author: BLANCHE, Justice. DIXON, Chief Justice DIXON, Chief Justice. LEMMON, Justice,

text:
    SOUTHERN AMERICAN INSURANCE COMPANY v. Ronald DOBSON. NORTHEASTERN FIRE INSURANCE COMPANY OF PENNSYLVANIA v. Ronald DOBSON.
    No. 82-C-1583.
    Supreme Court of Louisiana.
    Feb. 23, 1983.
    On Rehearing Nov. 4, 1983.
    Rehearing Denied Jan. 6, 1984.
    Edwin Dunahoe, Thomas Dunahoe and Gregory, Natchitoches, for applicant.
    Mark A. Goodwin, Mayer, Smith & Roberts, Shreveport, Russell L. Potter, Stafford, Stewart & Potter, Alexandria, for respondent.
    Shirley Nassif, Robert E. Winn, Sessions, Fishman, Rosenson, Boisfontaine & Nathan, New Orleans, amicus curiae, for Godfrey Jasmin.
   BLANCHE, Justice.

We are called upon in this case to determine whether a commercial umbrella liability insurance policy is a policy of “automobile liability insurance” which under our uninsúred motorist statute, specifically La. R.S. 22:1406(D)(l)(a), must provide uninsured motorist coverage. This question is res nova in Louisiana.

The facts are not in dispute. On April 9, 1978, Ronald Dobson was driving a truck owned by Dobson Pulpwood Company, Inc., when he was struck by a car owned and operated by an underinsured motorist. Ronald Dobson was severely injured as a result of the accident and sought to recover .uninsured motorist insurance proceeds under three policies issued to Dobson Pulpwood. One of the policies was issued by Aetna Casualty and Surety Company (Aet-na), another by Southern American Insurance Company (Southern), and the third by Northeastern Fire Insurance Company of Pennsylvania (Northeastern). All three policies were in effect on the date of the accident.

The policy issued by Aetna to Dobson Pulpwood is termed as an “Automobile Liability and Physical Damage Policy.” It offers the insured coverage for bodily injury liability, automobile medical payments, property damage liability, uninsured motorists as well as comprehensive, theft and collision insurance. The policy shows that Dobson Pulpwood had expressly elected to provide uninsured motorist coverage on the truck driven by Ronald Dobson at the time of the accident.

Southern’s policy is a “Commercial Umbrella Liability Insurance Policy.” By the provisions of this policy, Southern agrees to indemnify Dobson Pulpwood up to a limit of $1,000,000 when Dobson Pulpwood is exposed to either personal injury liability, property damage liability or advertising liability in excess of the limits of the underlying insurance policy or policies. In relation to automobile accidents for example, Southern would indemnify Dobson Pulpwood if its personal injury or property damage liability exceeds the relevant insurance limits provided for in Aetna’s underlying policy. Southern’s policy does not expressly offer any uninsured motorists coverage to the insured.

Northeastern’s policy is a commercial excess umbrella liability insurance policy and contains provisions very similar to those included in Southern’s policy. Northeastern contracts to indemnify Dobson Pulpwood up to a limit of $2,000,000 if Dobson Pulpwood is exposed to liability in excess of the limits of the underlying policies. The policy issued by Northeastern, however, is an “excess umbrella” policy which means that the insurer will pay only when the insured’s liability exceeds that of the underlying umbrella policy limits (here, Southern’s $1,000,000 limit) and any other relevant underlying policy or policies (such as Aetna’s policy). As in the policy issued by Southern, Northeastern’s policy offers no uninsured motorists protection.

Ronald Dobson instituted a tort suit on September 13, 1978 and named Aetna, Southern, and Northeastern as defendants in order to recover uninsured motorists insurance proceeds. Dobson alleged that Aet-na provided uninsured motorists protection by the express terms of its policy. He further alleged that both policies issued by Southern and Northeastern are “automobile liability insurance” policies within the meaning of La.R.S. 22:1406(D)(l)(a), and, thus, the policies statutorily provide uninsured motorist coverage up to their limits for bodily injury liability.

Aetna admitted coverage and paid the uninsured motorists policy limit a $100,000 to Ronald Dobson. Southern and Northeastern denied that their respective policies are required by statute to provide uninsured motorists coverage and filed separate actions for declaratory judgment. These actions were consolidated for trial and comprise the present case which we now consider. Northeastern and Southern seek a declaration that commercial umbrella liability policies, whether they be commercial excess umbrella policies or commercial umbrella policies, are not policies of “automobile liability insurance” and, accordingly, they are not subject to La.R.S. 22:1406(D)(1)(a). The trial court held in favor of the defendant, Ronald Dobson. The court of appeal reversed. We granted writs to determine the correctness of the appellate court’s ruling.

The issue before us does not involve interpretation of the provisions of the policies issued by Southern and Northeastern. Each policy affords coverage to the insured in excess of the limits of the underlying policies for liability to third persons arising out of the ownership, maintenance or use of any motor vehicle by or on behalf of the insured. Neither policy expressly provides for uninsured motorist protection.

The question, rather, is one of interpretation of La.R.S. 22:1406(D)(l)(a). That statute provides in pertinent part:

“No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death, resulting therefrom; provided, however, that the coverage required under this Subsection shall not be applicable where any insured named in the policy shall reject in writing the coverage or selects lower limits ...”

We must determine whether the above statute requires commercial umbrella liability insurers to provide uninsured motorist coverage to the insured.

At the outset, we note that La.R.S. 22:1406(D)(l)(a) does not specify the types of policies which are required to provide uninsured motorist coverage. The provision simply states, “No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle ...” shall be delivered or issued for delivery in this state without affording UM protection to the insured. However, when this provision is read with reference to the other subsections of the same statute, it is obvious that La.R.S. 22:1406(D)(l)(a) was intended only to apply to automobile liability insurance policies. La.R.S. 22:1406(D)(l)(b) and (D)(1)(c), for example, refer solely to automobile liability insurance policies with regard to increasing uninsured motorist coverage. La.R.S. 22:1406(D)(l)(b) provides:

“Any insurer delivering or issuing an automobile liability insurance policy referred to herein shall also permit the insured, at his written request, to increase the coverage applicable to uninsured motor vehicles provided for herein to any amount.” (emphasis ours)

Similarly, in relation to admissible evidence in enforcing a claim under the UM provisions of a policy, La.R.S. 22:1406(D)(6) mentions only automobile liability insurance policies.

Our inquiry, therefore, focuses upon whether a commercial umbrella liability policy is an automobile liability insurance policy within the meaning of La.R.S. 22:1406(D)(l)(a). Although we have yet to address this question, other states have considered it in construing uninsured motorist statutes similar to our own.

The Alabama Supreme Court has held that an umbrella policy is not an automobile liability insurance policy within the meaning of the uninsured motorist law. (Trinity Universal Ins. Co. v. Metzger, 360 So.2d 960 (Ala.1978)). In reaching its decision, the Alabama court drew a sharp distinction between automobile liability policies contemplated by the statute and umbrella policies:

“Automobile liability policies and motor vehicle liability policies insure against the risk of loss through the operation of specific automobiles. An umbrella policy, on the other hand, is fundamentally excess insurance designed to protect against catastrophic loss. Before an umbrella policy is issued, a primary policy (the “underlying policy”) must be in existence and this primary policy must by law provide uninsured motorist coverage. The umbrella policy assumes a risk of much less frequent occurrence, i.e., the risk of judgments in excess of primary policy limits, and accordingly carries premiums which reflect the lesser magnitude of this risk. The umbrella policy issued by Trinity Universal is an inherently different type of insurance from an automobile or motor vehicle liability policy, and consequently does not come within the scope of the uninsured motorist statute.”

In O’Hanlon v. Hartford Acc. and Indem. Co., 639 F.2d 1019 (3rd Cir.1981), the Delaware uninsured motorist statute was found not to apply to umbrella policies. As in Trinity, the court examined the nature of the umbrella policy. It noted that such a policy is designed as supplementary insurance and would not exist but for the underlying (primary) automobile policy. That underlying auto policy, the court determined, provided the insured with all the benefits accorded under the uninsured motorist statute. The court concluded that it could not read the statute as to require uninsured motorist coverage in addition to that provided in the primary policy.

Umbrella policies were held not to be subject to the New York uninsured motorist statute in the case of Matarasso v. Continental Casualty Co., 82 A.D.2d 861, 440 N.Y.S.2d 40 (1981). The court in Mataras-so decided that the umbrella policyholder received the protection of the uninsured motorist statute through his underlying automobile policy and thus was not left without the relief anticipated by that law.

In Hartbarger v. Country Mut. Ins. Co. 107 Ill.App.3d 391, 63 Ill.Dec. 42, 437 N.E.2d 691 (1982), the court resolved that an umbrella policy was not statutorily required to provide uninsured motorist coverage. The court stated that an umbrella policy is a very different sort of insurance from that contemplated by the uninsured motorist statute. Unlike an automobile liability insurance policy, the umbrella policy is designed only to protect the insured against excess judgments, and the risks and premiums are calculated accordingly.

Only two states, Florida and Georgia have construed their respective uninsured motorist laws to apply to an umbrella liability insurance policy. Courts in both states have taken the position that the UM statute, by its plain meaning, is applicable to all policies which offer auto liability coverage. Since an umbrella policy includes automobile liability protection, it is subject to the UM statute and must provide uninsured motorist coverage.

We hold that a commercial umbrella liability policy is not an automobile liability insurance policy within the meaning of our uninsured motorist statute, specifically La. R.S. 22:1406(D)(l)(a). In reaching this conclusion, we are persuaded by the reasoning employed in the decisions rendered by the majority of the courts discussed above. As noted in Hartbarger and Trinity, the umbrella policy is entirely different from the automobile liability insurance policy contemplated by the uninsured motorist law. An automobile liability policy offers primary automobile liability coverage to the insured. The umbrella policy, on the other hand, is clearly designed as comprehensive excess insurance. With respect to its automobile liability coverage, the umbrella policy cannot exist without an underlying primary auto policy, which is subject to the uninsured motorist law. In terms of risks undertaken, the two types of policies also differ. An automobile liability policy insures against the risk of loss through the operation of motor vehicles covered by the policy. In contrast, the issuer of the umbrella policy assumes the much smaller risk of the insured’s exposure to liability in excess of the limits of the underlying primary policies (catastrophic loss).

