be graded.”

      . Some of the factual findings deal with a period of time prior to the adoption of R.S. 13:2586.1. Prior to the adoption of this statute, fees of justices of the peace were controlled by Art. VII, § 50 of the Constitution of 1921. When the Constitution of 1974 was adopted prior to the enactment of this statute, the provisions of Art. VII, § 50 were deemed statutory by the 1974 Constitution until arranged in proper statutory form or modified. La.Const. Art. XIV, §§ 16(A)(5), 16(B) (1974). Thus, the predecessor of R.S. 13:2586.1, as stated in the 1921 Constitution and retained by the 1974 Constitution until the adoption of Act No. 87 of 1975, provided in part:
      “... They [Justices of the Peace] shall receive no fees in criminal matters, nor in peace bond cases, but in lieu thereof such salaries as may be fixed by the police jury, and paid by the parish, which salaries shall be graded.”

      . The Commission incorrectly assumed that since issuing worthless checks with fraudulent intent is a crime, R.S. 14:71, any fee received for collecting amounts due on an N.S.F. check was necessarily a fee received in connection with a criminal matter. However, there is no indication in the record that criminal charges were pending on any of the collections involved in the charges, or that the actions taken by Judge Wilkes amounted to anything more than attempts to collect amounts due under civil obligations.

      . “CANON I. A Judge Should Uphold the Integrity and Independence of the Judiciary. An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective. As a necessary corollary, the judge must be protected in the exercise of his judicial independence.”
      * * * * * *
      “CANON 2. A Judge Should Avoid Impropriety and the Appearance of Impropriety in

        All His Activities. A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. B. A judge should not allow his family, social, or other relationships to influence his judicial conduct or judgment. He should not lend the prestige of his office to advance the private interest of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him. He should not testify voluntarily as a character witness.”
      * * * * * *
      “CANON 5. A Judge Should Regulate His Extra-Judicial Activities to Minimize the Risk of Conñict with His Judicial Duties. * * * C. Financial Activities. (1) A judge should refrain from financial and business dealings that tend to refíect adversely on his impartiality, interfere with the proper performance of his judicial duties, exploit his judicial position, or involve him in frequent transactions with lawyers or persons likely to come before the court on which he serves. ”

      . La.Const. Art. IX, § 4(B) (1921) provides in part:
      “B. Grounds for removal or involuntary retirement. A justice or judge may be removed from office or retired involuntarily for willful misconduct relating to his official duty or willful and persistent failure to perform his duty, or for habitual intemperance, or for conviction, while in office, of a felony.” (emphasis added)


source: Caselaw Access Project

author:
WATSON, Justice.
     CALOGERO, Justice,

license: Public Domain

text:
    STATE of Louisiana v. Timothy Carl DARBY.
    No. 80-KA-2782.
    Supreme Court of Louisiana.
    June 22, 1981.
    Rehearing Denied Sept. 4, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Nathan Stansbury, Dist. Atty., William J. Burris, Byron P. Legendre, Ross Brupbacher, Michael Harson, Asst. Dist. Attys., for plaintiff-appellee.
    Kenneth W. DeJean, Baton Rouge, for defendant-appellant.
   WATSON, Justice.

Defendant, Timothy Carl Darby, was convicted of the second degree murder of Charles Alfred in violation of LSA-R.S. 14:30.1. He was sentenced to life imprisonment without benefit of parole,' probation or suspension of sentence for a period of forty years. Darby has appealed his conviction and sentence, assigning eleven errors by the trial court.

FACTS

On March 2,1978, Darby had been drinking and smoking marijuana with Rickey Landry, Vincent Gautreaux and Terry Har-grave. The four young white men went to Rome’s Amusement Center and encountered two young black men, Charles Alfred and Randy Collins. Rickey Landry provoked a fight with Randy Collins. Alfred, Gautreaux and Darby joined in the fray. When Alfred tried to run away, he was chased by Darby, Gautreaux and Landry. Alfred defended himself with a cane, but died of knife wounds inflicted by his pursuers. All three had knives. The critical injury was a stab in the chest which penetrated the heart. Gautreaux and Darby carried “buck” knives, the size of which was consistent with the fatal wound. Darby testified at his trial. He admitted having a knife, being involved in the fight and chasing Alfred, but denied that he had stabbed him.

ASSIGNMENTS OF ERROR NUMBER ONE AND SIX

Defendant contends that the trial court erred in allowing photographs of the crime scene and the victim into evidence. The photographs are not particularly gruesome and are relevant to the circumstances of Alfred’s death. They were properly admitted into evidence. State v. Matthews, 354 So.2d 552 (La.,1978).

These assignments lack merit.

ASSIGNMENT OF ERROR NUMBER TWO

Tracy James Suire, a witness for the state, saw Darby “clowning around” with his knife earlier that day. (Tr. 457) Suire was cross-examined about his familiarity with knives. When defense counsel attempted to ask Suire if he had ever played with a knife, the state’s objection was sustained. Defendant contends the ruling was erroneous.

Suire’s past experience with knives was irrelevant to any issues in the trial. The trial court did not abuse its discretion in curtailing the cross-examination. LSA-R.S. 15:275.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

Keith James Delino, who witnessed the commencement of the fight, was asked to give his opinion about the effect of marijuana cigarettes on a person’s memory. The state’s objection was sustained, and defendant assigns this as error.

Delino’s opinion on the subject was not competent evidence. LSA-R.S. 15:463. He was not qualified as an expert. No showing was made that the witness had special training or experience in the use of marijuana. LSA-R.S. 15:464. The state’s objection was properly sustained.

This assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER FOUR

Defendant contends that the trial court erred in admitting into evidence an inculpa-tory statement made by Darby at the time of his arrest. After being advised of his rights, Darby stated: “If I talk about it I will have to burn myself so I’d rather go down in silence.” (Tr. 536) The statement was voluntary and the defense was advised that the state intended to use it at trial. LSA-C.Cr.P. art. 768.

The state is not entitled to use a defendant’s custodial silence against him at trial. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Here, Darby’s own reference to his “silence” was an unavoidable incident to his voluntary statement. At trial, Darby explained that the police had accused him of Alfred’s death; he remained silent because he was frightened and wanted his lawyer present. The state did not attempt to exploit the issue. State v. Smith, 336 So.2d 867 (La.,1976). Use of the statement was not fundamentally unfair under these circumstances. Doyle, supra. The trial court did not err in admitting the statement into evidence.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER FIVE

Defendant contends that two state exhibits were admitted into evidence without a proper chain of custody being established. There was no objection to the exhibits at trial. LSA-C.Cr.P. art. 841. Defendant’s right to object to the exhibits has been waived. State v. Marcell, 320 So.2d 195 (La.,1975).

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER EIGHT

Defendant contends that the trial court erred in allowing Patricia Lavergne to testify that Darby told her he had been in a fight. The evidence was hearsay and should have been excluded. However, the testimony was cumulative, because there was ample other evidence that Darby had been involved in a fight that day. He testified that he had been involved in the fight and there was testimony to that effect from eyewitnesses. The error is harmless. LSA-C.Cr.P. art. 921.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER NINE

Defendant contends that the trial court erred in admitting hearsay testimony from state witness Terry Hargrave. Hargrave left Rome’s with Darby, Landry and Gautreaux and testified that there was no conversation in the car about what had happened. The statement that there was no conversation was not hearsay and the objection was properly overruled.

