author: WATSON, Justice. DENNIS, Justice,

text:
    The CITY OF NEW ORLEANS, etc., et al. v. The STATE of Louisiana, etc., et al.

    No. 83-CA-1767.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
    Concurring Opinion Jan. 23, 1984.
    Rehearing Denied Jan. 27, 1984.

      Salvador Anzelmo, City Atty., Galen Brown, Asst. City Atty., Phillip A. Witt-mann, Wayne J. Lee, Judy Y. Barrasso, Steven W. Usdin, Stone, Pigman, Wlather, Wittmann & Hutchinson, New Orleans, for plaintiffs-appellees.
    William J. Guste, Jr., Atty. Gen., Louis M. Jones and Maureen J. Feran, Asst. At-tys. Gen., for defendants-appellants.

      . Plaintiffs are Honorable Ernest N. Morial, Mayor of the City of New Orleans, and Gail Broussard, Jerome S. Glazer, Dr. Robert Azar, Mrs. Fred Gottesman, Mrs. Norman Newhouse, Stephen Manshel, Althea Bagneris, Members of the Audubon Park Commission, and Wellington A. Arnauld, James A. Wright, Phillip M. Baptiste, Rudolph Barnes, Ernest Colbert, George Ethel Warren, Andrew J. Douglas, Delores P. Francois, Leon R. Fulton, Mitchel Ledet, Irvin Joseph, Stephen Johnson, Nolan A. Marshal, Shirley B. Porter, Llewelyn J. Soniat, Louis Marrero, Sam Corenswet, Leon Irwin III, Stanley Muller, George Reese, Jay Furnari, Felicia Kahn, E. Ralph Lupin, Paul Lewis, Milton Lorn-ing, Luis Zervigon, Dean Allison, Leonard M. King, Jr., John Meade, Herbert Burstein, Jack Parker, and All Citizens and Taxpayers of the City of New Orleans.

      . The other defendant is the Honorable David C. Treen, Governor of Louisiana. The intervenors are Friends of the Zoo, Inc., Mrs. Brooke H. Duncan, Mrs. James K. Wadick, III, Mr. Julian B. Feibelman, Jr., Ms. Elizabeth Wisdom, Mr. Louis L. Frierson, Mr. George Montgomery, Mr. Harry B. Kelleher, Members of the Audubon Park Commission, Mrs. George R. Cary, Jr., Mrs. Daniel H. Walsh, Mrs. Hughes P. Walms-ley, Mrs. Lane T. DeBardeleben, Officers or Former Officers of Friends of the Zoo, Inc., Mrs. Robert E. Kerrigan, Jr., Mrs. Carol Odenheimer Caplan, Dr. Henry E. Braden, III, Mrs. Florette Margolis Neuwirth, Mr. James P. Hayes, Jr., Mrs. Dorothy Marcus, Mr. Rick Weber, Sr., Ms. Kathleen S. Eastman, Citizens and Taxpayers of the City of New Orleans, Mrs. Fred Manhart, Mrs. Barbara Davis, Citizens and Taxpayers of the Parish of Jefferson, and Mrs. John Williamson, a Citizen and Taxpayer of the Parish of St. Charles.

   WATSON, Justice.

In this contest between the City of New Orleans and the State of Louisiana over control of Audubon Park, the parties dispute the ownership of the park property and the constitutionality of Act 485 of 1983. Intervenors on behalf of the state include “Friends of the Zoo”, a nonprofit group incorporated in 1975 to help the New Orleans Zoo, which is located in Audubon Park.

Plaintiffs, the City of New Orleans, et al, filed suit to enjoin the implementation of Act 485 of 1983, which by its terms, abolishes the Audubon Park Commission for the City of New Orleans with members appointed by the Mayor and creates the Audubon Park Commission as a political subdivision of the state with members appointed by the Governor. The trial court granted the injunction on the ground that the Act was unconstitutional, and the State of Louisiana has appealed.

HISTORY OF AUDUBON PARK

Act 84 of the Extra Session of 1870 was passed “[t]o establish a Public Park for the city of New Orleans and to provide means therefor”. A parcel of land on Metairie Road which had been laid out by the City as a public park was denominated “The New Orleans Park” and placed under the exclusive management and control of five commissioners. The Act required the City to levy an additional ten year tax of one-eighth of one percent on all property taxed by the City and remit that money to the commissioners “weekly”. The commissioners were authorized to enact park ordinances; purchase and hold property between Metairie Road and Lake Pontchartrain; borrow money; sell corporate bonds or promissory notes as security; mortgage “its real and personal property, as well as the land now belonging to the city of New Orleans, known as the City Park;” and to sue and be sued.

Act 83 of 1871 enlarged the commissioners’ powers by allowing them to purchase other real estate within the corporate limits of the City (in addition to that lying between Metairie Road and Lake Pontchartrain). Title to such property would vest “according to its terms.” By virtue of this authority, “The Commissioners of the New Orleans Park”, a corporate body created by the legislature, purchased for the corporation “and its legal successors and assigns” a portion of the Foucher Plantation lying between St. Charles Avenue and the Mississippi River for $800,000. This acquisition, on August 15, 1871, comprises the major portion of what is now Audubon Park. For part of the price, the commissioners issued bonds secured by a mortgage on the City Park property which had been acquired by the City of New Orleans from the succession of John McDonough in 1852.

By Act 87 of 1877, the legislature abolished the offices of the commissioners and the special tax for the parks. All the powers and duties formerly conferred on the “Park Commissioners” were transferred to the City Council of New Orleans. Among the powers transferred to the City was the right to hold real estate for park purposes. Among the duties transferred was the obligation of paying the balance of the Foucher Plantation debt. As the legal successor of the Commissioners of the New Orleans Park, the City acquired title to the Foucher Plantation property.

On July 7, 1881, by Ordinance No. 7195, the City Council and Mayor of New Orleans created a board of commissioners for the Upper City Park [now Audubon Park] to undertake the management and supervision of the park. Financing was to be through private contributions and municipal funds. The Mayor was designated a permanent member of the board of park commissioners.

Subsequently, Act 103 of 1884 authorized the City to renew and extend payment of “her indebtedness” for the unpaid balance of the price paid for the Foucher Plantation property. Part of the price was the assumption of twenty-seven notes of twenty thousand dollars each. All but four of the notes had been paid. The City was authorized to issue certificates of indebtedness and levy a tax to retire the certificates, thereby avoiding a seizure and sale of the property. The Act recites that the $108,-000 balance of the purchase price is “due by said city for said park.”

City Ordinance No. 1806, adopted May 31, 1886, created a “Board of Commissioners ... of the Upper City Park” with jurisdiction over the park and neutral ground of St. Charles Avenue. Of the twenty-four members, three were permanent: the May- or; the Commissioner of Police and Public Buildings; and the Commissioner of Public Works. The other members of the board were to be appointed by the Mayor.

Audubon Park received its name from an 1886 City ordinance which changed the name of the “Upper City Park” to Audubon in honor of John James Audubon.

The first legislative mention of Audubon Park by name appears in Act 130 of 1896 which places the management and control of City Park and Audubon Park with separate corporations, The New Orleans City Park Improvement Association and the Audubon Park Association. Under this statute, the parks cannot be held liable for obligations contracted by the associations. The City of New Orleans was ordered to provide funding for the park associations in its budget. Both parks were treated identically. The Act notes that the Audubon Park Association had previously been incorporated on June 20, 1894.

Ordinance number 11727, enacted January 9, 1896, directed the Mayor to accept title to square number “60”, bounded by Felicia Street, Walnut Street, St. Charles Avenue and Audubon Park, which had been donated to the City. The property measured twenty-eight feet front on Felicia Street, eight hundred and thirty-one feet in depth, and fourteen feet in the rear. Ordinance number 2256, enacted February 12, 1904, dedicates the same property to public use as an addition to Audubon Park.

Act 191 of 1914 created an Audubon Park Commission for the City of New Orleans and entrusted it with the management and control of Audubon Park. The Commission was composed of twenty-four citizens, property taxpayers of the City of New Orleans, each appointed by the Mayor with the advice and consent of the Council. Upon the request of the Commission, the City was authorized, empowered and directed to issue bonds in an amount not exceeding $100,000 for the maintenance and improvement of the park. These “Audubon Park Bonds of the City of New Orleans” were to be retired from appropriations in the City’s budget. “Like other city bonds,” they were “exempt from all taxation.”

After approval by the voters of New Orleans, Act 351 of 1948 authorized incorporation of the City of New Orleans under a commission form of government. The Mayor, except as otherwise specifically provided by the constitution, the charter or other statutes, was empowered to make all necessary appointments to boards and commissions. The Act stated the intention of transferring to the City:

“[a]ll the powers and duties of government in the city of New Orleans or parish of Orleans and the control of all real public property, and all the powers and duties of boards and commissions other than those provided for by the constitution shall be transferred and vested in the city of New Orleans, ...”

The Audubon Park Commission has never been a constitutional board. This legislation gave the City control of Audubon Park, “real public property,” and the powers and duties of the Audubon Park Commission. These powers, functions and duties were retained under Article VI, Section 4, of the Louisiana Constitution of 1974.

On July 15, 1948, the Council and Mayor of the City of New Orleans adopted and approved an ordinance to authorize the Audubon Park Commission to purchase from the Texas & Pacific Railway Company for park purposes a portion of ground in the Sixth District bounded by the Mississippi River, Tchoupitoulas Street, Audubon Park and Henry Clay Avenue, containing approximately 21.41 acres. This is the “Avenger Field” or “Mengel Tract” property-

The home rule charter of the City of New Orleans effective May 1, 1954, refers to some “unattached boards and commissions”. The Audubon Park Commission is not specifically mentioned, but the Parkway and Park Commission Board shall “administer, control and manage all parks, except those otherwise provided for by applicable state laws.”

