author: BLANCHE, Justice. WATSON, Justice,

text:
    STATE of Louisiana v. Charles JACKSON.
    No. 84-KK-1050.
    Supreme Court of Louisiana.
    Oct. 15, 1984.

      Ralph Capitelli, Capitelli, Bencomo & Wicker, New Orleans, for defendant-relator.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., James Maxwell, Dorothy A. Pendergast, Asst. Dist. Attys., for plaintiff-respondent.
   BLANCHE, Justice.

Charles Jackson was charged by bill of information with the illegal possession of preludin in violation of La.R.S. 40:967. Pri- or to the trial, the defendant filed a motion to suppress physical evidence. The trial court denied that motion and the 5th Circuit Court of Appeal denied the defendant’s application for writs. Upon the defendant’s application to this court, the writ was granted and the case was remanded to the court of appeal for consideration in light of State v. Ossey, 446 So.2d 280, 281 (La.1984) with the suggestion that Ossey might be distinguishable. 445 So.2d 455. On remand, the Louisiana 5th Circuit Court of Appeal affirmed the trial court’s denial of the motion to suppress. 452 So.2d 703. Upon defendant’s application, this court granted writs to review the correctness of the lower court’s ruling. 453 So.2d 946.

On June 6, 1983, Charles Jackson arrived at the New Orleans International Airport on a .flight from Los Angeles, California, a source city for drug transportation. Agent Whitehead and Agent Hurley of the Jefferson Parish Sheriff’s Office were conducting routine surveillance of that flight. These officers are plain clothes narcotics agents whose main purpose is to detect and apprehend drug couriers using a profile which is an abstract of characteristics found typical of persons transporting drug's. The officers observed the defendant disembark from the plane and noticed that he was walking in an unusually slow manner down the concourse, while occasionally glancing over his shoulder. These actions, together with the fact that he was arriving from a source city, were consistent with characteristics of the drug courier profile causing the officers to suspect the defendant was transporting drugs.

The agents placed the defendant under surveillance and followed him down the concourse to the baggage claim area where the defendant retrieved one small, maroonish, mesh-type suitcase. Testimony reveals that another established characteristic of the drug courier profile is a small amount of luggage for a long distance trip. Immediately. after Jackson exited the airport, Agent Whitehead and Agent Hurley approached Jackson and showed him their police identification. After asking if they could speak to the defendant, Agent Whitehead testified that Jackson responded, “Yeah, I don’t mind speaking. What you want?” The officer asked for some identification and the defendant’s ticket. Jackson stated that he did not have any identification and had left his ticket on the plane, but told the officers his name was Charles Jackson. The agents then informed the defendant that they believed he was transporting drugs and asked if they could search his suitcase. Jackson flatly refused to permit the search. Agent Hurley testified that at that point, “... we advised him that we were going to obtain a search warrant for the bag and that, until we could identify him, we asked him to accompany us to our upstairs office at the airport.” (sic) Tr. p. 8.

Upon arriving in the office, Agent Whitehead frisked Jackson for weapons and found a handrolled cigarette in his sock. The defendant was immediately placed under arrest and advised of his rights. More marijuana was found in his coat pocket. While Jackson was emptying his pockets, Agent Hurley began typing a search warrant for the suitcase and informed the defendant of that fact. Whitehead then asked Jackson if he would consent to the search of the suitcase. At this point, Jackson told him to “go ahead”. A written consent form was prepared and Jackson signed the form. The search of the suitcase revealed 32 clear bags that contained 100 preludins each.

Jackson contends that the trial judge erred in denying his motion to suppress drugs seized during the incident at the New Orleans airport. Jackson argues that he was being detained illegally and the evidence obtained as a result of the illegal searches is inadmissible.

The validity of an airport search on facts similar to those in the instant case has been addressed by this court in State v. Ossey, supra, and by the U.S. Supreme Court in Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); U.S. v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). In Ossey, two police officers observed Ossey at the New Orleans International Airport after he disembarked from a plane from Los Angeles. Because Ossey’s appearance, luggage and actions fit the drug courier profile, the officers approached Ossey, identified themselves as policemen and asked if they could speak to him. Ossey produced a driver’s license and ticket that showed that he was traveling under an alias. The officers asked to search Ossey’s suitcase. Ossey responded by asking if officers had a search warrant. The officers asked Ossey to accompany them to their office while one was prepared and Ossey agreed to go with them. The trial judge found that the defendant voluntarily accompanied the agents in a spirit of apparent cooperation and freely consented to the search of his suitcase. This finding was given great weight on appellate review. Since Ossey voluntarily accompanied the officers, he was not being illegally detained when he consented to the search, the resulting seizure of the drugs was permissible.

In U.S. v. Mendenhall, supra, two DEA agents approached the defendant after determining she met several of the characteristics of the drug courier profile. Menden-hall’s driver’s license and ticket showed she was traveling under an alias. After returning her driver’s license and ticket, the agents asked her to accompany them to the DEA office for further questioning. As in Ossey, the trial judge found that Menden-hall accompanied the agents to the office voluntarily in a spirit of apparent cooperation and that she freely consented to the search that revealed she was transporting drugs. The U.S. Supreme Court upheld this finding and stated that since there was no illegal detention when Mendenhall consented to the search, the seizure of the drugs was permissible.

The present case differs factually from State v. Ossey and U.S. v. Mendenhall because there was no finding that the defendant voluntarily went with the agents by the trial court. In fact, in the instant case, the trial judge indicated he questioned the legality of the detention because in admitting the evidence seized in the search, he created a “good faith” exception to the exclusionary rule.

In Royer, unlike Ossey or Mendenhall, the Court held that the drugs discovered in an airport search should be suppressed. Royer’s appearance, luggage and actions fit the drug courier profile and aroused the suspicions of two plain clothes detectives. Royer bought a one-way ticket to New York and checked two bags. The detectives approached him and identified themselves and asked if Royer would speak to them. Upon request, Royer produced a driver’s license and ticket that showed he was traveling under an alias. The detectives informed him that they were conducting a narcotics investigation and they suspected him of transporting drugs. The detectives asked Royer to accompany him to their office. The officers, without Roy-er’s consent, retrieved Royer’s luggage. When asked if he would consent to the search of his luggage, Royer produced a key that unlocked one of the suitcases. Marijuana was found in both bags.

The Court determined that the initial encounter with the detectives was a permissible consensual encounter. Royer was “seized” when he was told he was the focus of a drug investigation and was asked to accompany them to another room. The court found that there were reasonable grounds to justify a temporary Terry-type detention; however, the court went on to find that the limits of a permissible temporary detention had been exceeded. The consensual inquiry in a public place had escalated into an investigatory procedure in a police interrogation room and as a practical matter, Royer was under arrest. The officers’ actions of compelling Royer to follow them and then subjecting him to interrogation in a small private room exceeded the scope of a permissible investigatory detention. Since Royer was illegally detained when he consented to the search of his luggage, the consent was tainted by the illegality and was ineffective to justify the search. Florida v. Royer, supra, is analogous to the present case. As in Royer, the issue in the instant case is whether Jackson was being illegally detained at the time the evidence he seeks to suppress was discovered. The initial encounter between the officers and Jackson outside the airport was not a “seizure” for purposes of the 4th Amendment. Jackson agreed to cooperate with the officers instead of walking away from them. However, when the officers asked to see Jackson’s identification and ticket, he could not or did not produce either. The officers then asked if they could search his suitcase and Jackson flatly refused to permit the search. Jackson then was told he was the focus of a drug investigation. He was to accompany the officers upstairs so he could be identified and so a search warrant could be obtained for the suitcase. As in Royer, when Jackson was relocated to the police office for further questioning, the detention to which he was subjected exceeded the scope of a permissible investigatory stop. Like Royer, “[wjhat had begun as a consensual inquiry in a public place had escalated into an investigatory procedure in a police interrogation room.” Florida v. Royer, 460 U.S. at 503, 103 S.Ct. at 1327, 75 L.Ed.2d at 240 (1983). Jackson’s'detention in an upstairs office for further investigation and interrogation was no longer the brief intrusion on Jackson’s liberty permitted by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and its progeny. The incident had become a custodial interrogation and as a practical matter, Jackson, like the defendant in Royer, was under arrest. Jackson did not voluntarily consent to the relocation and was not free to go. Jackson testified that he went along with the officers without a word because he believed that he was under arrest. Tr. p. 33. If Jackson had tried to leave, the police would have stopped him. Officer Hurley testified that he and Officer Whitehead were going to “detain him there long enough for us to identify him and secure a warrant.” Thus, when Jackson was taken into custody, the only articuable basis for his arrest was that he was a nervous young black man from Los Angeles with one suitcase who did not present any identification upon a police officer’s request. These facts do not constitute probable cause for arrest. Florida v. Royer, 103 S.Ct. at 1324, U.S. v. Mendenhall, 446 U.S. at 556, 100 S.Ct. at 1878. Dunaway v. New York, 442 U.S. 200 at 210 n. 12, 99 S.Ct. 2248 at 2255 n. 12, 60 L.Ed.2d 824 at 934 (1979); State v. Key, 375 So.2d 1354 (La.1979); State v. Matthews, 366 So.2d 1348 (La.1978); State v. Washington, 364 So.2d 958 (La.1978). We regard the officers actions in taking Jackson into custody without his consent for the purpose of further interrogation as going beyond the limits of a permissible investigatory stop and constituting an arrest without probable cause. Accordingly, any evidence discovered as a result of this illegal detention, whether with or without Jackson’s consent, was tainted and should have been suppressed. Florida v. Royer, supra; Dunaway v. New York, supra.

