author: LeBLAN.C, Justice.

text:
    217 La. 118
    SCHNEIDER v. MANION.
    No. 39771.
    Supreme Court of Louisiana.
    March 20, 1950.
    Rehearing Denied April 24, 1950.

      "Hugh M. Wilkinson, "James Wilkinson, III, New Orleans; for defendant-appellant.
    John E. Jackson, Baldwin J. Allen, Chas. J. Rivet, New Orleans, for plaintiff-appellee.
   LeBLAN.C, Justice.

On July 12,1949, judgment was rendered, in the Civil District Court for the Parish of Orleans, Division “E”, in favor of the plaintiff, Claude W. Schneider, and against the defendant, Mrs. Louise Manion, his wife, decreeing a divorce “a vinculo matrimonii” between them. The judgment was signed on July 18; 1949 and on August 11, 1949, on motion of defendant, she was granted a suspensive appeal returnable to this Court on" October 7, 1949, upon her furnishing bond, according to law, in the sum Of Three Hundred Dollars. Defendant filed an appeal bond on August 24, 1949 which plaintiff, appellee, contends was beyond the time prescribed by law and he now moves to dismiss the appeal.

The procedure for taking an appeal is pointed out in Article 573 of the Code of Practice which provides that the party intending to, appeal may do so either by petition or by motion in open court, at the same term at which the judgment was rendered, “upon offering to give such surety as the court may direct, as hereafter provided.” Subsequent Articles prescribe the duties of the judge in stating the amount of the surety io be given by the appellant and in fixing the return day. Article 575 then provides that “if the appeal has been taken within ten days, not including Sundays, * * * it shall stay execution * * * ; provided the appellant gives his obligation, with good and solvent security, * *

By Act No. 49 of 1871, Article 573 of the Code of Practice was amended in order to regulate the taking of appeals in divorce cases and the article was then made to provide further as follows: “But in cases where the judgment decrees: a divorce, such a petition or motion of appeal must be filed within thirty days, not including Sundays, after the signing of such judgment, instead of ten days, and shall operate as a suspensive appeal therefrom, and there shall- be no devolutive appeal allowed thereafter.” In this connection it may be well to refer also to Act No. 24 of 1930, which provides “that no appeal shall lie from any final judgment of separation from bed and board or of divorce after thirty days from its date, but any appeal perfected within that time shall suspend the execution of the judgment until the appeal shall have been finally disposed of.”

From the foregoing provisions of our law on the subject it is made, to appear that in ordinary cases, a suspensive appeal must be taken within ten days, not including Sundays, from the effective date of the judgment and execution will be stayed until definitive judgment on appeal, “provided the appellant gives his obligation, with good and solvent security” and that in cases of divorce the appeal must be taken within thirty days, not including Sundays, after signing of the judgment and further that in divorce cases no devolutive appeal will be allowed after the thirty days referred to.

Reverting now to the dates which have to determine the fate of the appeal in this case, we find that the thirty days'began to run on July 19,’ 1949, and, excluding Sundays, they expired on August 22, 1949. Defendant filed her appeal bond on August 24,' 1949, and consequently she was two days late in filing it.

It is urged however, that by the terms of Article 573 of the Code of Practice, in so far as they relate to appeals in divorce cases, the mere filing of a petition or motion for the appeal shall operate as a suspensive appeal and it is further argued that, a bond is not required 'for the reason that there -is no property or thing to be bonded, the only issue being that with respect to the marital status of the parties.

It is difficult to think of a suspensive appeal without an appeal bond. Indeed, Article 573 ■ of the Code of Practice, in providing the method of taking an appeal makes it á condition precedent that the applicant shall “offer to give such surety as the ■ court may direct” and “as hereafter provided.” Thereafter, Article 575 defi-

nitely prescribes what the terms and conditions and also the amount of his obligartion shall be. That is the bond he shall be required to furnish. The amendment to Article 573 by Act No. 49 of 1871 had for its purpose the granting of a longer delay, in divorce cases, for taking and perfecting an appeal. If there ever was any doubt about the necessity of. a bond to suspend the execution of a judgment in such cases, it was certainly removed by the enactment of Act No. 24 of 1930 which provides first, “that no appeal shall lie from any final judgment of separation from bed and board or of divorce after thirty days from its date,” and then states “but any appeal perfected within that time shall suspend the execution of the judgment until the appeal shall have been finally disposed of.” (All emphasis supplied.) Obviously, from those provisions it follows that the mere petition or motion for appeal cannot operate as a suspensive appeal and thus suspend execution of the judgment, but there must be, in addition, a perfection of the appeal which is accomplished by the filing of the bond as directed by the Court in the order of appeal. This is made clear by the decision of this court in the case of Lafayette v. Farr, 162 La. 385, 110 So\ 624 wherein it is stated that: “The obtaining of an order of appeal within the time prescribed is not availing without the bond required by the order of appeal. It is not necessary that the citation to answer the appeal shall be served within the time prescribed by law for taking an appeal, but the order of appeal, being subject to the condition that the’ appellant shall furnish a bond for the amount either fixed in the order, or required by law, remains in- abeyance and without effect until the bond is filed. Therefore an appeal is not deemed taken within the time prescribed by law for taking an appeal unless the bond required by the order of appeal’ is filed within the time prescribed.”

It is true that in that case the Court was considering a devolutive appeal in a case other than a divorce proceeding but the law as stated applies to all appeals, including those in divorce cases where only a suspen-sive appeal is allowed. In Shipp v. Shipp, 182 La. 1019, 162. So. 760, and Eiermann v. Modenbach, 198 La. 1062, 5 So.2d 335, cited by counsel for defendant, both divorce actions, the district court had mistakenly granted an order for a devolutive appeal and the appellant furnished bond within the thirty day period in the amount required by the order of Court. In both cases this Court entertained the appeal holding the bonds had the effect of suspending the judgments of divorce under the provisions of Article 573 of the Code of Practice and Act No. 24 of 1930, regardless of how the appeals had been denominated in the order granting them. The decision in those cases sustain the proposition that the filing of a bond within the thirty day period is necessary to perfect an appeal which suspends the judgment in divorce cases.

Counsel for defendant contend however that the bond in this case was filed in time because, in addition to the intervening Sundays within the thirty day period, there should also be excluded the intervening Saturdays since by the terms of Act No. 445 of 1948, Saturdays as well as Sundays are declared to be full holidays in the Parish of Orleans. Further they contend that by a stipulation which is made a part of the record, it was agreed that the case may be tried and disposed of during the vacation period of the district court and in case of any appeal, “same may be taken by motion as well as by petition within the delays and in the manner prescribed as if in term time, and that every day, except Saturdays, Sundays and Legal Holidays, shall be counted and considered as a judicial day.”

Disregarding the stipulation referred to in considering this contention it may be appropriate to observe,, in the first place, that Act No. 24. of 1930 which has. to be read .in connection with Article 573 of the Code of Practice, does not exclude even Sundays and,. were ■ the provisions of that law to be applied, it would follow that the appeal bond was not filed until thirty-seven days after the judgment was signed which was seven days too late. If the provisions of the prior law, Act No. 49 of 1871, in which Sundays are excluded in computing the thirty days, apply, the filing of the bond was still too late, as heretofore pointed out. Act No. 445 of 1948 is merely an amendment to prior acts “designating and defining the days of public rest and legal holidays and half-holidays in this State,” and does not attempt to change any of the provisions of the Code of Practice or other laws regulating the matter of taking and of perfecting appeals.

Regarding the • stipulation relied on by counsel for defendant we look upon its purpose as being solely one to have the case tried and disposed of in the district court during its vacation period and facilitate the taking of' an appeal by the party against whom judgment' would be rendered. It was not intended thereby to extend the time for perfecting any appeal. Even if that had been the intention, it would avail the defendant nothing because the law relating to the delay in taking and perfecting appeals is mandatory and cannot be abrogated by a stipulation entered into by counsel on both sides. In Untereiner v. Miller, 29 La.Ann. 435, the parties attempted to make such an agreement but the court refused to give it effect stating that the: “law is imperative, and it cannot be abrogated by the agreement of counsel to extend the delay for the taking of a sus-pensive appeal. No consent of parties can give this court jurisdiction or enlarge its powers. If, .in any given case, ‘no appeal will lie’, whether because of the amount in dispute, or because the time limited for an appeal has expired, the appellate court has no jurisdiction, and every court is bound, ex-officio, to take notice of the want of jurisdiction patent on the face of the record, although the parties may be willing and may consent not to raise the question.”

This case is cited with approval in Lafayette v. Farr, supra, and also in the more recent case of Mount Olive Baptist Church v. New Zion Baptist Church, 198 La. 896, 5 So.2d 144.