In 1958, Act 492 authorized the Audubon Park Commission for the City of New Orleans and the New Orleans City Park Improvement Association to control all activities in the parks under their respective management; to contract with private individuals; and to charge rental and/or activity fees for use of the park property. Both parks were treated interchangeably by the legislature. The legislation did not change the authority granted to the Audubon Park Commission for the City of New Orleans by Act 191 of 1914.

Act 150 of 1962 required the “Register of State Lands” to prepare and maintain a listing of all real property owned by or under the control of the state of Louisiana and its boards, commissions, departments and agencies. Audubon Park has never been included in this listing as property of the state or property under the control of a state commission.

Act 305 of 1978 created the New Orleans Exhibition Hall Authority, “a body politic and corporate and political subdivision of the state of Louisiana”. The language of this act is significantly different from those dealing with Audubon Park in that it specifically designates the authority as a political subdivision of the state of Louisiana.

Act 55 of 1979 authorized the City of New Orleans “acting by and through the Audubon Park Commission”, to issue negotiable, tax exempt bonds for a zoological garden in Audubon Park. “All bonds shall be issued in the name of the city....” The bonds, payable from the proceeds of a special tax, are to be secured “solely upon the credit of the tax revenues received or to be received by the City”.

Act 756 of 1981 allows any park commission in a municipality with a population of over four hundred thousand, which operates a park and maintains a zoo, to contract with nonprofit entities for the operation and management of the park and zoo. The Act states: “Title and ownership of all immovable property shall remain vested in the state of Louisiana.” This is the first legislative reference to any state “ownership”.

Act 51 of 1982 allows the Sewerage and Water Board of New Orleans to charge the Audubon Park and Zoological Garden for annual consumption in excess of its 1981 usage.

Act 352 of 1982 placed the Audubon Park Commission within the Department of Culture, Recreation and Tourism as a “state agency”. The new Audubon Park Commission was to be composed of twenty-four members, twenty-three of whom would be appointed by the governor. The twenty-fourth member would be the president of the Friends of the Zoo.

The Act provided in Section 3A:
“Section 3. A. The Audubon Park Commission for the city of New Orleans created by Act No. 191 of the 1914 Regular Session is hereby abolished. The Audubon Park Commission created in this Act shall be the successor in every way to the Audubon Park Commission for the city of New Orleans created by Act No. 191 of the 1914 Regular Session. The powers, duties, functions, responsibilities, programs, and operations of the abolished Audubon Park Commission for the city of New Orleans as vested by the constitution and laws of the state, including but not limited to Act No. 130 of the 1896 Regular Session, Act No. 191 of the 1914 Regular Session, Act No. 492 of the 1958 Regular Session, and Act No. 55 of the 1979 Regular Session, upon and after the effective date of this Act are transferred to and shall be exercised by and be under the administration and control of the Audubon Park Commission created in this Act.”

Act 352 of 1982 was declared unconstitutional as a local law enacted without compliance with the publication requirements of LSA-Const.1974, Art. 3, § 13. City of New Orleans v. Treen, 431 So.2d 390 (La., 1983).

Act 865 of 1982 amends and reenacts Act No. 130 of 1896. It transfers the New Orleans City Park Improvement Association to the state Department of Culture, Recreation and Tourism and requires “that ... the New Orleans City Council shall appropriate annually” to that association “not more than three hundred and fifty thousand dollars.” No actual fiscal burden was imposed by the legislature on the City in this Act, and the permissive funding provision is constitutional. City of New Orleans v. State, 426 So.2d 1318 (La., 1983).

Act 485 of 1983, in contest here, essentially reenacts Act 352 of 1982. It abolishes the Audubon Park Commission for the City of New Orleans and creates a new Audubon Park Commission as a political subdivision of the state of Louisiana with twenty-four members appointed by the governor. The area defined as park property includes the former Foucher Plantation, and the property known as “Avenger Field”, but does not include the square designated by the number “60” bounded by Felicia Street, Walnut Street, St. Charles Avenue and Audubon Park. The new Audubon Park Commission is named “the successor in every way to the Audubon Park Commission for the City of New Orleans created by Act 191 of the 1914 regular session”. It also has the “powers, duties, functions, responsibilities, programs and operations ... vested by ... Act No. 130 of the 1896 Regular Session, ...” The Act requires the City to continue payment of the bonded indebtedness incurred on behalf of the park and zoo.

JURISPRUDENCE

State Civil Service Com’n v. Audubon Park Com’n, 99 So.2d 920 (La.App.Orl. 1958) held that the Audubon Park Commission was an independent agency of the City of New Orleans. The court noted that the commission is not expressly referred to in the City’s Home Rule Charter but many other boards and commissions are also omitted from express reference.

“ ‘[T]he Audubon Park Commission was first created by private charter, by act before Samuel Flower, Notary Public, on the 20th day of June, 1894, and at that time the charter provided that the Mayor and the Commissioners of Public Works, Police and Public Buildings, would be ex-officio members of the Board of Directors. By Act 191 of 1914, a commission known as the Audubon Park Commission was created and entrusted with the management and control of Audubon Park. Its members are appointed by the Mayor; by and with the consent of the Commission Council; they must be citizens and property taxpayers of New Orleans; and the financing of the operation of the park is provided for out of city funds.
“ ‘It is the opinion of this court that this commission is a municipal commission and that its employees are subject to the City Civil Service and not that of the State.’ ” 99 So.2d at 924.

The court stated that the state may declare a commission it creates to be an agency of the state, but this intention must be evident in the pertinent legislation.

City of New Orleans v. Board of Commissioners, 148 So.2d 782 (La.App. 4 Cir. 1962) stated that the Audubon Park property has always been owned by the state. At issue was the right of the Board of Commissioners for the Port of New Orleans to a servitude on the river bank of the park property. A writ was refused, 244 La. 204, 151 So.2d 493 (1963) because “the result” was correct.

Audubon Park Commission v. Board of Commissioners, 153 So.2d 574 (La.App. 4 Cir.1963), writ denied 244 La. 1011, 156 So.2d 223, considered the ownership of the “Mengel Tract” which was purchased by the Audubon Park Natatorium, Inc., from the Texas & Pacific Railroad in 1949 for $125,000. The Natatorium’s stock was entirely owned by the Audubon Park Corn-mission, and it “functioned primarily as a purchasing agent for the Commission.” Since the Natatorium was created to do things not permitted to the Commission as a public corporation, the court concluded that the actions of the Commission were ultra vires, beyond the powers conferred by the legislature. However, the Natatori-um was a de facto private corporation, which had validly purchased the Mengel Tract. The Natatorium was not acting on behalf of the state, and the state does not own the Mengel Tract. In dicta, the court states that Audubon Park is a public recreational facility owned by the state.

In State ex rel. Guste v. Audubon Park Commission, 320 So.2d 291 (La.App. 4 Cir. 1975) the court stated:

“There is no question but that APC [Audubon Park Commission] is an agency of the City and not of the State, State Civil Service Commission v. Audubon Park Commission, 99 So.2d 920 (La.App. 4th Cir.1958), but Audubon Park is owned by the State and not by the City. City of New Orleans v. Board of Commissioners, 148 So.2d 782 (La.App. 4th Cir. 1962).” 320 So.2d at 295.

These seemingly contradictory statements were irrelevant to the issue, which was whether the attorney general and the inter-venors stated a cause of action in alleging that expansion of the zoo would change the character and nature of the park. After remand, State ex rel. Guste v. Audubon Park Commission, 355 So.2d 984 (La.App. 4 Cir.1978) held that the expansion of the zoo area did not change the nature and character of the park. A writ was denied, 356 So.2d 1002 (La., 1978).

Relying on City of New Orleans v. Board of Commissioners of Port of New Orleans, supra, the court in Upper Audubon Ass’n v. Audubon Park Com’n, 329 So.2d 206 (La.App. 4 Cir.1976) stated in dicta that Audubon Park was state owned. The question in the case was compliance with the public lease law, which applies to municipalities as well as state agencies. LSA-R.S. 41:1211. A writ was denied because the result was correct. 333 So.2d 240 (La., 1976).

City of New Orleans v. Treen, 421 So.2d 282 (La.App. 4 Cir.1982) also relied on City of New Orleans v. Board of Commissioners, supra, to hold that the state of Louisiana is the record owner of the property known as Audubon Park. The issue was pretermitted on appeal because the case was reversed on other grounds. City of New Orleans v. Treen, supra.

ISSUES

In deciding the constitutionality of Act 485 of 1983, the following issues must be considered:

(1) Does the City or the State own Audubon Park?

(2) If the City owns Audubon Park, may the State take the property by legislative act?

Does the City or the State Own the Park?

The basic question, which has never been considered or decided by this court, is the ownership of Audubon Park.

The State does not have a specific theory to support its claim of Park ownership, and relies on various legislative acts and court opinions which have referred to the State as the owner. On the other hand, the City traces its title to the purchase by the Commissioners on August 15, 1871, and the subsequent abolition of the Commission in 1877 with the transfer of its powers and duties, including the right to hold real estate, to the City Council of New Orleans. The property thus acquired has never been sold, donated, or otherwise transferred by the City.

In Act 485 of 1983, the state attempted, by legislative fiat, to make the Audubon Park Commission a political subdivision of the state with authority over the property historically administered under the aegis of the City of New Orleans.

There is no question that the property of City Park, which was “laid out by the City of New Orleans as a public park” after the 1852 donation of the land in the Succession of John McDonough, has always belonged to the City of New Orleans.

The legislature has, in many of its enactments, treated City Park and Audubon Park identically. City Park was donated to the City of New Orleans and the ownership of that park has remained with the City of New Orleans. The state has never registered City Park or Audubon Park as being owned by or under the control of the state or its boards, commissions, departments and agencies. The state has always impliedly recognized the City’s ownership.

