text:
    WHITE SYSTEM OF NEW ORLEANS, Inc. v. HALL et al.
    No. 19386.
    Court of Appeal of Louisiana. Orleans.
    April 10, 1950.

      Baldwin, Haspel & Molony, and Emile A. Wagner, Jr., New Orleans, for plaintiff and appellee.
    Frank C. Moran, Jr., .and Paul J. Thrif-filey, Jr., New Orleans, for defendants and appellants.
   McBRIDE, Judge.

Plaintiff, White System of New Orleans, Inc., brought this suit against defendants, Willie Mae Hall and Frank Hall, seeking judgment against them jointly, severally, and in solido for the sum of $541.79, with interest at the rate of eight per cent per annum from July 7, 1948, until paid, and with twenty per cent attorney’s fees, said amount being the balance due on a promissory note for $609.65, dated February 19, 1948, payable to “bearer” in installments, of which note plaintiff alleges itself to be the holder and owner in due course.

The circumstances surrounding the execution by defendants of the note sued upon, briefly stated, were: a few days before February 19, 1948, one Frank J. Tully, doing business as Fluorescent Lighting and Refrigeration Sales, contacted Willie Mae Hall relative to the purchase of a Victory beverage cooler box for use in her restaurant and bar. When informed by Tully that the cash price of the box was $570.00, Willie Mae Hall stated that she was unable to pay the price in cash, but expressed a willingness to buy the box on terms of credit. Ultimately, it was agreed that Willie Mae Hall would make a down payment of $80.00 cash, and execute a note, which was to be secured by chattel mortgage on the box, for $609.65 (which included $119.-65 carrying charges), payable in installments maturing on a designated day of each month thereafter.

On February 19, 1948, Willie Mae Hall and her husband, Frank Hall, signed and delivered to Ttilly the note sued upon, and at the same time they executed the act of chattel mortgage securing payment of the note. On the same day, Tully delivered the beverage box to Willie Mae Hall’s establishment, where' it was uncrated and installed.

Also on the same day, Tully sold the note to plaintiff for $490.00. The evidence shows that the transaction was what is termed a “recourse deal,” and as á prerequisite to its purchase of the note, plaintiff required that Tully sign the same as an “accommodation maker,” and his signature appears on the face of the note immediately above the signatures of the original makers, Frank Hall arid "Willie Mae Hall. " :

After paying the first two installments, the defendants defaulted in payment, and-plaintiff, availing itself of the acceleration clauses of the note, instituted this suit.

Defendants, by original and supplemental answers, defend the suit upon the grounds (1) that White System of New Orleans, Inc., is (a) the original holder of the note, or (b) a holder with knowledge or notice of the equities exisiting between the defendants and Frank J. Tully, and (2) that they are not liable on the note, for the reason that the consideration therefor has failed, in that the beverage box, in part payment of the purchase price of which the note was given, is useless and imperfect and is incapable of performing the service for which it was purchased.

In the court below, there was judgment in favor of plaintiff as prayed for, from which the defendants have perfected this suspensive appeal. As appears from his assigned written reasons for judgment, the judge a qua concluded that plaintiff is a holder in due course of the note sued upon, and, as such,, is immune to any defenses or equities available to the defendants as against their vendor, Frank J. Tully.

The first point to be decided is whether the appearance of the signature of Frank J. Tully, immediately above' the signatures of the defendants, on the face of the note, has the legal effect of placing plaintiff in the category of an original holder of the note. We do not think that it has. The note, which is payable to bearer, could have been negotiated by Tully to the White System of New Orleans, Inc., by mere delivery and without endorsement. The sole and only purpose of plaintiff in having Tully affix his signature to the instrument as an' “accommodation maker,” was to accord to itself additional security, and the fact that Tully’s name appears above that of the original makers on the face of the note, and not on the back of the paper, the usual and historic situs for endorsements, does not in any wise alter the status of the White System of New Orleans, Inc., as a holder of the note in due course quoad Willie Mae Flail and Frank Hall. It is unquestioned that defendants executed and delivered the note to Tully for value, and that Tully in turn transferred it to the plaintiff for a valuable consideration, to-wit, the sum of $490.00.

While, the proposition under consideration has never been passed upon by an appellate court in, this state, so far as we are able to learn, there are several cases emanating from other jurisdictions involving analogous situations, in which the holdings of the courts appear to be sound.

It was said in Herring v. Woodhull, 29 Ill. 92, 81 Am.Dec. 296: “The first point made in this case is, that the note was not properly indorsed, the transfer being on the face of the note. Literally, indorsement means a writing, in dorse, upon the .back of the bill or note. But it is well established, that though such is its import, it may be made on the face of the bill, and numerous indorsements may -be made on a separate paper, called an allenge. Chit. on Bills, 227; Yarborough v. Bank of England, 16 East, 12; Rex v. Bigg, 1 Strange, 18; Story on Promissory Notes, sec. 121; Gibson v. Powell, 6 How. 60, 6 Misc. 60. And any form is sufficient which manifests an intention to transfer the note. Moies v. Bird, 11 Mass. 436, 6 Am.Dec. 179.”

In First Nat. Bank of Etowah, Tenn., v. Messer 136 Ga. 226, 71 S.E. 148, 149, appears the following comment: “The ordinary -and usual mode of indorsing a negotiable instrument is to 'write the name of the indorser upon the back of the paper. But where the payee writes his name on the face of the note under the maker’s signature, the effect is to transfer the title of the note to the transferee, and the payee becomes liable as an indorser. Perry v. Bray, 68 Ga. 293.”

In Fisher Lumber & Coal Co. v. Robbins, 104 Kan. 619, 180 P. 264, 265, the trans-feror of a note signed his name on its face beneath that of the maker, and the court said: “As the indorsement was written on the instrument itself, there was compliance with the requirements of the act,, and the relation of Dobbins to the instrument, together with his signature, implied; that he signed it as an indorser and not as a maker. * * * ”

Appellants’ second contention is that the White System of New Orleans, Iric., is not a holder of the note in due course, because it had full. knowledge of and directed the transaction between Tully and defendants, a'rid knew of'the conditions of the contract between them, especially of the service 'which Tully had agreed to render to defendants, and of the one-year guaranty of the beverage box.1

James M. Cash, plaintiff’s . secretary-treasurer, testified that he was familiar with, the contract entered into between Tully and the defendants. A day or so before the salé was consummated, Tully called at plaintiff’s office and inquired of it if it would be willing to purchase the note-of Willie Mae Hall and Frank Hall evidencing the deferred balance on the credit portion of the price of the beverage box, Tully at the time disclosing to Cash all details connected with the proposed sale. The White System of New Orleans, Inc., as is its custom in all similar transactions handled by it, made an investigation of the financial responsibility of Willie Mae Hall and Frank Hall, and being 'satisfied that their credit- standing was good, agreed to purchase the note from Tully. Printed forms of the notes and chattel mortgages used, by plaintiff in its financing business were furnished to.Tully, and the amount of the financing or handling charges was computed. Said charges in this particular transaction amounted tp $119.65.

Counsel argue that plaintiff, by virtue of having thus directed the transaction and having had knowledge of the details thereof, cannot, under the established jurisprudence of this state, be considered a .Holder-in due.course of the nóte sued-upon, and, therefore, defendants are entitled to interpose as against plaintiff the defense that redhibitory vices and defects existed in the be.verage. cooler, the subject of the sale.

Counsel point to four cas.es, decided by the First and Second Circuit Courts of Appeal, as authority for this proposition.

In the first, General Motors Acceptance Corp. v. Swain, La.App., 176 So. 636, 638, decided by the First Circuit Court, wherein the defendant urged usury as a defense, it was held that the plaintiff was not a holder in due course where he directed and controlled the entire financial transaction between the original parties. We quote from the opinion:

“ * * * Plaintiff furnished the dealer with a chart by which the dealer could figure the amount to be added to the cash sale price of a car to cover the differential in case the dealer should desire plaintiff to handle the deferred balance in order for the dealer to realize the cash, sale price on the car-sold. The plaintiff also furnished the dealer with the blank notes and chattel mortgages to' be used in the transactions where it handled the pap'er. In this particular case, it is shown that plaintiff credited to defendant the overcharge on th,e differential the day after it acquired the note. In view of these circumstances, it must be assumed that plaintiff was fully aware of the manner in which the differential had been figured and the terms on which the car had been sold.
Consequently, plaintiff is in the same position with reference to the defense here made on the note as the dealer and original holder would have been had the suit been brought by the dealer instead of plaintiff. Therefore, if there was an infirmity in the note on account of usury, the defendant has the same right to plead this infirmity against the plaintiff as he could have pleaded against the original' holder. ' Negotiable Instruments' Law, Act No. 64 of 1904, Sections 52, 56, and 58.”

