author: LEHAN, Judge.

text:
    Stephen M. GREER, Appellant, v. Sondra G. GREER, Appellee.
    No. 82-2708.
    District Court of Appeal of Florida, Second District.
    Sept. 30, 1983.
    David B. McEwen, Tampa, for appellant.

      Charles F. Clark and Ted R. Manry, III, of MacFarlane, Ferguson, Allison & Kelly, Tampa, for appellee.
   LEHAN, Judge.

The husband in this dissolution of marriage action appeals the award of permanent alimony and the property settlement. The wife cross-appeals the denial of attorney’s fees to her and certain restrictions placed on her possession of the marital residence. We reverse and remand.

The final order of dissolution requires the husband to make permanent periodic payments of alimony to the wife of $1,000 per month. The husband contends that this award was an abuse of the trial court’s discretion because he alleges that the wife will receive between $12,000 to $15,000 per year for the next ten years as her share of the proceeds from the sale of her family’s farm. The wife contends that, although she may have been a record title holder to the farm along with her mother, she will in fact receive no income from the sale of the property because her mother is entitled to and will receive all of the payments.

The evidence shows that the husband’s annual before-tax income is approximately $55,000. The husband claimed monthly expenses for himself of $2,478, and the wife claimed expenses for herself (after deducting the monthly child support she will receive) of $1,460. After payment of alimony and child support, the husband is left with an income of $33,400. The wife has an income of $12,000 per year in alimony. Under the principles of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), we cannot say that the trial court abused its discretion in awarding that alimony to the wife. Even if the wife is credited with the disputed farm income, the alimony to the wife in our view, in light of the income to be received by each spouse and the husband’s tax deductions for alimony payments, would not exceed the outer limits of permissible trial court discretion under Ca-nakaris.

The marriage was of eighteen years duration. The children of the marriage were at the time of the dissolution aged 9 and 7 years. The wife was employed during the early years of the marriage as a secretary but has not worked since shortly before the birth of the first child except for her current employment, begun after the couple’s separation, in a commission insurance sales position from which no earned income is shown to have been received. The wife testified that this type of employment permits her to have flexible working hours so as to be with the children. A vocational counselor testified that the wife could earn between $10,000 and $15,000 per year as a secretary. There is no finding by the trial court as to the wife’s potential earnings, but if the trial court, under all the circumstances, failed to include the wife’s earning capacity at the present time in his evaluation of the wife’s needs and abilities, we would not find that to have been an . abuse of discretion. See Kuvin v. Kuvin, 412 So.2d 900 (Fla. 3d DCA 1982). Of course, the husband may petition for a modification upon a showing of changed circumstances.

Shortly before the divorce, the husband invested in a closely-held corporation called Cardenco, Inc. by purchasing one-third of the corporation’s stock. His initial investment was $60,000, of which $25,000 was marital savings and $35,000 was money borrowed by the husband. The trial court determined that the value of Cardenco, Inc. was $925,000 and that the wife was entitled to a special equity interest of one-half of the husband's share of the corporation. After deducting the $35,000 debt from the husband’s one-third ownership, the trial court determined that the wife’s one-half interest equaled $136,500. The trial court also gave the wife a special equity of one half of the husband’s interest in a corporation called Magic Needles, Inc. Evidence at trial indicated that Magic Needles, Inc. had no value.

The husband disputes both the valuation of Cardenco, Inc. and the award to the wife of one-half of his interest in both corporations. Evidence of the value of Cardenco, Inc., which included the opinion testimony of several expert witnesses, ranged from approximately $416,000 to $2,443,000. We cannot say that the trial court had no substantial competent evidence upon which to base its $925,000 valuation.

We disagree, however, with the trial court’s finding that the wife was entitled to a special equity of one half of the husband’s interest in the corporations. We also disagree with the husband’s argument that the wife’s special equity should be a lesser amount to be based upon her contribution to the purchase of the stock, to wit, one half of the $25,000 marital funds used to purchase the shares of Cardenco, Inc. To be entitled to a special equity, the wife must have made an extraordinary contribution beyond the usual contribution of a spouse to a marriage and “from a source clearly unconnected with the marital relationship.” Ball v. Ball, 335 So.2d 5, 7 (Fla.1976). There is no showing here of such a contribution; the facts show that marital funds were used for the purchase.

As pointed out in Canakaris, the concept of special equity is properly used only to describe “a vested interest in property brought into the marriage or acquired during the marriage because of contribution of services or funds over and above normal marital duties.” Canakaris at 1200. That special equity is entirely distinct from lump sum alimony awarded to achieve an equitable distribution of the parties’ assets acquired during the marriage. Lump sum alimony, as opposed to a special equity, is properly awarded if the evidence shows both a justification for the lump sum payment and financial ability of the spouse to make the payment without substantially endangering his or her economic status. Canakaris at 1201.

In a dissolution action, awards of different types of alimony, which may include property as lump sum alimony, are interrelated in the trial court’s attempt to provide an overall equitable distribution. Eliminating, as we have done, the $136,500 stock interest awarded to the wife which, as we have found, was not shown to have been correctly called a “special equity” obviously impacts upon the trial court’s distribution plan which is to be designed to do equity between the parties. Under our holding that the wife is not shown to be entitled to a special equity, her assets after the dissolution would be substantially reduced. Therefore, we remand for reconsideration by the trial court of the final judgment and for any modification the trial court may deem necessary in its sound discretion to do equity.

Under our holding we need not address the issue raised by the husband and not directly addressed in Landay v. Landay, 400 So.2d 43 (Fla. 2d DCA 1981), as to the method of calculation of a special equity claimed by one spouse (in this case the wife) in property which is solely titled to the other spouse (in this case the husband).

We find no error in the trial court’s denial of an award of attorney’s fees to the wife, considering each party’s financial status under the trial court’s order of dissolution. However, because we have remanded the case for reconsideration and possible modification by the trial court, we also remand the issue of the wife’s attorney’s fees to allow the trial court to consider in that regard the entire plan of distribution.

The final judgment, which gave the wife exclusive possession of the marital home, contained a provision that no person other than blood relatives of the wife could reside in the marital home during the period of the wife’s possession. On remand, this restriction should be removed. Tyler v. Tyler, 427 So.2d 1027 (Fla. 2d DCA 1983).

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR PROCEEDINGS CONSISTENT HEREWITH.

HOBSON, A.CJ., and SCHOONOVER, J., concur.


source: Caselaw Access Project

author: RYDER, Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Terry Lee BURNISON, Appellee.
    No. 83-98.
    District Court of Appeal of Florida, Second District.
    Sept. 30, 1983.
    Jim Smith, Atty. Gen., Tallahassee and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for appellant.
    David J. Kurland, Clearwater, for appel-lee.
   RYDER, Judge.

The state challenges the trial court’s order granting appellee’s motion to dismiss one count of an information after the state failed to timely file its traverse. We reverse because the dismissal was too severe a sanction in this case.

Terry Lee Burnison was charged with possession of a short-barreled shotgun, contrary to section 790.221, Florida Statutes (1981), and possession of drug paraphernalia, contrary to section 893.147, Florida Statutes (1981). On November 3, 1982, Burnison filed a motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190(c)(4), alleging that the measurements of the shotgun and the barrel did not violate the statutory mínimums of section 790.-001(10), Florida Statutes (1981).

The hearing on the motion was held on December 27, 1982. Immediately before the commencement of the hearing, an assistant state attorney hand delivered the state’s traverse to the defense counsel. The traverse had been duly sworn to and it denied the material allegations regarding the length of the weapon. The defense attorney objected to the filing of the traverse at that point as untimely. He argued that Burnison’s motion to dismiss had been filed almost two months previously and that no extenuating circumstances had occurred to excuse the tardiness of the state’s filing. He contended that to walk into a hearing and be handed a traverse was “inappropriate and certainly not reasonable within the meaning of Rule 3.190(d).”

After each attorney presented his position, the trial judge ruled that the state’s filing had been untimely. Carefully reciting into the record his reasoning, the capable trial judge explained:

[I] also want to clear up the record as to the Motion to Dismiss. The Rule says, and I want to go back to that Rule one more time regarding the demers [sic] and traverses. It’s Rule 3.190 and it is subsection (c)(4) and continues on down to sub-section (d), last sentence thereof, ‘Such demer [sic] or traverse shall be filed a reasonable time before, before the hearing on the Motion to Dismiss.’ And I want this clear that could mean under reasonable circumstances one minute before the hearing started or several days before the day of the hearing. But I want this clear in the record that this Court’s ruling that a motion is filed the 3rd of November and a demer [sic] that is handed to the defense lawyer at the same time within minutes or before the motion calendar is to be called is not reasonable under the circumstances either as to the day or as to the time span on the calendar or clock.

The trial judge filed an order on January 13, 1983 granting Burnison’s motion to dismiss count one relating to the shotgun.

On appeal we must determine what constitutes a “reasonable time” within the context of Florida Rule of Criminal Procedure 3.190(d). The rule provides in pertinent part:

(d) Traverse or Demurrer. The State may traverse or demur to a motion to dismiss which alleges factual matters. Factual matters alleged in the motion to dismiss shall be deemed admitted unless specifically denied by the State in such traverse. The court may receive evidence on any issue of fact necessary to the decision on the motion. A motion to dismiss under (c)(4) of this rule shall be denied if the State files a traverse which with specificity denies under oath the material fact or facts alleged in the motion to dismiss. Such demurrer or traverse shall be filed a reasonable time before the hearing on the motion to dismiss. (Emphasis added).

This language supports a flexible definition of “reasonable time.” As explained in the Author’s Comment following the rule, the state must “take timely action to negate or dispute the motion to dismiss, or else the allegations of the defendant shall be admitted as true.” Florida Rule of Criminal Procedure 3.060, Time For Service of Motions and Notice of Hearing, also uses the phrase “reasonable time.” There, the Author’s Comment notes that, “Because of the discretionary power of the trial court and the interpretations possible in construing a ‘reasonable time,’ judgment and common sense should control the application of the rule.” From this we conclude that a trial court must examine the circumstances of each case and make a rational decision as to the timeliness of the filing of a traverse.

