author:
GUIDRY, Justice Ad Hoc .
      CAL0GER0, Justice, LEMMON, Justice, PER CURIAM.

text:
    STATE of Louisiana v. Charles BUTLER.
    No. 81-K-1089.
    Supreme Court of Louisiana.
    Sept. 28, 1981.
    Rehearing Denied Nov. 16, 1981.

      William Noland, Lawrence J. Boasso, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, J. Kevin McNary, Asst. Dist. Attys., for plaintiff-respondent.
   GUIDRY, Justice Ad Hoc .

Defendant, Charles Butler, was indicted with two counts of distribution of heroin, a violation of LSA-R.S. 40:966, by an Orleans Parish Grand Jury on September 19, 1975. Subsequently, the matter was fixed for trial in the Criminal District Court, Orleans Parish, for February 10, 1976. On that date the defendant filed a petition for removal of the instant action to the United States District Court for the Eastern District of Louisiana pursuant to 28 U.S.C.A. Sec. 1443 et seq. Defendant alleges that both the state trial court and the district attorney’s office were notified that same day of defendant’s removal petition. On February 10 and 11, 1976, despite the filing of the removal petition and alleged subsequent notice to the trial court and all adverse parties, and over alleged defense objection, the state court proceeded to trial of the defendant on the aforesaid charges. On February 11, 1976, the jury returned verdicts of guilty against defendant on both counts of distribution of heroin. On February 12, 1976, subsequent to the defendant’s convictions, the federal court issued its order remanding the case to the state criminal district court. On February 26, 1976 the defendant was sentenced to serve concurrent terms of life imprisonment at hard labor.

On February 13, 1981, Butler filed a motion to quash the September 19,1975 indictment charging him with distribution of heroin. In his motion to quash, Butler alleges that his February 11,1976 conviction is null, void and of no effect because the trial court lacked jurisdiction at the time of his trial and conviction. Accordingly, he argues that since there has been no trial and conviction pursuant to the September, 1975 indictment, conducted in a court of competent jurisdiction, within the time limit set forth in La.C.Cr.P. Article 578, the indictment should be dismissed and the defendant released from custody.

On February 25, 1981, after hearing, the trial court denied his motion. Thereafter, the defendant filed for, and we granted, a writ of certiorari to review the trial court’s denial of defendant’s motion to quash the indictment. See State v. Butler, 400 So.2d 906 (La.1981).

Defendant raises two issues to be considered by this court on appeal. First, did the state trial court have jurisdiction over the defendant at the time of his trial and conviction? Secondly, if not, has the time limit for commencement of trial, as set forth in La.C.Cr.P. Article 578, expired, thus, mandating the dismissal of the subject indictment and the release of the defendant from custody?

Defendant filed a petition to remove the instant action to the federal court pursuant to the provisions of the Civil Rights Removal Statute, 28 U.S.C.A. § 1443, which provides:

“Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:
(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof;
(2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.”

In his removal petition, the defendant, a black man, alleged that his civil rights were being denied by virtue of his prosecution under an indictment which was returned by a racially unrepresentative grand jury. Additionally, Butler contended that the jury venire was not racially balanced.

The procedure for removal is set forth in 28 U.S.C.A. § 1446 which provides in pertinent part:

“(a) A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for a district and division within which such action is pending a verified petition containing a short and plain statement of the facts which entitle him or them to removal together with a copy of all process, pleadings and orders served upon him or them in such action.
* * * * 4c *
(c) The petition for removal of a criminal prosecution may be filed at any time before trial.
* * * * * *
(e) Promptly after the filing of such petition and bond the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the petition with the clerk of such State court, which shall effect the removal and the State court shall proceed no further unless and until the case is remanded.
(f) If the defendant or defendants are in actual custody on process issued by the State court, the district court shall issue its writ of habeas corpus, and the marshal shall thereupon take such defendant or defendants into his custody and deliver a copy of the writ to the clerk of such State court.”

Although the language in 28 U.S.C.A. § 1446 (e) which refers to “petition and bond” is generally held to apply only to civil actions, the courts have consistently concluded that the notice requirement of part (e) is applicable to both civil and criminal removal. See, e. g., Georgia v. Rachel, 384 U.S. 780, 797 n. 27, 86 S.Ct. 1783, 1983, 16 L.Ed.2d 925 (1966); South Carolina v. Moore, 447 F.2d 1067 (4th Cir. 1971); City of Lake Charles v. Bell, 347 So.2d 494 (La. 1977); State ex rel. Gremillion v. National Association for the Advancement of Colored People et al., 90 So.2d 884 (La.1956).

Briefly, 28 U.S.C.A. § 1446 requires that the petitioner file with the federal court a verified petition, setting forth those facts that entitle him to removal. After he has filed the petition with the federal court, the petitioner must give written notice of removal to all adverse parties and file a copy of the petition with the Clerk of the state court. The requirement of filing the removal petition with the Clerk of the state court is of particular importance. Such filing gives the state court formal notice of the federal court’s involvement in what had previously been only a state court affair. The federal statute specifically provides that upon filing the removal petition with the state court, the state court is prohibited from proceeding any further with the case. This provision is designed to preclude any conflict between the two court systems by divesting the state court of jurisdiction over the matter until such time as the federal court determines if it has jurisdiction or that a remand back to the state court is necessary. It is well-settled that once the procedure for removal has been followed and so long as the case has not been remanded, any subsequent action by the state court is void, even if the case was removed improperly. See Georgia v. Rachel, supra; State ex rel. Gremillion v. National Association for the Advancement of Colored People et al., supra.

In brief, defendant contends that the procedure for removal as clearly set forth in 28 U.S.C.A. § 1446 was strictly adhered to and that proper notice was given to both the state court and the district attorney’s office. Defendant argues that the state court, over defense objections and despite notice of the federal removal petition, proceeded with his trial on February 10 and 11, 1976, which ultimately resulted in his two convictions. Defendant contends that his convictions should be overturned because the state court was unequivocally divested of jurisdiction over the matter until such time as the federal court remanded the case back to the state court on February 12, 1976.

The record reflects that defendant’s removal petition was filed with the U. S. District Court for the Eastern District of Louisiana on February 10, 1976, the date of trial. Additionally, the record reflects that a copy of defendant’s removal petition was filed with the district attorney’s office at 9:08 A.M., on February 10, 1976. As previously stated, defendant contends that he filed a copy of his removal petition with the state court thus, properly effecting notice. A careful examination of the record before us clearly indicates that the defendant did not file the removal petition with the Clerk of Court of the Criminal District Court for Orleans Parish. Rather, the defendant filed the subject removal petition with Michael Roig, a minute clerk employed by the state court trial judge. Thus, the question now becomes whether or not the filing of a removal petition with a minute clerk employed by the trial judge is in compliance with the notice requirements essential to the removal of actions to the federal court as set forth in 28 U.S.C.A. § 1446. We conclude that such filing does not comply with the aforesaid statute.

It is provided by statute that each of the judges of the Criminal District Court of Orleans Parish are authorized to appoint his minute clerk who, under the supervision of the judge, is charged with keeping the minutes of the court, issuing all notices, copies of rules and orders entered in the minutes, which are required to be issued, and making entries on the dockets of the causes and of the proceedings therein as well as performing such duties as the judge may direct. See Article 7 § 85, 1921 La.Const.; Article 14 § 16 of 1974 La.Const.; LSA-R.S. 13:1. Minute clerks employed by the judges of the Orleans Parish Criminal District Court are not authorized or charged with recording, filing, or maintaining official documents required to be filed with the office of the Clerk of the Criminal District Court for the Parish of Orleans.

28 U.S.C.A. § 1446 (e) specifically provides that defendants shall file a copy of the removal petition with “the clerk of such state court, which shall effect the removal and the State Court shall proceed no further unless and until the case is remanded.”