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TEN

Defendant contends that there was insufficient evidence to prove his guilt.

Chad Romero, an eyewitness, testified that Landry, Darby and Gautreaux took turns cutting at Alfred with two knives. Another witness, Mark L. Glenn, saw each of the three holding a knife during the course of the fight. Darby admitting being involved in the fight and having a knife on his person. Terry Hargrave testified that Darby said: “I finally killed a nigger.” (Tr. 657).

Any rational trier of fact could have concluded beyond a reasonable doubt that Darby was guilty of the murder. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER ELEVEN

Counsel contends that the trial court denied defendant due process of law and the right to confront witnesses when Vincent Gautreaux was allowed to assert his privilege against self-incrimination. It is reversible error to allow a witness to claim a blanket privilege. State v. Wilson, 394 So.2d 254 (La.,1981).

Witness Gautreaux declined to answer questions concerning “the evening of March 2nd, 1978, at Rome’s Amusement Center.” (Tr. 717) The trial court determined that the silence was justified, because any testimony about that evening could have been injurious. Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951).

This trial commenced on January 16, 1979. Although Gautreaux had been convicted for his participation in the murder, his conviction was not final. See State v. Gautreaux, 377 So.2d 289 (La.,1979). That opinion was rendered on November 1, 1979, and a rehearing was denied on December 13, 1979. Had a new trial been ordered for Gautreaux, any testimony at Darby’s trial might have been used against him. Gautreaux had testified at his own trial, but was entitled to waive silence at that trial and assert the right in a subsequent trial. State v. Knowles, 395 So.2d 678 (La.,1981). The trial court did not err in ruling that any testimony by Gautreaux about the events of March 2, 1978, might have incriminated him. State v. Williams, 301 So.2d 587 (La.,1974). In this factual context, no purpose would have been served in requiring a question-by-question assertion of Gautreaux’s privilege.

This assignment lacks merit.

For the foregoing reasons, the conviction and sentence of defendant, Timothy Carl Darby, are affirmed.

AFFIRMED.

DIXON, C. J., concurs.

CALOGERO, Justice,

concurring in denial of rehearing:

While I agree that the conviction and sentence in this case should be affirmed, there being no merit to defendant’s assignments of error, I concur in the denial of rehearing because of the majority treatment of assignment of error number eleven. Any prejudice to defendant by not requiring the witness to assert the Fifth Amendment privilege question by question, see State v. Wilson, 394 So.2d 254 (La. 1981), is minimal in light of the fact that defendant succeeded in putting into evidence an earlier statement by this witness which exculpated defendant.

       Judges Morris A. Lottinger, Wallace A. Edwards, and Elven E. Ponder of the Court of Appeal, First Circuit, participated in this decision as Associate Justices Ad Hoc, joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Watson.

      . LSA-R.S. 14:30.1 provides:
      “Second degree murder is the killing of a human being:
      “(1) When the offender has a specific intent to kill or to inflict great bodily harm: or
      “(2) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or simple robbery, even though he has no intent to kill or to inflict great bodily harm.
      “Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.”

      . LSA-R.S. 15:275 provides:
      “In the discipline of his court, the trial judge is vested with a sound discretion to stop the prolonged, unnecessary and irrelevant examination of a witness, whether such examination be direct or cross, and even though no objection be urged by counsel.”

      . LSA-R.S. 15:463 provides:
      “Except as otherwise provided in this Code, the witness can testify only as to facts within his knowledge, and neither as to any recital of facts heard by him, nor as to any impression or opinion that he may have.”

      . LSA-R.S. 15:464 provides:
      “On questions involving a knowledge obtained only by means of a special training or experience the opinions of persons having such special knowledge are admissible as expert testimony.”

      . LSA-C.Cr.P. art. 768 provides:
      “If the state intends to introduce a confession or inculpatory statement in evidence, it shall so advise the defendant in writing prior to beginning the state’s opening statement. If it fails to do so a confession or inculpatory statement shall not be admissible in evidence.”

      .LSA-C.Cr.P. art. 841 provides:
      “An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. A bill of exceptions to rulings or orders is unnecessary. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.
      “The requirement of an objection shall not apply to the court’s rulings on any written motion.”

      . LSA-C.Cr.P. art. 921 provides:
      “A judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused.”

      . There is no indication that Gautreaux’s testimony would have been clearly exculpatory. He had given conflicting versions of the events of March 2 and denied at one point that Darby had done any stabbing. (Tr. 1976) Darby could nonetheless have been a principal in the crime. LSA-R.S. 14:24. See State v. Landry, 388 So.2d 699 (La.,1980).


author: DIXON, Chief Justice.

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. CITY OF PINEVILLE.
    No. 81-C-0017.
    Supreme Court of Louisiana.
    July 2, 1981.
    Rehearing Denied Sept. 18, 1981.

      Dan E. Melichar, Gravel, Robertson & Brady, Alexandria, for plaintiff-applicant.
    John C. Young, Baton Rouge, for defendant-respondent.
   DIXON, Chief Justice.

The source of this litigation developed in 1969, when the Department of Highways began to widen and improve Louisiana Highway 28. In order to make the improvements it was necessary to relocate certain water lines, maintained by the City of Pineville, which were located on the highway right of way. The estimated cost of the relocation was $82,000, which the city was allegedly unable to afford at the time. To speed the project along, the Department of Highways offered to advance the costs for the city’s share of the project, if those sums would be reimbursed at a later date.

On April 1, 1969 the Council of the City of Pineville passed a resolution authorizing the mayor to execute an agreement with the Department of Highways regarding repayment of the money to be advanced; the council also committed the city to include in its budget the sums necessary to make repayment.

On May 12, 1969 the Mayor of Pineville affixed his signature to an instrument styled an “Agreement,” in which the Department of Highways obligated itself to advance “the sums necessary to accomplish the relocation of the City’s water lines to accommodate the construction of the Pine-ville-Libuse Highway ...” The agreement went on to state:

“The City of Pineville agrees that commencing on April 1, 1970, it will repay to the Department of Highways one-third of the amount advanced for the relocation of the water lines, and that it will repay, to the Department of Highways, one-third of the amount, on the First day of April, 1971, and the final one-third on the First day of April, 1972, with interest at 6 per cent from maturity date, all such payments to be made to the Department of Highways at its office in Baton Rouge, Louisiana, and the Council of the City of Pineville agrees that it will include such sums in its annual budget for the next three fiscal years.”

Pursuant to this agreement, the Department of Highways began to advance payments to the city. The first payment was made in June, 1969, and the final payment occurred in February, 1970. More than $92,000 was advanced, $88,864.86 of which was allegedly the city’s share of the cost.

The city has never repaid any part of the sums advanced to it by the Department of Highways.

