source: Caselaw Access Project

author: BLANCHE, Justice. DIXON, Chief Justice

license: Public Domain

text:
    STATE of Louisiana v. UNION TANK CAR COMPANY.
    No. 82-WA-1008.
    Supreme Court of Louisiana.
    March 25, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Warren J. Hebert, Aubrey Ward, Asst. Dist. Attys., for plaintiff-appellant.
    Frank S. Craig, III, Frank J. Gremillion, Baton Rouge, for defendant-appellee.
   BLANCHE, Justice.

Union Tank Car Company is a corporation engaged in the sale, lease and repair of tank cars. In the spring of 1981, a tank car was sent to the Union Tank Car facilities in East Baton Rouge Parish for repairs and cleaning. While Union Tank Car personnel were steam-cleaning the car, the steam interacted with residual chemicals in the interior of the car, causing an extremely offensive smell to escape into the atmosphere.

As a result of this activity, Union Tank Car was charged by grand jury indictment with violation of the Louisiana Environmental Affairs Act in that it “willfully and knowingly discharged, emitted and disposed of an air contaminant in violation of Sections 4.4, 4.23, 4.74, 17.10, 17.11, and 8.2 of the Air Quality Regulations.” Union Tank Car filed a motion to quash the indictment on two grounds. First, Union Tank Car alleged that Part III of the Environmental Affairs Act, the Louisiana Air Control Law, represents an unconstitutional delegation of the legislature’s crime defining authority to an administrative agency (the Environmental Control Commission), as a violation of any regulation adopted by the Commission may result in criminal sanctions under La. R.S. 30:1073(F). Secondly, Union Tank Car alleged that the statutes and regulations of the Louisiana Air Control Law are unconstitutionally vague.

Following a hearing on the motion, the trial judge quashed the indictment against Union Tank Car Company. In doing so, the judge ruled that the Louisiana Air Control Law represents an unconstitutional delegation of legislative authority and that the statutes and regulations of the Air Control Law are unconstitutionally vague. The State has appealed this ruling under Article V, § 5 of the Louisiana Constitution of 1974, which provides that a case shall be appealable to this court if a law or ordinance has been declared unconstitutional.

Union Tank Car Company is charged in this case with the release of an extremely offensive smell in violation of the Louisiana Environmental Affairs Act. La.R.S. 30:1085 and 1087 are the applicable prohibitory sections of Part III of that act, the Louisiana Air Control Law. La.R.S. 30:1085 provides that “[n]o person shall conduct any activity which results in the discharge of air contaminants without the appropriate permit or license as required under the regulations of the commission adopted pursuant to this Part.” La.R.S. 30:1087 also states that “[n]o person shall: (A) Discharge air contaminants into the air of this state in violation of the regulations of the commission or the terms of any permit, license, or variance issued hereunder. (B) Violate any rule or regulation adopted by the Commission under this Part.” As part of the general enforcement scheme for the entire Environmental Affairs Act, La. R.S. 30:1073(F)(2) provides that “[a]ny person who willfully or knowingly discharges, emits, or disposes of any substance in contravention of any provision of this Chapter, of the regulations, or of the permit or license terms and conditions in pursuance thereof, when the substance does not endanger or could not endanger human life or health, shall be guilty of a misdemeanor and shall be fined not more than twenty five thousand dollars per day of violation and costs of prosecution, or imprisoned for not more than one year, or both.”

Through the above-quoted statutes, the legislature has made discharging air contaminants into the atmosphere a crime, punishable by the penalties prescribed under La.R.S. 30:1073(F). The question which is presented for our resolution is whether, consistent with constitutional principles, these statutes can form the basis óf a criminal prosecution.

I.

Union Tank Car Company first contends that the Louisiana Air Control Law is unconstitutional because it delegates legislative power to the Environmental Control Commission without specifying sufficient standards or guidelines within which the Commission may act.

La.R.S. 30:1084(B) provides:

The commission shall have the following powers and duties:
(1) To adopt and promulgate rules and regulations consistent with applicable state and federal law, and the general intent and purposes of this Part for the maintenance of air quality within the state of Louisiana.

It is a well-established rule of constitutional jurisprudence that although the legislature may not delegate purely legislative power, it may declare its will, and, after fixing a primary standard, devolve upon administrative officers the power to “fill up the details” by prescribing administrative rules and regulations. United States v. Shreveport Grain and Elevator Co., 287 U.S. 77, 53 S.Ct. 42, 77 L.Ed. 175 (1932). In other words, although the legislature may not delegate the legislative power to determine what the law shall be, it may delegate to administrative boards and agencies of the state the power to ascertain and determine the facts upon which the laws are to be applied and enforced. State v. Rodriguez, 379 So.2d 1084 (La.1980); State v. Guidry, 142 La. 422, 76 So. 843 (La.1917). As explained by this court in the case of Schwegmann Brothers Giant Super Markets v. McCrory, Commissioner of Agriculture, 237 La. 768, 112 So.2d 606, 613 (La.1959):

So long as the regulation or action of the official or board authorized by statute does not in effect determine what the law shall be, or involve the exercise of primary and independent discretion, but only determines within prescribed limits some fact upon which the law by its own terms operates, such regulation is administrative and not legislative in its nature.

Consistent with this principle, Louisiana courts have upheld the constitutionality of statutes delegating broad powers to administrative officers to determine the details of a legislative scheme where those statutes express a clear legislative policy, and contain sufficient standards for the guidance of the administrative official empowered to execute the law. Of course, the standards which must accompany such a grant of power must not be unlimited, unreasonable, or permit arbitrary action by the administrative body. This requirement is implicit in the general rule prohibiting the delegation of legislative power, and is affirmed in numerous cases decided by this court. State v. Rodriguez, 379 So.2d 1084 (La.1980); State v. Morgan, 238 La. 829,116 So.2d 682 (La.1960); National Bank of Commerce v. Louisiana State University, 206 La. 913, 20 So.2d 264 (1944); City of Baton Rouge v. Shilg, 198 La. 994, 5 So.2d 312 (1941).

As announced by this court in the case of State v. Broom, 439 So.2d 357 (La.1983), authored by Justice Calogero and handed down this date, the determination of whether the delegation of legislative authority to an administrative agency adequately protects against the exercise of arbitrary power by the administrative body and therefore effects a constitutional delegation of legislative authority involves a two prong inquiry. Not only must we consider the sufficiency of the standards which accompany such a delegation, but we must also look for the presence of adequate procedural safeguards to protect against an abuse of discretion by those to whom the power is delegated.

Accordingly, the determination of whether the Louisiana Air Control Law effects a constitutional delegation of legislative power depends upon whether that statute contains a clear expression of legislative policy coupled with sufficient standards to guide in the execution of that policy, and is accompanied by adequate procedural safeguards to protect against abuse of discretion by the Environmental Control Commission.

The policy provision of the Louisiana Air Control law is found at La.R.S. 30:1082. That statute provides:

The legislature finds and declares that the purity of the air in the environment is a matter of vital concern to the welfare of the people of the state and to promote an environment free from pollution that jeopardizes the health and welfare of the citizens of the state, consistent with sound policies for employment and industrial development, it is necessary to establish an efficient method for the regulation and control of discharge of contaminants.

The policy provision of the Louisiana Air Control Law is quite clear in its intention. Its goal is to promote an environment free from pollution that jeopardizes the health and welfare of the citizens of the state. We consider this to be a reasonable governmental policy established in the interest of public health, safety, and welfare. We are furthermore of the opinion that this statement of purpose and intent establishes a definite policy of the State which permits an administrative body to make rules and regulations necessary for the administration and enforcement of that policy.

The policy provision in this case is analogous to that challenged and upheld in Johnson v. Pearce, 313 So.2d 812 (La.1975), a case in which the legislature had delegated authority to the Livestock Sanitary Board to promulgate rules and regulations necessary to combat the spread of brucellosis among cattle. In Johnson, we held that the control and eradication of a disease among animals was a proper legislative goal. We also noted that “[o]nce the legislature has defined its policy ... the State, acting under its police power to protect the health, welfare and safety of the people, may confer upon administrative officers or bodies the power to adopt the rules and regulations to effectuate the legislative will.” Johnson v. Pearce, supra at p. 819.

Under the Johnson rationale, the policy declaration of the Louisiana Air Control Law found at La.R.S. 30:1082 can be sustained as a valid exercise of the State’s police power to protect the public health. As such, it is clearly adequate to support a delegation of legislative authority.

Since the legislature has sufficiently enumerated its intent with respect to air pollution control in La.R.S. 30:1082, we must now determine whether the standards accompanying this declaration of legislative intent give adequate guidelines to the Environmental Control Commission in promulgating the necessary regulations for the control of air quality. In testing the constitutional sufficiency of the standards prescribed in the Air Control Law, regard must be given to the purpose and scope of the act, the subject matters covered therein, the duties prescribed, and the broad or narrow powers granted. Bortz Coal Co. v. Air Pollution Commission, 2 Pa.Cmwlth. 441, 279 A.2d 388 (Pa.1971).