The obvious purpose of requiring defendants to file a copy of their removal petitions with the clerk of the state court is to afford actual notice of pending removal actions to the state court. Certainly, filing the subject petition with an employee of the trial judge, who is in no way connected with the office of the Clerk of Court for the Criminal District Court of Orleans Parish, does not insure the requisite notice. The requirements of filing defendant’s petition for removal with the clerk of the state court, and of giving notice to adverse parties, are not merely modal or formal, but rather constitute mandatory conditions precedent to termination of jurisdiction of the state courts and assumption of jurisdiction by the federal court. Beleos v. Life & Casualty Ins. Co. of Tennessee, 161 F.Supp. 627 (U.S.D.C. — E.D. South Carolina, 1956). The procedure for effectuating removal of matters to the federal court is simple and straightforward. We must presume that Congress when specifying the procedure for removal intended to require compliance. Beleos v. Life & Casualty Ins. Co. of Tennessee, supra. We observe that the federal courts have permitted some relaxation of the aforesaid procedure where the defendant is proceeding pro se. U. S. ex rel. Echevarria v. Silberglitt, 441 F.2d 225 (U.S.C.A. 2d Cir. 1971). However, in the instant case, the defendant was represented by able counsel. We can discern no reason to permit anything less than strict compliance with the simple procedure for removal set forth in 28 U.S.C.A. § 1446. Therefore, we conclude that the state court was not properly notified of defendant’s removal petition as mandated by statute. Thus, removal to the federal court was never effected and it follows, the state court was never divested of jurisdiction over the defendant. Since the state court was never divested of its jurisdiction over the instant matter, the verdicts of the jury are valid and enforceable.

Because we have concluded that the state court had jurisdiction over the defendant at the time of his convictions by the jury, we need not reach the prescription issue raised by defendant on appeal.

For the reasons assigned, defendant’s convictions and sentences are affirmed.

AFFIRMED.

CALOGERO and LEMMON, JJ., concur and assign reasons.

CAL0GER0, Justice,

concurring.

I concur. I agree that the jurisdiction of the state court was not divested because defendant did not follow the statutory provision regarding filing a copy of the federal court petition with the clerk of the state court.

I disagree, however, with the statement by the majority that filing with the minute clerk of the particular section of court to which the case is allotted is not as likely to come to the attention of the trial judge as filing with the Clerk of Court. I believe that the realities are to the contrary.

For the foregoing reason, I respectfully concur.

LEMMON, Justice,

concurring.

I am disinclined to affirm the trial court’s denial of the motion to quash on the technical basis that notice of the motion to remove was filed with the wrong officer of court, when the court apparently had actual notice of the filing. I would prefer to address the merits of the issues raised by the motion to quash.

Defendant filed the motion to quash the indictment based on the state’s failure to prosecute within the statutory time limits. The underlying contention is that there had been no valid trial since at the time of the trial in which defendant was convicted, a motion to remove was pending, and the state court lacked jurisdiction.

Defendant’s February, 1976 conviction is facially valid. Until that conviction is vacated and annulled, there is no basis for filing a motion to quash the indictment underlying the conviction. Defendant must first attack the conviction directly.

I would treat defendant’s motion as a post-conviction attack based on lack of jurisdiction (which is the ground asserted in the motion). See C.Cr.P. Art. 930.3(2).

Defendant did not appeal the February, 1976 conviction, although his counsel allegedly objected to the court’s jurisdiction at the beginning of trial. C.Cr.P. Art. 930.4 C (effective at the time this motion was filed) prohibits a defendant from asserting a post-conviction claim which he raised in the trial and inexcusably failed to pursue on appeal. Since defendant had knowledge of the ground now asserted and offers no excuse for not pursuing on appeal his claim of lack of jurisdiction, the trial court properly denied post-conviction relief. One purpose of C.Cr.P. Art. 930.4 C is to assure finality of convictions in eases in which there is no complaint regarding the essential fairness of the proceedings.

Even more fundamentally, and even without reliance on C.Cr.P. Art. 930.4 C, I would hold that the Louisiana court did not lose jurisdiction because of the bad faith filing of the motion to remove (which was immediately rejected by the federal court). A bad faith motion to remove should not divest jurisdiction so as to require annulment of a conviction at least in the absence of a showing of prejudice in the determination of guilt or innocence.

On Application for Rehearing

PER CURIAM.

Rehearing denied. However, in our original opinion we mistakenly affirmed defendant’s conviction and sentence. Rather we should .have recalled the writ as improvidently granted. We therefore change the decree to read as follows:

DECREE

WRIT RECALLED AS IMPROVIDENTLY GRANTED.

       Judges E. L. Guidry, Jr. and G. William Swift, Jr. of the Court of Appeal, Third Circuit and Judge Robert J. Klees 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 C. Watson and Harry T. Lemmon.

      . Although defendant alleges that the trial was conducted over his counsel’s objection, the record before us, including the court minutes, does not confirm that any motion was made by defendant for a stay of the state court’s proceedings or that defendant otherwise objected to the trial conducted on February 10 and 11, 1976.

      . We note that subsequent to the time relevant to the instant matter, 28 U.S.C.A. § 1446 was amended. See, 28 U.S.C.A. § 1446 (pocket part).

      . The defense attorney testified at the hearing on this motion to quash that he filed the notice “in the office of the clerk of court on the top floor of this building” before filing other copies of the notice with the district attorney and with the minute clerk in the division in which the case was assigned. Defense counsel also testified that he objected to the jurisdiction of the court just before trial both at a conference in chambers and in open court.

      . Even if the conviction had been successfully attacked prior to the filing of the motion to quash, prescription arguably did not begin to run on the indictment until the facially valid conviction was annulled.

      . The record does not contain an objection, although defense counsel testified that he did object for the record. See footnote 1.

      . The motion to remove was filed on the very morning of trial on totally non-meritorious grounds which could have been asserted earlier, if it was a good faith contention. Under present federal laws a motion to remove must now be filed within 30 days of the indictment.
      The apparent bad faith continued when defendant waited five years after conviction to assert lack of jurisdiction, thereby creating a possible plea of prescription.


source: Caselaw Access Project

author: BLANCHE, Justice.

license: Public Domain

text:
    SHREVEPORT PRODUCTION CREDIT ASSOCIATION v. BANK OF COMMERCE.
    No. 81-C-0702.
    Supreme Court of Louisiana.
    Oct. 9, 1981.
    Rehearing Denied Nov. 16, 1981.

      Roland J. Achee of Nelson & Achee, Ltd., Shreveport, for plaintiff-applicant.
    Russell O. Brabham of Schober, Clawson & Brabham, Shreveport, for defendant-respondent.
   BLANCHE, Justice.

Plaintiff, Northwest Production Credit Association , seeks to recover the sum of $31,894.14 from the defendant, Bank of Commerce, the drawee on a check issued by Dr. William Ryder.

Ryder, a Shreveport physician and sole stockholder of First Medical Investors, Inc., had been engaged in several other business enterprises in the years preceding this lawsuit, including such interests as real estate, the movie industry, and the raising of cattle. His venture into cattle-raising commenced in 1972 and continued until 1978 when he was required to sell his entire herd in a desperate attempt to halt his deteriorating financial condition. Ryder’s personal debts and those of First Medical Investors, Inc. totalled approximately $500,000 to major creditors, which included both the Credit Association and the defendant bank.