Act 84 of 1870 specifically recognized that City Park belonged to the City of New Orleans and created commissioners to act on behalf of the City of New Orleans. This is clear from the fact that the commissioners were given the right to mortgage “the land now belonging to the City of New Orleans, known as the City Park”. The legislature was merely aiding the City by authorizing financing to benefit the New Orleans Park. Subsequently, Act 83 of 1871 had the same purpose; it enlarged upon the previous authority by extending the area in which land could be acquired for park purposes within the City. Act 83 of 1871, in amending the 1870 Act, specifically provided that the property acquired in the enlarged area by the commission “shall vest title according to its terms.” Thus, title to the property vested in the Commissioners of the New Orleans Park, not the state. The City paid for the new park property, which it named Audubon Park, and mortgaged the property it already owned, City Park, to finance the acquisition.

By Act 87 of 1877, which transferred all the powers and duties of the Commissioners of the New Orleans Park to the City Council of New Orleans, its legal successor, the legislature recognized that the City was the owner of Audubon Park. Record title to the park property vested in the City by virtue of that Act. It has been held that a city can acquire title by legislative act. See City of New Orleans v. Carrollton Land Co., 131 La. 1092, 60 So. 695 (1913). Subsequently, in Act 103 of 1884, the legislature authorized the City to complete the financing of its purchase of the Poucher Plantation by issuing certificates of indebtedness and levying a new tax. This Act notes that the indebtedness for the Pouch-er Plantation is that of the City. In Act 130 of 1896, the Audubon Park Association, which had been incorporated in June of 1894 as an agency of the City, was given the control and management of Audubon Park. The Act recognizes the Association’s prior existence, reciting that the Audubon Park Association was incorporated on June 20, 1894.

Act 191 of 1914 continued to recognize that the Audubon Park Commission was an agency of the City. The Act provides that the “Audubon Park Commission for the City of New Orleans, be and it is hereby created...” (emphasis added). Its twenty-four members, property taxpayers of the City of New Orleans, were to be appointed by the mayor of New Orleans with the advice and consent of the council.

As the court pointed out in State Civil Service Com’n v. Audubon Park Com’n, supra, the Audubon Park Association was incorporated as a nonprofit corporation in 1894 and the charter of the association provided that the mayor and the commissioners of public works and police and public buildings of the City of New Orleans were to serve ex officio. The Audubon Park Association was created as an independent agency of the City of New Orleans and given the control and management of Audubon Park by Act 130 of 1896. From its inception, the Audubon Park Association was an agency of the City rather than the state.

As recently as 1979, the legislature recognized that the Audubon Park Commission was an agency of the City. The City was authorized to act “by and through the Audubon Park Commission” in issuing its own municipal bonds.

The state concedes that Avenger Field, the Mengel Tract, was purchased by the Audubon Park Natatorium, Inc. The result of Audubon Park Commission v. Board of Commissioners, supra, is correct; the Mengel Tract, purchased by the Natatorium on behalf of the commission, does not belong to the state of Louisiana. However, the premise stated in that case: “The Commission owes its existence to the legislature,” is erroneous. The commission came into existence in 1894, prior to the 1896 legislation which gave it the control and management of Audubon Park.

Although Audubon Park Natatorium, Inc. is the record owner of the Mengel Tract, that corporation is wholly owned by the Audubon Park Commission, an agency of the City. Avenger Field, the Mengel Tract, was not purchased on behalf of the state of Louisiana and does not belong to the state.

Although the legislature passed certain enabling legislation over the years in regard to Audubon Park, the first commissioners acted as agents of the City of New Orleans in purchasing the Foucher property; they were succeeded by the City Council, the Audubon Park Association of 1894, and the Audubon Park Commission of 1914, all exercising control and dominion over the Park on behalf of the City.

The City of New Orleans and not the State owns the property occupied by the Audubon Park and Zoo, as well as the improvements upon that property.

May the State Take the Property?

The state contends that the Audubon Park and Zoo are natural resources of the state and subject to the state’s police power under Art. IX, § l. The state’s police power is concerned with providing for the health, safety and welfare of the state as a whole. Audubon Park, although open to the public, is primarily a matter of local concern to the City of New Orleans. City of New Orleans v. Treen, 431 So.2d 390 (La., 1983). While the park contributes to the healthful, scenic and esthetic quality of the environment, the legislature cannot assume its ownership and regulation merely by declaring it a natural resource.

The state contends that the park is public property, which is not protected by the constitutional provision against taking without just compensation. LSA-C.C. art. 450 deals with public things and states:

“Public things are owned by the state or its political subdivisions in their capacity as public persons.
“Public things that belong to the state are such as running waters, the waters and bottoms of natural navigable water bodies, the territorial sea, and the seashore.
“Public things that may belong to political subdivisions of the state are such as streets and public squares.”

A park, which is analogous to a public square, may belong to a political subdivision of the state, such as the City of New Orleans. It is, of course, a public thing, owned by the City for the benefit of all persons. See Vol. 2, Louisiana Civil Law Treatise, Property, Second Edition, by Professor A.N. Yiannopoulas.

Article I, § 4, Louisiana Constitution of 1974 deals with the right to property:

“Every person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property. This right is subject to reasonable statutory restrictions and the reasonable exercise of police power.”
“Property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into court for his benefit. * * *”

Paragraph two is not limited to private property. It prohibits the state from taking any property including public property owned by political subdivisions, except upon payment of just compensation. “The remainder of the section deals with expropriation in contrast to the first paragraph’s concern with regulation.” 35 La.L.Rev. at p. 13. Paragraph two of Section 4 relates to all property, public and private; it lacks the qualifying word private in the first paragraph. A municipality may transfer its park property to the state of Louisiana but only by adoption of an ordinance, consent by the state, and execution of an authentic act. LSA-R.S. 33:4719.

The 1974 Louisiana Constitution does not allow the state to take without payment any public thing belonging to a municipality. On the contrary, the rights of local governmental entities are protected by Article VI, § 6.

CONCLUSION

Since the City of New Orleans owns Audubon Park, Act 485 of 1983, which creates a new Audubon Park Commission as a political subdivision of the state of Louisiana, is an unconstitutional taking of the City’s property without just compensation. LSA-Const.1974, Art. I, § 4. The City is entitled to injunctive relief against the irreparable injury which would be caused by the unconstitutional taking of its park property and zoo.

For the foregoing reasons, the judgment of the trial court permanently enjoining implementation of Act 485 of 1983 is affirmed.

AFFIRMED.

DENNIS, J., concurs and assigns reasons.

DENNIS, Justice,

concurring.

I respectfully concur.

For the reasons given by the majority opinion, I am persuaded that the City of New Orleans owns the Audubon Park property. However, I am not convinced that the statute in question constitutes a taking, much less an unconstitutional taking under Article 1, Section 4 of the Louisiana Constitution of 1974. Nevertheless, I concur in the judgment of the court because the statute is unconstitutional as a violation of the local government article of the state constitution.

The City of New Orleans is a “local governmental subdivision which operates under a home rule charter,” and the legislature is prohibited from enacting a “law the effect of which changes or affects the structure and organization or the particular distribution and redistribution of the powers and functions” of its government. Art. 6, § 6, La. Const.1974. The statute in question constitutes this type of law because it interferes with the internal management of local government by superseding the city’s power and function inherent in the management of its own immovable property. Moreover, the subject of the statute at issue here is not a matter of statewide concern rightfully amenable to regulation by the state within its police power. Art. 6, § 9. See the remarks of Delegate Casey in the proceedings of the Constitutional Convention of 1973, 55th Day, Yol. XVIII, pp. 21-22. See generally R. Gordon Kean, Jr., Local Government and Home Rule, 21 Loy.L.Rev. 63 (1975). The state by this statute does not attempt to regulate parks or zoos on a uniform statewide basis but to provide for the selection of persons to actually manage a particular park and zoo in one locality. I initially disagreed with this position, see City of New Orleans v. Treen, 431 So.2d 390, 395 (La.1983) (Dennis, J., dissenting), but it is now the established interpretation of the overwhelming majority of this court. Id.

The proposition that the enactment of the statute in question amounts to an expropriation is questionable. The statute does not possess any of the distinctive characteristics of expropriation. It does not alter the ownership or use of property. See M.G. Dakin and M.R. Klein, Eminent Domain in Louisiana § 1, p. 1 (1970); Nichols, Eminent Domain § 1.1; 1.42. It does not involve a determination to pursue a public enterprise utilizing land not then held by the public for the purposes of that enterprise. See Dakin and Klein § 5, p. 6. In essence, it only transfers the power to appoint the commissioners authorized to manage and control Audubon Park from the Mayor of New Orleans to the Governor. For this reason, and because I question the majority’s interpretation of the expropriation provisions of Art..l § 4 of the 1974 Louisiana Constitution in several respects, I concur only in the result of the court’s judgment.

      . Article V, Section 5(D)(1).

      . The property description is as follows:
      "2259' or 12 arpents and 99' front & width on Public Road, then on upper boundary of said tract or lower line of Greenville 5062'2" from the middle of the Public Road to the middle of St. Charles Ave., then on the lower boundary line of said tract or upper line of Burthe-ville, 5354'11" from the middle of the Public Road to said middle of St. Charles Ave., with all rights to batture, ways privileges, servi-tudes, etc. — in conformity with a plan or diagram signed by J.A. DeHemecourt the 8th of March, 1870 — annexed and made part of the inventory of the Estate of Louis F. Foucher. (Marquis de Cerce) Inventory on file in the 2nd Dist. Court. Docket # of said court #33781.”

      .A prominent Louisiana historian says: "A more conventional profit was made by United States Senator West, Pinchback and others when what is now Audubon Park was created in New Orleans.... They proceeded to buy up a tract of land for $600,000 paying $65,000 down, and then sold the land to the city for $800,-000_” Taylor, Joe Gray, Louisiana Reconstructed, 1863-1877, Louisiana State University Press, Baton Rouge, 1974, p. 199; also see Has-kins, James, Pinckney Benton Stewart Pinch-back, Macmillan Publishing Co., Inc., New York, 1973, pp. 85-86.

      . Exempted from the description of Audubon Park in Act 485 is square number sixty, donated te the City, and the ownership of this strip of land is apparently not in dispute.