In the instant case, we commend the explicit reasoning set out by the able trial judge as the basis for his ruling. We further recognize and are fully aware of the difficulties a trial court encounters in attempting to control its docket. We are quite sympathetic with most efforts to enforce compliance with the rules. On the other hand, the state’s performance herein was poor practice. Delaying the filing of its traverse until the final moments prior to the hearing is most frustrating. Yet, because of the nature of the sanction imposed in this circumstance, we are compelled to reverse.

We have previously addressed the granting of a motion to dismiss as a sanction. In State v. King, 372 So.2d 1126 (Fla. 2d DCA 1979), cert. denied, 385 So.2d 758 (Fla.1980), we reversed the trial court’s dismissal of prosecution as an abuse of discretion after the state failed to comply with an oral order. We found that the state’s action had not been willful and the defendant demonstrated no prejudice to his cause. In evaluating the sanction we stated:

While a trial court has the authority to dismiss a cause as a sanction for failure to comply with a court order or for violation of a discovery rule, Fla.R.Crim.P. 3.220(j), State v. Oliver, 322 So.2d 638 (Fla. 3d DCA 1975), the dismissal of charges against a defendant is an extreme sanction and one that should be utilized with caution and only when a lesser sanction would not accomplish the desired result. State v. Smith, 342 So.2d 1094 (Fla. 2d DCA 1977).

Accord, State v. Perez, 383 So.2d 923 (Fla. 2d DCA 1980). In State v. Spillane, 419 So.2d 753 (Fla. 2d DCA 1982), where an order dismissing an information was granted following alleged misconduct by certain deputies, we reversed the dismissal as too drastic a sanction, absent demonstrable prejudice to the defendant. In State v. Banks, 418 So.2d 1059 (Fla. 2d DCA), cert. denied, 424 So.2d 760 (Fla.1982), after reversing a dismissal for a discovery violation, we pointed out that the trial court should have been aware of the availability of a continuance as a viable alternative to remedy any disadvantage to defendant’s preparation.

Although a continuance was not suggested in the case sub judice, the trial court could have ordered one as a viable alternative. More importantly, however, appellee did not allege undue prejudice to his cause because of the state’s tardy filing, nor was prejudice to the appellee reflected in the record. He simply argued that the state’s action had been inappropriate and not reasonable. Although we do not condone the state’s practice, its actions, viewed from the record before this court, did not rise to a willful or substantial violation of the rule. Hence, the order dismissing the charge relating to the shotgun was too severe a sanction in this instance.

Accordingly, the final order dismissing count one against appellee Burnison is REVERSED and the cause is REMANDED for further proceedings.

GRIMES, A.C.J., and HANLON, MORTON J., Associate Judge, concur.


author: PER CURIAM.

text:
    Paul BERTRAM, Appellant, v. STATE of Florida, Appellee.
    No. 83-184.
    District Court of Appeal of Florida, Second District.
    Sept. 30, 1983.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We find error only in the court’s assessment of costs. Accordingly, we strike the trial court’s assessment of $2 court costs and $10 assessed for the Crimes Compensation Trust Fund. These assessments were improper since appellant had been adjudged insolvent. Cox v. State, 334 So.2d 568 (Fla.1976); Johnson v. State, 403 So.2d 626 (Fla. 2d DCA 1981). Otherwise, we affirm the judgment and sentence of the trial court.

HOBSON, A.C.J., and DANAHY and CAMPBELL, JJ., concur.

      . We previously certified to the supreme court the question of whether costs may be assessed for the Crimes Compensation Trust Fund and Law Enforcement Officers Training Trust Fund against a defendant who had been adjudged insolvent. Brown v. State, 427 So.2d 271 (Fla. 2d DCA 1983).


text:
    Jose TORREZ, Appellant, v. STATE of Florida, Appellee.
    No. 83-455.
    District Court of Appeal of Florida, Second District.
    Sept. 30, 1983.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Diane Barrs, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm appellant’s conviction and sentence. However, the portions of the trial court’s order requiring appellant to pay ten dollars pursuant to section 960.20 (Crimes Compensation Trust Fund), ten dollars pursuant to section 775.0835 (optional fine for the Crimes Compensation Trust Fund), and four dollars pursuant to sections 943.25(4) and 943.25(8) (Law Enforcement Training and Correctional Officer Training Trust Funds), are stricken since the trial court adjudged appellant insolvent prior to trial and appointed the public defender to represent him. Brown v. State, 427 So.2d 271 (Fla. 2d DCA 1983) (question certified).

HOBSON, A.C.J., and DANAHY and CAMPBELL, JJ., concur.


author: ZEHMER, Judge. MILLS, Judge,

text:
    Albert PONDER, Appellant, v. Mary E. PONDER, Appellee.
    No. AP-187.
    District Court of Appeal of Florida, First District.
    Oct. 6, 1983.

      Larry R. Morgan, Legal Services of North Florida, Inc., Tallahassee, for appellant.
    No appearance by appellee.
   ZEHMER, Judge.

The appellant, Albert Ponder, was held in contempt of court for failure to make court-ordered child support payments and was sentenced to six months in jail upon the condition that he could purge his contempt and thereby secure his release by paying $750 of the accrued arrearages. We reverse because there is no evidence in the record to indicate that Mr. Ponder had the ability to pay $750 at the time of his commitment and the court below made no clear and unequivocal finding to that effect.

The purpose of commitment for civil contempt is not to punish but, rather, to coerce compliance with the court’s decree. Hence, it is customarily said that a person sentenced to jail for civil contempt “carries the key to his cell in his own pocket.” Demetree v. State, 89 So.2d 498 (Fla.1956); Pugliese v. Pugliese, 347 So.2d 422 (Fla.1977); In the Interest of S.L.T., 180 So.2d 374 (Fla. 2d DCA 1965). This means that any person sentenced for civil contempt must have the ability to and be given the opportunity to purge himself of such contempt and thereby secure his release from jail. See generally, 17 Am.Jur.2d, Contempt, § 4.

In 1976 the Florida Supreme Court in Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976) ruled that prior to holding a person in contempt of court for failure to pay court-ordered child support, a trial judge must make an affirmative finding that:

1. The [alleged contemnor] presently has the ability to comply with the order and willfully refuses to do so, or
2. The [alleged contemnor] previously had the ability to comply but divested himself of that ability through his fault or neglect designed to frustrate the intent and purpose of the order.

Recently, the Supreme Court decided Andrews v. Walton, 428 So.2d 663 (Fla.1983), in which the primary issue was whether a person charged with civil contempt has the right to court-appointed counsel when such person is faced with possible incarceration. In discussing the civil contempt process, the Court restated its holding in Faircloth in the following terms:

In [Faircloth], we held that, to satisfy due process, a person could not be adjudicated guilty of failing to pay alimony or child support and sentenced to imprisonment conditional upon payment unless the trial court finds that the person (1) has the ability to make the payments; and (2) willfully refuses to pay.

Id., at 666 [emphasis added]. Relying upon its restatement of the Faircloth rule, the Court held that a person charged with civil contempt is not entitled to court-appointed counsel, reasoning that if such person is indigent, and thus qualified for court-appointed counsel, he cannot be incarcerated because his indigency prevents him from being able to purge his contempt.

We believe the Andrews opinion necessarily limits the effect of the language in Faircloth to the extent that, in every case, present ability to pay the purge amount is a necessary predicate to committing a civil contemnor to jail for failing to comply with the court’s order. This interpretation of the Faircloth rule is in harmony with the previous Supreme Court opinions in Deme-tree, supra, and Pugliese, supra, and is also in harmony with the general rule in other states. 17 Am.Jur.2d, Contempt, § 4. As we read Andrews and the Third District’s recent opinion in Robbins v. Robbins, 429 So.2d 424 (Fla. 3d DCA 1983), the two-part test in Faircloth is applied only when the trial court makes its initial determination that contempt has occurred. In other words, while the language in Faircloth suggests that a person can be found in contempt if he has intentionally disposed of his financial resources to avoid compliance with the order, even though he does not have a present ability to comply with the court order, according to Demetree, Pugliese, Andrews, and Robbins, such person cannot be committed to jail unless there is also an affirmative finding based upon evidence in the record that at the time of incarceration the contemnor has the ability to make payment of the purge amount. Anything less removes the “key to his cell” from the con-temnor’s pocket, operates to punish rather than coerce prospective compliance with the court’s order, and transforms the proceeding from one for civil contempt to one for criminal contempt, thereby requiring full compliance with Rule 3.840, Florida Rules of Criminal Procedure, and other due process requirements applicable to trial and punishment for criminal contempts. Pugliese v. Pugliese, supra; Robbins v. Robbins, supra.

In the present case, the order of contempt found, in general language, that Mr. Ponder “has or had an ability to comply with an order of this court and failed to do so.” Yet the only evidence in the record regarding Mr. Ponder’s financial status at the time of sentencing was that he had no money or property, except for a $100 paycheck due shortly. The sentencing of Mr. Ponder to jail with a purge amount of $750, therefore, improperly .turned the civil contempt proceeding into a criminal contempt proceeding without providing him the right to court-appointed counsel and other due process protections afforded by Rule 3.840, Florida Rules of Criminal Procedure.

The judgment of contempt and commitment is REVERSED and this case is REMANDED for further proceedings as deemed necessary for entry of judgment consistent with this opinion.

SHIVERS, J., concurs.

MILLS, J., dissents, with opinion.

MILLS, Judge,

dissenting:

I dissent.

It affirmatively appears from the record that Ponder has served the sentence imposed on him by the trial court and has been discharged. The issue raised by this appeal is therefore moot. I would dismiss the appeal.

It was recently pointed out. by Judge Zehmer that this Court is a busy Court and should not be required to divert its efforts to cases that do not require its attention. D.C., a child v. State, 436 So.2d 203 (Fla. 1st DCA 1983).


text:
    In re ESTATE OF Arthur E. DAVIS, Deceased.
    No. 81-2241.
    District Court of Appeal of Florida, Fourth District.
    Oct. 12, 1983.

      Todd L. Smith, P.A., and Nancy Little Hoffman, P.A., Co-Counsel, Fort Lauder-dale, for appellant-Arthur E. Davis, Jr.
    Matt D. Heilman of Shaffner, Shaffner & Dyer, P.A., Fort Lauderdale, for appellee-Claire Jones.
   ON MOTION FOR CLARIFICATION

PER CURIAM.