Shreveport Production Credit Association was first approached by Dr. Ryder for a livestock loan in 1973 to enable Ryder to purchase additional cattle. During subsequent years, several loans were made, each of which was evidenced by a note and secured by a chattel mortgage over Ryder’s entire herd of cattle. These secured loans were renewed several times with the final renewal executed on August 27, 1976 wherein Dr. Ryder signed an agreement providing that the loan renewal was subject to the condition that all proceeds from the sale of the cattle were to be applied to the cattle loan with the Association. On this date, Ryder also executed a note in the principal amount of $68,069 due on September 1, 1977. This note was not paid when it matured and in January 1978, Dr. Ryder met with John Holliman, a representative of the Credit Association, to outline a plan for the liquidation of this indebtedness. Though it appears that some other creditors may have agreed to a moratorium to insure repayment by Dr. Ryder, the Credit Association required Ryder to sell his herd of cattle and other encumbered equipment, the proceeds of which were to be applied to the balance due on his loan.

On Friday, March 24, 1978, the cattle were sold through the Mansfield Livestock Auction Company in Mansfield, Louisiana for the sum of $31,894.14, represented by 16 separate checks drawn on the First National Bank, which was located in Mansfield. The checks named Dr. William Lewis Ryder as payee and were received by him through the mail. Four days later, March 28, 1978, Ryder, Holliman and Robert McArthur, who was then Vice President of Credit for plaintiff, met and confirmed their prior agreement that the entire proceeds were to be applied to the debt owed to the Association.

The next day, March 29, Dr. Ryder’s secretary, Mrs. McBride, mailed the 16 checks representing the proceeds of the cattle sale to her employer’s bank, Bank of Commerce, and Dr. Ryder signed and delivered to the Credit Association a personal check in the identical amount of $31,894.14, which was drawn on the Bank of Commerce. This check was deposited by the Credit Association into its account at Louisiana Bank and Trust Company in Shreveport on March 30. On Friday, March 31, the Bank of Commerce received the checks from the cattle auction and, on this sanie date, Ryder’s check to the Credit Association was presented to the defendant bank for payment through regular banking channels. Because the Mansfield Livestock checks had not as yet been collected and the balance of Dr. Ryder’s account was only about $5,000, the defendant bank refused to honor Ryder’s check to the Credit Association, ordered that his account be frozen and can-celled their endorsement.

The Federal Reserve Bank in Dallas was notified on the next banking day, Monday, April 3, 1978, of the dishonor and reasons therefore, and the defendant promptly returned the check through the Federal Reserve System. On April 4, 1978, the Bank of Commerce completed collection of the auction checks, Ryder’s account balance rose to over $34,000 and notice of the dishonor was relayed by the Federal Reserve. The actual return of the dishonored check to Louisiana Bank and Trust Company was not completed until April 7,1978. On April 10, the Bank of Commerce debited Ryder’s account for the sum of $26,088.76 to satisfy a note the bank held in which First Medical Investors, Inc. was the maker and Dr. Ryder was an endorser. The note executed by Dr. Ryder’s corporation was secured by a chattel mortgage on First Medical properties, which mortgage was signed only by First Medical Investors, Inc. and contained a setoff provision. As a result, when Louisiana Bank and Trust Company requested a markup on April 11, they were informed that although the funds were no longer uncollected, the $26,088.76 setoff resulted in the account having insufficient funds to satisfy the previously discharged check. At no time after the initial dishonor and notice thereof did the Credit Association or its depository bank, Louisiana Bank and Trust Company, re-present the check to the Bank of Commerce for payment.

Plaintiff contends that the loan agreement between itself and Dr. Ryder entitled them to the proceeds of the sale of the mortgaged cattle. Because this right arose prior to the time that the defendant bank acquired any rights against Dr. Ryder in connection with the loan of First Medical Investors, Inc., the bank’s right of setoff was precluded.

We granted writs to determine if the setoff by the bank to the plaintiff’s prejudice w.ts proper.

Assignment of Error Number 1

Plaintiff contends that the final renewal of the cattle loan between itself and Dr. Ryder on August 27, 1976, in which both parties agreed that the proceeds of sale would belong to the Association, was executed nearly a month before First Medical Investors obtained the loan from the defendant which was subsequently set off. As a result, plaintiff’s rights to the proceeds came into existence before the Bank of Commerce had any rights against Dr. Ryder as endorser on the First Medical Investors, Inc. loan. In this connection, plaintiff contends that the setoff by the defendant bank has resulted in prejudice to their rights in contravention to the mandate of C.C. art. 2215, which provides:

“Compensation can not take place to the prejudice of the rights acquired by a third person; therefore, he who, being a debtor, is [has] become creditor since the attachment made by a third person in his hands, can not, in prejudice to the person seizing, oppose compensation.”

The Credit Association relies on Yung v. Magnolia Acceptance Corp., 180 So.2d 222 (La.App. 4th Cir. 1965) and Pringle Associated Mortgage Corp. v. Cox, 258 La. 499, 246 So.2d 841 (La.1971), in support of their position that there are no exceptions to the breadth of this Codal provision’s application. We find these cases inappropriate to the resolution of the present dispute and plaintiff’s position as to the scope of article 2215 erroneous.

In Yung, it was the finding of the court of appeal that compensation had never occurred. Though there had been an exchange of notes of identical amounts between the parties, only the note held by the plaintiff was payable on demand. The maturity date of the note in the defendant’s possession was never established. As a result, the court held that the requirement that the two debts be “equally demandable” (C.C. art. 2209) to allow for compensation had not been satisfied.

In Cox, this Court denied the plaintiff’s right to a setoff because the plaintiff was no longer the holder of the note in question. Justice Tate correctly pointed out that the only holder of a note is entitled to enforce its terms. It is readily apparent that both of these decisions are not applicable to the present controversy, as in neither case was compensation found to have occurred and, as a consequence, C.C. art. 2215 was not a basis of these decisions.

In applying article 2215 to the present facts, the Bank of Commerce was the “debtor”. It owed Dr. Ryder the funds he had on deposit in his account with the bank. When the note which Dr. Ryder endorsed became due, the bank had become “creditor” to Dr. Ryder. Plaintiff, also a creditor, contends that once it presented its demand for payment of Ryder’s check against his account in the bank, C.C. art. 2215 would not have permitted the bank as a creditor to assert compensation. It argues that the bank had an obligation to pay the check when presented and thus a valid “attachment” had been made by a third person. However, a check is not of itself an assignment of any funds in the hands of the drawee available for its payment and the drawee is not liable on the instrument until he accepts it.

Consequently, there was no “attachment” made before the setoff because the Credit Association had not acquired any right to the funds and was not prejudiced. This conclusion leads us to hold that unless a third party had previously acquired rights to the funds which were the subject of the setoff, the exercise by the bank of its right of setoff against its depositor does not fall under the provision of C.C. art. 2215.

The banking industry handles a tremendous volume of transactions which involve small, as well as large, sums of money. To meet the requirements and complexities of our present financial system, the negotiable instrument has emerged as the universal method of insuring the certainty of commercial transactions. It is true that the Bank of Commerce did have knowledge of Dr. Ryder’s present financial difficulties and that the chattel mortgage on the cattle held by the Credit Association was properly recorded. But, when a bank receives a check for deposit which, in all aspects, is valid on its face and contains an endorsement on its back which recites that the payee is the sole and unconditional own er , that bank has the right to treat that check as it would any other deposit. To require the bank to investigate the underlying transaction which led to the issuance of the instrument or to permit a third person to challenge the depositor’s ownership under the present circumstances would result in an unreasonable burden upon, and disruption of, regular and normal banking transactions.

Assignment of Error Number 2

The Credit Association next argues that the defendant bank failed to procure a special mandate from Dr. Ryder to authorize a setoff, and that it has the right to attack the validity of the setoff in question.

We find that the plaintiff has no cause of action to challenge the setoff of Dr. Ryder’s account. The agreement to permit compensation was between the defendant and Dr. Ryder. The Credit Association was at no time a party to the agreement and is not in the position to raise the non-existence or invalidity of such an agreement in behalf of Dr. Ryder.