After full and'careful consideration of all the points involved we are convinced that the motion to dismiss the appeal must prevail and for the reasons stated,

It is now ordered that the appeal be and the same is hereby dismissed at appellant’s cost.


source: Caselaw Access Project

author: McCALEB, Justice.

license: Public Domain

text:
    217 La 128
    GULF SHIPSIDE STORAGE CORPORATION v. THAMES. NEW ORLEANS STEVEDORING CO., Inc. v. THAMES.
    No, 39605.
    Supreme Court of Louisiana.
    March 20, 1950.
    Rehearing Denied April 24, 1950.
    Lewis D. Dunbar, New Orleans, and Marion Weimer, Baton Rouge, for appellant.
    Monroe & Lemann, J. Raburn Monroe, Walter J. Suthon, Jr., Jack A. Bornemann, New Orleans, amici curise.
    Baldwin, Haspel & Molony, Lawrence A. Molony and Conrad Meyer, III, New Orleans, for plaintiffs-appellees.
   McCALEB, Justice.

These consolidated suits involve the single question as to the effective date of Act No. 291 of 1948, enacting further changes in the Louisiana Unemployment Compensation Law, Act No-. 97 of 1936, as variously amended. The complaints of the plaintiffs are that the Administrator of the Division of Employment Security of the State Department of Labor has erroneously compelled them to pay contributions at higher percentages, for the calendar quarter October lst-December 31st, 1948, than those required by Act No. 291 of 1948 and that, therefore, he should be ordered to correct his records and make proper refunds.

Specifically, Gulf Shipside Storage Corporation alleges that it is an “employer”, as that term is used in the Louisiana Unemployment Compensation Law; that, under Section 6 thereof, it was required to make quarterly contributions to the Unemployment Security Fund of the State of Louisiana ; that the amount of the contribution is determined by a certain percentage, or contribution rate, which is fixed in the Act at 2.7% unless the employer can qualify for the benefit of a reduced rate of contribution in accordance with its “experience-rating record”;, that one of the factors used in determining the experience-rating record is the “average annual payroll”; that, prior to the effective date of Act No. 291 of 1948, the law defined the term “average annual payroll” to mean the average of annual payrolls of an employer for the last three preceding 12 consecutive calendar month periods ending March 31st of each calendar year or “for the 12-consecutive-calendar-month period ending on the computation date, whichever is the larger”; that, by vir-ture of Act No. 291 of 1948, the definition of “average annual payroll” was changed to mean the average of the annual payrolls of an employer for the last three preceding 12 consecutive calendar month periods ending on the computation date preceding the experience-rating year and that, by application of the latter definition, its rate of contribution for the calendar quarter October lst-December 31st 1948 was 1.2%. It is asserted that, despite the fact that Act No. 291 of 1948 became effective 20 days after the end of the regular session of the Legislature, or on July 28th, 1948, the defendant Administrator failed and, refused to apply the definition of “average annual payroll” contained therein in computing the rate of its contribution for the calendar quarter, October lst-December 31st 1948, but, instead, wrongfully used the definition contained in the old law and has persisted that its rate of contribution should be 2.1%; that it was forced to pay the contribution at this unlawful rate, which it did -under protest; that it is entitled to have a re-determination of the matter and that defendant be ordered to correct the records .of. his department to show the proper rate of contribution and refund the sum of $485.04, representing the overcharge.

The allegations of the other plaintiff, New Orleans Stevedoring Company, Inc., are that, under the provisions of Act No. 291 of 1948, it was entitled to qualify for a reduced rate of contribution (less than 2.7%) in accordance with its “experience rating record” by reason of the fact that its experience rating record could have been charged with benefits throughout the entire 36 consecutive calendar month period ending on the computation date; that, notwithstanding this, the defendant Administrator determined that it was not entitled to the reduced rate because its annual payrolls ending on the computation date did not equal or exceed 35% of its highest annual payroll in the 36 consecutive calendar month period; that, in so doing, the defendant applied the law as it existed prior to the 1948 amendment and unlawfully refused to determined its eligibility for a reduced rate of contribution for the period October lst-December 31st, 1948, although that act had been effective since July 28th, 1948; that, by reason of this, it was required to pay an excess of $5,231.96-; that it is entitled to have this sum refunded and that defendant be further ordered to correct the records of his department to show that the proper rate of contribution for the period is 0.9% of the wages paid to its employees.

In due cou'rse, the defendant Administrator appeared and admitted all the' salient facts contained in plaintiffs’ petitions. However, he denied that plaintiffs-were entitled to the claimed reductions, contending that he properly computed, on March 31st, 1948, the contribution rate of plaintiffs under the then existing law, Act No. 97 of 1936, as amended by Acts Nos. 181 and 227 of -1946, and not under the 1948 statute which was ineffective with respect to the period October 1-December 31, 1948. Thereafter, the. cases were consolidated for all purposes. The facts were also stipulated, it being.agreed that, if Act No. 291 of 1948 became effective on the 20th day after, the adjournment ,of the Legislature, then plaintiffs were entitled to the relief sought, otherwise, judgment should be entered for defendant.

After a hearing in the district court, there was judgment for plaintiffs. Defendant has appealed.

Section 27 of Article 3 of the .Constitution declares that all laws enacted shall go into effect “on the twentieth day after the Legislature shall have adjourned”. This provision has been deemed to be without application to statutes in which the effective date has been otherwise fixed by the Legislature. Ricks v. Department of State Civil Service, 200 La. 341, 8 So.2d 49. But, here, the Legislature has not specially prescribed an effective date. Accordingly, the constitutional provision controls and Act No. 291 of 1948 became operative in its entirety on July 28th, 1948, which was the twentieth day after the adjournment of the Legislature. This being so, the statute must be read and given effect in its amended form as to all events occurring after its effective date. United States v. LaFranca, 282 U.S. 568, 51 S.Ct. 278, 75 L.Ed. 551 and Blair v. City of Chicago, 201 U.S. 400, 26 S.Ct. 427, 50 L.Ed. 801.

Thus, it seems perfectly obvious that, in determining the rate of contribution payable by each employer for the experience rating period October 1-December 31, 1948, the provisions of the ameridato'ry act of 1948, and those provisions exclusively, were applicable. And it makes no difference that the rate for the calendar year 1948 had been previously computed as of March 31st, 1948 by the Administrator or that, in miking the computation under the amendatory act, he is required to use March 31st, 1948 as the computation date for the three month experience rating period.

Counsel fo'r defendant nevertheless proclaim that the Legislature did not intend that the amendatory act of 1948 would have effect at any time prior to January 1, 1949 and they predict that dire consequences will beset the administration of the law should the court hold the operative date to be July 28th, 1948, in accordance with the constitutional mandate. We have carefully examined the variform arguments' of' counsel and find none of them to be impressive. However, because of the apparent earnestness with which the contentions have been presented, we shall attempt to state and dispose of them.

It is initially asserted that the Legislature did not intend that the new definitions contained in the amendatory act would be effective until January 1st, 1949 because the rates of contribution for the calendar quarter October-December 31, 1948 were- not changed from the rates of contribution of the fiscal year October 1, 1948-September '30, 1949. The primary answer to this (as well as the other propositions) is that, if the Legislature had not intended the changes to be effective until January 1, 1949, it would have been so easy to say so.

It. is next said that to sustain the position of plaintiffs would require the defendant to recompute the tax of all employers subject to the Act for the three years ending March 31, 1948. It does not appear from the facts of the case that an entire recomputation is required but, even if it is, this would not supply an acceptable reason for concluding that the Act did not become operative at the time provided by the Constitution.

Another argument is that, because Section 6(c)(6) of the old law refers to a calendar quarter, whereas the' amended section speaks of a calendar year, the intention is evinced that the Act should not take effect until January 1, 1949. We fail to discern the pertinency of this change with respect to the date upon which the Act became effective.

It is also maintained that to give the amendment effect as to the computation on March 31st, 1948 would jeopardize the computations made as of March 31st, 1947 and the contribution rates emanating therefrom for the period October 1„ 1947-September 30, 1948 and would require a new computation respecting the period July 1-Septem-ber 30, 1948. The answer to this is that the present suits do not involve this question; it will be time enough to decide it when and if the issue is raised.

Further arguments are directed' to the difficulties, inconvenience and expense to which defendant says his department will be subjected in the event he is required to make the recomputations' sought by plaintiffs -and other employers similarly situated. These pleas are, of course, without ■ any bearing whatever on the issues of law presented. Since the defendant has forced excessive contributions by reason of his misinterpretation of the effective date of the statute, it is his bounden duty to rectify his error.

