author: CHEHARDY, Justice ad hoc.

text:
    STATE of Louisiana v. Oliver ELIZEY, Jr.
    No. 81-KA-1317.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns and Ronald D. Bodenheimer, Asst. Dist. Attys., for plaintiff-appellee.
    Walter J. Crittenden, Metairie, for defendant-appellant.
   CHEHARDY, Justice ad hoc.

Defendant, Oliver Elizey, Jr., was charged by bill of information with the November 9, 1980, armed robbery of James Keller. Trial began on March 5, 1981, and ended with a jury verdict of guilty as charged. On March 23, 1981 the trial court sentenced defendant to a term of ninety-nine (99) years at hard labor. It is from this conviction and sentence that defendant appeals.

The evidence discloses that the victim of the armed robbery, Keller, during the early morning hours of November 9, 1980, was leaving a restaurant on St. Charles Avenue in New Orleans when a blue compact car pulled up beside him. Two black males, occupants of the car, asked him questions concerning directions. Since he could not clearly hear the questions, Keller moved closer to the car and stooped down to hear what they were saying. As he did so, the passenger reached out and knocked him on the head. Keller fell to the ground and when he awoke he was in the back seat of the blue car. The passenger seat was reclined back on his legs pinning him down. Fearing for his life, the victim began to struggle to free himself. The passenger of the car attempted to strike him again with the pipe that he had, but Keller fought him off as the car turned into Audubon Park. Finally, Keller knocked the pipe out of his assailant’s hands. In order to help his companion, the driver pulled the car over to the side of the road and then produced a switchblade knife from between the two seats. The passenger jumped from the car leaving Keller and the driver to wrestle for control of the switchblade. Keller grabbed for the knife, catching the blade in the palm of his hand and cutting his palm and fingers. Somehow he gained control of the knife and began thrusting it at his attacker, cutting him on the hand and his shoulder. The man kept hitting Keller and regained control of the knife. Then he dragged the victim from the automobile and began stabbing him, once in the chest, and once in the stomach. Both of the men were fighting Keller at that point. Finally, Keller was able to break away and run. His attackers pursued him with one of them shouting, “he cut you, waste him, kill him.” The driver, who Keller later identified as defendant, ran after him, stabbed him in the leg and kicked him as he lay injured on the ground. During this struggle the other man jumped on Keller, took his wallet and ran back to the car. Keller testified there was approximately Ninety-five Dollars ($95.00) in the wallet. Not satisfied with having the money, the driver continued to attack Keller. The struggle continued until Keller remarked “Look, there’s a jogger.” At that point the driver looked up and Keller hit him as hard as he could in the face. The attacker then jumped up, ran to the car and sped away. Keller then walked over to the houses near the park and began ringing doorbells asking for help. Finally, Brian Smith answered Keller’s plea for help and called the police and an ambulance. At that time Keller passed out, coming to after the police and ambulance had arrived. After giving descriptions of his assailants to the police, he was transported by ambulance to Touro Infirmary. Keller had described the tennis shoes of the man who had stabbed and kicked him to a police officer. While he was being examined by a doctor at the hospital, Keller was shown a tennis shoe that exactly matched the description of the shoe worn by his assailant. After Keller identified the shoe, the officers pulled back the curtain which separated Keller’s examination table from the table next to him. Laying on that table was the driver of the car, Keller’s vicious assailant.

Officer Keith McElrath of the New Orleans Police Department, testified that as he and his partner, Philip Pizzo, were interviewing the victim, they realized that a man who was also being treated for stab wounds matched the victim’s description of his assailant. The man had the same clothing and the same wounds that the victim had described. After the defendant was identified by the victim he was placed under arrest.

By assignment of Error No. 1 defendant contends the trial court erred in refusing to allow defense counsel an opportunity to lay a proper foundation regarding the victim’s use of narcotics. James Keller admitted that he had been drinking on the night of the crime. Defense counsel argues he was attempting to lay a foundation “that a mixture of alcohol and narcotics might tend to dull or even distort the senses thereby making the identification, at the least, uncertain.”

At trial defense counsel asked the victim, “Do you use any drug other than prescription drugs?” The state objected before the witness could answer and the trial court sustained the objection. The court instructed counsel that, “You can ask if he’s ever been convicted before, and that’s all sir.” The judge obviously construed counsel’s query as an attempt to besmirch the victim’s character with evidence of his involvement in other offenses and hence ruled solely on the basis of La. R.S. 15:495, which provides in pertinent part:

“Evidence of conviction of crime, but not of arrest, indictment or prosecution, is admissible for the purpose of impeaching the credibility of the witness * *

This construction was logical in view of counsel’s reference to drugs “other than prescription drugs.”

In the present case it is a witness, the victim, not the defendant, who was being impeached. The credibility of James Keller was crucial to defendant’s case since Keller’s identification was the basis of the defendant’s conviction. However, when the trial court sustained the state’s objection to counsel’s question, counsel did not object and made no effort to explain the theory of drugged intoxication which he sought to develop.

Article 841 of the Louisiana Code of Criminal Procedure provides in part:

“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.”

In State v. Alexander, 351 So.2d 505 (La.1977), this Court found defendant’s argument improperly before the court since counsel did not object to the court’s action in sustaining the state’s objection. In State v. Charles, 326 So.2d 335 (La.1976), this Court explained:

“In these assignments defendant contends the trial court erroneously sustained the state’s objections to cross-examination questions asked by defendant’s counsel. On these occasions, although defendant did not expressly object, the court was necessarily aware of the action which defendant desired the court to take, viz., to overrule the state’s objection and allow him to put the questions to the state’s witness. However, defendant’s counsel neither complained of the court’s ruling nor apprised the court of the grounds upon which he was entitled to ask the questions. Instead, he apparently acquiesced in the court’s ruling by proceeding with his cross-examination along a different line of questioning.
“Essentially, Article 841 requires a party to appraise the court of an occurrence that the party contends is an irregularity or error as well as the basis for his contention. Since defendant did not comply with the statute he may not complain after verdict of the occurrences alluded to in these assignments of error. This rule is necessary to promote judicial efficiency by providing an adequate opportunity for the recognition and correction of errors during trial. State v. Marcell, supra. [320 So.2d 195 (La.1975) ].”

See also State v. Johnson, 404 So.2d 239 (La.1981).

Had defendant’s theory of cross-examination manifested itself from the line of questioning involved, counsel’s failure to object may have been excusable. State v. Boutte, 384 So.2d 773 (La.1980). Here, however, counsel’s reference to nonprescription drugs foreshadowed an effort to impeach the witness with evidence of crimes for which there had been no conviction. This line of impeachment was impermissible under La. R.S. 15:495 and counsel’s belated justification of the inquiry comes too late when urged for the first time on appeal. We observe that even if defense counsel had objected to the court’s ruling, the error does not appear to be one that would mandate a reversal. There are no facts to indicate that the victim had taken any drugs on the night of the offense. The victim admitted drinking and counsel cross-examined him on that issue. The ruling of the court, although an error, did not substantially prejudice the rights of the accused. La.C.Cr.P. art. 92}.

We find no merit in assignment of Error No. 1.

By assignment of Error No. 2 defendant urges that the trial court erred when it sustained the state’s objection to defense counsel’s question concerning whether or not the victim had any black friends. Defendant’s counsel argues he was attempting to establish that “if James Keller was not in the habit of being in the company of blacks, the possibility of positive identification would be remote.”

Defendant may impeach the credibility of a witness so far as his credibility in the case on trial is concerned. La. R.S. 15:490. However, defense counsel did not object to the ruling, thereby failing to leave a record reviewable by this Court. State v. Luckett, 327 So.2d 365 (La.1976, on rehearing); La.C.Cr.P. art. 841.

Even if counsel had timely objected and stated the proper legal basis for this objection, the error complained of would not mandate a reversal. La.C.Cr.P. art. 921. The victim’s description and identification of his assailant were extremely accurate. The defendant was identified within an hour of the offense. Furthermore, the victim asserted at trial that he was positive that defendant was his attacker. We find no merit in this assignment of error.

Defendant submits in his final and third assignment of error that the trial court erred in not setting aside the jury’s verdict since the verdict was contrary to the law and evidence. This contention is based on defendant’s assertion that there was no evidence that anything of value was taken from the victim. Furthermore, defendant contends that numerous inconsistencies existed in the victim’s and the police officers’ testimonies.

The critical inquiry on review of the sufficiency of evidence to support a criminal conviction is to determine whether the record could reasonably support a finding of guilt beyond a reasonable doubt. The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inference from basic facts to ultimate facts. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Moody, 393 So.2d 1212 (La.1981).

A review of the record in light of the aforementioned standard clearly illustrates that a rational trier of fact could have found beyond a reasonable doubt that Oliver Elizey, Jr., committed the armed robbery in question. The victim positively identified Elizey as his attacker. The defendant matched the description that Keller gave to police officers even as to the location of the stab wounds. The victim testified that defendant and the other assailant kept demanding his money and his leather coat. After stabbing, kicking and beating the victim, they were successful in taking his wallet which contained approximately $95.00.

By this evidence the prosecution clearly established that something of value was taken from the victim by force.

Assignment of Error No. 3 lacks merit.

For the foregoing reasons the conviction and sentence of Oliver Elizey, Jr., are affirmed.

       Judges Patrick M. Schott, Lawrence A. Chehar-dy and Denis A. Barry of the Court of Appeal, Fourth Circuit, participated in this decision as Associate Justices ad hoc, joined by Associate Justices Pascal F. Calogero, Jr., James L. Dennis, Jack Crozier Watson and Harry T. Lem-mon.


source: Caselaw Access Project

author: CALOGERO, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Liza LITTLETON, Joseph Lombardo, and Edward Mullen.
    No. 81-K-1495.
    Supreme Court of Louisiana.
    Dec. 14, 1981.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Spencer W. Kimball, II, Louise S. Korns, Asst. Dist. Attys., for plaintiff-relator.
    Wayne Douglas Mancuso, Robert Fleming, Jr., of Kiefer, Glorioso & Fleming, Bernard Jack Usprieh, New Orleans, for defendants-respondents.
   CALOGERO, Justice.