DECREE

For the above reasons, the judgments of the lower courts are reversed.

REVERSED.

WATSON, J., dissents and assigns reasons.

WATSON, Justice,

dissenting.

Defendant Jackson arrived from Los An-geles, California, a recognized source city for drugs, and exited the plane in an unusually slow manner; He continued to appear nervous and apprehensive and repeatedly looked over his shoulder while claiming his one small suitcase. Jackson said he had no identification or airline ticket and told the investigating officers something extremely suspicious: “he didn’t know what was in the bag” (Tr. 8). Jackson was asked to accompany the officers to an upstairs office at the airport. According to the officers, Jackson was not under arrest at that time, although he felt that he had no choice in the matter. The facts are closer to those in State v. Ossey, 446 So.2d 280 (La., 1984); State v. Watson, 416 So.2d 919 (La.1982); State v. Salazar, 389 So.2d 1295 (La., 1980); and U.S. v. Mendenhall, 446 U.S. 544,100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) than they are to those in Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1984).

The detectives in Royer had possession of defendant’s airline ticket and had retrieved and retained possession of his luggage, thereby making his flight impossible. Jackson had retrieved his own suitcase after completion of his flight when he was escorted upstairs to the agents’ office. Jackson’s lack of identification, lack of an airline ticket and ignorance of the contents of his suitcase justified the limited restraint involved in his being escorted to the upstairs office. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

I respectfully dissent.

      . Agent Whitehead and Agent Hurley were the same officers who arrested Frederick Ossey in State v. Ossey, supra.

      . Since the Drug Enforcement Administration was set up in 1974, federal drug agents have developed "drug courier profiles" that describe the characteristics generally associated with narcotics traffikers. For example, because the Drug Enforcement Administration believes that most drugs enter Detroit from one of four “source” cities (Los Angeles, San Diego, Miami, and New York), agents pay particular attention to passengers who arrive from those places. During the first 18 months of the federal program to intercept drug couriers, agents in Detroit Airport searched 141 persons in 96 encounters. They found controlled substances in 77 of the encounters and arrested 122 persons. U.S. v. Mendenhall, 100 S.Ct. at 1881.

      . The trial court cites Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) as authority for his finding that the police officers involved "exercised subjective good faith in the search of Charles Jackson’s luggage and as such possessed a reasonable belief in the veracity of their probable cause determination." Gates involved the issue of probable cause in the issuance of a search warrant, not a stop and seizure at an airport. The Court determined in Gates that a magistrate, in determining probable cause in the issuance of a search warrant, should look to the "totality of the circumstances" rather than just relying on the two-pronged test defined in the Aguilar and Spinelli decisions. The case never considered a good faith exception to the exclusionary rule.

      . If the agents reasonably believed the bag contained narcotics, they could have briefly detained the luggage to investigate the circumstances that aroused the suspicion by means that are properly limited in scope, such as exposure to a narcotics detection dog. U.S. v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983); State v. Ossey, supra, 446 So.2d at 286.

      . Officers Hurley and Whitehead testified that they "took him”, Tr. p. 15, "escorted him”, Tr. p. 15 and 23, and "asked him to accompany us”, Tr. p. 8 and 22, to their office on the third floor.


source: Caselaw Access Project

author: WATSON, Justice. MARCUS, Justice

license: Public Domain

text:
    STATE of Louisiana v. Philip E. LIUZZA.
    No. 84-KA-0473.
    Supreme Court of Louisiana.
    Oct. 15, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Jr., G. Fred Ours, Kathy Torregano, Asst. Dist. Attys., for plaintiff-appellant.
    Bruce G. Reed, Reed & Reed, New Orleans, for defendant-appellee.
   WATSON, Justice.

At issue is the constitutionality of LSA-R.S. 14:84(4) which defines the crime of pandering as “[rjeceiving or accepting by a person as a substantial part of support or maintenance anything of value which is known to be from the earnings of any person engaged in prostitution.”

Philip E. Liuzza and a co-defendant were indicted by a grand jury for conspiracy to commit pandering and pandering between September 1 and October 1, 1981 in violation of LSA-R.S. 14:84(4). The trial judge granted defendant’s motion to quash the indictment, finding the statute unconstitutionally vague in its definition of the crime. The state has appealed contending that the term “substantial” gives an adequate standard for determining the proscribed conduct.

The guarantee of procedural due process embodied in the United States Constitution and Art. I, § 2, of the Louisiana Constitution requires that a criminal enactment contain an ascertainable standard of guilt that is not “so vague and standard-less that it leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular ease.” Giaccio v. Pennsylvania, 382 U.S. 399 at 403, 86 S.Ct. 518 at 520-521, 15 L.Ed.2d 447, at 450 (1966). A statute must “... give individuals adequate notice of the conduct prohibited by law.” State v. Farris, 412 So.2d 1039 (La.,1982). Adequate notice consists of language which allows ordinary men of reasonable intelligence to understand and obey the law. State v. Dousay, 378 So.2d 414 (La.,1979); State v. Stilley, 416 So.2d 928 (La.,1982).

The constitutionality of the phrase “support and maintenance” in the pandering statute has been upheld. State v. Bourg, 248 La. 844, 182 So.2d 510 (1966), cert. denied 385 U.S. 866; State v. Arnold, 351 So.2d 442 (La.,1977).

“The words ‘support and maintenance’ as used in the statute are synonymous and have a definite meaning which persons of ordinary intelligence may easily understand.” State v. Bourg, 182 So.2d at 517.

Following Bourg and Arnold, the statute was amended by Act 219 of 1978, which added an additional element to the statutory definition of the crime. What is received from the earnings of a person engaged in prostitution must now constitute “a substantial part of” the support or maintenance of the person receiving it.

State v. LeCompte, 406 So.2d 1300 (La.,1981) upheld the constitutionality of the word “substantial” as used in LSA-R.S. 40:967(G)(2). That statute allows a district attorney to “move the sentencing court to reduce or suspend the sentence of any person ... who provides substantial assistance in the identification, arrest or conviction of other parties or conspirators to the crime for which he was convicted or to related crimes.” Despite the lack of guidelines for the meaning of “substantial assistance”, LeCompte held that the statute “sets forth the requirements for leniency with as much exactitude as it is reasonably possible for a statute to do, and that the provision is susceptible of common understanding and can, therefore, be uniformly applied.” 406 So.2d 1300 at 1308. LeCompte concerned a sentencing statute involving “leniency” which required a liberal interpretation in contrast to the strict construction given criminal statutes. State v. Boowell, 406 So.2d 213 (La.,1981); State v. Brown, 378 So.2d 916 (La.,1979).

Under this statute, individuals may be guilty of pandering on the basis of such extraneous factors as the amount of their income from sources other than prostitution. Compare State v. Gill, 441 So.2d 1204 (La.,1983). Addition of the term “substantial” to LSA-R.S. 14:84(4) has deprived triers of fact of an objective fixed standard by which to decide what is and what is not prohibited in a particular case. The statute also fails to give adequate notice of the conduct prohibited. In the context of this statute, the word “substantial” is unconstitutionally vague.

The trial court correctly held that LSA-R.S. 14:84(4) is unconstitutional and quashed the indictment.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

DIXON, C.J., dissents.

MARCUS, J., dissents and assigns reasons.

DENNIS, J., concurs.

MARCUS, Justice

(dissenting).

I do not consider that the prohibition against receiving or accepting anything of value as a substantial part of one’s support or maintenance from the earnings of a person engaged in prostitution is unconstitutionally vague. I consider this to give adequate notice of the conduct prohibited by law. It is no more standardless than criminal negligence in the crime of negligent homicide. Accordingly, I respectfully dissent.

      . Only Section (4) of the statute is in question.

      . The co-defendant pled guilty on June 6, 1983. His sentence of three years was suspended, and he was placed on inactive probation for three years.

      .LSA-Const. 1974, Art. V, § 5(D)(1).

      . The statute is also challenged as violating equal protection by discriminating against persons of lower income. This issue is pretermit-ted.

      . Because the legislative enactment of this statute contains a severability clause, this decision is limited to subsection (4) of LSA-R.S. 14:84. See Act 219 of 1978.


author: LEMMON, Justice. MARCUS, Justice BLANCHE, Justice

text:
    TEXAS BANK OF BEAUMONT v. Kazem Michel BOZORG.
    No. 84-C-0508.
    Supreme Court of Louisiana.
    Oct. 15, 1984.
    Rehearing Denied Nov. 15, 1984.

      Jerome K. Lopsich, Max Nathan, Jr., Sessions, Fishman, Rosen, Boisfontaine & Nathan, New Orleans, Richard T. Regan, Francipane, Regan & St. Peé, Metairie, for intervenor-applicant.
    Thomas G. Donelon, Kenner, for plaintiff.
    Kazem Michel Bozorg, pro se.
   LEMMON, Justice.