      . LSA-Const.1974, Art. VI, § 4 provides:
      "Every home rule charter or plan of government existing or adopted when this constitution is adopted shall remain in effect and may be amended, modified, or repealed as provided therein. Except as inconsistent with this constitution, each local governmental subdivision which has adopted such a home rule charter or plan of government shall retain the powers, functions, and duties in effect when this constitution is adopted. If its charter permits, each of them also shall have the right to powers and functions granted to other local governmental subdivisions."

      . Under the terms of Act 352, eleven of the other members must be members of the Friends of the Zoo. Six members shall be selected from a list of fifteen submitted by the mayor and council of New Orleans. Six members shall be chosen from a list of twelve New Orleans residents comprised by the legislators representing New Orleans. Five members shall be residents of Jefferson Parish and shall be appointed from a list submitted by the Jefferson Parish legislators. Two residents of St. Bernard shall be appointed from a list compiled by the legislators of St. Bernard Parish. One member, a resident of Plaquemine Parish, shall be chosen from a list submitted by the Plaquemines legislators. Two residents of St. Charles Parish shall be appointed from a list submitted by the St. Charles legislators, and one resident of St. Tammany Parish shall be chosen from a list compiled by the legislators representing St. Tammany Parish.

      . The statement at 426 So.2d 1320 that under Act 865 the City must pay $350,000 annually to the City Park Improvement Association is not a precise reflection of the unusual wording of the Act. The parties in that case did not argue the City’s possible right to pay more than the maximum.

      .The Act requires the following composition: Seven residents of New Orleans appointed from a list of fifteen, eight names being submitted by the mayor and seven by the council, and one member being a resident of either the Eighth or Ninth Wards. Six residents of New Orleans appointed from a list compiled by the New Orleans legislators, five residents of Jefferson submitted by the legislators from Jefferson, two residents of St. Bernard appointed from a list submitted by the St. Bernard legislators, one resident of Plaquemine appointed from a list submitted by the Plaquemines legislators, two residents of St. Charles or St. John appointed from a list submitted by the legislators of St. Charles and St. John the Baptist Parishes, one member from St. Tammany Parish appointed from a list submitted by the legislators of St. Tammany Parish. Of the members appointed from New Orleans and Jefferson, at least two shall be residents of the west bank of the Mississippi River, one being a resident of the west bank of Orleans Parish, and one a resident of the west bank of Jefferson Parish.

      . Act 485 of 1983, in pertinent part, provides:
      “All funds heretofore dedicated by or under authority of the constitution and laws of this state or any of its subdivisions to the payment of any bonds issued for construction or improvements for any facility under the control of the commission, including but not limited to Act No. 55 of the 1979 Regular Session, shall continue to be collected and dedicated to the payment of those bonds. In like manner, all other dedications and allocations of revenues and sources of revenues heretofore made, which are constitutional under the Constitution of Louisiana, shall continue, until otherwise hereafter provided by the constitution, in the same manner, to the same extent, and for the same purposes as were provided prior to the enactment of this Part. However nothing herein shall be construed as requiring any local authority to fund the operations of the Audubon Park Commission on an annual basis.
      "(3) All rights, duties, obligations, and covenants of the Board of Liquidation, City Debt relating to the abolished commission and with regard to outstanding bonded indebtedness shall remain in effect."

      . This is the same property as "Avenger Field”.

      . 153 So.2d at 577.

      . Here the Park is considered as the Foucher Plantation tract; the State makes no claim as to “Square 60" and the Avenger Field-Mengel Tract is considered hereafter.

      ."Audubon Park is located entirely within the limits of the City of New Orleans and was purchased and has been operated since its inception primarily with funds raised by the city." City of New Orleans v. Treen, 431 So.2d at 395.

      . Act 84 of 1870.

      . An argument has been made that Audubon Park has the same status as the New Orleans Exhibition Hall. The difference in the status of the Audubon Park Association and the New Orleans Exhibition Hall Authority is shown in the language creating the latter; Act 305 of 1978 specifically states that the Authority “shall be a body politic and corporate and political subdivision of the state of Louisiana." That language is missing from all the legislative enactments affecting Audubon Park until Act 865 of 1982, the unconstitutional predecessor of Act 485 of 1983.

      .“The city of New Orleans traces its chain of title to Act No. 71 of 1874, p. 119, which act annexes the city of Carrollton to the city of New Orleans, and transfers all the property of the former to the latter. The city of Carrollton was incorporated by Act No. 277 of 1859, p. 219; and it was the successor of the town of Carroll-ton which was incorporated by Act No. 91 of 1845, p. 47, as amended by Act No. 247 of 1854, p. 182.” 60 So. at 696.

      . 153 So.2d 576.

      . According to the testimony of Erroll G. Williams, director of finance of the City of New Orleans, the City spent $26,851,514 on the park between 1894 and 1983. The state's contribution has been relatively small. Funding for the park and the zoo now comes from a variety of sources. However, during the history of the park and zoo, the chief source of capital funding has been the City of New Orleans. Even under Act 485, the City retains its contractual obligation to repay the bonds issued to pay for capital improvements to the Audubon Park and Zoo.

      .LSA-Const.1974, Art. IX, § 1 provides:
      "The natural resources of the state, including air and water, and the healthful, scenic, historic, and esthetic quality of the environment shall be protected, conserved, and replenished insofar as possible and consistent with the health, safety, and welfare of the people. The legislature shall enact laws to implement this policy.”

      . W.I. Irby Professor of Law, Tulane University-

      . The 1921 Constitution's expropriation provision only referred to "private property".
      "No person shall be deprived of life, liberty or property, except by due process of law. Except as otherwise provided in this Constitution, private property shall not be taken or damaged except for public purposes and after just and adequate compensation is paid.” LSA-Const.1921, Art. I, § 2.
      See footnote 24, infra.

      . LSA-R.S. 33:4719 provides:
      "Whenever, in the opinion of the governing authority of any parish or municipality, any real property being administered by such parish or municipality under authority of any general or special law, including buildings, parks, amusement facilities, or any other real property, dedicated to public use, exclusive of streets and sidewalks, could be administered to the greater advantage of the public by the state, or any department or agency thereof, the governing authority of such parish or municipality shall have the power to authorize by ordinance the transfer of the administration of such property to the state of Louisiana, or any department or agency thereof; provided, the state of Louisiana, or the department or agency concerned has manifested its consent to accept the said transfer by appropriate action according to the laws and regulations of the respective agency. Upon the adoption of such ordinance, the governing authority of such parish or municipality, through its duly authorized officer, shall have the power to execute an authentic act transferring the administration of such property, as hereinabove set forth."

      . State Dept., Etc. v. City of New Orleans, 360 So.2d 624 (La.App. 4 Cir.1978), writ denied 362 So.2d 1121 (La.1978), held that the 1921 Constitution did not prevent the state from taking the City’s public property without compensation, because the 1921 Constitution only prohibited the taking of private property.

      . LSA-Const.1974, Art. VI, § 6 provides:
      "The legislature shall enact no law the effect of which changes or affects the structure and organization or the particular distribution and redistribution of the powers and functions of any local governmental subdivision which operates under a home rule charter."


source: Caselaw Access Project

author: DENNIS, Justice.

license: Public Domain

text:
    M & G FLEET SERVICE, INC. v. LOUISIANA PUBLIC SERVICE COMMISSION.
    No. 83-CA-1855.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
    Rehearing Denied Jan. 6, 1984.
    V. James Stewart, Baton Rouge, for plaintiff-appellant.
    Marshall B. Brinkley, Baton Rouge, for defendant-appellee.
    John Schwab, Baton Rouge, for interve-nor-appellee.
   DENNIS, Justice.

Intervention of Material Delivery Service, Inc.

The public service commission granted a motor carrier a certificate of public convenience and necessity to transport cargo statewide for which another carrier had an existing certificate. The initial certificated carrier unsuccessfully opposed the issuance of an additional certificate by the commission, futilely sought judicial relief in the district court, and now appeals directly to this court. See La. Const, art. IV § 21(E).

M & G Fleet Service, Inc. was granted a certificate by the commission in April, 1980 which permitted it to haul, inter alia, fly ash within the state. Fly ash is the residue left when coal is burned, and it is useful as an additive in cement, masonry, soil stabilization and chemical waste management. Up to the commission hearings on February 11, 1982, M & G transported fly ash produced at Big Cajun Power Plant No. 2 at New Roads, Louisiana for Bayou Ash.

Tiger Transport was a holder of a certificate to haul cement, lime, drilling mud and certain other special commodities intrastate. For two to three years prior to the hearing, it engaged in extensive interstate fly ash hauling with shippers from Alabama into Louisiana and from Alabama to Georgia. In October 1981, Tiger applied to the commission for an additional permit to haul fly ash intrastate. After the filing of this application but before the hearing Tiger was acquired by Material Delivery Service, Inc. The commission approved the merger and permitted MDS to substitute itself for Tiger in the certificate proceeding.

M & G protested the application for an additional certificate and objected to the substitution of parties. The procedural objection was overruled by the commission, and this ruling was upheld by the district court. We agree. M & G has not shown that it was prejudiced by the substitution. The merger did not change the substance of the application or the qualifications of the applicant, since MDS plans to maintain Tiger’s operations as a separate division of its business.

At the commission hearing, held before an examiner on February 11, 1982, MDS produced evidence that it is well equipped to perform intrastate fly ash handling. It also produced shipper witnesses who testified that fly ash handling services in the state would be inadequate if MDS’s application was unsuccessful.

The commission, on March 24, 1982, granted MDS a certificate authorizing it to transport fly ash over irregular routes from, to and between all points in the state. M & G appealed the ruling to the district court and MDS intervened. By stipulation of the parties the case was submitted for decision on the transcript of evidence adduced before the commission. The district court rendered judgment affirming the commission’s ruling on July 19, 1983. M & G appealed to this court.