In this matter the state attacks the ruling of the trial judge suppressing evidence which was the product of warrantless seizures. Because we find that the seizures, although warrantless, were nonetheless reasonable and fell within well established exceptions to the warrant requirement, we reverse the ruling of the trial judge.

Defendants Liza Littleton, Joseph Lombardo and Edward Mullen were charged by bills of information with two counts of receiving stolen property in violation of La.R.S. 14:69. Defendants entered pleas of not guilty to both counts and filed a motion to suppress evidence seized pursuant to an allegedly unconstitutional search. After a hearing on the motion, the trial judge ordered the evidence suppressed. We granted the state’s application for certiorari to consider that ruling. 401 So.2d 1203 (La.1981).

Sgt. Daniel O’Neil of the New Orleans Police Department was the sole witness at the hearing on the motion to suppress and gave the following account of the events which culminated in the seizure. On February 11, 1981, two detectives from Lafourche Parish contacted the New Orleans Police and requested assistance. According to the Lafourche detectives, two businesses in that parish had been burglarized and a New Orleans woman had been in both business places prior to the burglaries.

Defendant Liza Littleton had purchased an air filter at one of the businesses and had given a New Orleans address. Shortly thereafter in the other business establishment, Littleton had asked to use the restroom. The Lafourche detectives wanted to question her regarding whether the restroom window had been open before she used the facility because they believed that the burglars had gained entrance through that window. Littleton had been driving a pick-up truck when she left the two business places in Lafourche Parish.

The Lafourche detectives went to the address given by Littleton and found that it was beside and/or to the rear of the plant premises of a Halter Marine shipyard on U.S. Highway 90 just past the intersection with Louisiana Highway 11. When the detectives arrived at the location they saw the pick-up truck which Littleton had reportedly been driving and observed exposed in the open bed of the pick-up property stolen in the burglaries. This truck was parked in a hangar and the stolen property was being unloaded from the truck onto the floor of the hangar. At this point the Lafourche officers contacted the New Orleans Police. Sgt. O’Neil and another N.O.P.D. officer responded to the request for assistance. The two sets of officers met at the Halter Marine security office which is located at the entrance to the Halter Marine premises on Highway 90. After a few minutes in the security office, the police returned to their vantage point on or alongside Highway 90 to observe the activity in the hangar.

Sgt. O’Neil estimated that the observation continued 28 to 40 minutes. The officers used binoculars to aid in the observation, but Sgt. O’Neil testified that the activity and property could be seen without them. The pick-up truck with the stolen property was in the hangar with the back of the truck facing the highway. There was no wall on the end of the hangar nearest the highway and the hangar opening was 30 to 40 feet wide. The police also saw a second pick-up truck parked outside the hangar.

The police had been observing the activity in the hangar for about 40 minutes when this second pick-up truck driven by defendant Lombardo left the hangar area and headed toward Highway 90. In the back of this truck the police had already observed a riding lawn mower of the type which had been reported stolen. Two of the police (one from New Orleans and one from La-fourche) stopped Lombardo as his truck departed the property and was pulling onto Highway 90, and placed him under arrest.

The two other policemen thereupon drove to the hangar and parked their car just outside the hangar and behind the pick-up truck so that it could not be moved. Sgt. O’Neil stated that the relationship between Halter Marine and Trans-Gulf Airlines, owner of the hangar was not clear, but they learned that there was a “working relationship between Trans-Gulf and Halter. Trans-Gulf operates that with a lease, something like that.” Sgt. O’Neil also stated that the hangar was on Halter Marine’s property. From Barbara Johnson, resident manager of Trans-Gulf Airlines, the police secured permission to enter and search the hangar.

Much of the stolen property was spread on the floor of the hangar. Some was in the back of the pick-up truck which belonged to defendant Mullen and other of it had been hidden by Mullen inside the hangar. Mullen retrieved the hidden property for the police. Ms. Johnson informed the police that Littleton was in the Trans-Gulf office located about 40 feet from the hangar.

The state concedes that there was no search warrant, but argues that the search falls within an exception to the warrant requirement. Defendant’s position is that there was time for the police to have obtained a warrant and consequently their failure to do so mandates that the evidence seized without a warrant be suppressed.

It is well settled that warrantless searches and seizures are per se unreasonable unless they fall within a limited number of well delineated exceptions to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Malone, 503 So.2d 1234 (La.1981); State v. Denton, 387 So.2d 578 (La.1980). One of these exceptions is the “automobile emergency exception” which is based upon the existence of probable cause to search the vehicle and exigent circumstances which make it impracticable to secure a warrant. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); State v. Edsall, 385 So.2d 207 (La.1980); State v. Guzman, 362 So.2d 744 (La.1978).

In our opinion, the stop of Lombardo’s truck and the seizure of the lawnmower (and a go-cart which was observed alongside it as the truck approached the police) from the bed of the truck falls within the scope of the “automobile emergency exception” to the search warrant requirement. The truck, in the bed of which was seen the stolen lawnmower and go-cart, was being driven from the hangar. Under these circumstances it was reasonable for the police to stop the truck and seize the lawnmower.

The observation of the stolen property which was located in the back of Mullen’s truck and in the hangar was made from a public road — U.S. Highway 90, or the shoulder thereof. In this situation, there was technically no search, because there was no intrusion upon private property. State v. Brown, 370 So.2d 525 (La. 1979). Furthermore, whatever defendant’s subjective expectation of privacy might have been, their expectation of privacy could hardly be characterized as one which society at large is prepared to recognize as reasonable. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); State v. Denton, supra. The open end of the hangar faced a public highway and the use of binoculars in a situation such as this does not violate the Fourth Amendment. In Denton, supra, we rejected the eontention that the use of a “night scope to aid night viewing violated the Fourth Amendment and specifically noted that we saw no difference between the use of the “night scope” and binoculars.

The police clearly had probable cause to believe (in fact they were rather certain) that there was contraband in the truck bed and on the hangar floor. However, as we said in State v. Brown, supra: “[I]f the evidence is itself within a protected area, the officer may not enter the area to effect the seizure without first obtaining a warrant, absent exigent circumstances or another exception to the warrant requirement.” 370 So.2d at 527.

In this regard, we note that some of the stolen property was in the bed of a pick-up truck parked inside the hangar. One truck carrying stolen goods had already departed from the area. The departure of the remaining truck might well have been imminent. It was not unreasonable for the police officers to have suspected that the stop and apprehension of Lom-bardo and seizure of his pick-up truck, occurring as they did only a short distance from the hangar and within the view of the hangar’s occupants would alert the occupants of the hangar to the need to remove or at least hide the stolen property. With these realities confronting them, the police acted in a reasonable fashion, considering the exigencies of the situation, in pulling their car behind Mullen’s truck so that it could not be removed from the hangar, thus causing, effectively, a seizure of the truck.

Further, we observe that Sgt. O’Neil testified that the police received permission from the manager of Trans-Gulf Airlines before entering the hangar. Consent is another of the exceptions to the warrant requirement. Schneckloth v. Bustamonte, supra; State v. Packard, 389 So.2d 56 (La.1980). The consent need not have been given by the defendant, but may have been given by one who has common authority over the premises to be searched. State v. Wilkerson, 367 So.2d 319 (La.1979). The resident manager of Trans-Gulf Airlines had sufficient authority over the hangar to consent to the search. Under these circumstances the police did not need a warrant to enter and search the hangar and seize the stolen property located therein.

Once the police had “seized” Mullen’s pick-up truck by pulling the police car behind it and had obtained consent to enter the hangar in which the truck was located, there was no constitutional impediment to the seizure of the stolen property located in the open bed of the truck. This property was not in any manner concealed from view and defendants could have no reasonable expection of privacy. Thus, the need for a warrant to seize the stolen property was obviated. Robbins v. California, - U.S. -, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981); Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed. 235 (1979); Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968).

In summary, the existence of exigent circumstances allowed the police to seize the stolen property which was located in the back of Lombardo’s truck. Exigent circumstances also permitted the police to seize Mullen’s truck by preventing its departure from the hangar. The consent of the resident manager of Trans-Gulf Airlines for the police to enter and search the hangar places that search and seizure outside the warrant requirement of the Fourth Amendment. Finally, once inside the hangar with consent and having permissibly seized Mullen’s truck, there was no need for the police to obtain a warrant to seize the stolen property which was clearly visible, and accessible, in the open bed of the truck.

Having decided that the warrantless seizures (and search of the hangar for the non-visible property) were justified under exceptions to the warrant requirement, we must now address defendant’s argument that the failure of the police to attempt to obtain a warrant immediately upon seeing the stolen property precludes the state from relying upon those exceptions. In State v. Tant, 287 So.2d 458, 461 (La.1973), we said:

Neither the Constitution of the United States nor the jurisprudence requires that a police officer immediately obtain a search warrant upon his gaining probable cause for its issuance. Nor for that matter is there any impropriety as far as a defendant’s constitutional rights are concerned if an officer with probable cause desists indefinitely from securing a warrant, absent an illegal search and seizure.

We further stated in Tant that the only pertinence delay in securing a warrant would have upon a search and seizure, would be that it would be a violation of constitutional rights for police deliberately to set up surveillance and await exigent circumstances to circumvent the requirement that an impartial magistrate pass upon probable cause.