This case involves the ranking of two collateral mortgages executed by Kazem Bozorg, one of which was held by Texas Bank of Beaumont (TBB), the foreclosing creditor, and the other by Massey-Ferguson, Inc. (MFI), who intervened in the exec-utory proceedings. Several important issues are presented regarding the rights to ranking under La.C.C. Art. 3158 when the holder of the collateral mortgage note is not the original pledgee.

I.

On August 12, 1975, Bozorg executed a collateral mortgage note and mortgage in the amount of $200,000, which was the mortgage on which TBB eventually foreclosed. Bozorg contemporaneously executed a $200,000 hand note, and he pledged the collateral mortgage note to First Metropolitan Bank of Jefferson Parish (FMB) to secure the indebtedness represented by the hand note. The mortgage was duly recorded.

On September 11, 1978, Bozorg executed another collateral mortgage note and mortgage, this time in the amount of $344,-406.59. He pledged that note the same day to MFI to secure the payment of a hand note in the same amount. In this act of mortgage, Bozorg committed himself not to increase the indebtedness secured by the August 12, 1975 collateral mortgage and instructed FMB not to increase the indebtedness (which had been reduced to $96,-000). The mortgage was duly recorded.

On January 4, 1980, by notarial act and for the stated consideration of $88,025.34, FMB transferred and assigned to TBB “all its rights, title, interest, priority, and privilege in connection with a certain collateral mortgage note, dated August 12, 1975, in the principal sum of TWO HUNDRED THOUSAND AND NO/100 ($200,000.00) DOLLARS, payable on demand to the order of Bearer and signed by Kazem Bo-zorg; and a collateral mortgage by act before Robert J. Skinner, Notary Public, on August 12, 1975, mortgaging in favor of any person, firm, or corporation the following described real estate.... ” Bozorg’s balance then due on the $200,000 note was $88,025.34, including principal and interest.

On February 4, 1980, Bozorg executed a hand note in the amount of $200,000 and pledged the August 12, 1975 collateral mortgage note to TBB to secure the hand note.

TBB filed these executory proceedings on February 11, 1981, alleging that the $200,000 note of February 4, 1980 was in default and seeking to enforce the August 12, 1975 mortgage by having the mortgaged property seized and sold. MFI intervened, seeking to have its September 11, 1978 mortgage recognized and ranked as superior to TBB’s mortgage.

The trial court rendered judgment in favor of MFI, finding that TBB had paid off and extinguished the original debt and therefore was not entitled to retroactive ranking under La.C.C. Art. 3158. The court emphasized that TBB’s suit was not on the original hand note given in 1975, but on the new note given to TBB on February 4, 1980.

The court of appeal reversed, holding that TBB was entitled to retroactive ranking based on the 1975 collateral mortgage. 444 So.2d 698 (La.App. 5th Cir.1984). The court concluded that FMB had assigned the entire collateral mortgage package, including the hand note, to TBB and that TBB had proved compliance with the requirements for retroactive ranking for “other obligations thereafter arising” under Article 3158, as interpreted in New Orleans Silversmiths, Inc. v. Toups, 261 So.2d 252 (La.App. 4th Cir.1972), cert. den. 262 La. 309, 263 So.2d 47. We granted certiorari. 449 So.2d 1342 (La.1984). We now reverse in part, concluding that TBB established by a preponderance of the evidence that the January, 1980 transaction was at least a payment with subrogation which preserved the 1975 collateral mortgage ranking as to Bozorg’s then-existing principal obligation, but failed to establish that the parties agreed in the 1975 contract of pledge that the pledge was intended to secure other of Bozorg’s obligations which arose after the date of the 1975 contract of pledge.

II.

The collateral mortgage is a form of conventional mortgage developed by Louisiana practitioners. This mortgage does not directly secure an existing debt, but is designed to create a mortgage note for a fictitious debt that can be pledged as collateral security for a real debt. Because the mortgagor, after executing the collateral mortgage and the collateral mortgage note, pledges the collateral mortgage note as security for a debt, usually represented by a separate hand note, the collateral mortgage scheme combines the security devices of pledge and mortgage. See Nathan and Marshall, The Collateral Mortgage, 33 La.L.Rev. 497, 498 (1977).

In 1952, the Legislature amended La.C.C. Art. 3158 to provide in pertinent part:

“[I]t is further provided that whenever a pledge of any instrument or item of the kind listed in this article is made to secure a particular loan or debt, or to secure advances to be made up to a certain amount, and, if so desired or provided, to secure any other obligations or liabilities of the pledger to the pledgee, then existing or thereafter arising, up to the limit of the pledge, and the pledge instrument or item remains and has remained in the hands of the pledgee, the instrument or item may remain in pledge to the pledgee or, without withdrawal from the hands of the pledgee, be repledged to the pledgee to secure at any time any renewal or renewals of the original loan or any part thereof or any new or additional loans, even though the original loan has been reduced or paid, up to the total limit which it was agreed should be secured by the pledge, and, if so desired or provided, to secure any other obligations or liabilities of the pledger to the pledgee, then existing or thereafter arising, up to the limit of the pledge, without any added notification or other formality, and the pledge shall be valid as well against third persons as against the pledger thereof, if made in good faith; and such renewals, additional loans and advances or other obligations shall be secured by the collateral to the same extent as if they came into existence when the instrument or item was originally pledged and the pledge was made to secure them;”

Thus, the Legislature provided for a privilege when an instrument (such as a collateral mortgage note) is pledged (1) to secure a particular debt; (2) to secure advances to be made up to a certain amount (a pledge to secure loans of future amounts which the lender obligates himself to advance); and (3) to secure other obligations of the pledgor to the pledgee which may thereafter arise (a pledge to secure loans of amounts which the pledgee does not obligate himself to advance). The mortgage to secure a particular debt is effective against third parties from the date of recordation. The ordinary mortgage to secure future advances (such as a mortgage providing construction financing in stage payments), having retroactive effect to the time of the contract once the mortgagee has fulfilled his promise to make the advances, is also effective against third parties from the date of recordation. See La.C.C. Art. 3293. However, a mortgage to secure optional loans which may be made in the future does not take effect against third persons upon recordation, but only from the (later) date that an actual debt is contracted and the mortgage note is pledged to secure that indebtedness. See Meeker v. Clinton & P.H.R.R., 2 La.Ann. 971 (1847).

The 1952 amendment to Article 3158 was designed to permit the mortgagor to pledge a collateral mortgage note to secure a particular debt, either previously existing or contracted contemporaneously with the pledge, and to secure future loans by the pledgee to the pledgor (up to the limits of the pledge). The pledge privilege has been held to be effective against third persons as to' future loans (for which the collateral mortgage note is subsequently repledged) from the date of the initial contract of pledge, as long as the parties mutually agreed in the initial contract of pledge that the pledge was to secure obligations thereafter arising and the pledges were made in good faith. New Orleans Silversmiths, Inc. v. Toups, above.

In a contest involving ranking of mortgages, each claimant has the burden of proving the effective date of his mortgage as to third persons. MFI proved that its collateral mortgage became effective against third persons on September 11, 1978. Since Bozorg had pledged the August 12, 1975 collateral mortgage note to secure a particular loan of $200,000 made the same day, FMB’s collateral mortgage was effective against third persons (at least as to the particular $200,000 loan) from the date of the August 12, 1975 pledge and would have ranked superior to MFI’s collateral mortgage pledged on September 12, 1978, as long as the collateral mortgage note pledged to FMB remained in the hands of the pledgee. However, FMB did not retain the collateral mortgage note pledged in 1975, and this case presents two principal issues:

(1) Whether TBB proved that it succeeded to FMB’s rights in the pledged collateral by virtue of the 1980 transaction; and
(2) Whether TBB proved that it was entitled to retroactive ranking, with an effective date against third persons of August 12, 1975, for the loan TBB made to Bo-zorg in February, 1980.

III.

As to TBB’s claim to $88,025.34, MFI contends that TBB failed to prove that the transaction preserved, rather than extinguished, the principal obligation. MFI argues that TBB is only entitled to ranking on the date that the 1975 collateral mortgage note was repledged in February, 1980.

If the January 4, 1980 transaction was an assignment, or a payment with subrogation, or even a novation with reservation of the pledge privilege and mortgage , by FMB to TBB of Bozorg’s principal obligation (represented by the hand note), then the transaction would have given TBB the rights of FMB in the pledged collateral, including the mortgage ranking from the date of the pledge to FMB, i.e., August 12,1975. If, on the other hand, the transaction was a payoff of the principal obligation without subrogation or reservation of the privilege and mortgage, then the accessory obligation under the contract of pledge was also extinguished, and TBB’s mortgage ranking takes place only from the date the collateral mortgage note was repledged to secure the new obligation to TBB. See Odom v. Cherokee Homes, Inc., 165 So.2d 855, 865 (La.App. 4th Cir.1964).