At the commission hearing, M & G opposed the issuance of a competing certificate to MDS. Its opposition and its present appeal is founded on the provision of La. R.S. 45:164 that: “’’'No new or additional certificate shall be granted over a route where there is an existing certificate, unless it be clearly shown that the public convenience and necessity would be materially promoted thereby. * * ? ”

The legal precepts are well settled which govern the commission’s determinations and judicial review of its orders granting certificates of public convenience and necessity under this provision:

The applicant has the burden of clearly showing that the public convenience and necessity would be materially promoted by the issuance of a certificate to it. Florane v. Louisiana Public Service Commission, 433 So.2d 120 (La.1983); Dreher Contracting & Equipment Rental, Inc. v. Louisiana Public Service Commission, 396 So.2d 1265 (La.1981); Truck Service, Inc. v. Louisiana Public Service Commission, 263 La. 588, 268 So.2d 666 (1972); Hearin Tank Lines, Inc. v. Louisiana Public Service Commission, 247 La. 826, 174 So.2d 644 (1965). Upon judicial review of the commission’s determination of whether the applicant has made such a showing, a court will not upset the agency’s determination unless it is based on an error of law or is one which the commission could not have found reasonably from the evidence. Florane v. Louisiana Public Service Commission, supra; Dreher Contracting & Equipment Rental, Inc. v. Louisiana Public Service Commission, supra; Hearin Tank Lines, Inc. v. Louisiana Public Service Commission, supra.

Appellee contends that the district bench and the bar practicing before the commission have interpreted previous opinions of this court as establishing a “some evidence” or “no evidence” rule to the effect that the commission’s determination of whether there has been a clear showing of material promotion of public convenience and necessity will not be reversed if there is of record any evidence which tends to support its decision. If so, these interpretations were in error. This court has often pointed out that a commission determination cannot be set aside for lack of evidence if there is sufficient evidence in the record from which a reasonable person could have made that finding. Dreher v. Louisiana Public Service Commission, supra; Truck Service, Inc. v. Louisiana Public Service Commission, supra; Hearin v. Louisiana Public Service Commission, supra. But it was never this court’s intention to indicate that a court will uphold a commission finding if there is insufficient evidence to provide a reasonable basis for the agency’s decision.

In our opinion, the district court applied the correct legal precepts and properly upheld the commission’s determination. We are unable to say that the commission erred in finding that, by the evidence before it, it was clearly shown that the public convenience and necessity would be materially promoted by the issuance of the certificate to MDS. The following evidence before the commission supplies a reasonable factual basis for the commission’s finding:

1.At the time of the commission hearing there were two chief shippers of fly ash in Louisiana: Bayou Ash which had a contract to remove and market the ash produced at Cajun Electric Power Cooperative, Inc., Big Cajun No. 2 Plant in New Roads; and, Ash Management Systems, Inc., which had a contract to remove and market the ash produced at the newly opened Gulf States Utilities’ Nelson Coal Plant in West-lake near Lake Charles.

2. A representative of Bayou Ash testified that Big Cajun No. 2’s units 1 and 2 should produce 36 truckloads of fly ash per day, although just prior to the hearing operational difficulties prevented maximum output. A third unit was planned which could be in operation by 1983. The storage silo which serves units 1 and 2 can be filled in two days of coal burning. However, it is not safe to fill the silo more than half full. Furthermore, failure to remove the ash from the silo promptly can result in plug-gages and safety hazards. In the event long haul trucks are not available as needed, the ash must be removed and dumped elsewhere. Within one week shortly before the hearing, three of M & G’s trucks were between one and two hours late in arriving for pickups at Bayou Ash. Such delays caused Bayou Ash to incur added expenses for overtime, resulting in inconvenience to its customers.

According to this witness, fly ash has a wide range of potential users, at least some of which supply products critical to public convenience and necessity: chemical waste management, patching material for roads and streets, soil stabilization, cement and masonry additive.

3. A representative of Ash Management testified that the Nelson Coal Plant was expected to produce 50,000 tons of fly ash in its first year of operation and double that in later years. This amounts to 2000 truckloads annually or 40 weekly in subsequent years. Based on Ash Management’s experience in marketing fly ash in Texas, its representative testified that four carriers is a desirable number for handling this volume. MDS has a terminal facility within six miles of the Nelson Coal Plant. M & G has no terminal facilities in the Westlake-Lake Charles area and must dispatch its trucks from New Orleans or Baton Rouge. The next closest fly ash carrier’s terminal is located 30 to 40 miles from the Nelson Coal Plant in Orange, Texas.

4. To demonstrate MDS’s capabilities and resources, its witness testified that the company terminals were located in New Orleans, Burnside, LaPlace and Westlake; 111 pieces of equipment including 49 tractors, 58 tankers and four flat trucks were operational. Its current certificate encompassed authority to transport cement, lime, drilling mud, mineral filler, liquid sugar, molasses and vegetable oils intrastate.

The totality of the shippers’ representatives’ testimony, as well as reasonable factual inferences the commission "could draw from the evidence before it, supports a reasonable finding that the public convenience and necessity would be materially promoted by issuance of the certificate. Accordingly, the judgment of the district court upholding the commission’s ruling is affirmed.

AFFIRMED.


author: PER CURIAM.

text:
    M & G FLEET SERVICE, INC. v. LOUISIANA PUBLIC SERVICE COMMISSION.
    No. 83-CA-1627.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
    Rehearing Denied Jan. 6, 1984.
    V. James Stewart, Baton Rouge, for plaintiff-appellant.
    Marshall B. Brinkley, Baton Rouge, Louisiana Public Service Com’n, for defendant-appellee.

      Edward J. DeMartini, Kenner, for inter-venor-appellee.
   PER CURIAM.

Intervention of Ergon Trucking Company

This is an appeal by an intervenor-oppo-nent from the district court’s judgment affirming the public service commission issuance of an enlarged certificate of public convenience and necessity to an applicant motor carrier.

The applicant, Ergon Trucking, Inc., was previously authorized to operate as a contract motor carrier and applied to the commission for a broader certificate as a common carrier of crude oil, condensates and fuel oils; cement, fly ash and mineral filler and materials and supplies used in, or in connection with, the discovery, development or production of natural gas and petroleum and their products and by-products. M & G Fleet Service, Inc., appellant in this court, and several other common carriers of various commodities in question protested and argued that the authorization requested by Ergon would conflict with their existing certificates to haul cement, fly ash, materials and supplies used in, or in connection with the discovery, development or production of natural gas and petroleum and their products and by-products and mineral filler. Despite their protests, the commission issued an amended certificate to Ergon authorizing it to operate as a common carrier of all commodities applied for.

The applicant has the burden of clearly showing that public convenience and necessity would be materially promoted by the issuance of a certificate to it. La.R.S. 45:164; M & G Fleet, Inc. v. Louisiana Public Service Commission, 443 So.2d 574 (La.1983) (Intervention of Material Delivery Service, Inc.). A court will not upset the agency’s determination of such a showing unless it is based on an error of law or is one which the commission could not have found reasonably from the evidence. Id.

In the present case the applicant carrier presented one shipper witness who supported its application to ship fly ash. This witness did not testify to any facts which demonstrated that a public need or convenience would be promoted by applicant’s service, cited no instance of service failure by existing carriers and conceded that other existing certificated carriers were available to supplement his needs when the carriers he customarily used were unavailable.

Three witnesses testified in favor of granting Ergon’s request to haul cement. Two of these witnesses admitted that they had experienced no service problems in dealing with existing certificated carriers. The third witness claimed that he had lost business once because Ergon was unable to service him. However, on cross-examination he said that he had not contacted other carriers holding certificates. The witnesses’ testimony does not reasonably suggest that public convenience and necessity would be materially promoted by authorizing Ergon to transport cement as a common carrier.

Similarly, since Ergon failed to present any evidence relating to its application to ship mineral filler we find no reasonable support for the commission’s issuance of Ergon’s certificate to haul that commodity.

While Ergon’s application to carry commodities in connection with discovery, development or production of natural gas and petroleum was supported by numerous witnesses, none of them testified to any facts which showed that the public necessity and convenience would be promoted by authorizing Ergon to transport the products in question. These witnesses were Ergon’s present or past contract customers, some of whom testified that Ergon should be given a common carrier certificate to prevent it from going out of business in the state. They did not testify that existing common carrier service for the products in question is inadequate or that the convenience of such service would be enhanced by granting Ergon’s certificate. The consensus of the testimony indicated that the sole basis of their support stemmed from their desire to have Ergon available if their need for carrier service should increase in the future. Even so, none of them testified that they could not conveniently obtain necessary carrier service from other common or contract carriers.

In our opinion, this evidence does not supply a reasonable basis for a finding that issuance of the certificate would materially promote public convenience and necessity. The consensus of the witnesses testimony expressed a personal preference for Ergon as a contract carrier, but it fails to demonstrate any way in which the public convenience and necessity would be enhanced by adding Ergon as a common carrier because other existing carriers are already providing service that is adequate.

Accordingly, the judgment of the district court and the commission’s ruling are reversed as to all commodities in question.

REVERSED.


text:
    M & G FLEET SERVICE, INC. v. LOUISIANA PUBLIC SERVICE COMMISSION.
    No. 83-C-1125.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
    Rehearing Denied Jan. 27, 1984.
    V. James Stewart, Baton Rouge, for plaintiff-appellee.
    Janet Boles Chambers, Monroe, Boles & Mounger, for intervenor-appellant.
    Marshall B. Brinkley, Baton Rouge, for defendant-appellee.
   PER CURIAM.

Intervention of Haggard Transportation, Inc.