It was the intent of this court by our original opinion, 428 So.2d 774 (Fla.App.1983) to effect a temporary relinquishment of jurisdiction for the purposes expressed in that opinion.

At such time as the trial court enters a subsequent judgment, we shall entertain briefs in accordance with the following schedule:

1. Appellant’s brief to be served within 20 days of rendition.
2. Appellee’s brief to be served 20 days thereafter.
3. Appellant’s reply brief to be served 20 days thereafter.

ANSTEAD, C.J., and BERANEK and GLICKSTEIN, JJ., concur.


author: LETTS, Judge.

text:
    Robert BOTTE, Appellant, v. Robert B. POMEROY, d/b/a South Seas Apartments; and St. Paul Mercury Insurance Co., Appellees.
    Nos. 82-367,83-463.
    District Court of Appeal of Florida, Fourth District.
    Sept. 14, 1983.
    Rehearing Denied Oct. 31, 1983.
    Elizabeth K. Clarke of Daniels & Hicks; Goldstein Professional Association, Miami, for appellant.
    Richard A. Sherman, and Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane, Miami, for appellees.
   LETTS, Judge.

This appeal is a consequence of a summary judgment granted in favor of a good Samaritan which we must reverse.

The record strongly suggests that the injured party’s accident was self-inflicted as a result of excessive use of alcohol and drugs. Around 5:00 A.M. after extended carousing he ventured outside, fell .down and passed out. Later while lying on the ground, he yelled for help and awoke the good samari-tan who got out of bed and came to his assistance.

Taking the testimony in the light most favorable to the injured party, which indeed we must, it is alleged that when the good Samaritan responded to the yells for help he was told by the injured party to call an ambulance but not to move him because the latter had no feeling in his arms and legs or from the waist down. Ignoring this entreaty, the good Samaritan allegedly moved the stricken party and removed his pants, rendering the latter a quadriplegic.

We are all familiar with the Good Samaritan statute which supposedly insulates from liability those who assist injured parties at the scene of an emergency. See Section 768.13, Florida Statutes (1981). However, that statute is rendered impotent under the facts of this incident because of the included statutory language that the assistance rendered must be accomplished “without objection.” Here the injured party’s testimony was that he insisted that he not be moved and that rescue operations be restricted to calling an ambulance.

We are unhappy that the statute has been watered down by the inclusion of “without objection” language. After all, many victims in distress will quite naturally say: “don’t touch me, it hurts.” As we see it, the employment of this language permits the injured party to, in effect, control the rescue operations so that the immunity envisaged is obviated.

As if the foregoing were not enough, there is another portion of the statute that completes its emasculation, because the good Samaritan is required to render his assistance like an “ordinary reasonably prudent man.” Obviously any sensible plaintiff’s lawyer can plead around a statute such as this and get to the jury. As it now stands, it does not appear to be a very good idea to render assistance to an accident victim.

REVERSED AND REMANDED.

HERSEY and WALDEN, JJ., concur.


author: WATSON, Justice.

text:
    Grady L. MESSER v. Leonard O. LONDON.
    No. 83-C-1782.
    Supreme Court of Louisiana.
    Aug. 30, 1983.
    Rehearing Denied Sept. 23, 1983.
    Albert F. Richard, Plaquemine, for applicant.
    J. Arthur Smith, III, John Samaha, Baton Rouge, for respondents.
   WATSON, Justice.

Plaintiff, Grady L. Messer, filed this suit to disqualify defendant, Leonard 0. “Skeet” London, as a candidate for reelection to the police jury of East Feliciana Parish, alleging that London had not been domiciled in district two during the year preceding his qualification on July 25, 1983. The trial court declared London an ineligible candidate and the court of appeal affirmed. Messer v. London, 436 So.2d 756 (La.App. 1 Cir.1983). A writ was granted to consider the judgment. 437 So.2d 286 (La., 1983).

ISSUE

Does Leonard 0. London have the domiciliary qualification necessary for a police juror representing district two of East Feli-ciana Parish?

LAW

Article 3, Section 4, Louisiana Constitution of 1974, requires that a candidate for the legislature must have been “actually domiciled for the preceding year” in the district from which he or she seeks election. LSA — R.S. 33:1225 provides that police jurors shall possess the same qualifications as members of the House of Representatives.

The general definition of domicile is contained in LSA-C.C. art. 38:

“The domicile of each citizen is in the parish wherein he has his principal establishment.
“The principal establishment is that in which he makes his habitual residence; if he resides alternately in several places, and nearly as much in one as in another, and has not declared his intention in the manner hereafter prescribed, any one of the said places where he resides may be considered as his principal establishment, at the option of the persons whose interests are thereby affected.”

LSA-C.C. art. 41 deals with change of domicile:

“A change of domicile from one parish to another is produced by the act of residing in another parish, combined with the intention of making one’s principal establishment there.”

LSA-C.C. arts. 42 and 43 govern “proof of intent” to change domicile and state:

Article 42: “This intention is proved by an express declaration of it before the recorders of the parishes, from which and to which he shall intend to remove.
“This declaration is made in writing, is signed by the party making it, and registered by the recorder.”
Article 43: “In case this declaration is not made, the proof of this intention shall depend upon circumstances.”

LSA-C.C. art. 44 deals with public officials holding office for a limited term:

“A citizen accepting a temporary and precarious office, or one from which he may be removed at pleasure, retains his ancient domicile, if he has not evinced a contrary intention.”

Residence and domicile are not synonymous terms. A person can have several residences but only one domicile. Taylor v. State Farm Mutual Auto. Ins. Co., 248 La. 246, 178 So.2d 238 (1965). Domicile is a person’s principal domestic establishment, as contrasted to a business establishment. A man and wife are presumed to have the same domicile. Robinson v. Standard Oil Company of Louisiana, 194 La. 904, 195 So. 351 (1940).

A change in domicile occurs when there is a change in actual residence accompanied by an intention to make a new principal establishment or home. Succession of Rhea, 227 La. 214, 78 So.2d 838 (1955). There is a presumption against change of domicile. In Re Adoption of Rials, 220 La. 484, 56 So.2d 844 (1952).

The phrase “actually domiciled” in the Constitution of 1974 requires that one holding legislative office have a real rather than fictitious domicile in the area represented. However, the question of “intention”, the crux of the preceding codal articles, remains viable. See 5 Records of the Louisiana Constitutional Convention of 1973: Convention Transcripts 328.

When a person holds public office, the law presumes that his domicile continues in the place where he exercises his public functions. Oakey v. Eastin, 4 La. 69 (1832). Any doubt should be resolved in favor of allowing a candidate to run for public office. Slocum v. DeWitt, 374 So.2d 755 (La.App. 3 Cir.1979). The burden of proof is on the party contesting candidacy.

FACTS

Leonard 0. London was bom and raised in East Feliciana Parish. He owns a home in the Richardson Subdivision at McManus which is located in his police jury district. The mailing address is Route 1, Box 616, Jackson, Louisiana, 70748. London and his wife were married on June 26, 1966, and separated in June of 1978. London filed a petition for separation in 1979 and a petition for divorce in 1980. No action was ever taken in either suit. The Londons have remained married and have never been legally separated or divorced.

London has operated a barbershop, London’s Hair Designers, at 1060 Swan Street, Baton Rouge, Louisiana, 70807, for eighteen to twenty years. This Baton Rouge property is not “the family home”. London and his wife Johnnie executed a “construction mortgage” in connection with the Swan Street property on April 5,1978. The notarized instrument states that the Londons are residents of Route 1, Box 616, Jackson, East Feliciana Parish, Louisiana. London has a “commercial account” for his business with Gulf States Utilities Company. Another utility account for 1040 Swan Street was opened September 26,1980, and disconnected on November 2, 1982. According to London, this second building was used to store barbershop equipment and supplies. London has used his business address at 1060 Swan Street for various purposes and lists that address on the police jury’s stationary.

Several neighbors testified that they had not seen London or his vehicles at his East Feliciana residence since the 1978 separation. Thomas S. Williams, who lives about two miles from the London residence, claimed that he had checked the house for London’s vehicles four or five times a week for a year, driving by first thing each morning. This witness had been unable to get London on the telephone at the East Felici-ana residence. According to London, he was present for some of the calls but refused to talk to Williams. Lilly Brown Holmes said that the three London children told her their daddy had not come back home.

On August 25, 1982, Johnnie London signed forms to obtain free school lunches for the couple’s two oldest children. She listed herself as the only adult member of the household. According to her deposition testimony, her husband was not present when she signed the forms for the children’s school lunches. She said the two could have been having a “spat” (Depo. 24), and her only concern was securing the children a free hot meal at school. During their separation, her husband sometimes stayed at his nephew’s home in Baton Rouge, and according to her testimony, London has stayed at the McManus house with her since 1980 and averages two to four nights a week there. When he is absent she calls his nephew or calls the barbershop. She does not know of any residence he has ever maintained in Baton Rouge.

London first ran for office in 1972. Jerry Bunch, president of the police jury, testified that London has served on the jury approximately ten years and is vice-president of that body. Bunch meets with London about twice a week and the police jury meets twice a month. When the two travel together, Bunch picks up London at McMa-nus Park. Bunch generally calls London in Baton Rouge. Alvin T. Havard, a member of the police jury, asked London for a home phone number in order to reach him over a weekend and was given the barbershop number, where an answering service took the call.

Claudis Barton, a next door neighbor of the Londons in the Richardson subdivision, testified that he had visited London at his McManus home during 1982, as well as in the preceding fourteen or fifteen years. Henry Spann testified that he had seen London three or four times a week for seventeen or eighteen years, frequently at the McManus residence.

Leola Johnson has known London for fifteen or sixteen years. London is a board member of “Black Action”, a political organization to which Ms. Johnson also belongs. According to her testimony, London resides at the McManus residence and she has seen him there frequently.

Woodrow Wilson testified that he had known London all of the latter’s life. When London finished high school, Wilson was his principal. Wilson interceded to get London a scholarship to a barbering school and they have had a close relationship since that time. Wilson is master of a Masonic Lodge in Clinton to which London belongs. London occasionally attends the lodge meetings. Both Wilson and London belong to the Voter’s League of East Feliciana Parish and London occasionally attends those meetings. Wilson sees London about four times a month, talks to him on the telephone twice a week and has him for Sunday dinner at least twice a month. He had been to London’s house in the Richardson subdivision about three times in the preceding year. Two of those visits were casual and unscheduled. According to Wilson, London votes in East Feliciana and attends church there.