The next contention of counsel is that, since the defendant has taken the position that the amendatory act did not take effect until January 1, 1949, the doctrine of contemporaneous construction is germane and governs the decision in the case.

This argument is without merit. The recent and erroneous interpretation of the defendant in this case provides absolutely no basis for application of the rule of contemporaneous construction, aside from, the fact that the doctrine is irrelevant where, the language of the statute is free from, doubt. State v. Standard Oil Co. of Louisiana, 188 La. 978, 178 So. 601 and Liquidation of Canal Bank & Trust Co., 211 La. 803, 30 So.2d 841.

Counsel further contend that the saving clause, Section 3 of Act No. 291 of 1948, evinces the intention of the Legislature that the changes in the definitions affecting computations were not to become effective until January 1st, 1949. It declares: “This Act shall repeal all laws or parts of laws in conflict herewith, but shall in no wise be construed as affecting or waiving the right to collect contributions, interest or penalties, or any other rights, that have accrued under Act 97 of 1936 and amendments thereto and re-enactments thereof.”

Far from sustaining the contention, the above-quoted provision expressly repeals all laws in conflict therewith, except as otherwise provided. And, since none of the provisions respecting the definitions used in making computations has been retained, it is plain that the Legislature intended to repeal them and that the new definitions would apply on and after the effective date of the Act. Counsel, however, say that the proviso, that the new Act “shall in no wise be construed as affecting or waiving * * any other rights, that have accrued * *”■ under the old law, preserves the original computation factor-quotient which defendant has derived by use of the old definitions on the computation date, March 31st, 1948. In arguing thus, counsel erroneously place defendant’s computation in .the category of a right accruing under the old law. The only rights which the Legislature saved under the old law were contributions or taxes which had accrued prior to the effective date of the new Act as the words “or any other rights” are used in association with and limited to “contributions, interest or penalties” that have accrued.- Noscitur a sociis. No right “accrued” to use the old definitions in .computing future tax rates under the amendatory law. United States v. La-Franca, supra.

Counsel also assert that the amendment of 1948, being clear and explicit, is not' subject to interpretation and that, therefore, .the new definitions therein contained should be given effect only on and after January 1st, 1949. We experience much difficulty in discovering the Ibasis for this conclusion. It seems to be the belief of counsel that, by applying the new definitions to events following the effective date of the Act, an unwarranted retroactive effect will be given to the legislation. But this is not so. The new definitions, used for purposes of computation, apply only to rates of contributions accruing after the effective date of the amendatory act.

In support of their manifold postulations, counsel cite and rely upon Southern Ins. Co. v. Board of Assessors, 49 La.Ann. 401, 21 So. 913 and City of New Orleans v. Vergnole, 33 La.Ann. 35.

The first of these cases is utterly without application here. It holds that, where a law provides that a yearly assessment is to begin on a certain date and be completed before another date of a calendar year, it contemplates an assessment on the basis of the condition of things existing on the first day of the year.

The other case is likewise inapposite. There, the City of New Orleans had levied a license tax prior to the effective date of the Constitution of 1879, wherein political corporations, Article 206, were prohibited from levying a greater -license tax than that imposed by the State. The defendant contended that, since the new constitution-went into effect before the end of the taxable year and since the City’s levy exceeded that of the State, the tax was not collectible. The court held that the constitutional provision was not to be given a retroactive effect and thereby deny the City its right to collect all taxes levied prio'r to the effective date of the Constitution. In the case at bar, there was no levy of taxes or contributions for the October 1-December 31, 1948 period, prio'r to the effective date of the amend-atory act.

Finally, counsel contend that the court below erred in casting defendant for plaintiff’s costs. Section 13 of the Act provides that the Administrator shall not be required to “* * * pay any costs of court in any legal proceedings, * * Plaintiffs maintain that this provision, when read with other provisions of Section 13 which relieve the Administrator from furnishing bond, etc., merely exempt him from payment of court costs for filing suit and that it was never intended that he should not be assessed with the costs of a successful adversary.

Plaintiffs’ contention is not tenable. The provisions of Section 13 of Act No. 291 of 1948 are quite similar to those of Act No. 135 of 1936 which exempt the State and other political subdivisions from the payment of costs in any judicial proceeding. The point tendered, that the provisions do not relieve the Administrator from payment of the costs of a successful opponent, would be interesting in a matter of first impression but it is now firmly established that the State and its political subdivisions are exempt from payment not only of their own costs but also for costs expended by litigants successfully prosecuting claims against them, except in expropiation proceedings. See Westwego Canal & Terminal Co. v. Louisiana Highway Commission, 200 La. 990, 9 So.2d 389; Harrison v. Louisiana Highway Commission, 202 La. 345, 11 So. 2d 612; Makofsky v. Dept. of Highways, 205 La. 1029, 18 So.2d 605; Hamberlin v. Tangipahoa Parish School Board, 210 La. 483, 27 So.2d 307 and Brasher v. City of Alexandria (on first hearing), 215 La. 887, 41 So.2d 819.

The judgment appealed from is amended by disallowing the costs and, in all other respects, it is affirmed.

LE BLANC, J., takes no part.

      . See concurring opinion in Westwego Canal & Terminal Co. v. Louisiana Highway Commission, 200 La. 990, 9 So.2d 389.


author:
McCALEB, Justice.
      FOURNET, Chief Justice MOISE, Justice

text:
    217 La. 142
    WARREN v. GLOBE INDEMNITY CO. et al.
    No. 38559.
    Supreme Court of Louisiana.
    Feb. 13, 1950.
    Rehearing Denied April 24, 1950.

      Hollingsworth B. Barret, Shreveport, for plaintiff-relatrix.
    Irion & Switzer, Harry A. Johnson, Jr., C. C. Burton, Jr., Shreveport, for respondents.
   McCALEB, Justice.

The dependent mother of George Barnes, Jr., who met his death in an automobile accident while allegedly performing duties of his employment, brought this suit for workmen’s compensation against his former employer, Wilson Supply Company, and its compensation insurance carrier. The respondents resisted the claim on the ground that the fatal accident had no connection with Barnes’ employment. The district court rejected the demand and, on appeal, the Court of Appeals, Second Circuit affirmed the judgment. See 30 So.2d 346. Certiorari was granted and, during the pendency of the case here, the plaintiff died. Her succession was opened in Florida and Mrs. Eleanor Reese, who had been appointed and qualified as administratrix, obtained an order substituting her as party plaintiff.

Thereafter, on motion of respondents we rescinded the order permitting Mrs. Reese to be substituted as a party plaintiff on the ground that she was without authority to prosecute the action, as administratrix of Mrs. Warren’s estate,' under the Florida appointment. However, leave was granted counsel for plaintiff to cause the substitution of a proper party. See Warren v. Globe Indemnity Co., 216 La. 107, 43 So. 2d 234. Subsequently, Rex Morrisett, local administrator of the ancillary estate of Mrs. Warren, was substituted as party plaintiff herein and the case has been sub mittéd for decision under the .provisions of Section 8 of Rule IX of this court.

The issue presented is whether the employee, at the time of the accident, was performing services arising out of and in the course of his employment as provided by the Employer’s Liability Act. Paragraph 2 of Section 1 and Section 2 of Act No. 20 of 1914, as amended, Act No. 85 of 1926. No substantial dispute exists on the facts of the case, as found by the District Court and the Court of Appeal. We restate them as follows:

Wilson Supply Company is a dealer' in oil field equipment and maintains a branch office in Magnolia, Arkansas. George Barnes, Jr. was employed as manager of the office and also as a travelling salesman at a salary of $200 per month, plus expenses. He lived at Haynesville, Louisiana, some 20 miles south of Magnolia and was furnished a company car for his use in performing the duties of his employment. On the morning of the fatal accident, Barnes left his home in Haynesville in the company car-and drove to Olla, Louisiana, his purpose being to contact a Mr. Crow, a representative of Penrod Drilling Company, to secure Crow’s signature to purchase orders for oil well equipment and supplies. En route, he stopped at Ruston, where he met a young lady, Miss Aldonza Sookul, a student at Louisiana Polytechnic Institute. She was about to leave for a trip to her home at Winnfield and Barnes invited her to ride with him, as he would pass through Winnfield on his way to Olla. After delivering her at her home in Winn-field, Barnes proceeded on to Olla (about 30 miles away) arriving about 10:00 a. m. at the home of a friend, a Mr. Miller, -who was also a friend of Crow, and ascertained that Crow was out in the oilfields but was expected to cáll or come in sometime during the day. With Miller’s assistance, Barnes spent most of the day visiting different places in an unsuccessful search for Crow. At about 5:30 in the afternoon, Barnes informed Miller that “he had to go then”; that he was going to Winnfield to get something to eat. Miller invited him to stay over and have dinner at his home but Barnes declined, asking him “to check on Mr. Crow while he was gone” and that, if he came in, to tell him that he wanted to see him.