The next case in this line of decisions is C. I. T. Corp. v. Emmons, La.App., 197 So. 662, 663, decided by the Second Circuit. The defendant there purchased a refrigerator from an áppliance dealer, to whom he issued his note as partial consideration for the sale. The dealer negotiated the noté to plaintiff, who sued thereon when defendant defaulted in payment. The suit was resisted upon the ground that the refrigerator was destroyed by fire, and that one of the charges made in the financing of the transáction had been for adequate fire insurance covering the refrigerator. The court, in holding that plaintiff was not a holder in due cour.se, had the following to say:

“Trie record discloses that the plaintiff company purchases installment contracts, such as the one involved herein, from dealers of electric equipment in various states. It furnishes printed forms for .the notes and chattel mortgages that are necessary in the credit transactions, and gives written instructions as to the manner and method of their execution. Also, there is provided a rate book or chart for use in calculating the finance charges to be included in the contracts and in determining the amounts of th.e several installment payments.
“For a contract to be acceptable to plaintiff, it must be executed on the furnished forms and in compliance with the written instructions; and the .appropriate schedule listed in the rate book must be followed. The dealer is paid therefor only the unpaid balance of the purchase price of the article sold, computed on a cash sale basis. The finance charges and interest belong to plaintiff when collected.
* if * .* ■ * *
“Plaintiff’s directing of th’e execution of the commercial paper involved herein, particularly its instructing as to the finance charges and the amounts of the monthly installments, indicates clearly that it had full knowledge of defendant’s contracting to pay, if he did, a sufficient amount for the obtaining of insurance on the refrigera.tor. Consequently, in so far as the defense here offered is concerned, plaintiff, figuratively speaking stands in the shoes of the dealer; and it is not invulnerable under the holder in due course doctrine against defendant’s urging of the . aforestated equities. ‘Actual knowledge of defenses or of equities precludes a transferee from attaining the position of a holder in due course, although he paid full value for the instrument.’ 10 C.J.S., Bills and Notes, § 323.”

The above case was succeeded by a case of the First Circuit, International Harvester Co. v. Carruth, La.App., 23 So.2d 473, 474, in which a dealer sold to defendant certain farm equipment for which defendant gave his notes, which were sub- . sequently negotiated to plaintiff. It was shown that the dealer was, the agent of plaintiff. The court held that plaintiff was not a holder of the the notes in due course, and that the defense that the equipment was defective was available to defendant. The court said:. “There is no merit in this contention for the reason that the evidence abundantly shows that D. D. Strong, the immediate vendor of the farm implements to the defendants, was the plaintiff’s contractor dealer at Amite and it is also shown that other of its agents knew all about the sales for which the notes were given in part payment. Indeed, with regard to the corribinder, these agents seemed to have had as much to do with the sale as did Strong himself. In respect to this issue, plaintiff stands in the same position .as though it had been the immediate vendor of the equipment sold and it cannot successfully urge that those notes are immune to the defense raised against them by the defendants, on the ground that it is a holder in due course. General Motors Accept. Corp. v. Swain, La.App., 176 So. 636; C. I. T. Corp. v. Emmons, La.App., 197 So. 662.”

The last of this line of cases is Citizens Loan Corp. v. Robbins, La.App., 40 So.2d 503, 504, decided by the Second Circuit. In this case the defendant purchased án automobile, on which there1 was a chattel mortgage in favor of plaintiff, from otle H. F. Hunter. Plaintiff released Hunter and, on standard printed forms, prepared a bill of sale transferring the automobile from Hunter to the defendant, drew a chattel, mortgage, which was executed by Robbins, and supplied a printed promissory note'which was" made payable to Hunter, signed by Robbins, and on the reverse side endorsed by,Hunter to plaintiff. The defendant paid the plaintiff corporation $10.-00 for the services rendered. Plaintiff sued when Robbins defaulted on, the note. The defense was made that Citizens Loan Corporation was not a holder in due course, and as a consequence was answerable for alleged redhibitory vices and defects in the automobile, which had gone out .of control on the second day after it was purchased, and had been completely demolished. The court permitted the defense to prevail, decreeing that plaintiff was not a holder in due course, saying:

“We think it is clearly established by the jurisprudence of this State that the transferee of a negotiable note who has actually directed the transaction between vendor and purchaser is precluded from claiming the protection accorded a holder in due course. C. I. T. Corporation v. Emmons, La.App., 197 So. 662; General Motors Acceptance Corporation v. Swain, La.App., 176 So. 636.
“The evidence in the instant case conclusively establishes the fact that plaintiff was so directly interested and involved in the transaction of purchase that he cannot escape the legal imputation that he stands in the shoes of the vendor.”

The peculiar facts of the first three of the cited cases unquestionably justify the conclusions reached therein. All that the Swain and Emmons cases held was that where the financial transaction was dictated and controlled by plaintiff, he would be denied recovery, even though the note had been negotiated to him, as the defect in the title of the note arose directly from the financial transaction itself. The gist of the holding in the Carruth case is that where the holder of the note was the principal of the person to whom the note was originally issued, he would be exposed to all of the defenses that could be raised against his agent.

It must be noted that these cases are not authority for -the proposition that an independent and separate third party, wh,o merely furnished the blank forms for , the consummation of the financial transaction, and computed the financing or handling charges, could be defeated in his action on the note which he purchased in good faith, by a defense based on a redhibitory defect in the chattel which was the subj ect matter of the sale for which the note was given in representation of the purchase price.

The Swain, Emmons, and Carruth cases are clearly distinguishable from Citizens Loan Corp. v. Robbins, supra, and are not authority for the holding in said case. We question the logic of that decision, and cannot at all agree with our brothers of th'e Second Circuit.

Act No. 64 of 1904, § 52, sets forth that a holder in due course is one

“ * * * who has taken the instrument under the following conditions:
“1. That it is complete and regular upon its face;
“2. That he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact;
“3. That he took it in good faith and for value;
“4. That at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.”

As to plaintiff, none of the prescribed requirements are lacking. Merely because it investigated into the financial soundness of the defendants before agreeing to accept their note, computed the financing or handling charges, and- "furnished Tully with blank notes and chattel mortgages to be used in the transaction, we do not think it can be said that plaintiff became so involved in the transaction of purchase that it stands in the shoes of the vendor and is to be precluded from claiming the protection vouchsafed a holder in due course by the act. ,

We can see no reason why one contemplating advancing his money for the financing of another’s purchase of property, has not the unqualified right to stipulate in advance the amount to be-charged for the financing, and to exact that the purchaser’s note and chattel mortgage shall be on approved forms furnished by the lending ágency.

To .hold otherwise would do . violence to banks and finance companies, such as plaintiff, and the result would be that almost all lending institutions would be throttled and put out of existence. The purchasers of commercial paper would become so bound up with the vendor that months after the note had been negotiated to the holder, his suit on the note might well be defeated by the defenses of redhibition, or the failure of the vendor to fulfill his obligations to the purchaser, etc. The salutary purpose of Act-No. 64 of 1904, endowing negotiable instruments, as far as possible, with all of the attributes of currency, and thus to stimulate and encourage trade and commerce, would be frustrated.

Our minds are free of the slightest doubt that the White System of New Orleans, Inc., is a holder in good faith of the note sued upon. Section 52 of the statute, which defines a holder in due course, must be construed in connection with Section 56 of the act, which provides: “To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith.”