In February, 1971 the Department of Highways filed a petition, captioned “Suit on Contract,” alleging that the city had not made its first installment, due on April 1, 1970 as called for in the agreement. More than two years later, after several preliminary matters were resolved, the city filed an exception to the district court’s jurisdiction, claiming that the obligation incurred by the city was not valid because prior approval from the State Bond and Tax Board had not been obtained. Perhaps in response to this exception, the Department of Highways filed a motion to dismiss the suit without prejudice in June, 1973. An order of dismissal was signed by the district judge.

In August, 1976 the Department of Highways filed another petition, incorporating allegations in the original petition, and claiming that full reimbursement was due under the terms of the agreement. Alternatively, the Department of Highways prayed for recovery even in the event that the contract with the city was not valid.

The city again filed an exception to the court’s jurisdiction, which was overruled. It then filed a motion for summary judgment and peremptory exceptions of no cause of action and prescription. The motion for summary judgment was denied, but the court sustained the exception of prescription, pretermitting judgment on the exception of no cause of action. No testimony was taken at the hearing on the exception; the record consists entirely of pleadings and documents.

The trial court held that, even though the agreement had been reduced to writing, the obligation sued upon was a loan, prescripta-ble in three years. C.C. 3538. The Court of Appeal ruled that, although the department’s action sought to recover the money that it had loaned the city, the written agreement constituted an acknowledgement of the debt, converting the applicable period of prescription to ten years under C.C. 3544. The judgment of the district court was reversed. 390 So.2d 228 (La.App. 3d Cir. 1980). This court granted writs primarily to determine which period of prescription was applicable. 396 So.2d 1326. First, however, it must be decided whether and to what extent prescription is applicable.

Immunity from Prescription

Article 19, § 16 of the 1921 Constitution, in effect at the time the department’s cause of action arose, states:

“Prescription shall not run against the State in any civil matter, unless otherwise provided in this Constitution or expressly by law.”

An identical provision can be found in Article 12, § 13 of the 1974 Constitution, as well as in Article 193 of the 1913 Constitution and Article 193 of the 1898 Constitution.

In order to apply this constitutional immunity from prescription, it would be necessary to characterize the Department of Highways, a state agency, as the “State” itself. The matter is not free from doubt. In two early decisions, for example, it was held that levee districts could not claim immunity from liberative prescription because they were political corporations with a legal existence distinct from the “state.” Board of Commissioners v. Earle, 169 La. 565, 125 So. 619 (1929); Board of Commissioners v. Pure Oil Co., 167 La. 801, 120 So. 373 (1929). The rationale of those decisions was that levee districts, by virtue of the fact that they were authorized to sue and be sued in their own names, were legal entities separate from the state. The same rationale was upheld in Haas v. Board of Commissioners, 206 La. 378, 19 So.2d 173 (1944), where a claim of acquisitive prescription was made against a levee district. More recently, however, this court has held that claims of acquisitive prescription against mineral rights held by levee districts were barred by virtue of the constitutional prohibition against the divestiture of mineral rights in property “sold by the State,” contained in Article 4, § 2 of the 1921 Constitution. Dynamic Exploration, Inc. v. LeBlanc, 362 So.2d 734 (La.1978). It thus appears that, insofar as levee districts are concerned, the definition of the “State” depends upon what is involved: acquisitive and liberative prescription may run against a levee district, but acquisitive prescription of mineral rights may not. No decision has ever held that a levee district could be characterized as the “State” for purposes of the immunity from prescription contained in the Constitution.

In terms of the present case, the foregoing decisions dealing with levee districts are not inapposite. It has been repeatedly explained that levee districts have the right to sue and be sued in their own names as entities separate from the state. See Board of Levee Commissioners v. Whitney Trust & Savings Bank, 171 La. 28, 129 So. 658 (1930). Other decisions have stressed the fact that levee districts were political corporations which, once possessed of a cause of action, were the sole parties capable of bringing suit to enforce their rights. It was declared that the State Attorney General could not bring suit in the name of the state on a cause of action vested in a levee board. See State v. Standard Oil Co., 164 La. 334, 113 So. 867 (1927); State v. Tensas Delta Land Co., 126 La. 59, 52 So. 216 (1910). Consistent with this view, it has also been held that, when the state holds title to property, prescription cannot run, notwithstanding the fact that the property is administered by a state agency. State v. F. B. Williams Cypress Co., 131 La. 62, 58 So. 1033 (1912). The principle that the state is immune from claims of prescription has been explained as being confined to actions brought by and in the name of the state itself. Board of Commissioners v. Toyo Risen Kaisha, 163 La. 865, 113 So. 127 (1927). See also Opinions of the Attorney General, March 1, 1962 to March 1, 1964, pp. 237-38; April 1, 1934 to April 1, 1936, pp. 873-76.

We subscribe to the following reasoning, advanced in the cases cited above: the “State,” for the purposes of the constitutional immunity from prescription, does not include a state agency which is a body corporate with the power to sue and be sued and which, when vested with a cause of action, is the sole party capable of asserting it. Regardless of its status as an instrumentality of the state, such an agency remains a distinct legal entity subject to claims of prescription except where the law provides otherwise.

It should be noted that the Department of Highways, the party plaintiff in this suit, was abolished in 1976; its powers, functions and duties were transferred to the Department of Transportation and Development. R.S. 36:509(F). However, the legislature provided that the department would continue to exercise its responsibilities as provided by law. R.S. 36:802. Specifically, the law governing the transfer of powers provided that all lawsuits pending before the effective date of the transfer “shall be continued in the name of the agency so transferred. R.S. 36:854(C).

The Department of Highways, like the Department of Transportation and Development, was established as a “body politic and corporate.” R.S. 48:13. It was given the power to “sue and be sued.” R.S. 48:22. Because of this authority, the Department of Highways has been held to be a legal entity separate from the state itself:

“The commission, in our opinion, is a distinct legal entity from the state. [The law] makes it a body corporate, with power as such to sue and be sued. It is an agency of the state, and not the state itself, created for the purpose of executing certain duties, devolving primarily upon the state. In a general sense, in its relations to the state, it is not dissimilar to levee districts, which are bodies corporate, created for the purpose of constructing and maintaining levees, which are duties, devolving primarily upon the state .... ” Saint v. Allen, 172 La. 350, 360, 134 So. 246, 249 (1931).

See also Department of Highways v. Lykes Bros. Steamship Co., 209 La. 381, 25 So.2d 623 (1945).

Accordingly, we hold that the Department of Highways cannot claim the constitutional immunity from prescription, since it cannot be characterized as the “State” for that purpose.

Prescription and the Cause of Action

The Civil Code establishes the general rule that all personal actions are prescribed by ten years, unless the specific action is governed by some other term of prescription. C.C. 3544. Only two other prescriptive periods might have application to this case: the prescription of three years, C.C. 3538, and the prescription of five years, C.C. 3540.

Before determining the applicable period of prescription, however, another issue must be considered. In various pleadings, the City of Pineville has consistently maintained that the obligation underlying the agreement is unenforceable, and that no cause of action exists for the collection of the debt. Reliance is placed upon two statutes involving the State Bond and Tax Board. One of these, R.S. 47:1803, states in part:

“Hereafter, no ... municipality, . . . shall have authority to borrow money, incur debt, or to issue bonds, or other evidences of debt, or to levy taxes, or to pledge uncollected taxes or revenues for the payment thereof, where [it is] authorized by the constitution or laws of the state so to do, without the consent and approval of the board.”