As we stated previously, in the case at bar the police had probable cause to obtain a warrant after viewing the stolen goods in the hangar and in the back of the pick-up truck in the hangar. In Tant, supra, the surveillance lasted 24 hours after the police had obtained probable cause and we did not find that to be impermissibly long. In the case at bar, the police observation of the activity lasted less than an hour.

Six months after this Court decided Tant, supra, the United States Supreme Court rendered its decision in Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974), holding that the right to search with probable cause, and the reasonableness of seizing a car under exigent circumstances are not foreclosed if the warrant is not obtained at the first practicable moment. According to the Cardwell court: “Exigent circumstances with regard to vehicles are not limited to situations where probable cause is unforseeable and arises only at the time of arrest.” 417 U.S. at 595, 94 S.Ct. at 2472.

The police in the case at bar did not delay getting a warrant to circumvent the requirement that an impartial magistrate pass upon the existence of probable cause. Incidentally the police did, rather certainly, have probable cause. And we do not conclude from the record that the police were waiting for exigent circumstances to arise so as to avoid having to get a search warrant. We are impressed by the fact that the Lafourche detectives went to Littleton’s address for the purpose of questioning her because she had been in both of the businesses shortly before the burglaries occurred. They had no reason to anticipate what they later were to find. Their finding the stolen property at that location was unexpected.

The seizures, and search of the hangar for the concealed tools, fell within well established exceptions to the requirement that police obtain a warrant before searching and seizing property. The short time spent in observing the activity in the hangar before the exigency arose does not render the seizures constitutionally impermissible.

DECREE

For the foregoing reasons, the ruling of the trial judge that the evidence be suppressed is reversed and the case remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

      . The motion to suppress contained in the record appears to have been filed on behalf of defendant Mullen alone. However, the minute entry reflects that the trial judge sustained the motion for all three defendants. The transcript of the hearing on the motion shows that attorneys for all three defendants participated in the hearing. In State v. Bergeron, 371 So.2d 1309 (La.1979), we held that the provision of La.C. Cr.P. art. 842 that an objection made on behalf of one defendant shall be presumed to have been made by all defendants applies by analogy to written motions by a co-defendant. The ruling to suppress the evidence will inure to the benefit of all defendants. We therefore treat the ruling as applying to all three defendants.

      . The unusual nature of much of the stolen property facilitated its identification. Sgt. O’Neil described some of it as “the biggest hand tools I ever saw, electric drills ten times normal size, ratchets, handless mechanical tools, four feet in height and tremendous sockets, big tools.” A go-cart and several gasoline lawn mowers had also been stolen.

      . Sgt. O’Neil said that it might have been dark but that the hangar area was well lighted.

      . While the only road access to U.S. Highway 90 went past the location of the police, there were other buildings near the hangar, including the Trans-Gulf office, and there was a navigable waterway behind the hangar.


author: WATSON, Justice.

text:
    Bobbie J. BELL v. GEORGIA CASUALTY AND SURETY COMPANY.
    No. 81-C-1612.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
    Gerard F. Thomas, Jr., of Thomas & Du-nahoe, Natchitoches, for plaintiff-applicant.
    F. Steve Landreneau, of Hall, Lestage & Lestage, De Ridder, for defendant-respondent.
   WATSON, Justice.

In this workman’s compensation case the issue is whether plaintiff’s suit is premature.

Plaintiff, Bobbie J. Bell, had his left leg amputated on February 13, 1980, while working in a sawmill. Defendant is the sawmill’s compensation insurer, Georgia Casualty and Surety Company. Plaintiff was paid benefits of $83.33 a week, but defendant now admits that the correct amount was $133.33 per week. Plaintiff’s attorney demanded an increase by a letter dated July 8, 1980. An insurance adjuster acknowledged receipt of the attorney’s “letter of representation” (Tr. 118) by a note dated August 14. Plaintiff’s suit had been drawn up on August 14 and filed August 19. Defendant filed an exception of prematurity, which was sustained by the trial court.

At the hearing, Harvey Thaxton of Thax-ton and Son Sawmill testified that Bell was injured during his second week of work and had been paid $125 for the first week. His hourly wage was $5.00 and he was employed for twenty-five hours per week.

Zonie A. Harris, the adjuster, said he had determined that Bell was entitled to 662/s% of his weekly wage of $125. Harris followed up his note the following week, but was advised that suit had already been filed. Harris said there was no intention to deprive Bell of what he was entitled to receive, but he did not have authority to make a change without advice from his attorney, who was in Colorado. The attorney is a partner in a firm.

The trial court held that the insurance company acted in good faith and that the adjuster was not unreasonable in waiting to consult with counsel. The Court of Appeal affirmed holding that the suit was premature under LSA-R.S. 23:1314. Bell v. Georgia Casualty and Surety Co., 399 So.2d 768 (La.App. 3 Cir. 1981). A writ was granted to review the judgment. 401 So.2d 991 (La., 1981).

The letter of plaintiff’s lawyer correctly advised the insurance company that Bell’s compensation should be computed on the basis of a forty hour week under LSA-R.S. 23:1021. That statute provides in section (7)(a) that, when an employee is paid on an hourly basis, the base for calculating compensation benefits is “. .. his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of injury or forty hours, whichever is greater”. The language is clear and unequivocal. Any attorney in the firm of defendant’s counsel could have advised Harris about the correct amount. The error should have been immediately rectified when it was brought to defendant’s attention. A delay of over a month was unreasonable. Compare Davis v. W. Horace Williams Co., 6 So.2d 168 (La.App. 1 Cir. 1942). Suit is not premature when an employer has refused to pay the maximum percent of wages to which a claimant is entitled. LSA-R.S. 23:1314. An implied refusal meets the requirements of the statute. Clark v. Forest Lumber Co., 9 La.App. 639, 120 So. 88 (1928). Failure to promptly respond to a reasoned request for the correct amount of benefits is tantamount to a refusal. Plaintiff’s suit is not premature.

For the foregoing reasons, the judgment is reversed and the matter is remanded for trial on the merits.

REVERSED AND REMANDED.

BLANCHE, J., dissents being of the opinion that the opinion of the Court of Appeal is correct.

      .LSA-R.S. 23:1314 provides:
      “Unless in the verified petition above referred to it is alleged (where the petition is filed by the employee or his dependents) that the employee or the dependents is not being or has not been paid, and that the employer has refused to pay, the maximum percent of wages to which petitioner is entitled under the provisions of this Chapter, or that the employee has not been furnished the proper medical attention, or that the employee has not been furnished with copies of the reports of examination or examinations made by employer’s medical practitioners after written request therefor has been made under the provisions of this Chapter, the presentation or filing of such petition shall be premature and shall be dismissed; when such allegations are contained in such petition and are denied by the employer at the time fixed thereunder by the court, if it be shown that such allegations are without reasonable cause or foundation in fact, such petition shall be dismissed; and the question of whether or not such allegations of nonpayment or of failure to render medical attention or failure to furnish medical reports is justified under the facts shall be determined by the court before proceeding with the hearing of the other issues involved.”

      . LSA-R.S. 23:1021(7)(a) provides:
      “(7) ‘Wages’ means average weekly wage at the time of the accident. The average weekly wage shall be determined as follows: (a) If the employee is paid on an hourly basis, his hourly wage rate multiplied by the average actual hours worked in the four full weeks preceding the date of the injury or forty hours, whichever is greater; ...”

      . At the hearing, defendant was represented by another member of the firm.


author: CALOGERO, Justite.

text:
    Brenda Ann LANGLINAIS v. Richard GUILLOTTE, et al.
    No. 81-C-1712.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
    William R. Collins, New Iberia, for plaintiff-applicant.
    Alex A. Lopresto, III, Roy, Forrest & Lopresto, Ltd., New Iberia, Anthony J. Fontana, Jr., Theall & Fontana, Abbeville, for defendant-respondent.
   CALOGERO, Justite.

The issue presented for our consideration is whether a timely filed tort suit against a person in his individual capacity as the owner and purported operator of a negligently driven vehicle, and against his insurer, interrupts prescription on a claim asserted by plaintiff in an amended petition against the same timely sued defendant for his vicarious liability, and against that same defendant as administrator of his minor daughter’s estate, the amended petition asserting that the daughter, not the father, was in fact the driver of the vehicle.

On February 22, 1977, plaintiff, Brenda Ann Langlinais, was injured in an automobile accident when the car she was driving was struck from the rear. In plaintiff’s original petition, filed February 17, 1978, she alleged that defendant, Richard Guil-lotte, had negligently driven the rear-ending vehicle at the time of the accident. She also contended that Richard Guillotte was the owner of the vehicle and that it was insured by the co-defendant State Farm Insurance Company. Defendants filed an answer to the petition on December 6, 1978, generally denying the allegations. On November 7, 1979, State Farm filed a motion in the trial court and secured an order permitting it to deposit the policy limits ($10,000.00) in the registry of the court.

On May 27, 1980 defendant Richard Guil-lotte filed a motion for summary judgment with attached affidavits, an exception of no cause of action and an exception of res judicata, alleging among other things, that plaintiff’s petition did not assert a cause of action against him because he was not the driver of the vehicle at the time of the accident. By affidavit, defendant alleged that his minor daughter, Katherine Guil-lotte, was driving the automobile at the time of the accident.

On that same day, plaintiff filed a pleading entitled “First Supplemental and Amending Petition” in which she asked to be permitted to amend her original petition to assert that defendant’s minor daughter, Katherine, had negligently operated the offending vehicle and to name Richard Guil-lotte in his capacity as administrator of the child’s estate. In response to this amendment to plaintiff’s petition, defendant filed an exception of prescription claiming that the so called amendment to plaintiff’s petition actually stated a new cause of action against him and added a new defendant (Richard Guillotte in his capacity as administrator of his minor daughter’s estate); and since the amended petition was filed more than a year after the accident, these claims had prescribed.