Appellants’ contention that, whereas the plaintiff knew of Tully’s guaranty of the beverage cooler box it was bound thereto just as was Tully, is fully answered by what the Supreme Court said in the case of Martol v. Lafayette Sugar Refining Co., 153 La. 248, 95 So. 706, 707:

“For, conceding that plaintiff knew of said guaranty (and the evidence tends to show that he did), nevertheless:
“ ‘If it were known to the transferee of a negotiable * * * note, acquired for value before maturity, on taking it, that the consideration was future and contingent, and that there might be offsets against it, this would not make him liable for the equities between the original parties. * * * It cannot affect the negotiability of a note that its consideration is to be thereafter realized, or that from some contingency it may never be enjoyed.’ State Nat. Bank v. Cason, 39 La.Ann. 865, 2 So. 881.
“And again: ‘If the consideration of the note had not failed at the time of its transfer, the maker cannot set up as a defense that the holder knew that there might be offsets against it.’ Sadler v. White, 14 La. Ann. 177.
“This doctrine was affirmed in Pavey v. Stauffer, 45 La.Ann. 353, 12 So. 512, 19 L.R.A. 716, and again in Marx & Sons v. Frey, 137 La. 948, 958, 69 So. 757, and is in accord with the general law of Negotiable Instruments. See 8 Corpus Juris, 509, § 718, and 3 Ruling Case Law, 1067, § 273.”

Nothing in the actions of plaintiff can be pointed to which would remotely tend to impute bad faith on its part.

Section 57 sets forth the immunities which clothes a holder in good faith, as follows: “A holder in due course holds the instrument free from any defect of title of prior parties, and free from de-fences available to prior parties among themselves, and may enforce payment of the instrument for the full amount thereof against all parties liable thereori.”

Thus, having reached the above conclusions, it is unnecessary that we pass upon the' question whether the beverage cooler was the subject of the alleged redhibitory vices and defects.

For the reasons assigned, the judgment appealed from is affirmed.

Affirmed.


source: Caselaw Access Project

author: PONDER, Justice.

license: Public Domain

text:
    217 La. 1
    HOLT et al. v. VERNON PARISH SCHOOL BOARD.
    No. 39709.
    Supreme Court of Louisiana.
    March 20, 1950.
    Ted R. Broyles, Leesville, for plaintiffs-appellants.
    J. Reuel Boone, Many, Jack L. Simms, Leesville, for defendant-appellee.,
   PONDER, Justice.

The plaintiffs have appealed from a judgment of the lower court rejecting their demand to annul a special election held on May 10, 1949 in Ward 3 of Vernon Parish.

At this special election a proposition was1 submitted to the voters of Ward 3, Ward Wide School District No. 160, to incur debt and issue negotiable bonds, or other negotiable instruments, to .the amount of-$82,000 to run for a period' of fifteen years, bearing interest at a rate not exceeding 4% per annum, payable semi-annually “for the purpose of constructing and equipping a gymnasium-áúditorium, lunch room, and repairing present school buildings at Evans, Louisiana, in said District.”

The plaintiffs contend that the election was illegal because more than one proposition was submitted to the voters without affording them an opportunity to vote on each proposition separately in violation of Section 16 of Act No. 46 of Extra Session of 1921, as amended by Act No. 282 of 1938 and Act No. 6 of the Extra Session of 1940, which provides that 'when more than one proposition is submitted to the voters at a special election, each proposition must be submitted in such a manner as to enable the voters to vote thereon separately.

The purpose of this election was to make improvements on this school unit in order that it might comply with modern standards. The mere fact that the improvements are detailed in the proposition does not- create separate objects. We cannot agree with the plaintiffs that three different projects were submitted to be voted on at this election. A bond issue could be presented as one proposition if it was for the purpose of constructing the school unit as a whole and we see no reason why a proposition could not be submitted to the voters for the improvement of this unit without affording an opportunity to vote separately on each item of improvement. • ■ .

It appears that the test recognized by the jurisprudence of this state and other states is whether or not there exists a natural relationship between the structures or objects to be united in one proposition and a large discretion is vested in the courts in • determining the relationship existing between the structures- and objects. If there- exists a natural 'relationship between the structures or-objects, it can be submitted in one proposition. In 4 A.L.R. 2d page 621 this general rule or test is very-well stated -and many cases cited in support of it. See also 18 Am.Jur. page 299 para. 181, Verbo Elections-"Separation of Propositions”; 43 Am.Jur. page 345, para. 92, Verbo-Public Securities and Obligations; 19 Ruling Case.Law, page. 999, Verbo Municipal Corporations, and - the many cases referred to.

In the case of Gisclard v. City of Donaldsonville, 159 La. 738, 106 So. 287, the contention was urged that.the electric light plant was being hypothecated for the purpose of-, extending and .improving the waterworks system by the construction and acquisition' of a water filtration plant. It was pointed out therein, that the waterworks and,electric light plant was regarded as. one utility'because it was being operated as such.-

In the case of McCann v. Mayor and Councilmen of Morgan City, 173 La. 1063, 139 So. 481, 482 the election was held to determine whether bonds should issue for the purpose “of constructions, extensions, and improvements of the present municipal waterworks plant and system, so as to constitute a combined or single water, electric light, and power plant, and thereby furnish a more efficient service at less operating cost.” It was urged in that case that the existing utility was being hypothe-cated for the benefit of another separate and distinct utility. The court relying on the holding in the Gisclard case rejected this contention.

The school at Evans is undoubtedly being,- operated as one unit -and there exists a decided - natural relationship between the items of improvements recited in the proposition. The recital of these improvements does not create separate objects and they may be submitted as one proposition.

The authorities cited by the appellants do not bear out their contention. In the case of Antuono v. Tampa, 87 Fla. 82, 99 So. 324, the proposition .submitted contains several unrelated objects. In the case of State v. Dade County, Fla. 39 So.2d 807 the,.rule is stated that separate objects cannot: be , submitted in a single proposition but -it was held therein that the proposition was -for a single purpose although five bridges were involved.

We have examined the other .cases cited by the' appellants, ’which are not in point, and See no reason to encumber this opinion with a discussion of these cases cited by courts of other states which all seem to hinge on the test as to whether the objects or subjects are naturally related.

The plaintiffs contend that the election is illegal because many of- the voters had their assessments- raised and that these assessments were used in the election instead of the 1948 assessments as contemplated and made mandatory-by Section 14. of Act No. 46 of 1921, Ex.Sess. It appears from the evidence in this case that a correction, -to comply with Section 14 of Act No. 46.of 1921, Ex.Sess. of the property valuations would not change the result of the election. The validity of the election in this respect cann'ot be questioned unless it be established that the voters were deprived of votes sufficient in number1 and amount to have changed the result of the election. Act No. 46, of 1921, Ex.Sess. as amended.

For the reasons assigned, the judgment is affirmed at appellants’ cost.


author: FOURNET, Chief Justice.

text:
    217 La. 8
    HOLLEY (HOLLEY, Intervenor) v. BUTLER FURNITURE CO., Inc., et al.
    No. 39302.
    Supreme Court of Louisiana.
    March 20, 1950.
    Landry, Landry & Hunter and Hamlet D. May, Baton Rouge, for plaintiff, appellant, applicant and intervenor, appellant, applicant.
    Breazeale, Sachse & Wilson, Baton Rouge, for defendants, appellees and- respondents.
   FOURNET, Chief Justice.

This case is before us on certiorari to review the judgment of the Court of Appeal, First Circuit, affirming the judgment of the district court sustaining ■ an exception of no right of action and dismissing the plaintiff’s suit for damages to an automobile allegedly owned by him, resulting from- a collision between the said automobile and a truck owned by' one of the de- ' fendants.

• It appears that after answer' was filed and the trial had begun, the plaintiff (Lloyd ‘ R. Holley) admitted on the stand that he was not the owner of the automobile nor had he paid the cost of repairs, and that the damaged car belonged to his father; whereupon the defendants (Butler Furniture Company, Inc., the owner of the truck, William Polk, its driver at the time of the collision, and the Insurers Indemnity and Insurance Company, the liability insurer) filed exceptions of no cause and no right of action. While the district court had these exceptions under consideration and before a decision was rendered thereon, the plaintiff sought permission to file an amended and supplemental petition setting forth that the suit was filed with the consent and approval of his father, and that he had an “oral mandate” from his father to prosecute the suit, with the understanding that any sum recovered would inure to the benefit of the father; and simultaneously, the father (Marvin H. Holley) sought to intervene in the -proceedings by ■filing a petition of intervention alleging that he owned the car damaged, and affirming the position of the son; stating that he intervened, for the express purpose of authorizing his son to prosecute the suit and stand in judgment therein for and in the place and stead of intervenor; and, in the alternative, should the court decree that his son could not continue the suit; then he, the father, as owner, was the proper party to stand in judgment and to recover from the defendants.