Failure to comply with this provision is a misdemeanor offense; in addition, R.S. 47:1806 provides in part:

“Any contract, debt, obligation, bond, or other evidence of indebtedness whatsoever, incurred or issued in violation of this Part, and without the consent and approval of the board, shall be null and void, and no court of this state shall have jurisdiction to enforce the payment thereof, or of any suit or other proceeding affecting or involving the same.”

The city contends that no approval or consent was obtained from the board prior to the execution of its agreement with the department. An affidavit supporting this contention appears in the record, signed by an associate director of the State Bond Commission (which became the successor to the State Bond and Tax Board pursuant to R.S. 39:1408). The affidavit states that, after a thorough search of the commission’s records, no evidence can be found indicating that the city had obtained approval to incur the debt. The department itself made a written admission that it did not attempt to obtain such approval on the city’s behalf, and disclaimed knowledge of whether such approval had in fact been obtained.

The failure of either court below to address the issue of the invalidity of the agreement between the city and the department was error. The nature of a cause of action must be determined before it can be decided which prescriptive term is applicable. In the present case, there is no doubt that the department alleges that the city is obligated to it for the repayment of the sums it had advanced. The classification of the source of that obligation is essential: if, as the city has alleged, the agreement is an absolute nullity, it is self-evident that no cause of action would lie for the enforcement of the written obligation. Under the terms of R.S. 47:1806, such obligations, when incurred without approval of the state agency, are void ab initio. Despite the city’s well pleaded allegations to the contrary, both courts below simply assumed that the contract was valid, and proceeded to determine which period of prescription applied to the action. The assumption was not warranted.

The city’s motion for summary judgment was premised on the invalidity of the written agreement under R.S. 47:1806. The city alleged that it did not obtain the necessary approval from the State Bond and Tax Board. The department did not deny this allegation. The motion for summary judgment was also accompanied by a supporting affidavit in the record, which clearly states that no record can be found indicating that the city obtained the requisite approval.

Summary judgment is proper where there is no genuine issue of material fact, and where judgment may be entered as a matter of law. C.C.P. 966; Cates v. Beauregard Electric Coop., 328 So.2d 367 (La.1976). Since the department failed to dispute the city’s allegation that no approval of the agreement had been obtained under the terms of R.S. 47:1803, it appears that there is no genuine issue on this score. The city’s factual allegation is supported by the accompanying affidavit. And, as a matter of law, R.S. 47:1806 dictates that the agreement cannot be enforced. It is a nullity, confected in contravention of a prohibitory law. C.C. 12. The city’s motion for summary judgment therefore should have been granted: the written obligation is unenforceable. Since the department is without a cause of action to enforce the written contract, it follows that the written contract is irrelevant for the purposes of determining the applicable period of prescription. The cause of action cannot be characterized as seeking enforcement of a written obligation, which was the notion upon which the Court of Appeal rested its opinion. That opinion must be vacated.

The determination that the department cannot enforce its agreement with the city does not mean that the department is without a remedy. This court has held that, when a city incurs an obligation in violation of a prohibitory law, the city’s obligees may nevertheless recover the sums owed them under the theory of unjust enrichment established in C.C. 1965. Coleman v. Bossier City, 305 So.2d 444 (La.1974). See also West Baton Rouge School Board v. T. R. Ray, Inc., 367 So.2d 332 (La.1979). In the Coleman case, one of the statutes which rendered the city’s contract a nullity was the same one which is implicated here, R.S. 47:1806. It should be noted that the department’s second petition was not filed until after the Coleman decision was rendered, and the petition itself recognized that the claim could be characterized in more than one way. In fact, the petition made an alternative prayer for recovery even in the event that the contractual obligation was held to be null; the issue of unjust enrichment was also raised in brief.

The department’s action plausibly can be founded upon the theory of unjust enrichment or some other form of quasi-contract. Actions on quasi-contracts are governed by the general ten year prescriptive term of C.C. 3544. See, e. g., Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967) (unjust enrichment); Gaude v. Gaude, 28 La.Ann. 181 (1876) (negotiorum gestio); Smith v. Phillips, 175 La. 198, 143 So. 47 (1932) (payment of a thing not due). Given this characterization of the cause of action, the department’s suit was timely.

The posture in which this case has been presented is similar to the situation in Lagarde v. Dabon, 155 La. 25, 98 So. 744 (1923). The plaintiff in that action alleged that she and the defendants’ decedent had made an agreement to form a partnership, with each of them to share equally in the property which the partnership acquired. Her suit to recover half of the partnership assets was successfully defended by way of an exception of no cause of action, based on the fact that the partnership agreement had not been reduced to writing. C.C. 2834. While this court recognized that an unwritten partnership agreement was invalid and unenforceable, it also observed that the plaintiff had made an alternative demand, for the recovery of all sums that she had invested in the enterprise. Such a claim, it was determined, stated a cause of action in quasi-contract, for the recovery of a payment not due. The ten year prescriptive term was held to apply to such an action, and the case was remanded to the trial court to determine whether a partnership agreement had in fact been made.

We make the same disposition here. The department’s action is for the recovery of sums in advance to the city. Although the agreement binding the city to fulfill this obligation is unenforceable, the formal source of the city’s obligation may nevertheless be based upon a quasi-contract. The department’s petition sets forth a cause of action on that basis, and this suit was filed within ten years from the time the cause of action arose. For reasons different from those of the Court of Appeal (which we find incorrect), the judgment of the Court of Appeal is affirmed, and the case is remanded to the district court for further proceedings consistent with this opinion. The costs of this proceeding are taxed to the defendant.

DENNIS, J., dissents with reasons.

WATSON and MARCUS, JJ., dissent.

      . A suit that is voluntarily dismissed has no effect upon prescription. C.C. 3519.

      . The origin of this rule can be traced to a decision by a Court of Appeal in Shell Oil Co. v. Board of Commissioners of Pontchartrain Dist., 336 So.2d 248 (La.App. 1st Cir. 1976), writ denied 338 So.2d 1156 (La.1976) (“No error of law”), which was cited approvingly in a footnote to a decision by this court. Board of Commissioners of the Caddo Levee Dist. v. S. D. Hunter Foundation, 354 So.2d 156 (La.1977).

      . That is to say, acquisitive prescription of mineral rights cannot occur on claims governed by the 1921 Constitution. We also note that Act 76 of 1938 declared that no prescription could run against levee districts. This act was repealed in 1944, but in 1964 the legislature enacted R.S. 38:295, which provided that acquisitive prescription could not run against levee districts.

      . This holding is not inconsistent with the decision in Scorsune v. State, 230 La. 254, 88 So.2d 211 (1956), which involved a claim of liberative prescription relating to a servitude of right of way. In that case, it appears that the right of way had been granted to the state itself, and the court ruled that the property was immune from the prescription of nonuse. We also note that the legislature has specifically provided that acquisitive prescription cannot run against immovable property or rights acquired by the Department of Highways for use as rights of way. R.S. 48:226.