The trial judge sustained defendant’s exception of prescription stating that he felt bound to do so by the prior jurisprudence, although he conceded that defendant here actually had adequate notice of the claims by virtue of the original petition. The Court of Appeal affirmed the trial court ruling. 398 So.2d 106 (La.App. 3rd Cir. 1981). Upon application by plaintiff, this Court granted writs to review the lower court rulings.

Generally, tort actions prescribe one year from the date of the offense or quasi-offense. La.C.C. art. 3536. The burden of proof rests upon the party pleading prescription. Pearson v. Hartford, 281 So.2d 724 (La.1973). Defendant Guillotte contends that the amended petition added a new cause of action and since it was filed some three years after the accident, it had prescribed. Absent the interruption of a running of the one year prescriptive period, defendant’s contention would be correct.

The question presented is whether the timely filed petition against Richard Guil-lotte in his individual capacity as the alleged owner/operator of the automobile interrupted the prescription which might otherwise have run against his minor daughter’s estate, and against him as pertains to his individual vicarious liability for his minor daughter’s tort.

Plaintiff contends that under La.C.C.P. art. 1153 the demand in the supplemental and amending petition relates back to the date of the filing of the original petition, and that therefore prescription is not a bar to the demand. La.C.C.P. art. 1153 provides:

When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the filing of the original pleading.

Recently, in Baker v. Payne & Keller of La., Inc., 390 So.2d 1272 (La.1980) this Court was confronted with an argument similar to that urged upon us by plaintiff here. In Baker the plaintiff filed her original wrongful death action against her deceased husband’s employer, Payne & Keller of La., Inc., and its insurer, Maryland Casualty Company, alleging that the accident was caused by the employer’s failure to provide a safe place to work, safety procedures and medical and emergency treatment. The employer excepted to plaintiff’s suit asserting that plaintiff’s exclusive remedy was under the worker’s compensation act. The employer’s exception was sustained, the employer was dismissed from the suit, and plaintiff was granted fifteen days to amend and state a cause of action against Maryland. After the one year prescriptive period had run, plaintiff filed her amended petition naming Mr. Payne and Mr. Keller individually, as well as three other employees of the Payne and Keller company, and alleging that Maryland Casualty Co. was the liability insurer of these five persons. It was alleged that the accident was caused by the fault of these individuals.

The Court in Baker held that the amendment to the timely filed petition related back to the date the original pleading was filed. The Court stated, “[i]t is well established that Louisiana Code of Civil Procedure article 1153 permits amendment despite technical prescriptive bars where the original pleading gives fair notice of the general fact situation out of which the amended claim or defense arises.” We further held that “[w]here there is ‘some factual connexity between the original and amended assertions, together with some identity of interest between the original and the supplemental party’ amendment should be allowed. 43 Tul.L.Rev. 211, 234.”

Likewise, for the reasons stated below, we find that the original pleading did give fair notice of the general fact situation out of which the amended claim arose, and that there is sufficient factual connexity between the original and amended assertions, together with some identity of interest between the original and the supplemental party, such that the amendment should be allowed to relate back to the date of the filing of the original petition and should not be barred by prescription.

Plaintiff’s original petition gave Mr. Guil-lotte and his insurer notice of the fact that plaintiff was seeking to recover from them for injuries she suffered as a result of an automobile accident in which she was rear-ended on February 22, 1977 by an automobile owned by defendant Guillotte and insured by defendant State Farm. In the original petition plaintiff mistakenly alleged that Richard Guillotte was operating the automobile at the time of the accident. In the amended petition, plaintiff alleged that Mr. Guillotte’s minor daughter was operating the automobile at the time of the accident. The other allegations were the same, that is, that plaintiff’s injuries resulted when an automobile owned by Richard Guillotte and insured by State Farm negligently hit her in the rear.

Therefore, notwithstanding that the petition as amended asserts a claim against the original defendant, Richard Guillotte, for vicarious liability for the acts of his minor child rather than for direct liability, as was originally asserted, we nonetheless conclude that there was factual connexity between the original and amended assertions and that the original pleadings gave fair notice of the general fact situation out of which the amended claim arose.

As to whether or not plaintiff’s attempt, by the amended petition, to add Richard Guillotte in his capacity as administrator of his daughter’s estate as a defendant should relate back to the date of the filing of the original petition, we must determine whether there is some identity of interest between the original and supplemental party such that the inference can be made that the supplemental party had notification of the claim against him within the prescriptive period.

In a law review article by Judge Albert Tate, Amendment of Pleadings in Louisiana (43 Tul.L.Rev. 211), addressing the issue of when a suit filed against the wrong defendant interrupts prescription against the proper one, he explained:

The suit against the wrong defendant interrupted prescription against the proper one, if the two were so closely related as to warrant the inference that the proper defendant knew of the act interrupting the prescription.
******
The fundamental purpose of prescription statutes is only to afford a defendant security of mind and affairs if no claim is made timely, and to protect him from stale claims and from loss or non-preservation of relevant proof. They are designed to protect him against lack of notification of a formal claim within the prescriptive period, not against pleading mistakes that his opponent makes in filing the formal claim within the period, (emphasis provided)

In the present case, it can hardly be argued that the administrator of the minor’s estate did not know of the original suit and the claim being made, since that person, the minor’s father Richard Guillotte, was the same individual named as a defendant in the original suit although in his individual capacity.

In the case of Andrepont v. Ochsner, 84 So.2d 63 (La.App. Orl. 1955), a case directly on point, plaintiff timely filed suit against Dr. Alton Ochsner in his individual capacity. After the prescriptive period had run, plaintiff sought to add, as defendants, Alton Ochsner Medical Foundation and its insurer. The original defendant happened to be the president of the Foundation. The court allowed the addition of the defendants by supplemental petition after the prescriptive period had run finding that, although Dr. Ochsner was originally sued in the wrong capacity, the proper defendant (Dr. Ochsner as president of the Foundation) had nevertheless been timely apprised of the claim, and thus prescription was interrupted.

All defendants in this , case had notice of the legal claim against them within the one-year prescriptive period by the filing of plaintiff’s original petition. The factual connexity between the original petition and the amended one is clear; plaintiff’s injuries resulted from an automobile accident that occurred on February 22, 1977 when she was allegedly negligently struck from the rear by a car owned by Richard Guil-lotte and insured by State Farm. Thus the purpose of the prescriptive provision, to insure timely notification to a person that a legal claim, and the nature thereof, is being made against him, is not violated by allowing plaintiff’s amended petition to relate back to the date the original petition was filed.

The Court of Appeal relied in part, in its contrary determination, upon Trahan v. Liberty Mutual Insurance Co., 314 So.2d 350 (La.1975) and Sizeler v. Employer’s Liability Assurance Corp., 102 So.2d 326 (La.App. Orl. 1955). We find both cases distinguishable.

The legal issues presented in Trahan concerned whether one law suit, litigated to completion in favor of all named defendants, interrupted prescription as to an otherwise untimely second law suit filed against essentially different defendants. The issues considered were whether prescription was interrupted as to the second law suit under La.R.S. 9:5801 (which provides that the filing of one law suit interrupts prescription affecting the cause of action therein sued upon against all defendants) and whether La.C.C. art. 2097 (which provides that suit against one solidary debt- or interrupts prescription against all solida-ry debtors) supported plaintiff’s contention that the first suit interrupted prescription on the second suit.

Sizeler, like Trahan, involved the question of whether prescription had been interrupted, so as to allow plaintiff to file a second suit against different defendants, by plaintiff’s timely filing of a prior suit which had already been litigated to completion in favor of the defendants therein. The issue presented in the case presently before us, involving only one law suit, is whether La. C.C.P. art. 1153 allows plaintiff’s amended petition to relate back to the date the original petition was filed, thus avoiding the prescriptive bar to the amended claim. That issue was not under consideration in either Trahan or Sizeler.

Therefore, under the facts of this case, where there is only one suit, the same plaintiff, the same defendant (Richard Guillotte) although in different capacities, the same insurer, the same vehicle, and the same accident, we find that there was “sufficient factual connexity between the original and amended assertions, together with some identity of interest between the original and the supplemental party” such that the amendment to the original petition should have been allowed to relate back to the date the original petition was filed. The prescription exception should have been overruled.

Decree

For the foregoing reasons, the Court of Appeal judgment affirming the trial court’s ruling sustaining defendant’s prescription exception is reversed and the case is remanded to the trial court for further proceedings consistent with the views expressed herein.

REVERSED AND REMANDED.

MARCUS and WATSON, JJ., concur.

      . Judge Tate noted that Federal Rule 15(c), which was the source provision for La.C.C.P. art. 1153, was amended in 1966 in an attempt to clarify the original wording of the rule. The amendment provided:
      An amendment changing the party against whom a claim is asserted relates back if the foregoing provision [i.e., that it arises out of the ‘conduct, transaction or occurrence’ originally pleaded] is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by the amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining this defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.
      Judge Tate also noted that such an amendment of Louisiana Code of Civil Procedure Article 1153 was not necessary because of the comparable judicial interpretations that had already been made. Lunkin v. Triangle Farms, Inc., 208 La. 538, 23 So.2d 209 (1945); Jackson v. American Employers’ Ins. Co., 202 La. 23, 11 So.2d 225 (1942); Stewart v. Maloney Trucking and Storage, Inc., 147 So.2d 62 (La.App. 4th Cir. 1962); Brooks v. Wiltz, 144 So.2d 413 (La.App. 4th Cir. 1962); and Andrepont v. Ochsner, 84 So.2d 63 (La.App. Orl. 1955).