The district court rendered judgment in favor of the defendants, sustaining the exception of no right of action and denying plaintiff the right to file his supplemental and amended petition. The intervention sought to be filed by the father was dismissed in the same judgment. This was affirmed on appeal by the Court of Appeal for the First Circuit, the court holding that under Article IS of the Code of Practice, which requires a person to have a real and actual interest in order to bring an action, the exception of, no right of action was properly maintained; and since a petition of intervention either stands or falls with the main demand, in view of the fact that plaintiff’s suit must fall it necessarily follows that the petition of intervention must fail with it. See 37 So.2d 476.

Clearly, under the facts of this case, the plaintiff was without any interest in the cause of action; and since the repairs were paid for by his father, the owner of the car, and his only alleged interest in the matter (as stated in his supplemental petition) is that he is morally obligated to pay the same, does not créate such an interest as would authorize him to bring the action; and his allegation that he had an oral mandate, we think, as did the Court of Appeal, was an afterthought — an attempt by the plaintiff to bolster up his petition.

It is the plaintiff’s contention, however, that under the jurisprudence of this state as announced in the cases of Reeves v. Globe Indemnity Co. of New York, 185 La. 42, 168 So. 488, and Douglas v. Haro, 214 La. 1099, 39 So.2d 744, plaintiff should have been permitted to amend his petition, showing that he was acting for the use and benefit of his father under an oral mandate, particularly since he is supported in this by his father’s petition of intervention. There is no merit in this contention. In the Reeves case the party who was injured instituted the proceeding, and was allowed to amend after an exception of no right or cause of action was filed in order to make the necessary allegation that the defendant’s insured was at fault. In the course of its opinion the court pointed out that.on this question the decisions of this Court were in conflict, the earlier cases holding that the amendment could be made, later cases (between 1880 and 1922) holding to the contrary; but following that year the court had uniformly held that where a petition failed to state a cause of action due ' to insufficient ‘ allegations, an amendment would be allowed; and observed that this conclusion was not only in accordance with the weight of authority but “consonant with considerations of equity and the modern trend of liberality in upholding substantive rights instead of subtle technicalities.” [185 La. 42, 168 So. 491] And in the case of Douglas v. Haro, the plaintiff, who was under contract with the New Orleans Bank Cooperatives to take care of 'their Buick automobile for a consideration, instituted suit against the defendant to recover damages to the automobile suffered in a collision between it and the defendant’s car; and this court held that inasmuch as the depositor had ten years in which to file a suit against the plaintiff under the provisions of the Civil Code, and the right of action to recover damages from the defendant was one which prescribed in one year, that the plaintiff was deemed to have an interest to bring such action — but inasmuch as the depositor had not been made a party, remanded the case for that purpose. If the plaintiff here had alleged in his original petition that the suit was brought for the use and benefit of his father but had omitted to allege under what authority he brought the suit, or that he was authorized to bring the suit but had failed to allege that it was for the use and benefit of his father, or if he had alleged that he was under obligation to his father for the repairs, we think under those circumstances the plaintiff would be entitled to amend his petition in order to supplement the deficiencies in the petition to state a cause of action; but we do not .think the practice should be extended to allow amendment of the petition the effect of which would be to state a cause of action in a third person. To so hold would have the effect of encouraging meddlers to champion the rights of others. Compare with Drs. Toler & Toler v. Munson, 184 La. 895, 168 So. 93.

The other cases relied on by, the plaintiff are pertinent neither from a factual nor a legal standpoint and therefore are not controlling.

For the reasons assigned, the judgment of the Court of Appeal, First Circuit, affirming the judgment of the district, court, is reinstated and. made the. judgment of this court.'

LE BLANC, J., recused.''


author: McCALEB, Justice. FOURNET, Chief Justice. . HAMITER, Justice HAWTHORNE, Justice McCALEB, Justice MOISE, Justice. LE'BLANC, Justice McCALEB, Justice HAWTHORNE, Justice HAMITER, Justice

text:
    217 La. 14
    STATE v. KOLB.
    No. 39231.
    Supreme Court of Louisiana.
    March 21, 1949.
    On Rehearing Dec. 9, 1949.
    On Second Rehearing March 20, 1950.
    Cawthorn & Golsan, Mansfield, Cecil C. Cutrer, Lake Charles, for defendant-appellant.
    Osceola H. Carter, Delos R. Johnson, Franklinton, amici curiae.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., J. .Reuel Boone, Dist. Atty., Many, Jack L. Simms, Asst. Dist. Atty., Leesville, R. C. Gamble, Sp. Counsel, Mansfield, for appellee.
   McCALEB, Justice.

Appellant was charged, tried ■ and convicted of operating a blind tiger at his drug store in the town of Logansport, De Soto Parish, which is dry territory. After being sentenced to pay a fine of $400 and costs, he prosecuted this appeal. •

Three bills of exception were reserved in the trial court but they apparently have been either abandoned (not argued orally or in brief) or 'have been interwoven with cither contentions so that the case presents three' grounds (said to‘ be patent on the face of the record) for a reversal of the conviction.

The- first contention is that the Blind Tiger Act, Act 8 of the Ex.Sess. of 1915, has ■ been repealed. The case of State v. Carter, 179 La. 156, 153 So. 676, is said to support this proposition.

Section 1 of Acf'8 of the Ex.Sess. of 191-5'defines a blind tiger to be “any place in those subdivisions of the State, where the sale of spirituous, -malt or intoxicating liquors is prohibited, where such spirituous, malt or intoxicating liquors are kept for sale, barter, or exchange or habitual giving away” or any place in such subdivisions where the sale of intoxicating liquors is prohibited where such liquors are kept for saje, etc. in connection with any business conducted thereat.

Act 39 of 1921, Ex.Sess., the Hood Act, the general prohibition law passed to conform with National prohibition, did not repeal the Blind Tiger Act — for in Section 10 thereof, it was specifically provided that that Act was - to-remain in full force and effect. Thereafter, when the Hood act was repealed by Act 1 of the .Ex.Sess. of 1933, the Blind Tiger Act was not affected in any way. Of course, prior to the enactment of the present Local Option Law, Act 17 of the First Ex.Sess. of 1935, no prosecutions could be maintained under the Blind Tiger Act for the simple reason that there were no subdivisions-. within the State wherein the sale of intoxicating liquors was or could, be prohibited. But, since the passage of the local option law and the adoption -of ordinances in various subdivisions prohibiting, the sale of intoxicating liquors, the Blind Tiger Act has the same force and effect which it had prior to the adoption of the Hood act.

This conclusion is fully fortified by the decision in State v. Carter, supra, upon which appellant relies. In that matter, the defendant was charged with having violated the Blind Tiger Act on December 7, 1933. He moved to quash the information' on the ground that the Hood act had :repealed the local option law, Act 221 of 1902, in effect at that time’; that local option. had not been revived by’ the repeal of the Hood act and that, therefore, there was no subdivision in the State on December-7,- 1933 wherein the sale of intoxicating liquor-Was prohibited. The '■ court 'sustained -the com' tention holding that, since the local option-law was not revived by' the repeal of the Hood act, the Blind Tiger. Act was in a state of “innocuous desuetude’’. , .

Obviously, then, coexistent with the .'enactment of 'the local option law in 193.5- and the passage of ordinances prohibiting the-sale of liquor in-various. subdivisions, the Blind Tiger-Act-has émanated from:its-state of harmless inefficacy and regained .its former potency.