This is an appeal by an applicant motor carrier from a district court reversal of a public service commission ruling granting the carrier an additional certificate of public convenience and necessity to haul lime, fly ash and mineral filler over the opposition of other carriers with similar existing certificates. We affirm. The applicant has the burden of clearly showing that the public convenience and necessity ' would be materially promoted by the issuance of a certificate to it. La.R.S. 45:164; M & G Fleet, Inc. v. Louisiana Public Service Commission, 443 So.2d 574 (La.1983) (Intervention of Material Delivery Service, Inc.) A court will not upset the commission’s determination of such a showing unless it is based on an error of law or is one which the commission could not have found reasonably from the evidence. Id. In the present case, there is no reasonable basis in the record for the commission’s finding that the applicant carrier had shown that the public convenience and necessity would be promoted by the issuance of a certificate to it. Although the carrier presented two shipper witnesses in support of its application, these witnesses failed to testify to any facts upon which the commission reasonably could base its determination. One witness expressed a desire to have the applicant available as a carrier of lime; another supported the application to haul fly ash but only stated in eoncluso-ry fashion that the addition of a certificated carrier would improve carrier service. One witness was unaware of a number of carriers already authorized to transport the products in question; the other witness had used only one carrier when he had access to a list of several certificated transporters. Neither witness cited a single instance in which the service provided by the existing certificated carriers had been inadequate or offered any reason why service would be improved by the issuance of a new certificate.

AFFIRMED.


text:
    STATE of Louisiana ex rel. Robert MYLES v. Ross MAGGIO Jr., Warden Louisiana State Penitentiary.
    No. 83-KH-2275.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Robert Myles, applying for writ of certiorari and review. Criminal District Court, Parish Of Orleans. No. 265-242 Section “D”.

Denied.


text:
    STATE of Louisiana v. Louis HALL.
    No. 83-KH-1992.
    Supreme Court of Louisiana.
    Nov. 18, 1983.
   In re Louis Hall, applying for rehearing on denied writ of October 28, 1983, 441 So.2d 747, Criminal District Court. No. 287-370. Parish of Orleans.

Denied.


text:
    HIBERNIA NATIONAL BANK IN NEW ORLEANS v. Norman L. JOHNSON and Gayfryd Dorothea McNabb Johnson.
    No. 83-CC-2332.
    Supreme Court of Louisiana.
    Nov. 22, 1983.
   In re Norman L. Johnson, applying for certiorari, or review. Court of Appeal, Fourth Circuit. Civil District Court Parish of Orleans. No. 83-8908.

Denied.


text:
    Mr. & Mrs. Robert Leland REDFEARN, Mr. & Mrs. W. Scott Gibson and Harry T. Howard, III v. Clara Binet, Wife of/and Jacques Jules CREPPEL D/B/A Columns Hotel.
    No. 83-C-2188.
    Supreme Court of Louisiana.
    Nov. 28, 1983.
   In re Clara Binet, Wife of/and Jacques Jules Creppel d/b/a Columns Hotel, applying for writ of certiorari and/or review and stay order. Fourth Circuit Court of Appeal. Civil District Court, Parish of Orleans. No. 81-13503 “H”.

Granted.


text:
    William E. WELLS, et ux. v. HARTFORD ACCIDENT & INDEMNITY COMPANY, et al.
    No. 83-C-2220.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re William E. Wells and Barbara Wells, applying for certiorari, or writ of review. Court of Appeal, Third Circuit. Ninth Judicial District Court, Parish of Rapides. No. 122411.

Denied.

DENNIS and WATSON, JJ., would grant the writ.


text:
    Helen Mayberry Harrison, Wife of Lindell HARRISON v. GULF SOUTH BEVERAGES, INC. and Pepsi Cola, Inc. North Rivers Insurance Company.
    No. 83-C-2236.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Helen Mayberry Harrison, applying for writ of certiorari or review. Court of Appeal, Fourth Circuit. No. CA 0715; Parish of Orleans, Civil District Court, No. 81-17957.

Denied.


text:
    STATE of Louisiana v. Joseph L. GRIFFIN.
    No. 83-K-2240.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Joseph L. Griffin, applying for writ of certiorari. Court of Appeal, Second Circuit. Parish of Winn, Eighth Judicial District Court. No. 26674.

Denied.


text:
    STATE of Louisiana v. James E. COPELAND.
    No. 83-KK-2253.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re James E. Copeland, applying for writs of certiorari, prohibition and mandamus. Twenty-First Judicial District Court. No. 44713. Parish of Tangipahoa, First Circuit Court of Appeal. No. 83-KW-1161.

Denied.


text:
    Joel Landis CROWSON and Anna Beth Crowson v. RESERVE LIFE INSURANCE COMPANY.
    No. 83-C-2266.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Joel Landis Crowson and Anna Beth Crowson, applying for writ of review. Second Circuit Court of Appeal. Second Judicial District Court, Parish of Jackson. No. 18870.

Denied.


text:
    Carolyn WELLS v. DEPARTMENT OF CORRECTIONS LOUISIANA STATE PENITENTIARY. Frances FOSTER v. DEPARTMENT OF CORRECTIONS LOUISIANA STATE PENITENTIARY. Shirley THOMPSON v. DEPARTMENT OF CORRECTIONS LOUISIANA STATE PENITENTIARY.
    No. 83-C-2320.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Department of Corrections, applying for writ of certiorari or review. First Circuit Court of Appeal. State Civil Service Commission. Nos. 2136, 2145, 2146, and 2202.

Denied.

BLANCHE, J., would grant the writ.


text:
    STATE of Louisiana v. Earl WILLIAMS.
    No. 83-KH-2457.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Earl Williams, applying for writ of habeas corpus. Fourth Judicial District Court, Parish of Ouachita. No. 41228.

Denied. Moot.


text:
    STATE of Louisiana v. Willie CULLIVER.
    No. 83-KH-2470.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Willie Culliver, applying for remedial writ. Criminal District Court, Parish of Orleans. Section G, No. 296-089.

Granted and transferred to District Court for consideration and action.


text:
    Michael BATISTE v. H.E. WIESE & COMPANY.
    No. 83-C-2311.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Michael Batiste, applying for writ of certiorari or review. Court of Appeal, Fifth Circuit. Twenty-ninth Judicial District Court, Parish of St. John the Baptist. No. 12539, Div. A.

Denied.

DIXON, C.J., and CALOGERO, J., would grant the writ.


text:
    Werlin ROBINSON v. Willie PHILLIPS.
    No. 83-C-2309.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Werlin Robinson, applying for writ of certiorari. First Circuit Court of Appeal. Twenty-third Judicial District Court, Parish of Assumption. No. 14-044.

Denied.


text:
    GAS UTILITY DISTRICT NO. 1 OF EAST BATON ROUGE PARISH v. Joel T. HOUK, et al. MUTUAL FIRE, MARINE AND INLAND INSURANCE COMPANY v. Joel T. HOUK, et al. McNAIR TRANSPORT, INC. v. Joel T. HOUK, et al.
    No. 83-C-2314.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Department of Transportation and Development, Office of Highways, applying for certiorari, or writ of review. Court of Appeal, First Circuit. Nineteenth Judicial District Court, Parish of East Baton Rouge. Nos. 244506, 247459 and 248838.

Denied.

MARCUS, J., would grant the writ.


text:
    STATE of Louisiana v. Clyde POWELL.
    No. 83-K-2317.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re State of Louisiana, applying for writs of review. Third Circuit Court of Appeal. Thirtieth Judicial District Court, Parish of Vernon. No. 34772.

Denied.

DENNIS and LEMMON, JJ., would grant the writ.


text:
    Harriet Sipple, wife of/and G. Rogers SMITH v. Clyde BAHAM, d/b/a Clyde Baham Building Contractor.
    No. 83-C-2315.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Clyde Baham, d/b/a Clyde Baham Building Contractor, applying for writ of certiorari or review. Court of Appeal, First Circuit. Twenty-Second Judicial District Court, Parish of St. Tammany. No. 56315 “E”.

Denied.


text:
    STATE of Louisiana v. Ted Brian HONEYCUTT.
    No. 83-K-2318.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Ted Brian Honeycutt, applying for writ of certiorari. Third Circuit Court of Appeal. Fourteenth Judicial District Court, Parish of Calcasieu. No. 7400-81.

Denied.


text:
    Alice Bertha Vatter, wife of/and Errol V. ARENA v. K MART CORPORATION.
    No. 83-C-2325.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Alice Bertha Vatter, Wife of/and Errol V. Arena, applying for writ of certio-rari or review. First Circuit Court of Appeal. Twenty-second Judicial District Court, Parish of St. Tammany. No. 68164, Division E.

Denied.

DIXON, C.J., would grant the writ.


text:
    Freddie Lee WILSON v. L.C. JACOBS, et al.
    No. 83-C-2367.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Freddie Lee Wilson, applying for supervisory writs. Second Circuit Court of Appeal. Second Judicial District Court, Parish of Jackson. No. 18906.

Denied.


text:
    STATE of Louisiana v. Joseph D. SHAHEEN.
    No. 83-KK-2469.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for writ of certiorari and mandamus, and stay order. Criminal District Court, Parish of Orleans. No. 297-576. Court of Appeal, Fourth Circuit.

Denied.

BLANCHE, J., would grant the writ.


text:
    STATE of Louisiana v. Leroy WILLIAMS.
    No. 83-KK-2307.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Leroy Williams, applying for writ of certiorari, mandamus and prohibition. Criminal District Court. No. 287-298. Parish of Orleans, Fourth Circuit Court of Appeal. No. K 1292.

Denied.

CALOGERO and DENNIS, JJ., would grant the writ.


text:
    STATE of Louisiana v. Leroy WILLIAMS.
    No. 83-KH-2268.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Leroy Williams, applying for writ of certiorari, and stay order. Criminal District Court, Parish of Orleans. No. 287-298, Section “H”.

Denied.

CALOGERO and DENNIS, JJ., would grant the writ.


text:
    STATE of Louisiana v. Weldon MOORE.
    No. 83-K-2270.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Weldon Moore, applying for writ of certiorari. Court of Appeal, Fourth Circuit. Parish of Orleans, Criminal District Court. No. 291-157.

Denied.


text:
    Freddie Lee WILSON v. L.C. JACOBS, et al.
    No. 83-C-2271.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Allen Pulpwood, Inc., and Southern Casualty Insurance Company, applying for certiorari, or writ of review. Court of Appeal, Second Circuit, 438 So.2d 1119. Second Judicial District Court, Parish of Jackson. No. 18906.