In this connection, we must remember that an act of the legislature is presumed to be legal until it is shown to be unconstitutional, and that in construing statutes courts must endeavor to give an interpretation that will give them effectiveness and purpose, rather than one which makes them meaningless. Johnson v. Sewerage Dist. No. 2 of Caddo Parish, 239 La. 840, 120 So.2d 262 (La.1960); Lachney v. Motor Parts & Bearing Supply, Inc., 357 So.2d 1277 (La.App. 3rd Cir.1978).

We must also take cognizance of the fact that the judicial approval accorded to the practice of conferring ministerial powers upon administrative agencies is a product of the complex economic and social problems modern legislation must address. As noted by the U.S. Supreme Court in the case of American Power and Light Co. v. S.E.C., 329 U.S. 90, 105, 67 S.Ct. 133, 142, 91 L.Ed. 103 (1946):

The legislative process would frequently bog down if Congress were constitutionally required to appraise beforehand the myriad situations to which it wishes a particular policy to be applied and to formulate specific rules for each situation. Necessity therefore fixes a point beyond which it is unreasonable and impracticable to compel Congress to prescribe detailed rules ...

This is especially true in a field as complex and diverse as that of environmental law. The area is in its infancy, is yet inexact, and consequently is progressively changing. Other states have taken note of the unusual nature of environmental law in considering the constitutionality of statutory prohibitions in this area. As explained by the Illinois appellate court in the case of Southern Illinois Asphalt Co., Inc. v. Environmental Protection Agency, 15 Ill.App.3d 66, 303 N.E.2d 606, 611 (Ill.1973):

[We] are involved with air pollution control, a subject which is fairly new to the law and yet more and more important to the public welfare. By its very nature it defies the establishment of precise standards. It involves a highly specialized science, and yet covers an exceedingly broad spectrum. It is complex and not reducible to easy equations, particularly in view of our constantly growing knowledge and understanding of our environment and its effect upon our lives and our very existence.

Because statutes directed at the control of air pollution are intended to encompass infinitely variable environmental conditions, flexibility and adaptability are required in meeting factual situations which could not possibly be foreseen by the legislature. State v. Braun, 378 A.2d 640 (Del.1977). Thus, we aressatisfied that statutes in the area of environmental law need not address each and every factual situation in which air pollution might be involved. Instead it is sufficient if the statutes be general in nature but at the same time retain standards of sufficient clarity to put a'violator on notice.

Turning to an examination of the provisions of the Louisiana Air Control Law, we conclude that the standards prescribed in that law, although broad, are nevertheless adequate to support a constitutional delegation of authority.

La.R.S. 30:1085 and 1087 direct that the discharge of air contaminants into the air of this state is illegal except where permits, licenses or variances are applicable. La. R.S. 30:1054(12) defines what is meant by a “discharge,” while La.R.S. 30:1083(1) defines the term “air contaminants.” La. R.S. 30:1083(2) then goes on to address what is intended to be the focus of the statutory prohibitions: the emission of “undesirable levels” of air contaminants.

While it is true that La.R.S. 30:1085 and 1087 proscribe the discharge of all contaminants, it is apparent from looking to the Air Control Act as a whole that the aim of the legislation is the prevention of emissions of “undesirable levels” of contaminants. It is well-settled that the standards which must accompany a delegation of legislative authority need not necessarily be set forth in express terms if they might reasonably be inferred from the statutory scheme as a whole. State v. Arizona Mines Supply Co., 107 Ariz. 199, 484 P.2d 619 (Ariz.1971); and that courts will not impute meanings which will lead to absurd results or extend statutes to situations which the legislature never intended should be covered thereby. Smith v. Town of Vinton, 209 La. 587, 25 So.2d 237 (La.1946). Thus, the failure of the legislature to use the phrase “undesirable level” in 30:1085 and 1087 does not defeat the statutory scheme, especially where it is clear from the Air Control Act itself that the legislature did not intend to proscribe the discharge of all air contaminants, however insignificant in quantity, but only those contaminants which reach “undesirable levels.”

Under La.R.S. 30:1083(2), an “undesirable level” of air contaminants is the presence in the atmosphere of such quantities and concentrations of contaminants as to appreciably injure human life beyond inconvenience, or as to materially injure or interfere with reasonable use of animal or plant life or property. Clearly, these definitions give ample indications of the various factors to be considered by the Environmental Control Commission in promulgating its regulations and in issuing permits, licenses, and variances in accordance with the authority granted the Environmental Control Commission in La.R.S. 30:1084.

In summary, it is evident that through the statutes of the Air Control Law, the legislature has devised a scheme which provides intelligible standards sufficient to guide the Environmental Control Commission in its enforcement of the legislative will. The goal of the legislation is the protection of the public health and welfare. R.S. 30:1082. The method of enforcement is the prohibition of the discharge of air contaminants except where permits licenses, or variances are applicable. R.S. 30:1085 and 1087. The primary focus of the prohibition is aimed at preventing discharges which reach “undesirable levels.” R.S. 30:1083(2). Clearly, the Air Control Law provides sufficient guidelines and standards to prevent arbitrary action by the administrative agency.

In addition to these explicit statutory standards, the legislature has incorporated the full panoply of procedural safeguards invoked by the Administrative Procedure Act, La.R.S. 49:951-970, into the Louisiana Environmental Affairs Act, thereby insuring ample protection against arbitrary action by the Environmental Control Commission in adopting the regulations. La.R.S. 30:1066; State v. Broom, 439 So.2d 357 (La.1983).

Therefore, considering the expressed policy and standards along with the enacted procedural safeguards, we conclude that the Air Control Law does not involve an unconstitutional delegation of legislative authority.

II.

Union Tank Car Company further contends that the regulations it is charged with violating are vague, uncertain, and indefinite, and therefore, unconstitutional. The indictment charges Union Tank Car Company with violating LAC 14-11:4.4, 4.23, 4.74, 17.10, 17.11 and 8.2. Of these regulations, only LAC 14-11:17.10,17.11 and 8.2 contain prohibitory language.

LAC 14-11:8.2 and 17.10 are virtually identical and read as follows:

No person or persons owning, leasing, renting or controlling the operation of any source of air contaminants shall cause, suffer, allow, or permit emissions from this source of air contaminants which will result in “undesirable levels” as defined in Section 4.74 herein in the atmosphere over properties other than that of the person owning, leasing, renting or controlling the operation of such source.

LAC 14-11:4.74 defines the term “undesirable levels” in language which substantially tracks that of La.R.S. 30:1083(2). It provides:

Undesirable levels of the items defined in Section 4.4 hereof is the presence in the atmosphere, as limited by R.S. 40:2204(C), of one or more of such items or combinations thereof in quantities and concentrations and of such characteristics, properties, and duration as to appreciably injure human life beyond inconvenience or in quantities and concentrations and of such characteristics, properties, and duration as to materially injure or interfere with the reasonable use of animal or plant life or property. In determining whether contaminants create undesirable levels the Department may use appropriate information and data which may in-elude but not be limited by acceptable national standards, published “safe limit” values and other such information and relationships which may provide a reasonable assessment of the conditions which exist for a particular situation.

The third prohibitory regulation involved is LAC 14-11:17.11. It requires:

Pursuant to 6.1 the Department must be notified promptly of emergency occurrences or upsets that will substantially increase emissions. Immediate telephone notification should be followed promptly by written notification, within 7 calendar days, giving details of the occurrence and remedial actions. Timely and appropriate follow-up reports should be made detailing the methods or procedures to be used to prevent similar atmospheric releases. Such notification does not imply the Technical Secretary will automatically grant an exemption to the source(s) of excessive emissions.

Union Tank Car Company contends that there is an ambiguity in these regulations which poses constitutional problems. We agree.

The constitutional requirement of definiteness derives from the due process clauses of the United States and Louisiana Constitutions, and from Article I, § 13 and 16 of the 1974 Louisiana Constitution. Under these provisions, in order to pass constitutional muster, a criminal statute must meet two requirements. First, it must give adequate notice to individuals that certain contemplated conduct is proscribed and punishable by law. Secondly, it must provide adequate standards for those charged with determining the guilt or innocence of an accused. State v. Dousay, 378 So.2d 414 (La.1979).

In connection with the requirement of adequate notice, this court has held that a penal statute must describe unlawful conduct with sufficient particularity and clarity that ordinary men of reasonable intelligence are capable of discerning its meaning and conforming their conduct thereto. State v. Baron, 416 So.2d 537 (La. 1982); State v. Dousay, 378 So.2d 414 (La. 1979); State v. Payton, 361 So.2d 866 (La. 1978). Likewise, the requirement of adequate standards for ascertaining guilt mandates that a criminal statute mark boundaries “sufficiently distinct for judges and juries to administer the law in accordance with the legislative will.” City of Baton Rouge v. Norman, 290 So.2d 865, 868 (La. 1974). As explained by this court in the case of State v. Dousay, 378 So.2d 414, 417 (La.1979):

The constitutional requirement of definiteness is satisfied when the language of a criminal enactment ‘has a generally accepted meaning such that a person of ordinary intelligence would be given fair notice of what conduct is forbidden’, State v. Defrances, 351 So.2d 133, 135 (La.1977), or when ‘the crucial words [or] phrases in the criminal statute have a fixed and definite meaning for the person of ordinary intelligence.’ State v. Cloud, 248 La. 125, 130, 176 So.2d 620, 622 (1965). When, as here, administrative regulations are accompanied by criminal sanctions, the United States Supreme Court has stated that ‘businessmen must not be left to guess the meaning of regulations.’ United States v. Mersky, 361 U.S. 431, 441, 80 S.Ct. 459, 465, 4 L.Ed.2d 423, 431 (1960).