      . In Trahan, it was determined that the original defendants were not solidarily liable with the defendants named in the second suit. However, it is well settled that under La.C.C. art. 2097, since an insurer and its insured are soli-dary obligors, suit timely filed against the insurer interrupts the running of prescription against the insured. Baker v. Payne and Keller of Louisiana, Inc., supra.; Pearson v. Hartford Accident & Indemnity, supra; Hidalgo v. Dupuy, 122 So.2d 639 (La.App.1960); Stansbury v. Hoover, et al, 366 So.2d 918 (La.App. 1st Cir. 1978); Hobbs v. Fireman's Fund American Insurance Companies, et al., 339 So.2d 28 (La.App. 3rd Cir. 1976), writs denied, 341 So.2d 896 (La.1977); Simmons v. Travelers Insurance Company, 295 So.2d 550 (La.App. 3rd Cir. 1974), writs denied, 299 So.2d 795 (La.1974). Therefore, unlike the situation in Trahan, the timely filing of plaintiffs original petition asserting a cause of action against State Farm, the insurer of the vehicle involved in the accident, interrupted the running of prescription against State Farm’s insured, Katherine, or in this case Katherine’s father as administrator of her estate.


author: BLANCHE, Justice.

text:
    FOLSOM ROAD CIVIC ASSOCIATION v. PARISH OF ST. TAMMANY Through St. Tammany Parish Police Jury.
    No. 81-CA-1901.
    Supreme Court of Louisiana.
    Dec. 14, 1981.

      M. J. LeGardeur, Jr., Covington, Delbert G. Talley, New Orleans, for plaintiff-appel-lee.
    Edward A. Shamis Jr. of Shamis & McCreary, Ltd., Slidell, for defendant-appellant.
   BLANCHE, Justice.

This case involves the constitutionality of the St. Tammany Parish zoning ordinance. The statutory authorization for zoning in St. Tammany Parish is contained in Act 518 of 1954. This enabling legislation empowered the Parish of St. Tammany to regulate and restrict the development of property within the parish “for the purpose of promoting health, safety, morals, or the general welfare of the community.” Further, Act 518 permitted the local legislative body to divide the parish into districts “as may be deemed best suited to carry out the purposes of this act.” Regulations adopted by the parish were required to be uniform within each district and had to be made “in accordance with a comprehensive plan.”

Pursuant to the enabling legislation, the Parish of St. Tammany sought to zone the territory within its borders. Accordingly, in 1971, the Parish Police Jury, following the recommendation of the Parish Planning Commission, passed Ordinance 523. This regulation divided the parish into land use districts and was designed to lessen congestion, prevent overcrowding, secure safety and insure that adequate public services were available to the population. The Folsom Road Civic Association challenged the constitutionality of Section 2.1 of this ordinance, claiming it to be arbitrary and discriminatory. The disputed section, which created the R-Rural zone reads as follows:

“Section 2.1. R-Rural District.
2.101. Permitted Uses.
1. Any use which does not create a nuisance by way of objectionable noise, glare, odor, or air pollution. Junk Yards and garbage disposal dumps will be permitted only where authorized by the St. Tammany Parish Police Jury. All regulations of the Stream Control Commission of Louisiana and the Louisiana State Board of Health as regards environmental pollution are to be complied with.
2. Commercial and industrial uses falling in the above categories require review and approval by the Planning Commission before issuance of a permit. Applicants for such permits must submit to the Planning Commission plans meeting the following criteria.
a. Use does not create a hazard to health and safety of the adjacent residents.
b. Noise, glare and unsightliness when present are screened by solid fences or walls six feet high or plantings which will grow to this minimum height.
c. Minimum Yard Requirements (As per Ordinance No. 769)
Front Yard: Front building lines shall conform to the average building lines established in a developed block; in all cases, this front building line shall be setback a minimum of fifty feet (50’) from the street line.
Side Yard: There shall be two side yards, one on either side of the principal building, each having a minimum width of ten feet (10').
Rear Yard: There shall be a rear yard having a depth of not less than twenty percent (20%) of the depth of the lot, or not less than fifty feet (50') when the lot depth is in excess of 250 feet.
d. Roadway exists (sp.) and entrances are located for clear sight distance and safe access to public roadways.
e. Major drainage channels are designed with sufficient culverts and rights of way to provide for natural water flow and maintenance of drainage.
f. Disposal of waste and sewerage has been approved by the proper local authorities.
g. There be no more than one permit and one use requested for a building to be constructed on a lot or lots of record.
h. Meets the requirements of the subdivision ordinance.
2.102. Height Regulations: None except when abutting residential areas. Then set back one foot for each foot of height over 45 feet.
2.104. Parking: Applicable to commercial and industrial uses only. — See Part 4.
2.105. Loading zone required for commercial and industrial uses — See Part 4.
2.106. Section 3.3 through 3.303 will apply only to commercial or industrial uses indicated above.

The district court struck down the zoning ordinance, finding Section 2.1 arbitrary and inconsistent with constitutional and legislative guidelines. Because the ordinance was declared unconstitutional, this case comes before us on an appeal of right. Louisiana Constitution, Art. 5, § 5(D)(1).

The Parish Police Jury argues that Ordinance 523 complies with constitutional and legislative requirements and that it does not deny equal protection or due process of law.

The authority to enact zoning regulations flows from the police power of governmental bodies and is valid if it bears a rational .relation to the health, safety and welfare of the public. Four States Realty v. City of Baton Rouge, 309 So.2d 659 (La.1975). Zoning ordinances are presumed to be valid and whoever attacks the constitutionality of an ordinance must show an abuse of discretion or an excessive use of power. Four States Realty, supra.

Ordinance 523 created six land use districts in St. Tammany Parish. Over ninety percent of the zoned land is classified R— Rural, and such classification permits all land uses that do not create a nuisance “by way of objectionable noise, glare, odor or air pollution”. The district court concluded that the failure to create distinct districts to segregate commercial, agricultural, industrial and residential endeavors was contrary to constitutional and legislative requirements. Further, the lower court found the ordinance clearly incompatible with enabling legislation because it failed to establish a comprehensive plan.

Our review of the zoning ordinance, in light of the enabling act and constitutional provisions leads us to conclude that the regulation, including Section 2.1, is a reasonable exercise of the police power. We are also of the opinion that the parish did comply with all requisites regarding the creation of districts and a comprehensive plan.

The zoning regulation adopted by the Parish Police Jury was based on land uses and the extent of development within the parish. Because most of the land covered by the R-Rural district was undeveloped, it would have been irrational to segregate the parish into large commercial, industrial and residential zones. The R-Rural district was the most reasonable means of insuring the orderly transition from no zoning to a situation where distinct areas could be identified and properly zoned by the legislative body. The zoning scheme insured that adequate services, such as utilities, sewerage, and fire protection, were available to the citizens of St. Tammany and saved the parish the cost of providing these services to isolated districts.

The enabling legislation, Act 518 of 1954, states that zoning regulations “shall be made in accordance with a comprehensive plan”. A comprehensive zoning plan promotes the ends of the enabling legislation. It is a general plan to control the use and development of properties in the community. Baker v. Milwaukie, 271 Or. 500, 533 P.2d 772 (1975). Though Act 518 does require zoning regulations to be in accordance with a comprehensive plan, it does not require that a single ordinance constitute the comprehensive plan. Concerning this, the record shows that the Parish Police Jury retained experts to prepare and present a comprehensive land use plan prior to the enactment of Ordinance 523. This plan obtained the approval of the Parish Planning Commission. Thus, we conclude that the zoning regulations, adopted by the parish recognized St. Tammany’s need for flexibility and were passed with aforethought to a plan rather than adopted in some chaotic fashion. See Bernard v. City of Bedford, 593 S.W.2d 809 (Tex.Civ.App.1980).

We are also of the opinion that neither the constitution nor the enabling legislation limits the parish’s authority to create districts which are solely commercial, industrial, agricultural or residential in nature. Act 518 provides that the “local legislative body may divide the said parish into districts ... as may be deemed best suited to carrying out the purposes of this act.” Such language is clearly permissive and allows the establishment of any district if it furthers the purpose of the act.

Further, the St. Tammany Parish ordinance is not contrary to the grant of authority contained in the Louisiana Constitution. The trial court was of the opinion that Ordinance 523 was subject to the mandate of Article 14, § 29(e) of the Louisiana Constitution of 1921, which stated:

“The Parish of St. Tammany is authorized to zone its territory; to create residential, agricultural, commercial and industrial districts, and to protect such districts by regulating the intrusion of incompatible land uses. The provisions of this paragraph shall be self-operative.”

Relying on this constitutional provision, the district court concluded that:

“The Constitution of the State of Louisiana has authorized the legislative body of the parish to zone its territory into residential, agricultural, commercial, and industrial districts, and to protect against the intrusion of incompatible land uses. The R-Rural district is neither residential, agricultural, commercial, or industrial.”

The Parish contends that this conclusion was improper under the Louisiana Constitution of 1921, and that the trial court failed to recognize that this provision was repealed by the Louisiana Constitution of 1974. Concerning this, Article 14, § 17 of our 1974 Constitution provides:

“Except to the extent provided in this Article and except as retained in Articles I through XIII of this constitution, the provisions of the Constitution of 1921 are repealed.”

Further, Article 14, § 16 of the 1974 Constitution specifies those provisions of the 1921 constitution which were made part of our statutory law. Section 16(A), which lists those parts of Article 14 of the 1921 constitution which were retained, fails to list § 29. The parish claims that the constitutional requirements relative to zoning within the state are now contained in Article 6, § 17 of the 1974 Constitution. This section states:

“Subject to uniform procedures established by law, a local governmental subdivision may (1) adopt regulations for land use, zoning, and historic preservation, which authority is declared to be a public purpose; (2) create commissions and districts to implement those regulations; (3) review decisions of any such commission; and (4) adopt standards for use, construction, demolition, and modification of areas and structures. Existing constitutional authority for historic preservation commissions is retained.”