On the day of the transaction in question, FMB was the owner only of Bo-zorg’s obligation to pay the $88,025.34 balance on the $200,000 hand note. FMB did not own the collateral mortgage note, but merely held it in pledge, since the debtor remains the proprietor of the pledge which is in the hands of the creditor only as a deposit to secure the privilege on it. La. C.C. Art. 3166. Consequently, FMB could not sell Bozorg’s collateral mortgage note which it did not own. FMB could, however, sell Bozorg’s principal obligation and could accept payment with subrogation of its rights in the collateral mortgage note.

TBB contends that it did indeed buy Bo-zorg’s principal obligation to FMB represented by the hand note. There is no evidence that the existing principal obligation evidenced by the hand note was ever assigned to TBB. If the hand note was a bearer note, it could have been negotiated merely by delivery. However, since TBB concedes that the hand note was not part of the act of assignment and since TBB otherwise failed to produce the hand note or to present testimony that it was a bearer note, there is no evidence that the hand note was a bearer note. TBB also failed to explain the nonproduction of the hand note and failed to call any of its officers or representatives who were involved in the transaction. The only evidence presented by TBB as to the 1975 hand note was a bank officer from FMB who merely testified that the hand note was no longer in his files. He could not remember what happened to the hand note, and he could not say that the hand note was endorsed over to TBB. Moreover, he could not deny that the hand note was either marked paid or was returned to Bozorg when FMB received full payment.

The bank officer did testify, however, that the parties intended for TBB to buy FMB’s “collateral position”. This evidence, while insufficient to show that the principal obligation was assigned to TBB, does show that the debt (if paid rather than purchased) was paid by TBB on the condition that FMB’s “rights” in the collateral mortgage were transferred to TBB. Accordingly, although TBB may have failed to prove that the transaction was an assignment which preserved the existence of Bozorg’s principal obligation, TBB did prove at least that it paid the principal obligation with subrogation to FMB’s “privileges and mortgages”. See La.C.C. Art. 2160(1).

We therefore conclude that the $88,025.34 paid by TBB to FMB, whether to purchase Bozorg’s indebtedness or to lend Bozorg the money to pay his indebtedness, remained at all times secured by the pledge of Bozorg’s earlier collateral mortgage note, effective as of August, 1975. On similar reasoning, we also conclude that the inclusion of that first $88,025.34 indebtedness in the $200,000 note of February 1, 1980 did not cause any loss or rank as to that $88,025.34.

IV.

The remaining issue is whether TBB is also entitled to retroactive ranking in respect to the part of the $200,000 note of February, 1980 which was in excess of $88,025.34.

In New Orleans Silversmiths, Inc. v. Toups, above, the court held that the pledgee, to be entitled under Article 3158 to retroactive ranking to the date of the initial loan for all subsequent advances to the pledgor, must prove that:

(1). The initial pledge was properly con-fected;
(2). The parties mutually agreed at the time of the original pledge that the pledge would also secure obligations thereafter arising;
(3). Each subsequent loan was especially secured by the pledge of the original collateral mortgage note;
(4). The pledged collateral has continuously remained in the hands of the pledgee; and
(5). The parties acted in good faith.

The court went on to state:

“The retroactive effect created by this statute may, by mutual consent, be made applicable not only to renewal of the primary loan but to new or additional loans, even though the original obligation has been fully paid. Further, such renewals, subsequent loans, additional advances, or other obligations shall be secured by the collateral pledged to the same extent as if made at the time the initial loan and pledge was executed.” 261 So.2d at 255.

Because there is no proof in this record regarding the initial contract of pledge, we do not reach the question whether loans made to Bozorg by TBB after January 4, 1980 might have been secured with the August 12, 1975 ranking (or even whether an assignee can ever avail himself under La.C.C. Art. 3158 of retroactive ranking for later loans). TBB is simply not entitled to retroactive ranking because it made no showing that FMB itself would have been entitled to retroactive ranking for later-arising loans under Article 3158. The article does not purport to give retroactive ranking in every case of a loan secured by a pledge, but only when the initial contract of pledge establishes “a pledge ... made to secure a particular loan ... and ... any other obligations of the pledger to the pledgee ... thereafter arising, up to the limit of the pledge”. The proof in this record only establishes the parties’ intention to pledge the collateral mortgage note to secure the “particular loan” (the initial $200,000 loan).

Privileges (including those arising from pledges) must be strictly construed. A privilege can be claimed only for those debts to which it is expressly granted. La C.C. Art. 3185. The express grant of a privilege by Article 3158 exists only when the parties, at the time the contract of pledge is made, mutually agreed that the pledge would secure other unspecified obligations thereafter arising (in addition to securing the particular loan). In effect, the amended Article 3158 provides an exception to the general rule that the privilege only ranks from the time the principal obligation arises, the exception being when the pledgor and pledgee agree at the time of the initial pledge that the pledge will also secure obligations of the pledgor to the pledgee thereafter arising.

Therefore, for TBB to establish entitlement to retroactive ranking, it was necessary to prove that FMB and Bozorg mutually agreed in the 1975 contract of pledge that the pledge would also secure the pledgor’s subsequently arising obligations for which the original collateral mortgage note could be additionally pledged. The 1975 contract of pledge is not in the record, and there is no other evidence of an agreement at the time of the initial pledge that the pledge would secure obligations thereafter arising. Therefore, TBB did not prove its compliance with the requirements of Article 3158 for retroactive ranking.

Accordingly, the judgment of the court of appeal is reversed in part, and it is ordered that the mortgage of Texas Bank of Beaumont be recognized as superior to the mortgage of Massey Ferguson, Inc., but only up to the amount of $88,025.34 plus accrued interest. Costs are to be assessed one-half to each of the two creditors.

DIXON, C.J., and DENNIS, J., concur.

MARCUS and BLANCHE, JJ., dissent and assign reasons.

MARCUS, Justice

(dissenting).

I agree with the court of appeal that FMB assigned the “whole collateral file, which included the hand note,” to TBB. The hand note was not paid off but rather was validly assigned to TBB along with the collateral mortgage and note. Further, considering the fact that Bozorg pledged a collateral mortgage note as security for the original debt and the language in the collateral mortgage note that “any and every other debt or obligation, direct or contingent, whether now existing or hereafter arising ... shall be secured,” I am satisfied that it met the requirement in La.Civ.Code art. 3158 that “if so desired or provided, to secure any other obligations or liabilities of the pledger to the pledgee, then existing or thereafter arising, up to the limit of the pledge.... ” Accordingly, I consider that TBB is entitled to retroactive ranking in respect to the $200,000 hand note of February 7, 1980 from August 12, 1975.

I respectfully dissent.

BLANCHE, Justice

(dissenting).

The majority finds that the transfer of the collateral mortgage package in January of 1980 was a payment (or purchase) with subrogation, the effect of which was to preserve the 1975 collateral mortgage ranking as to Bozorg’s then existing principal obligation. They also hold that plaintiff failed to establish that the parties agreed in the 1975 contract of pledge that the pledge was intended to secure other of Bozorg’s obligations which arose after the date of the 1975 contract of pledge.

From these holdings, I respectfully dissent. The act transferring the collateral mortgage from FMB to TBB clearly states that it is an act of assignment. As an act of assignment, all of the rights and privileges accorded the mortgagee to have future advances secured by the mortgage would have passed to the assignee. Likewise, the collateral mortgage states that it was created for the purpose of raising funds which indicates the collateral mortgage did contemplate securing future advances. As an assignment, it was not necessary that FMB own the collateral mortgage note as it was only assigning whatever rights it had as to that note under the pledge. Therefore, I believe that the Court of Appeal was correct in finding that all of the rights in this collateral mortgage, including the right to make future advances, were validly assigned to TBB and I would hold that the collateral mortgage held by TBB is superior to the mortgage held by MFI for the entire amount of the $200,000 hand note.

      . FMB was not a party to the instrument and apparently did not agree to subordinate any of its rights under the pledge of the 1975 collateral mortgage.

      . TBB also sought to enforce a $35,000 collateral mortgage acquired from First National Bank of Jefferson (FNJ) on March 21, 1980. On January 12, 1978, Bozorg and his wife had executed a hand note, representing indebtedness of $35,-000, and had pledged to FNJ a $35,000 collateral mortgage note to secure the hand note. On March 21, 1980, FNJ transferred the entire collateral mortgage package, including the hand note, to TBB for $33,911.01 (the amount then due, including principal and interest). On that same day, the Bozorgs executed a new hand note to TBB for $35,000, pledging the January 12, 1978 collateral mortgage and note. The trial court, ranking this mortgage from the date of the new hand note and repledge of the collateral mortgage note to TBB, held that MFI’s mortgage was superior. However, the appellate court reversed, and MFI did not seek review of that portion of the appellate court’s judgment, which is now definitive on that issue. Therefore, TBB's superior ranking as to the mortgage acquired from FNJ is no longer at issue in this ranking contest.

      . The collateral mortgage has long been recognized by the courts. See, for example, Levy v. Ford, 41 La.Ann. 873, 6 So. 671 (1880).

      . Pledge is an accessory contract which secures the performance of an existing principal obligation. La.C.C. Art. 3136. The principal obligation in the collateral mortgage scheme is the actual indebtedness, usually represented by a hand note, and the collateral mortgage note is pledged to secure payment of the principal obligation.