The criminal code itself requires that penal statutes must be strictly construed and cannot be extended to cases not included within the clear import of their language, and that nothing is a crime which is not clearly and unmistakably made a crime. La.R.S. 14:3, 14:7, State v. Truby, 211 La. 178, 29 So.2d 758 (La.1947). The rules of strict construction applicable to the interpretation of penal statutes are also required in the interpretation of penal regulations. United States v. Mersky, 361 U.S. 431, 80 S.Ct. 459, 4 L.Ed.2d 423 (1960); State v. Dousay, 378 So.2d 414 (La.1979).

The specific provisions which are challenged by Union Tank Car Company as being unconstitutionally vague are LAC 14-11:4.74, the regulation defining “undesirable levels” of air contaminants, and LAC 14-11:17.11, the regulation requiring notification of emergency emissions. Our review of these provisions leads us to conclude that the challenged regulations fail to inform those to whom they are addressed of a proscribed standard of conduct so that men of common intelligence must necessarily guess at their meaning and differ as to their application.

In LAC 14-11:4.74, the words which are critical to a determination of vagueness are “appreciably injure,” “beyond inconvenience,” “materially injure or interfere,” and “reasonable use.” In LAC 14-11:17.11, the words challenged as vague are “substantially increase.” These terms are no more definite in their context than the words “usual,” “reasonable,” and “proper” struck down by this court as vague in State v. Dousay, 378 So.2d 414 (La.1979). Likewise, they provide no more definite standards by which criminal conduct might be judged than the words “any immoral sexual purpose” found to be unconstitutionally vague in State v. Defrances, 351 So.2d 133 (La. 1977). The challenged words are in fact analogous to the following terms adjudged to be vague by the United States Supreme Court because they have no commonly accepted or recognized meaning: “real value”, Collins v. Kentucky, 234 U.S. 634, 34 S.Ct. 924, 58 L.Ed. 1510 (1934); “unjust or unreasonable rate,” United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516 (1921); and “current rate of wages,” Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926).

The vagueness of LAC 14-11:4.74 and 17.11 becomes particularly evident when one considers the following.

LAC 14-11:4.74 is the administrative definition of “undesirable levels” of air contaminants and the focus of the prohibitions in LAC 14-11:8.2 and 17.10. The definition is substantially similar to that adopted by the legislature at La.R.S. 30:1083(2). LAC 14-11:4.74 defines “undesirable levels” as the presence in the atmosphere of air contaminants in such quantities and of such duration as to “appreciably injure human life beyond inconvenience” or “materially injure or interfere with the reasonable use of animal or plant life or property.” Although such a definition provides sufficient direction to the administrative body to support the initial delegation of authority, when applied as the penal regulation itself, its language raises immediate questions. What constitutes injury beyond inconvenience? Is an odor or other emission “inconvenient” when it offends some but not all people? Must there be a provable and ascertainable injury or is it sufficient only to prove that the injury is more than inconvenient to any one person? At what point does an injury go beyond inconvenience? Health authorities tell us that cigarette smoking injures human life. Certainly this injury is more than inconvenient to many people. Is cigarette smoking an offense under the regulation?

People are affected differently by different smells. To some, one kind of smell will seem intolerable, while to others that same smell may not even be objectionable. Obviously, the meaning and import of LAC 14-11:4.74 will differ from person to person, place to place, and time to time.

The ambiguity inherent in this definition of “undesirable levels” is compounded by the fact that the criminal enforcement of the regulation requires the application of a quantitative standard to determine culpability. LAC 14-11:4.74 will be violated only when a certain quantity of a particular contaminant produces the effect proscribed in the regulation. Yet what standards of measurement are to be used to determine how much smell is prohibited? LAC 14-11:4.74 simply provides: “In determining whether contaminants create undesirable levels the Department may use appropriate information and data which may include but not be limited by acceptable national standards, published ‘safe limit’ values and other such information and relationships which may provide a reasonable assessment of the conditions which exist for a particular situation.” What are “acceptable national standards, published ‘safe limit’ values and other such information”? Acceptable to whom? Published by whom? Obviously, the regulation fails to set specific limits for emissions so that a defendant will know in advance what conduct is proscribed. Instead the regulation is worded in such a way that its violation amounts to a mere conclusion on the part of the judge or jury without any facts upon which that conclusion might be justified. The regulation permits a court to decide arbitrarily the quantum of odor required to visit conviction and to impose a criminal penalty on a defendant.

The requirement in LAC 14-11:17.11 that prompt notice be given of emergency occurrences that will “substantially increase emissions” is likewise vague and uncertain. Does the term “substantially increase” include those instances in which an emergency occurrence results in a doubling of a particular emission from a source, although the amount emitted remains within the source’s permitted levels? Or is it necessary that the source’s permitted emission level be violated? Is it necessary that the “substantial increase” result in an “undesirable level”? No definition or explanation is provided.

In short, it is evident that the regulations of the Louisiana Air Control Law which Union Tank Car Company is charged with violating are unconstitutionally vague. Those regulations fail to afford a defendant adequate prior notice of what conduct is prohibited and also fail to provide adequate standards by which a judge or jury may determine guilt or innocence.

While other regulations do provide very detailed and specific emission limitations for various other types of air pollutants, as well as providing substantial corn-prehensible regulations with regard to the emission technologies to be utilized, LAC 14-11:4.74 and 17.11 are generally worded and not subject to definitely ascertainable measurement. Environmental legislation is not exempt from the due process requirement of definiteness, especially where serious criminal sanctions are involved.

Therefore, we hold that while the standards set forth in the Air Control Law are sufficient to effectuate a constitutional delegation of authority, the regulations Union Tank Car Company is charged with violating, LAC 14-11:17.11, 17.10, 8.2, and by reference, 4.74, fail to adequately inform potential defendants of what conduct is prohibited by law. Accordingly, we affirm the trial court’s finding that the regulations cited in the indictment are unconstitutionally vague and affirm the judgment quashing the indictment.

DECREE

For the reasons assigned, the ruling of the trial court quashing the indictment against Union Tank Car Company is hereby affirmed.

AFFIRMED.

DIXON, C.J., concurs with reasons.

WATSON, J., concurs in the result.

DIXON, Chief Justice

(concurring).

I respectfully concur in the result, but would hold the entire scheme an unconstitutional delegation of legislative authority, violative of Article II, Section 2 of the Louisiana Constitution.

The majority recognizes the rule that the legislature may delegate enough law-making power to administrative bodies to “fill up the details” with rules and regulations, and then abandons the requirement that the legislature must, indeed, establish standards within which the administrative body is to function as the lawgiver.

Instead of finding standards within the statutory authorization to make law, the majority finds a “policy” (pure air is a vital concern) then a “goal” (to promote a pollution-free environment) which is a “reasonable governmental policy.”

“Policies” are not “standards.”
No standards are noted in the statute.

The full legislative power to rule and regulate the pollution of the environment, consistent with industrial development, is abdicated in favor of an administrative agency, which now writes the laws designed to tell us what are environmental crimes.

Our Constitution differs from the federal Constitution, and is designed to free this state from the morass of administrative regulation which makes it more and more difficult for business and industry to know when it is athwart of the law.

      . The indictment actually charges Union Tank Car Company with violation of La.R.S. 30:1073(F) of the Louisiana Environmental Affairs Act. This is the wrong statute, as La.R.S. 30:1073(F) is merely a penalty section establishing the sanctions for violation of the substantive provisions of that act. It appears that the State intended to charge Union Tank Car with violation of the provisions of the Louisiana Air Control Law, La.R.S. 30:1081-1088. Union Tank Car Company notes this fact in brief, but dismisses it as being of no consequence to the resolution of the present issues. Accordingly, we will treat this case as if Union Tank Car is properly charged with violating the substantive provisions of the Louisiana Air Control Law, La.R.S. 30:1085 and 1087.

      . For examples of cases in which the delegation of legislative authority to administrative boards has been upheld see Johnson v. Pearce, 313 So.2d 812 (La. 1975); City of Lake Charles v. Wallace, 247 La. 285, 170 So.2d 654 (La.1965); Baton Rouge Waterworks Co. v. Louisiana Public Service Commission, 156 La. 539, 100 So. 710 (La. 1924).

      . La.R.S. 30:1054(12) provides:
      “Discharge” means the placing, releasing, spilling, percolating, draining, pumping, leaking, seeping, emitting or other escaping of pollutants into the air, waters, subsurface water or the ground as the result of a prior act or omission; or the placing of pollutants into pits or drums, barrels or similar containers under conditions and circumstances that leaking, seeping, draining or escaping of the pollutants can be reasonably anticipated.

      . La.R.S. 30:1083(1) states:
      “Air contaminant” means particulate matter, dust, fumes, gas, mist, smoke, or vapor, or any combination thereof produced by other than natural processes.