We agree with St. Tammany’s position that this provision is expressed in permissive language, and does not require that all the property within the parish fall within certain predetermined categories as concluded by the trial court. However, Article 14, § 18(A) of the 1974 Constitution provides:

“Laws in force on the effective date of this constitution, which were constitutional when enacted and are not in conflict with this constitution, shall remain in effect until altered or repealed or until they expire by their own limitation.” (emphasis added)

Thus, though Ordinance 523 is not in conflict with our present constitution, we must still determine if the zoning regulation was constitutional when enacted. Concerning this, it is apparent that Article 14 of the 1921 Constitution does authorize the creation of specified districts. We are of the opinion that this constitutional grant of authority does not prohibit the establishment of other types of districts best suited to the needs of the local population. Because the greater portion of the parish was not developed when Ordinance 523 was enacted, the large R — Rural zone meets the test of rationality, furthers the purpose of the enabling legislation and does not promote incompatible land use within the district.

The district court also found the guidelines controlling the issuance of permits for industrial and commercial uses to be violative of equal protection and due process of law. This conclusion was based on a lack of objective criteria, which left approval of permit issuance to the discretion of the Planning Commission or its individual members. Relying on the language of Summerell v. Phillips, 282 So.2d 450 (La.1973), the lower court stated:

“A zoning ordinance which contains no standard for the uniform exercise of the power to grant or deny applications for permits is unconstitutional. To be constitutional, a zoning ordinance must be sufficiently definite to notify citizens of their rights pursuant to the ordinance and must establish sufficiently definite and adequate standards to govern officials with respect to the uniform treatment of applications for permits under the ordinance.”

A reading of the ordinance reveals that it contains numerous and extensive objective criteria. These include restrictions on health and safety hazards, drainage channels, height regulations, minimum yard requirements and compliance with subdivision ordinances.

Further, the Planning Commission does not have unbridled discretion to control the development of the parish by granting or denying permits, Ordinance 523 does mandate that proposed commercial and industrial uses be “reviewed and approved” by the Planning Commission before the Department of Engineering can issue a permit. Thus, the function of the Planning Commission is to insure that the specific requirements of Section 2.1 are met. Because the issuance of permits is an administrative function, a permit must issue as a matter of law once the listed requirements are satisfied. Consequently, all property located in the same district is entitled to the same rights and subject to the same restrictions.

The failure of the Planning Commission to recommend the issuance of a permit when the enumerated criteria are met or an attempt by an individual commission member to issue a permit ought to give rise to a mandamus action, and not the conclusion that the ordinance denies equal protection or due process of law. Thus, we conclude that Ordinance 523 is a legitimate means of promoting the health, safety and welfare of the citizens of the Parish of St. Tammany.

Accordingly, the judgment of the district court is reversed and judgment is rendered in favor of appellants.

REVERSED.

      . The pertinent provisions of Act 518 of 1954 provide:
      “Section 1. Be it enacted by the Legislature of Louisiana. That for the purpose of promoting health, safety, morals, or the general welfare of the community, the legislative body of St. Tammany Parish is hereby empowered to regulate and restrict the heights, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spaces, the density of population, and the location and use of the buildings, structures and land for trade, industry, residence or other purposes.
      Section 2. For any or all of said purposes the local legislative body may divide the said Parish into districts of such number, shape, and area as may be deemed best suited to carry out the purposes of this act; and within such districts, it may regulate and restrict the erection, construction, alteration or use of buildings, structures or land. All such regulations shall be uniform for each class or kind of buildings throughout each district, but the regulations of one district may differ from those in other districts.
      Section 3. Such regulations shall be made in accordance with a comprehensive plan and design to lessen congestion in the public streets; to secure safety from fire; to promote health and the general welfare; to provide adequate light and air; to avoid undue concentration of population; to facilitate adequate transportation, water supply, sewerage, schools, parks, and other public requirements. Such regulations shall be made with reasonable consideration, among other things to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the values of buildings and encouraging the most appropriate use of land throughout such municipality.”

      . Section 2.106 of Ordinance 523 states that Sections 3.3 through 3.303 will apply only to commercial or industrial uses which create a nuisance. Section 3.3 provides:
      “Building Permits Required — No building or other structure in any district other than R-Rural Districts shall be erected, moved, added to, or structurally altered without a permit therefor, issued by the St. Tammany Parish Department of Engineering. No building permit shall be issued except in conformity with the provisions of this ordinance except after written order from the Board of Adjustment. The lot and location of the building thereon shall be staked out on the ground and approved by the St. Tammany Parish Department of Engineering before any construction begins.


author: MARCUS, Justice.

text:
    ACORN, For Itself and Its Members, Paul Cox, Steve Holt, Beulah Labostrie, and Brenda Quant v. CITY OF NEW ORLEANS, Ernest Morial, Sidney Barthelemy, Joseph Giarruso, Frank Friedler, Jim Singleton, Mike Early, Brod Bagert, Philip Ciaccio, Erroll Williams and Patrick Koloski. Mrs. Rosemary Bayolo, Wife of and Joseph S. GEECK, Jr. v. Erroll WILLIAMS, Director of Finance of the City of New Orleans, et al. Mrs. Janet, Wife of and Edwin H. HEATON, et al. v. Erroll WILLIAMS, Director of Finance of the City of New Orleans, et al. JACKSON HOMESTEAD ASSOCIATION, Individually and on Behalf of Others Similarly Situated, and on Behalf of Certain of Its Borrowers, and South Pines, Inc., Individually and on Behalf of Others Similarly Situated v. Erroll WILLIAMS, Director of Finance of the City of New Orleans, et al. Louis W. SCHLEKAU v. Erroll WILLIAMS, Director of Finance of the City of New Orleans and the City of New Orleans, Through Hon. Ernest N. Morial, Mayor. Jimmie WALKER, Bertha Rotert, Wife of/and Ronald Rotert and Helen Novella v. The CITY OF NEW ORLEANS, Ernest Morial, Frank Friedler, James Giarusso, James Singleton, Brod Bagert, Mike Early and Philip Ciaccio.
    No. 81-C-2080.
    Supreme Court of Louisiana.
    Dec. 14, 1981.

      Salvador Anzelmo, City Atty., Galen S. Brown, Deputy City Atty., Thomas W. Milliner, Asst. City Atty., for defendant-applicant.
    George W. Gill, Jr., Michael B. McColloster, Carolyn N. Hazard, Michael F. Barry, New Orleans, for plaintiff-respondent.
   MARCUS, Justice.

ACORN, a non-profit corporation, filed suit on February 9, 1979, on behalf of itself and its members, Paul Cox, Steve Holt, Beulah Labostrie and Brenda Quant attacking the constitutionality of City of New Orleans Ordinance No. 7011, M.C.S., passed on November 2, 1978 and approved by the mayor on January 2, 1979, enacting a “road use charge.” On October 1,1979, Louis W. Schlekau filed a class action attacking the validity of the same ordinance. The class was certified with the members being all owners of motor vehicles subject to the road use charge who (1) had paid said charge under protest, (2) had paid said charge but did not pay under protest and desired a refund, and (3) had not paid said charge and desired to be relieved of the obligation of paying said charge. On motion of the City of New Orleans, the eases were consolidated for trial. On October 15, 1979, the New Orleans Coalition, Inc., Julia Loftus, wife of/and Thomas Niehaus, intervened uniting with defendants in resisting the plaintiffs’ demands and asking not to be included in the class of the plaintiffs. On October 16, 1979, Daryl Claire Sins, wife of /and Alvin R. Childress III, intervened on the side of the plaintiffs and asked to be included in the class of the plaintiffs. On October 26, 1979, Jimmie Walker, Bertha Rotert, wife of/and Ronald Rotert, and Helen Novella filed a class action attacking the constitutionality of Ordinance No. 7011. This suit was consolidated with the others on November 5, 1979.

After trial on the merits, the trial judge upheld the constitutionality of Ordinance No. 7011. Louis W. Schlekau, Daryl Claire Sins, wife of/and Alvin R. Childress III, individually and as representatives of the class of plaintiffs appealed. The court of appeal reversed, finding the ordinance unconstitutional. On application of the City of New Orleans, we granted certiorari to review the correctness of that judgment.

Ordinance No. 7011 provided:

An ORDINANCE relative to the levy of a road use charge according to the classifications as provided, upon all motor vehicles registered in Orleans Parish or. owned by residents of Orleans Parish, or owned by persons, firms and/or corporations whose principal place of business is located in Orleans Parish, for the year 1979 and for each year thereafter for the purpose of providing revenues to promote and benefit the health, safety and welfare of the citizens of the City of New Orleans including, but not limited to, the aiding of motor bus lines carrying passengers and other modes of public transit, which as a matter of public convenience and necessity, may be required to be maintained and continued in operation, and to otherwise provide with respect thereto.
SECTION I. THE COUNCIL OF THE CITY OF NEW ORLEANS HEREBY ORDAINS, that a road use charge be and is hereby levied on all motor vehicles registered in Orleans Parish, or owned by residents of Orleans Parish, or owned by persons, firms and/or corporations whose principal place of business is located in Orleans Parish for the year 1979 and for each year thereafter for the purpose of providing revenues to promote and benefit the health, safety and welfare of the citizens of the City of New Orleans including, but not limited to, the aiding of motor bus lines carrying passengers and other modes of public transit, which as a matter of public convenience and necessity, may be required to be maintained and continued in operation. The charge herein levied shall be according to the following classifications:
Motorcycles and other two wheeled vehicles $25.00 annually
Automobiles $50.00 annually
Trucks, vans and pickups $100.00 annually
SECTION II. That the Director of Finance of the City of New Orleans be and he is hereby authorized to place the revenues received from the aforesaid road use charge upon the personal property tax bills of the City of New Orleans and to collect them at one and the same time, and the said Director of Finance is authorized to pay over, day by day as collected, to the General Fund of the City of New Orleans. The Director of Finance is further authorized to promulgate such rules and regulations as may be necessary to effect implementation of this provision of this ordinance, including the formulation of new and the amendment of present definitions of vehicles in their respective classifications, as provided for in Section I thereof.
SECTION III. Notwithstanding any provision of this ordinance to the contrary and notwithstanding the number of vehicles owned by and registered to a resident of Orleans Parish or a person, firm and/or corporation whose principal place of business is located in Orleans Parish, no person shall be required to pay a road use charge in excess of one thousand ($1,000.00) dollars in any one year.
SECTION IV. That if any portion of this Ordinance be held unconstitutional or invalid by a court of competent jurisdiction, such holding shall not affect the validity of the remaining portion of the Ordinance, but such remaining portion shall be and remain in full force and effect.
SECTION V. All ordinances or parts of ordinances in conflict herewith are hereby repealed.