The second contention of" appellant is that, since he was operating a drug store and selling’ liquors for medicinal purposes under various permits' (State and Federal), he cannot violate the Blind Tiger Act.-because-that law: prohibits only the unlawful keeping o'f intoxicating liquors for sale.Two points are made under this proposition (1) that appellant’s keeping of liquor was a lawful and licensed keeping for sale and (2) that, since there are no subdivisions of the State where the sale of liquor is prohibited when the sale is made by a licensed pharmacist on prescription of a- licensed' physician, a duly licensed, drug store’’cannot be a blind tiger. ;

The short' answer -to -both propositions-is that they involve the determination of questions ’of fact of which this court’ is without jurisdiction under Section 10 o-f Article 7 of the-Constitution. The indictment' charges appellant with'-operating a blind tiger- in that he was unlawfully keeping intoxicating liquors for sale in his d-rug store which is located in ' dry'territory. Whether the keeping- of the liquors was an unlawful keeping is purely a question of fact — for, surely, it cannot be Seriously argued that,. • because appellant operated; a drug store under a license, he is immune-from-prosecution -for violation-of the--Blind. Tiger Act even though his liquor sales were for beverage purposes. And his declaration that the liquors kept by him were for medicinal purposes does not affect the validity of the indictment; it can only be asserted as a matter of defense. Section 2 of Act 17 of the First Ex.Sess. of 1935, Local Option Law, declares, in part: “Where it is contended in- any prosecution for the violation of any law of this State or' any ordinance enacted pursuant to the authority1 of this act that any such liquors were prescribed and sold as a medicine, it shall be for the court to decide whether such prescription and sale' were made'-in good faith and in case of sickness, or as a mere subterfuge and with intent to evade the provisions of such laws or ordinances.” (Italics ours.) See also State v. White, 195 La. 1028, 197 So. 745.

Defendant’s final proposition is that his conviction cannot stand because the sales were made by a licensed pharmacist at a, time when he was not present, nor was he shown to aid,, assist, or abet the. actions of t-he-.phar’mácist. - .

This complaint manifests only a. question of fact. 'It addresses itself to the sufficiency of the evidence rather than'the absence of any proof on which a judgment of conviction might.; be based. .

The conviction and sentence are affirmed.

O’NIELL, C. J., takes no part.

On Rehearing . •

FOURNET, Chief Justice. .

This appeal presents for our consideration the question of whether a duly licensed drug' store’operated in -a dry territory can be classed as a “Blind Tiger” when intoxicating liquor is kept there for sale under a permit’granted by the-state in accordance with the specific provisions of the Local Option Law.

A “Blind Tiger” is defined in Séct'ion 1 of Act 8 of the Extra Session of 1915 to be any place, whether connected with another business conducted at that place or. not, “in - those subdivisions of the State where the : sale of spirituous, malt or intoxicating liquors-is prohibited, where such, spirituous, malt or intoxicating liquors are kept for' sale,' barter, or exchange or 'habitual giving away”. The keeping of a “Blind Tiger” is denounced in Section 2 as a misdemeanor and is made punishable by fine and imprisonment in Section 4. (Italics ours.)

Obviously, in order for the “Blind Tiger” act to be effective, the sale of intoxicating liquor must be prohibited in the locality where it is sought to be enforced. It was thus inoperative fqllqwing the repeal of the 18th Amendment to the Constitution of the United States and the adoption ,of Act 1 of the Extra Session of 1933 in conformity with this amendment, when the sale of liquor was permitted throughout the entire state, and it remained inoperative (except in certain cases that are not pertinent here) until the legislature, in the exercise of its police power,, sought to .regulate and license the sale of malts and intoxicating liquors by its adoption of Act 2 of the Extra Session of 1933 and Act 15 of 1934, providing that the sale of beer and intoxicating liquor would be permitetd and licensed throughout the state except in those subdivisions that had been declared dry territories pursuant to a referendum held under the provisions of these acts. Subsequently, in a special act that is known as the Local Option Law, the' legislature at the 1st Extraordinary Session of 1935’de-tailed in its Act 17 the procedure' to be followed in. conducting such referendums and the effect thereof, authorizing the authorities of such subdivisions to adopt ordinances prohibiting the sale or keeping for sale of intoxicating liquors for beverage purposes in those territories where the referendum has been successful. In Section 2 of the act, however, it is provided that “this Act shall not authorize the prohibition of the sale of such liquors when prescribed by a licensed physician as medicine”, and Section 3 expressly "authorizes the state to grant permits or licenses for the sale of these liquors by druggists when they are prescribed as a medicine by a licensed physician.

Clearly, therefore, a drug store that is keeping intoxicating liquors on its premises under a permit' issued by the state in compliance with the provisions of this Local Option Law is doing so under the specific provisions of the' very 1 law that renders possible the designation of municipalities and other subdivisions of the state as dry territories, and, -in our opinion, such a drug store by its possession and keeping of these' intoxicating liquors for sale under süc'h a permit cannot be said to be violating1 any law and cannot be classed- as a “Blind Tiger.” • ■

The abuse of such a license or permit, that is, the sale of intoxicating liquors by a ' licensed pharmacist employed by the owner of a drug store — or, by thf owner himself if he be a party to the transaction-on a prescription of a physician that was not issued in good faith, violates the Local Option Law itself and, under the express terms of1 this law, is punishable as such. In other words, the 'fact that there has been a violation of the law by-the illegal sale of intoxicating liquors that are legally kept on the premises, for sale for. medicinal purposes, cannot -render the premises themselves a-“Blind Tiger.” The offender in such cases is subject to prosecution as a violator of the parish ordinance, the municipal ordinance, or of the state law. , .

■ To hold otherwise would render all drug stores in dry territories holding such' permits prima facie “Blind Tigers,” destroying the presumption of innocence and compelling the owners thereof, when charged, to show by way o'f defense the good faith of each and every sale made under a doctor’s prescription of- the intoxicating liquor that was on the premises 'with the express permission of law. This was never' the intention of the legislature. ■ •

For the reasons assigned, the conviction and sentence are annulled and set aside and it is now ordered that the defendant be discharged and' that the intoxicating liquor seized on the premises be released.

HAMITER, J., concurs and assigns written reasons.

HAWTHORNE and McCÁLEB, JJ., dissent and assign written reasons.

HAMITER, Justice

(concurring). '

If this prosecution were under an ordinance adopted pursuant to the Local Option Statute, Act 17 of the First Extra-ordinary-Session of 1935, we would be obliged to affirm defendant’s conviction and sentence. The appeal would then present only the issue of whether or not defendant as a licensed druggist was keeping liquor for sale for medicinal purposes, a question of fact of which -this court cannot entertain jurisdiction. But such is not the case. Defendant was indicted, tried and convicted for violating the Blind Tiger Statute (the indictment discloses and the State concedes this), and, as pointed out in the majority opinion, that statute is inapplicable to the sale of liquor by a licensed druggist when prescribed by a physician as medicine.

I respectfully concur.

HAWTHORNE, Justice

(dissenting).

In my opinion, a drug store licensed to sell liquor is a blind tiger when illegal sales of liquor are made at that place. When a druggist is indicted for keeping a blind tiger, his contention that the intoxicating liquor is kept and sold when prescribed by a licensed physician as a medicine must be urged by way of defense. Under the Blind Tiger Act, a blind tiger is any place, in a part of the state where the sale of intoxicating liquor is prohibited, where intoxicating liquor is kept for sale; but, since keeping for sale or selling liquor by a duly licensed drug store, when prescribed by a licensed physician as a medicine, is not illegal, a plea that the liquor is kept for sale and sold in a licensed drug store only when prescribed by a licensed physician as a medicine would present an exception to this definition, and thus would be a matter of defense.

I respectfully dissent.

McCALEB, Justice

(dissenting).

The prevailing opinion declares that the question for consideration is “whether a duly licensed drug store operated in a dry territory can be classed as a ‘Blind Tiger’ when intoxicating liquor is kept there for sale under a permit granted by the state in accordance with the specific provisions of the Local Option Law.” But, in reality, that is not the exact question. It would be more appropriate to say that the question is whether a drug store, which sells intoxicating liquor -for beverage purposes in dry territory, is immune from prosecution under the Blind Tiger Act merely because its proprietor holds a permit to sell liquor for medicinal purposes on the prescription of a licensed physician. It strikes me that this question answers itself. Obviously, where the liquor is being kept for sale for beverage purposes, it is being illegally kept and, therefore, not being kept under the permit for the simple reason that a permit for the sale of liquor in dry territory can be granted only for medicinal sales “when prescribed by a licensed physician”. See Section 3 of Act 17 of the First Extra Session of 1935.