      .La.C.C. Art. 2645 provides that "[t]he sale or transfer of a credit includes every thing which is an accessory to the same; as suretyship, privileges, and mortgages". Therefore, when a creditor assigns a note, the assignee receives the note and all accessory contracts. In the case of the ordinary conventional mortgage in which the debt is evidenced by a note secured by the mortgage, assignment of the note includes the mortgage in the transfer, because the mortgage is an accessory. However, in the case of a collateral mortgage, the debt is evidenced by the hand note, and it is the collateral mortgage note (and its accompanying mortgage) which is the pledged security. Thus, upon transfer of the hand note evidencing the principal obligation, the auxiliary contracts, i.e., the collateral mortgage note and mortgage, are transferred as well, because they are accessories to the hand note.

      . La.C.C. Art. 2160(1) provides:
      "The subrogation is conventional:
      “(1) When the creditor, receiving his payment from a third person, subrogates him in his rights, actions, privileges, and mortgages against the debtor; this subrogation must be expressed and made at the same time as the payment."

      . La.C.C. Art. 2195 provides:
      "The privileges and mortgages of the former credit are not transferred to that which is substituted to it, unless the creditor has expressly reserved them.”

      . The court of appeal thus had no record support for its statement that the hand note previously held by FMB was a bearer instrument. Admittedly, the hand note evidencing Bozorg’s debt to FNJ was a bearer note and was proved to be part of FNJ’s assignment to TBB, but MFI does not contest TBB’s superior ranking on that debt.

      . The bank officer testified as follows:
      "Q. What did you deliver to Texas Bank of Beaumont when you executed that assignment?
      "A. I delivered a collateral mortgage and, as far as I recollect, I cannot find my collateral file at the bank since I talked to you on the phone last week and, I presume I must have given him my whole collateral file because usually we keep them in our vault after they are paid out. I couldn't find any recollection- But, I know I delivered the collateral mortgage note to them.
      "Q. Were there any other notes delivered?
      "A. I don’t recall.
      "Q. Do you know what happened to the, what is called the 'hand note’?
      "A. No. As I was listening to Miller [FNJ officer] give his testimony I was trying to recall what happened to our hand note. I don’t recall if we ... if I brought that the same day or that was mailed. I don’t recall.
      "Q. Do you know whether or not it was returned to Kazem Bozorg?
      "A. Honestly, I don’t know.
      "Q. Do you know if it was marked ‘paid’?
      "A. Really, I couldn't say yes or no."

      . We emphasize that the agreement must be in the contract of pledge and not in the collateral mortgage instrument. Indeed, the pledgee is generally not a party to the collateral mortgage instrument, and the instrument is frequently executed prior to a contract of pledge.


author:
LEMMON, Justice.
      MARCUS, Justice BLANCHE, Justice

text:
    Paulette CHARBONNET, M.N. Washington, Larry Williams and L.L. Coignet, Jr. v. Joseph R. GERACE, Administrator, Louisiana Department of Employment Security and Federal Aviation Administration, Southwest Region.
    No. 84-C-0900.
    Supreme Court of Louisiana.
    Oct. 15, 1984.

      Leonard A. Washofsky, Keith R. Credo, Hess & Washofsky, New Orleans, for applicant-plaintiff.
    William F. Baity, Asst. U.S. Atty., James A. McGraw, Baton Rouge, Eddie G. Crawford, New Roads, Roy Blondín, Denise A. Nagel, Office of Employment Sec., Baton Rouge, for respondents.
   LEMMON, Justice.

We granted certiorari to review the decision of the lower courts that plaintiffs’ participation in a strike against an agency of the United States government constituted “misconduct connected with his employment” under La.R.S. 23:1601(2) so as to disqualify them from receiving state unemployment compensation benefits.

Plaintiffs were air traffic controllers employed by the Federal Aviation Administration (FAA) and were members of the Professional Air Traffic Controllers Organization (PATCO), a labor union. After the union contract expired, PATCO negotiated with the FAA for several months over the terms of a new contract, while plaintiffs worked without a contract. When the FAA and PATCO were unable to reach an agreement, PATCO called a strike on August 3, 1981. Plaintiffs participated in the strike by refusing to work and walking picket lines. On August 6, 1981, plaintiffs were fired and replaced by other employees. Although they attempted to do so, plaintiffs were not allowed to return to work.

Plaintiffs subsequently filed claims for unemployment compensation, which were denied on the basis that plaintiffs had been discharged for striking against the United States government and for unauthorized absences. The agency’s decision was affirmed by an appeals referee after a hearing, at which the employer failed to appear. The appeals referee’s decision was affirmed by the board of review.

Plaintiffs then filed suit in district court, which affirmed the denial of benefits on the basis that plaintiffs’ participation in an illegal strike constituted willful misconduct under La.R.S. 23:1601(2). The court of appeal agreed and affirmed. 449 So.2d 1081 (La.App. 4 Cir.1984). We granted cer-tiorari. 450 So.2d 963 (La.1984). We now reverse, concluding from a review of the record that the FAA failed to sustain its burden of proving that plaintiffs were engaged in willful misconduct at the time of the strike.

For a claimant to be disqualified from benefits because of “misconduct connected with his employment” under La.R.S. 23:1601(2), the “misconduct” must have resulted from willful or wanton disregard of the employer’s interest, from a deliberate violation of the employer’s rules, or from a direct disregard of standards of behavior which the employer has the right to expect from his employees. Pilgram Manor Nursing Home, Inc. v. Gerace, 337 So.2d 660 (La.App. 3rd Cir.1976). The type of behavior which is considered “willful misconduct” is intentional wrong behavior. Banks v. Administrator of Employment Security, 393 So.2d 696 (La.1981). Because of the beneficial purpose of unemployment compensation, the term “misconduct” should be construed so as to favor the awarding of benefits rather than disqualification.

A strike against any employer is by its very nature in willful disregard of the employer’s interest. However, participation in a strike against an employer in the private sector does not, in and of itself, constitute misconduct under Section 1601(2). See Standard Materials, Inc. v. Administrator, Division of Employment Security, 401 So.2d 400 (La.App. 1st Cir.1981). La.R.S. 23:1601(4) disqualifies a striking employee in the private sector from benefits for the duration of the strike, but the disqualification ceases when the strike ends. The instant case presents the question of whether participation in a strike against a public employer is alone sufficient under Louisiana law to constitute disqualifying misconduct.

At the hearing held before the appeals referee, the only testimony was that of three of the claimants. The FAA, although not represented at the hearing, submitted a copy of plaintiffs’ employment record in support of its position that the employees were aware that a strike was illegal but participated nonetheless. In their testimony the claimants admitted that they had signed many documents at the beginning of their employment, one of which contained a copy of 5 U.S.C. § 7311, which prohibits strikes against the United States government. They also admitted signing an agreement not to participate in such a strike. However, the FAA had permitted them to belong to PATCO and to be represented by PATCO in collective bargaining, although membership in that organization was a violation of 5 U.S.C. § 7311(4). The employees further testified that they had been told by members of PATCO’s negotiating team that the FAA was not bargaining in good faith and that a strike had been called. They asserted that they believed at the time they had a legal right to strike because the contract had expired and the FAA had violated the law during the negotiations.

On the basis of this evidence, the board of review found that the claimants, at the time they were hired, were aware that a federal statute prohibited them from participating in a strike. Also finding that the claimants were discharged because of unauthorized absences from work and participation in an illegal strike, the board concluded that the conduct was a “willful and wanton disregard of the employer’s interest and deliberate violation of the employer’s rules, as well as a breach of a condition of employment.”

La.R.S. 23:1634 limits judicial review in unemployment compensation proceedings to questions of law. The findings of the board of review are conclusive if supported by sufficient evidence, since sufficiency of the evidence is always a question of law. In a case in which willful misconduct is alleged, the employer has the burden of proving the misconduct by a preponderance of the evidence. Gatlin v. Brown, 154 So.2d 224 (La.App. 2nd Cir.1963).

The only evidence introduced by the FAA at the hearing was hearsay, which is admissible for purposes of corroboration. Deloume v. Division of Employment Security, 420 So.2d 1199 (La.App. 5th Cir.1982). The only facts established by that hearsay and by the testimony of the claimants were that plaintiffs agreed at the inception of their contract not to strike, that they were aware of the government’s position on the illegality of the strike after the contract expired, and that they participated in it. This evidence does not, however, prove what the law requires — that the claimants’ participation in the strike was “willful misconduct”.

Plaintiffs’ position is that they reasonably believed in the legality of the strike because of representations by the bargaining agent recognized by the FAA. On instructions from the bargaining agent, plaintiffs formed picket lines and refused to work. Although plaintiffs were told by the government representatives that a strike was illegal, they were told by the union leadership that the strike was justified. The fact that the government allowed participation in union activities and recognized PATCO as the bargaining agent for the air traffic controllers, despite the statutory prohibition against membership in an organization which asserts the right to strike against the United States government, supported the plaintiffs’ assertions in their sincere belief that they did have a right to strike. Furthermore, although all of the plaintiffs participated in the strike, none were members of the negotiating committee or otherwise instrumental in organizing the strike. Finally, the legality of a strike is generally an after-the-fact determination, usually made by the courts. There is no evidence that plaintiffs were ever notified during the three-day strike of the restraining order issued on August 3 in Washington, D.C. against PATCO or of any court orders issued in the jurisdictions in which they were working. Neither is there any evidence that plaintiffs were ever informed that 18 U.S.C. § 1918 makes participation in a strike against the United States government a federal crime. Therefore, insofar as this record shows, plaintiffs did not knowingly violate any criminal law or any civil court order halting the strike which they had been convicted was legal.