      . The present case is clearly distinguishable from the situation presented to this court in State v. Rodriguez, 379 So.2d 1084 (La. 1980). In Rodriguez, the Secretary of the Department of Health and Human Resources was mandated by statute to add a drug to its list of controlled dangerous substances whenever the federal Drug Enforcement Administration classified that drug as a controlled dangerous substance. No independent evaluation of the drug was to be conducted on the state level. Consequently the statute at issue contained no standards for testing the characteristics of the drugs to be outlawed. That scheme was struck down by this court as constituting an unconstitutional delegation of legislative authority to the federal Drug Enforcement Administration.
      Such a scheme is radically different from that set up in the Louisiana Air Control Law. The statutes of the Air Control Law clearly set forth the powers and procedures under which the ECC is to effectuate the legislative policy and provide guidance as to what the regulations promulgated by the ECC are to achieve. Thus, there is no unconstitutional delegation of legislative authority.

      . The other regulations cited in the indictment, LAC 14-11:4.4 and 4.23, are definitional and not integral to the resolution of the present issues. They provide as follows:
      4.4 Air Contaminants. Particulate matter, dust, fumes, gas, mist, smoke, or vapor, or any combination thereof produced by process other than natural.
      4.23 Emission. A release of air contaminants into the outdoor atmosphere.

      . For example, LAC 14-11:18.2 prohibits the emission of smoke exceeding the density specifications of No. 1 on the Ringelmann Smoke Chart. There is no evidence that a similar specificity cannot be achieved with regard to levels of odor emissions.


author: CALOGERO and LEMMON, Justices,

text:
    STATE of Louisiana v. Henry WILLIAMS, Jr.
    No. 83-K-1694.
    Supreme Court of Louisiana.
    Oct. 7, 1983.
   Granted. The ruling of the Court of Appeal, 434 So.2d 585, is reversed and the sentence imposed by the district judge is reinstated. R.S. 14:52 sets only a maximum fine, not a minimum. State v. Telsee, 425 So.2d 1251 (La.1983), is not applicable. Increasing a lawful sentence chills the right to appeal.

CALOGERO and LEMMON, Justices,

concurring.

When the defendant appeals the exces-siveness of the sentence, the appellate court may not increase the severity of the sentence.


author: PER CURIAM.

text:
    Linda Vincent WILKINSON, Ind., et al. v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 83-C-1678.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
   PER CURIAM.

The writ application represents and the Court of Appeal opinion, 434 So.2d 1155, confirms that both the trial court and the Court of Appeal declined to consider evidence as to contributory negligence, which was alleged as a defense but not particularized. Relator further represents that both defendant and plaintiff proffered considerable evidence on this issue.

Since it appears that the proffered evidence raises a serious question as to “the merits of the action”, the trial court erred in failing to allow the pleadings to be amended and consider the evidence, after offering the objecting party the opportunity to move for a continuance if needed. See LSA-C.C.P. art. 1154.

Accordingly, the judgment of the Court of Appeal is vacated and set aside, and the case is remanded to the Court of Appeal to decide the case on-the basis of the entire record, including the proffered evidence. Of course, if, it appears that justice requires, the Court of Appeal may remand the matter to the trial court for the taking of additional evidence.

Accordingly, the writ is granted with the foregoing order.


author:
DIXON, Chief Justice.

      BLANCHE, Justice

text:
    STATE of Louisiana v. James C. LOCKWOOD.
    No. 82-KA-1674.
    Supreme Court of Louisiana.
    Oct. 17, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John F. Rowley, Dist. Atty., Paul Katz, Abbott Reeves, Asst. Dist. Attys., for plaintiff-appellee.
    William L. Crull, III, Dymond, Crull & Castaing, New Orleans, for defendant-appellant.
   DIXON, Chief Justice.

Defendant was arrested and charged with aggravated crime against nature, having been accused of engaging in oral-genital sex with two eleven year old boys. The defendant pleaded guilty to both counts, and a presentence investigation was ordered. Upon learning the contents of the presentence investigation report, defendant filed a motion to traverse presentence investigation and report and an application for supplemental presentence investigation, pointing out fourteen specific errors or omissions.

The trial court denied defendant’s motion and application, denying defendant an opportunity to refute or explain materially false or invalid information contained in the PSI report and read by the court. The court then sentenced defendant to serve two years with the Department of Corrections. Defendant appealed and this court vacated the sentence and remanded for traverse of the investigation and resentencing in the light of the traverse hearing. State v. Lockwood, 399 So.2d 190 (La.1981).

The trial court held a hearing on the motion to traverse, and denied defendant’s application for supplemental presentence investigation. That court then made its previous two year sentence executory and continued defendant on bond. Defendant then appealed to this court.

Defendant acknowledges that he has no constitutional or other right to demand a presentence investigation. That investigation is conducted at the option of the court. C.Cr.P. 875 A(l). He contends correctly, however, that if a PSI is conducted, and a report compiled, he is entitled to a fair and accurate report.

In State v. Parish, 429 So.2d 442, 444 (La.1983), we stated that “. .. the fundamental precepts of due process require that a criminal defendant be afforded an opportunity to rebut or explain prejudicial or erroneous information in a presentence report ...” That decision is consistent with the line of cases following State v. Underwood, 353 So.2d 1013,1018 (La.1978), where we concluded that the defendant was entitled to have his sentence set aside because the false or invalid data contained in the PSI, and to which the sentencing judge, was exposed, might have contributed to the severity of the sentence.

In addition to sentencing by the trial court, defendant cites two other uses of the presentence investigation report: classification by the penal system in cases of incarceration and deliberations of the parole and pardon boards. Other potential readers of the PSI report are listed in C.Cr.P. 877 and R.S. 15:574.12. An inaccurate PSI has lingering consequences and cannot easily be corrected long after it has been written.

It is important that a defendant be afforded an opportunity to rebut or explain erroneous information in a presentence investigation report so that his sentence is not unfairly excessive. It is equally important that an inaccurate report be revised so that the defendant is not subsequently unfairly prejudiced by subsequent uses of the PSI report.

When making his presentence investigation, the probation officer “shall inquire into the circumstances attending the commission of the offense, the defendant’s history of delinquency or criminality, his family situation and background, economic and employment status, education and personal habits.” C.Cr.P. 875 A(l). The probation officer cannot make an accurate report of a defendant’s family situation and background, or of his personal habits, without talking to the defendant or to someone who knows the defendant well. Casual conversations with neighbors who know the defendant only through the newspaper reports of his offense are not reliable investigative techniques.

The probation officer who prepared defendant’s PSI report failed to meet or talk with the defendant; he obtained most of the information for the report from the offices of the district attorney and the sheriff, or from cryptic notes left by a coworker. He did not interview the victims or the parents of the victims; he did not keep any records of those to whom he talked. He admits that much of his report is based on unverified hearsay or on his own preconceived opinions and beliefs.

Even in those instances where the probation officer recommends incarceration rather than probation, it is his duty under law to “indicate specifically those resources available in the community which could provide needed assistance to the defendant should he be released on probation ...” C.Cr.P. 875 A(2). This probation officer did not indicate community resources that might assist the defendant. The entire report was prepared with little or no attention given to the truth of its contents, or to the thoroughness of the investigation.

At the hearing on the motion to traverse, the probation officer was unable to cite his sources, except generally to name persons with whom he frequently talked about criminal defendants. The state did not produce one witness to substantiate any of the contested information. The defendant produced witnesses who directly contradicted statements made in the report. It appears that the PSI report on Lockwood is significantly and substantially inaccurate and should not be used in sentencing, classification, parole or pardon deliberations, or for any other purpose.

The purpose of the PSI and report is so important to the defendant and to the integrity of the judicial system that it must be fair, not based solely on impression or opinion, but based on conclusions rationally derived from information from identifiable sources.

The probation officer should check the veracity of his sources, and maintain some record of his discussions, to enable a court to verify that the information in the PSI report is reliable.

The trial court on remand did not state his reasons for denying the defendant’s application for supplemental PSI, or for making his previous sentence executory. We cannot conclude from the record that, when sentencing the defendant, the court considered the testimony of the defendant’s witnesses at the hearing on the motion to traverse.

The defendant is entitled to a new pre-sentence investigation and report, and is entitled to be resentenced, based on the findings of the new investigation, by a judge who has not been exposed to the existing inaccurate and prejudicial report.

The sentence is vacated and the case is remanded for a new presentence investigation and report, and for resentencing in accord with this decision.

BLANCHE, J., concurring in part and dissenting in part.

BLANCHE, Justice

(concurring in part and dissenting in part).

While this writer concurs that there would be a denial of due process to allow an inaccurate PSI to remain in defendant’s criminal records, I dissent from the opinion’s remand of the case to a different judge. There is no showing that the trial judge could not render a fair sentence despite his knowledge of the first inaccurate PSI. Rather, two years does not seem excessive despite the biased and inaccurate report.

The case should be remanded to the same trial judge to require the Department of Corrections to supplement the PSI based on the evidentiary hearing and to thus sentence the defendant in accordance with the law.

       Bailes, J. sitting for Justice Marcus.