David Robertson, a member of Black Action, testified that London has been a board member for eleven years and is parish president of the organization. Robertson had visited London at his McManus residence during the preceding year and a half.

London testified that he lives in the Richardson subdivision with his wife and three children and has owned the property since his marriage. He votes at Ward 3, Precinct 2-B, close by his home and has never lived or voted in any other parish. He has served on the police jury for eleven years. London belongs to the St. Paul Baptist Church in Wilson, East Feliciana Parish. He is listed in the telephone directory at Route 1, Box 616, Jackson, Louisiana, and has been for approximately sixteen years. Since November 22, 1967, London has maintained a Gulf States Utilities account with the mailing address of Route 1, Box 616, Jackson, Louisiana, 70748. London has periodically stayed with his nephew in Baton Rouge when he and his wife were having difficulties.

The trial court found London evasive and questioned his credibility. London explained that he resented the lawsuit, which he believed to be political harassment. After testimony was concluded, the trial judge visited the premises at Route 1, Box 616, Jackson, Louisiana, and found no personal effects belonging to Mr. London except a couple of coats. Also missing from the house was a gold velvet bed which London had testified was located there. Except for the statement that London visited the McManus house occasionally, the trial court declined to accept London’s testimony. Significantly, the trial court found:

“The court accepts that Mr. London visits the district frequently to discharge his duties as police juror and occasionally stays overnight at the family home.” (Tr. 13) (Emphasis added).

CONCLUSION

The resolutory question is whether plaintiff proved that London intended to change his domicile. Although there is considerable evidence that London does not maintain a residence in East Feliciana Parish, there is also contrary evidence. But most important, there is almost no evidence that London intended to change his domicile.

After the trial court visited the McManus residence, he concluded that the physical evidence did not prove London lived there. However, London did not have the burden of proof. Plaintiff, contesting London’s candidacy, had a heavy burden. He was required to prove: that London did not have a residence with his wife and children; that London’s only residence was in East Baton Rouge Parish; and that London had evidenced the intention of changing his domicile.

Mr. and Mrs. London have remained married. Filing of the lawsuits which have not gone to judgment did not change their status. Absent strong proof to the contrary, it must be assumed that Leonard London is domiciled with his wife and children at the residence he maintains in East Feliciana Parish. This is where his family is established. Despite his frequent absences from home and his business in Baton Rouge, the evidence does not prove that he has any other domestic residence.

A public official who discharges his duties is presumed to continue the domicile he had when elected. Oakey v. Eastin, supra. That London’s domicile was in East Feliciana Parish when he was last elected is uncontested. He has actively served as a police juror. Additionally, he has continued his voter’s registration in East Feliciana Parish; kept his church affiliation there; and maintained his membership in parish political groups. Although the evidence suggests that London may have another residence, there is not a preponderance of evidence that London has ever had the intent to change his domicile from East Feli-ciana to East Baton Rouge. LSA-C.C. art. 41.

The trial judge’s conclusion that London visits and sometimes spends the night at the McManus house brings the case (assuming a second residence in East Baton Rouge) within the contemplation of LSA-C.C. art. 38, under the terms of which one has the “option” of choosing his domicile. London emphatically denied any intention of moving from his lifelong home in East Feliciana Parish. LSA-C.C. art. 41. London’s service in public office and candidacy for reelection strongly negate any intention on his part to change his domicile. LSA-C.C. art. 44. Plaintiff did not carry his burden of proving that London is disqualified by change of domicile from running for reelection.

The trial court was clearly wrong in holding London disqualified as a candidate for reelection.

DECREE

For the foregoing reasons, the judgment of the court of appeal is reversed and judgment is rendered dismissing plaintiff’s suit at his costs.

REVERSED AND RENDERED.

LEMMON, J., concurs.

      . Zinko v. Zinko, 204 La. 478, 15 So.2d 859 (1943); Hyman v. Schlenker, 44 La.Ann. 108, 10 So. 623 (1892).

      . Exhibit P-25.

      . Exhibit P-13.

      . Williams had had a lawsuit against London which was dropped after London apologized and paid the court costs.

      .The deposition of Ms. London was proffered by plaintiff.

      . The law of Louisiana comports with that of other jurisdictions which is that:
      “[T]here must be a concurrence of the fact and the intent to change one’s domicile, and in the absence of either element, no change can be accomplished.” 129 A.L.R. 1383.


author: LEMMON, Justice. LEMMON, Justice,

text:
    Lloyd A. NICHOLSON, Jr. v. Patricia M. GRISAFFE.
    No. 83-C-1829.
    Supreme Court of Louisiana.
    Aug. 31, 1983.
    Concurring on Denial of Rehearing Oct. 17, 1983.

      Michael W. Campbell, Caffery, Oubre, Dugas & Campbell, New Iberia, for plaintiff-applicant.
    Paul J. deMahy, St. Martinsville, for defendant-respondent.
   LEMMON, Justice.

This is an election contest which challenged relator’s candidacy for the office of Member, Iberia Parish Council, District 8. The trial court disqualified relator as a candidate, finding that she, at the time of qualification, had not “been legally domiciled” and had not “actually resided” in District 8 for the year immediately preceding the qualification period, as required by Article II, Section 2-01 of the Iberia Parish Charter. The court of appeal affirmed. 436 So.2d 763. We granted certiorari to review these rulings, particularly to consider whether the court of appeal erred in interpreting La. Const. Art. Ill, § 4(A) and (B) (1974) and in holding that relator did not fall within the “election following reapportionment” exception contained in Section 4(B). 436 So.2d 763 We now reverse, concluding that a candidate for Iberia Parish Council, in the next regular election following legislative reapportionment of a district, may qualify in any new district created in whole or in part by the reapportionment of the old district, if the candidate had been domiciled in the old district for at least one year immediately preceding his qualification.

Relator had lived at 200 Bayou Bend in New Iberia since November, 1981. At the time that relator moved into this residence situated on Lot 4-A of Blue Haven Subdivision, the lot was located within the boundaries of Police Jury District 9 of Iberia Parish.

The Iberia Parish Police Jury adopted a plan reapportioning the Parish into new districts, and the plan went into effect in July, 1982. The plan adopted a new boundary line separating District 8 from District 9. Coincidentally, the voters of Iberia Parish adopted a home rule charter which apparently abolished the police jury system of government and adopted a president-council form, with council members to be elected from the newly reapportioned districts.

After reapportionment, relator voted in District 8 in a September, 1982 election, believing that her residence fell within the new boundaries of that district. On July 27,1983, relator filed a notice of candidacy. The present action ensued, challenging her qualifications as to the requirements of domicile.

The record supports the conclusions of the lower courts that relator’s place of residence was located over 600 feet outside of the eastern boundary line of the new District 8. Therefore, relator did not meet the qualifications required by the parish charter.

Relator contends, however, that the Constitution’s domicile requirements for legislators, including the “election following reapportionment” exception, are made applicable to members of parish governing authorities by La.R.S. 33:1225, which provides in pertinent part:

“Members of the police juries shall possess the same qualifications at the time of their election as members of the house of representatives .... ”

La.R.S. 33:1225 applies by its terms to police jurors. However, the pertinent provision of the statute dates back to the 1800’s, when the legislative branch of government in every parish was operated under the police jury system.

The problem of legislative reapportionment affects the legislative branch of government at all levels, and Section 4(B) expresses the people’s concern over the problem. Without protection of the kind accorded by Section 4(B), a highly esteemed legislator (either state or parish) might be forced out of office by reapportionment or might be ineligible to run for reelection in the district in which he is serving, if reapportionment less than one year before an election places him outside the district and prevents any possibility of his meeting the one-year residency requirement in the newly created district.

The courts have also shown a concern for the problems of a victim of legislative reapportionment. In McCarter v. Broom, 377 So.2d 383 (La.App. 1st Cir.1979), the court applied Section 4(B) by analogy to an en-cumbent police juror in a reapportioned district who did not have time after reapportionment to meet the residency requirement for council members under a new charter that abolished the police jury system of government.

There is even more reason in the present case to apply the Constitution’s solution to the problems of legislative reapportionment. The Iberia Parish Charter, although essentially adopting the domicile requirements for legislators, is silent on the effect of reapportionment on an encumbent or another candidate for that office in the next election. Nevertheless, the charter does take express notice of the reapportionment problem of an encumbent during his term, and Section 2-01 D provides that a council member’s office is vacated by a change of domicile outside the district, unless the domicile is changed by reapportionment. Thus, this particular charter expressly protects an encumbent council member from losing his office because of reapportionment, but contains no provision to protect the same member’s ability to run for reelection in the same district if reapportionment prevents him from meeting the residency requirements at the time of qualification. Since the charter should not be interpreted to be totally inconsistent, a court doubtlessly would permit the council member to run for election in the new district by construing the charter’s silence as yielding to the general provisions in the constitution for legislators at all levels. Likewise, we conclude in the present case that the Iberia Parish Charter, which plainly demonstrates an intention to prevent reapportionment from causing havoc, should not govern relator’s situation by silence. Rather, the constitutional solution for state legislators should be applied by analogy to Iberia Parish legislators, as it is applied expressly to those parish legislators who are still called police jurors.

We hold that relator, because of reapportionment of former District 9, properly qualified as a candidate in District 8, which was created in part from former District 9.

Accordingly, the judgments of the lower courts are reversed, and judgment is rendered dismissing respondent’s suit.

DENNIS, J., concurs.

WATSON, J., concurs in the result, but has serious reservations about whether the record makes a sufficient showing for relief.

LEMMON, Justice,

Concurring in the Denial of the Rehearing.

On application for rehearing, respondent Nicholson’s excellent application asserts that the Iberia Parish Charter does in fact contain a provision dealing with the victims of reapportionment and is not silent on the issue. Section 2.01 of the Iberia Parish Charter (quoted in footnote 1) prevents reapportionment from leaving a candidate without any district in which he has resided for one year, but does not give the candidate affected by reapportionment the choice to run in any of the new districts created from his old district, as La.Const. Art. Ill, § 4(B) gives to legislators. The Charter provision, respondent argues, also prevents the undesirable situation (present in this case) of a candidate’s running in a district in which the candidate does not reside.