Barnes then left Olla, drove to the home of Miss Soolcuh at Winnfield, and invited her to dinner. She had already dined but told him that she would, nevertheless, accompany him. When they left, she informed her mother that she would not be out late as she had to study that night. They then drove to a cafe about a mile north of Winnfield on the road to Dodson, where Barnes ate a sandwich. Afterwards,' they drove north to Dodson, where they called upon a friend of Miss Sookul. The visit there was short (about 15 minutes) and, when they left, they drove towards Winn-field. At a point a few miles south of Dodson, Barnes and Miss Sookul were killed when his automobile collided with another object. The accident occurred about 8:30 p. m. but no other details ar.e disclosed by the evidence.

On the foregoing state of facts, both the district judge and the Court of Appeal found that the mission on which Barnes was engaged at the time of the accident was purely personal to him and entirely disconnected from the purpose of the trip for his employer. Conformably, it was resolved that the accident causing his death did not arise out of his employment.

We think that the rulings are correct. In deciding whether an accident arises out of and in the course of an employment, it is of initial importance that examination be made of the employment contract so that the hours of employment and. nature of the work contemplated may be ascertained. In the case at bar, the Court of Appeal found that Barnes’ engagement as travelling salesman rendered him subject to call at all hours and that he vested with a wide discretion in the determination of his hours of work. This type of employment has been indiscriminately referred to by some authorities as being “continuous” so that an employee injured at any time of the day or night is said to have been injured in the course of his employment or during working hours. See Horovitz on “Workmen’s Compensation” pages 165-167 and cases there cited and Souza’s Case, 316 Mass. 332, 55 N.E.2d 611.

The validity of these holdings or assumptions is not' free from doubt. Merely be-caüse a man is subject to call at all times does not necessarily mean that he is in continuous employment — for, obviously, his •employer expects that,' when the particular mission in which he is engaged is completed, he will take out time for food, rest and purposes of his own. It is probably more accurate to say, in cases of travelling salemen, that they serve their employer at. such times and hours convenient to the customer and that they are, of course, vested with wide latitude and discretion in selecting the hours of work. But during the period the salesman is not working, there is no reason to place him in a preferred class by assuming that his employment is continuous. Thus, Barnes’ mission was to have Mr. Crow sign some orders for supplies. He went to Olla for that purpose and remained on the job loking for Crow until about 5:30 in the afternoon. At that time, he decided to discontinue his search, visit the young lady in Winnfield and get something to eat. We have no doubt that he had the right to do this as his employment contract contemplated that he should have food, recreation and rest and the hours thereof were left in large measure to his discretion. Hence, in this aspect, it would not be unreasonable to say that the accident did not happen in the course of the employment, or during the working hours of his selection.

However, we do not find it necessary to rest our decision on that ground as it is perfectly plain that, in any view of the case, the accident cannot be said to have .arisen out of the employment. The Court of Appeal based its opinion on the rule announced in Kern v. Southport Mill Ltd., 174 La. 432, 141. So. 19, 21, wherein it was declared that an accident arises out of an employment when it occurs while the employee is engaged in his employer’s business and “not merely pursuing his own business or pleasure” and at a time when the employer’s business reasonably required that he be at the- place where the accident happened. This doctrine, which has been reaffirmed and applied by the Court in Harvey v. Caddo De Soto Cotton Oil Co., 199 La. 720, 6 So.2d 747, 749; Nesmith v. Reich Bros., 203 La. 928, 14 So.2d 767 and Laine v. Junca, 207 La. 280, 21 So.2d 150, resulted from a liberal interpretation of the words “arising out of” the employment as used in the compensation act — for, under the prior decisions of our courts, beginning with Myers v. Louisiana Railway & Navigation Co., 140 La. 937, 74 So. 256, 258, it had been declared that, in order for an accident to arise out of the employment, “it must appear to have its origin in a risk connected with the employment”. Indeed, at the time of decision in the Kern case, the overwhelming majority view throughout this country was that, if the force causing the injury was one to which the general public was subjected, the accident could not be said to arise out of the employment. But the court in the Kern case, in adopting a more liberal rule under which injured employees are permitted recovery for any accident occurring while they are at work or doing things so closely connected therewith that it is fair to say that it has causal relation to the employment (i. e., using toilet, drinking water, etc.), was careful to point out that, as a condition to recovery, the employee must be engaged about his employer’s business at the time of the accident and not merely pursuing his own purposes. . If the court had not placed this limitation on the construction of the words “arising out of”, then any accident occurring during working hours would be compensable, notwithstanding the fact that the employee was not engaged in the performance of his duties.

To hold in the case at bar that the accident is compensable would destroy the rationale of the rpling in the Kern case and render the provision of the compensation law, that the accident arise out of the employment, utterly meaningless.' This we cannot do; it is the function of the courts to construe laws, not to re-write them.

Counsel for plaintiff contends that, even if it is held that Barnes’ trip to Winnfield for the purpose of visiting Miss Sookul was a personal mission, it was a temporary deviation or departure and that he had reentered his employment after he headed to^ wards Winnfield following the visit -to Miss Sookul’s friend at Dodson.

, We see no merit in -this proposition because, if it be.assumed that the tort doctrine of deviation and reentry is applicable in compensation cases, it is manifest that there was no deviation by Barnes in this case as he was - vested with implied authority and discretion to make the trip to Winnfield and Dodson for his own purposes. In other words, when he elected to discontinue his search for Mr. Crow at 5:30 in the afternoon and take the trip, he was not violating any' instructions, express or implied, of his employer. Hence, he did not deviate — he simply used the car for a personal mission. And,' if he did not deviate, he cannot be said to have reentered his employment until the mission was completed.

The judgment of the Court of Appeal is affirmed.

FOURNET, C. J., and MOISE, J., dissent and assign written reasons.

PONDER, J., dissents.

FOURNET, Chief Justice

(dissenting).

It is my opinion that at the time the deceased met his death by accidental means he was acting within the scope of his employment as a salesman for his employer.

It is not only incidental to an employment but also within the contemplation of an employer that a salesman, while traveling on the road in the furtherance of his employer’s business, will stop for meals, as Barnes did in this case when, at the close of the business day, he sought a place in which to eat his evening meal. The fact that he went to Winnfield to eat instead of remaining in the small town of Olla, where good eating places are notorious by their absence, is' no criterion, for most salesmen know by experience the best places where good, clean, and wholesome meals may be obtained. It is, therefore, just as reasonable to assume that Barnes chose to eat in Winnfield instead of Olla for this reason as it is to assume that he only chose to eat there because he wanted to be with the young lady! And the fact that he did take the young lady with him is immaterial, for it is only human nature that no one prefers to eat by himself. The criterion in cases of this kind should be whether the actions of the employee are within the reasonable contemplation of his employment.

The effect of the majority opinion is that when a man is eating his lunch he is satisfying his own appetite and is not acting within the scope of his employment. Consequently, if he is injured during this period he is not entitled to compensation, and particularly so if he chooses to not only eat off the premises of his employer but also at a restaurant other than the one in the immediate vicinity of the place of his employment, regardless of the sanitary and wholesome condition of the food at the place in the immediate vicinity or the cost of such meals.

My opinion is that such a result was never intended by the legislature in adopting the compensation laws of this state and I cannot, therefore, subscribe to an opinion that takes such a long.step in this direction. Carried to its ultimate conclusion, this means that if because of the location of the employment or the personal preference of the employee the employee brings his lunch to work and eats it on the premises and,- while so doing, is injured by a piece of falling machinery or the like, he is without a remedy to recover. Certainly he cannot sue his employer under tort, because of his agreement to be covered by the compensation law, and, under the holding in this case, he is not covered under the compensation laws while he is eating his lunch.

MOISE, Justice

(dissenting).

In this dissent I am not attacking persons but opinions, not motives but reasons, not judges but decisions.

The polar star of interpretation which must be applied to the Workmen’s Compensation Law is twofold:

First, in order to show the Legislative intent the language of the statute must be followed.

Second, on questions of the law the Court must adopt a liberal interpretation in fa-vour of the employee and against the employer.

The majority opinion did not apply these rules.