      . “A.(l) If a defendant is convicted of an offense other than a capital offense, the court may order the Department of Corrections, division of probation and parole, to make a presen-tence investigation. All such reports shall be made within sixty days of conviction except that when the defendant is released on bond pending imposition of sentence, such reports shall be made within ninety days of conviction. In making the investigation, the probation officer shall inquire into the circumstances attending the commission of the offense, the defendant’s history of delinquency or criminality, his family situation and background, economic and employment status, education and personal habits.” C.Cr.P. 875 A(l).

      . “The pre-sentence or post-sentence investigation report shall be privileged and shall not be disclosed directly or indirectly to anyone other than the sentencing court, members of the division of probation and parole supervision, the officer in charge of the institution to which the defendant is committed, the parole board, the probation or the parole officer if the defendant is placed on probation or released on parole, medical authorities if the defendant is committed to a hospital, the pardon board, and the governor or his representative.
      Before imposing sentence the court may advise the defendant or his counsel of the factual contents and conclusions of any pre-sentence investigation report. The sources of confidential information shall not, however, be disclosed.” C.Cr.P. 877.

      . “A. The presentence investigation report, the pre-parole report, the information and data gathered by the staff of the board of parole, the prison record and any other information obtained by the board or the Department of Corrections in the discharge of their official duties shall be confidential and shall not be subject to public inspection nor be disclosed directly or indirectly to anyone except as provided by this Section.
      B. Information may be released upon request without special authorization to the board of parole, the board of pardons, the governor, the sentencing judge, a district attorney or law enforcement agency, the personnel and legal representatives of the Department of Corrections including student interns, and court officers with court orders specifying the information requested.
      C. Fingerprints, photographs and information pertaining to arrests and dispositions of criminal charges may be released to criminal justice agencies without special authorization.
      D. The director of the Department of Corrections or his designated representative may approve the reading of confidential information by the following:
      (1) Social service agencies assisting in the treatment of the offender or ex-offender.
      (2) Appropriate governmental agencies or officials when such access is imperative for discharge of the requesting agency’s or official’s responsibilities and the information is not reasonably available through any other means.
      (3)Approved researchers who have guaranteed in writing anonymity of all subjects.
      E. The director of the Department of Corrections or his designated representative may approve the selective reading of information to a private citizen or organization aiding in the rehabilitation of an offender or ex-offender or directly involved in the hiring of the offender or ex-offender under the following conditions:
      (1) It appears that the withholding of the information would be the offender’s or ex-offender’s disadvantage, and
      (2) The requested information is necessary to further the rehabilitation or the likelihood of hiring the offender or ex-offender, and
      (3) The requested information is not reasonably available through other means, and
      (4) The offender or ex-offender has given his written consent to the release of the information.
      F. Whenever records covered by this Section are subpoenaed, the records shall be submitted to the appropriate court for a ruling as to whether the information should be turned over to the party who caused the subpoena to be issued. The court shall make this determination in camera. Should the court find:
      (1) That the information is not relevant to the proceedings, or
      (2) That the information was derived from communications which were obviously made in the confidence that they would not be disclosed, or
      (3) That confidentiality is essential to future useful relations between the source and the recorder of the information, the information shall be withheld.
      G. All statistical information and information of a general nature such as an individual’s age, physical characteristics, offense, date of conviction, length of sentence and discharge date may be released to the general public at any time.
      H. The director of the Department of Corrections is authorized to establish rules and regulations to provide for the orderly administration of this Section.” R.S. 15:574.12.


author: DIXON, Chief Justice.

text:
    STATE of Louisiana v. Dale J. LAURENDINE.
    No. 82-KA-1819.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry J. Morel, Jr., Dist. Atty., Harry Morgan, Abbott J. Reeves, Gregory Champagne, Asst. Dist. Attys., for plaintiff-appellee.
    Daniel T. McKearan, Jr., Harahan, for defendant-appellant.
   DIXON, Chief Justice.

Defendant Dale J. Laurendine was charged faith violations of R.S. 14:98 (driving while intoxicated), R.S. 14:100 (hit and run driving) and R.S. 32:53A (improper equipment on vehicle). The charges were brought on three separate bills of information. The maximum penalty for a first offender under R.S. 14:98 is a $400 fine and six months in prison. The maximum penalty under R.S. 14:100 is a $500 fine and six months in prison. The maximum penalty for a violation by a first offender of R.S. 32:53 A is set out in R.S. 32:57 and consists of a $100 fine and imprisonment for thirty days.

Trial before the judge alone was had on May 18, 1982 on all three charges at once, without mentioning “consolidation,” or “jury trial.” Defendant was found guilty on the DWI charge and the hit and run driving charge. The improper equipment charge was dismissed for lack of evidence. On the DWI conviction, defendant was sentenced to pay a fine of $400 and to serve fifteen days in jail. On the hit and run driving charge, he was sentenced to pay a fine of $250 and serve fifteen days in jail.

“... When consolidated, the law considers all charges as if they were originally joined in a single bill. When charges are joined the total possible punishment is the sum of the maximum possible for each. ... ” State v. Williams, 404 So.2d 954, 955 (La.1981). The possible sentence, when each maximum sentence in this case is totaled, is more than six months imprisonment; therefore, defendant was entitled to a jury trial. La. Const., art. 1, § 17; State v. Williams, supra; State v. Grimble, 397 So.2d 1254 (La.1980); State v. McCarroll, 337 So.2d 475 (La.1976).

One who is entitled to a jury trial may waive that right; however, jury trial waiver is not presumed. McCarroll, supra at 480. As in State v. Williams, supra, nothing in this record indicates that the defendant knowingly and intelligently waived his right to trial by jury, nor even that he was given the opportunity. In fact, this case is indistinguishable from State v. Williams.

Defendant’s third assignment of error, therefore, has merit. We need not consider the other assignments regarding sufficiency of the evidence.

For the foregoing reasons, the convictions and sentences are reversed, and the case is remanded for a new trial.

LEMMON, J., dissents for the reasons assigned in State v. Williams, 404 So.2d 954 (La.1981).

BLANCHE, J., dissents.

       Bailes, J., sitting for Justice Marcus.

      . State v. Comeaux, 408 So.2d 1099 (La.1981), is distinguishable. There, defendant was charged in separate affidavits. Defendant never moved for consolidation, but objected when the state commenced the trial, on one charge alone, on the ground that he was being deprived of his right to a jury trial. The argument was rejected, the court finding that defendant was tried in two separate cases.


author: DIXON, Chief Justice. LEMMON, Justice,

text:
    CITY OF PORT ALLEN, LOUISIANA v. LOUISIANA MUNICIPAL RISK MANAGEMENT AGENCY, INC. et al.
    No. 82-CA-2964.
    Supreme Court of Louisiana.
    Oct. 17, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Roy A. Mongrue, Jr., David G. Sanders, Asst. Attys. Gen., for defendant-appellant.
    R. Gordon Kean, Jr., Charles S. McCow-an, Jr., Sanders, Downing, Kean & Cazedes-sus, Baton Rouge, for plaintiffs-appellees.
   DIXON, Chief Justice.

The City of Port Allen filed this action for a declaratory judgment against the Louisiana Municipal Risk Management Agency, an association of local governmental subdivisions formed pursuant to R.S. 33:1341, et seq. Specifically, the city asked that R.S. 33:1349(C), as enacted by Act 808 of 1981, be interpreted so as not to conflict with R.S. 33:1347, a provision which was in the original 1979 act. Alternatively, the city asked that § 1349(C) be declared unconstitutional. If the conflict, however, could not be resolved and if the statute was constitutional, then the city asked that the effect of § 1349(C) be held not retroactive to claims occurring prior to the effective date of the act.

The trial court declared § 1349(C) to be unconstitutional. We affirm, holding R.S. 33:1349(C) violative of La. Const. Art. 7, § 14(A) insofar as it purports to impose solidary liability on local political subdivisions.

The 1979 act authorized municipalities and other government bodies to form an association for the purpose of reducing the danger of loss on account of public liability and workmen’s compensation. Two or more local government subdivisions could form an intergovernmental risk management agency and could pool funds from member contributions in order to manage risks, to establish group self insurance funds, and to purchase joint insurance. As a result, many municipalities have taken advantage of the benefits afforded by the act in the form of lower premium costs.

Section 1347 expressly limited the use of each member’s funds. A member was liable only for the payment of his contribution, and he was not liable on account of membership (1) to the agency, (2) to any other member, or (3) to any claimant against the agency, against the particular member, or against another member, except with respect to the particular member’s workmen’s compensation rights and obligations with its own employees. The section specifically stated that no such agreement should have the effect of providing for a donation of public funds by one local government to another.

Section 1349 originally concerned only the requirement that an agency maintain specific excess insurance for the pertinent risks. R.S. 33:1349(A) and (B) prior to 1981. In 1981, the section was rewritten and subsection (C) was added.. It provided:

“C. Nothing herein shall be construed to in any way reduce or limit a participant’s rights or obligations with respect to his or its employees under the other provisions of this Chapter and all fund members shall be liable jointly and in solido for claims not paid pursuant to this Chapter." (Emphasis added).

The conflict between § 1347 (which limits the liability of each member to contributions and to claims against the particular member) and § 1349(C) (which makes all members liable in solido for claims not paid by the agency) prompted the City of Port Allen to seek the present declaratory judgment.