Election contests must be filed, tried, decided, appealed, and adjudicated with finality in a brief period of time, so as to facilitate preparation of the ballots and voting machines in the time span between the end of the qualifying period and the beginning of absentee voting. Time restraints and special procedural laws control the litigation from beginning to end. One such special provision is that which prohibits applications for rehearing in any court. See R.S. 18:1409 F. That special law contains an exception, namely that a court on its own motion may correct a manifest error called to the court’s attention. While the application for rehearing in this case raises a weighty point which might command our attention and reconsideration in normal proceedings, there is no manifest error in the opinion on original hearing which brings this case within the exception to the general prohibition against rehearing applications in election contests.

Although it is of little consolation to the litigant in this particular case, the argument in the rehearing application (which was not presented orally or in briefs to this court before the original opinion) may be presented again if this issue comes up in subsequent litigation.

      . The composition of the Parish Council and of Council Members are set out in Article II, Section 2-01, as follows:
      “A. The legislative power of the Parish government shall be vested in a council consisting of fourteen (14) members elected for four (4) year terms from districts described in Appendix A, one from and by the qualified electors in each district.
      “B. A council member shall have attained the age of eighteen (18) years and shall be a qualified elector of the district from which elected at the time of qualification.
      “C. A council member shall have been legally domiciled and shall have actually resided for at least one (1) year immediately preceding the time established by law for qualifying for office in an area which, at the time of qualiñcation, is within the district from which elected.

      “D. A council member shall continue to be legally domiciled and to actually reside within the district from which elected during the term of office. Should the legal domicile and/or actual residence of a council member change from the district from which elected, unless changed by reapportionment, the office shall automatically become vacant, which vacancy shall be filled as set out hereinafter.” (Emphasis supplied)

      . La.Const. Art. Ill, § 4(A) and (B) provide:
      “(A) Age; Residence; Domicile. An elector who at the time of qualification as a candidate has attained the age of eighteen years, resided in the state for the preceding two years, and been actually domiciled for the preceding year in the legislative district from which he seeks election is eligible for membership in the legislature.
      “(B) Domicile; Special Provisions. However, at the next regular election for members of the legislature following legislative reapportionment, an elector may qualify as a candidate from any district created in whole or in part from a district existing prior to reapportionment if he was domiciled in that prior district for at least one year immediately preceding his qualification and was a resident of the state for the two years preceding his qualification. The seat of any member who changes his domicile from the district he represents or, if elected after reapportionment, whose domicile is not within the district he represents at the time he is sworn into office, shall be vacated thereby, any declaration of retention of domicile to the contrary notwithstanding.”

      . Relator changed her address on her registration records on December 4, 1981. The records indicate the new address (200 Bayou Bend) was then in District 9.

      . This fact was established only by the testimony of the Registrar of Voters, who stated that “reapportionment took place last year around July”.

      . In argument before this court, respondent contended that relator failed to prove the pre-1982 boundaries of District 9 were changed by reapportionment. While there is no testimonial or documentary evidence precisely stating that the boundary was changed, there is evidence to support such a conclusion, such as the testimony of the Registrar of Voters that relator’s registration records were changed from District 9 to District 8 after reapportionment.

      . The entire charter is not in the record.

      . Indeed, because of the appeal of the federal court’s redistricting order and the necessity of approval by the United States Attorney General, the candidate barely had time after reapportionment to move into the new district before the qualifying period began.

      . Relator’s brief indicates she is aware that the office of a candidate elected after reapportionment is vacated by the candidate’s not being domiciled within the district at the time of being sworn into office.

      . This court did not perceive the full import of this provision on original hearing, and no such argument was made. In fairness to the attorneys, it should be pointed out that there were many issues at the trial and appellate levels in this case, some of which were not reached by either this court or the court of appeal. The time constraints of an election contest frequently inhibit complete presentation of the evidence, as well as research and analysis of the many issues presented in this type of litigation.


author: DENNIS, Justice. DIXON, Chief Justice

text:
    Carole H. BURSTEIN, Elizabeth D. O’Neal, Citizens and Taxpayers of the City of New Orleans, Respondents, v. Ernest N. MORIAL, In his Capacity as Mayor of the City of New Orleans, Bryan Wagner, Individually and In His Capacity as Councilman of the City of New Orleans, Lambert C. Boissiere, Jr., Individually and In His Capacity as Councilman of the City of New Orleans, Mike Early, Individually and In His Capacity As Councilman of the City of New Orleans, Wayne M. Babovich, Individually and In His Capacity as Councilman of the City of New Orleans, Lea Siegel, Clerk of the Council of the City of New Orleans, Jerry M. Fowler, Commissioner of Elections of the State of Louisiana, Sidney J. Barthelemy, Individually and In His Capacity As Acting Mayor of the City of New Orleans, the Council of the City of New Orleans, and James H. Brown, Secretary of State, Relators.
    No. 83-CC-1842.
    Supreme Court of Louisiana.
    Sept. 6, 1983.

      Stephen B. Murray, Murray, Murray, Ellis, Braden & Landry, Ronald Nabonne, Okla Jones, II, Nabonne & Wilkerson, New Orleans, for relators.
    Mack E. Barham, Charles F. Thensted, David R. Richardson, Barham & Churchill, New Orleans, Salvador Anzelmo, City Atty., Galen Brown, Michael Bagneris, Asst. City Attys., Ronald C. Davis, Maureen J. Feran, Asst. Attys. Gen., for respondents.
   DENNIS, Justice.

We granted certiorari to consider two important questions which have arisen in the interpretation of the Charter of the City of New Orleans: (1) whether the Charter permits more than one attempt by the Council to override a Mayor’s veto; and (2) whether the appointment of a councilman to serve as acting mayor effectively reduces the size of the Council by one member so as to diminish the number of votes required to override a mayor’s veto.

There is more at stake, of course, than the fate of the particular ordinance which stirs the present controversy. Unless the Charter is subsequently amended, the fundamental balance of power between the legislative and executive branches of government, and the basic safeguards surrounding the city’s legislative process, depend on our efforts to discern the meaning of the Charter. Moreover, it is equally clear that the wisdom of the particular ordinance and the procedure followed in its enactment are not the concern of the courts. If a challenged action does not violate the Charter or other pertinent law, it must be sustained; and, by the same token, the fact that a given ordinance or procedure is efficient, fair, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Charter.

The facts in this case, which are not in dispute, were well stated by the trial court and repeated by the court of appeal, as follows:

Plaintiff-appellants are citizens, voters, and taxpayers of the City of New Orleans, who filed a Petition for Declaratory and Injunctive Relief on July 20, 1983, seeking a judgment declaring the vote of the Council of the City of New Orleans on July 7, 1983, to override the mayor’s veto of Ordinance No. 9237 M.C.S., to be ineffective, and to enjoin the Mayor, the City Council, five individual Council members, the Clerk of Council, the Commissioner of Elections, and the Secretary of State from taking any action in furtherance of the invalid Ordinance. On July 22, 1983, the Petition was amended to join the City of New Orleans as a defendant and to delete the name of one of three original plaintiffs.
The subject ordinance called for an election to submit to the voters of the City of New Orleans a proposal to amend Article IV of the Home Rule Charter of the City of New Orleans (the “Charter” or the “Home Rule Charter”) to allow for unlimited Mayoral terms beginning in 1987. The effect of the proposed amendment would be to allow unlimited terms to anyone except the current mayor. It was passed by the Council on June 16, 1983.
On June 24, Mayor Morial vetoed the proposed Ordinance, pursuant to Section 4r-206(2)(d) of the Home Rule Charter, which Section gives the mayor the power to veto ordinances. Proposed Ordinance 9237 M.C.S. was again presented to the Council at its next regular meeting, July 7, 1983, pursuant to Section 3-113(3) of the Home Rule Charter, which provides that:
Ordinances vetoed by the Mayor shall be presented by the Clerk to the Council at its next regular meeting and should the Council then or at its next regular meeting adopt the ordinance by an affirmative vote of two-thirds of all its members, it shall become law. (emphasis supplied).
Since the Council consists of seven members, five votes are required to override a veto.
At the July 7 meeting of the Council, Mayor Morial appeared and delivered his veto message on proposed Ordinance Ño. 9237 M.C.S., responded to a question by Councilman Boissiere, and left the Council Chambers, nineteen minutes before the override vote on Ordiance 9237 M.C.S. Immediately upon leaving the Council Chambers, the Mayor stepped into a waiting automobile and was driven directly to New Orleans International Airport where he took the first available flight to Dallas, Texas. He returned on July 8.
Shortly after the Mayor had left the Council Chambers, Councilman Giarrusso gave a speech, during the course of which Ann Wheeler, an employee of the Mayor’s office, handed Councilman Barthelemy a letter informing the Councilman of the Mayor’s absence and of the Councilman’s appointment as Acting Mayor. Thereafter, Ms. Wheeler distributed copies of the letter to the other Councilmen and it was read into the record of the Council.
At that point the Clerk announced the reconsideration of Ordinance 9237 M.C.S., and the Council voted on the question: ‘Shall the Ordinance pass the objection of the Mayor notwithstanding?’
Section 3-107 and 4-204(3) of the Home Rule Charter prohibit a councilman who has been appointed Acting Mayor from voting, and Councilman Barthelemy was so advised at the time by City Attorney Salvador Anzelmo. Nevertheless, Acting Mayor Barthelemy voted on Ordinance 9237. His vote, subsequently held invalid by the Trial Court, appeared to give the proponents of the override a 5 to 2 margin. Later that afternoon, after conducting further business, the Council adjourned.
On July 21, 1983, the day after the present suit was filed, the Council met again. The minutes of the July 7 meeting were approved and adopted. After conducting some preliminary business, the Council began discussing another vote to override the Mayor’s veto, as insurance against the possibility that the July 7 vote might be held invalid. Councilman Boissiere moved that the Council ‘go to reconsider the vote on last week’s override of the vetoed Ordinance.’ That motion to reconsider carried 5 to 1. Mr. Anzelmo advised the Council that the override vote could not be reconsidered again because the Council’s Rules forbade reconsideration of a motion to reconsider. At that point, Councilman Early moved to suspend the Rules and Regulations of the Council (the “Rules”). The motion passed, 5 to 1. Councilman Boissiere then moved ‘to reconsider the vote on this override of the vetoed ordinance.’ The vote was 5 to 1 in favor of the override.
On the morning of trial, the Council, five individual Council members, and the Clerk of Council, filed an Answer, Exceptions of No Cause or Right of Action, and a Motion to Dismiss. The Answer denied that the Mayor had indeed been absent from the City at the time the vote was taken, urged that Councilman Barthele-my’s appointment as Acting Mayor was therefore invalid and consequently that the the July 7 vote was valid, so that the veto was successfully overridden on July 7. In the alternative, the Answer alleged that Sections 3-107 and 4-204(3) (the Acting Mayor provisions) of the Home Rule Charter are unconstitutional.