The facts are substantially stated in the majority opinion, but we must remember a law of human nature as to the operation of the mind — one may travel a route with two co-existing purposes. The record shows that the deceased had gone to Olla to fill an appointment with Mr. Crow, a customer of his employer, Wilson Supply Company. Mr. Crow was unable to keep the appointment, and the deceased thereupon left Olla .to get some dinner in a neighbouring town (there being no suitable places to eat in Olla itself), with the intent to return tb Olla after he had eaten and continue his attempts to contact Mr. Crow, the customer of his employer. The fact that for part of his initial journey to Olla in the morning he had a passenger in his car and for part of his return journey to Olla in the evening he had the same passenger in his car does not alter the purpose or motivation for the two trips to Olla; namely, the necessity for his contacting a customer of his employer. When he met his death, the deceased was attempting to complete the unfinished business of his employment.

Mr. Justice Cardozo has prescribed the test for the dual purpose doctrine in the case of Marks’ Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181, 183. That was a suit in which a trip of an employee was made for combined business and personal reasons, and it concerned the interpretation of the phrase “in the course of the employer’s business.” There Justice Cardozo wrote:

“To establish liability, the inference must be permissible that the trip would have been made though the private errand had been canceled.”

We must keep in mind the determinative question — would George Barnes have returned to Olla to see Mr. Crow, regardless of any decision which his passenger and companion might have made to stop off at any point along his return route. An affirmative answer here should be the “pay off.” The decedent did meet his death on the return trip to Olla and performing services incidental to his employment; but the Court inadvertently restricts the liberality of the language of the Act, by holding that this decedent had to be injured by accident arising out of and in the course of his employment.

A mere reading of the Legislative Act, No. 20 of 1914, as amended, would show that in order for an employee in a hazardous occupation to recover for injuries, or his dependents for his death, under the Workmen’s Compensation Adt of Louisiana, it is not necessary to show that he was injured by accident arising out of and in the course of his employment, but only to establish the fact that he was injured performing services arising out of and incidental to his employment, in the course of his employer’s trade, business or occupation.

Barnes was an employee in a hazardous occupation — one which involved the operation of a motor-driven vehicle. He was on a mission for his employer. The transcript shows that he was engaged in an occupation as a traveling salesman, that he could work at any time of the day or night, and as a result of his employment he met his death.

To apply the law to the facts of this case we must go to the Legislative Act. The title of the original Act declares it to be an act prescribing liability of an employer to make compensation for injuries received by an employee in performing services arising out of and incidental to his employment in the course of his employer’s business, trade or occupation.

Paragraph 2 of Section 1 of the Act, Acts 1914, No. 20, Section 1, Dart’s Louisiana General Statutes, Section 4391, reads:

“Every person performing services arising out of and incidental to his employment in the course of his employer’s trade, business or occupation in the following hazardous trades businesses and occupations: * ‡ s¡= ”

Section 2 of the Act, Acts 1914, No. 20, Section 2; 1918, No. 38, Section 1, 1926, No. 85, Section 1, Dart’s Louisiana General Statutes, Section 4392, reads:

“If an employee employed as herein-above set forth in section 1 (S. 4391) (except an employee who shall be eliminated from the benefit of this act for the reasons hereinafter set forth in section 28 (S. 4417) of this Act and elsewhere) receives personal injury by accident arising out of and in the couxrse of such employment his employer shall pay compensation in the amounts and on the conditions and to the person or persons hereinafter provided.”

Paragraph 2 of Section 1, as well as the title of the Act, make the sole qualification the receiving of injuries (in) performing services “arising out of and incidental to his employment.” The phrase modifies the word Services. In Section 2 the phrase “arising out of and in the course of such employment” modifies the word Accident.

The Act itself takes notice of the cause-effect relationship between “accident” and “injury” in the following language:

“The word ‘Accident,’ as used in this act shall unless a different meaning is clearly indicated by the context, be construed to mean an unexpected or unforeseen event happening suddenly or violently, with or without human fault and producing at the time objective symptoms of an injury. * * * The terms ‘injury’ and ‘Personal Injuries’ shall include only injuries by violence to the physical structure of the body and such diseases or infections as naturally result therefrom. The said terms shall in no case be construed to include any other form of disease or derangement, howsoever caused or contracted.” Acts 1914, No. 20,“ Sec. 38; 1918, No. 38, Sec. 1; Dart’s Louisiana General Statutes, Section 4427.

As the language of the Act is thus construed, the nature of the injury, the cause of the accident, and the agency producing it are immaterial. For, it is the time of the injury, the place where it was received, the mission of the employee, which bring about a determination that the services of that particular time were “out of and incidental to his employment.” These constitute the test for recovery, which the majority opinion has ignored.

It seems that the Court of Appeal relies on the Kern case to disallow this recovery. That is a judicial non sequitur, because what the Kern case held was that if the duty of the employee in the course of his employer’s business brought him into contact with peril, and he was injured, he was protected by the Compensation Act, even though the perils were common to all mankind. That was a logical conclusion, for in the Workmen’s Compensation Act itself, the assumption of risk has been abolished as a defence. The instant case therefore falls squarely within the rule of recovery in the Kern case, because the employee was a salesman, furnished with a car, for travel, which subjected him to all the perils of the road, and he met his death while he was on the return journey to complete the unfinished business of his employer. He thus was within both tests of the Kern case. The uncontroverted facts of the case show that at the moment of the accident he was on the return journey towards Olla with the intention there of seeing the customer. This is precisely the same purpose with which he travelled that same road earlier in the day. If he was not performing services incidental to his employer’s business in the course of his employment when he met with the fatal injury, then he was not performing services incidental to his employer’s business and in the course of his employment that morning when he travelled the same route. On both occasions he had Miss Sookul with him; but on both occasions his main purpose and intention was to go to Olla to get the signature of the customer of his employer.

Therefore, we hold it self-evident that if by one mode of interpretation the right of recovery under the Workmen’s Compensation Act may become shadowy and unsubstantial, and by another mode of interpretation that just end can be attained and the manifest purpose of the Act secured, the philosophy of law is that both upon principle and almost irresistible reasoning the latter interpretation ought to prevail. No court of justice can be authorized so as to construe any clause of this Act, if this view is correct, except by using the language of the Act, relating to hazardous occupations. To do otherwise would be to defeat the obvious purpose of the law when we should give a construction accordant with the words and sense of the Legislature which would fully enforce the provisions of the law and protect the workmen in the remedy which the law has granted them. A recovery should be had.

I respectfully dissent.

      . See Harvey v. Caddo De Soto Cotton Oil Co., supra, for a full discussion.

      . Even so, the Court of Appeal for the Parish of Orleans in St. Alexandre v. Texas Co., 28 So.2d 385, 389, viewed the principle of the Kern, Harvey and Ne-smith cases as writing out the words “arising out of” the employment — for it observed that “whenever an accident occurs in the course of employment, no matter what may have been the cause of it, it must, be held to have arisen out of the employment.”

      .See Cusimano v. A. S. Spiess Sales Co., 153 La. 551, 96 So. 118; Glass v. Wise & McALpin, 155 La. 477, 99 So. 409; and compare James v. J. S. Williams & Son, 177 La. 1033, 150 So. 9.


author: LE BLANC, Justice. PER CURIAM.

text:
    217 La. 160
    INTERSTATE OIL PIPE LINE CO. v. GUILBEAU, Sheriff.
    No. 39226.
    Supreme Court of Louisiana.
    March 20, 1950.
    Rehearing Denied April 24, 1950.
    Arthur M. Curtis, Baton Rouge, for plaintiff-appellant.
    Wesley H. Clanton, Eunice, Walter M. Hunter, Alexandria, for defendant-appel-lee.
   LE BLANC, Justice.

This is a suit to recover the sum of $2,064.69, the amount of certain taxes that were paid under protest to Clayton J. Guil-beau, Sheriff and Ex-Officio Tax Collector of the Parish of St. Landry, in 'his capacity as such, for the Red River, Atchafalaya and Bayou Boeuf Levee District, for the year 1944, on property belonging to plaintiff, Interstate Oil Pipe Line Company, which was assessed for that year against its predecessor, Standard Oil Company of Louisiana.

The property involved is situated in that part of St. Landry Parish lying west of the Atchafalaya River Main Levee and east of the west guide levee of the West Atchafalaya Floodway as now established extending from the Avoyelles Parish Line on the north to Bayou Courtableau on the south. It was formerly owned by the Standard Oil Company of Louisiana and was acquired by plaintiff in an act of exchange executed on December 19, 1944, effective as of December 31, 1944. On December 28, 1944, Standard Oil Company of Louisiana paid all taxes assessed against it in the Parish of St. Landry in which was included the tax under contest. In compliance with the provisions of Act No. 330 of 1938, it advised the Tax Collector, by letter, that the amount of tax was being paid under protest and gave notice as required of its intention to file suit for the recovery of the amount so paid within thirty days. As assignee, under the act of exchange of December 28, 1944, of all the properties, assets and rights of the Standard Oil Company of Louisiana, plaintiff instituted this suit in accordance with the notice given, on January 22, 1945.