The evidence preponderates in favor of a conclusion that the legality or illegality of the strike called by PATCO was not clear to plaintiffs at the time the strike began and that they reasonably believed for the brief period of the strike that they had a right to participate. This is not the type of disqualifying “misconduct” contemplated by the Louisiana statute which controls the determination of eligibility for benefits. In the Standard Materials case, above, the court established the right of employees involved in labor disputes to collect unemployment once the labor dispute had ended and the striking workers have been replaced by other employees. The only difference between the claimants in Standard Materials and these plaintiffs is that the strike in this case was against the United States government. That fact alone, without any evidence of intentional, willful misconduct (such as disobeying an injunctive order) is not sufficient to disqualify plaintiffs from receiving state unemployment benefits. It was the burden of the FAA to prove more than mere participation in a strike after expiration of the employment contract and upon instructions of the bargaining agent recognized by the FAA. Because the FAA failed to sustain that burden, the claimants are entitled to benefits.

Accordingly, the judgments of the lower courts are reversed, and judgment is rendered declaring that plaintiffs are not disqualified from unemployment compensation benefits because of misconduct connected with their work. The case is remanded to the agency for a determination of the benefits due and for further proceedings.

DENNIS, J., concurs.

MARCUS, J., dissents and assigns reasons.

BLANCHE, J., dissents and assigns reasons.

MARCUS, Justice

(dissenting).

Federal law makes it a felony for public employees to participate in a strike against the federal government. 18 U.S.C. § 1918. I consider violation of this provision to constitute willful misconduct in disregard of the employer’s interest. This is particularly true when a strike jeopardizes the public welfare as in the instant case. Accordingly, I respectfully dissent.

BLANCHE, Justice

(dissenting).

The majority finds that the FAA failed to carry its burden of proving that plaintiffs were engaged in misconduct sufficient to disqualify them from unemployment compensation. Participation in a strike prohibited by law is willful misconduct. Furthermore, the employees admit that they signed an agreement not to participate in a strike. The employees knew or should have known that if they did not go back to work they were breaking federal law and committing a felony regardless of what they were told by the union. Sections 7102 and 7103 of Title 5 of the United States Code give the public employees the right to participate and be represented by a labor organization as long as the organization or the employees do not strike against the government. Therefore, the employees were in violation of their own agreement not to strike as well as federal law prohibiting them from striking.

The majority fails to distinguish between a legal and illegal strike. The employees’ denial of unemployment benefits did not result from the participation in a legal labor dispute. Unemployment benefits will be awarded to participants in a legal strike. La.R.S. 23:1601(4). In the instant case, the employees were fired from their jobs for participation in an illegal strike. There is no question that the employees’ actions were in violation of a federal statute and constituted a felony. 18 U.S.C. § 1918. It is impossible for such actions to be considered participation in a legal labor dispute. The employees were guilty of willful misconduct in disregard of the employer’s interest and they should be denied unemployment benefits under La.R.S. 23:1601(2).

I respectfully dissent.

      . R.S. 23:1601(2) provides in part:
      "An individual shall be disqualified for benefits:

      "(2) If the administrator finds that he has been discharged by a base period or subsequent employer for misconduct connected with his employment."

      . Strikes against state, parochial and municipal governments are not statutorily prohibited in Louisiana. Indeed, La.R.S. 23:841 arguably provides unqualified protection of the right to strike. However, a Louisiana appellate court has declared illegal a strike by policemen against a municipality on the basis that "the concerted refusal to work by the peace-keeping employees of the government not only leaves society defenseless against crime but even inspires lawlessness". City of New Orleans v. Police Ass’n of La., 369 So.2d 188 (La.App. 4th Cir.1979).

      . At the end of the hearing, the union official representing the claimants objected to the introduction of these documents on the basis that they were hearsay. The FAA’s Exhibit # 1 was admitted into evidence by the appeals referee, but does not appear in our record.

      . 5 U.S.C. § 7311 (1982) provides in part:
      "An individual may not accept or hold a position in the Government of the United States or the government of the District of Columbia if he—

      "(3) participates in a strike, or asserts the right to strike, against the Government of the United States or the government of the District of Columbia; or
      "(4) is a member of an organization of employees of the Government of the United States or of individuals employed by the government of the District of Columbia that he knows asserts the right to strike against the Government of the United States or the government of the District of Columbia.”

      . Part of Section 7311(3) and all of Section 7311(4) were declared unconstitutional in National Association of Letter Carriers v. Blount, 305 F.Supp. 546 (D.D.C.1969), appeal dismissed, 400 U.S. 801, 91 S.Ct. 7, 27 L.Ed.2d 33 (1970).

      . The board’s decision was rendered by a 2 to 1 vote. The chairman dissented on the basis that the employer failed to submit sufficient evidence to sustain the charge of willful misconduct.

      . 5 U.S.C. § 7211(4) prohibits membership in organizations which assert the right to strike against the United States government. That prohibition, however, has been eroded. In National Association of Letter Carriers v. Blount, above, a federal district court held the prohibition of government employees from asserting the right to strike and the oath required of government employees acknowledging this prohibition was a violation of their First Amendment rights. Further, the right to join a union for the purpose of dealing with grievances was expressly recognized in Executive Order 11491. See United Federation Postal Clerks v. Blount, 325 F.Supp. 879 (1971).

      . The district court in Washington, D.C. issued a restraining order on August 3 enjoining PATCO and some of its officers from taking part in the strike. See United States v. Professional Air Traffic Controllers Organization, 524 F.Supp. 160 (D.D.C.1981).


author: DIXON, C.J.,

text:
    Johana Walker COBURN v. COMMERCIAL NATIONAL BANK.
    No. 84-C-1529.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   IN RE: Commercial Nat’l Bank, Applying for Writ of Certiorari, Writ of Review to the Court of Appeal, Second Circuit, No. 16310-CA; Parish of Caddo 1st Judicial District Court Div. “I”, No. 283534.

Prior report: 453 So.2d 597.

Denied.

DIXON, C.J.,

would grant. The $2500 damage issue was incorrectly decided, and should have been reversed.

DENNIS, J., would grant the writ.


author: LEMMON, J.,

text:
    KLEIBERT EDUCATIONAL TRUST and Timothy A. Becnel Inter Vivos Trust v. WATSON MARINE SERVICE, INC.
    No. 84-C-1621.
    Supreme Court of Louisiana.
    Nov. 2, 1984.
   IN RE: Watson Marine Services, Inc., Applying for Writ of Certiorari, Writ of Review to the Court of Appeal, Fifth Circuit, No. 83-CA-713; Parish of St. James 23rd Judicial District Court Div. “A”, No. 15683.

Denied.

LEMMON, J.,

concurs. The Court of Appeal erred in treating relator’s objection to issuance of a permanent injunction in a summary proceeding, but relator does not raise that issue in this appeal.


author: PONDER, Judge.

text:
    Mack H. McCORKLE, Jr. v. GULF STATES UTILITIES COMPANY.
    No. 83 CA 1028.
    Court of Appeal of Louisiana, First Circuit.

      Ralph Kelton, Baton Rouge, for plaintiff-appellant Mack H. McCorkle, Jr.
    Carey J. Guglielmo, Baton Rouge, for defendant-appellee Gulf States Utilities Co.
    Before COVINGTON, LOTTINGER and PONDER, JJ.
   PONDER, Judge.

Plaintiff appealed the judgment dismissing his tort suit on a motion for summary judgment filed by defendant, Gulf States Utilities Company (GSU).

The only issue is whether defendant has established, sufficiently for purposes of summary judgment, that it is the plaintiffs statutory employer and thus insulated from tort liability under Louisiana’s Worker’s Compensation law.

We affirm.

Defendant GSU contracted with a subdi-vider to install a street lighting system, using sodium lights on embedded steel poles, and subcontracted a portion of the job (the erection of the steel utility poles) to plaintiffs employer, Jim Best Construction Company (Best). While working for Best on that job, plaintiff was injured when a utility pole he was helping to erect came into contact with an uninsulated power line owned by the defendant. Plaintiff subsequently sued defendant in tort for damages. On the defendant’s motion for summary judgment, the trial court found that GSU was plaintiff’s statutory employer under LSA-R.S. 23:1061 because Best’s work was within GSU’s regular trade, business or occupation. The court held that the plaintiff’s exclusive remedy was thus in worker’s compensation, under, LSA-R.S. 23:1032, and granted summary, judgment dismissing plaintiff’s tort suit.

Plaintiff appealed, but in his brief stated that he did not disagree with the trial court's conclusion that GSU was his statutory employer. Instead, plaintiff devoted most of his argument trying to convince this court that he has (despite jurisprudence and a statutory directive to the contrary) an alternate right to proceed against GSU in tort, under LSA-C.C. art. 2317.