The object of the uninsured motorist statute is to afford protection to the insured when he becomes the innocent victim of the negligence of uninsured motorists. Hoefly v. Government Employees Ins. Co., 418 So.2d 575 (La.1982); Booth v. Fireman’s Fund Ins. Co., 253 La. 521, 218 So.2d 580 (La.1968). This object has been achieved by the underlying primary automobile liability insurance policy which must exist before an umbrella policy is issued covering automobile liability. We see no reason to strain the interpretation of “automobile liability insurance” as used in La.R.S. 22:1406(D)(l)(a) to include a policy, such as the commercial umbrella liability insurance policy, which is wholly different in nature and purpose from that contemplated by the uninsured motorist statute.

We conclude, therefore, that commercial umbrella liability policies are not automobile liability insurance policies and do not come within the scope of the uninsured motorist statute. Accordingly, the commercial umbrella liability policies involved in this suit are not required to provide uninsured motorist protection by La.R.S. 22:1406(D)(l)(a).

DECREE

For the foregoing reasons, we affirm the decision of the court of appeal that the commercial umbrella liability insurance policies issued by Southern American Insurance Company and Northeastern Fire Insurance Company of Pennsylvania are not subject to La.R.S. 22:1406(D)(l)(a) and thus are not required to provide uninsured motorist coverage. Costs assessed to the defendant.

AFFIRMED.

DIXON, C.J., dissents with reasons.

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

LEMMON, J., dissents and will assign reasons.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

Without any question or doubt the umbrella policies in this case are policies of “automobile liability insurance covering liability arising out of the ownership, maintenance and use of any motor vehicle,” R.S. 22:1406(D)(l)(a), required by law to provide uninsured motorist coverage in limits not less than the liability limits. Only by divining the secret, unstated intent of the legislature does the majority explain that the statute was not intended to apply to umbrella policies.

In so doing, the majority thwarts the very object of uninsured motorist coverage as recognized in the majority opinion — to protect the innocent victim of uninsured (and underinsured) motorists.

ON REHEARING

DIXON, Chief Justice.

In our original opinion in this case we held that excess insurance policies in the form known as “commercial umbrella” policies and “excess umbrella” policies were not automobile liability insurance policies for the purposes of R.S. 22:1406(D)(l)(a), and therefore were not required to provide uninsured motorist coverage. Consequently, we affirmed the court of appeal ruling to that effect (Southern American Insurance Co. v. Ronald Dobson, 415 So.2d 641 (La.App.1982)). Upon rehearing, we reverse and find the statute to be applicable to such policies.

The facts were adequately stated in our original opinion and need not be repeated here. In that opinion, we placed considerable emphasis on decisions from other states on this issue. We failed, however, to consider fully that the uninsured motorist statutes in those states whose reasoning we adopted were significantly different than the Louisiana statute. Moreover, we now question both the need to refer to other jurisdictions and the need to speculate on legislative intent.

Louisiana Civil Code article 13 states: “When a law is clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” The plain language of R.S. 22:1406(D)(l)(a) makes it applicable to “automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle.” These policies unquestionably apply to liability “arising out of the ownership, maintenance, or use of a motor vehicle.” That such coverage is made to depend on a primary policy or that the policy contains other provisions which cover other types of losses makes no difference to this central fact. The directive of the statute, being mandatory, must be read into the terms of such a policy, absent a written waiver by the insured. There is no such written waiver in this case. Therefore, the provisions of the statute apply. See Ewing v. Sanson, 394 So.2d 849, 854 (La.App.1981); LeBoyd v. Louisiana Transit Co., 375 So.2d 749, 751 (La.App.1979).

Even if we conceded that the statute is not free from ambiguity in this regard, we would reach the same conclusion. C.C. 18 states: “The universal and most effectual way of discovering the true meaning of a law, when its expressions are dubious, is by considering the reason and spirit of it, or the cause which induced the Legislature to enact it.” Upon reconsidering the evolution of our uninsured motorist statute, in light of past judicial interpretations, we conclude that the reason and spirit of the legislation clearly dictate making its provisions applicable to the types of policies at issue in this case.

R.S. 22:1406(D)(l)(a) presently requires that the insurer provide coverage “in not less than the limits of bodily injury liability provided by the policy.” Originally our uninsured motorist statute protected a motorist only to the same extent as if the person who had struck him had complied with the minimum requirements of the motor vehicle responsibility law. However, Act 154 of 1974 amended the liability limits of mandatory uninsured motorist coverage to equal the limits of bodily injury liability provided by the policy. Then, in 1977, Act 623 eliminated the limitation on uninsured motorist coverage and allowed an insured to increase his coverage “to any amount.” See, generally, McKenzie, Louisiana Uninsured Motorist Coverage — After Twenty Years, 43 La. L.Rev. 691, 691-94 (1983). Our legislature has thus progressed from allowing only limited recovery to the innocent victim to permitting the insured to choose the maximum limits of his uninsured motorist coverage.

This court, also, has consistently interpreted the statute, in a variety of contexts, to provide full recovery under the terms of any applicable policies to a person injured, through no fault of his own, by an uninsured or underinsured motorist. Our holding today is consistent with the evolution of the statute and the jurisprudence interpreting it.

As previously noted (fn. 1), the uninsured motorist statutes of Alabama, Delaware, New York and Illinois require only that uninsured motorist coverage be provided in the minimum amounts required by law. Courts in those states have accordingly reached a different conclusion under those statutes than the one we reach today under ours. The different statutory language compels a contrary inference to the one we draw today with regard to the Louisiana statute. Under those statutes, the legislative purpose is satisfied when the victim is compensated to the same extent as if he had been struck by a driver who had complied with the minimum coverage requirements of insurance mandated by law in the respective jurisdictions. The language of the Louisiana statute is different, and so is the policy behind it.

The effect of today’s decision will be to require insurance companies doing business in this state to offer uninsured motorist coverage to an insured under the provisions of umbrella and excess policies when those policies cover “liability arising out of the ownership, maintenance, or use of any motor vehicle.” The procedure will thus become the same as that for primary policies providing such coverage. If the insured, after having been informed of the (presumably higher) cost, declines such coverage, then the insurance company should have the insured execute a written waiver. Thus insureds in Louisiana will henceforth be in a position to make informed choices, and the costs can be allocated accordingly.

For these reasons, there is now judgment in favor of defendant Ronald Dobson and against plaintiffs, Southern American Insurance Company and Northeastern Fire Insurance Company of Pennsylvania, declaring the policies in this case to be “automobile liability insurance” policies for the purposes of R.S. 22:1406(D)(l)(a); the judgments of the court of appeal are reversed and set aside, and the judgments of the district court are reinstated, all at the plaintiffs’ cost.

CALOGERO, J., dissents for the reasons assigned in this court’s majority opinion on original hearing.

BLANCHE, J., dissents for reasons assigned on original hearing.

MARCUS, J., dissents, adhering to the opinion on original hearing.

ON APPLICATION FOR REHEARING

LEMMON, Justice,

Concurring in the Denial of Rehearing.

This decision is not conclusive on the stacking issue raised by applicant Northeastern. See Taylor v. Tanner, 435 So.2d 440 (1983).

      . It is a familiar rule of statutory interpretation that laws in pari materia must be construed in reference to each other. La.C.C. art. 17; Smith v. Cajun Insulation, 392 So.2d 398 (La.1980); Gulf States Utilities v. Traigle, 310 So.2d 78 (La.1975).

      . La.R.S. 22:1406(D)(6) provides in pertinent part;
      “In any action to enforce a claim under the uninsured motorist provisions of an automobile liability policy, the following shall be admissible as prima facie proof that the owner and operator of the vehicle involved did not have automobile liability insurance in effect on the date of the accident in question

      . The Alabama uninsured motorist states:
      “No automobile liability or motor vehicle liability policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state ... unless coverage is provided therein or supplemental thereto, ... under provisions approved by the commissioner of insurance, for the protection of persons insured thereunder ... from owners or operators of uninsured vehicles ... provided, that the named insured shall have the right to reject such coverage; ...” Tit. 36, § 74(62a), Code of Ala.1940, Recompiled 1958.

      . Delaware’s uninsured motorist statute, 10 Del.Code tit. 18 § 3902(a), as amended, provides:
      “No policy insuring against liability arising out of the ownership, maintenance or use of any motor vehicle shall be delivered or issued for delivery in this State with respect to any such vehicle registered or principally garaged in this State unless coverage is provided therein or supplemental thereto for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured or hit-and-run motor vehicles for bodily injury, sickness or disease, including death, or personal property damage resulting from the 'ownership, maintenance or use of such uninsured or hit- and-run motor vehicle.”

      . New York’s uninsured motorist law in applicable part:
      “No policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any natural person arising out of the ownership, maintenance and use of a motor vehicle by the insured shall be issued or delivered by any authorized insurer upon any motor vehicle then principally garaged or principally used in this state unless it contains a provision whereby the insurer agrees that it will pay to the insured ... all sums ... which the insured or his legal representative shall be entitled to recover as damages from an owner or operator of an uninsured motor vehicle, ...” (Insurance Law, § 167, subd. 2-a)

      .Ill.Rev.Stat.1979, ch. 73, par. 755a provides in pertinent part:
      “No policy insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be renewed or delivered or issued for delivery in this State ... unless coverage is provided therein or supplemental thereto, in limits for bodily injury or death set forth in Section 7-203 of the Illinois Vehicle Code for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and hit-and-run motor vehicles ...”