The suit is based on certain language found in Act. No. 260 of 1938 which redefines the limits of the Red River Atcha-falaya and Bayou Boeuf Levee District which was created by Act No. 46 of 1892. The pertinent language is as follows: “Provided, however, that there shall be excluded from the limits of said levee district the following: All that portion of St. Landry Parish lying west of the Atchafa-laya River main levee and east of the west guide levee of the West Atchafalaya Floodway as now established extending from the Avoyelles Parish line on the north to Bayou Courtableau on the south, with the exception of rights of way and other property belonging to railroads, pipe-lines, common carriers or other public utilities.”

On the face of the proviso it would seem the intention of the Legislature was to exclude from the entire limits of the Levee District, all property within the area covered 'by the Atchafalaya Floodway with the exception of rights of way and other property owned by all railroads, pipe lines, and common carriers or other public utilities and situated and located within the excluded area and this, plaintiff contends, constitutes a discrimination in that its properties were assessed for taxation under the Act while other properties in the same geographical area were specifically excluded from the taxing district and were not subject to taxation by the Levee District. Consequently, plaintiff alleges that the foregoing quoted provision of Act No. 260 of 1938 is unconstitutional as being in contravention of Article 10, Section *1 of the Constitution of the State which provides that “ * * * ; all taxes shall be uniform upon the same class of subjects throughout the territorial limits of the authority levying the tax, * * * ” or as 'being in violation of the “due process” clause of Article 1, Section 2 'of the State Constitution and the “due process” and “equal protection” clauses of the Fourteenth Amendment of the Federal Constitution.

The prayer of the petition is that the proviso in Act No. 260 of 1938 under attack be declared unconstitutional, null and void and of no force and effect and that the defendant Tax Collector be ordered to return to plaintiff the sum of $2,064.69 being the taxes levied on the property involved, together with interest at the rate of two per cent per annum from December 28, 1944, until paid.

The defendant filed various pleas and exceptions which were either overruled or referred to the merits. Before he filed his answer, the Red River, Atchafalaya and Bayou Boeuf Levee Board intervened to join the defendant in the pleas of estoppel and prescription which he had •urged. Under reservation of those pleas and the other exceptions, defendant filed his answer in which the question of constitutionality raised was put at issue. Plaintiff then filed its answer to the petition of intervention" of the Levee Board in which it placed at issue the pleas of estoppel and of prescription and the case was then tried and submitted on the merits on .an agreed stipulation of facts and on the testimony of two witnesses, G. M. McCuin, for the plaintiff and Harry Henderson, Jr., for the defendant and intervenor.

The district judge handed down a lengthy written opinion in which he concluded that the provision of Act No. 260 of 1938, the constitutionality of which was attacked, was constitutional on its face and he accordingly rendered judgment rejecting the plaintiff’s demand and dismissing its suit at its costs. The appeal is from that judgment.

The important, and indeed the controlling, question in the case is the one of constitutionality, for, if the provision of the law that is contested is constitutional, the assessment of the properties for taxes and the collection of those taxes was a valid exercise of his powers 'by the tax collector and it becomes unnecessary to consider and pass on the secondary issues of estoppel and of prescription that are presented.

It does not seem to be disputed that the contested tax being a property or an ad valorem tax, the constitutional requirement of uniformity as provided for in Section 1 of Article 10 of the State Constitution applies. That is the law as appears from the decisions of this Court and particularly from the case of State ex rel. Porterie et al. v. H. L. Hunt, Inc., 182 La. 1073, 162 So. 777, 781, 9 A.L.R. 9, wherein it is stated: “The requirement of section 1 of article 10 of the State Constitution that all taxes shall be uniform applies only to property taxes and not to license taxes levied by the Legislature under the authority of section 8 of article.10 of the Constitution. State v. American Ry. Express Co., 159 La. 1001, 106 So. 544.”

In its original petition plaintiff complained that it owned certain property in that area of the levee district which had been excluded for taxing purposes, which had been subjected to taxation by the said district, “whereas other property of the same kind and class now owned by [it] or other public utilities and situated within the same geographical limits, is not included within the limits of the said Levee District and is not subjected to taxation by the said District.” In compliance with an order granted on an exception of vagueness, the petition was amended in respect to this allegation by additionally pleading that the discrimination complained of was not in regard to “the kind of character of such properties, or the uses to which they are put, but in the nature of the business in which petitioner is engaged, as opposed to the nature of the business in which other property owners are engaged.”

Stated in a simpler form, the gravamen of the complaint is that all property of others, of whatever kind, is excepted by the proviso in Act No. 260 of 1938 whereas all property of whatever kind belonging to the plaintiff, which is a common carrier, is included for taxation and therefore the tax is assessed against it not according to the kind of property or the use to which it may be put, but simply because plaintiff is a common carrier.

Assuming that to be so, that would not ipso facto make the proviso in that statute unconstitutional. It is an elementary rule of construction in constitutional law that all statutory enactments are presumed to be constitutional. Whilst this presumption is not conclusive it nevertheless attaches until it is overcome by the one who challenges the validity of the statute on constitutional grounds. See Vol. 16, Corpus Juris Secundum, Verbo, Constitutional Law, § 99, p. 250. In the same volume at page 275 it is stated that “the presumption in favor of constitutionality is especially strong in the case of statutes enacted to promote a public purpose, such as, for example, statutes relating to taxation,” and it also applies to statutes which are attacked on grounds of discrim-' ination or unreasonable and arbitrary classification. From the same volume at p. 282, § 100(c), we quote the following: “It will be presumed that a statutory classification effecting a difference in treatment between different subjects or classes is not invalid as unreasonable or discriminatory, and that in so classifying, the legislature acted from a proper motive, with full knowledge of existing conditions. So, it will be presumed that the legislature acted advisedly, in response to a reasonable basis for classification, .and that its differentiation between subjects is based on adequate grounds, if any such basis can reasonably be said to exist.”

Further in the same volume, at page 1042, § 520, it is stated:

“While the guaranty of equal protection of the laws applies to the exercise of the state’s power of taxation, and affects both persons and things, it does not deprive the states of the power to adjust their systems of taxation in all proper and reasonable ways in accordance with their own ideas of public policy; nor does it require absolute equality, the requirement being satisfied if the evident intent and general operation of the tax legislation is to adjust the burden with a fair and reasonable degree of equality. Accordingly, the constitution does not prohibit reasonable classification for purposes of taxation so long as the classification rests on a difference having a reasonable relation to the subject of the particular legislation so that all persons similarly circumstanced shall be treated alike, as determined from the practical operation of the statute. * * *

“To 'be unconstitutional, the classification must be manifestly arbitrary and unreasonable, and not possibly so. Since taxation is so largely a question of policy, the legislature possesses the largest measure of discretion in these matters; and the courts will not' declare a tax statute void as a violation of the equal protection guaranty so long as the classification or selection made by it is based on a reason, even though in their opinion the reason is a poor one and the statute itself is unjust, the test being good faith, not wisdom.”

The dominant thought and in fact the determining factor in the matter of classification is that of reasonableness as opposed to arbitrariness, whim or caprice. This court had the question before it on more than one occasion and invariably followed the rule of reasonableness which seems to be universal in its application. In the case of Matthews et al. v. Conway et al., 179 La. 875, 155 So. 255, 257, it found that in imposing a tax on vehicles, the discrimination made between the kinds and uses of the vehicles, was not arbitrary, but was based on sound reason and it stated: “That is all that is demanded by the equal protection clause — and nothing more could be demanded by the due process clause — of the Fourteenth Amendment of the Constitution of the United States. The case is governed 'by the simple rule that where a tax affects alike all persons similarly occupied, and all property in the same classification, there is no denial of the equal protection of the law.”

There can be no doubt then that the legislature did not violate any constitutional provision by the mere fact of selecting certain classes of property or the property of certain classes for taxation in the proviso found in Act No. 260 of 1938 if it had a sound reason for doing so. The reason it had can readily be detected from the Act itself for we note in paragraph 4 of Section 1 that the purposes of the levee district “shall be the raising by taxation or otherwise a revenue to protect the lands therein from inundation or damage 'by floods or rain water; said taxation to be levied on the lands and other property in •the said district subject to taxation for levee purposes under Article XVI of the Constitution and laws of this State.” The article of the Constitution referred to provides for the maintenance of a levee system and authorizes the levy of an annual tax no.t to exceed one-half mill “on all taxable property throughout the State, to be applied exclusively to the maintenance and repair of levees.”