Because the check was drawn on uncollected funds, the bank’s dishonor of the check was not improper. If the subsequent setoff of the funds was improper and had the Credit Association re-presented Ryder’s check, a dishonor based on an improper setoff would have been wrongful. R.S. 10:4-402 provides:

“A payor bank is liable to its customer for damages proximately caused by the wrongful dishonor of an item.”

Thus, a bank owes a duty to its customer to avoid a wrongful dishonor of his checks. That duty cannot be enforced by the payee since the payor bank is only liable to the payee if it has certified the check or otherwise become liable on it. Consequently, we need not determine whether Dr. Ryder’s endorsement of the note resulted in the importation of the terms of the contemporaneously executed mortgage, including the right of setoff, into the note.

It should be noted at this point that this entire litigation was the result of the failure of the Credit Association to take adequate precautions so as to protect its claim to the cattle proceeds. The plaintiff could have avoided the disastrous consequences of the setoff merely by requesting Dr. Ryder to endorse the auction checks to it and negotiating them through their own account. It did otherwise, notwithstanding its knowledge of Ryder’s poor financial condition.

Assignment of Error Number 8

Plaintiff asserts that because the defendant bank knew, or should have known, of its interest in the proceeds from the sale of the cattle, it is entitled to recover under the “trust fund” principle. It is not in dispute that two years earlier, Dr. Ryder furnished a financial statement to the Bank of Commerce. From this document, the doctor’s unstable financial condition and a listing of his then existing creditors, including the plaintiff, was apparent. It is argued that this financial statement, coupled with Dr. Ryder’s unusually large deposit ($31,894.14) and plaintiff’s attempts to collect on the personal check from Dr. Ryder for the same amount, put the bank on notice that the plaintiff possessed a beneficial interest in the sale proceeds. Plaintiff concludes that this interest barred the bank’s right of set-off. To support its position, the Credit Association cites Merchants and Farmers Bank and Trust Co. v. Hammond Motor Co., 164 La. 57, 113 So. 763 (1927) and Succession of Boisblanc, 32 La.Ann. 109 (1882).

In Succession of Boisblanc, McCullough and Sons tendered a $1,500 check to Boisblanc, a New Orleans broker. This check named McCullough as the payee, but had been specially endorsed by them in favor of Boisblanc. He was to invest this sum in the purchase of sugar and molasses in behalf of McCullough. Boisblanc had the cheek discounted and deposited the proceeds into his personal bank account. Boisblanc subsequently died, and both the administrator of his estate and McCullough and Sons claimed the funds from the deposit of the check. The court found that Boisblanc held the funds in trust for McCullough and Sons. This decision was based on the fact that (1) McCullough was the owner of the funds and (2) Boisblanc was the agent of McCullough and was entrusted with the funds for a special purpose.

In Hammond Motors, promissory notes were issued in favor of Citizens National Bank by Hammond Motor Company. The bank was authorized to set off deposits against the balance due on the notes. Subsequently, an account was created for the special purpose of paying particular creditors, as Hammond Motors made a cash sale of all of its assets. This special accounts was opened as “Hammond Motors, Escrow” and the bank was notified that no check on that account was to be honored unless signed by Hammond Motors and their attorney. When the bank went into receivership, the bank was precluded from exercising its right of setoff. The court held that under the circumstances, the account was in the nature of a trust fund, and formed no part of the debtor’s general checking account.

We agree with the conclusion of the court of appeal that these cases cited by the plaintiff are factually distinguishable from the present controversy. As a result, the Bank of Commerce had no duty to inquire into the source of the auction checks, nor the purpose for which they were deposited.

The Credit Association negligently failed to protect its interest in the sale of the cattle. Dr. Ryder was given absolute freedom to sell the encumbered cattle at any place or time. The court of appeal, 395 So.2d 862 (La.App.), correctly observed that Dr. Ryder was not an employee, agent or fiduciary of the Credit Association. The only restriction placed on Dr. Ryder was that the amount received be applied to the chattel mortgage held by the Association. Dr. Ryder deposited the checks received from the sale of his cattle into his general checking account. No special account was set up to insure payment to the Credit Association. When issued, the cattle auction checks named Dr. Ryder as payee. As a consequence, he was not only the owner of the checks, but was also the only party who could present the checks for payment, or negotiate them to a third party. Had Dr. Ryder desired the Credit Association to have an interest in these checks, an endorsement in their favor would have insured that result. Instead, Dr. Ryder chose to deposit the checks into his personal checking account at the Bank of Commerce. These checks met all the requisites of negotiability, were properly issued to Dr. Ryder as payment for the sale of his cattle and were promptly presented to the Bank of Commerce for collection. Based on these facts, there is no reason to apply the “trust fund” principle to allow recovery.

Assignment of Error Number 4

The Credit Association deposited Dr. Ryder’s personal check into its account at Louisiana Bank and Trust Company. This check was then routed through the First National Bank of Shreveport, a RCPC (regional check processing center) and, ultimately, to the drawee, the Bank of Commerce. On this date, March 31, the 16 checks deposited in the Bank of Commerce by Dr. Ryder had not yet been collected. As the funds actually in his account were not sufficient to pay the check to the Credit Association, this check was returned. Notice of dishonor was given in the next banking day, Monday, April 3, to the Federal Reserve Bank in Dallas, which gave notice to the First National Bank, which ultimately notified plaintiff’s depository bank, the Louisiana Bank and Trust Company. Before the passage of the midnight deadline, the check itself was returned through the same channel. Because of this route, the dishonored check was not received by Louisiana Bank and Trust until Friday, April 7. Upon learning of the dishonor, the Credit Association and Dr. Ryder made inquiries to determine the reasons for the payor bank’s return of the check.

Plaintiff claims that they are entitled to recover because the defendant bank routed the dishonored check through channels which unduly delayed its return. It is further argued that statements given by the defendant’s employees relative to the status of Dr. Ryder’s account misled the Credit Association. We find both of these claims to be wholly without merit.

The testimony of both Mr. Love, Executive Vice-President of the defendant, and Mr. Cox, the defendant’s President, thoroughly explained the routing of the returned check. An examination of this explanation reveals that the defendant bank acted most prudently.

Though Louisiana Bank and Trust does clear checks with the First National Bank of Shreveport, the Bank of Commerce does not do so. Therefore, the check was returned through the Federal Reserve System, which was the defendant’s normal banking channel. Had the defendant attempted to short-cut this procedure, the bank which directly received the check (First National Bank) could have returned it to the defendant and asked them to make use of normal channels. Such an occurrence would have resulted in the Bank of Commerce retaining possession of the check for more than 24 hours and required them to pay the check regardless of whether the item was good or bad.

It should be noted at this point that the returned check was never re-presented for payment, and it was not until April 10, seven days after notice of dishonor was sent, that the bank set off against Dr. Ryder’s account. We find the testimony of Mr. Love and Mr. Cox to be of most significance on this matter:

“Counsel: If that check had been presented as a collection item on April the 7th, and those were then collected funds on deposit in Dr. Ryder’s account, what would you have done?
Mr. Love: I really don’t think we would have had any choice but to pay the check.
Counsel: All right. But it was not presented or put in the bank as a collection item, was it?
Mr. Love: No, sir.”
******
“Counsel: Now, as I understand it, those funds represented by Dr. Ryder’s deposit became collected funds on or about April 4, 1978; is that correct, sir?
Mr. Cox: Yes, sir.
Counsel: And your debit was affected on April 10, 1978; is that correct, sir?
Mr. Cox: Yes, sir.
Counsel: All right. So during that period of time, had an item been presented against those collected funds, what would you have done?
Mr. Cox: That collection item would have had to be paid.
Counsel: But no collection item was ever presented there, was it?
Mr. Cox: No, sir.”