      . We note in passing that the Court of Appeal’s opinion is incorrect, even assuming that the contract is valid. The court stated that, when an obligation “is acknowledged in writing, the character of the action is changed and it becomes a personal action under the general article (3544).” 390 So.2d at 232. This is true only if the acknowledgement is made after the obligation is incurred: one cannot acknowledge a debt that does not yet exist. The decision in Jones v. Butler, 346 So.2d 790 (La.App. 1st Cir. 1977), relied upon by the court below, is consistent with this. There, a written acknowl-edgement of a loan was made after the loan itself had been received, evidencing a specific debt. In the present case, the agreement was confected before any sums were advanced. The Court of Appeal, in characterizing the written agreement as an acknowledgement of the city’s preexisting obligation to relocate the water lines, attempted to satisfy the logical requirement that an acknowledgement must occur after the obligation is perfected, but, in doing so, ignored the fact that the cause of action involved in this suit is one for repayment of a loan, not for the enforcement of the city’s obligation to relocate its water lines.
      In the present case, for example, the agreement merely sets forth the terms of the city’s obligation; it is not evidence of how much money the department actually advanced the city. To prove the amount of the debt, the department apparently must rely upon other evidence, such as its cancelled checks. Many of the obligations enumerated in C.C. 3538 are often accompanied by written instruments, such as judgments of alimony, lease agreements and contracts for the professional services of lawyers and physicians. The mere fact that these obligations may be evidenced in writing does not mean that they are subject to a ten year prescriptive term.

      . “[N]o one ought to enrich himself at the expense of another.” C.C. 1965.


author:
      DIXON, Chief Justice.
     CALOGERO, Justice,
      HALL, Justice Ad Hoc, GARVEY, Justice Ad Hoc,

text:
    Mrs. Verlie Holton, Wife of Fred B. CURTIS v. Fred B. CURTIS.
    No. 80-C-2613.
    Supreme Court of Louisiana.
    July 7, 1981.
    Rehearing Denied Sept. 28, 1981.
    Frederick R. Bott, Patricia Maureen Joyce, Deutsch, Kerrigan & Stiles, New Orleans, for plaintiff-applicant.
    Edward J. Lassus, Jr., Corey, Reed, Be-thay & Kogos, New Orleans, for defendant-respondent.
   DIXON, Chief Justice.

The issue in this case is whether certain immovable property, 2501-03 St. Charles Avenue, New Orleans, purchased during the existence of a marital community between plaintiff and defendant, is separate or community property.

Mr. and Mrs. Curtis were married on September 9, 1956. On June 9, 1959, Mrs. Curtis made an offer to purchase the contested property, and on August 31,1959, she acquired the property by act of sale from State Savings and Loan Association. Mr. Curtis intervened in both the purchase offer and the act of sale, declaring that the property was his wife’s separate and parapher-nal property, purchased with separate and paraphernal funds under her administration and control and that the community which existed between them had no interest whatsoever in the property and that all payments and installments due on the property would be paid by his wife with separate funds under her separate administration and control.

Mrs. Curtis paid $28,500 of the $60,000 purchase price in cash and financed the balance, $31,500, through a fifteen year mortgage with State Savings and Loan Association. On April 29,1964, she refinanced the property through a sale and resale to State Savings. Mr. Curtis appeared as a vendor, but he again acknowledged the separateness of the property and the funds, and the resale was to Mrs. Curtis alone.

On September 1,1966, Mr. Curtis left the matrimonial domicile and the couple began living separate and apart. Mrs. Curtis filed for separation on February 12, 1968, and a separation judgment was rendered on April 17, 1968. A judgment of divorce was rendered on August 3, 1970. At the time of the divorce, the community of acquets and gains was not partitioned. On November 20, 1978, Mrs. Curtis petitioned for a partition by licitation of all the property belonging to the former community and filed a sworn descriptive list setting forth the community’s assets. Mr. Curtis filed an opposing descriptive list claiming the St. Charles Avenue property as community property. Neither party testified at trial. The evidence presented consisted of documents pertaining to the sale, interrogatories and stipulations by both parties that the $28,500 down payment was made with Mrs. Curtis’ separate funds and that the credit payments were made with rentals collected from apartments contained in the property.

The trial court held that the property was community property because community funds (rentals) were commingled with separate funds to acquire the property. The court also held that the community owed Mrs. Curtis’ separate estate a debt for the separate funds she used to acquire the property.

Mrs. Curtis suspensively appealed to the Court of Appeal. While the parties were waiting for the record to lodge there, Mr. Curtis died and his succession was substituted in the proceeding.

The Court of Appeal, 388 So.2d 816, amended the trial court’s decision, limiting the community’s interest to 52.5% and recognizing Mrs. Curtis’ separate interest of 47.5%. The court concluded that Mr. Curtis’ recitals did not prevent him from later arguing that the credit portion of the price was paid with community funds. The court added that Mrs. Curtis failed to prove that she had sufficient paraphernal revenues to make the purchase with a reasonable expectation of making the deferred payments.

The Court of Appeal was in error in holding the property part community and part separate. While other community property states may categorize property paid for in part with separate funds and in part with community funds as mixed, Louisiana does not do so. Under our law property is characterized as either community or separate. The Civil Code articles applicable to this case (as they existed before revision by La. Acts 1978, No. 627 and La. Acts 1979, No. 317) created a strong presumption that all property acquired during the existence of a marriage fell into the community of acquets and gains. C.C. 2402.

However, this presumption was rebut-table. A married person could acquire separate property during marriage by inheritance, by donation, or by acquisition with separate funds. C.C. 2334. The jurisprudence established that the burden of overcoming the presumption in favor of the community rested on the party asserting the separate nature of the property. The husband who took title in his name was required to declare in the act of sale that he was purchasing with his separate funds for his separate estate; if he failed to make such a declaration, title was presumed to be in the community, and he was barred from presenting evidence to rebut the presumption. The wife, on the other hand, was not required to make such a declaration in the deed to preserve her right to prove the separate nature of property at a later date. She was permitted to offer evidence dehors the act of conveyance establishing the separate nature of the property even in the absence of a declaration of paraphernality in the deed. However, she had a triple burden of proof: she had to prove not only that she used separate funds for the purchase, but also that the funds were administered by her alone and were available for investment. Succession of Franek, 224 La. 747, 70 So.2d 670 (1953); Houghton v. Hall, 177 La. 237, 148 So. 37 (1933); Succession of Burke, 107 La. 82, 31 So. 391 (1902).

Furthermore, to prevent her from indulging in “wild and ruinous speculations,” the courts sometimes required the wife who bought property on credit to show that the cash portion of the purchase price bore such a relation to the total price that the property afforded sufficient security for the credit portion, and that she had sufficient separate revenues to be reasonably certain of being able to meet the deferred payments. Monk v. Monk, 243 La. 429, 144 So.2d 384 (1962); Betz v. Riviere, 211 La. 43, 29 So.2d 465 (1947); Montgomery v. Bonanchaud, 179 La. 312, 154 So. 8 (1934); Fortier v. Barry, 111 La. 776, 35 So. 900 (1904); Jordy v. Muir, 51 La.Ann. 55, 25 So. 550 (1898); Miller v. Handy, 33 La.Ann. 160 (1881); Bouligny v. Fortier, 16 La.Ann. 209 (1861).