The trial court found that the mayor was in fact absent from the city on July 7, 1983 when the vote to override the veto was taken and held that this attempt to override failed because Councilman Barthelemy’s vote was invalid. The trial court concluded, however, that the ordinance was properly adopted over the veto at the council’s July 21, 1983 meeting and therefore could be submitted to the voters at the October 22, 1983, election. The Court of Appeal reversed, holding that the ordinance had not been validly adopted at either meeting because a councilman is prohibited by the Charter from voting while he is serving as acting mayor, and because the Charter authorized but one attempt by the Council to override a mayor’s veto. We granted writs to consider the relators’ two principal arguments against the court of appeal’s decision.

1.

First, the relators argue that because the Charter does not expressly prohibit more than one attempt to override the Mayor’s veto, the Council may take as many votes as it desires in an attempt to muster the two-thirds majority required to override, so long as the votes are taken at one of two prescribed regular meetings and in accordance with the Council’s rules, or during a suspension of the rules. Relators base this argument on Section 3-113(3) which provides:

Ordinances vetoed by the Mayor shall be presented by the Clerk to the Council at its next regular meeting and should the Council then or at its next regular meeting, adopt the ordinance by an affirmative vote of two-thirds of all its members, it shall become law.

The inevitable consequence under relators’ theory is that the Council would have an indefinite number of opportunities to override a Mayor’s veto of any particular ordinance. By suspending or changing its rules, the Council could take several votes during each of the two regular meetings. Moreover, the Council could prolong each such meeting for more than one day by recessing or adjourning from day to day. Thus, the logical result of relators’ interpretation would permit the Council an indefinite number of attempts to override the executive veto.

Although we agree that, when read in a vacuum, section 3-113(3) may be interpreted as relators propose, we also find that the section reasonably may be interpreted in isolation to provide for but one attempt to override a Mayor’s veto during either of two regular meetings of the City Council. Furthermore, when we consider the probable source, history, and purpose of all of the Charter provisions pertaining to the adoption of ordinances, we conclude that the framers and voters who adopted the Charter intended for there to be only one attempt to override a Mayor’s veto.

The City Charter’s design for the separation of powers and provisions for maintaining a balance between the legislative and executive branches is clearly based on our federal constitution. The similarity of the basic governmental structures, presentment clauses, and qualified veto procedures set forth in the two documents is too consistent to be coincidental. Only a brief survey of the federal constitutional convention’s history indicates that these features were selected from among a wide variety of other conceivable devices which were proposed and rejected. See, A.R. Serven, The Constitution and the “Pocket Veto” 7 N.Y.U.L. Rev. 495 (1929).

Accordingly, we find instructive the United States Supreme Court’s description of the purposes and reasons for the presentment clause and qualified veto in INS v. Chadha,-U.S.-, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). Art. I, section 7, clause 2 of the federal Constitution gives the President an important but qualified role in the law enacting process. It requires that all bills be presented to the President for his approval or veto. Presentment to the President and the presidential veto were considered so imperative that the draftsmen took special pains to assure that these requirements could not be circumvented. The President’s role in the lawmaking process also reflects the Framers’ careful efforts to check whatever propensity a particular Congress might have to enact oppressive, improvident, or ill-considered measures. The President’s veto role in the legislative process was described later during public debate on ratification:

It establishes a salutary check upon the legislative body calculated to guard the community against the effects of faction, precipitancy, or of any impulse unfriendly to the public good, which may happen to influence a majority of that body.... The primary inducement to conferring the power in question upon the executive, is to enable him to defend himself; the secondary one is to encrease the chances in favor of the community, against the passing of bad laws, through haste, inadvertence, or design.

The Federalist No. 73, at 458 (J. Cooke ed. 1961) (A. Hamilton).

See also Okanogan v. United States, 279 U.S. 655, 678, 49 S.Ct. 463, 466, 73 L.Ed. 894 (1929); Myers v. United States, 272 U.S. 52, 123, 47 S.Ct. 21, 27, 71 L.Ed. 160 (1926). The Court also has observed that the Presentment Clauses serve the important purpose of assuring that a “national” perspective is grafted on the legislative process:

The President is a representative of the people just as the members of the Senate and of the House are, and it may be at some times on some subjects that the President elected by all the people is rather more representative of them all than are the members of either body of the legislature whose constituencies are local and not countrywide....

Myers v. United States, supra, 272 U.S., at 123, 47 S.Ct. at 27.

INS v. Cadha, 103 S.Ct. 2782.

In similar fashion, the framers of the City Charter provided that every act of the Council which is to become law shall be by ordinance, Section 3-111, that every ordinance adopted by the Council shall be presented to the Mayor, Section 3-113(1), and that the Mayor may prevent the ordinance from becoming law by his veto, Section 3-113(2), although any veto is subject to the prescribed legislative override. Sections 3-113(3) and (4).

We believe that this scheme strikes a careful and deliberate balance between the executive and legislative powers that would be seriously undermined if either were permitted repeated attempts to thwart the other. Implicit in the Charter is the intention that each branch be given one full and fair opportunity to overrule the other. The Mayor is given one ten day period to consider an ordinance and a single veto with which to prevent a particular ordinance from becoming law. By the same token, the Council is given two regular meetings to reconsider a vetoed ordinance and a single attempt to override a veto. The Framers could not have intended to restrict the Mayor to one vote to veto, while affording the Council an unspecified number of voting opportunities to override an executive veto. This would confound the Mayor’s important role in the lawmaking process and unduly qualify the utility of the veto as a defense of legitimate executive power and as a check against the passing of bad laws through haste, inadvertence or design.

Our interpretation of the charter is consistent with the Council’s previous construction, judging from its rules and past practices.

Rule 45 provides:

Ordinances returned with the disapproval of the Mayor shall immediately stand as reconsidered. The Clerk shall enter the objections of the Mayor thereto at large upon the Journal and the Council shall proceed to consider the question:
‘Shall the Ordinance pass, the objection of the Mayor thereto notwithstanding.’
The vote shall be taken by yeas and nays and entered upon the Journal. If two-thirds of all the members vote to pass the ordinance, the presiding officer shall certify the fact thereon over his signature.

Rule 40 provides:

A vote or question may be reconsidered at any time during the same meeting, or at the first regular or special meeting held thereafter.
A motion for reconsideration, having been once made and decided in the negative, shall not be renewed, nor shall a motion to reconsider be reconsidered.

These rules clearly provide that a vetoed ordinance stands as a matter to be reconsidered, and that having been once decided in the negative, shall not be renewed or further reconsidered. There is no evidence that the Council has ever before this case attempted to reconsider a vetoed ordinance twice or to deviate from the practice suggested by these rules.

We have found only one case in which a court decided this issue after careful consideration of the history, purpose and function of the qualified veto. In Sank v. City of Philadelphia, 8 Phila. 117, 119, 4 Brewster 133 (Pa.1871), the Pennsylvania Supreme Court at nisi prius, after noting that “its design was to protect minorities and to prevent or correct hasty or improvident legislation,” concluded that “after a veto of the President of the United States, or of the Governor of the State, and a vote reconsidering the bill had passed sustaining the veto that that was a finality as to that measure. The same result must, of course, follow upon a similar provision in the city charter.” Id. 8 Phila. at 119. The court graphically described the erosive action of multiple reconsiderations, and one possible source of persistent efforts to override a veto, as follows:

If a second, third, or more reconsidera-tions of a vetoed ordinance be allowed, it is plain that in the end the veto will be overruled, especially so if it provides for large expenditures of money. Parties hoping to have the handling of it, by the aid of “Rings,” a term descriptive of combinations which are known to infest legislative bodies everywhere in this country, will be very sure in the end to overthrow the veto, be it ever so well grounded in sound principles, or convincing in argument. This will be the inevitable result of repeated reconsiderations of the question, and thus a great constitutional conservation of the rights of minorities, and safeguard against inconsiderate legislation, be set at naught.

Id. 8 Phila. at p. 120.

Courts in Massachusetts, New York and South Carolina have reached the opposite conclusion. Board of Education of City School District of City of New York v. City of New York, 41 N.Y.2d 535, 394 N.Y.S.2d 148, 362 N.E.2d 948 (1977); State ex rel. Coleman v. Lewis, 181 S.C. 10, 186 S.E. 625 (1936); Kay Jewelry Co. v. Board of Registration in Optometry, 305 Mass. 581, 27 N.E.2d 1 (1940); Nevins v. City Council of City of Springfield, 227 Mass. 538, 116 N.E. 881 (1917). These courts failed to consider, however, the source, history and function of the qualified executive veto and the very important role it must play in assuring that the legislative power is “exercised in accord with a single, finely wrought and exhaustively considered, procedure.” INS v. Chadha, 103 S.Ct. at 2784. These courts take the position that a legislative branch impliedly has the power to reconsider vetoed legislation an infinite number of times unless there is an express constitutional or charter prohibition. We disagree, however, because a limitation upon the legislative power is clearly implied when a constitution or charter expressly requires that all legislation is subject to presentment and a qualified veto by the executive. Moreover, the New Orleans city charter expressly provides that the legislative power of the council is “subject to the limitations hereinafter set forth.” Those charter limitations include the express presentment and veto clauses.