A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966; Chaisson v. Domingue, 372 So.2d 1225 (La.1979).

In a tort suit by an injured employee of a contractor, the principal bears the burden of proving that the work being performed was part of its trade, business or occupation, Lushute v. Diesi, 354 So.2d 179 (La.1977). Generally, in order for a work or project to be within a principal’s trade, business or occupation, it must be routine or customary, or some other type of activity which is necessary for the principal’s day-to-day operations, or is “an actual part of the nature and purpose of the principal’s enterprise.” Benson v. Seagraves, 436 So.2d 525 (La.1983); Lewis v. Exxon Corporation, 441 So.2d 192 (La.1983) (on rehearing).

Defendant submitted an affidavit signed by its vice-president in charge of the Baton Rouge Division, a twenty-four year employee. His affidavit states the following: Defendant is engaged in the business of generating, distributing, and transmitting electrical energy. Defendant engages in both the maintenance and installation of electrical transmission and distribution lines. The installation of a street lighting system is work regularly performed by its own employees; is subcontracted out to outside workers only when its own workforce is overloaded; and is thus “an integral and necessary part” of its trade, business or occupation. Best is one of several contractors defendant regularly employs to handle this type of work.

Attached exhibits showed that defendant entered into a contract with Best in 1978 in which the latter agreed to perform, when requested by the defendant, certain work which included construction of electric distribution facilities. In December of 1980, defendant’s employees prepared a cost estimate on the project to install a street lighting system for the subdivision. The defendant required Best, pursuant to their standing agreement, to furnish “necessary labor, tools, equipment, supervision (and) materials, ... not furnished by Gulf States Utilities Company.”

The plaintiff failed to submit any opposing affidavits, with one possible exception: an unlabeled, unattached affidavit signed by a co-employee of plaintiff is in the record, and was filed on the date of the hearing on the motion for summary judgment. However, there is no indication on whose behalf it was submitted. In any case, the affidavit does not address the issue before us and thus is not persuasive.

After a thorough review of the record, we cannot say that the trial court was clearly wrong in concluding that the erection of utility poles is work within the regular trade, business or occupation of the defendant. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Additionally, we note that GSU would be plaintiffs statutory employer even if the project on which Best was engaged was not one of regularity or custom for GSU. Whenever a principal contracts to perform work for another (which GSU did in this case) — even if it is the first and only time that the principal plans to engage in such a project — the principal is, for the purposes of injuries resulting from that project, engaged in that trade, business or occupation. Lewis v. Exxon Corporation, supra.

Plaintiff argues primarily that summary judgment is inappropriate because his suit is founded on LSA-C.C. art. 2317. In effect, he is arguing that although defendant is immune from tort liability as plaintiffs statutory employer under LSA-R.S. 23:1032 and 23:1061, defendant may still be sued in tort in its alternate capacity as custodian, under C.C. art. 2317, of the power line which injured plaintiff.

Similar arguments urging the application of the dual capacity doctrine in ‘ circumstances such as this have previously, and properly, been rejected by this court. Cf. Hebert v. Gulf States Utilities Company, 369 So.2d 1104 (La.App. 1st Cir.1979), writ denied, 369 So.2d 466 (La.1979). Then Justice Tate, facing similar arguments sometime ago against the exclusive nature of Louisiana’s worker’s compensation remedy, stated:

“In view of our settled jurisprudence, the contention of plaintiff is one which addresses itself more properly to the legislature. That body has met time and time again and is presumed to be aware of our rulings. Yet it has not seen fit to amend the (Worker’s Compensation) statute to conform to the views and contentions advanced by the plaintiff ...” Broussard v. Heebe’s Bakery, Inc., 263 La. 561, 268 So.2d 656 (1972).

For the foregoing reasons, the judgment of the trial court is affirmed. Appellant shall pay all costs of appeal.

AFFIRMED.

      . LSA-R.S. 23:1061 provides, in pertinent part:
      § 1061. Principal contractors; liability
      Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any.part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him;

      . LSA-R.S. 23:1032 provides, in pertinent part:

        § 1032. Exclusiveness of rights and remedies; employer’s liability to prosecution under other laws
      The rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee, his personal representatives, dependents, or relations, against his employer, or any principal or any officer, director, stockholder, partner or employee of such employer or principal, for said injury, or compensable sickness or disease. For purposes of this Section, the word "principal" shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof....


author: CUTRER, Judge.

text:
    Judith Anne Hoover GOWINS, Plaintiff-Respondent, v. Carroll E. GOWINS, Defendant-Relator.
    No. 84-624.
    Court of Appeal of Louisiana, Third Circuit.
    Aug. 28, 1984.
    Writ Granted Nov. 16, 1984.
    Bolen & Erwin, Ltd., Marsha Jane Hopper, Alexandria, for defendant-relator.
    Ford & Nugent, Howard N. Nugent, Jr., Alexandria, for plaintiff-respondent.

      Before GUIDRY, CUTRER and STOKER, JJ.
   CUTRER, Judge.

The defendant-relator, Carroll E. Gowins, seeks supervisory relief from a judgment of the trial court which denied relator’s exception of jurisdiction over the person and an exception of improper pleading.

FACTS

Judith and Carroll Gowins were married in 1962. On June 23, 1980, Judith filed suit (# 109,940) for separation. This suit was later amended wherein Judith sought a divorce. On December 2, 1980, judgment was rendered granting Judith a divorce, child custody and child support. A partition of the community property was not mentioned in the pleadings nor in the judgment of divorce. In June 1981, Judith and Carroll entered into a community property settlement. The instrument makes no mention of the military retirement pay.

On February 6, 1984, Judith filed a petition in the same suit (# 109,940) seeking recognition of her alleged interest in military retirement benefits that would enure to the benefit of Carroll. Judith alleged in her petition that relator was a resident of Alabama. She asked that a curator be appointed her absentee husband. This appointment was made and service was made upon the attorney.

Relator filed exceptions of improper pleading and jurisdiction. The trial court overruled these exceptions and this supervisory proceeding resulted. We denied the writ as to the portion of the trial court judgment overruling the exception of improper pleading. The basis of that denial was that we concluded that the action for partition was a separate action, under LSA-C.C.P. art. 82, and would be treated as such even though it was filed under the same suit number as the divorce suit.

We granted the writ as to that portion of the trial court judgment overruling the exception of jurisdiction.

In its written reasons for judgment, the trial court stated as follows:

“Defendant’s exception of jurisdiction is based primarily on the fact that plaintiff alleged in her petition that exception was a resident of the State of Alabama. This Court having previously acquired jurisdiction shall retain it to hear all matters relating to the dissolution of the community. The exception of jurisdiction is therefore overruled. ”

We interpret the trial court’s reasoning to be that, once jurisdiction attached in the previous divorce proceedings, the court retained “continuing jurisdiction” over this suit for recognition of Judith’s alleged interest in Carroll’s military retirement pay.

The concept of “continuing jurisdiction” emanates from the case of Imperial v. Hardy, 302 So.2d 5 (La.1974). In that case a non-resident husband had invoked the jurisdiction of a Louisiana court in a custody proceeding. The wife, a Louisiana resident, answered and reconvened for a fixing of child support and past due child support. The wife was granted custody and child support. The non-resident husband was granted visitation privileges. Later, the wife filed a rule for an increase in child support and also sought to make executory the past due child support. The rule was served upon the attorney of record. The husband filed an exception of jurisdiction. The court held as follows:

“Jurisdiction is power, and it would be meaningless in this case if the husband could submit to the court’s jurisdiction and be cast for child support which this court could neither later modify nor enforce within its boundaries.
“Once jurisdiction attached for an award of child support, therefore, it continues for a change or modification of the award in the future. La.Civ.Code art. 157; La. Code Civ.P. art. 2592; Davis v. Davis, 238 La. 293, 115 So. 2d 355 (1959); Nelson v. McCarter, La. App., 212 So.2d 467 (1968). ”

The question then arises as to whether this concept of “continuing jurisdiction” extends to separate partition suits by the wife against the non-resident husband seeking to be recognized as being entitled to an alleged interest in the husband’s military retirement pay. While we recognize that the “continuing jurisdiction” rule of Imperial is the law of this state in such a continuing family matter as child support, we conclude that this theory of jurisdiction law is not applicable to the issue at hand for the following reasons.

Prior to the ease of McCarty v. McCarty, 453 U.S. 210,101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), our courts had recognized that military retirement pay must be classified as community property when such an asset was acquired during the community. Swope v. Mitchell, 324 So.2d 461 (La.App. 3rd Cir.1975) and Moon v. Moon, 345 So.2d 168 (La.App. 3rd Cir.1977, writ den., 347 So.2d 250 (La.1977). In McCarty, however, the Supreme Court intervened and stated that “the conflict which existed between the California community property law and the federal military retirement statutes threatened grave harm to clear and substantial interests.” The court held that federal law precludes a state court from dividing military retirement pay received by the husband.