      . St. Paul Fire and Marine Ins. Co. v. Goza, 137 Ga.App. 581, 224 S.E.2d 429 (1976) (dicta); Chicago Ins. Co. v. Dominguez, 420 So.2d 882 (Fla.App. 2nd Dist.1982); Cohen v. American Home Ass. Co., 367 So.2d 677 (Fla.App. 3rd Dist.1979); Aetna Cas. and Surety Co. v. Fulton, 362 So.2d 364 (Fla.App. 4th Dist.1978); Aetna Cas. and Surety Co. v. Green, 327 So.2d 65 (Fla.App. 1st Dist.1976).

      . § 627.727(1) Florida Statute provides as follows:
      “No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto in not less than the limits of the liability insurance purchased by the named insured for bodily injury, * * * [or such lower limits complying with the company’s rating plan as may be selected by the named insured,] under provisions filed with and approved by the department, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death, resulting therefrom; provided, however, that the coverage required under this section shall not be applicable when, or to the extent that, any insured named in the policy shall reject the coverage ...”
      The Georgia UM statute provides in pertinent part:
      “No automobile liability policy or motor vehicle policy shall be issued or delivered in this State to the owner of such vehicle, or shall be issued or delivered by any insurer licensed in this State, upon any motor vehicle then principally garaged or principally used in this State, unless it contains an indorsement or provisions undertaking to pay the insured all sums which he shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle, except where such coverage has been rejected by the insured.” Code Ann. § 56-407.1(a).

      .The decisions reached by the Florida and Georgia courts are criticized in 8c J. Appleman, Insurance Law and Practice § 5071.65.

      . This is still the case under the statutes of those states upon which we relied in our original opinion. See Ala.Code § 32-7-23 (1975); Del.Code Ann. tit. 18, § 3902(a)(2) (Supp.1982); N.Y.Insurance Law § 167(2-a) (McKinney Supp.1983); Ill.Ann.Stat. ch. 73, § 755a (Smith-Hurd Supp.1983).

      . See, e.g., Booth v. Fireman’s Fund Insurance Co., 253 La. 521, 527-29, 218 So.2d 580, 583-84 (1968) (action against insurer to recover under uninsured motorist policy terms held to prescribe in ten years, not one); Graham v. American Casualty Company of Reading, Pa., 261 La. 85, 93-94, 259 So.2d 22, 24-25 (1972) (pro rata clauses which attempt to reduce the mandatory minimum coverage under a policy held invalid); Veal v. Interstate Fire & Casualty Co., 325 So.2d 795, 796-97 (La.1975) (uninsured motorist statute applies to “unauthorized” insurers who issue policies through surplus line brokers in Louisiana); Hoefly v. Government Employees Insurance Co., 418 So.2d 575, 578-79 (La. 1982) (uninsured motorist carrier held solidarity liable with the tortfeasor).

      . In our original opinion, we relied upon Trinity Universal Insurance Co. v. Metzger, 360 So.2d 960 (Ala.1978); O’Hanlon v. Hartford Accident & Indemnity Co., 639 F.2d 1019 (3d Cir.1981); Matarasso v. Continental Casualty Co., 82 A.D.2d 861, 440 N.Y.S.2d 40 (1981); Hartbarger v. Country Mutual Insurance Co., 107 Ill.App.3d 391, 63 Ill.Dec. 42, 437 N.E.2d 691 (1982).

      . Hartbarger v. Country Mutual Insurance Co., 437 N.E.2d 691, 694: “The purpose of the Illinois uninsured motorist statute ... was to compensate the insured to at least the same extent as he would have been had he been injured by a motorist who had complied with the Financial Responsibility Law.” Accord, Higgins v. Nationwide Mutual Insurance Co., 50 Ala.App. 691, 695-96, 282 So.2d 295, 300, aff’d. 291 Ala. 462, 282 So.2d 301 (1973).

      . The Florida uninsured motorist statute contains provisions which are almost identical to Louisiana’s. See Fla.Stat.Ann. § 627.727 (West Supp.1983). Florida courts, under such a statute, have reached the same conclusions as we reach today. See, e.g., First State Insurance Co. v. Stubbs, 418 So.2d 1114 (Fla.App.1982), cert. den. 426 So.2d 26 (1983).


source: Caselaw Access Project

author: LEMMON, Justice.

license: Public Domain

text:
    STATE of Louisiana v. Joseph James HAMILTON.
    No. 82-KA-1559.
    Supreme Court of Louisiana.
    Nov. 28, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James L. Davis, Dist. Atty., Herman Lawson, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-ap-pellee.
    Claude R. Sledge, Sledge & Gamble, Mansfield, for defendant-appellant.
   LEMMON, Justice.

This is an appeal from a conviction of first degree murder and a sentence of life imprisonment. The only disputed issue at trial was defendant’s sanity at the time of the offense. For the reasons that follow, we set aside the conviction, concluding that the trial judge erred in excluding the testimony of Dr. Charles Armistead, who had examined defendant as a member of the sanity commission and had stated that he was unable, on the basis of the single examination, to give a firm opinion as to defendant’s sanity at the time of the crime. We hold that defendant was denied his constitutional right to present a defense when, under circumstances which established that the only disputed issue was his sanity at the time of the offense and that his indigency prevented his obtaining additional psychiatric evidence, the trial judge refused both his pretrial request for further psychiatric evaluation by Dr. Armistead and his attempt at trial to present to the jury Dr. Armistead’s relevant testimony regarding his findings at the single examination approximately ten weeks after the crime.

The murder occurred on August 28, 1981, when defendant, hitchhiking through DeSo-to Parish, struck a 76-year old woman on the head with a stick and took her car. By tracing the stolen car, the police apprehended defendant at his home in St. Mary Parish nine days later.

The trial court immediately appointed counsel to represent defendant. After indictment on October 27, 1981, defendant through counsel entered a plea of not guilty and not guilty by reason of insanity. On counsel’s motion to appoint a sanity commission to determine defendant’s mental condition at the time of the offense, the judge appointed the coroner and two psychiatrists, Dr. Armistead and Dr. Paul Ware. Each of the three doctors conducted a single examination in November, 1981.

On January 5,-1982, the judge conducted a sanity hearing, at which the reports of the coroner and of one psychiatrist were introduced. The coroner’s report indicated that defendant was illiterate, learning disabled and had “much below average intelligence”. The coroner further concluded that defendant was “very likely [to be mentally] disturbed at the present time”. Nevertheless, the coroner noted that defendant may merely be “very shrewd” and may have been attempting to convince someone that he is mentally disturbed. The doctor declined to state an opinion as to defendant’s mental condition at the time of the crime, but noted that a person who is mentally disturbed at the present time might be assumed to have been mentally disturbed ten or twelve weeks earlier.

Dr. Ware in his report stated that he found no evidence of psychosis and diagnosed defendant as having an antisocial personality disorder with a slow learner intelligence. This doctor concluded that defendant was mentally competent to proceed to trial and had been sane at the time of the offense.

Dr. Armistead, the only commission member to testify at the sanity hearing, concluded that defendant was “chronically psychotic”, probably with a schizophrenic illness, at the time of the examination and was incapable at the time of assisting in his defense. The doctor recommended hospitalization for further evaluation and treatment at a forensic unit, because he was unable “on the basis of the data obtained from one interview to give an opinion as to the defendant’s mental condition at the time of the alleged offense”. The doctor did not change his opinion when furnished with the reports of the other doctors and with defendant’s detailed confession, but still maintained that further evaluation through hospital observation on a day-to-day basis was necessary for a reliable conclusion.

The trial judge then appointed an additional psychiatrist to evaluate defendant’s capacity to proceed to trial. The additional expert filed a report which concluded that defendant, although “very depressed, bitter, oppositional and a suicide risk”, was “not psychotic” at the time of the examination and was competent to proceed to trial. She did not express an opinion on defendant’s condition at the time of the crime.

Defense counsel then moved the court to continue the trial and to allow further evaluation, noting that defendant as an indigent was compelled to rely on court-appointed doctors to meet his burden of proof on the serious issue regarding his mental condition. The trial judge found that defendant had adequate mental capacity to proceed to trial, but denied the request for further evaluation on the issue of defendant’s mental condition at the time of the offense.

At trial, defense counsel called only two witnesses. The coroner testified substantially in accordance with his report. Counsel then called Dr. Armistead. The prosecutor objected on the grounds of relevancy, citing Dr. Armistead’s previous statement that he was unable to form an opinion from the data obtained in one interview. The trial judge sustained the objection, and the defense rested. On rebuttal, the prosecutor called Dr. Ware, who gave very detailed testimony of his examination upon which he based his conclusion that defendant was sane at the time of the crime.

After the jury found defendant guilty of first degree murder, defense counsel again offered the testimony of Dr. Armistead during the penalty phase of the bifurcated trial. The judge again ruled that the testimony was not relevant.

An accused has a constitutional right to present a defense. Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); La. Const. Art. I, § 16 (1974). Defendant’s only viable defense was insanity, and it was defendant’s burden to prove the facts supporting that defense by a preponderance of the evidence. See La.R.S. 14:14; La.C.Cr.P. Art. 652; State v. Brogdon, 426 So.2d 158 (La.1983). Nevertheless, the trial judge excluded the unquestionably relevant testimony of Dr. Armistead as to his psychiatric findings of inappropriate emotional responses, appearances of actual delusions, and active paranoia, and his conclusion that defendant, approximately ten weeks after the crime, was “chronically psychotic, probably with a schizophrenic illness”.

The fact that Dr. Armistead, after concluding that defendant at the time of the examination was mentally incapable of proceeding to trial, was reluctant to state a firm opinion, on the basis of a limited one-hour examination, that defendant was mentally incompetent on the date of the crime approximately ten weeks earlier, did not justify the trial judge’s excluding entirely the evidence of the examination. The exclusion was particularly prejudicial because the other psychiatrist was allowed to give detailed findings of his examination conducted on the same day and because the defendant had the burden of proving insanity. Moreover, as noted at the outset, an indigent has no other method of proving insanity than through court appointed experts, and the trial court’s refusal to permit further evaluation, combined with the court’s refusal to permit the expert to testify because the expert declined to state a firm opinion without further evaluation, effectively denied defendant the constitutional right to present any favorable evidence relevant to the issue. The magnitude of that constitutional error requires the setting aside of the conviction.