The sole issue presented for our review is whether the road use charge imposed by Ordinance No. 7011, as amended, is a license fee in contravention of art. 7, § 5 of the 1974 Louisiana Constitution which provides:

The legislature shall impose an annual license tax of three dollars on automobiles for private use, and on other motor vehicles, an annual license tax based upon horsepower, carrying capacity, weight, or any of these. No parish or municipality may impose a license fee on motor vehicles.

The City of New Orleans contends that the constitutional provision prohibits a municipality from imposing a license fee but not a tax or road use charge. We agree.

The license may be defined as the formal permission granted by a sovereign, generally for a consideration (fee), to a person, firm or corporation, to pursue some occupation or to carry on some business without which the act permitted would be illegal. Ewell v. Board of Supervisors, etc., 234 La. 419, 100 So.2d 221 (1958). Under the police power, the power to license is the power to regulate, as distinguished from the power to levy a license tax to raise revenue under the taxing power. Mouledoux v. Maestri, 197 La. 525, 2 So.2d 11 (1941). Thus, the power to levy a fee under the police power is separate and distinct from the power to impose a tax under the taxing power. The two powers should not be confused.

Hence, the question in the instant case is whether the road use charge is a license fee or a tax as La.Const. art. 7, § 5 prohibits a municipality from imposing only a license fee on motor vehicles. A license fee on motor vehicles is a charge imposed for the privilege of using the streets. The purpose of the fee is regulatory in nature. It is imposed under the police power for the registration and licensing of motor vehicles. A person who fails to register a vehicle and pay the license fee is prohibited from operating the vehicle not registered and is subject to a fine of not more than $100 and/or imprisonment for not more than 30 days. La. R.S. 47:536. Clearly, the road use charge is not a license fee. Despite its title, it is not imposed for the privilege of using the streets. Rather, it is imposed “for the purpose of providing revenues” and applies whether or not the vehicles are used on the streets. Contrary to the license fee, the only sanction for failure to pay the road use charge is a legal obligation enforceable by a civil action. Hence, we conclude that the road use charge is a specific tax on the ownership of motor vehicles by residents of the city and is imposed under the taxing power for the purpose of raising revenue. Accordingly, the road use charge does not violate art. 7, § 5 of the Louisiana Constitution. The court of appeal erred in holding otherwise. We must reverse.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed and the judgment of the district court upholding the constitutionality of City of New Orleans Ordinance No. 7011, M.C.S., as amended, is reinstated.

WATSON, J., dissents. The charge is clearly a license fee and violative of the Louisiana Constitution.

      . Named defendants were the City of New Orleans; the mayor, Ernest Mortal; the city council: Sidney Barthelemy, Joseph Giarruso, Frank Friedler, Jim Singleton, Mike Early, Brod Ba-gert and Philip Ciaccio; the director of finance, Erroll Williams; and the director of sanitation, Patrick Koloski.

      . The petition also contained an attack on the constitutionality of City of New Orleans Ordinance Nos. 7009 (property service charge) and 7010 (sanitation charge). On plaintiffs’ motion, the suit was dismissed as to the validity of Ordinance No. 7010. Consolidated with this suit were three separate suits by (1) Mrs. Rosemary Bayolo, wife of/and Joseph S. Geeck, Jr., (2) Mrs. Janet, wife of/and Edwin H. Heaton, et al., and (3) Jackson Homestead Association against the City of New Orleans attacking the constitutionality of Ordinance No. 7009. After trial on the merits, the trial judge found Ordinance No. 7009 to be unconstitutional. On appeal to this court by the City of New Orleans, we reversed, finding that the City had the authority to levy the tax; the tax was a specific tax and not an ad valorem tax; and the tax did not violate equal protection of the laws guaranteed by the federal and state constitutions. 377 So.2d 1206 (La.1979). The property service charge was subsequently repealed by Ordinance No. 7747, M.C.S., adopted on August 7, 1980, and approved by the mayor on August 19, 1980, “for the year 1981 and for each year thereafter.”

      . 403 So.2d 76 (La.App. 4th Cir. 1981).

      . 404 So.2d 281 (La.1981).

      . Ordinance No. 7011 was amended by Ordinance Nos. 7111, 7324 and 7383, M.C.S. These amendments do not affect the issue before us in these consolidated cases.

      . The road use charge was repealed by Ordinance No. 7747, M.C.S., adopted on August 7, 1980, and approved by the mayor on August 19, 1980, “for the year 1981 and for each year thereafter.”


text:
    J. C. GILBERT and Barbara Jane Peck Gilbert v. The CATAHOULA PARISH POLICE JURY.
    No. 81-CA-2087.
    Supreme Court of Louisiana.
    Dec. 14, 1981.

      George Griffing, Jonesville, for plaintiff-appellee.
    John Sturgeon, Ferriday, for defendant-appellant.
   MARCUS, Justice.

J. C. Gilbert, and Barbara Jane Peck Gilbert instituted this action against the Cata-houla Parish Police Jury seeking a declaratory judgment decreeing section 9(2) of Ca-tahoula Parish Ordinance No. 4-5-76 to be unconstitutional. The trial judge rendered judgment in favor of plaintiffs and against defendant declaring the challenged portion of the ordinance unconstitutional. Defendant appealed to the court of appeal. Since an ordinance had been declared unconstitutional, the court of appeal in accordance with La.Const. art. 5, § 5(D)(1) ordered the case transferred to this court for review under our appellate jurisdiction.

The facts generally are not in dispute. On April 5, 1976, pursuant to La.R.S. 33:1236(5), the Catahoula Parish Police Jury adopted Ordinance No. 4r-5-76 which provides, inter alia, that an owner of livestock who permits his livestock to run, roam or be at large on any of the public highways, commons or any other land other than his own shall be guilty of a misdemeanor. The ordinance further provides that it will apply to livestock running at large in any portion of the parish except three certain described areas, only one of which is at issue in this litigation, which area is described as: “[t]hat roadway located in T11NR8E known as ‘Gambrell Lane’ from its intersection at its southerly end with Louisiana Highway 15 to the north line of Section 34, T11NR8E.” No fences are required by law within that area of the parish where livestock are prohibited from roaming at large. During the regular session of the 1975 Louisiana Legislature, Gambrell Lane, in its entirety, had been added to the list of public roads on which livestock were not allowed to roam at large; however, during the next session of the legislature the following year, Gambrell Lane was removed from the list. It was stipulated at trial that Mr. Gilbert advised his state senator and representative by letter that he had no objection to the removal of Gambrell Lane from the list.

Gambrell Lane is a two-lane gravel road located approximately three miles north of Sicily Island. It begins at the intersection with the east side of La. Highway 15, proceeds southeasterly for approximately one mile, turns northeasterly for about three-quarters of a mile and finally winds in a westerly direction where it rejoins Highway 15. It is a moderately traveled public road which serves as a bus route and mail route for a portion of the rural area of northeast Catahoula Parish and is about five miles long. The open range created by the exception at issue consists of the first one and one-half miles of the road. The property adjacent to this open range is owned exclusively by Mrs. Gilbert (plaintiff) and Garland Barron and his wife. The Barrons own all of the land on the north side of the road which they use for agricultural purposes. They also own two cow pastures on the south side. Positioned in between the Barrons’ pastures is the property owned by Mrs. Gilbert and leased to Jerry Green. This property is used to grow soybeans or for row crop production. A large part of plaintiffs’ livelihood is derived from this farm and Mr. Gilbert takes an active role in the farming operation requiring that he visit the property on practically a daily basis. Plaintiffs own no cattle.

Pursuant to the establishment of a portion of Gambrell Lane as an open range, the police jury installed three cattle guards or gaps, one across Gambrell Lane about one-quarter mile from where the open range begins, another across Gambrell Lane at the far end of the open range, and the third one across the driveway into the Gilbert property. The cattle guards or gaps have the effect of keeping the cattle off of Highway 15 and the closed range portion of Gambrell Lane and from entering the Gilbert property. Additionally, the police jury erected barbed wire fences on both the property owned by the Barrons and Mrs. Gilbert. In an effort to more adequately protect their crops from livestock damage, the Gilberts paid for the installation of an additional strand of barbed wire along the frontage of their property. The parties are required to maintain the fences. The Barrons’ fence to the north of the road which protects their farming operation is well maintained but their fences to the south are in disrepair. There are openings in the fences fronting the two cow pastures owned by the Barrons and located on each side of the Gilbert property on the south side of the road which permit the Barron cattle to roam unattended between the two pastures via the open range. The Gilbert property is entirely fenced except for the driveway.

Mr. Gilbert testified that the Barron cows use the open range extensively, not only as a thoroughfare between the pastures, but also as a place to lie. The only livestock that use the open range are those owned by the Barrons or their employees. Plaintiffs complain that the designation of this portion of Gambrell Lane as an open range forces them to cross two cattle guards in order to reach their property, maintain the fence installed by the police jury, and to lose full utilization of their farmland by virtue of having to fence in their property.