It follows that, if the liquor is 'not kept under the permit, the drug store falls squarely within the definition of a “Blind Tiger” and the fact that its owner held a permit for the sale of liquor when prescribed by a licensed physician as a medicine does not change its status as such. The holding to the contrary effects an amendment of Act 8 of the Extra Session of 1915 by excepting . from its provisions drug stores that have obtained a permit to sell liquor for medicinal purposes when no such exception appears in the statute.

For these and the reasons given in the original opinion, to which I adhere, I respectfully dissent.

On Second Rehearing

MOISE, Justice.

This is an appeal from a conviction under the Blind Tiger Act — No. 8 of the Extra Session of 1915. The judgment of conviction was affirmed by this Court on the original hearing. However, on rehearing the judgment of conviction and sentence were annulled and set aside. Because of the manifold complexities of the law, a second rehearing was granted and this case is now under consideration by us for a third time.

The Hood Act, No. 39 of 1921, which came into existence at the Extra Session of 1921, was repealed by Act 1 of the Ex.Sess. of 1933, and the National Prohibition Law having likewise gone out of existence, the entire State at that time had no prohibition against the keeping for sale of intoxicating liquors, provided the businesses were prop"-erly licensed. ■ Under these circufhstances, the Legislature, in its wisdom, felt that municipalities, wards and parishes, if they so desired, should have the right by a vote of the people to declare, for local option within their territorial limits and, therefore, .enacted Act No. 17 of the Ex.Sess. of 1935. In this local option statute the sovereign reserved to itself a limitation by and under which the. local optionist could not go beyond the limitation imposed in Section 3 thereof. This section provides, in substance, that intoxicating liquors .can .be kept in dry territories and can be sold by drug stores on the prescription of a physician. Section 6 of the statute provides that, in order to make local option herein effective in those parishes, wards and municipalities where liquor traffic is prohibit ed by a vote of the people — as is the situation in the Town of Logansport,- which is dry territory — that the authorities be granted both a right and a remedy to enact ordinances and provide for their enforcement by penal punishment. The universal rule is that “A law can prescribe only for the future * * *.” Revised Civil Code, Art. 8. Therefore, prosecutions for the violation of the local option law in dry territories can only be effected under ordinances adopted in accordance with the statute, or by future, enactments. In analyzing the Blind Tiger Act, we must give significance to the word “blind”. As used in the statute, te word “blind” means a surreptitious concealment or that which is not visible to the naked eye. In the instant case, we have no concealment and it is impossible to reconcile the language of the indictment with the language of the statute charging the operation of a “Blind Tiger”. Therefore, the sleeping “Blind Tiger” should not be aroused and should remain’ where it was placed by the former decision of this Court — in a state .of “innocuous desuetude”.

Being in accord with the views expressed in our opinion on first rehearing,, we adopt and make them a part hereof..

For the reasons given in our opinion on the first rehearing- and as amplified by the views herein expressed, our decree on first rehearing wherein the conviction and sentence are annulled and set aside ánd the defendant discharged and the' iritoxi'cating liquor -seized- on the- premises ordered released, is' reinstated and made- the -final judgment of this Court.

LE BLANC, Jl, concurs with Written reasons: -

HAMITER, HAWTHORNE and Mc-CALEB, JJ., dissent with written reasons.

LE'BLANC, Justice

(concurring).

It may be inferred 'from the language in the opinion written for the majority of .the court on the present rehearing, that Act No. 8 of the Extra Session of 1915, commonly referred to as the Blind Tiger Act, was repealed by the repeal of the State law passed in pursuance to the National Prohibition Law and known as the Hood Act. If I am correct in so interpreting the opinion I cannot agree with -that part of it. The Hood law, Act 39 of 1921, specifically retained the Blind Tiger law in effect -and although it may not have been necessary to make use of or enforce its provisions1 during the existence of State-wide prohibition, it nevertheless remained a valid law of the State. The repeal of the Hood law by Act No. 1 of the Extra Session of 1933 had the effect of ending prohibition -in the State and until further legislation on the subject of liquor was enacted, the Blind Tiger law still lay dormant. In 1935 new legislation was enacted by the passage of Act 17 of the First Extra Session of that year. That Act provided for local option elections and it had the effect of reviving the Blind Tiger law and making its provisions enforceable in those areas where the people had voted against the sale of intoxicating liquors.

I am of the further opinion however, that the local option law of 1935 had the effect of exempting drug stores from the operation of the Blind Tiger law since the local option law, Act 17 of the First Extra Session of 1935 specifically provides in section 2 that “this Act shall not authorize -the prohibition of the sale of such liquors when prescribed by;a licerised physician as medicine” .and- section 3 expressly authorizes the State to grant permits or licenses for sale of such liquors by druggi-sts when prescribed as -medicine by a licensed physician. , In order-to so sell them it is obvious that druggists must “keep them for sale” and the keeping them for sale is the only .thing that is denounced by Act' 8 of the Extra'Session of 1915, the Blind Tiger law. Admittedly, the prosecution in this case is onq for- violation of that law and the only question presented, as I view it, is the question of law whether -such prosecution can be maintained against this defendant who is a druggist. I am of -the opinion that it cannot.

For these reasons and for the reasons stated in the majority opinion on the first rehearing, I concur in the decree now being handed down.

McCALEB, Justice

(dissenting),

My comprehension of the latest majority view is that it' is now -held that the Blind Tiger Act-, Act 8 of the Extra Session of 1915,. although it has never been repealed, either expressly or impliedly, is doomed to -remain “in a state of ‘innocuous desuetude’ ” despite the fact that there are presently subdivisions of the State wherein the sale, possession, etc. of intoxicating liquor is prohibited. In concluding thus, the majority have overruled the case of State v. Carter, 179 La. 156, 153 So. 676 by indirection.

Moreover, it is also apparent that the Court -has assumed jurisdiction of a question of fact in a criminal case, contrary to Section 10 of Article 7 of the Constitution, for it is resolved that “In the instant case we have no concealment * * *■”, obviously meaning that the facts of the case show that the defendant did not operate a “bl-ind tiger” but that he lawfully and openly sold or kept for sale the large quantities of intoxicants found in his possession under his restricted permit to sell it only as a medicine when prescribed by a licensed physician. As long as the court is dealing in facts, it is apt to remark that there is no. evidence in the record justifying the conclusion that defendant did not use his drug store as.-a “blind” for the .purpose of screening his unlawful-conduct. , .

■'For- these and the reasons heretofore given, I réspectfully dissent.

HAWTHORNE, Justice

(dissenting).

■’ I dissent, adhering to the views expressed in my dissenting opinion heretofore written when the case was decided- by this court on first rehearing. The majority has éxercised a legislative- function, - for -its opinion has the effect' of repealing in its entirety the Blind Tiger Act.

HAMITER, Justice

(dissenting).

In a concurring opinion on the first rehearing, following my pointing out that a prosecution of defendant under the ordinance adopted pursuant to Act 17 of the First Extraordinary Session of 1935, the Local Option Statute, would be proper, I observed that Act 8 of the Extraordinary Session of 1915, the Blind Tiger Act, is inapplicable to the sale of liquor by a -licensed druggist when prescribed by a physician as medicine. Undoubtedly, this observation, as thus limited,' i-s. correct. It does rio-t comprehend, however, a possible factual situation whereby a druggist, although duly licensed’, keeps intoxicants in a dry territory for salé for purposes other than as medicine. In this suggested factual situation, I readily concede, the druggist would not only be violating the ordinance adopted pursuant to the Local Option Statute but also he would be operating in a manner contrary to the provisions of the Blind Tiger Act.