Accordingly, the conviction and sentence are set aside, and the case is remanded for a new trial.

      . Defendant also complains on appeal of the trial judge’s denial of the pretrial motion to suppress his inculpatory statement. Because we set aside the conviction on other grounds, we do not reach this issue.

      . Defense counsel’s motion requested a sanity commission for the purpose of determining defendant’s mental condition at the time of the offense, which is an issue to be decided by the jury at trial. After the doctors submitted reports, the judge on his own motion ordered a pretrial hearing on defendant’s capacity to proceed to trial, which is an issue to be decided by the court.

      . This ruling is even more clearly wrong than the ruling in the guilt phase. See C.Cr.P. Art. 905.5(b) and (e). Nevertheless, since the jury could not agree unanimously on sentence recommendation, the court imposed a life sen-. tence.

      . The problem is not one of sufficiency of evidence. On the evidence which was presented, viewed in the light most favorable to the prosecution, a rational juror could have concluded that defendant had failed to prove by a preponderance of the evidence that he was insane at the time of the offense. See State v. Roy, 395 So.2d 664 (La.1981). The problem is that the trial court improperly curtailed defendant in his presentation of favorable evidence, and this jury was precluded from weighing all available and relevant evidence in the determination of his mental condition at the time of the crime.


author: MARCUS, Justice. CALOGERO, J., DIXON, Chief Justice

text:
    STATE of Louisiana v. Clifton BELTON, Jr.
    Nos. 82-KA-2061, 82-KA-2120.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
    Rehearing Denied Jan. 6, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Kay Bates, Asst. Dist. Attys., for plaintiff-appellee.
    Paula Cobb, Baton Rouge, for defendant-appellant.
   MARCUS, Justice.

Clifton Belton, Jr. was charged by bill of information with possession of phenmetra-zine (preludin) in violation of La.R.S. 40:967(C). After trial by jury, he was found guilty as charged. The state then filed an information accusing defendant of being an habitual offender under La.R.S. 15:529.1 (Habitual Offender Law). After a hearing, the trial judge found defendant to be a second felony offender and sentenced him to serve five years at hard labor. Defendant took separate appeals from his conviction (No. 82-KA-2061) in which he asserts two assignments of error and from his sentence. (No. 82-KA-2120) in which he asserts one assignment of error.

ASSIGNMENTS OF ERROR NOS. 1 AND 2 (NO. 82-KA-2061)

Defendant contends the trial judge erred in denying his motions to suppress physical evidence seized prior to his arrest and physical evidence and an inculpatory statement obtained after his arrest.

Evidence adduced at the suppression hearing reveals that at about 10:00 p.m. on November 12, 1981, Officers Joseph Booth and Jay Thompson of the Louisiana State Police and Officer Royce Thompson of the Baton Rouge City Police Department were on a routine patrol in an unmarked police car. The officers, who were dressed in plain clothes, were on an “armed robbery patrol” and were looking for suspects for whom outstanding warrants had been issued. As they approached the Bradley Road Cafe, the officers saw defendant and several other persons standing outside of the bar. Officer Booth described defendant’s stance as the same one that he normally exhibits when he is “holding narcotics.” When asked to explain how one normally looks when one is in possession of narcotics, Officer Booth stated: “Standing around like you have nothing to do, not talking to anybody, with your hands in your pocket[s].”

According to Officer Booth, the bar was “renowned in this area for being a place where people stand outside on the sidewalk and sell narcotics.” Similarly, Officer Jay Thompson described it as a “known ... hangout for drug dealers and armed robber[s] and the like.” The officers also testified that they were familiar with defendant and knew that he dealt narcotics because they had previously taken drugs from him. Defendant admitted that he also knew these officers. He then described an encounter with these officers at the Bradley Road Cafe about a week before his arrest. According to defendant, he had just gotten out of jail and was standing in front of the bar talking to friends when the officers approached. He stated that when confronted with some pills that the officers had found in the vicinity of the bar, he admitted that they were his. The officers then told him that the next time they see him standing in front of the bar, they will arrest him.

Being suspicious of both defendant and the Bradley Road Cafe, the officers stopped at the bar to look around. Defendant immediately became nervous when he saw them drive into the parking lot and then suddenly turned around and ran into the bar as the officers were getting out of their patrol car. Upon seeing defendant flee, the officers ran after him, identified themselves as police officers, called defendant by name, and ordered him to stop. When asked by the trial judge what precipitated this action, Officer Booth responded, “Mr. Belton recognized us and ... [h]e drawed up straight and looked like he got nervous and then he turned around and immediately made for the door as we exited the vehicle and ordered him to halt.” Officer Booth further testified that it was “more than likely” that he had his weapon drawn as he ran into the bar. Defendant did not mention seeing the officer’s weapon.

The officers were only about five to eight steps behind defendant by the time they entered the bar. Once inside, the officers scanned the premises, spotted defendant standing near the end of the bar and then immediately approached him. He was ordered to stand up against a wall and was “patted ... down for weapons.” Officer Jay Thompson looked around the area where defendant was originally standing when they entered the bar and spotted a rolled up portion of a brown paper bag on the floor. According to Officer Thompson, this is “the common way on Bradley Road of concealing drugs.” Therefore, he picked it up and discovered that it contained fifteen tablets. Both Officers Booth and Thompson recognized them as preludin. Officer Thompson testified that a barmaid told Officer Booth that she saw defendant drop the drugs when he ran in the bar.

Defendant was arrested and transported to the city police armed robbery office where, after being advised of his rights, he signed a waiver of rights form. Thereafter, he orally admitted that the preludin tablets were his. In searching him prior to booking, Officer Thompson found another prelu-din tablet in defendant’s shirt pocket. Later chemical analysis confirmed that all sixteen tablets were preludin. It is conceded that the arrest and all searches and seizures were conducted without a warrant.

The fourth amendment to the federal constitution and art. 1, § 5 of the Louisiana constitution protects people against unreasonable searches and seizures. However, the right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is recognized by La.Code Crim.P. art. 215.1, as well as by both state and federal jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Andrishok, 434 So.2d 389 (La.1983); State v. Chopin, 372 So.2d 1222 (La.1979). We have held that reasonable cause for an investigatory detention is something less than probable cause and must be determined under the facts of each case by whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual’s right to be free from governmental interference. The right to make an investigatory stop and question the particular individual detained must be based upon reasonable cause to believe that he has been, is, or is about to be engaged in criminal conduct. State v. Andrishok, supra; State v. Chopin, supra.

The totality of the circumstances, “the whole picture,” must be considered in determining whether reasonable cause exists. United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). Although flight, nervousness, or a startled look at the sight of a police officer is, by itself, insufficient to justify an investigatory stop, State v. Chopin, supra; State v. Truss, 317 So.2d 177 (La.1975), this type of conduct may be highly suspicious and, therefore, may be one of the factors leading to a finding of reasonable cause, State v. Williams, 421 So.2d 874 (La.1982); State v. Wade, 390 So.2d 1309 (La.1980).

The purpose of the fourth amendment, however, is not to eliminate all contact between the police and the citizenry. Police officers do not need probable cause to arrest or reasonable cause to detain each time they attempt to converse with or approach a citizen. As long as the person remains free to disregard the encounter and walk away, there has been no intrusion upon that person’s liberty or privacy which would require some particularized and objective justification under the fourth amendment. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); State v. Williams, supra; State v. Lanter, 391 So.2d 1152 (La.1980).

When police officers make an investigatory stop without the legal right to do so, property abandoned or otherwise disposed of as a result thereof cannot be legally seized. If, however, property is abandoned without any prior unlawful intrusion into a citizen’s right to be free from government interference, then such property may be lawfully seized. In such cases, there is no expectation of privacy and thus no violation of a person’s custodial rights. It is only when the citizen is actually stopped without reasonable cause or when a stop without reasonable cause is imminent that the “right to be left alone” is violated, thereby rendering unlawful any resultant seizure of abandoned property. State v. Andrishok, supra; State v. Chopin, supra; State v. Ryan, 358 So.2d 1274 (La.1978).

In the instant case, the crucial inquiry is whether, at the time defendant disposed of the preludin tablets, the police officers had effected an actual or imminent unlawful detention. When the officers drove up to the Bradley Road Cafe and saw defendant standing out front, they had a right to stop the patrol car, get out, look around, and converse with him. No detention or attempted detention of defendant in fact occurred. It is arguable that if the police officers had detained him at this moment, the stop would have been without reasonable cause. The only facts and circumstances known by them were the following: defendant previously had had narcotics taken from him; he was standing as if he were presently holding narcotics; and, the particular location, the Bradley Road Cafe, was a notorious narcotics outlet. But, just as the officers arrived, defendant recognized them and ran inside the bar. At this point, the officers had reasonable cause to believe that defendant was engaged in criminal conduct. Flight from the approaching officers, coupled with the other facts and circumstances known by the officers, was sufficiently suspicious to justify an investigatory stop based on reasonable cause to believe defendant had committed, ■was committing, or was about to commit a crime. Therefore, it was not an unlawful intrusion on defendant’s right to be free from governmental interference when the officers ran after him and ordered him to stop. This was a permissible attempted investigatory detention. Since the narcotics that were intentionally dropped by defendant as he ran into the bar were abandoned prior to any unlawful police conduct, they were lawfully seized. Once in lawful possession of the preludin tablets, the police had probable cause to arrest him. Accordingly, the confession and the single tablet of preludin seized after his lawful arrest were properly obtained. Hence, the trial judge correctly denied defendant’s motions to suppress.

Assignments of Error Nos. 1 and 2 are without merit.

ASSIGNMENT OF ERROR NO. 1 (NO. 82-KA-2120)

Defendant contends the trial judge erred in finding him to be a second felony offender. He argues the state failed to prove that his guilty plea to simple burglary (prior conviction) was properly Boykinized. Defendant further contends the trial judge improperly received additional evidence on this issue after the state had rested its ease. He argues that this conduct was contrary to La.Code Crim.P. art. 765(5) and “borders, if not actually is, double jeopardy.”