These judicially imposed restrictions on a wife’s freedom to purchase on credit may have been justified in previous years when most women stayed home and did not have separate incomes. It may have been logical for courts then to assume that the wife who received a particular donation, or inheritance, and used it to purchase property on credit terms would in fact have to use community funds for subsequent payments, in the absence of a continuing source of income. Today, however, with an ever increasing number of women entering the work force, such restrictions are no longer supportable. Just as our legislature has amended the matrimonial regimes section of our Civil Code to reflect modern economic and social realities, so are we impelled to eliminate these restrictions and to recognize that rules which produced a just result under certain circumstances may not do so when conditions change. We believe that a married woman is entitled to purchase property on credit as an investment, and to avail herself of the same credit devices her husband can use. We do not believe that she should have to prove that she can use credit more wisely than he. If she later uses community funds to pay her separate debt, she is obligated to reimburse the community for that amount.

We find that the evidence presented at trial adequately establishes that the property is Mrs. Curtis’ separate property, bought by her with separate funds administered solely by her. Both parties stipulated that the cash down payment was made with her separate funds. The interrogatories indicated that Mrs. Curtis sold two pieces of property that she owned before she met Mr. Curtis, and used that money for the down payment. Mr. Curtis declared on three different occasions, in three different writings, that Mrs. Curtis was buying the property for her separate estate, with her separate funds, and that the community had no interest whatsoever in the property. Our jurisprudence has long held that a husband who has been a party to an act of purchase in which such declarations are made cannot afterwards be heard to contradict it. Betz v. Riviere, supra; Rousseau v. Rousseau, 209 La. 428, 24 So.2d 676 (1946); Pfister v. Casso, 161 La. 940, 109 So. 770 (1926); Maguire v. Maguire, 40 La.Ann. 579, 4 So. 492 (1888); Kerwin v. Hibernia Insurance Co., 35 La.Ann. 33 (1883). Our legislature has seen fit to recognize the wisdom of this judicial principle by codifying it as new C.C. 2342 (effective January 1, 1980):

“A declaration in an act of acquisition that things are acquired with separate funds as the separate property of a spouse may be controverted by the other spouse unless he concurred in the act .... ” (Emphasis added).

The holding of Barnes v. Thompson, 154 La. 1036, 98 So. 657 (1923)—relied on by the appeal court — that the husband’s recitations in the deed at the time of acquisition did not prevent him from later controverts ing the paraphernal nature of the property by showing that deferred payments were made with community funds has been repudiated in other cases involving credit sales to wives. This court has held on several occasions that a husband who declares in a deed that his wife is buying property for her separate estate with her separate funds cannot later dispute the separate nature of the property, even if it was bought on credit. Betz v. Riviere, supra; Rousseau v. Rousseau, supra; Fireman’s Insurance Co. v. Hava, 140 La. 638, 73 So. 708 (1916); Maguire v. Maguire, supra. These cases, among others, also establish that property declared to be separate at acquisition does not change character if a subsequent credit payment is made with community funds. Proof that the community contributed to the purchase of separate property would only create a debt on the part of the wife’s separate estate to the community for the amount of community funds used. It would not convert the property or any portion of it to community property. Only when community and separate funds are mingled in the initial acquisition may the property be regarded as community. We have stated in cases involving bank accounts that the mere mixing of separate funds and community funds in the same account does not of itself convert an entire account into community property; only when separate funds are commingled with community funds indiscriminately so that the separate funds cannot be identified or differentiated from the community funds are all the funds characterized as community funds. Graves v. United States Rubber Co., 237 La. 505, 111 So.2d 752 (1959); Bruyninckx v. Woodward, 217 La. 736, 47 So.2d 478 (1950); Succession of Land, 212 La. 103, 31 So.2d 609 (1947). Where separate funds can be traced with sufficient certainty to establish the separate ownership of property paid for with those funds, the separate status of such property will be upheld. Graves v. United States Rubber Co., supra; Betz v. Riviere, supra.

In this case, the disputed property was initially acquired solely and incontrovertibly with Mrs. Curtis’ separate funds. No community funds were used for the down payment. The property is therefore Mrs. Curtis’ separate property. At most she might owe a debt to the community for the amount of community funds used to make the later credit payments.

However, we do not believe that Mrs. Curtis’ use of the rentals from the property to pay the mortgage created a debt to the community; the declarations made and signed by Mr. and Mrs. Curtis are in substantial compliance with the requirements of C.C. 2386 to reserve the fruits (rentals) of her separate property to her separate estate. Article 2386 (now repealed) stated that the fruits of the wife’s separate property fell into the community unless she declared in a written instrument that she reserved the fruits for her separate use and intended to administer her property separately and alone. The code required that the instrument be executed before a notary public and two witnesses and recorded in the Conveyance Records of the parish where the community was domiciled. The requirement of a written instrument led many women to execute affidavits of para-phernality, separate authentic acts containing the necessary declarations and properly recorded. However, C.C. 2386 does not specify that the declarations must be made in a separate document. The declaration in the act of sale meets the requirements set out in C.C. 2386: the act is a written instrument, in authentic form, and properly recorded. The joint declaration by the parties that all credit payments on the property will be paid with Mrs. Curtis’ separate funds, under her administration and control, is sufficient to prevent all the rents from which the credit portion was to be paid from falling into the “conjugal partnership.”

Since the property at 2501-03 St. Charles Avenue is Mrs. Curtis’ separate property, and since we find that the declarations in the act of sale served to reserve the fruits of her separate property for her separate use, Mrs. Curtis need not reimburse the community for the use of those rentals.

The judgment of the Court of Appeal is reversed, at the cost of respondent.

CALOGERO, J., dissents in part, concurs in part for the reasons assigned.

HALL and GARVEY, JJ. ad hoc, dissent and assign reasons.

CALOGERO, Justice,

concurring in part and dissenting in part.

I concur in the majority opinion insofar as it holds that the property in question is the separate property of Mrs. Curtis. Mr. Curtis, as intervenor, declared in the act of sale that Mrs. Curtis was purchasing the property with her separate and paraphernal funds, that the community of acquets and gains had no interest in the property, and that all payments due would be paid with Mrs. Curtis’ separate funds under her separate administration and control. Under the estoppel by deed doctrine, this declaration by the husband barred him from contradicting those assertions at a later date. Betz v. Riviere, 211 La. 43, 29 So.2d 465 (1947); Rousseau v. Rousseau, 209 La. 428, 24 So.2d 676 (1946); Pfister v. Casso, 161 La. 940, 109 So. 770 (1926); Maguire v. Maguire, 40 La.Ann. 579, 4 So. 492 (1888); and Kerwin v. Hibernia Insurance Co., 35 La.Ann. 33 (1883). While it is true that such a declaration by the husband does not prevent either his forced heirs or creditors from proving that the declaration was false (and of course Mr. Curtis died while the matter was on appeal), Mr. Curtis had no forced heirs, and no creditors are involved. Therefore, I believe that because Mr. Curtis made the above declaration in the act of sale he was estopped from later contradicting those statements, and the property is the separate property of Mrs. Curtis.