The Louisiana Constitution of 1974 provides, as a general rule, that neither the state nor local political subdivisions may loan, pledge, or donate its assets to another. This rule is subject to certain exceptions which are specifically authorized. The relevant provisions are set out in Art. VII, § 14(A)-(C) which provides:

“(A) Prohibited Uses. Except as otherwise provided by this constitution, the funds, credit, property, or things of value of the state or of any political subdivision shall not be loaned, pledged, or donated to or for any person, association, or corporation, public or private. Neither the state nor a political subdivision shall subscribe to or purchase the stock of a corporation or association or for any private enterprise.
(B) Authorized Uses. Nothing in this Section shall prevent (1) the use of public funds for programs of social welfare for the aid and support of the needy; (2) contributions of public funds to pension and insurance programs for the benefit of public employees; or (3) the pledge of public funds, credit, property, or things of value for public purposes with respect to the issuance of bonds or other evidences of indebtedness to meet public obligations as provided by law.
(C) Cooperative Endeavors. For a public purpose, the state and its political subdivisions or political corporations may engage in cooperative endeavors with each other, with the United States or its agencies, or with any public or private association, corporation, or individual.”

The City of Port Allen argues that the imposition of solidary liability by R.S. 33:1349(C) would result in a loan, pledge, or donation within the meaning of Const. Art. VII, § 14(A). The state, on the other hand, contends that 33:1349(C) does not force a participant in the agency to loan, pledge, or donate anything of value to another. Moreover, and alternatively, the state alleges that such a scheme is expressly allowed as a cooperative endeavor under Art. VII, § 14(C).

There is little jurisprudence interpreting the meaning of the 1974 provision. The 1921 Constitution, however, contained a provision which was virtually identical to the present Art. VII, § 14(A). Although subject to interpretation on numerous occasions by the Attorney General, the 1921 provision also produced little relevant jurisprudence. The cases that do exist hold primarily that this section is violated whenever the state or a political subdivision seeks to give up something of value when it is under no legal obligation to do so. See, e.g., Town of Brusly v. West Baton Rouge Parish Police Jury, 283 So.2d 288 (La.App.), writ denied, 284 So.2d 776 (La.1973) (police jury’s attempt to reallocate monies from its surplus to municipalities within the parish held unconstitutional); Beaird-Poulan, Inc. v. Louisiana Department of Highways, 362 F.Supp. 547 (W.D.La.1973) (state could not constitutionally pay relocation expenses when jurisprudence did not permit them and when constitutional amendment allowing them had not yet gone into effect). But see Morial v. Orleans Parish School Board, 332 So.2d 503, 505 (La.App.), writ denied, 337 So.2d 530 (La.1976) (R.S. 17:1201-12, which provides a formula for discovering the amount to be paid a teacher who is absent on sick leave for a period in excess of her accumulated sick leave days, held constitutional as a “legislatively created benefit, earned by virtue of the employment itself.”).

It is clear that, absent the language of R.S. 33:1349(C), one municipality could not constitutionally agree nor constitutionally be compelled to pay a claim incurred by another municipality as a result of a tort or workmen’s compensation claim. Any such attempt by another municipality would be a donation or a gratuity. Otherwise, it could be a loan. Both are prohibited by Art. VII, § 14(A) of the Constitution. By attempting to impose solidary liability on all members of the fund for unpaid claims, the legislative provision has, in effect, attempted to circumvent the constitutional provision and compel municipalities who participate in the fund to make donations to one another. The “obligation” which the legislature seeks to impose on participating municipalities is therefore prohibited by § 14(A). Exposure to liability for workmen’s compensation benefits and general tort liability involve amounts incapable of predetermination. As the trial judge in his reasons for judgment noted, “[i]t strains the imagination to believe the constitution intends that one governmental agency can contract liability for the indefinite and uncertain liability of another.”

Likewise, the state’s alternative contention that the obligation imposed by R.S. 33:1349(0) is an authorized exception to the prohibitions of § 14(A) is rejected. The solidary liability mandated by the statute is not part of a program for the aid and support of the needy. It is not part of a contribution of public funds to pension and insurance programs for the benefit of public employees. It also has nothing to do with the pledge of public funds with respect to the issuance of bonds to meet public obligations. Thus, § 14(B) does not apply.

Section 14(C) does not help the state, either. There is no indication that it is meant to be an exception to the rule of § 14(A); the exceptions are clearly contained in § 14(B). Thus, even if political subdivisions cooperate for a public purpose, they still may not give away their assets to other political subdivisions, the United States government or public or private associations or corporations, or to individuals merely for a “public purpose.”

It is not clear what the legislature intended when it enacted the present R.S. 33:1349(C). Since it is in the section concerning excess insurance, it may be that the legislature intended no more than that the individual member who incurs the. claim would be liable for any amount necessary over and above that member’s contribution. If that was the intent, the words chosen do not express it.

For the foregoing reasons, the judgment of the trial court, finding R.S. 33:1349(C), as enacted by Act 808 of 1981, unconstitutional, null and void insofar as it purports to impose solidary liability upon local government subdivisions, is affirmed.

LEMMON, J., dissents and assigns reasons.

LEMMON, Justice,

dissenting.

The majority construes the last clause of Section 1349 C as making each and every member of the association solidarily liable with each other for a claim against any one member. When so construed, this section (added in 1981) irreconcilably conflicts with Section 1347 (enacted as a new law only two years earlier) and arguably violates Art. VII, § 14(A). However, Section 1349 C, when viewed in its entirety and in relation to the other sections of the Act, may be reasonably construed in another way which avoids the constitutional issue.

Since Section 1349 C does not specify that “all fund members” shall be solidarily liable with each other for a claim against any one member, the subsection can also reasonably be interpreted (especially when considered with the first clause of the subsection) as making each fund member solidarily liable with the association (rather than with each other) for a claim against the particular member.

This interpretation is consistent with Section 1347, which limits the liability of a member based on its participation in the self-insurance program, without affecting the member’s liability arising from a source other than participation in the insurance program (such as the member’s own liability for workmen’s compensation or public liability).

As thus interpreted, Section 1349 C does not violate La. Const. Art. VII, § 14(A) (1974).

Several considerations justify this interpretation. The Legislature, in enacting the new scheme of risk reduction in 1979, carefully specified the limitation of liability of each member (except for claims for which the member would be liable regardless of its participation in the association) to member contributions to the funds. The Legislature also expressly disclaimed the effect of the Act’s providing for a donation of public funds (indicating an awareness of the constitutional prohibition). Many governmental subdivisions then formed associations, secure in the legislative declaration that the attempt to reduce insurance costs would not result in their becoming exposed to liability for claims against other governmental subdivisions.

Against this background, it is highly unlikely that the Legislature, only two years later, would drastically change the entire scheme of liability exposure by implicit repeal of Section 1347, especially by amendment to an unrelated section which had previously dealt only with the excess insurance requirement imposed on the agency. Thus, although the amendment may be literally interpreted, without regard to other considerations, as making all members liable in solido with each other for every claim not paid by the agency, the fact that the amendment does not specify with whom the solidary liability shall exist gives rise to another interpretation (that each member shall be liable in solido with the agency for a claim against that particular member) which is consistent with the overall provisions of the Act and which avoids constitutional problems.

      . The Local Government Subdivision Self Insurance Act. Because the suit also sought alternatively to declare a statute unconstitutional, the Attorney General has been made a party.

      . A 1982 amendment added health and accident risk provisions.

      . R.S. 33:1347 provides:
      “A local governmental subdivision shall not by reason of being a member of an interlocal risk management agency and contributing to a group self insurance fund be liable to such interlocal risk management agency, to any other member or to any claimant against the agency, itself or another member, except for payment of contributions provided for in the intergovernmental agreement between the local governmental subdivision and the interlocal risk management agency, and no more. No interlocal risk management agency agreement shall have the effect of providing for a donation, in whole or in part, of the public funds of one local governmental subdivision for the benefit of another, provided, however, that nothing herein shall be construed to in any way reduce or limit a participant’s right or obligations with respect to his or its employees under the provisions of Chapter 10 of Title 23 of the Louisiana Revised Statutes of 1950.”

      . La. Const. Art. IV, § 12 (1921) provided in part:
      “The funds, credit, property or things of value of the State, or of any political corporation thereof, shall not be loaned, pledged or granted to or for any person or persons, associations or corporations, public or private; nor shall the State, nor any political corporation, purchase or subscribe to the capital stock or stock of any corporation or association whatever, or for any private enterprise.... ”

      . The statute could also be viewed as mandating a prohibited pledge of the assets of one member to another. It imposes solidary liability on each member of the fund for any claims not paid by the agency or another member. In effect, this makes the property of every member the common pledge of all potential claimants who become creditors of any member by virtue of an unpaid tort or workmen’s compensation claim. See C.C. 3183. C.C. 3141 specifically permits giving a pledge for the debt of another. The legislature, by operation of law, has made each member pledge, in effect, its assets for the debts of another. Such a pledge is prohibited by Art. VII, § 14(A).