The record reflects that at the enhancement proceeding on May 21, 1982, the state presented the testimony of defendant’s probation officer and a certified copy of the minutes from the 1979 case in which defendant pleaded guilty to a charge of simple burglary. After the state rested, defendant objected to the sufficiency of this evidence on the ground that the minutes did not reflect that he had been advised of and then waived his rights as per Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The trial judge agreed, ordered a transcript made of the earlier guilty plea colloquy, and then took the matter under advisement. On May 25, 1982, after reviewing the transcript and finding that defendant was properly Boykinized, the trial judge found him to be a second felony offender.

A proceeding pursuant to the habitual offender law is not a prosecution for a separate criminal charge. It is to enhance the penalty for the subsequent offense; it only involves the sentencing for that crime. State v. Walker, 416 So.2d 534 (La.1982); State v. Scott, 395 So.2d 714 (La.1981). Hence, the trial judge’s actions in the instant case in taking the matter under advisement and then considering additional evidence four days later is not contrary to La.Code Crim.P. art. 765(5). This article specifies the normal order of trial and is inapplicable to sentencing procedure. Similarly, the consideration of additional evidence in the sentencing phase of the instant case does not constitute double jeopardy. State v. Stott, supra; State v. Langendorfer, 389 So.2d 1271 (La.1980).

Accordingly, Assignment of Error No. 1 is without merit.

DECREE

For the reasons assigned, defendant’s conviction and sentence are affirmed.

DENNIS, J., concurs.

DIXON, C.J., dissents with reasons.

CALOGERO, J.,

dissents. The police did not have authority to stop defendant under C.Cr.P. art. 215.1, or otherwise.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

Here the majority relies on C.Cr.P. 215.1 to permit the police to corner the defendant on a wall of a bar until they can find, somewhere on the floor of the bar, contraband. Police were chasing defendant, a few steps behind him, calling his name, but did not see him throw anything down.

C.Cr.P. 215.1 says a policeman may stop a person whom he “reasonably believes” to be about the commission of an offense. The opinion says the police may stop one whom they “reasonably suspect.” It is not a quibble to note that “to suspect” is not “to believe.”

Defendant obviously wished to avoid a confrontation with the police, as is his right. (The police had threatened to arrest him the next time they saw him at the bar). But in the exercise of his “right to be let alone,” the opinion jumps to the conclusion that the police were given reasonable cause to believe defendant was engaged in criminal conduct. The explanation is puzzling: “Flight ... coupled with the other facts and circumstances known by the officers, was sufficiently suspicious to justify an investigatory stop based on reasonable cause to believe defendant had committed, was committing, or was about to commit a crime.”

The police in this case did not have reasonable or probable cause to believe defendant was engaged in criminal activity until after he was against the wall, and after the barmaid told them she had seen the defendant throw down the contraband.

Until that point, the police had simply arrested defendant, as they had threatened the week before, and were looking for a reason to take him in.

      . La.Code Crim.P. art. 765(5) provides:
      The normal order of trial shall be as follows:
      (5) The presentation of the evidence of the state, and of the defendant, and of the state in rebuttal. The court in its discretion may permit the introduction of additional evidence prior to argument;


author: BLANCHE, Justice.

text:
    SOUTHWEST LOUISIANA ELECTRIC MEMBERSHIP CORPORATION v. LOUISIANA PUBLIC SERVICE COMMISSION.
    No. 83-CA-1199.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
    Rehearing Denied Jan. 6, 1984.
    John Schwab, Baton Rouge, for plaintiff-appellant.
    Marshall B. Brinkley, Baton Rouge, for defendant-appellee.
    William 0. Bonin, New Iberia, for inter-venor-appellee.
   BLANCHE, Justice.

Southwest Louisiana Electric Membership Corporation (SLEMCO) filed a complaint with the Louisiana Public Service Commission claiming that Central. Louisiana Electric Company (CLECO) extended an electric line to serve the Martin Timber Company at LeMoyen, Louisiana, in violation of La.R.S. 45:123 and the Commission’s General Order of March 12, 1974, “Duplication of Electric Service.” After a hearing, the Commission, by Order No. U-15272, ordered that the customer had the right to select the utility of his choice. SLEMCO appealed the Commission’s order to the Nineteenth Judicial District Court, Parish of East Baton Rouge. The district court affirmed the Commission’s order and SLEMCO appeals that ruling directly to this court. La. Const, art. IV, § 21(E); La.R.S. 45:1192.

The property in question is actually owned by Martco Partnership, a partnership comprised of three corporations; Martin Timber Company, Inc., Martin Home Centers, Inc., and Roy 0. Martin Lumber Company, Inc. The Roy 0. Martin Lumber Company, Inc. holds a 60% interest in Mart-co Partnership while the other two corporations each hold a 20% interest. The controversy arose when Martco Partnership approached CLECO about the possibility of providing electric service to a waferboard plant that Martco was constructing on the property. No formal contracts were perfected by the parties,, however, CLECO did extend a line from their 34.5 KV line along U.S. Highway 71, which runs adjacent to the Martco property, onto the property a distance of 851 feet at an approximate cost of $3,000 to provide power for construction of the waferboard plant. It is the extension of this line which SLEMCO contends is in violation of La.R.S. 45:123 and the Commission’s General Order of March 12, 1974.

The evidence shows that both CLECO and SLEMCO maintain electric lines along U.S. Highway 71 on common poles. CLE-CO maintains a 34.5 KV line while SLEM-CO maintains a 13.2 KV line. SLEMCO is currently involved in upgrading its 13.2 KV line to 24.9 KV. The property involved in this dispute lies adjacent to U.S. Highway 71. For many years SLEMCO has maintained an extension of their 13.2 KV line on the property involved to service the office building of Roy O. Martin Lumber Company, Inc. and to service the Haynes Brothers Lumber Company mill, a lessee of Martco Partnership. Additionally, prior to 1980, SLEMCO provided service to a well pump on the property which has now been disconnected. The meter on the CLECO extension is located approximately 490 feet from the closest SLEMCO service on the property. Both SLEMCO and CLECO officials testified before the Commission that SLEMCO’s existing 13.2 KV line, located along U.S. Highway 71 and on the property, is inadequate to service the waferboard plant now under construction.

SLEMCO’s contention that La.R.S. 45:123 has been violated by CLECO is without merit. This court examined La.R.S. 45:123 in South Louisiana Electric Cooperative Association v. Louisiana Public Service Commission, 309 So.2d 287 (La.1975) and interpreted the statutory term “point of connection” to mean the actual meter connection. As the distance between the actual meter connection of CLECO’s 34.5 KV line extension and the nearest SLEM-CO electric line is approximately 490 feet, La.R.S. 45:123 does not apply to this case.

SLEMCO’s contention that CLECO’s extension of service for the construction of the waferboard plant is in violation of the Commission’s General Order of March 12, 1974, “Duplication of Electric Service” is equally without merit. The Commission’s General Order of March 12, 1974 states, in pertinent part:

It is the opinion of this Commission that in order to effect economies in the service of electricity, and, thus, keep rates therefor within reasonable bounds, uneconomic and wasteful practices should be prohibited. It is determined that the paralleling and duplication of existing transmission or distribution lines as defined in Louisiana Revised Statutes 45:123 or the extensions of either by electric public utilities to serve customers readily accessible to like facilities of an electric public utility already providing service in the immediate area is not in the public interest, and that such practices ultimately lead to wasteful competition and unwise expenditures and investments which become a burden upon the rate payers.
It is recognized that while in some areas there is not clear line of demarcation between the service area of electric public utilities, for the purpose of this order, the service area of electric public utility is that area which, as a result of the existence of transmission and distribution lines, is readily accessible by economically feasible extensions from such existing facilities. This necessarily includes customers already receiving service. It is, accordingly, ordered.
That no extension of electric transmission or distribution lines shall be made by an electric public utility that will duplicate the transmission and distribution lines (as defined in Louisiana Revised Statutes 45:123) of another like utility, nor shall extensions be made to serve customers that could be served from such electric public utility facilities already in existence in an economic and justifiable manner. (Emphasis added).

SLEMCO’s representative before the Commission admitted that SLEMCO’s 13.2 KV facility already in existence is inadequate to service the waferboard plant. Since the Martco’s waferboard plant does not constitute a customer “that could be served from such electric public utility facilities already in existence”, the Commission was correct to reject SLEMCO’s arguments in this regard.

The Commission in this case gave SLEM-CO every benefit in making its determination of allowing the customer to select the electric utility to serve the wafer plant. The Commission presumed that SLEMCO’s proposed upgrading of its 13.2 KV line to a 24.9 KV line would be completed. Assuming that both utilities would then have adequate facilities to serve the waferboard plant, the Commission found that the cost to serve the plant would be the same for each as the route to serve the point of connection would be the same. Examining SLEMCO Exhibit No. 1, a map depicting existing electric lines in the area, it is apparent that SLEMCO’s upgraded electric line would more economically extend to the point of connection for the plant by following the 851 foot path that CLECO’s extension took as opposed to upgrading the 1900 feet of existing SLEMCO extension to the property and then extending the additional 490 feet from the Roy O. Martin Lumber Company office to the waferboard plant point of connection. Thus, the Commission’s finding that both utilities would follow the same path to provide service is supported by SLEMCO’s own exhibit.

In general, an order of the Public Service Commission should not be overturned on review unless it is shown to be arbitrary, capricious, or abusive of the Commission’s authority. One attacking a Commission order bears the burden of demonstrating that it is defective, because the order is presumed valid.and the Commission’s decisions will not be disturbed unless found to be clearly erroneous or unsupported by the evidence. Central Louisiana Electric Company, Inc. v. Louisiana Public Service Commission, 370 So.2d 497 (La.1979). In this case, the Commission’s order is supported by the evidence, thus this court will not set such an order aside.