However, I dissent from the majority holding that Mrs. Curtis’ use of rentals from the property to pay the mortgage debt did not create a community debt. It is well settled that the fruits from separate property fall into the community estate. The only exception to this was provided by La.Civ.Code art. 2386 which permitted the wife to reserve the fruits of her separate property to her separate estate by filing a declaration as provided by the article. Prior to its being repealed by the Legislature in 1979 when the new matrimonial regime statutes were enacted, La.Civ.Code art. 2386 provided in pertinent part:

“Art. 2386. The fruits of the paraphernal property of the wife, wherever the property be located and however administered, whether natural, civil, including interest, dividends and rents, or from the result of labor, fall into the conjugal partnership, if there exists a community of acquets and gains; unless the wife, by written instrument, shall declare that she reserves all of such fruits for her own separate use and benefit and her intention to administer such property separately and alone. The said instrument shall be executed before a Notary Public and two witnesses and duly recorded in the Conveyance Records of the Parish where the community is domiciled.” (Emphasis provided)

The majority contends that the declarations made by the husband in the act of sale amount to substantial compliance with the statute such that the fruits of this property were reserved for Mrs. Curtis’ separate use. The declarations made by Mr. Curtis in the act of sale were as follows:

“And now unto these presents personally came and intervened, FRED B. CURTIS, husband of Verlie Holton Curtis, who declared and acknowledged unto me, Notary, that the above described property is his wife’s separate and paraphernal property, she having purchased same with her separate and paraphernal funds under her separate administration and control and the community of acquets and gains which exist between them has no interest whatsoever in said property, and that all payments and installments due herein shall be paid by his said wife with her separate funds under her separate administration and control.”

I do not agree that this declaration by Mr. Curtis complies with the requirements of La.Civ.Code art. 2386 to reserve the fruits (rentals) of Mrs. Curtis’ separate property to her separate estate. There is no declaration by Mrs. Curtis at all, as is required. Furthermore, even if we were to presume that the statement was made by Mrs. Curtis, because she signed the document containing Mr. Curtis’ declaration, the declaration itself does not state that the fruits of this property are being reserved nor does it specify that the fruits will be for her separate use or that she intends to administer this specific piece of property separately and alone as were all required under La.Civ.Code art. 2386.

Since I do not believe that Mrs. Curtis complied with La.Civ.Code art. 2386 in reserving the fruits (rentals) of this property to her own separate estate, I believe the rentals constituted community property. Since the rentals, community property, were used to pay Mrs. Curtis’ separate debt, she accordingly owes reimbursement to the community.

My conclusion that Mrs. Curtis did not comply with the requirements of La.Civ.Code art. 2386 makes it unnecessary for me to consider an issue that the majority has ignored, that is, whether La.Civ.Code art. 2386 was unconstitutional, since it allowed a wife to reserve the fruits of her separate property for her separate estate with no comparable privilege being afforded the husband under the law.

For the foregoing reasons, I only concur in the majority holding that the property is the separate property of Mrs. Curtis but dissent from the part of the opinion that holds Mrs. Curtis does not owe reimbursement to the community for the rentals used to pay the credit portion of the sale price.

HALL, Justice Ad Hoc,

dissenting.

I agree with the majority conclusion that the court of appeal erred in holding the property is part community and part separate. In my view, the property is community property, as held by the trial court, and not separate property as held by this court.

The well-established rule of law is that in order to overcome the presumption that property purchased during the marriage is community property, the wife must establish that the property was purchased with her separate funds under her separate administration and that the funds were available for investment. See the cases cited in the majority opinion. In the case of a credit purchase, the wife must also show that the property afforded sufficient security for the credit portion, and that she had separate revenue to be reasonably certain of being able to meet the deferred payments. See the cases cited in the majority opinion.

Here, Mrs. Curtis failed to prove that at the time of the purchase she had sufficient separate property or revenue to discharge the credit portion of the purchase price. Consequently, she failed to establish the basic requirement of LSA—C.C. Art. 2334, that is, that the property was acquired with separate funds. It was acquired in part with separate funds (cash portion of purchase price) and in part with community funds (credit portion of purchase price). The status of the property as community or separate must be determined on the basis of the facts as they existed at the time of purchase. Since Mrs. Curtis had no separate revenue to pay the credit portion of the price, necessarily the credit portion was to be paid from community funds. Even if it was intended that rent from the property being purchased be used to pay the credit portion, the rent would be community funds, whether the property be regarded as separate or community. Rent from both separate and community property falls into the community. The code makes an exception to this rule in the case of the wife (but not the husband) who executes the declaration authorized by LSA—C.C. Art. 2386, but in this instance the wife did not execute such a declaration.

The declaration in the deed does not comply with Article 2386 in that it does not state that the wife reserves all of the fruits or rents from the property for her separate use and benefit; nor does it state her intention to administer the property or rent separate and alone. The precise language of the declaration is:

“And now unto these presents personally came and intervened, FRED B. CURTIS, husband of Verlie Holton Curtis, who declared and acknowledged unto me, Notary, that the above described property is his wife’s separate and paraphernal property, she having purchased same with her separate and paraphernal funds under her separate administration and control and the community of acquets and gains which exists between them has no interest whatsoever in said property and that all payments and installments due herein shall be paid by his said wife with her separate funds under her separate administration and control.”

It is a declaration by the husband, not the wife, and does not mention fruits or rents from the property or the manner in which the fruits or rents from the property are to be administered.

Mr. Curtis, and his substituted succession after his death, are not estopped from defending against Mrs. Curtis’s efforts to overcome the presumption of community property. None of the cases cited by the majority opinion in support of the estoppel holding involved a credit sale. To apply estoppel would be to sanction the classification of property as separate or community by declaration of the husband and wife, regardless of the true facts and legal classification flowing therefrom, and to allow husband and wife during the marriage to contractually alter civil code provisions regulating the community of acquets and gains. The legislature in its comprehensive revision of matrimonial regime laws amended the civil code and changed the law as to transactions occurring after the effective date of the revision, but this court should not, for perceived policy reasons, change settled principles of community property law applicable to transactions which occurred many years ago.

Although I believe the trial court correctly held the property to be community property, I note that this court could not afford relief to the succession of Mr. Curtis from the court of appeal judgment because the succession did not apply for writs to this court; it was Mrs. Curtis’s application which was granted. The court of appeal judgment cannot be changed to benefit a party who did not apply for review to the prejudice of the party who did seek review. Carollo v. Wilson, 353 So.2d 249 (La.1977); Jordan v. Travelers Insurance Company, 257 La. 995, 245 So.2d 151 (1971). See also Hall v. Arkansas-Louisiana Gas Co., 368 So.2d 984 (La.1979). Under my view of the case, the judgment of the court of appeal, although incorrect to the extent that it recognized the property as being partly separate, should be affirmed.

I respectfully dissent.

GARVEY, Justice Ad Hoc,

dissenting.

For the reasons assigned by Justice Ad Hoc Hall, I respectfully dissent.