Upon learning that the check of Dr. Ryder would not be honored by the defendant bank, plaintiff attempted to ascertain the reasons for the return. Although the Credit Association, as a third party, had no right to information relative to the status of Dr. Ryder’s account, its claim of misrepresentation requires us to examine what statements were made by the defendant. Plaintiff claims that it was led to believe that a re-presentment would have been a futile act and, thus, it was deprived of the opportunity to collect on Dr. Ryder’s check.

Dr. Ryder’s personal check to the Credit Association was presented to the Bank of Commerce for payment on April 3, 1978. As of that date, the auction checks deposited by Ryder had not yet cleared through banking channels. Consequently, over $31,-000 recorded to Ryder’s account consisted of uncollected funds. The bank therefore refused to pay Ryder’s personal check and returned the item through the Federal Reserve System. Mrs. McBride, Dr. Ryder’s secretary, contacted the bank the next day, April 4, and inquired why there were “insufficient funds.” Earlier this day, final payment on the auction checks was made to the Bank of Commerce. This raised the actual balance in Ryder’s account to over $34,000. Accordingly, the bank employee, relying upon bank records, told Mrs. McBride that Dr. Ryder had a balance of over $34,000 and that she could not find a check returned because of insufficient funds. This response was a true and accurate statement as to the status of Dr. Ryder’s account. When Dr. Ryder’s personal check was presented for payment, the funds in question were “uncollected”, and not “insufficient.”

After the time of the return and before the secretary’s inquiry, the funds were collected, so that the bank’s records accurately reflected the balance of Dr. Ryder’s account.

On April 10, Mrs. McBride again inquired why Ryder’s check was not paid. She was informed that there were insufficient funds to cover the check. This statement was completely true, as the 16 auction checks had not only been collected by this date, but were the object of the setoff. As a result, Dr. Ryder’s account was insufficient at this time to cover his personal check to the Credit Association. We feel that though there may have been some confusion in the exchange of information, the defendant bank did not mislead anyone.

Assignment of Error Number 5

Finally, it is claimed by the Credit Association that the defendant bank granted a moratorium with respect to Dr. Ryder’s indebtedness. A review of the testimony given at trial reflects the erroneous position of the plaintiff.

The Bank of Commerce admitted that discussions took place between it and Dr. Ryder. Though the possibilities of a moratorium were raised, it is clear that no binding agreement was reached because of the inability to get all of Dr. Ryder’s other creditors to postpone their claims. According to the testimony of Dr. Ryder, the only “agreement” between himself and the Bank of Commerce was the need for Dr. Ryder to liquidate his assets and to “apply the proceeds appropriately.” The proposed plan never progressed beyond this initial statement of intent. When asked if the plan was not final, Dr. Ryder responded, “That’s correct.” This statement supports the position of the defendant that the parties never reached a binding commitment. At most, the testimony reflects the Bank of Commerce’s interest in Dr. Ryder’s financial rehabilitation.

Conclusion

The record reveals that both the plaintiff and the defendant were creditors of Dr. Ryder. Both parties were aware of his financial status and each was experienced in the type of financial matters presented in this case. Though it was the intention of Dr. Ryder that the proceeds from the sale of his cattle were to be awarded to the Credit Association, his actions, coupled with plaintiff’s total failure to protect its interest, thwarted this result. The Bank of Commerce responded to Dr. Ryder’s sitúation in a most prudent manner. By exercising its right of setoff, the Bank insured that at least, a portion of the indebtedness would be extinguished. The plaintiff, under the present circumstances, ought not be permitted to cry “foul”. Its poor judgment should not be a basis to penalize the defendant.

For these reasons, we affirm the decisions of the lower courts in favor of the Bank of Commerce.

DIXON, C. J., dissents with reasons.

CALOGERO, J., dissents for reasons assigned by DIXON, C. J.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

If the payee of a check is damaged by the wrongful dishonor of the instrument by the maker-depositor’s bank, there is no reason and no authority to deny recovery by the payee. It is essential, therefore, to determine whether the bank had obtained the right, from Ryder, to compensation or offset. If, not, there should have been a markup on April 11 and the check should have been honored when presented again.

      . After the filing of this suit, Shreveport Production Credit Association and Arcadia Production Credit Association merged to form Northwest Louisiana Production Credit Association.

      . “When the note which evidences this consumer loan shall become due for any reason provided in the note or chattel mortgage with which it is identified, any money, stocks, bonds or other property of any nature whatsoever on deposit with, whether general or special, or held by, or in possession of mortgagee as collateral or otherwise, to the credit of or for the account of the makers, endorsers, guarantors, or sureties or any of them, shall be applied to the payment of the note.”

      . See R.S. 10:3-409.

      .Each of the 16 auction checks was endorsed as follows: “This check was to the payee for livestock and by endorsing same, the payee guarantees that he is the sole and unconditional owner of such livestock and there are no liens and/or chattel mortgages on same.”

      . H. Bailey, Brady on Bank Checks, § 18.1 (1979) (5th Ed.).

      . Bailey, supra, § 18.7.

      . Bailey, supra, § 18.9.

      . R.S. 10:3-508(2)
      “(2) Any necessary notice must be given by a bank before its midnight deadline and by any other person before midnight of the third business day after dishonor or receipt of notice of dishonor.”

      . R.S. 10:4-302
      “In the absence of a valid defense such as breach of a presentment warranty, settlement effected or the like, if an item is presented on and received by a payor bank the bank is accountable for the amount of (a) a demand item other than a documentary draft whether properly payable or not if the bank, in any case where it is not also the depositary bank, retains the item beyond midnight of the banking day of receipt without settling for it or, regardless of whether it is also the depositary bank, does not pay or return the item or send notice of dishonor until after its midnight deadline; or (b) any other properly payable item unless within the time allowed for acceptance or payment of that item the bank either accepts or pays the item or returns it and accompanying documents.”


author: PER CURIAM: PAUL B. LANDRY, Jr., Judge Pro Tern. LOTTINGER, Judge, LOTTINGER, Judge EDWARDS, Judge,

text:
    Lawrence REGIRA, et al. v. Ralph FALSETTA, et al.
    No. 14601.
    Court of Appeal of Louisiana, First Circuit.
    May 22, 1981.

      Edward Hardin, Baton Rouge, and Victor L. Marcello, Donaldsonville, for appellants.
    Charles L. Patin, Jr., Baton Rouge, and Glynn Long, Donaldsonville, for appellees.
    Before ELLIS, COVINGTON, LOTTINGER, CHIASSON, EDWARDS, PONDER, LEAR, COLE and WATKINS, JJ., En Banc.
   PER CURIAM:

This is an election case in which one of the candidates for Mayor of the City of Donaldsonville, Louisiana, died after the primary election, leaving only one other candidate, the Honorable Ralph Falsetta, whom the Secretary of State intends to certify to the Governor as elected Mayor pursuant to the provisions of LSA-R.S. 18:512 B.

Plaintiffs, in the trial court and in this court, contend that the aforesaid statute is unconstitutional and therefore ask for various remedies.

After considering the factual matters, which were stipulated by the parties, the trial judge found the subject statute to be constitutional.

We have read the record and thoroughly researched the matter. The trial judge is correct. His exhaustive, excellent reasons for Judgment, attached hereto as Appendix A, are correct and we adopt them as our own.

Also, see Vining v. Democratic Executive Committee for the 32nd Representative District, 204 So.2d 801 (La.App. 2nd Cir. 1967), writ refused, 251 La. 678, 205 So.2d 442 (1967).

The judgment is affirmed at appellants’ cost.

AFFIRMED.

COLE, J., concurs in the result.