Additionally, an order of the Commission whereby it orders that the customer has the right to select which utility will service him is a valid exercise of the Commission’s authority. This court has affirmed similar orders in the past. Louisiana Power & Light Company v. Louisiana Public Service Commission, 324 So.2d 427 (La.1975); Louisiana Power & Light Company v. Louisiana Public Service Commission, 322 So.2d 133 (La.1975).

DECREE

For the reasons assigned, the judgment of the district court affirming Order No. U-15272 of the Louisiana Public Service Commission is affirmed.

AFFIRMED.

      . La.R.S. 45:123 provides, in pertinent part:
      No electric public utility shall construct or extend its facilities, or furnish, or offer to furnish electric service to any point of connection which at the time of the proposed construction, extension, or service is being served by, or which is not being served but is located within 300 feet of an electric line of another electric public utility, ...

      . The cost of this 490 foot extension was found to be approximately $2,300. If SLEMCO were to use such an extension, the difference in cost between this extension and the CLECO extension is de minimis when the cost of the required transformer to service the plant is added in. Thus, the Commission’s finding that the cost is the same for each utility is supported by the evidence.


text:
    STATE of Louisiana v. Nicholas H. GILL.
    No. 82-KA-1946.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
    Rehearing Denied Jan. 6, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., William C. Credo, III, W.C. Douglas Friederichsen, Asst. Dist. At-tys., for plaintiff-appellee.
    Ronald L. Wilson, New Orleans, for defendant-appellant.
   LEMMON, Justice.

In this appeal from a conviction for two counts of attempted simple kidnapping, defendant principally challenges the constitutionality of the simple kidnapping statute and the sufficiency of the evidence.

Facts

Two young boys, ages 11 and 13, were dropped off by their parents at an amusement center known as Skate Country for a session of roller skating. As they entered Skate Country, the boys were apparently given coupons entitling them to a free order of french fries at a nearby McDonald’s fast food restaurant.

Eventually, the boys decided to hide their skates near a tree and to walk two blocks to McDonald’s to obtain their snack. As they walked along the road, defendant, a 29-year old man, pulled alongside of them in an automobile. He inquired about their destination and about the location of a place called the Game Room. The boys said they were going to McDonald’s, and they gave him directions to the Game Room.

When the boys arrived at McDonald’s, defendant was there, standing in line. The boys, who had no money, soon discovered

that the coupons were valid only if used in conjunction with another purchase. Defendant agreed to purchase two cokes if the boys would, show him the location of the Game Room.

Defendant and the two boys walked to defendant’s automobile in the parking lot. The boys pointed out the location of the Game Room, but refused to get into defendant’s automobile. When defendant “begged” them to get into his car, they became “scared”. Defendant then offered his keys, wallet and driver’s license to the boys in an effort to entice them into the vehicle. When the boys remained steadfast in their refusal, defendant insisted on repayment of the money expended on the cokes and threatened to take their skates until they repaid him. By that time, the boys were quite apprehensive and fled on foot back toward Skate Country. Defendant followed them on foot.

When the boys arrived at Skate Country, they saw a uniformed police officer and reported to him that defendant was “chasing” them. The boys repeated their version of the events, and the officer and an off-duty detective (who happened to be there with his own children) requested that defendant accompany them into the office. According to the officer’s trial testimony, defendant, after being advised of his rights, admitted his efforts to entice the young boys into his vehicle, explaining that he was merely a lonely person who was attempting to “make friends”. Defendant further admitted that he intended to take the boys to his home “for a little while”, which he later explained to mean a “few days”. Under further questioning, defendant admitted that he had previously taken other young boys to his home.

Defendant took the stand at trial and denied telling the officer that he intended to take the boys to his home.

Following a jury trial, defendant was found guilty as charged on both counts of attempted simple kidnapping. He was sentenced to three years imprisonment at hard labor. That sentence was suspended on the condition that he serve one year in the parish jail and that he obtain psychiatric treatment.

Constitutionality of the Statute

Defendant first challenges the constitutionality of La.R.S. 14:45A(2), which proscribes “the intentional taking, enticing or decoying away, for an unlawful purpose” of a child under the age of 14, without the consent of the parent. (Emphasis supplied) Defendant argues that the phrase “unlawful purpose” fails to give fair notice to a reasonable person of the conduct which is prohibited.

This court stated the applicable legal principle in State v. Dousay, 378 So.2d 414, 416 (La.1979):

“Two fundamental concepts are embodied in the principle that the vagueness of a criminal enactment may render it unconstitutional. The first of these is that individuals must be given adequate notice that certain contemplated conduct is proscribed and punishable by law. The second is that adequate standards must be provided for those charged with determining the guilt or innocence of an accused.”

Subsection 45 A(2) makes a crime of any “taking, enticing or decoying away” of a child without parental consent, except when the taker has a lawful purpose for his action. Thus, the pertinent statutory provision, which focuses on the intent or purpose of the taker, excepts from criminal sanctions the taking or enticing of a child for purposes such as removing the child from an area of dynamite blasting, since there is nothing unlawful about taking a child away from a particular place for the purpose of protection from immediate danger.

As used in this statute, the term “unlawful” is certainly not unconstitutionally vague. Whether the statutory term means a purpose violative of a prohibitory law (certainly an acceptable and understandable concept) or one merely disapproved by law, the term “unlawful” puts a reasonable person on notice as to the proscribed conduct. See State v. Bulot, 75 La. 21, 142 So. 787 (1932).

It is noteworthy that the term is used in the context of a statute which prohibits the inherently questionable conduct of “enticing or decoying” children without their parents’ permission. In this context, we have no difficulty in concluding that the challenged statute fairly notifies a person who would be tempted to engage in the questionable conduct of luring away a child without the consent of his parents that he does so at his risk if he has any question concerning the “unlawfulness” of his purpose.

Sufficiency of Evidence

Defendant contends that the evidence did not establish beyond a reasonable doubt that he acted with a specific intent to decoy the boys away for an “unlawful purpose”. Defendant did not dispute that the children were under 14 and that their parents had not consented. Similarly, defendant did not deny that he “enticed” them to go with him in his automobile. However, he firmly denied in his testimony at trial any “unlawful purpose”, claiming that his motive was simply to befriend the children.

The Legislature, in proscribing “taking, enticing or decoying away” of children, obviously did not intend to include in the proscription such actions undertaken for a lawful purpose (such as, for example, giving children a ride to school on a rainy day), even when done without the consent of parents. However, the state, in order to satisfy its burden of proof by sufficient evidence, need not establish the exact nature of defendant’s intent or purpose, but rather need only negate the existence of any lawful purpose.

The evidence in this case, viewed in the light most favorable to the prosecution, established the absence of any lawful purpose for defendant’s enticing the boys into his car. Defendant’s admission that he planned to lure two young boys to his home and to keep them there (with the implication that this might be either with or without their consent) suffices to eliminate any reasonable doubt as to the “unlawfulness” of defendant’s purpose.

Accordingly, the convictions and sentences are affirmed.

DIXON, C.J., concurs.

DENNIS, J., concurs with reasons.

WATSON, J., the proper charge was contributing to delinquency.

      . Defendant’s other contention lacks any arguable merit and is treated in an unpublished appendix, which is attached to this opinion and is part of the official record in this case.

      . The admissibility of defendant’s statement is not challenged in this appeal.

      . Defense counsel also introduced the report of a psychologist, who had evaluated defendant before this incident. The psychologist found that defendant was a profoundly emotionally disturbed person who' had an unconscious fear' of homosexual orientation indirectly produced by maternal dependency.

      . La.R.S. 14:45A(2) provides:
      “Simple kidnapping is:
      “(2) The intentional taking, enticing or decoying away, for an unlawful purpose, of any child not his own and under the age of fourteen years, without the consent of its parent or the person charged with its custody.”

      . As will be discussed in the section dealing with the sufficiency of evidence, we need not here decide whether the Legislature intended to require the state to prove that defendant acted with a purpose to violate another specific criminal statute or whether the state may satisfy its burden by proving that defendant’s purpose was one merely disapproved of by the law — in effect equating “unlawful” in this context with “non-lawful”, or “without authority of law”.
      Black’s Law Dictionary, 1705 (5th ed. 1979), defines “unlawful” and “unlawful act” as follows:

        “Unlawful. That which is contrary to law or unauthorized by law. State v. Chenault, [20 N.M. 181] 147 P. 283, 285. That which is not lawful. State v. Bulot, [175 La. 21] 142 So. 787, 788. The acting contrary to, or in defiance of the law; disobeying or disregarding the law. While necessarily not implying the element of criminality, it is broad enough to include it. Sturgeon v. Crosby Mortuary, [140 Neb. 82] 299 N.W. 378, 383.
      “ ‘Unlawful’ and ‘illegal’ are frequently used as synonymous terms, but, in the proper sense of the word, ‘unlawful,’ as applied to promises, agreements, considerations, and the like, denotes that they are ineffectual in law because they involve acts which, although not illegal, i.e., positively forbidden, are disapproved of by the law, and are therefore not recognized as the ground of legal rights, either because they are immoral or because they are against public policy. It is on this ground that contracts in restraint of marriage or of trade are generally void. Sweet. And see Hagerman v. Buchanan, [45 N.J.Eq. 292] 17 A. 946; Tatum v. State, 66 Ala. 467; People v. Chicago Gas Trust Co., [130 Ill. 268], 22 N.E. 798.

        “Unlawful Act. Act contrary to law, and presupposes that there must be an existing law. State v. Campbell, [217 Iowa 848] 251 N.E. 717.
      “In criminal jurisprudence, a violation of some prohibitory law and includes all willful, actionable violations of civil rights, and is not confined to criminal acts. State v. Hailey, [350 Mo. 300] 165 S.W.2d 422, 427.”

      . Regarding a person’s proceeding with questionable conduct at his own risk, we restate this court’s observations in State v. Lindsey, 310 So.2d 89 (La.1975):
      “The ‘void-for-vagueness’ doctrine is not a concept of definite and unchanging content. Balanced against the requirement that a statute must neither forbid nor require the doing of an act ‘. in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application ... ’ is Mr. Justice Holmes’ observation that ‘the law is full of instances where a man’s fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree. If his judgment is wrong, not only may he incur a fine or short imprisonment ...; he may incur the penalty of death.’
      “Drawing the line between statutory language so vague as to be unconstitutional and phraseology that exhibits one of Mr. Justice Holmes’ ‘instances’ whereby a citizen may rightfully be required to proceed with his-questionable conduct at his own risk can be a difficult task.”