The provisions of the Blind Tiger Act are still effective, it appears, unless superseded by those of the Local Option Statute (none is' expressly repealed thereby). Clearly, they have been superseded insofar as they applied to a druggist’s keeping for sale, under a properly issued permit, liquor •when prescribed by a licensed physician as a medicine, this being specifically authorized by the later statute. I find, however, that they were not superceded--with respect to a druggist (even though holding a permit) Who keeps intoxicants in a dry territory for sale for purposes other than for medicine. Section 2 of the Local Option Statute contains a recitation (to which I did not give proper effect on the first rehearing) that obviously relates to and contemplates such a case and, with respect thereto, retains the efficacy of all former applicable laws, including the Blind Tiger Act.. • In part, that section states: “ * * * Where it is contended in any prosecution for the violation of any law of this State or any ordinance enacted pursuant to the authority of this act that any such liquors were pre-. scribed and sold as a medicine, it shall be for the court to decide whether such prescription and sale were made in good faith and in case of sickness, or as a mere subterfuge and with intent to evade the provisions of such laws or ordinances.” (Italics ours.)

Therefore, and after further consideration of the principal issue presented by this prosecution, I am of the opinion that a violation of the provisions of the Blind Tiger Act can be committed, under certain circumstances, by a duly licensed drug store operated in a dry territory. But whether this defendant has been guilty of such an offense is a question of fact with reference to which this court has no jurisdiction.

For the above reasons, as well as those assigned in the majority .opinion rendered on the original hearing of this cause, I respectfully dissent.


author: MOISE, Justice. HAWTHORNE, Justice .LE BLANC, Justice. IJOISE, Justice

text:
    217 La. 32
    STATE v. BRADFORD. In re BRADFORD.
    No. 39594.
    Supreme Court of Louisiana.
    Dec. 9, 1949.
    On Rehearing March 20, 1950.
    Michael E. Culligan, Jr., New Orleans, for relator.
    Bolivar E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Herve Racivitch, Dist. Atty., Guy Johnson, 1st Asst. Dist. Atty., New Orleans, for respondent.
   MOISE, Justice.

Writs were granted herein under our supervisory jurisdiction to finally review the judgment of the Criminal District Court for the Parish of Orleans denying relator’s demand for dismissal of an indictment •for forgery on the plea of three years’ prescription, filed under the provisions of Article 8 of the Louisiana 'Code of Criminal Procedure, as amended.

Our' examination of the record establishes the following facts:.

The Grand Jury of the Parish of Orleans returned the indictment - (Case No. 121-318) against Oliver F. Bradford on May 21, 1946. The case was originally allotted to Section “A” of the Criminal District Court for the Parish of Orleans, and an arraignment was set for May 29, 1946, but was continued to June 5, 1946 by the defendant. Ón that day the defendant filed a motion to quash, which was fixed for trial on June 14, 1946. On June 14, 1946, the motion to quash was overruled, as .were, also. a demurrer and a motion to elect, which had been presented on that day. On the same date the defendant also submitted an application for a bill of particulars, which was taken under advisement by the court until June 21, 1946. On June, 21, 1946 the court deferred judgment on the application for a bill of particulars until June 26, 1946, and on the latter date it further deferred judgmént.dn that application until August 2, 1946. However, no judgment was ever rendered in Section “A”. Under the provisions of Section 3 of Act 109 of 1948, the case was reallotted on July 3, 1948 to Section “F” of the Criminal District Court. The case finally 'having been called on June 21, 1949, defendant filed a plea of prescription, and a hearing thereon was continued by the court because of other matters be~fore it. The minute entry on July 5, 1949 shows that the case was then continued until July 11, on the defendant’s motion. On that day, the plea of prescription was overruled, and the motion for a bill of particu-r lars originally filed in Section “A” was denied and the case set for trial on August 30, 1949. On August 24, 1949, defendant applied to this Court .for writs of certiorari, prohibition and mandamus. The per curi-am handed down on September 1, 1949 by the 'judge1 of Section "F” states that the motion for a bill of particulars had interrupted prescription, so that the subsequent plea of three years’ prescription could not be sustained. On September 12, 1949, defendant filed a supplemental application for writs of certiorari, prohibition and mandamus, alleging that the judge of Section “F” (to which this case-was reallotted in 1948) had not been fully aware of all the circumstances attendant on the failure of the judge of Section “A” to render an immediate decision on the motion for the bill of particulars filed in 1946. It is stated by defendant that that inaction was prompted by the District Attorney’s advice not to pass on said motion as he intended to prosecute defendant Bradford on two other indictments, campanion to the indictment prosecuted in this case (No. 121-318). On September IS; 1949, the judge of Section “A” responded to the supplemental application for writs, averring that he was not a legal party to the proceedings, since he had not rendered the ruling or order complained of. On September 21, 1949, the State filed its opposition to the defendant’s application, and on September 27, 1949, defendant answered the opposition and made a supplemental application for writs of cer-tiorari,'prohibition and.mandamus involving the two companion cases, Nos. 121-265 and 121-317. These cases are not before us as no record has been sent up.

The issue presented to us for determination in the instant case is the correctness of the trial judge’s ruling that defendant’s motion for a bill of particulars, filed on June 14, 1946, interrupted the running of three years’ prescription on the indictment. Article 8 of the Code of Criminal Procedure provides in part as follows:—

“In felony ca'ses -when three years elapse from the date of finding an indictment, or filing án information, and in all other' cases when two years elapse- from the date of finding an indictment, or filing an information or affidavit, it -shall be the duty of the district attorney to enter a nolle prosequi if the accused has not been tried, and if the district attorney fail or neglect to do so, the court may, on motion of the defendant or his attorney cause such nolle prosequi to be entered the same as if-entered by the district attorney.

“Nothing in this article shall apply or extend to an accused person who has absconded, or who is a fugitive from justice or who has escaped trial through * dilatory pleas, or continuances obtained by him or in his behalf. (As amended, Acts 1935 (2nd E.S.), No. 21, § 1; 1942 No. 147, § L)”

The State vigorously urges objection to the sustaining of the plea of prescription by contending that the accused has escaped trial through dilatory pleas and continuances obtained by him or in his behalf; and secondly, that the plea of prescription should not be sustained because the defendant has waived his. right1 to a speedy public trial by not demanding same.

Both of these pleas must be considered' in the light of the Bill of-Rights of the Constitution of the State and the interpretation to-be placed thereon.. In considering the provisions of the article of: our Constitution which provides fot a speedy trial, we must also look into the intent of the original Bill of Rights — the guarantee of protection to 'individual citizens from arbitrary methods of prosecution and trial. The right of a speedy trial is a direction to the government and its agents to carry into effect such a provision in the interest of the accused, as well as a privilege, granted to the accused. Thus, we have a twofold objective — the State must proceed and the accused can demand. ■ The accused’s failure to assert his right does not relieve the State from its obligation of proceeding. The former’s right is so correlated with the latter’s obligation that a consideration of either involves a discussion of both.

An accused must be informed of the nature and charactér of the charge made against him, and the charge must be' clearly set forth, before he can answer thereto by pleading his innocence or guilt. Under our Criminal Code, we have adopted a short form of indictment. The plea for a bill of particulars must necessarily be construed and considered in connection with the demand to be informed as to the nature and character of the charge. It relates to a matter of substance and a constitutional right. However, there is no need for a discussion on this point because the record clearly reveals that from June 14, 1946, the date of the alleged interruption by the filing of the motion for a bill of particulars, until June 21, 1949, the date the case was finally called, a period of more than three years had elapsed during which neither prosecution nor defense did anything in this matter. Certainly, the defendant had no control over the prosecution’s inaction. There was nothing he could do; he had filed a motion for a bill of particulars to be informed of the nature and character of the offense, and he did not even have to plead to his guilt or innocence until that was furnished.

We do not find from the facts of this case that the defendant, comes within the exception of Article 8 of the Code of Criminal Procedure, which provides: “Nothing in, this article shall apply or extend to an accused person * * * who has escaped trial throtigh dilatory pleas, or continuances obtained by him or in his behalf.” (Italics mine) so as to prevent him from obtaining relief • against prosecution beyond the prescriptive date of three years..

A motion for a bill of particulars in a criminal case could not be termed as dilatory by its nature, because it is a necessary adjunct to the use of the short form of ■ indictment to prevent the violation of the constitutional rights of an accused. The failure to act for whatever reason by a court or by a district attorney or'by both should not be resolved as a matter of omission and fault of a defendant.