LOTTINGER, J., concurs and assigns reasons finding7 LSA-R.S. 18:1409 H unconstitutional.

APPENDIX A

JUDGMENT:

PAUL B. LANDRY, Jr., Judge Pro Tern.

This is an election contest in which plaintiffs assert constitutional grounds for challenging the alleged election of defendant Ralph Falsetta, as Mayor, City of Donald-sonville, pursuant to a primary election held April 4, 1981. Falsetta and certain state officials assert and proclaim Falsetta’s election although no candidate in the primary obtained a majority vote and no general election has been held to fill the office for the ensuing term commencing July 1, 1981.

Four candidates participated in the primary election, receiving votes as follows: Lawrence “LaLa” Regira, incumbent and candidate for re-election 1299; defendant Ralph Falsetta 1040; Glynn “Sonny” Long 670; and, Dr. D.C. Foti 454. Falsetta and Regira were accordingly certified to participate in a general or run-off election to be held May. 16, 1981.* On May 2, 1981, the incumbent, Regira, died, leaving Falsetta as the unopposed candidate in the pending general election. Following Regira’s demise, Falsetta has claimed election which claim has been confirmed by the Hon. James Brown, Secretary of State, State of Louisiana, who, pursuant to LSA-R.S. 18:512 B has issued ballots for the general election listing no candidates for the office in question. By letter dated May 11, 1981, the Secretary of State has indicated his intent to certify to the Governor, within 30 days of the scheduled general election, the name of defendant Falsetta as elected May- or by the people pursuant to LSA-R.S. 18:512 B, for the ensuing term commencing July 1, 1981.

Plaintiffs Lawrence Regira, Jr., Mrs. Lawrence Regira, Dennis Burns, Janet Re-girá Burns, Wilbert Huey, Mildred Dorsey, Dorothy M. Williams, Robert Johnson, William E. LeBlanc, Michael McKinney, Vic Marcello, Emerson Taylor, Lawrence Chat-man, Jr., Delores Wright, Eunice Mumford, Mary Agnes Dorsey, Stanford Knockum and Vincent “Cy” Tortorieh, assert a class action which was abandoned at the start of the trial. Alternatively, they appear in their individual capacities as residents of Donaldsonville and registered voters qualified to vote for the office of Mayor.

Named defendants are: (1) Ralph Falset-ta; (2) The Hon. James Brown, Secretary of State, State of Louisiana; (3) The Board of Supervisors of Elections of Ascension Parish; (4) The Hon. William Guste, Attorney General, State of Louisiana, and (5) The Hon. David Treen, Governor of Louisiana.

Plaintiffs pray: (1) That the Secretary of State be restrained from certifying defendant Falsetta to be the elected Mayor of Donaldsonville; (2) That the Attorney General be served herein; (3) That a writ of quo warranto issue directing defendant Fal-setta to show by what authority he claims the office of Mayor; (4) That preliminary and permanent injunctions issue restraining and prohibiting the Secretary of State, State of Louisiana, from declaring and certifying Falsetta to be Mayor of Donaldson-ville; (5) That a writ of mandamus issue directing the Secretary of State to withhold certification of defendant Falsetta as the elected Mayor of Donaldsonville; (6) That mandamus issue directing Governor Treen to call a special election pursuant to law to fill the alleged vacancy in the office of Mayor of Donaldsonville; (7) That mandamus issue directing defendant Board of Election Supervisors to perform the duties incumbent upon for the conduct of the special election; (8) That declaratory judgment issue in favor of plaintiffs declaring LSA-R.S. 18:512 B unconstitutional; and, (9) That the request for preliminary and permanent injunctions be consolidated.

Plaintiffs challenge is based solely on the ground that Section 512 B, above, pursuant to which the Secretary of State proposes to certify Falsetta as Mayor, is violative of the Fourteenth (due process and equal protection clauses) Amendment to the United States Constitution, and Louisiana Constitution Article 1, Section 2 (due process), Section 3, (equal protection); and, Section 10 (the right to vote).

Plaintiffs argue that the constitutionally guaranteed right to vote is the cornerstone of our democracy and so vital to the continued existence of our form of government that any infringement or restriction thereof must be subjected to strictest scrutiny. It is also urged that any legislative regulation or restriction on this right must be predicated on a compelling interest embodied therein. According to plaintiffs, the nature of the election process is primarily the presentation of a choice to the voters in every phase of the election procedure. To this end, plaintiffs argue, Louisiana has adopted a two election system of primary and general elections, thus eliminating the former antiquated system which frequently resulted in three elections when it became necessary to choose party candidates because a party candidate was not chosen in a first primary election.

Plaintiffs note that LSA-R.S. 18:469 provides for reopening of qualification for office if a candidate dies before a primary election in that the statute provides:

[A] When a person who qualified as candidate in a primary election for a public office dies after the close of the qualifying period and before the time for closing the polls on the day of the primary election, the qualifying period for candidates in the primary election for that office shall reopen for candidates on the day after the death and shall close at 5:00 p. m. on the third day after the death or, if that day is a legal holiday, at 5:00 p. m. on the next day which is not a legal holiday. The name of the deceased candidate shall not be printed on the primary election ballot. If the primary election ballot was printed with the deceased candidate’s name on it, any votes received by the deceased candidate shall be void.

LSA-R.S. 18:469 D pertinently states:

D. Effect on primary elections. If the qualifying period for candidates reopens within thirty days before a primary election, all the votes cast in the primary election for that public office are void, unless the qualifying period opened and closed without additional candidates qualifying for that [the] office. [. ..] If all the votes cast in a primary election for a public office are void because of the death of a candidate, the primary election for the office shall be held on the date of the general election, and the general election for the office shall be held on the sixth Saturday after the primary election.

Plaintiffs note that LSA-R.S. 18:512 B, makes no similar provision for reopening qualifying time when a candidate participating in a general election dies or withdraws, but, instead, provides as follows:

Election of unopposed candidates. If[,] as a result of the death or withdrawal of one or more candidates, the number of candidates for an office in a general election does not exceed the number of persons to be elected to the office, the remaining candidates are declared elected by the people, and their names shall not appear on the ballot in the general election. (Emphasis by the Court).

Plaintiffs maintain that Section 469, above, serves the best interests of the state and its electors by providing an orderly and economical election process in primary elections by establishing a procedure in which the electorate participates at every stage and establishes a reasonable and fair process which should logically apply to general elections as well. Section 512 B, above, according to plaintiffs is fundamentally unfair, contrary to the principle of free and open elections and violative of the concept of majority rule in that it denies and infringes upon the right of the electorate to choose public officials. Plaintiffs place considerable stress upon the fact that more than two-thirds of those voting in the primary election here involved, did not vote for defendant Falsetta. Consequently, it is argued that if applied herein, Section 512 B, above, vitiates the will of two-thirds of those voting in the primary, thus producing an unfair and unjust result.

Defendants have filed exceptions of no right and no cause of action alleging plaintiffs’ lack of capacity to institute an individual action and asserting that as a matter of law no remedy is available to plaintiffs herein. Defendants also assert plaintiffs right to institute an action of quo warranto because plaintiffs are not claiming the office involved. A plea of prescription if also advanced on the provisions of LSA-R.S. 18:512 B. The Governor, Secretary of State, and Attorney General have filed an exception to the venue on the ground that proper venue after them is East Baton Rouge Parish.

On the merits, defendants allege that plaintiffs erroneously contend that the right to vote is the primary issue herein. Rather, according to defendants, the issue is simply the method of selection of candidates for office therefore the constitutional inquiry is reasonableness of legislative action, not the compelling interest criteria as contended by plaintiffs. Defendants also note that the burden of showing unreasonableness rests upon plaintiffs. Finally, defendants argue that subject statute is a valid exercise of legislative authority and discretion and therefore invulnerable to successful attack on constitutional grounds.