      . Defendant’s holding the children at his home against their will would constitute a false imprisonment. See La.R.S. 14:46. His enticing and encouraging them to “remain away” from their home without the consent of their parents would also constitute a violation of La.R.S. 14:92 A(8). Hence, defendant admitted that his “purpose” was unlawful, in that it would fall within the scope of prohibitory statutes proscribing false imprisonment and contributing to the delinquency of minors.


text:
    DIXIE ELECTRIC MEMBERSHIP CORPORATION v. LOUISIANA PUBLIC SERVICE COMMISSION.
    No. 83-CA-1196.
    Supreme Court of Louisiana.
    Nov. 28, 1983.

      John Schwab, Baton Rouge, for plaintiff-appellant.
    Marshall B. Brinkley, Eugene R. Groves, Baton Rouge, for defendant-appellee.
   BLANCHE, Justice.

This case and its companion case, Dixie Electric Membership Corporation v. Louisiana Public Service Commission, 441 So.2d 1212 (La.1983), involve territorial disputes between Dixie Electric Membership Corporation (Dixie) and Gulf States Utilities Company (Gulf States). In the instant case, at the request of the developer, Dixie built an electric distribution line to service Round Oak Subdivision in East Baton Rouge Parish, Louisiana. Gulf States filed a complaint with the Louisiana Public Service Commission (Commission) alleging that Dixie’s action was unlawful, requesting that Dixie be ordered to remove the line, and requesting that Gulf States be ordered the exclusive right to service the subdivision. The Commission upheld Gulf States’ complaint and awarded Gulf States the exclusive right to service the entire subdivision. On the basis of new evidence submitted, the district court remanded the case to the Commission for reconsideration. La. R.S. 45:1194. The Commission affirmed its original order and the district court affirmed the Commission’s order. Dixie now appeals to this court. La. Const, art. IV, § 21(E); La.R.S. 45:1192.

Round Oak Subdivision adjoins Jefferson Highway on its southwest corner. The subdivision’s north boundary is located approximately 663 feet south of Doyle Road in East Baton Rouge Parish. On June 7,1976, Dixie entered into an agreement with the developer of the subdivision to provide underground electric distribution service. According to the contract, the developer would not be charged for the increased costs of underground, as opposed to overhead, service. At the time, Dixie maintained a three phase distribution line along Doyle Road, approximately 663 feet north of the subdivision. Gulf States had a three-phase distribution line along Jefferson Highway, across the street from the southwest corner of the subdivision. Additionally, Gulf States had run a single-phase line across Jefferson Highway prior to 1963 to service a house which was located on land now within the boundary of the subdivision. Service to this house was disconnected at the owner’s request in May of 1978, however the line remains energized. The testimony of both parties reflects that three-phase service is needed to service the entire subdivision.

Gulf States’ argument to the Commission protesting Dixie’s action was three-fold. Gulf States contended: first, that Dixie violated a general order of the Commission by extending services when Gulf States had “electric distribution facilities in the immediate vicinity of Round Oak Subdivision which would allow the most economic extension” of electric services to that area; second, that Dixie’s action was “an uneconomic and duplicative construction of facilities in violation of La.R.S. 45:123;” and third, that Dixie engaged in a promotional practice that is proscribed by a general order of the Commission when Dixie did not charge the developer for the installation costs of the underground line. The Commission agreed with Gulf States and ordered that Gulf States service Round Oak Subdivision.

Under our ruling in South Louisiana Electric Cooperative Association v. Louisiana Public Service Commission, 309 So.2d 287 (La.1975), Gulf States may not claim the exclusive right to provide services to the entire subdivision based upon La.R.S. 45:123 by contending that they operate an electric line within 300 feet of a small portion of that subdivision. Thus, any reliance by the Commission on La.R.S. 45:123 in their decision is misplaced. La.R.S. 45:123 would, however, prohibit Dixie from servicing points of connection within 300 feet of existing Gulf States electric lines such as the three-phase distribution line along Jefferson Highway and any currently “operating” single-phase lines located on or near subdivision property.

The claims of Gulf States with respect to alleged promotional practices of Dixie are equally without merit. On March 12, 1974, the Commission issued General Order “In re: Promotional Practices” which implemented an order issued by the Commission on December 18, 1973. This general order prohibits a public utility from giving a preference or prize “for the purpose of enticing” someone to deal with that utility in preference to the service of any other public utility.” This court has held that the above general order is not applicable to an action which is a part of a comprehensive service policy when that policy is applied uniformly, even in areas where there is no competition for customers. Louisiana Power and Light Company v. Louisiana Public Service Commission, 392 So.2d 658 (La.1980); Central Louisiana Electric Company, Inc. v. Louisiana Public Service Commission, 370 So.2d 497 (La.1979).

The parties in this case had entered into a stipulation before the Commission whereby, in part, each agreed that:

Number 4. Prior to June, 1977, Dixie Electric Membership Corporation did not charge developers of subdivisions for the difference between the anticipated cost of installation and maintenance of underground electric service facilities and the anticipated cost of installation and maintenance of overhead electric facilities. Number 5. Since June, 1977, Dixie Electric Membership Corporation’s policy has been to charge all developers of subdivisions making initial inquiries after that date for the difference between the anticipated cost of installation and maintenance of underground electric service facilities and the anticipated cost of overhead electric facilities.

The agreement between Dixie and the subdivision developer was signed on June 7, 1976, during which time the uniform policy of Dixie was to offer the underground service at no additional cost. Thus, the General Order, of March 12, 1974, “In re: Promotional Practices”, does not apply to this case.

In general, however, an order of the Public Service Commission should not be overturned on review unless it is shown to be arbitrary, capricious or abusive of its authority. The burden of showing that an order is arbitrary, capricious or abusive of the Commission’s authority is on the party attacking that order. Central Louisiana Electric Company, Inc. v. Louisiana Public Service Commission, 370 So.2d 497 (La. 392 So.2d 658 (La.1980). The Commission is an expert within its own specialized field and its interpretation and application of its own General Orders, as distinguished from legislative statutes and judicial decisions deserve great weight, because the Commission is in the best position to apply its own General Orders. Central Louisiana Electric Company, Inc. v. Louisiana Public Service Commission, supra. 1979); Louisiana Power and Light Company v. Louisiana Public Service Commission,

The Commission’s General Order of March 12, 1974 concerning “Duplication of Electric Service” directs that electric service to areas outside of the 300 feet limit of R.S. 45:123 shall be provided by the utility that can most economically serve that area. Dixie contends that Gulf States failed to prove that it could service Round Oak Subdivision more economically than could Dixie. Dixie cites the Commission’s finding that it cost Dixie $8,600.00 to provide the required three-phase service to a sewer lift-station located on the north part of the subdivision while the cost to Gulf States to provide similar service to the same lift-station would be $26,137.62.

Dixie has failed to accurately perceive the costs of servicing this subdivision in its entirety. Once within the boundaries of the subdivision, testimony adduced before the Commission indicated that the cost of providing service to the entire subdivision within its boundaries would be the same for either utility. Thus, the only difference in cost to each utility would be the costs incurred in extending their three-phase service to the boundary of the subdivision. Once within its boundaries, the costs to each utility are the same. The Commission found that, in order to reach the boundary of the subdivision, Dixie had to extend their line approximately 2000 feet. Gulf States, on the other hand, had three-phase service just across Jefferson Highway from the boundary of the subdivision. Under these facts, we cannot say that the Commission was arbitrary or capricious in finding that Gulf States could more economically service the Round Oak Subdivision.

It would avoid needless litigation in territorial disputes such as this if the Commission’s rulings would follow their stated intent in the March 12, 1974 General Order, “Duplication of Electric Service.” Therein, the Commission decided, in effect, that customers outside of the 300 foot area defined by La.R.S. 45:123 should be serviced by the utility that could most economically provide service. While this court is mindful-of Commission Order No. U-12749, Dixie Electric Membership Corporation v. Gulf States Utilities Company (Woodland Ridge Subdivision, First Filing), wherein the Commission expressed a preference for single utility service within the boundaries of a single subdivision, this court perceives no reason why this subdivision and others might not be serviced by two different utilities, each extending to its economical bounds.

In cases where the economics of providing electric service are the controlling factor, the Commission should take into account the physical characteristics of the subdivision which have bearing on this factor. For example, in this case, where there are great distances between the opposite boundaries of the subdivision, separate utilities maintaining adequate services at each end of the subdivision, and a physical boundary line which could separate the two utilities, logic dictates that it is more economical for one utility to provide service to one end of the subdivision, while the other utility provides service to the other end. Specifically in this case, the evidence shows that it is less expensive for Dixie to service the north end of the Round Oak Subdivision than for Gulf States. Just to run a single three-phase line to a sewer lift-station located within the northern part of the subdivision costs Dixie only $8,600 as opposed to over $26,000 for Gulf States to run a single three-phase line to this same lift-station. Similarly, it is more economical for Gulf States to service the south side of the subdivision. In addition, there are physical boundary lines, such as the 30 foot wide drainage ditch in this case, along which service boundaries may be established which would have the additional benefit of eliminating the excess costs involved in bridging or otherwise crossing such a boundary.

Be that as it may, such decisions are within the purview of the Commission and not this court, unless they are arbitrary, capricious, or an abuse of the Commission’s authority.

DECREE

Accordingly, we affirm the judgment of the district court affirming the Commission’s Order No. 14102 which orders that Gulf States service Round Oak Subdivision.

AFFIRMED.

      . The SLECA opinion examined La.R.S. 45:123, which prohibits utilities from constructing or extending electric facilities or service to points of connection already being served by, or within 300 feet of, an electric line of another utility. The opinion interpreted “point of connection” to mean the actual meter connection and not the “area” or “subdivision as a whole.” 309 So.2d at 289.