The weight of legislative precedents also supports the view that a vote on the reconsideration of a vetoed bill cannot be reconsidered again. The United States Constitutional Provision regarding passage of a bill over a veto has been consistently interpreted since 1844 to mean that a motion to reconsider cannot be applied to the vote on reconsideration of a bill returned with the objections of the president Jefferson’s Manual and Rules of House of Representatives § 106 (1973); Cannon’s Procedure in House of Representatives 468 (1963), 8 Cannon, Precedents of House of Representative § 2778 (1936); 5 Hinds, Precedents of House of Representatives § 5644 (1907). See Board of Education v. City of New York, supra, 394 N.Y.S.2d at 158, 362 N.E.2d at 958 (Cooke, J. dissenting). Parliamentary writers seem to have accepted this precedent as controlling and are agreed against a reconsideration of a vote once taken upon a vetoed bill. Cushing’s Law of Legislative Assemblies § 2388; Barclay’s Digest 190; Fish’s Manual § 82; Spofford’s Practical Manual 139; Wilson’s Digest Parliamentary Law § 2151 at 292. Contra, See Nevins v. City Council, 227 Mass. 538, 116 N.E. 881, 885 (1917).

2.

The second issue that we granted writs to consider is whether the size of the Council is effectively reduced by the appointment of a councilman as acting mayor because the charter prohibits him from acting as a member of the council during such an appointment. Section 4-204(3). The first vote to override the mayor’s veto would have been effective if the appointment of Councilman-at-Large Barthelemy as acting mayor reduced the Council membership to six, because an affirmative vote of four would have constituted a sufficient two-thirds vote.

The clear wording of the Charter leads to but one reasonable interpretation. The appointment of a councilman as acting mayor “shall not be deemed to create a vacancy in the office of council-man-at-large,” Section 4r-204(3), “but while serving as acting mayor he shall not perform his duties as a member of the council”, Id., and a vetoed ordinance cannot become law unless the Council adopts it “by an affirmative vote of two-thirds of all its members.” Section 3-113(3) (Emphasis added). The only acceptable construction of these provisions is that the membership of the council is not altered because of the appointment of a councilman to serve as acting mayor and that two-thirds of the entire membership of the Council must affirmatively vote to adopt an ordinance in order to override a veto. Affirmative vetos by two-thirds of the members are required because it is less likely that improper views will govern so large a portion of the legislative branch in defiance of the counterpoising weight of the executive, than that such views should taint the resolutions and conduct of a bare majority. See the Federalist No. 73, at 498 (J. Cooke, Ed.1961) (A. Hamilton). Consequently, a councilman’s failure to vote, whether due to his absence, appointment as acting mayor or other reason, does not serve to reduce the council’s membership or the proportion of it required to overcome the qualified executive veto. See, Kubik v. City of Chicopee, 353 Mass. 514, 233 N.E.2d 219. (“There can be no doubt that ‘all the members of the city council’ means the full membership.”)

Relators contend that these charter provisions violate the principle of separation of powers but are unable to cite any particular constitutional or statutory law which they violate. The city charter was recognized and maintained in existence by Article 6, § 4 of the 1974 Louisiana Constitution. We are not aware of any legal bar to the effectiveness of the challenged provisions.

The Charter’s provisions express the intention of the framers and voters too clearly for us to construe it otherwise. Furthermore, we do not believe the charter is so defective as to permit a mayor to circumvent the will of the council, as relators contend. In the present case, for example, if two-thirds of the council wished to override the mayor’s veto, they were aware of Councilman Barthelemy’s temporary voting disqualification and easily could have waited until he was eligible to vote, by either recessing the July 7th meeting until a later date or by not taking the matter up until their next regular meeting. In most cases, a failure to override will not be fatal to the council’s objectives because a new ordinance can always be introduced and passed again. Ultimately, however, it is not for us to say whether the charter is defective, since the provisions complained of are not unlawful; this is a question which must be resolved by the charter amendment process.

Decree

For the reasons assigned, the judgment of the Court of Appeal is affirmed.

AFFIRMED.

DIXON, C.J., dissents with reasons.

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

LEMMON, J., dissents and will assign reasons.

DIXON, Chief Justice

(dissenting).

I respectfully dissent.

This action was brought to contest the validity of the vote of the City Council to override the Mayor’s veto of a City Ordinance. The trial court upheld the Council’s override of the veto. The court of appeal reversed, upholding the veto, declaring invalid the efforts of the Council to override. On the application of the Council, we granted writs.

The matter is one of pure statutory interpretation. Twice the City Council voted to override the veto. The City Charter and the Council’s rules do not prohibit what the Council did, and can reasonably be interpreted to permit the Council’s action. Since five of the seven Council members have voted twice to override the Mayor’s veto, the will of that majority should be given effect if its action can be reasonably interpreted to comply with the City Charter and the Council rules. To hold otherwise is to ignore the realities of the case and thwart the democratic process.

THE CHARTER

The Home Rule Charter of the City of New Orleans is the municipality’s equivalent to a constitution. Every action taken by either the Mayor or Council must conform to the mandate of the Charter. It is in light of the Charter, therefore, that the July 21 vote must be judged.

The relevant part of the Charter is § 3-113(3), which reads:

“Ordinances vetoed by the Mayor shall be presented by the Clerk to the Council at its next regular meeting and should the Council then or at its next regular meeting, adopt the ordinance by an affirmative vote of two-thirds of all of its members, it shall become law.”

There is no question about the timeliness of the presentation of the veto. The only thing at issue is the meaning of the phrase “then or at its next regular meeting.” This clause is subject to two interpretations. The first, urged by the plaintiffs, is that the Council may decide to override the veto at either of the two meetings, but not at both. The second interpretation, presented by the defendants, and accepted by the court of appeal, is that “this section of the Charter ... establishes only a time frame within which the Ordinance may be adopted ...” Burstein v. Morial, 437 So.2d 1179, 1183 (La.App. 4th Cir.1983) (per curiam).

This second interpretation of the Charter, is the correct one. The court of appeal’s conclusion, however, that the Charter “does not authorize voting on the Ordinance more than once,” is incorrect. The Charter states only that the Council may, at either of the two meetings, adopt the ordinance. It does not purport, in any way, to determine the •number of votes which may, or should, be taken on the veto; it establishes only a two-meeting time period within which the veto must be considered. If the veto is not considered by the end of the second meeting, it may never be considered.

There is no prohibition in the Charter to the Council’s second vote on the veto. Since the July 21 meeting was the next regular meeting of the Council, the action taken on the veto was within the Charter’s two-meeting time limit, and, therefore, “constitutionally” sound.

THE COUNCIL RULES

Since there is no “constitutional” barrier to the Council’s second vote to override the Mayor’s veto of the proposed ordinance, this court should look to the internal rules of the Council. If, by the Council’s own rules, the Council was prohibited from voting a second time on the veto, the override of the veto must fall.

The pertinent rules are Rules 40 and 45. “Rule 40. A vote or question may be reconsidered at any time during the same meeting, or at the first regular or special meeting held thereafter.
A motion for reconsideration, having been once made and decided in the negative, shall not be renewed, nor shall a motion to reconsider be reconsidered.” “Rule 45. Ordinances returned with the disapproval of the Mayor shall immediately stand as reconsidered. The Clerk shall enter the objections of the Mayor thereto at large upon the Journal and the Council shall proceed to consider the question:
‘Shall the Ordinance pass, the objection of the Mayor notwithstanding?’
The vote shall be taken by yeas and nays and entered upon the Journal. If two-thirds of all the members vote to pass the ordinance, the presiding officer shall certify the fact thereon over his signature.”

It is argued that there can be only one consideration of the Mayor’s veto by the Council, because, by operation of Rule 45, the veto stands as “reconsidered,” and Rule 40 says a motion for reconsideration, once decided in the negative, cannot be reconsidered. Reading the two Rules together, it is argued, the Council is restricted to one vote to override a veto. This argument is not supported by either the Rules or by the facts.

The “reconsideration” contemplated by Rule 45 merely tracks the language of Charter § 3-113(3), which compels the May- or to return his veto to the Council, and allows the Council to consider the veto. It only ensures that the issue will be addressed by the Council a second time. See, e.g., Board of Education v. City of New York, 41 N.Y.2d 535, 394 N.Y.S.2d 148, 152, 362 N.E.2d 948, 952 (1977). It does not mean that the issue is a procedural “reconsideration.” This is borne out by the rest of the text of Rule 45, which states “the Council shall proceed to consider the question: ‘Shall the Ordinance pass, the objection of the Mayor notwithstanding?’ ” Thus, when the Council first voted on the veto at its July 7 meeting, it merely considered the issue for the first time. The question was not reconsidered until there was an affirmative vote on Councilman Boissiere’s motion to reconsider on July 21.

Furthermore, Rule 40 only provides that a “motion for reconsideration” once defeated cannot be reconsidered. There is no evidence in the record to indicate that there was ever a motion to reconsider the veto raised at the July 7 meeting. Consequently, the motion to reconsider, raised by Councilman Boissiere on July 21, was the first motion for reconsideration, and that motion was not defeated.

It has been argued that Robert’s Rules of Order allow a motion to reconsider to stand only if it is made at the same meeting at which the first vote was taken, and, since no such motion was raised at the July 7 meeting, the Council could not reconsider the veto. This argument is without merit. There is no provision in the Council’s Rules which require that a motion to reconsider be raised at the same meeting as the first vote; in fact, the Rules provide two opportunities to reconsider. “A vote or question may be reconsidered at any time during the same meeting, or at the first regular or special meeting held thereafter.” Rule 40. No other formal procedure is required for a reconsideration.

An additional fact merits attention. At the July 21 meeting, Councilman Early moved to suspend the Rules, pursuant to Rule 19. This motion passed. By so suspending the Rules, Rules 40 and 45 became inoperative. As a result of this suspension of the Rules, the Council removed any remnant of Rule-founded prohibition against a reconsideration. The only limitation on the Council at that point was the Charter itself. And, as already discussed, the Charter does not bar multiple votes in an attempt to override a veto. Once the Rules were suspended, the Council could determine what procedures it would follow. This is a legislative body’s prerogative. See State v. Gray, 221 La. 868, 60 So.2d 466, 468 (1952).