From the language of the proviso excluding a certain area from the limits of the said levee district, it is apparent that the purpose was to relieve from the burden of taxation as was otherwise required in the district, the land and property situated in the West Atchafalaya Spillway basin and which would derive no benefit from the levee system which the levee district ■had to maintain. It is common knowledge that in the use which was to be made of the spillway, lands and other property situated therein might well be rendered valueless and would no longer derive the benefit intended under the Act. However, in excluding the whole area, the legislature, in its wisdom, concluded that certain classes of property, such as that of railroads., pipelines, common carriers or other public utilities would not suffer the same fate, or at least not to the same extent as other property and therefore all of that property should be made to bear the burden of taxation. That, in our opinion, was a reasonable and legitimate exercise of its taxing power by the legislature and was by no means so arbitrary as to make the classi--fication invalid and unconstitutional.

We might well stop here and say that, the act 'being constitutional on its face, that disposes of this lawsuit. But from the testimony of plaintiff’s witness, McCuin, its property tax agent, another contention appears to have developed for, in answer to specific questions, he . states that the complaint is that plaintiff “was discriminated against in that some of its property was taxed and some wasn’t.”

It would seem that in assessing plaintiff’s property the assessor looked to the purpose for which it might be used and not to its kind and character. In other words, he assessed the property that was used for common carrier purposes and left off of the assessment roll that which was not.

The contention now made may well lead to plaintiff’s disadvantage as it may be that under a strict compliance with the provisions of Act No. '260 of 1938, all of its property, regardless of its use, should have been placed on the assessment roll because by its wording, the proviso, excluding from the levee district that property which was situated in the spillway area, specifically excepted from the exclusion the “rights of way and other property -belonging to railroads, pipe-lines, common carriers or other public utilities” and in 1944, when the Standard Oil Company owned these properties, it admittedly was a common carrier. (Italics ours.)

Assuming however that there is some merit in this contention, we are of the opinion that that is a question which addresses itself to the way in which a law that is constitutional was administered by the official charged with its administration, and before his action can result in a violation of the “due process clause” of the Federal Constitution or the “equality” and “uniformity” clauses of the State Constitution, it must -be shown that his action “was intentional, systematic, deliberate, persistent, habitual, fraudulent, and/or designed to violate fundamental constitutional principles, mere error in judgment or mistake -being insufficient. The burden of showing the illegal nature of the administrative action is upon the taxpayer, for the good faith of the tax officials and the validity of their action are presumed.” See 51 Am. Jur., Taxation, Sec. 170. There is no intimation that the action of the assessor in this case was of such nature as to make it result in a violation of any of the constitutional provisions referred to.

The defendant tax collector has answered the appeal asking that the judgment be amended by awarding ten per cent of the amount of the taxes paid, as attorney’s fees, the same being taxable as costs under the provisions of Act No. 170 of 1898, Act No. 1-6 of the Second Extra Session of 1934, Act No. 23 of the Second Extra Session of 1935 and Act No. 330 of 1938. He made no such demand in the lower court however, and the issue was not otherwise presented to and adjudicated in that court. This court being one of appellate jurisdiction, we cannot, under the circumstances, entertain the demand.

For the reasons stated, the judgment appealed from is affirmed at the costs of plaintiff-appellant.

MOISE, J., takes no part.

On Application for Rehearing

PER CURIAM.

The defendant-appellee urges in application for rehearing that this court should have given him a specific decree for attorney’s fees. This contention is based on the proposition that under, the law of this state his prayer for costs included attorney’s fees. If this proposition is correct, appellee is fully protected by the judgment of this court and of the district court giving him judgment for costs as prayed for. If it is incorrect, this court properly refused to entertain his demand. In either case nothing is presented for our consideration on a rehearing.


author: FOURNET, Chief Justice.

text:
    217 La. 175
    STATE v. JOSEPH.

      No. 39454.
    Supreme Court of Louisiana.
    March 20, 1950.
    Rehearing Denied April 24, 1950.
    Knowles M. Tucker, New Iberia, for appellant.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., L. O. Pecot, Dist. Atty., Franklin, Minos H. Armentor, Asst. Dist. Atty., New Iberia, for appellee.
   FOURNET, Chief Justice.

Clarence Joseph, Jr., prosecutes this appeal from his conviction on an indictment charging him with the murder of Louis Barras and his sentence to death, relying on four bills of exception. The first two were reserved when the trial judge overruled his objection to the admissibility of statements or alleged confessions made by him to certain officers, the first of these after his apprehension and while he was being transported to the parish jail at New Iberia soon after his arrest, and the second, an identical statement, made in the District Attorney’s office on the next day. The other two bills were reserved when the trial judge denied his motion for a new trial and overruled his motion in arrest of judgment.

Bill of Exception No. 1 merely states that the statement or so-called confession was “made under circumstances which make it not admissible in this case,” without detailing what those circumstances were; while the alleged basis of Bill of Exception No. 2 is “that said statement was made and obtained in violation of the provisions of the Criminal Code and of the ■Constitution of the State of Louisiana,” without detailing in what manner the articles of the Criminal Code and the Constitution were violated; but we understand from the per curiam of the trial judge and the argument made here by counsel for the defendant that the primary basis ■of these bills is that the so-called confessions were not free and voluntary.

In order to properly dispose of these two bills of exception we think it necessary to give a brief statement of the facts in their chronological order. Louis Barras was found dead as a result of a fracture of the skull caused by blows from a blunt instrument, on the 27th day of January, 1949, at about 6 o’clock in the morning, at the foot of a stair outside of the St. John sugar refinery where he had been employed as a night watchman. His gun and flashlight, which he customarily carried with him, were missing, and his watchman’s clock, which he also carried, had stopped .at 4:17 as a result of its being broken by blows. The Sheriff, State Police and •Coroner were immediately called, and in addition thereto many people were attracted to the scene. In the meantime a butcher from the nearby village of Parks had reported to the manager of the refinery that the company’s pick-up truck was wrecked in a ditch near his butcher shop, and he also advised that a hitch' hiker, a colored man, had sought a ride with him on the way. A description of the hitch hiker as a suspect and the probable killer was given wide publicity, and in order to make a search for this man, local persons volunteered to ride with the police in order to identify strangers and local people, and thereby make the hunt more effective.

While this search was going on, the defendant was apprehended midway between St. Martinville and New Iberia, in a taxi proceeding to New Iberia, by a member of the state police who, after placing handcuffs on him and searching him, removed the money he had on his person and a pistol (the flashlight was later found on the railroad tracks near Parks, where the defendant later said he had thrown it), then immediately brought him back to the scene. The manager of the refinery, after identifying the pistol taken from the accused as being the one usually carried by the deceased in the performance of his duties as night watchman, and upon failure of the accused to answer his question as to why he had killed the watchman, struck the accused with his fist, whereupon the officers in charge promptly rebuked the manager for his action and proceeded to take the accused to the New Iberia jail because of the condition of the local jail. It was while on the trip to New Iberia in the company of the five officers that the defendant, in answer to questions propounded to him by the officers, made the first statement or confession the admission of which forms the basis of the first bill of exception. The second bill was reserved to the ruling .of the trial judge admitting, over defendant’s objection, an identical confession made on the following day in the presence of Gilbert Ozenne, Sheriff of Iberia Parish, E. L. Resweber, Sheriff of St. Martin Parish, and Minos Armentor, Assistant District Attorney, in the office of the District Attorney at New Iberia.