      . Morial v. Orleans Parish School Board, supra, is distinguishable. Even though Mrs. Morial received pay for a period in excess of her sick leave, this was still “earned” compensation, not a gratuity, pursuant to the legislative scheme. The state in the present case argues that the reduced insurance premiums which are a result of the legislative scheme allowing the pooling of risks provide sufficient consideration to defeat the notion that a donation is involved. We disagree, especially in light of the fact that no showing has been made that premiums are reduced any further by the additional imposition of solidary liability.

      . Arguably, the legislative intent of the entirety of Section 1349 C was to specify in express terms that a governmental subdivision does not escape from tort or workmen’s compensation liability by joining an interlocal risk management agency, but remains liable solidarily with the agency and the excess insurer. The first clause of Section 1349 C disclaims any intention to modify a particular member’s rights or obligations with its own employees. Thus, the clause makes clear, for example, that membership in' the association does not change the member’s obligation to pay workmen’s compensation benefits to its employees or the member’s right to sue a third party to recover compensation paid by the particular member to its employee who is injured by the third party. Likewise, membership in the association does not affect the member’s vicarious liability for the torts of its employees or its right to claim contribution or indemnification.
      The second clause of Section 1349 C provides for solidary liability for claims that the agency fails to pay. This provision (although referring to members in the plural, as compared to the singular “participant” in the first clause) may reasonably be construed as simply clarifying that a claimant has the right to join the member in a tort or compensation suit (when the claimant otherwise has a cause of action against the member) if the agency or excess insurer refuses or otherwise fails to pay the claim.


text:
    STATE of Louisiana v. Donna FORREST. STATE of Louisiana v. Linda LIETEAU.
    Nos. 83-KK-0523, 83-KK-0753.
    Supreme Court of Louisiana.
    Oct. 17, 1983.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., John H. Craft, William Campbell, Leon A. Cannizzaro, Asst. Dist. Attys., for plaintiff-relator in No. 83-KK— 0523.
    Frederick J. King, Jr., New Orleans, for defendant-respondent in No. 83-KK-0523.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., John H. Craft, William Campbell, Susan Scott Hunt, Bruce Netter-ville, Asst. Dist. Attys., for relator-applicant in No. 83-KK-0753.
    Milton P. Masinter, New Orleans, for defendant-respondent in No. 83-KK-0753.
   DIXON, Chief Justice.

Donna Forrest and Linda Lieteau were charged by bills of information with the crime of prostitution under R.S. 14:82(b). Ms. Forrest was charged with prostitution in three separate bills of information filed on November 17, 1982; the bill of information charging Ms. Lieteau with one count of prostitution was filed on January 5, 1983. They were each billed as multiple offenders since Ms. Forrest had previously been convicted of prostitution on two earlier occasions, while Ms. Lieteau had been convicted of prostitution one time before. Both defendants filed motions to quash the multiple offender provisions. The trial court granted the motions to quash. The court of appeal transferred these cases to this court. The cases have been consolidated and treated as appeals pursuant to La. Const.1974, Art. 5, § 5(D)(1).

The state argues that the trial court erred in finding the multiple offender provisions of R.S. 14:82 unconstitutional.

On June 15, 1982 Donna Forrest was arrested for prostitution, a violation of R.S. 14:82. She was released on bond and then subsequently, on July 7, 1982 she was arrested again for the same offense. After posting bond for a second time, Ms. Forrest was rearrested for prostitution on July 23, 1982. In each of the bills of information filed for these three separate offenses, the state alleged that Ms. Forrest had been previously convicted of prostitution two times before. She had been convicted of prostitution on December 8, 1972 and on April 7, 1975.

Linda Lieteau was arrested on July 29, 1982 for prostitution. She was charged with a single incident of prostitution, and a 1976 conviction for prostitution was used to activate the enhanced penalty provisions of the statute.

In their respective motions to quash, the defense asserted that the enhanced sentencing provisions based on previous misdemeanor violations created a denial of due process and equal protection since R.S. 14:82 fails to provide a time limitation or “cleansing period” for the use of prior offenses. Defendant Lieteau’s motion to quash alleged that this failure to provide a time limitation constitutes “cruel, excessive, or unusual punishment” under La. Const. 1974, Art. 1, § 20.

The Louisiana prostitution statute, R.S. 14:82, as amended by 1977 La.Acts, No. 49,' defines the crime of prostitution and then sets forth the applicable penalties. The first offense is punishable by a fine of not more than $500 and/or imprisonment for not more than six months. On a second conviction an offender is to be fined not less than $250 nor more than $2000 and may be imprisoned, with or without hard labor, for not more than two years. On a third and subsequent conviction, the offender is to be imprisoned, with or without hard labor, for not less than two nor more than four years and fined not less than $500 nor more than $4000. The first offense is a misdemeanor; the second and subsequent offenses are felonies.

R.S. 14:82 does not contain any provisions for a prescriptive or “cleansing period” between a former and subsequent offense within which the enhanced penalty provisions would be applicable.

In ruling in the Forrest cases the trial court considered the fact that R.S. 15:529.1 and 14:94 which provide for enhanced penalties for repeat felony offenders both contain a five year cleansing period after which the previous convictions may not be used. Noting that the prostitution cases “involve six (6) month misdemeanors,” the trial court ruled that R.S. 14:82 denied Ms. Forrest equal protection under the United States Constitution in that it “provides a more harsh penalty for a misdemeanor than it does for a serious felony in regards to the enhancement of penalties.”

The state contends that under a proper equal protection. analysis, felony offenders and misdemeanor violators cannot be compared as similarly situated groups. The habitual offender statute, R.S. 15:529.1, is concerned with people convicted of any pri- or felony within a certain period of time. R.S. 14:82, on the other hand, is an attempt to halt a very specific type of behavior: prostitution. The state urges that a person who has been convicted of prostitution and who is later convicted of that same crime is not merely an habitual offender, but one who is engaged in a certain type of behavior which the legislature has deemed harmful to society. The state further asserts that the legislature’s wide discretion in setting forth criminal penalties should be respected unless the penalty is so excessive as to violate the Eighth Amendment’s prohibition against cruel and unusual punishment.

The defendants argue that it is cruel and unusual punishment to enhance a misdemeanor offense after an accused has lived a crime-free life for a substantial period of time. It is alleged that the lack of a reasonable time period to cleanse prior misdemeanor convictions, as compared to subsequent felony convictions carrying enhanced penalties, provides harsher penalties for the misdemeanant.

The habitual offender law is a general statute concerned with enhancing the penalties of career felons, whereas the prostitution statute deals only with the repetition of that specific crime, prescribing a greater punishment when there is a subsequent conviction for the same offense. State v. Washington, 248 La. 894, 182 So.2d 528 (1966). The legislature has not fixed a time limitation as to the use of prior convictions for prostitution to enhance subsequent violations of the same statute.

The habitual offender law concerns habitual felony offenders generally and enhances their penalties because they are reeidivistic violators of felony laws in general. The enhancement of penalties in felony convictions occurs after a former conviction for another felony, not necessarily the same felony as the latter conviction, within a certain period of time. R.S. 14:82, on the other hand, pertains to those who repeat the same offense which is a misdemeanor in the first instance and becomes a felony upon repeat offenses of this same statute. R.S. 14:82 carries graver penalties for repeat violations of that statute. As opposed to R.S. 15:529.1, the enhanced penalties cannot be imposed unless the prior convictions were for violations of this particular statute. State v. Montgomery, 250 La. 326, 195 So.2d 285 (1967); State v. Duncan, 219 La. 1030, 55 So.2d 234 (1951); State v. Bailey, 165 La. 341, 115 So. 613 (1928).

Accordingly, recidivistic transgressors of felony laws are distinguishable from violators who repeat an offense when it is a misdemeanor in the first instance. As such it cannot be said that such defendants are similarly situated and denied equal protection under our laws.

In addition, the failure of the legislature to include a time limitation in R.S. 14:82 does not constitute “cruel, excessive, or unusual punishment” under La. Const. 1974, Art. 1, § 20.

There is no question that the state has broad authority under its police power to enact legislation to protect the health, safety and welfare of its citizens. This power vests the state with the authority to enact restrictive legislation pertaining to prostitution, long regarded as a threat to the health and safety of the general public. L’Hote v. New Orleans, 177 U.S. 587, 20 S.Ct. 788, 44 L.Ed. 899 (1899); State v. McCormick, 142 La. 580, 77 So. 288 (1917).

The legislature may have decided to place no time limitation in the prostitution statute because of the nature of the offense. Our prostitution statute is regarded as having three objectives: to prevent the spread of venereal disease; to protect citizens from annoyance; and to control related crimes, such as illicit drugs, gambling and organized crime. Comment, Prostitution — Prosecution Limited to Women Offenders, 1 Southern U.L.Rev. 316, 317 (1975). In 1977 the prostitution statute was restructured to add the graver penalty provision for repeat offenders with no time limitation between offenses. Prior to 1977 the legislature did not distinguish between first and repeat offenders of the prostitution statute: the sentence was the same for both. In 1977 the legislature appears to have determined that the stiffer penalties for repeat offenders with no cleansing period were necessary due to the “seriousness and ever increasing instances of the offense.” State v. Washington, supra 182 So.2d at 530. The control of prostitution and its related hazards appears to have been of such importance to the legislature that it was immaterial to it how far removed the offenses were from each other. It was entirely within the power of the legislature to implement a prescriptive period, but it chose not to do so. We find no other provision that would require interference with the broad discretion of the legislature in setting up a system of punishment specifically designed to combat certain types of offenses.