THE EXCEPTION OF VENUE

The court finds no merit in this exception. This is not an action against the' Governor, Secretary of State and Attorney General or any combination of said officials alone. The suit is also against defendant Falsetta, a resident of Ascension Parish and the Board of Supervisors of Elections of Ascension Parish. The proper venue as against these later parties is Ascension Parish. The court holds, therefore, that under the circumstances the Governor, Attorney General and Secretary of State, as indis-pensible parties to this action, are properly before the court.

THE EXCEPTIONS OF NO RIGHT AND NO CAUSE OF ACTION

In general the right to an individual action in an election contest suit is governed by LSA-R.S. 18:1401 C which states:

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

Notwithstanding the apparent restrictive scope of Section 1401 C, above, our jurisprudence recognizes the right of a citizen, taxpayer and voter not a candidate for office, to challenge implementation of the election process. Baker v. Democratic Central Committee of Louisiana, 262 La. 1033, 266 So.2d 199 (1970).

This court cannot conceive that the legislature intended to preclude the right of an interested voter to challenge the election process on constitutional grounds. Such legislation, in the view of this court would itself be unconstitutional. The court holds therefore that plaintiffs have, as individual taxpayers and voters, a right and cause of action herein.

PRESCRIPTION

Defendants maintain the action is prescribed because it was not instituted within five days of the date of Regira’s death. Pertinent are the provisions of LSA-R.S. 18:1405 B which states:

B. An action contesting any election involving election to office shall be instituted within five days after the date of the election, and no such contest shall be declared moot because of the performance or nonperformance of a ministerial function, including but not limited to matters relating to the printing of ballots for the general election.

Plaintiffs reason that since Falsetta’s alleged “election” is predicated on Section 512 B, above, the “election” took place on May 2, 1981, the date of Regira’s death, and this action having been brought May 12, 1981, is untimely.

The court rejects this argument upon finding that the intent of Section 512 B, above, is apparently that the date of election envisioned therein is the date on which the Secretary of State certifies to the Governor the name of the surviving general election candidate within thirty days of the date of the scheduled general election. Since no such certification has yet been made, the prescriptive period has not commenced and therefore could not prescribe.

QUO WARRANTO

The purpose of a writ of quo warranto is to test the authority of one holding office or of an intruder attempting to exercise the power and authority of an office. LSA-R.S. 42:76; LSA-C.C.P. Article 3901. Lelong v. Sutherland, 134 So.2d 627 (La.App. 4th Cir. 1961).

A party appearing solely in an individual capacity and not as claimant to public office has no standing to invoke quo warranto proceedings. Small v. Levy, 355 So.2d 643 (La.App. 4th Cir. 1978), writ denied May 5, 1978. To the same effect see Lelong, above.

Since plaintiffs do not claim the office in question, the application for writ of quo warranto is denied.

CONSTITUTIONALITY

In support of the claim of unconstitutionality, plaintiffs cite numerous cases dealing with fundamental rights (due process and equal protection), in which area the United States Supreme Court has repeatedly held there can be no discrimination or distinction except that predicated upon some “compelling” state reason and that all statutes of this nature are held to strictest scrutiny to insure no such protected rights are violated. It is contended this same rule of interpretation applies to the fundamental right to vote. It is then argued that the legislature has recognized the fundamental nature of the right of franchise and right of the people to elect officials by providing in Section 469, above, that qualifying shall be reopened if a candidate dies within 30 days of the date of a primary election. To fully implement and preserve the franchise, it is argued that the same provision should apply to general elections. According to plaintiffs, Section 512 B, is not only contrary to the legislatively expressed intent of our Election Code as a whole, but also offends on the stated constitutional grounds.

The court has read all of the authorities cited and finds that while persuasive, in that they do indeed deal with the general principle that statutes dealing with fundamental rights will be strictly scrutinized and must pass the test of compelling state interest, they are not controlling in that none are concerned expressly with the constitutional guarantee of the vote. For example, Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944), concerned denial of voting rights because of race; Kramer v. Union Free School District No. 15, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969) concerned laws requiring property ownership and parentage as qualifications for voting; Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966), declared invalid a poll tax requirement; and Cipriano v. Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969), declared invalid a property taxpayer requirement as a voter qualification.

No authority has been cited in support of plaintiff’s contention that subject statute infringes upon the right to vote as guaranteed in Article 1, Section 10 of the Louisiana Constitution. That is, no authority directly in point, has been cited on the issue and this court has been unable to find such a precedent.

In contending that the issue here is candidate selection, and not the right to vote as contended by plaintiffs, defendants rely primarily upon the provisions of our Election Code and Fortson v. Morris, 385 U.S. 231, 87 S.Ct. 446, 17 L.Ed.2d 330 (1966), which involved a constitutional assault on provision of the Georgia Constitution whereby the Governor of that state should be selected by majority vote in a general election and alternatively, by the state’s legislature choosing between the two candidates having the most votes in the event no candidate received a majority vote. The Supreme Court held that while election by majority vote is preferred, the alternative method provided by the Georgia Constitution was not invalid and noted:

It set up two ways to select the Governor. The first and preferred one, was election by a majority of the people; the second, and alternative one, was election by the State Assembly if any one candidate failed to receive a majority of the popular vote. Under the second method, in the legislative election the votes of the people were not to be disregarded but the State Assembly was to consider them as in effect nominating votes and to limit itself to choosing between the two persons on whom the people had bestowed the highest number of votes. There is no provision of the United States Constitution or any of its amendments which either expressly or impliedly dictates the method a State must use to select its Governor. A method which would be valid if initially employed is equally valid when employed as an alternative. It would be surprising to conclude that, after a state has already held two primaries and one general election to try to elect by a majority, the United States Constitution compels it to continue to hold elections in a futile effort to obtain a majority for some particular candidate.

Fortson, above, noted that Mississippi and Vermont also provide for election of their Governors in the same manner as Georgia. The decision also noted that 38 states provide for gubernatorial election by plurality vote and that in case of a tie the legislature shall elect. Fortson, above, concluded that the Georgia Constitutional provision did not violate the equal protection clause of the Federal Constitution.

Gordon v. Lance, 403 U.S. 1, 91 S.Ct. 1889, 29 L.Ed.2d 273 (1971) followed Fort-son, above, and held that a West Virginia provision requiring sixty percent voter approval of a referendum to incur bonded indebtedness or increase tax rates, did not offend constitutional requirements of the fourteenth amendment. In so holding, the Court observed:

Although West Virginia has not denied any group access to the ballot, it has indeed made it more difficult for some kinds of governmental actions to be taken. Certainly any departure from strict majority rule gives disproportionate power to the minority. But there is nothing in the language of the Constitution, our history, or our cases that requires that a majority always prevail on every issue. On the contrary, while we have recognized that state officials are normally chosen by a vote of the majority of the electorate, we have found no constitutional barrier to the selection of a Governor by a state legislature, after no candidate received a majority of the popular vote. Fortson v. Morris, 385 U.S. 231, 87 S.Ct. 446, 17 L.Ed.2d 330 (1966).

In this instance the statute does not result in unequal protection under law in that some class of voters is discriminated against because of race, poll tax requirement, property ownership or residential requirement. All persons have the right to vote in every election held- pursuant to the Louisiana Election Code.

Nor does the court find any infringement, erosion or denial of the right to vote as contemplated by the appropriate provisions of the constitutions of the United States or this state.

The Election Code provides for a single primary followed by a general election in the event no candidate receives a majority vote in the primary. The required primary has been held in this instance with results necessitating a general election which was properly called. Unfortunately, one of the two candidates entitled to participate in the general election, died before the election was held.