Denied.


text:
    SUCCESSION OF Spencer KEARL.
    No. 83-C-2273.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Cyril M. Kearl, applying for writs of certiorari or review. Fourth Circuit Court of Appeal. Civil District Court, Parish of Orleans. No. 81-17634.

Denied.

CALOGERO, J., would grant the writ.


text:
    Hiram ALLISON v. CITY OF BATON ROUGE and Parish of East Baton Rouge, et al.
    No. 83-C-2277.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Hiram Allison, applying for writ of certiorari or review. Court of Appeal, First Circuit. Parish of East Baton Rouge, Nineteenth Judicial District Court. No. 251681.

Denied.


text:
    SUCCESSION OF Arthur ACOSTA.
    No. 83-C-2278.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re John Martinez, applying for writ of certiorari. Court of Appeal, Fourth Circuit. Parish of St. Bernard, Thirty-Fourth Judicial District Court. No. 33-323.

Denied.

DENNIS and LEMMON, JJ., would grant the writ.


text:
    STATE of Louisiana v. Edward Dan GOODMAN.
    No. 83-K-2280.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Edward Dan Goodman, applying for writ of certiorari or review. Court of Appeal Third Circuit. Parish of Sabine, Eleventh Judicial District Court. No. 30811.

Denied.


text:
    Brenda LACOUR v. Harold THEARD.
    No. 83-C-2282.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Brenda Lacour, applying for writs of certiorari and review. Court of Appeal, Fourth Circuit. Parish of Orleans, Civil District Court. No. 82-9123.

Denied.


text:
    Saundra Saulberry CAMPBELL, on Behalf of Arcina D. CAMPBELL, Clarence Caldwell, Jr., and Matashia Alita Caldwell and Saundra Saulberry Campbell v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS.
    No. 83-C-2283.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Louisiana Department of Transportation and Development, applying for cer-tiorari, or writ of review. Court of Appeal, Fourth Circuit. Civil District Court, Parish of Orleans. No. 77-4426.

Denied.


text:
    STATE of Louisiana v. Nathan VENTRY.
    No. 83-K-2284.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Nathan Yentry, applying for writ of certiorari. Fourth Circuit Court of Appeal. Criminal District Court, Parish of Orleans. No. 291-333.

Denied.


text:
    LOUISIANA JOINT UNDERWRITERS OF AUDUBON INSURANCE COMPANY v. Willie GANT, d/b/a Peck’s Steak House, and Peck’s Steak House, Inc. LOUISIANA JOINT UNDERWRITERS OF AUDUBON INSURANCE COMPANY v. Willie GANT, d/b/a Peck’s Steak House, and Peck’s Steak House, Inc. Ernestine ROUX v. Willie GANT and Pearl Jackson Gant. TRAVELERS INSURANCE CO., Robert A. Vaucresson and Maurice A. Fortin v. Willie GANT d/b/a Peck’s Steak House. Jake P. SCHIELE, Jr. v. Willie GANT, d/b/a Peck’s Steak House, and Peck’s Steak House, Inc. ESTATE OF Percy McGEE, Sr., and Helen McGee, Individually v. Willie GANT, d/b/a Peck’s Steak House, and Peck’s Steak House, Inc.
    No. 83-C-2285.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Ernestine Roux, Jake P. Schiele, Jr., and the Estate of Percy McGee, Sr., applying for certiorari, or writ of review. Court of Appeal, Fourth Circuit. Civil District Court, Parish of Orleans. Nos. 77-10299, 77-12186, 77-14937, 78-04256, 78-04286 and 78-04288 (Consolidated Cases).

Denied.

CALOGERO, J., would grant the writ.


text:
    LOUISIANA NATIONAL BANK OF BATON ROUGE v. Lawrence F. O’BRIEN, Jr.
    No. 83-C-2292.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Louisiana National Bank of Baton Rouge, applying for writ of certiorari or review. First Circuit Court of Appeal. Parish of East Baton Rouge, Nineteenth Judicial District Court. No. 229397.

Denied.


text:
    Helen St. Pierre EYMARD v. Emmett A. EYMARD.
    No. 83-C-2293.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Helen St. Pierre Eymard Hicks, applying for writ of certiorari. Court of Appeal, First Circuit. Parish of Lafourche, Seventeenth Judicial District Court. No. 38968.

Denied.

DIXON, C.J., and CALOGERO, J., would grant the writ.


text:
    Arthur D. POOLE v. OCEAN DRILLING AND EXPLORATION COMPANY, INC., et al.
    No. 83-C-2295.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Lewis Crane Service, Inc., applying for certiorari, or writ of review. Court of Appeal, First Circuit. Sixteenth Judicial District Court, Parish of St. Mary. No. 49465.

Denied.


text:
    STATE of Louisiana v. Frederick WILLIAMS.
    No. 83-K-2305.
    Supreme Court of Louisiana.
    Dec. 9, 1983.
   In re Frederick Williams, applying for writ of certiorari. Third Circuit Court of Appeal. Fourteenth Judicial District Court, Parish of Calcasieu. No. 4138-81.

Denied.


text:
    STATE of Louisiana v. Lance BARTON.
    No. 83-KD-2511.
    Supreme Court of Louisiana.
    Dec. 15, 1983.
   In re Lance Barton, applying for supervisory writs. Ninth Judicial District Court, Parish of Rapides. No. 208272.

Granted. Bail reduced to $75,000.

WATSON, J., would deny the application.


text:
    Carlyle Phillip WHITTINGTON, Individually and on Behalf of the Minor, Michael Shane Collum v. SOWELA TECHNICAL INSTITUTE, et al.
    No. 83-C-2333.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Sowela Technical Institute, et al., applying for writ of review and/or certiora-ri. Third Circuit Court of Appeal. Fourteenth Judicial District Court, Parish of Calcasieu. No. 79-5266.

Denied.


text:
    Ramon A. AIZPURUA, et ux. v. CRANE POOL COMPANY, INC., et al.
    No. 83-C-2260.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Ramon A. Aizpurua and Wanda B. Aizpurua, applying for certiorari, or writ of reivew. Court of Appeal, First Circuit. Nineteenth Judicial District Court, Parish of East Baton Rouge. No. 246955.

Granted.


text:
    STATE of Louisiana, ex rel. Charles HEBERT v. Hon. Walter C. PETERS, Judge, 31st Judicial District Court, Parish of Jefferson Davis, State of Louisiana, Jennings, Louisiana.
    No. 83-KH-0469.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Charles Hebert, applying for writ of certiorari and review. Parish of Jefferson Davis. Nos. CR-3-66 and CR-168-66.

Denied.

CALOGERO, J., would grant the writ.


text:
    Charles HANSON v. LOUISIANA STATE RACING COMMISSION.
    No. 83-C-2174.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Charles Hanson, applying for writs of certiorari or review. Fourth Circuit Court of Appeal. Civil District Court, Parish of Orleans. No. 82-11179.

Denied.

CALOGERO, J., would grant the writ.


text:
    Robert D. WASSON v. Varel Lee WASSON.
    No. 83-C-2304.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Robert D. Wasson, applying for writ of certiorari or review. First Circuit Court of Appeal. Twenty-first Judicial District Court, Parish of Livingston. No. 34011.

Denied. The result is correct.

CALOGERO, MARCUS and BLANCHE, JJ., would grant the writ.


text:
    James J. BAILEY, III v. Susan Bailey JONES.
    No. 83-C-2331.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   Case below, 439 So.2d 475.

In re Susan Bailey Jones, applying for writ of certiorari, or review. First Circuit Court of Appeal. Nineteenth Judicial District Court, Parish of East Baton Rouge. No. 239586, Division “J”.

Denied.


text:
    Carlyle Phillip WHITTINGTON, Individually and on Behalf of the Minor, Michael Shane Collum v. SOWELA TECHNICAL INSTITUTE, et al.
    No. 83-C-2342.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Sowela Technical Institute, et ah, applying for writ of review and/or certiora-ri. Third Circuit Court of Appeal. Fourteenth Judicial District Court, Parish of Calcasieu. No. 79-5266.

Denied.

LEMMON, J., would grant on admissibility of evidence of remarriage.


text:
    Sam PERKINS and Kenneth Meyers v. B & W CONTRACTORS, INC.
    No. 83-C-2344.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Sam Perkins and Kenneth Meyers, applying for writ of certiorari, or writ of review. Court of Appeal, First Circuit. Parish of East Feliciana, Twentieth Judicial District. No. A-17349.

Denied.


text:
    Faye SMILEY v. CITY OF WINNFIELD POLICE DEPARTMENT.
    No. 83-C-2352.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Faye Smiley, applying for supervisory writs. Second Circuit Court of Appeal. Parish of Winn, Eighth Judicial District Court. No. 24091.

Denied.


text:
    SUCCESSION OF Lem IRVING, Sr., and Susie McKnight Irving.
    No. 83-C-2103.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Roscoe Irving, applying for reconsideration of denied writ of November 18, 1983, 442 So.2d 452. First Circuit Court of Appeal. Twenty-first Judicial District Court, Parish of Tangipahoa. No. 7897.

Reconsideration denied. The judgment is definitive. La.C.C.P. 2166.


text:
    Wayne BYRD v. Charles C. FOTI, Jr.
    No. 83-KH-2156.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Honorable Rudolph F. Becker, III applying for a reconsideration of writ granted with order on November 4, 1983, 440 So.2d 746. Criminal District Court, Parish of Orleans. No. 290-897.