For the reasons assigned, the ruling of the trial judge is. reversed and set aside, and the defendant’s plea of prescription of three years is sustained, and it is ordered that a peremptory writ of prohibition issue-herein, directed to Hon. Niels F. Hertz, Judge, of Section “F” of-the Criminal District Court for the Parish of Orleans, prohibiting further proceedings in the. prosecution complained of, and that the charge against Oliver F. Bradford be nolle prose-quied.

HAWTHORNE, J., dissents and assigns written reasons.

McCALEB,'J., concurs in the decree.

HAMITER, J., dissents for the written reason assigned by HAWTHORNE, J.

HAWTHORNE, Justice

(dissenting).

In my opinion the ruling of the trial judge overruling the plea of prescription is correct. As long as the district judge had under advisement the defendant’s application for a bill of particulars, the State could not proceed to trial. The law could not contemplate imposing a duty on the State to try a defendant when in law it was impossible for the State to proceed because of a procedural move of that de-fendarit. It is true that the Constitution guarantees to the accused in criminal cases a speedy trial, and it is ' equally true that the law of this state places upon the district attorney the duty of trying an accused within three years, but it was never intended that the delay of the judiciary in passing on a plea of the accused could be considered as delay by the district attorney to deprive the accused of a speedy trial. The application of the defendant for a bill of particulars was a dilatory plea which operated to delay his trial and places this case in the exceptions to Article 8 of the Code of Criminal Procedure, so that the accused was not entitled to have the indictment nol-prossed.

The effect of the reasoning'in the majority opinion is far-reaching, and in my opinion places a duty and responsibility on the district attorney which the law never intended. Numerous examples could be set out wherein an accused might not be brought to trial within three years, and the State would not be responsible for the delay, but one example will suffice to illustrate the point. Let us assume that an accused is successful in having an indictment quashed within the three-year period; that the State appeals, as it has a right to do, just as the accused had the right to apply for a bill of particulars in the instant case; that, because of the delay for the appeal to be heard and the delay during which this court keeps the case under advisement, the decision reversing the district court is not rendered until after the three-year period. By the decision in the instant case the district attorney could be compelled, and it would be his duty, to nol-pros the indictment. If the delay caused by the district judge’s having a pre-trial matter under advisement can be counted in computing the three-year period, the delay caused by the Supreme Court’s having the matter under advisement can also be counted.

The view taken by this court in State v. Theard, 203 La. 1026, 14 So.2d 824, if applied here, would better promote the ends of justice. In that case the accused could not be tried because he had been committed to an institution on the plea of present insanity. After three years, upon regaining his sanity, the defendant moved that the' bill of information be nol-prossed. This court held that the State could not be compelled to nol-pros the information because it had been prohibited by law from bringing the accused to trial. This reasoning is' equally applicable . to • this case, for here the State has been prevented by a plea of the defendant from bringing him to trial. • ■

The judiciary should protect and defend at all times the right of an accused to a speedy trial, but at the same time the interest of the State and the public generally in apprehending and punishing criminals should not be disregarded.

I respectfully dissent.

On Rehearing

.LE BLANC, Justice.

This- case is before the court on a rehearing granted the appellee, State of Louisiana.

As is noted in -the majority opinion on the original hearing, this is a felony case in which there was-a plea of prescription filed, based on the fact,- as appeared from the record, that three years had. elapsed from the date of finding -an indictment without the accused being tried.

Article 8 -of the Code of Criminal Law and Procedure makes it incumbent on the District Attorney, in such cases, to enter a nolle prosequi, and if he should fail or neglect to do so, the court may on motion of the defendant or his attorney cause such nolle prosequi to be entered. The article prescribes further that none of its provisions “shall. apply or extend to an accused person who has absconded, or who is a fugitive from justice or who has escaped trial through dilatory pleas * *

The State had contended that the accused had escaped trial through a dilatory plea when he filed an application for a bill of particulars which was received by the Court, ordered filed and taken under advisement, where it remained in abeyánce and was not acted on until more than three years had elapsed from the date of the" indictment. The question at issue was whether or not the application for a bill of particulars constituted such a dilatory plea as is contemplated in the article of the Code of Criminal Law and Procedure from which we have just quoted. The trial judge evidently held that it was, since he over-ruled the plea of prescription. On reviewing his ruling on writs which had been granted, this court, in a majority opinion, held that he. was in error and consequently reversed his ruling and rendered a decree sustaining the plea of prescription. It ordered that a peremptory writ of prohibition issue to Honorable Niels F. Hertz, Judge of Section “F” of the Criminal District Court for the Parish of Orleans prohibiting further proceedings in the prosecution complained of.

After a careful review of the majority opinion on the original hearing we have reached a different conclusion and now hold that the application or motion for a bill of particulars was such a dilatory plea as was intended under Article 8 of the Code of Criminal Law and Procedure and through which the defendant had escaped trial up to the time it was acted on in the district court.

The Code of Criminal Procedure does not define a dilatory plea and there is no reason we can think of why the definition of such plea as given in the Code of Practice of Louisiana should not apply. According to the definition as found in Article 332, they are exceptions “such as do not tend to defeat the action, but only to retard its progress; * * Certainly that is the light in which a plea for a bill of particulars must be regarded in a criminal case. It is comparable to an exception of vagueness in civil matters and merely calls for more information by the accused before he thinks he should be made to plead to the indictment so that he can better prepare his defense. It by no means' defeats the charge that is made in the indictment and only tends to delay the progress of the prosecution. To this extent, it will be necessary to reverse the judgment rendered in the original hearing.

However, • under the situation that is . presented in this case, we find it impossible to render a final decision at this time.

It strikes us as being'a most unusual circumstance for a trial court to hold a plea sufch as an application for a bill of particulars under advisement for as long a period as was done in this instance. No reason for the delay appears from the- record but we think -that one must have existed. Whilst the matter was pending, a new division of the Criminal District Court for the Parish of Orleans was created’ by Act 109 of 1948 and' it became necessary in pursuance ■ of • the provisions of that act to reassign and reallot all the cases pending before that Court. Necessarily that involved some time and considerable work and -it may be that some of the delay may thus be accounted for. At any rate we have concluded that the cause of the delay should be ascertained so that we can more intelligently pass on the merits of the plea of prescription.

The State is interested in seeing that an accused be made to stand trial for an offense with which he is charged, and the accused,, on the other. hand, is entitled to preserve every legitimate right of defense he may have. We are unable to pronounce judgment in the state in which the record stands. As we believe that the interest bf justice will b.est be sérved by remanding the case to the district court, for the purposé of finding óút, if possible, what was the cause of the delay in the ruling on the plea for a bill of particulars, and of ascertaining whose fault it was, if there was any fault, that it was not acted on before, we have concluded to do so.

For the reasons stated, it is ordered that the former judgment herein be reversed, set aside and annulled, and it is now further ordered that this case be remanded to Section “F” of the Criminal District Court for the .Parish of Orleans, to be proceeded with in accordance with the views herein expressed. .

MOISE, J., dissents, believing that original decree should be reinstated, and will assign reasons:

IJOISE, Justice

(dissenting).

Under the law, -since the adoption of the short form of indictment, the filing of a bill of particulars in a criminal case is¡a matter of right. State v. Bessar, 213 La. 299, 34 So.2d 785; State v. Chanet, 209 La. 410, 24 So.2d 670 and State v. Masino, 214 La. 744, 38 So.2d 622. More than three years has. expired since the filing of.the bill of particulars in the instant case and no further action has been taken by the prosecution since that time. Therefore, ,the. prescription of three years has accrued.-. To deny defendant the right to av'ail himself of prescription, the interruption of an .accrued prescription must be through some, fault of the defendant such, as being a fugitive from justice, or the continual ’ filing of dilatory pleas, obtaining continuances, and obstructing the prosecution; or. there can be an interruption whep we have a situation as in the Theard suit where the -prosecution could pot proceed because of the commitment of the accused by the court to an institution for the insane. There are many ways in which the State could set the prosecution in motion, were it not dilatory. If a judge has a. suit under advisement over thirty days the State has a right under" the law to a mandamus to compel action. A defendant should not be denied a right because of the failure of the prosecution to act. The defendant being without fault, the original decree should be reinstated. I respectfully dissent.