      . La.R.S. 45:123 defines “electric line” as “a line constructed and operated for the transmission and/or distribution of electricity and which was not originally constructed for the principal purpose of preempting territory.” (Emphasis added.) At least one such single-phase line is no longer being operated and was not in operation when Dixie extended services into the subdivision.

      .For the full text of this order, see Barras v. Louisiana Public Service Commission, 331 So.2d 842 (La.1976).

      . For the full text of this order, see Appendix I of Louisiana Power & Light Company v. Louisiana Public Service Commission, 343 So.2d 1040 (La.1977).


text:
    DIXIE ELECTRIC MEMBERSHIP CORPORATION v. LOUISIANA PUBLIC SERVICE COMMISSION.
    No. 83-CA-1197.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
    Rehearing Denied Jan. 6, 1984.

      John Schwab, Baton Rouge, for plaintiff-appellant.
    Marshall B. Brinkley, Baton Rouge, for defendant-appellee.
    Eugene R. Groves, Baton Rouge, for in-tervenor-appellee.
   BLANCHE, Justice.

In this companion case to Dixie Electric Membership Corporation v. Louisiana Public Service Commission, 441 So.2d 1208 (La.1983), (“Round Oak Subdivision”), decided this day, Dixie Electric Membership Corporation had, at the request of the developer, built an electric distribution line to service Lakeland Acres Subdivision in Livingston Parish, Louisiana. Gulf States Utilities Company filed a complaint with the Louisiana Public Service Commission alleging that Dixie’s action was unlawful, requesting that Dixie be ordered to remove their line, and that Gulf States be awarded the exclusive right to service the subdivision. The Commission upheld Gulf State’s complaint and awarded Gulf States the right to service Lakeland Acres Subdivision. On the basis of new evidence submitted, the district court remanded the case to the Commission for reconsideration. La.R.S. 45:1194. The Commission affirmed its original order and the district court affirmed the Commission’s order. Dixie now appeals to this court. La. Const. art. IV, § 21(E); La.R.S. 45:1192.

Lakeland Acres Subdivision is located approximately 600 feet south of Interstate 12 in Livingston Parish, Louisiana, and approximately 280 feet east of South Range Avenue (La. Hwy. 3002). Gulf States maintains a high voltage transmission line that comes within 300 feet of at least nineteen lots on the south part of the subdivision. Gulf States also maintains a single-phase distribution line along South Range Avenue. This line, at one time, provided single-phase service to an old camp which was located on land which is now designated as Lot 1 of the First Filing of the subdivision. The camp has been removed, electric service has been disconnected, and the line is no longer energized. Dixie maintains a three-phase distribution line along Interstate 12 approximately’ 600 feet north of the subdivision. Thus, at the time that Dixie entered into an agreement to provide electric distribution service to this subdivision, no other utility had electric distribution service to that area.

On May 11, 1977, Dixie entered into an agreement with the developer of the subdivision whereby Dixie would provide underground electric distribution service to the subdivision. The agreement contained provisions whereby the developer would not be charged for the increased costs of underground, as opposed to overhead, service.

The complaint filed by Gulf States in this matter alleges the same three infractions on the part of Dixie as are contained in the “Round Oak Subdivision” complaint; first, that Dixie violated General Order of March 12, 1974, “In re: Promotional Practices” by offering underground service at no cost above that for overhead service; second, that Dixie’s action was in violation of the “300 foot rule” of La.R.S. 45:123; and third, that Dixie violated General Order of March 12, 1974, “Duplication of Electric Service”, by providing electric distribution service where Gulf States could do so more economically. Because we find that Gulf States failed to carry its burden of proof before the Commission, we reverse.

The agreement between Dixie and the developer of the subdivision was signed on May 11, 1977. By stipulation of both parties before the Commission, it was Dixie’s uniform policy at that time to provide such underground services to all customers, regardless of the existence of any competing utility in the area. As such, the General Rule of March 12, 1974, “In re: Promotional Practices”, does not apply to this case and may not be relied upon by either the Commission or Gulf States. See: Dixie Electric Membership Corporation v. Louisiana Public Service Commission, 441 So.2d 1208 (La.1983); Louisiana Power and Light Company v. Louisiana Public Service Commission, 392 So.2d 658 (La.1980); Central Louisiana Electric Company, Inc. v. Louisiana Public Service Commission, 370 So.2d 497 (La.1979).

As in the “Round Oak Subdivision” case, supra, Gulf States may not rely upon La.R.S. 45:123 to contend that they are entitled to service the entire subdivision. This court interpreted the language of La. R.S. 45:123 restrictively in South Louisiana Electric Cooperative Association v. Louisiana Public Service Commission, 309 So.2d 287 (La.1975). Therein, we found that the language “point of connection” in La.R.S. 45:123 meant “meter connection” and not the whole subdivision. Thus, while La.R.S. 45:123 restricts Dixie from providing service to any “meter connection” within 300 feet of Gulf States’ high voltage transmission line, Dixie would be legally entitled to provide service to any “meter connection” located more than 300 feet from any electric line operated by Gulf States, whether or not a part of the lot on which that connection is located within 300 feet of the line.

Gulf States contends that, because some lots fall completely within 300 feet of their transmission line, Dixie may not service these lots. Gulf States argues that such a situation results in two different utilities servicing different parts of the same subdivision. Gulf States then cites Commission Order No. U-12749, Dixie Electric Membership Corporation v. Gulf States Utilities Company (Woodland Ridge Subdivision, First Filing), to argue that the Commission favors service within a subdivision by only one utility. The use of such an argument to contend that Gulf States service the entire subdivision because it maintains a transmission line within 300 feet of a few of the subdivision’s lots is inconsistent with our ruling in South Louisiana Electric Cooperative Association v. Louisiana Public Service Commission, supra, and completely controverts our interpretation of La.R.S. 45:123. The argument put forward by Gulf States on this issue is without merit.

Thus, the major issue involved in this case is whether or not Gulf States, as complainant before the Commission, carried its burden of proof of showing that Gulf States could more economically service Lakelake Acres Subdivision than could Dixie. Central Louisiana Electric Company, Inc. v. Louisiana Public Service Commission, 370 So.2d 497, 505 (La.1979).

The testimony before the Commission was to the effect that, in order to service the entire subdivision, including sewer lift-stations and future planned expansion, three-phase service would be required. Once within the subdivision boundaries, the cost of service to each utility would be the same. Under the Commission’s General Order of March 12,1974, “Duplication of Electric Service”, the utility that could most economically service the subdivision should be allowed to do so. As costs within the subdivision boundaries would be the same, Gulf States had the burden of proof before the Commission of showing that they could get service to the subdivision boundary at less expense than could Dixie.

Dixie put forth evidence before the Commission showing that its costs to extend three-phase service to the subdivision from the north was $2,686.02 while the estimated cost for Gulf States to extend service from a three-phase line to the north would be $2,898.36. Neither figure includes the cost of any servitudes required to extend the services to the subdivision boundaries.

The Commission’s General Order of March 12, 1974, “Duplication of Electric Service”, states, in pertinent part:

It is the opinion of this Commission that in order to effect economies in the service of electricity, and, thus, keep rates therefore within reasonable bounds, uneconomic and wasteful practices should be prohibited. It is determined that the paralleling and duplication of existing transmission or distribution lines as defined in Louisiana Revised Statutes 45:123 or the extensions of either by electric public utilities to serve customers readily accessible to like facilities of an electric public utility already providing service in the immediate area is not in-the public interest, and that such practices ultimately lead to wasteful competition and unwise expenditures and investments which become a burden upon the rate payers.
It is recognized that while in some areas there is not clear line of demarcation between the service area of electric public utilities, for the purpose of this order, the service area of electric public utility is that area which, as a result of the existence of transmission and distribution lines, is readily accessible by economically feasible extensions from such existing facilities. (Emphasis added.)

Gulf States argues that since the time that Dixie extended their service, Gulf States has underbuilt its transmission line to the south and the single-phase line along South Range Avenue has been converted to a three-phase line. Such an action by Gulf States tacitly acknowledges the facts adduced before the Commission to the effect that single-phase service is inadequate to serve the entire subdivision plus the necessary sewer lift-station. Thus, Gulf States, at the time of their complaint was neither servicing the area, as their single-phase line to the old camp had been disconnected and de-energized, nor did they have adequate services in the area. As such, the Commission’s General Order of March 12,1974 may not be relied upon by Gulf States absent a showing that the improvements and upgrading of their existing lines to the south was more economical than Dixie’s extension from the north.

Gulf States contends that the extension of three-phase service from South Range Avenue east to the subdivision boundary is more economical than Dixie’s extension from the north. Gulf States, however, put forth no evidence at the hearing before the Commission to support its contentions. There is no evidence of the cost to Gulf States of converting the single-phase line along South Range Avenue to three-phase service. There is no evidence of the cost that Gulf States incurred when it under-built the transmission line to provide distribution service from that line. Finally, there is no evidence of the cost to Gulf States of extending the three-phase service from South Range Avenue to the subdivision boundary. In short, there was no evidence adduced before the Commission by Gulf States upon which the Commission could base its decision to award to Gulf States the right to serve Lakeland Acres Subdivision. Thus, Dixie has met its burden as the party attacking an order of the Commission before this court of showing Order No. U-14101 of the Louisiana Public Service Commission to be arbitrary, capricious, and abusive of their authority. Central Louisiana Electric Company, Inc. v. Louisiana Public Service Commission, supra.

DECREE

For the reasons assigned, the judgment of the district court is reversed and set aside; Order No. U-14101 of the Louisiana Public Service Commission is annulled; the claims of Gulf States Utilities Company are rejected at its cost.

REVERSED.

      . La.R.S. 45:123 states, in pertinent part, that: “... an ‘electric line’ is a line constructed and operated for the transmission and/or distribution of electricity ...” (Emphasis added). Thus, a line used solely for transmission of electricity falls within the language of La.R.S. 45:123.