Following McCarty, Congress enacted the “Uniformed Services Former Spouses Protection Act” in 1982 which act became effective February 1, 1983. This act had the effect of overruling McCarty by removing the federal preemption of state laws in the division of military pensions. The effect of this congressional action was to allow our state courts to render judgments which were consistent with decisions rendered prior to McCarty. When Congress eliminated the federal preemption barrier created by McCarty, by enacting 10 U.S. C.A. § 1408, it also specifically set forth the jurisdictional limitation under which a court may enter an order affecting military retirement pay. 10 U.S.C.A. 1408(c)(4) provides as follows:

“A court may not treat the disposable retired or retainer pay of a member in the manner described in paragraph (1) unless the court has jurisdiction over the member by reason of (A) his residence, other than because of military assignment, in the territorial jurisdiction of the court, (B) his domicile in the territorial jurisdiction of the court, or (C) his consent to the jurisdiction of the court.” (Emphasis added.)

The court in this case could exercise jurisdiction over Carroll only if he was (1) a resident, or (2) was domiciled in the territorial jurisdiction of the court, or (3) he consented to the jurisdiction of the court. It is clear that Carroll neither resided in nor was he domiciled in the jurisdiction of the trial court at the time the instant suit was filed. Further, Carroll has not consented to the jurisdiction of the trial court. He objected to the jurisdiction by means of the exception.

This action filed by Judith is a separate action for a partition of military retirement pay brought pursuant to the provisions of 10 U.S.C.A. 1408(c)(4). Such action must comply with the explicit jurisdictional requirements of this congressional act. The consent requirement of 10 U.S.C.A. 1408(c)(4) cannot be interpreted as being consent that is invoked by virtue of the “continuing jurisdiction” doctrine of Imperial v. Hardy.

This action does not seek any “change modification” of the previous judgment of the trial court. Thus, it cannot be said that the concept of “continuing jurisdiction” applies to this case. In order for the trial court to exercise jurisdiction, Carroll would have to consent to the jurisdiction of the trial court in this proceeding. No such consent having been given, the trial court lacks jurisdiction and should have sustained the exception of jurisdiction.

For these reasons, the writ is made peremptory. The trial court judgment, overruling the exception of jurisdiction is reversed and set aside. It is ordered that the exception of jurisdiction be granted and the plaintiffs suit is dismissed at her costs.

REVERSED AND DISMISSED.


author: LOBRANO, Judge.

text:
    INTERSTATE COLLECTION BUREAU, INC. v. Gerald OLIVIER, Administrator of the Succession of Mrs. Mary Mason Harper.
    No. CA-1919.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1984.
    Rehearing Denied Oct. 29, 1984.
    Edward J. Cloos, III., Badeaux, Discon, Cumberland & Shearman, New Orleans, for appellants.
    Irving B. Shnaider, A Professional Law Corp., New Orleans, for appellee.
    Before GULOTTA, LOBRANO and ARMSTRONG, JJ.
   LOBRANO, Judge.

The sole issue in this appeal is whether a default judgment rendered against the succession representative not properly qualified under the law was in error.

Prior to her death, certain medical services were allegedly rendered to Mary Mason Harper by Oschner Clinic. Apparently the account was never paid and was assigned to plaintiff, Interstate Collection Bureau, Inc. (ICB) on November 23, 1983. ICB pursued collection efforts against the heirs of Harper, without success and subsequently filed a petition to open her succession and appoint an administrator in-hopes of recovering its debt.

On May 19, 1983 a hearing was held before the trial court and Gerald Olivier, an agent of ICB was appointed succession representative. In attendance at this hearing was Vernon Mason an heir of decedent. He was advised by the Court to seek legal counsel and was informed that Olivier would be removed as administrator of the succession upon the nomination of another individual chosen by the heirs.

The heirs never nominated their own representative or made any effort to remove Olivier as administrator. Olivier never filed an inventory or sworn list, nor did he post bond, file an administrator’s oath, nor were letters of administration issued to him.

On September 13, 1983, suit was filed on open account by plaintiff against Olivier as succession representative, for $5,800.00 representing the alleged medical debts of decedent. On October 11, 1983, the trial court granted a default judgment against the succession as represented by Olivier for the full amount plus interest. The heirs of Mary Mason Harper (appellants) have perfected this appeal seeking to set aside the default judgment since the succession representative was not properly qualified as such. They also raise other issues which we will not address since the first is dispositive of this matter.

Article 734 of the Code of Civil Procedure provides in part:

“The succession representative appointed by a court of this state is the proper defendant in an action to enforce an obligation of the deceased or of his succession, while the latter is under administration....”
Article 3249 provides:
“The succession representative shall defend all actions brought against him to enforce claims against the succession and in doing so may exercise all procedural rights available to a litigant.”

Thus, it is clear that while a succession is under administration a suit against that estate must be brought against the administrator whose duty is to defend same. In order to qualify as an administrator, a party must first petition the court for appointment. The Court shall order the taking of an inventory or sworn descriptive list. La. C.C.P. Art. 3094. Thereafter, the applicant must post security and file an oath of office. La. C. C.P. Arts. 3151 and 3158. Once this is done, then letters of administration are issued under the name and seal of the Court evidencing the fact that all requisites have been complied with. La.C. C.P. Art. 3159.

The record is clear that neither an inventory or sworn list were filed, nor an oath of office or an administrator’s bond. Appellee even admits that these procedures were not followed. We are of the opinion that the administrator was not duly qualified.

We therefore hold that the default judgment rendered in this matter is an absolute nullity. Article 2002 provides, in part:

“A final judgment shall be annulled if it is rendered:
(2) Against a defendant who has not been served with process as required by law and who has not entered a general appearance, or against whom a valid judgment by default has not been taken;
Except as provided in Article 2003, an action to annul a judgment on these grounds may be brought at any time.”

The defendant succession was not properly served since it had no qualified administrator to represent it. Lacking that procedural capacity to be sued, we therefore set the judgment aside and remand this matter to the trial court for further proceedings. All costs of this appeal to be borne by appellee.

REVERSE AND REMAND


text:
    STATE of Louisiana v. Daniel SINGER.
    No. K-2830.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 21, 1984.
    Robert E. Jones, III, Asst. City Atty., New Orleans, for relator.
    Steven Lemoine, New Orleans, for respondent.
    Before KLEES, SCHOTT and LOBRA-NO, JJ.
   ON PETITION FOR SUPERVISORY WRITS

On March 23, 1984, the defendant Daniel Singer was arrested for D.W.I. He was advised of his rights as per a standard form adopted and distributed by the Louisiana Department of Public Safety. Singer submitted to a photo-electric intoximeter test, which registered a blood alcohol reading in excess of .10 percent. On April 3rd, Singer was arraigned and pled not guilty. A motion to suppress the results of the intoximeter test was filed and on August 1st, the motion was granted. The State’s application for supervisory writs to the criminal district court was denied on September 4th. The State now comes before this court with a petition for supervisory writs attacking the traffic court’s suppression of these test results.

R.S. 32:661 provides in part that when an officer requests that a driver submit to a blood alcohol test, he must “first inform the person of the consequences of a refusal and the consequences if the test is conducted and the results indicate a blood alcohol concentration of .10 percent or above by weight of blood,” and the officer must have the driver sign a form advising him of such rights. Subsection C(2) provides that where there is noncompliance with such procedure, the results are inadmissible in any criminal action.

The rights form from which Singer was advised and which he signed prior to submitting to the blood alcohol test advised in part: “If you submit to the test, and the test results show a blood alcohol level of .10 percent or above, your driver’s license shall be suspended for a minimum period of three (3) months.” No other warnings were given as to the consequences of submitting to the test and having a .10 per cent or above blood alcohol content. At the suppression hearing, the judge noted that he was suppressing the test results because the standard form used to advise Singer of these consequences failed to advise him that a reading of .10 per cent or above could be used as conclusive evidence of a D.W.I. offense in violation of R.S. 14:98.

In its brief, the State argues that the use of this test in a D.W.I. prosecution is not a natural consequence of a .10 per cent or above blood alcohol finding. It argues that a conviction for D.W.I. does not automatically result from such finding because the State still has to prove that the traffic stop was valid and that the chemical test was validly administered. The State contends that R.S. 32:661C mandates advising the suspect of only the automatic consequences of a .10 per cent or higher reading: the ninety-day suspension of driving privileges under R.S. 32:667.

However, a reading of Section 667 reveals that the clear intent for mandating the administration of such test is for the use of its result in a D.W.I. proceeding. Subsection A speaks of administering such test for arrests under R.S. 14:98. In addition R.S. 14:98, amended by Acts 1983, No. 634, effective January 1, 1984, now provides that D.W.I. occurs where: “(2) The operator’s blood alcohol concentration is 0.10 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood.” Thus, it appears that prosecution for D.W.I. is a natural consequence of a blood alcohol reading of .10 per cent or above, a consequence of which this defendant was not advised.

The State argues that the 0.10 reading is merely a rebuttable presumption. See State v. Williams, 354 So.2d 152 (La.1977). However, with the 1983 amendment of R.S. 14:98, the 0.10 percent or above reading constitutes a violation of R.S. 14:98, not just a rebuttable presumption.

Accordingly, for the reasons expressed above, we find no error in the ruling of the trial court and the applications for writs is denied.