       Judges Richard J. Garvey and Pike Hall, Jr. participated in this decision as Associate Justice Ad Hoc in place of Associate Justices Marcus and Lemmon, recused.

      . The marriage was Mr. Curtis’ only marriage. Mrs. Curtis was married before, to Fred Cooner who predeceased her.

      . See Community Property: A Comparison of the Systems in Washington and Louisiana, 39 La.L.Rev. 479, 485 (1979), wherein the author notes that under Washington law, ownership of a mixed acquisition — property acquired with separate and community assets — is apportioned according to the respective contributions of the parties, except that an inconsequential contribution may be ignored or disappear under commingling analysis. See also Separate Ownership of Specific Property v. Restitution from Community Property in Louisiana, 26 Tul.L.Rev. 427 (1952).

      . In some cases declarations by the spouse in the deed that the wife was buying the property with her separate funds for her separate estate were held insufficient to rebut the presumption of community and the wife was required to produce evidence dehors the act to establish title. Smith v. Smith, 230 La. 509, 89 So.2d 55 (1956); Johnson v. Johnson, 213 La. 1092, 36 So.2d 396 (1948); Gogreve v. Dehon, 41 La.Ann. 244, 6 So. 31 (1889).

      . Under new Civil Code articles 2338 and 2341, which do not apply to this case, property purchased with both separate and community funds would appear to be community property, unless the amount of community funds used is inconsequential in comparison with the amount of separate funds used.

      . In Graves v. United States Rubber Co., supra, this court also faced a contention by a wife that a declaration in an act of sale was sufficiently in compliance with C.C. 2386 to reserve the earnings of her separate property for her separate benefit. Because it was immaterial to the decision of the case, we did not rule on the issue there.


author: DIXON, C.J.,

text:
    In the Matter of Amy PALMER and Megan Palmer. Mrs. Donna Lee Messina, wife of Michael PALMER v. Michael PALMER.
    No. 81-C-1997.
    Supreme Court of Louisiana.
    July 29, 1981.
   In Re: Donna Lee Messina, applying for Supervisory writs of Certiorari, Prohibition, Mandamus, and writ of Review, and stay order, Parish of Orleans, No. 81-5925; 81-5476.

Denied.

DIXON, C.J.,

concurs in the denial. Re-latrix, under an order not to remove the children from the state of Washington, brought them to Louisiana when a sociologist’s report recommended joint custody, and physical custody in the father. The Washington court, on learning this, ordered the custody given to the father. R.S. 13:1707(B) prohibits modifying that decree “unless required in the interest of the child.” There is no showing that such modification is required. One object of the statute is to prevent such removals of children.


author: PER CURIAM.

text:
    STATE of Louisiana v. Roy L. SPRUELL.
    No. 81-KA-0304.
    Supreme Court of Louisiana.
    Sept. 2, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Speedy 0. Long, Dist. Atty., Dan B. Cornett, Asst. Dist. Atty., for plaintiff-appellee.
    Patrick L. Durusau, Jena, Howard N. Nu-gent, Jr., Ford & Nugent, Alexandria, for defendant-appellant.
   PER CURIAM.

On January 3, 1980, defendant Roy L. Spruell was charged by bill of information with possession of marijuana with intent to distribute, in violation of La.R.S. 40:967. The trial court subsequently accepted defendant’s plea of guilty and, on December 8, 1980, sentenced him to five years’ imprisonment at hard labor. By this appeal, defendant urges that the trial court erred in utilizing the wrong penalty provisions during sentencing and in failing to justify an apparently severe sentence according to the sentencing guidelines set forth in La.C.Cr.P. Art. 894.1. We agree with the defendant and, accordingly, remand this case to the trial court for resentencing.

Before imposing sentence herein, the trial court referred only to defendant’s record. It noted that, in addition to a conviction of receiving stolen things in 1976, defendant presently faced additional counts of simple burglary and receiving stolen things, charges which arose while the accused was on bond for the instant offense. Defendant made no effort to deny these allegations and, when offered an opportunity to address the court, had nothing to say. Immediately thereafter, the trial court sentenced the accused to five years at hard labor, a sentence which the trial court felt to be the minimum allowable under R.S. 40:967.

In reality, the cited penal provision, R.S. 40:967(B)(1), deals only with the intended distribution of Schedule II narcotics, see R.S. 40:964, a classification not including marijuana, the distribution of which carries no minimum penalty and a maximum of ten rather than thirty years’ imprisonment. Though the sentence actually imposed fell within the statutorily-prescribed range, the danger that such a mistake of law might have affected the trial court’s attempt at leniency appears significant. For this reason, a sentence founded on an incorrect view of the law should usually be set aside. See, State v. Battaglia, 377 So.2d 264 (La.1979); ABA Standards of Criminal Justice (2d ed. 1980), § 20-3.2(b) and commentary at p. 20-30.

The trial court’s mistaken view of the statutorily authorized penalty also resulted in its unknowing imposition of a relatively stiff sentence rather than a minimal one. The imposition of such an apparently severe sentence requires record justification by the trial court, whose responsibility it is to ensure that the sentence has a sufficient informational basis to protect the accused’s right of review on appeal. La.C.Cr.P. Art. 894.1(C); State v. Sepulvado, 359 So.2d 137 (La.1978). Such factual justification is especially crucial where, as here, the accused’s guilty plea leaves no other evidence of record which clearly illumines the trial court’s sentencing choice. See, State v. Martin, 400 So.2d 1063 (La.1981) (on rehearing).

In the present case, the mere mention of defendant’s criminal record was insufficient to satisfy Article 894.1’s mandate that the sentence be individualized to both the offense and the offender. State v. Jones, 398 So.2d 1049 (La.1981). While the trial judge need not articulate every aggravating and mitigating circumstance enumerated under Article 894.1, the record must reflect that it adequately considered these guidelines in particularizing the sentence to the accused. State v. Guiden, 399 So.2d 194 (La.1981). Absent such consideration, we lack appropriate criteria by which to measure whether this sentence is excessive under our state constitution. State v. Smith, supra; State v. Dye, 384 So.2d 420 (La.1980); State v. Kenner, 384 So.2d 413 (La.1980).

Accordingly, we affirm defendant’s conviction but vacate the sentence imposed and remand the case for resentencing in accordance with law.

CONVICTION AFFIRMED; SENTENCE VACATED AND CASE REMANDED.

      . Although defendant did not object at the time of sentencing that the trial court had not complied with Art. 894.1, or that the sentence imposed was excessive, we have held that this failing will not bar later review of either complaint. State v. Smith, 389 So.2d 1262 (La.1980); State v. Bourgeois, 388 So.2d 359 (La.1980); State v. Cox, 369 So.2d 118 (La.1979).


text:
    STATE of Louisiana v. Joseph Frank PHILLIPS.
    No. 81-KA-0088.
    Supreme Court of Louisiana.
    Sept. 2, 1981.
    Rehearing Denied Sept. 28, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Paul J. Car-mouche, Dist. Atty., Billy J. Guin, Jr., Asst. Dist. Atty., for plaintiff-appellee.
    Nesib Nader, Shreveport, for defendant-appellant.
   PER CURIAM.

Affirmed.

LEMMON, J., dissents and would grant a rehearing.