Plaintiffs contend that the portion of the ordinance that creates an open range of one and one-half miles of Gambrell Lane is unconstitutional because it constitutes an unreasonable exercise of the police power vested in the police jury which deprives them of the full use and enjoyment of their property. They further argue that it is an attempt by the police jury to grant the Barrons a special or an exclusive right or privilege.

La.Const. art. 1, § 4 provides:

Every person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property. This right is subject to reasonable statutory restrictions and the reasonable exercise of the police power.

The test to be applied in determining whether a particular ordinance is a reasonable exercise of a government’s police power is whether there is a real and substantial relationship between the regulation imposed and the prevention of injury to the public or the promotion of the general welfare. City of Shreveport v. Curry, 357 So.2d 1078 (La.1978). While an ordinance is accorded a presumption of constitutionality, and the burden of proving invalidity rests with the challenging party, government does not have the unlimited authority to regulate the lives of its citizens and may only pass laws which are reasonably related to protection or promotion of a public good such as health, safety or welfare. City of Shreveport v. Curry, supra; Everhardt v. City of New Orleans, 253 La. 285, 217 So.2d 400 (1969); Hi-Lo Oil Company v. City of Crowley, 274 So.2d 757 (La.App. 3d Cir. 1973).

First, we find that the ordinance making a portion of Gambrell Lane an open range effectively deprives plaintiffs of the right to fully control, use, enjoy and protect their property. In order to reach their property from outside the open range, plaintiffs must not only traverse two cattle guards but they must also confront a potentially dangerous situation caused by the Barron cows using the road as a passage between the pastures and lying on the road. Additionally, plaintiffs must maintain a fence between their property and the open range which causes them to lose full utilization of their land by denying them unrestricted access to the entire frontage of their property from the public road (Gamb-rell Lane).

Further, we do not consider that these restrictions represent a reasonable exercise of the police power because we find no real and substantial relationship between the regulation imposed and the prevention of injury to the public or the promotion of the general welfare. The general provisions of Ordinance 4-5-76 prohibit an owner of livestock from permitting his livestock to roam at large in the entire parish. It even makes it a criminal offense to do so. Clearly, this reflects a judgment by the police jury that the protection and promotion of the public good are best served by making Catahoula Parish a closed range. Neither the ordinance nor the record offers any justification for the Gambrell Lane exception and we can conceive of none. By creating an open range of that portion of Gambrell Lane within the confines of the Barron property, the police jury may well have been promoting the welfare of the Barrons but not that of the public. To the contrary, making only a small portion of Gambrell Lane an open range creates a burden on the general public who travels this road regularly.

In sum, we conclude, as did the trial judge, that the plaintiffs met their burden of proving that section 9(2) of Catahoula Parish Ordinance No. 4-5-76 is unconstitutional. Hence, we affirm the judgment of the district court.

DECREE

For the reasons assigned, the judgment of the district court is affirmed.

LEMMON, J., concurs and will assign reasons.

      . Section 4-17(2) of art. 2, chapter 4 of the Catahoula Parish Police Jury Code of Ordinances.

      . 404 So.2d 291 (La.App. 3d Cir. 1981).

      . La.R.S. 33:1236(5) provides that police juries shall have the power:
      To pass all ordinances and regulations in relation to the marking, the sale, destruction of cattle in general and especially of wild cattle which are not marked and also of horses and mules; and to take any measure concerning the policing of cattle in general in áll the cases not provided for by law; to fix the time in which cattle may be suffered to rove in the parishes of this state, where that custom prevails, so that such roving may not be detrimental to the crops; to determine what animals shall not be suffered to rove, and in what cases they may lawfully be killed.

      . La.Acts 1975, No. 293, § 1.

      . La.Acts 1976, No. 280, § 1.


author: LEMMON, Justice. MARCUS, Justice

text:
    Ezra SAWYER v. STATE of Louisiana Through LOUISIANA STATE EMPLOYEES’ RETIREMENT SYSTEM.
    No. 81-C-1219.
    Supreme Court of Louisiana.
    Dec. 14, 1981.
    Rehearing Denied Jan. 25, 1982.
    John G. Williams, Natchitoches, for plaintiff-applicant.
    William J. Guste, Jr., Atty. Gen., Warren E. Mouledoux, First Asst. Atty. Gen., Louis M. Jones, Asst. Atty. Gen., for defendant-respondent.
   LEMMON, Justice.

This is a suit to require the Louisiana State Employees’ Retirement System (LASER) to award plaintiff, a retired state employee, credit for 12 years of additional state service and to increase his retirement benefits accordingly.

Plaintiff, a janitorial worker at a state college, retired from employment on April 1, 1978, having been employed there since 1935, except for a six-month period in 1953.

During plaintiff’s tenure as a state employee the Louisiana State Employees’ Retirement System was created by Acts 1946, No. 126, effective June 30, 1947. Persons in state employment at that time were given the choice whether or not to join the then-voluntary system. Those who joined received credit without cost for their service prior to the effective date of the system. Plaintiff chose not to join at the time and was not a member of the system when he left state employment in 1953. However, when he returned to state employment in January, 1954, membership in LASER was mandatory, and plaintiff became a member.

When plaintiff filed an application for benefits preparatory to retirement, he was entitled under 1972 legislation to credit for the period between 1935 and 1947, during which he was a state employee and the system was not in effect, but he did not specifically request this credit. Shortly after his retirement plaintiff discovered he had not been given credit for the 12-year period and requested the additional benefits. When defendant refused to increase the amount of benefits, plaintiff instituted this action.

The trial court dismissed the suit, holding that plaintiff, now retired, was no longer a “member” of the system and was therefore prohibited from applying for the additional credit. The court of appeal affirmed. 401 So.2d 997 (La.App.). We granted certiorari to review the judgments of the lower courts. 402 So.2d 698 (La.).

When LASER was established in 1946 and plaintiff elected not to join, he expressly waived the benefits of credit for prior service that had been accorded those who joined within a specified period. However, the Legislature from time to time reextend-ed the right to receive credit for service prior to 1947. In 1964 the Legislature by Act 451 adopted R.S. 42:571.2, which provided that a present or future member may obtain credit for service prior to LASER’S establishment “if he elects to do so prior to the date of retirement”. Plaintiff made no such application prior to the 1972 repeal of the statute.

Also in 1972 the Legislature adopted R.S. 42:562(A), which plaintiff now relies on as the basis for his claim. Section 562(A) provides in pertinent part:

“A. Any member shall be entitled to receive credit for any full-time state service for which no social security was paid, and for which the member has not received credit, except for service specifically excluded in this section.”

Emphasizing the phrase “any member”, LASER points out that plaintiff did not make a claim while he was a member and argues that his membership was terminated when he retired without ever making the claim. LASER therefore contends plaintiff is no longer eligible to assert the claim.

Arguably, when plaintiff applied for retirement benefits prior to his retirement, he implicitly sought all benefits due him under the law. Nevertheless, Section 562(A) clearly entitled any member (obviously referring to the time of enactment) to receive credit for state service prior to 1947 (with exceptions not here applicable). Unlike Section 571.1, which was repealed when Section 562(A) was adopted, Section 562(A) does not contain any language which even suggests that a member might be required to elect to receive credit prior to his retirement.

We decline to require such an election, when Section 562(A) specifically grants the entitlement without condition or qualification. Further, Section 562(A), again unlike some previous statutes granting entitlement to credit for prior service, did not specify any time limitation for exercising the right “to receive” which was granted by the statute.

LASER concedes plaintiff would have received credit for prior service if he had claimed this credit when he applied for benefits preparatory to retirement. LASER apparently fears that many long-retired former members will come forward and claim credit for prior service. The credit is for service prior to 1947 (when LASER was established), and Section 562(A) awarded the right to receive that credit only to persons who were members in 1972. If that legislative award poses a real threat to the retirement system, then the proper remedy is by legislative action eliminating the right or limiting the time for exercising the right. But since the 1972 legislation contained no such special conditions or limitations, we hold that plaintiff is entitled to the credit claimed pursuant to that legislation.

For these reasons the judgments of the lower courts are reversed, and it is now ordered that plaintiff be awarded credit for service from 1935 to 1947 and that his retirement benefits be increased accordingly, effective from the date of his retirement.

MARCUS, J., dissents and assigns reasons.

BLANCHE, J., dissents being of the opinion that the trial judge opinion is correct.

MARCUS, Justice

(dissenting).

La.R.S. 42:562(A) provides that “[a]ny member shall be entitled to receive credit” (emphasis added). A member is defined as “any person included in the membership of the system.” La.R.S. 42:543(17). “Membership in the system ceases when a member withdraws his accumulated contributions, or when a member withdraws from active service with a retirement allowance, or when a member dies.” La.R.S. 42:556. In the present case, Mr. Sawyer retired on April 1, 1978, and is receiving retirement benefits. He did not request credit until after his retirement. Since Mr. Sawyer was not a member of the system when the request was made, he is not entitled to receive credit. Accordingly, I respectfully dissent.

      . For example, by Acts 1952, No. 364, persons were given credit for all state service prior to 1947, if they joined before July 1, 1953. However, when plaintiff rejoined state service in 1954, he was not then eligible for credit for service prior to 1947, because of the express limitation in Act 364.

      . Section 571.2 had specified “each person who is now or hereafter becomes a member.”

      . It is significant to note that plaintiffs claim does not include credit for the period between 1947 and 1954, when he voluntarily stayed out of the system.

      . LASER also expressed fear that World War II and Korean veterans will also belatedly claim benefits awarded by special legislation to those veterans, but those legislative acts expressly limited the time within which to claim the benefits.