The only serious contention is that the suspension of the Rules at the July 21 meeting was applied retroactively to the July 7 meeting. It is argued that there was a “vesting” in the public of the knowledge that the veto was not overridden. This argument lacks merit for several reasons. First, according to the Charter, there is no reasonable expectation of finality on a veto until the adjournment of the second meeting after the presentation of the veto to the Council. It should be noted, however, that had the Council successfully overridden the veto at the first meeting, the ordinance would have become law at noon of the following day. Charter § 3-113(5). The Council, at the conclusion of its July 7 meeting, believed that the ordinance had been adopted, notwithstanding the Mayor’s veto. Thus, any expectation of finality was that the veto was overridden, and not that the veto was sustained. Second, according to the Rules themselves, as already discussed, the Council could reconsider the vote even in the absence of the suspension of the Rules. There could not be a reasonable expectation of finality when everyone was on. notice that the Council still had the opportunity to reconsider the vote to override the veto at its next meeting.

I would hold that the actions of the Council were within the bounds of their own Rules, and that there is no meritorious issue of unlawful retroactive effect. Because the Council’s actions were not prohibited by the Charter, or by their Rules, the vote of July 21, 1983, to override the Mayor’s veto of M.C.S. Ordinance Number 9237 should be upheld. I would reverse the decision of the court of appeal.

      . Implicitly relators’ argument also applies to any item of appropriation vetoed or reduced by the Mayor, because the Charter provides that such an item may be passed over the Mayor’s veto by the same procedure. Section 3-113(4) provides: “The Mayor may disapprove or reduce any item or items of appropriation in any ordinance except any such item or items appropriated for the purpose of auditing or investigating any part or all of the Executive Branch. Subject only to the foregoing exceptions, the approved part or parts of any ordinance making an appropriation shall become law and the part or parts disapproved shall not become law unless subsequently passed by the Council over the Mayor’s veto as provided herein.”

      . The “all of its members” clause also was at issue in this case. It was argued that, since Acting Mayor Barthelemy was prohibited from performing any of his councilmanic functions, Charter §§ 3-107 and 4-204(3), his position on the Council should be considered as legally nonexistent during his tenure as Acting Mayor. If this view were adopted, then only two-thirds of six members would be required instead of two-thirds of the usual seven members.


author: DENNIS, Justice,

text:
    Charles Edward KLOHN v. LOUISIANA POWER AND LIGHT.
    No. 81-C-1233.
    Supreme Court of Louisiana.
    Oct. 18, 1983.
   For majority opinion of the Court, see La., 406 So.2d 577.

DENNIS, Justice,

dissenting.

I respectfully dissent.

Whether a particular activity constitutes part of the trade, business or occupation of a principal such that the exclusive remedy of an employee who is injured while performing such activity is in workers’ compensation must be decided on the particular facts of each case. Turberville v. Georgia Pacific Chemical Co., 385 So.2d 366 (La.App. 1st Cir.1980).

It is not clear that the City of Thibodaux was in the business of providing electricity at the time of plaintiff’s accident. While it may be evident that the City , owned the electric system, because of the peculiar circumstance that it retained ownership because it was obligated to do so under its bond commitments and had actually completely divested itself of control of the utility, it may not have properly fallen within the statutory employer classification of the Workers’ Compensation statute. La.R.S. 23:1061. The unique relationship between the City and LP & L and the effects which flowed from that relationship were not appropriately decided on summary judgment.

Statutory employer liability is created to protect employees of irresponsible and uninsured subcontractors by imposing ultimate liability on the presumably responsible principal contractor who is empowered to choose subcontractors, to pass upon their responsibility and insist upon appropriate compensation for their workers. See Larson, Workmen’s Compensation Law § 49.10 (1980). LP & L was not irresponsible, and in fact, acted as the principal contractor in this case. By recognizing statutory employer status the majority has given the City windfall immunity from tort liability. Such a windfall contributes nothing to the purpose of statutory employer legislation.


text:
    STATE of Louisiana v. William P. BOWICK.
    No. 80-KA-2793.
    Supreme Court of Louisiana.
    Oct. 19, 1983.
   For majority opinion of the Court, see La., 403 So.2d 673.

DENNIS, Justice,

dissenting.

I respectfully dissent.'

The majority opinion’s interpretation of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) is wide of the mark. The United States Supreme Court in that case did not merely require that a trial judge, in accepting a guilty plea, ascertain that the defendant is acting voluntarily. That court required “an affirmative showing that [the guilty plea] was intelligent and voluntary.” 395 U.S. at 242, 89 S.Ct. at 1711.

The court clearly stated that “[a] plea of guilty is more than a confession which admits that the accused did various acts, it is itself a conviction.” 395 U.S. at 242, 89 S.Ct. at 1711. Since several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial, viz., the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers, state courts cannot presume a waiver of these three important federal rights from a silent record. 395 U.S. at 243, 89 S.Ct. at 1712. The Supreme Court further clearly indicated that, in order to prevent any presumption of a waiver of these three important federal rights from a silent record, the trial judge should canvas the matter with the accused to make sure “he has a full understanding of what the plea connotes and of its consequences” and leave “a record adequate for any review that may be later sought.” 395 U.S. at 244, 89 S.Ct. at 1712.

This affirmative showing is particularly necessary in a case like the present where the defendant has a history of mental disorders, and where there is a real question as to whether he could understand the effects of his guilty plea.


text:
    SOUTH CENTRAL BELL TELEPHONE COMPANY v. TEXACO, INC., et al.
    No. 81-C-3285.
    Supreme Court of Louisiana.
    Oct. 21, 1983.
   For majority opinion of the Court, see La., 418 So.2d 531.

DENNIS, Justice,

dissenting.

I respectfully dissent for the reasons assigned by the Court of Appeal, 407 So.2d 430 at 433.


text:
    STATE of Louisiana v. Doyle “Kooter” WIGGINS.
    No. 82-KA-0474.
    Supreme Court of Louisiana.
    Oct. 21, 1983.
   For majority opinion of the Court, see La., 432 So.2d 234.

DENNIS, Justice,

concurring.

I respectfully concur in the judgment of the court. However, I believe that the majority opinion has incorrectly construed Article 4, § 5(E)(1).

La. Const. Art. 4 § 5(E)(1) specifically grants an automatic pardon to all first offense felons upon completion of their sentences and restores full rights of citizenship. The right to bear arms is a right of citizenship. La. Const, art. 1 § 11.

In my opinion, La.R.S. 14:95.1 does not conflict with or abridge the constitutional guarantee of the defendant’s citizenship right to bear arms. Section A of the statute provides that persons convicted of certain enumerated felonies shall not possess a firearm or carry a concealed weapon. However, Section (C) of this statute, provides that:

this Section shall not apply to the following cases:
(2) Upon completion of sentence, probation, parole, or suspension of sentence the convicted felon shall have the right to apply to the sheriff of the parish in which he resides, or in the case of Orleans Parish the superintendent of police, for a permit to possess firearms. The felon shall be entitled to possess the firearm upon the issuing of the permit.

A convicted felon may therefore lawfully possess a firearm under this statute if he applies for and receives a permit from the sheriff. The statute does not differentiate first offenders and multiple offenders and, most importantly, does not indicate whether the sheriff must issue a permit to each applicant, or is at liberty to refuse such requests. I would construe this section of the statute to require the sheriff to issue a permit to every applicant who has been automatically pardoned as this is the only construction that preserves the first offender’s constitutional right to bear arms. Where a statute is susceptible of multiple constructions, we are obliged to favor the construction that would not strike the statute down as unconstitutional. Tanner v. Beverly Country Club, 47 So.2d 905, 217 La. 1043 (1950); Conley v. City of Shreveport, 43 So.2d 223, 216 La. 78 (1949); Methodist Hospital v. Sewerage & Water Board, 263 So.2d 373 (La.App. 4th Cir.1972). This construction would allow the state to maintain records of ownership and registration of firearms by convicted offenders, but this regulation would not abridge the right of once-convicted felons to bear arms. The alternative construction of this section would destroy this constitutional right by giving complete discretion to the sheriffs to refuse to issue the permits.

In the present case, defendant, a once-convicted felon, failed to apply to the sheriff for a gun permit. Therefore, defendant violated La.R.S. 14:95.1 when he possessed a firearm without first obtaining a permit. Defendant’s automatic pardon from his earlier conviction does not preclude the state from regulating his possession of firearms in this manner as the automatic pardon provision does not restore the status of innocence "to the convict who has merely served out his sentence. State v. Adams, 355 So.2d 917 (La.1978).

I, therefore, concur in the majority’s decision to affirm defendant’s conviction.


text:
    Carole H. BURSTEIN, Elizabeth D. O’Neal, Citizens and Taxpayers of the City of New Orleans v. Ernest N. MORIAL, In his Capacity as Mayor of the City of New Orleans, Bryan Wagner, Individually and In His Capacity as Councilman of the City of New Orleans, Lambert C. Boissiere, Jr., Individually and in His Capacity as Councilman of the City of New Orleans, Mike Earley, Individually and in his Capacity as Councilman of the City of New Orleans, Wayne M. Babovich, Individually and in his Capacity as Councilman of the City of New Orleans, Lea Siegel, Clerk of the Council of the City of New Orleans, Jerry M. Fowler, Commissioner of Elections of the State of Louisiana, Sidney J. Barthelemy, Individually and in his Capacity as Acting Mayor of the City of New Orleans, the Council of the City of New Orleans, and James H. Brown, Secretary of State.
    No. 83-CC-1842.
    Supreme Court of Louisiana.
    Aug. 25, 1983.
   In re Lea Siegel, Clerk of Council and the Council of the City of New Orleans, applying for writ of certiorari and review from the judgment of the Fourth Circuit Court of Appeal. Civil District Court, Parish of Orleans, Section “K”, No. 83-12208. 437 So.2d 1179.

Granted.


text:
    Perry THOMAS v. DEPARTMENT OF CORRECTIONS, LTI IN MONROE.
    No. 83-C-0990.
    Supreme Court of Louisiana.
    Sept. 2, 1983.
   In re Perry Thomas, applying for writ of certiorari and/or review. First Circuit Court of Appeal. Parish of East Baton Rouge, Civil Service Commission. No. 2089. 430 So.2d 1153.

Denied. The judgment is definitive. La. C.C.P.Art. 2166.