According to the record, these statements or confessions are, substantially to the effect — that on the night of the killing the defendant drank some whiskey and gambled at cards in the town of New Iberia (where he was employed at times as a dishwasher or truck driver), and at about midnight, having lost his weekly pay of $17.02, borrowed 25?! from the operator of the place where he had gambled to play a game of pool. Upon leaving, he stole a bicycle from a yard nearby, and after riding it a short distance stole a car parked in a residential driveway and drove it St. Martinville; but upon finding the “night spots” closed decided to go to the village of Parks, which is a few miles north of St. Martinville— however, instead of taking the main highway which is on the west side of Bayou Teche he followed the road on the east side of the Bayou and got lost, and it was only when he reached the St. John refinery that he recognized his whereabouts; but in attempting to cross over to the main road he again followed the wrong road and found himself in the refinery yard, where he got bogged in a drainage hole in an attempt to turn around. It was while there bogged that the watchman, the murder victim, approached the car and informed the defendant that he was on private property. During the process of the watchman’s interrogation of the defendant it became clock-punching time, and the watchman informed the defendant that he would have to follow the watchman around the mill while he made his rounds, directing the defendant to precede him. The eight mill stations were visited in this manner, the remaining stations being on the outside, and after making the last mill station it was necessary to descend steps, whereupon the watchman allowed the defendant to follow him instead of precede him, as had been done up to that time. Upon reaching the end of these steep stairs, according to the defendant, the watchman told him that he, the watchman, did not know what to do with him, the defendant, and perhaps the best thing to do was just kill him, and placing his hand on his gun, began to turn around; but as he did so, according to the defendant, the latter spied a piece of iron pipe (a broken pump handle) lying on the stair railing, which he grabbed and with which he struck the watchman on the side of the head. The watchman fell, then turned on his back, and the defendant hit him again, and again, on top of the head, he says in self-defense. Taking the gun and flashlight from the body the defendant then stole the company’s pickup truck and continued on his way to Parks, where he wrecked the truck in a ditch. He set out on foot, tried unsuccessfully to hitch-hike a ride from a local butcher, and walked on to St. Martinville, where he obtained something to eat, drank two bottles of beer, and paid for this with a $20 bill. At about 8:00 a. m. he obtained a taxi for New I'beria but before reaching there was apprehended and arrested, and the gun, still in his possession, was taken from him as well as the money he had on him. He told the officer that he had thrown the flashlight on the railroad track near Parks (where it was later recovered).

The defendant is not contending here that the foregoing statement does not reflect what he said took place on that occasion; in fact, the record shows, and it is conceded by his attorney, that the statement substantially covers what the accused testified to when he took the stand in his own defense — claiming his acts were justified in that he acted in self-defense. But it is his contention that he is nevertheless entitled to a new trial because these statements or confessions were not freely and voluntarily made by him, in violation of the Constitution and the Code of Criminal Procedure.

In the Bill of Rights to the Constitution of 1921 is contained the provision that universally obtains in all countries where the common law prevails, that “No person under arrest shall be subjected to any treatment designed by effect on body or mind to compel confession of crime; nor shall any confession be used against any person accused of crime unless freely and voluntarily made.” Art. I, Sec. 11. In conformity therewith, the Legislature of 1928, in adopting a Code of Criminal Procedure, incorporated the following provisions in Articles 452 and 451, respectively: “No person under arrest shall be subjected to any treatment designed by effect on body or mind to compel a confession of crime,” and “Before what purposes [purports] to be a confession can be introduced in evidence, it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises” (brackets ours) and, as pointed out in the recent case of State v. Robinson, Jr., On Rehearing, No. 39,041 of the Docket of the Supreme Court, 215 La. 974, 41 So. 2d 848, 853: “It therefore follows that the admissibility of a confession in evidence is predicated upon the state’s establishing its free and voluntary character by proof that is direct and positive, and, under our jurisprudence, this fact must not only be established to the satisfaction of the trial judge out of the hearing of the jury but his ruling with respect thereto will not be disturbed on appeal unless clearly not supported by the evidence. Once in evidence, of course, it is for the jury to say what weight shall be accorded a confession.”

In the instant case this procedure was followed, the several officers before whom the confession was made having testified postitively and unequivocally that the confession had been made freely and voluntarily, without any inducement or duress. The accused took the stand in his own behalf when the hearing was being held with respect to the admissibility of the first confession before the trial judge, and although he testified that he was struck by the manager when taken to the scene of the crime, he did not state that he was influenced thereby in making the statement, nor did he otherwise state that he had been mistreated in any manner while in the custody of the police officers after leaving the scene or testify that he was threatened or made any promises by them; but merely claims that he was afraid because of “the attitude of everybody;” and when asked by his own counsel to explain, if he could, what he meant by that statement, he did not answer. On cross examination by the district attorney he stated that by “attitude” he meant remarks that were made at the mill and in the car while on his way to New Iberia, but when asked the question as to what those remarks were, answered: “I cannot remember most of them,” and when asked: “Can’t you remember one remark that was made to make you afraid?” answered: “I don’t think I can. * * * I can’t remember exactly how they were said.” With that statement the evidence on this bill was closed and the judge ruled the confession admissible — and, we think, correctly so.

Counsel’s argument that this so-called confession cannot be said to be free and voluntary because made while the accused was handcuffed, and through fear of mob violence, is clearly without merit. As pointed out by Marr in his work entitled Criminal Jurisprudence (Second Ed., Sec. 540, p. 829), “The mere fact that the confession was made by accused while under arrest and manacled * * * is not sufficient ground per se to take from the confession the character of being free and voluntary, whether made to * * * officers of the law, to persons in authority, or to the persons arresting or holding accused in custody * * See, also, State v. McGuire, 146 La. 49, 83 So. 374; State v. White, 156 La. 770, 101 So. 136; State v. Holmes, 205 La. 730, 18 So.2d 40. And there is no evidence of mob violence. As above demonstrated, the defendant when testifying before the trial judge on the admissibility of the confession, did not claim that in making the statement to the officers he was influenced by fear of mob violence. The record shows that the accused appeared calm and quiet at all times. The people who had gathered about the scene after discovery of the body, both colored and white, some assisting in the search as above stated, dispersed in an orderly manner after the departure of the officers with the accused. Some returned to their homes in St. Mar-tinville and a few, in two or three cars, followed as far as New Iberia, but there is not a scintilla of evidence suggesting even a threat of violence.

As previously pointed out, Bill of Exception No. 2 was reserved when the trial judge admitted, over objection, the second statement or alleged confession made by the accused in the district attorney’s office on the following day, which also failed to .point out the basis for the conclusion that the confession was not free and voluntary or that it was obtained in violation of the Constitution or Code of Criminal Procedure; however, the objection appears to be two-fold: (1) Sheriff Ozenne "of Iberia Parish threatened the accused, by stating to him in the presence of other persons, “there is more than one way to get it out of him,” and (2) the defendant' was held incommunicado from the time of his arrest until the confession was made.

The trial judge, in disposing of this bill of exception, aptly and properly stated in his per curiam:

“It appears from the evidence that he was questioned briefly on the day of his arrest in the Sheriff’s Office, and the next day, in the District Attorney’s Office. If the threat was made on the day of his arrest [as stated by the accused], it was made in the Sheriff’s Office, not the District Attorney’s Office.” (Brackets ours)

“But, however it may be, the State has produced all of the witnesses that were there at both places, and all of them emphatically denied that Sheriff Ozenne made such a statement in their presence. Sheriff Ozenne is equally as emphatic in his denial.

“The circumstances indicate that it was most improbable that such a statement was made. This is so because the accused on the previous day had confessed in the presence of both Sheriffs who were there at his second confession. The substance of both confessions were practically identical. The accused did not implicate himself any more on the second day than he had on the first. There appeared, therefore, no reason why he should be coerced at that time.

“Furthermore, if the threat was made, it does not seem to have influenced the accused very much, for he did not say that it put him in fear, or influenced his decision to make the said confession.

“On the second point raised by the defendant, it is not shown that holding him incommunicado from the time of his incarceration, about 9:30 A.M. on the day of his arrest, until about 2:30 P.M. on the next day, had any influence on him. During that period he did not ask to see anyone, nor did anyone ask to see him. The fact that his mother could not get to see him, without, perhaps, seeking permission from the Sheriff himself, during the first five days of his incarceration, cannot possibly influence what took place during the first or second day of his detention.

“This is shown very forcefully 'by the fact that the accused at his trial took thewitness stand and voluntarily told the same story to the jurors who sat on his case. He feels that his act was justified by the facts he relates. He therefore has no hesitancy in relating them.”

We therefore conclude that the trial judge properly admitted this statement, as well as the one given to the officers on the previous day and which forms the basis for the first bill of exception. We think the evidence conclusively shows that the statements were freely and voluntarily made and were in no manner induced by promises or threats, or otherwise. Moreover, these statements are exculpatory. Obviously, the accused in making them was motivated primarily in seeking to explain his predicament when apprehended so shortly after the body of the watchman was discovered, in possession of the weapon of the deceased on his person — and thereupon made the statement which he thought would justify his actions. In fact, as pointed out by the trial judge, his sole defense on the trial of the case was that he struck and killed the deceased in self-defense.

The third bill was reserved to the overruling of defendant’s motion in arrest of judgment, and, as pointed out by the trial judge in his per curiam to that bill, “No defect patent on the face of the record was pointed out, nor was argument made in support of that motion.” For that reason it was properly denied. La. Code of Crim. Procedure, art. 517.

The fourth bill was reserved to the denial of a motion for a new trial, based on Bills of Exception Nos. 1 and 2, above disposed of, and therefore presents nothing new for us to review.

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