For the foregoing reasons we reverse the trial court’s ruling quashing the multiple bill provision of the indictments and order the cases remanded for further proceedings consistent with the views expressed herein.

      . “Prostitution is:
      (a) The practice by a person of indiscriminate sexual intercourse with others for compensation.
      (b) The solicitation by one person of another with the intent to engage in indiscriminate sexual intercourse with the latter for compensation.
      Whoever commits the crime of prostitution shall be fined not more than five hundred dollars or be imprisoned for not more than six months, or both.
      On a second conviction, the offender shall be fined not less than two hundred fifty dollars nor more than two thousand dollars or be imprisoned, with or without hard labor, for not more than two years, or both.
      On a third and subsequent conviction the offender shall be imprisoned, with or without hard labor, for not less than two nor more than four years and shall be fined not less than five hundred dollars nor more than four thousand dollars.”

      . “In this Code the terms enumerated shall have the designated meanings:

      (4) ‘Felony’ is any crime for which an offender may be sentenced to death or imprisonment at hard labor.

      (6) ‘Misdemeanor’ is any crime other than a felony.” R.S. 14:2.

      . The trial court also stated that the legislature provided a five year cleansing period in R.S. 14:95, the statute forbidding the illegal carrying of a weapon, which is a misdemeanor on the first offense. However, the trial court also observed that no cleansing period existed in either R.S. 14:67, the theft statute, or R.S. 40:966(D), the marijuana statute. Under all three of these statutes, the first offense is a misdemeanor. The trial judge felt that defendants in theft cases and marijuana cases, as well as defendants in prostitution cases, were deprived of equal protection of the law since no prescriptive period was provided in the statutes.


text:
    STATE of Louisiana v. Amos BANKS.
    No. 83-K-0745.
    Supreme Court of Louisiana.
    Oct. 17, 1983.

      Ron Smith, Shreveport, Bruce J. Toppin, Student Practitioner, Calvin Johnson, Supervising Atty., New Orleans, Loyola Law School Clinic, for applicant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry P. Con-nick, Dist. Atty., John Craft, Asst. Dist. Atty., for respondent.
   DIXON, Chief Justice.

Defendant was charged by bill of information with possession of heroin in violation of R.S. 40:966. A twelve member jury convicted him, whereupon a second bill was introduced charging him as a second offender, R.S. 15:529.1. The court, finding that defendant was a multiple offender, sentenced him to five years at hard labor. The Court of Appeal affirmed both the conviction and the sentence. State v. Banks, 428 So.2d 544 (La.App.1983).

We granted writs to examine defendant’s complaint that hearsay evidence erroneously admitted had violated defendant’s constitutional right to confront witnesses against him. The contentions are meritorious, the conviction is reversed, and the case is remanded for a new trial.

Officer Lee Peyton was the arresting officer, and the state’s first witness. He tes-tifiéd that he received a phone call from a confidential informant on the night of defendant’s arrest, and that the informant had provided him with reliable information in past narcotics-related investigations. Over defense counsel’s objections, Officer Peyton was allowed to testify as to the content of his telephone conversation with the informant.

Peyton testified that the informant told him that defendant was standing on a particular street corner in New Orleans waiting to make a purchase of ten bags of heroin from a New York dealer. After the purchase, according to the informant, defendant then would return to a nearby housing project.- Officer Peyton testified that he was told that defendant would be easy to recognize since he would be wearing a bandana covered by a navy blue watch cap.

Continuing his testimony, Officer Peyton stated that, after his conversation with the informant ended, he and two other police officers — Corales and Wilson — went to the street corner in an unmarked police vehicle. They spotted defendant, and, as he began walking toward the project, the police officers approached him. When they were about fifteen or twenty feet away, defendant reached into his pocket, turned, took a plastic envelope from his pocket, dropped the packet, paused momentarily, and then continued walking. At that point, Officer Peyton identified himself as a police officer and arrested him, and Officer Corales recovered the discarded item. Later testing proved the package to contain ten small bags of heroin.

Officers Corales and Wilson followed Peyton to the stand. They confirmed that Peyton had received a telephone call from an informant, and that the facts concerning the stake out and the arrest were as Officer Peyton had testified. None of the officers said that they actually saw a drug transaction, but they did state that they saw defendant toss the packet to the ground.

There also was testimony from Cheryl Gooden, a friend of defendant. She testified that, at the time of the arrest, defendant’s hands were full: he had a coat draped over his right arm, a drink in his right hand, and a plate of food in his left hand. She further testified that there was another man walking in front of defendant. She said that she could not see defendant drop the packet to the ground because his hands were occupied, but stated that it was possible that the man walking in front of defendant could have dropped something.

Defendant continually objected to the admission of the hearsay concerning the content of the informant’s telephone conversation. He argues that the conversation was admitted solely for the purpose of proving that defendant had possession of heroin. Both the state and the court of appeal acknowledge that the testimony concerning the conversation was inadmissible hearsay. R.S. 15:434; State v. Banks, supra at 546. The court of appeal further acknowledged that the defendant had been denied his constitutional right to confront witnesses. Id. These findings by the court of appeal were correct. However, the court misinterpreted and misapplied the relevant jurisprudential tests when it determined that the error of the trial court was “harmless.”

The appropriate standard of review to be applied in determining the effect of the improper admission of evidence is whether “ ‘the court [can] .. . declare a belief that [the error] was harmless beyond a reasonable doubt.’ ” State v. Gibson, 391 So.2d 421, 428 (La.1980), quoting and adopting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). The court must be able to determine, beyond a reasonable doubt, that the improperly admitted hearsay did not contribute to the verdict.

The court of appeal, while recognizing the Gibson test, refused to apply it. Instead, the court held that the “tainted” evidence could be found harmless beyond a reasonable doubt when it was “cumulative” with the properly introduced evidence. “Cumulative” was defined by the court as evidence having “substantial similarity . .. with respect to the type of evidence and the incriminating factual details.” State v. Banks, supra at 546. The court relied on four cases in support of its “cumulative exception” to Gibson. The “cumulative exception,” as tenuous as it is, is improperly applied in this case. If the cases cited had been applied properly, the conclusion reached would differ from the court of appeal’s opinion.

In State v. Lindsey, 404 So.2d 466, 479 (La.1981), “[t]he hearsay nature of the testimony was cured by the testimony of [the witness] which corroborated the hearsay statements.” The corroboration, involved personal knowledge testimony by the out-of-court speaker, confirming his own hearsay which had been presented by another witness. Here, the informer never iterated his own hearsay while under oath.

In State v. Darby, 403 So.2d 44, 48 (La. 1981), there was a technical hearsay admission when a witness testified that the defendant told her that he had been in a fight. That was cured, as in State v. Lindsey, supra, by the defendant’s confession of participation in the fight. Here, there is no such confession of any fact. Furthermore, because there is contradictory testimony by Ms. Gooden, and because the informant’s story corroborated the officers’ version of the facts, the admission of the hearsay could have tipped the scales of credibility in favor of the officers.

In State v. Spell, 399 So.2d 551, 556 (La. 1981), all of the hearsay evidence to which the witnesses testified was already before the jury. The effect of the evidence had already occurred, and the hearsay testimony was redundant. Here, the hearsay was the very first evidence that the state put on, and probably was of a lasting impression on the factfinder.

Finally, in State v. Bodley, 394 So.2d 584 (La. 1981), certain out of court statements made by defendant were admitted. The only objection, though, was to the failure of the state to provide notice of its intent to use the statements. No hearsay objection was raised.

Thus, none of the cases cited by the court of appeal are relevant to the present case. In all of those in which the hearsay objection was raised, there was other evidence of the truth of the out of court statements; either the speaker was present for cross-examination, or there was independent evidence which confirmed the hearsay.

Here, however, such is not the case. The credibility of the informer was unchallenged; the informer’s statement that defendant would be on a certain corner to buy ten bags of heroin from a New York dealer was the only information to that effect in the entire case, and was not “cumulative.”

The hearsay information injected into the case by the officer cannot be harmless. It explained why the police were where they were, why they were on the lookout for defendant, and why they approached him as soon as he was identified, wearing the clothes described by the informer. Without the forbidden hearsay, the jury might have had considerably more difficulty rejecting the testimony of the defense witness Goo-den. It cannot be said, beyond a reasonable doubt, that the improperly admitted hearsay, which violated R.S. 15:434, United States Constitution, Amendment 6 and Louisiana Constitution, Article I, § 16, did not contribute to the verdict.

The defendant’s conviction and sentence are reversed, and the case is remanded to the district court for a new trial.

LEMMON, J., concurs.

WATSON, J., dissents.

       Bailes, J. sitting for Justice Marcus.

      . The evidence which purportedly was already before the Spell jury was, itself, hearsay testimony, but was admitted without objection. The state’s earlier witness testified that, while at the Dixon Correctional Institute, defendant told him of his homosexual relationship with the victim. The hearsay, of which defendant complained, came from the testimony of the victim’s sister, who testified that the victim earlier told her of the relationship.