The very nature of elections demand that they be conducted expeditiously with the view of achieving earliest possible finality commensurate with due process of law requirements. The orderly conduct of governmental affairs requires that official succession to public office be determined, when possible and practicable, prior to commencement of the term for which the election is held.

LSA-R.S. 18:1432 A provides the remedies which may be ordered in an election contest. It provides that upon finding an election void for reasons authorized therein:

_the judge may render a final judgment declaring the election void and ordering a new primary or general election for all the candidates, or, if the judge determines that the appropriate remedy is the calling of a restricted election, the judge may render a final judgment ordering a new election and specifying the date of the election, the appropriate candidates for the election, and the office or other position for which the election shall be held.

Statutes are presumed constitutional and the party alleging unconstitutionality bears the burden of proof. Buras v. Orleans Parish Democratic Executive Committee, 248 La. 203, 177 So.2d 576 (La.1965).

It is the duty of the court to uphold constitutionality of a statute whenever possible and every consideration of public need and policy upon which the legislature could rationally have based the statute should be weighed by the court and, if the statute is not clearly arbitrary, unreasonable and capricious it should be upheld as valid. State v. Rones, 223 La. 839, 67 So.2d 99 [1953].

Any doubt concerning alleged unconstitutionality of a statute must be resolved in favor of its validity. Johnson v. Collector of Revenue, 246 La. 540, 165 So.2d 466 [1964],

Application of plaintiff’s position to the facts of this case would produce interesting alternative solutions. The election in question is a general election, not a primary. Defendant Falsetta survived the primary and was entitled to participate in the general election. If a new general election is held, surely Falsetta would be entitled to> participate. How would his opponent be selected? Should he face the candidate having the third highest vote in the primary? If so, suppose this candidate declined to run in the general election. Should Falsetta’s opponent then be the candidate receiving the fourth highest vote in the primary or should a new primary election be called? If a new primary were ordered delays could be encountered therein by the death or withdrawal of a candidate, thus delaying the general election. If a general election were ordered the death of a candidate before that election was held, would place matters in the same position as presently exists. This court believes that such eventualities are neither reasonable, practicable nor expeditious.

It is noteworthy that the term of office involved herein commences July 1, 1981. Holding of any further elections, either general or primary would delay the elec-tee’s taking office until after the date of commencement of his term.

In Raborn v. Secretary of State, 204 So.2d 630 (La.App. 1st Cir. 1967), writ refused December 1, 1967, it was held that, pursuant to LSA-R.S. 18:297 subd. D, 18:358 subds. A, C, where a first primary for multiple office left more than one person to be elected and one candidate withdrew, the remaining candidate with the highest number of votes was properly declared elected. Raborn, above, is express judicial recognition that a majority vote is not an indispensable prerequisite to election.

Declaring Falsetta elected by the people under the circumstances of this case, in pursuance of Section 512 B, above, is a reasonable exercise of legislative authority and discretion, designed and reasonably calculated to achieve a significant state interest, namely, the orderly expeditious and least costly conduct of elections for public office. Specifically, in this case it accomplishes timely accession to office which would not otherwise result.

This court finds no infringement of voting rights and holds that plaintiff’s attack on Section 512 B, above, is without merit.

ACCORDINGLY, IT IS ORDERED, ADJUDGED AND DECREED that the order issued herein May 12, 1981, temporarily restraining the Hon. James Brown, Secretary of State and directing defendants to show cause why a writ of quo warranto should not be issued herein, and why the other relief sought by plaintiffs should not be granted, be and the same is hereby revoked, cancelled and recalled and plaintiffs action dismissed, with prejudice, at plaintiff’s cost.

Judgment read, rendered and signed in open Court at Donaldsonville, Louisiana, this 20th day of May, 1981.

LOTTINGER, Judge,

concurring.

I agree with the result reached by the trial court on the merits, but find that La.R.S. 18:1409 H, requiring that courts of appeal hear election suits en banc, null and void as an unconstitutional infringement by the legislature into the rule making power of the judicial branch of government. Art. 2, §§ 1 & 2; Art. 5, § 8(B) La.Const. (1974). More complete reasons will follow.

EDWARDS, J., agrees and will assign additional reasons.

LOTTINGER, Judge

(concurring with additional reasons).

I agreed in the result reached, and now file additional reasons for my conclusion that La.R.S. 18:1409 H, which provides that courts of appeal shall sit en banc in election suits, is an unconstitutional infringement by the legislature into the powers granted the judicial branch of government by the Louisiana Constitution of 1974.

Article 2, § 1 of the Louisiana Constitution (1974) provides: “The powers of the government of the state are divided into three separate branches: legislative, executive, and judicial.” Section 2 of that article further provides that “no one of these branches, . . ., shall exercise power belonging to either of the others.”

The powers granted to the judicial branch are found in Article 5 of the Louisiana Constitution (1974). Article 5, § 8(A) in part states: “each court [of appeal] shall sit in panels of at least three judges selected according to rules adopted by the court.” The constitution thus requires that a minimum of three judges of a court of appeal hear each case. Only in Article 5, § 8(B) are the courts of appeal constitutionally mandated to hear cases with more than three judges.

Each court of appeal is constitutionally granted the right to adopt rules for the administration of that court. Article 5, § 12, La.Const. (1974). In appellate courts the administration of the court includes not only the day to day operations of the court, but also the method of selection of judges to sit on a multi judge panel, Art. 5, § 8(A) La.Const. (1974), as well as the number of judges on a panel if greater than three. Needless to say, the rules adopted by the court must not be in conflict with the constitution. However, I find no constitutional provision requiring that these rules shall not be in conflict with law, i. e. statutory law. Therefore, the authority to set the numerical composition of a particular court of appeal panel rests exclusively with that court, and not the legislature.

I know of no constitutional provision or overriding public interest which would allow the legislature to infringe upon the judicial powers of the courts by mandating an en banc sitting by the courts of appeal in election suits. As a matter of practicality and in the interest of judicial economy, this court — prior to this case and prior to the enactment of La.R.S. 18:1409 H — heard election suits with panels of five judges. This practice was instituted to avoid rehearings by a five man panel in the event a three man panel’s decision fell within the ambit of Article 5, § 8(B) of the Louisiana Constitution (1974).

The general rule in Louisiana is that the constitutionality of a statute cannot be raised for the first time in the appellate court. Summerell v. Phillips, 258 La. 587, 247 So.2d 542 (1971). However, I do not find this rule controlling in the instant case. The question of how many courts of appeal judges hear an election suit is of no interest to the parties involved in this litigation. It is an issue that does not affect the party litigants, but rather only the courts of appeal and the judicial branch. Therefore, the constitutionality of La.R.S. 18:1409 H is properly and timely raised in and by this court for the first time.

The fact that we have heard this election suit en banc does not mean that we agree that the legislature has the constitutional authority to adopt La.R.S. 18:1409 H. Rather, though this court is of the opinion that La.R.S. 18:1409 H is unconstitutional, judicial economy requires that we hear this suit en banc because, if the Louisiana Supreme Court rules that La.R.S. 18:1409 H is constitutional, the suit will have been heard as required by statute.

Therefore, for the above and foregoing reasons, I agree in the result reached by the trial court on the merits, and find La.R.S. 18:1409 H to be null and void as an unconstitutional infringement by the legislature into the powers of the judicial branch of government.

EDWARDS, Judge,

concurs.

I agree with the concurring opinion of Judge Lottinger. Additionally, the folly of requiring all appellate judges to hear every election case needs to be pointed out.

Next year, this court will likely consist of twelve judges. The Supreme Court consists of seven justices. Twenty judges (one trial, twelve intermediate, and seven supreme) do not need to hear every election case in Louisiana.

This court, by rule, has handled the problems of delay caused by re-argument by having all election cases heard by a five-judge panel.