Reconsideration denied. However, clarification of this Court’s action of November 4, 1983 is in order. The petitioner’s writ was granted and the case was remanded to the trial court (Section E, Criminal District Court for the Parish of Orleans) to conduct an evidentiary hearing. While it was not altogether clear whether petitioner was complaining of his sentence for his 1981 conviction or his 1982 conviction (as evidenced by the Court of Appeal’s action transferring the matter to this Court under the belief that it concerned the 1981 conviction and sentence), we ultimately concluded that petitioner’s complaint was directed toward his 1982 guilty plea conviction and not the 1981 conviction. Petitioner’s attack is not on his 1981 conviction and eventual probation revocation. Rather, petitioner is complaining that his 1982 guilty plea to two counts of forgery (which was used as the basis for the probation revocation on the 1981 conviction) was induced by his attorney’s assurances (and those assurances did not come to pass) that he would only have to serve a total of nine months in parish prison, including the time made executory on the 1981 conviction after his probation would be revoked. With relator’s impending release date of February 13, 1984, we deemed it advisable, under our supervisory jurisdiction, to act on his writ application, notwithstanding that it was an attack on a post July 1, 1982 conviction (and properly filed in the Court of Appeal) rather than delay action past the point where relief, if ultimately secured by relator, would have any favorable effect. Therefore, we acted on petitioner’s writ application, not because it dealt with the 1981 conviction and sentence, but because it was in the interest of justice to do so in this case. It should be noted, however, that, because of some inevitable delay, when petitioner is brought before the court for the evidentiary hearing on the 1982 guilty pleas, at a time when he has almost completed his concurrent sentences for all three offenses (the two six month sentences imposed for the 1982 forgery convictions and the sentence made executory when his probation under the 1981 conviction was revoked) petitioner may choose not to pursue the matter further, since it could possibly result in his ending up in a more adverse position (with his guilty pleas revoked, his forgery charges in a pre-trial posture and the eighteen month sentence fully served, or almost so), than would otherwise be the case.


text:
    STATE of Louisiana v. Roger Claude MYERS.
    No. 83-KO-2357.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Roger Claude Myers, applying for certiorari, or writ of review. Court of Appeal, Third Circuit. Thirty-sixth Judicial District Court, Parish of Beauregard. No. CR-59-82.

Denied.


text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION & DEVELOPMENT v. Cody Cecil BEASLEY.
    No. 83-C-2379.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re State of Louisiana, Department of Transportation & Development, applying for writ of certiorari or review. Second Circuit Court of Appeal. Twenty-sixth Judicial District Court, Parish of Bossier. No. 53119.

Denied.

BLANCHE, J., would grant the writ.


text:
    FRANKS PETROLEUM, INC. v. Maxie K. MAYO, et al.
    No. 83-C-2380.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Robert Don Russell, applying for certiorari, or writ of review. Court of Appeal, Second Circuit. Fourth Judicial District Court, Ouachita Parish. No. 104918.

Denied.


text:
    Nora Lee CARTER v. P.K. SMITH CHEVROLET-OLDS INC., et al.
    No. 83-C-2381.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Nora Lee Carter, applying for writ of certiorari and review. Second Circuit Court of Appeal. Eighth Judicial District Court, Parish of Winn. No. 23590.

Denied.

DIXON, C.J., would grant the writ.


text:
    SUCCESSION OF Taylor JOHNSON and Clara Johnson Agee v. Clara Ann BOLTON & David Earl Bolton.
    No. 83-C-2382.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Clara Johnson Agee, applying for writs of certiorari and review. Court of Appeal, Second Circuit. Third Judicial District Court, Parish of Lincoln. No. 6144.

Denied.


text:
    STATE of Louisiana v. Booker T. WASHINGTON.
    No. 83-KH-2388.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Booker T. Washington, applying for remedial writs. Criminal District Court, Parish of Orleans.

Denied.


text:
    Malvin SAMPSON v. ADMINISTRATOR, LOUISIANA OFFICE OF EMPLOYMENT SECURITY and Lincoln Parish School Board.
    No. 83-C-2391.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Malvin Sampson, applying for writ of certiorari or review. Second Circuit Court of Appeal. Second Judicial District Court, Parish of Bienville. No. 26694.

Denied.

DENNIS and BLANCHE, JJ., would grant the writ.


text:
    Danny Ray VERNEUILLE v. Vannessa Seube Verneuille, Wife of Danny Ray VERNEUILLE and Danny Verneuille, Jr. a/k/a Christopher Michael Verneuille.
    No. 83-C-2396.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Danny Ray Verneuille, applying for writs of certiorari, mandamus, prohibition and review. Court of Appeal, Fourth Circuit. Parish of St. Bernard, Thirty-Fourth Judicial District Court. No. 38-518.

Denied.


text:
    Bertha M. GLADNEY, Individually and as Tutrix of Trellis M. Gladney v. Jerry C. CUTRER, Jr., et al.
    No. 83-C-2409.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Bertha M. Gladney, Individually and as Tutrix of Trellis M. Gladney, applying for certiorari or writ of review. Court of Appeal, Second Circuit. Twenty-sixth Judicial District Court, Parish of Bossier. No. 53590.

Denied.

DENNIS, J., would grant the writ.


text:
    Niven D. MORGAN v. Jo Ann FULLER, et al.
    No. 83-C-2413.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Niven D. Morgan, applying for writ of certiorari and/or review. Second Circuit Court of Appeal. Fourth Judicial District Court, Parish of Ouachita. No. 125870.

Denied.


text:
    Thomas A. BERRY, et al. v. CITY OF MONROE.
    No. 83-C-2415.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re City of Monroe, applying for writ of certiorari and/or review. Second Circuit Court of Appeal. Fourth Judicial District Court, Parish of Ouachita. No. 113-702. Denied.

DIXON, C.J., and MARCUS and DENNIS, JJ., would grant the writ.


text:
    Hazel Wall McCURLEY v. James Thomas WALL, Estelle Wall Morris, John Lee “Goober” Wall, Hampton “Hamp” Wall, and Benjamin Ray Wall, through his children and heirs at Law: James Robert Wall and Mrs. Bobbie Wall Graham. SUCCESSION OF Mary Jane Lee WALL, John Thomas (NIN) Wall, Robert Piney Wall, Lonzo Wall and Breed Wall.
    No. 83-C-2418.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re James Thomas Wall, et al., applying for writs of certiorari, prohibition and/or mandamus. First Circuit Court of Appeal. Twenty-First Judicial District Court, Parish of Tangipahoa. Nos. 51903 and 8234.

Denied.


text:
    J. Merlin THOMAS v. Urslia P. THOMAS.
    No. 83-C-2421.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re J. Merlin Thomas, applying for writ of certiorari. Second Circuit Court of Appeal. Fourth Judicial District Court, Parish of Morehouse. No. 81-135.

Denied.

MARCUS and LEMMON, JJ., would grant the writ.


text:
    George N. TAQUINO v. SEARS, ROEBUCK AND COMPANY.
    No. 83-C-2435.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Sears, Roebuck and Company, applying for writs of certiorari, or review. Court of Appeal, Fourth Circuit. Civil District Court, Parish of Orleans. No. 79-14521, Division “J”.

Denied.

MARCUS, J., would grant the writ.


text:
    STATE of Louisiana v. Robert Steve WILLIS.
    No. 83-KK-2445.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Robert Steve Willis, applying for remedial writs under supervisory jurisdiction. Third Circuit Court of Appeal, No. K83-355. Twenty-eighth Judicial District Court, Parish of LaSalle. Nos. 24269, 24904, 24905, 29906.

Denied.


text:
    STATE of Louisiana ex rel., Robert MYLES v. Hon. Edwin LOMBARD, Clerk of Court, Parish of Orleans.
    No. 83-KH-2461.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Robert Myles, applying for writ of mandamus. Criminal District Court, Parish of Orleans. No. 265-242.

Denied. Relator has been previously furnished with a copy of his Boykin Transcript and makes no showing he is entitled to other relief sought.


text:
    Gene KING v. WILSON BROTHERS DRILLING COMPANY, INC.
    No. 83-C-2463.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Gene King, applying for certiorari, or writ of review. Court of Appeal, Third, Circuit. Parish of St. Landry, Twenty-seventh Judicial District. No. 84262-2.

Denied.


text:
    PROSPERITY PARK, et al. v. Albert Jefferson BRITTON, et al.
    No. 83-C-2464.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Prosperity Park, et al., applying for writ of certiorari. Second Circuit Court of Appeal. No. 15,701-CA. Fourth Judicial District Court, Parish of Ouachita. No. 82-4456.

Denied.

MARCUS, J., would grant the writ.


text:
    Niven D. MORGAN v. Jo Ann FULLER, et al.
    No. 83-C-2481.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Floyd Britton, applying for writ of certiorari and/or review. Second Circuit Court of Appeal. Fourth Judicial District Court, Parish of Ouachita. No. 125870.

Denied.


text:
    Niven D. MORGAN v. Jo Ann FULLER, et al.
    No. 83-C-2506.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Jo Ann Fuller, applying for writ of certiorari or review. Court of Appeal, Second Circuit. Fourth Judicial District Court, Parish of Ouachita. No. 125870.

Denied.


text:
    STATE of Louisiana v. Charles HENRY.
    No. 83-K-2272.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Charles Henry, applying for certio-rari, or writ of review. Court of Appeal, Fifth Circuit. Twenty-fourth Judicial District Court, Parish of Jefferson. No. 81-4125.

Granted.


text:
    STATE of Louisiana v. Michael OWEN and Gregory Cormier.
    No. 83-KK-2375.
    Supreme Court of Louisiana.
    Dec. 16, 1983.
   In re Michael Owen and Gregory Cormier, applying for writ of certiorari, prohibition and mandamus. Third Circuit Court of Appeal. Fourteenth Judicial District Court, Parish of Calcasieu. No. 14758-82.

Granted.


text:
    PLANTATION ON THE GREEN, INC., v. Stephen B. GAMBLE, et al.
    No. 83-C-2473.
    Supreme Court of Louisiana.
    Dec. 20, 1983.
   In re Plantation on the Green, Inc., applying for writ of certiorari and/or review. Fourth Circuit Court of Appeal. Civil District Court, Parish of Orleans. No. 82-18762.

Denied.


text:
    STATE of Louisiana v. Avery C. “Pete” MOORE.
    No. 83-KP-2587.
    Supreme Court of Louisiana.
    Dec. 22, 1983.
   In re Avery C. “Pete” Moore, applying for post conviction relief habeas corpus, evidentiary hearing and stay of execution. Ninth Judicial District Court, Parish of Rapides. Nos. 200-647-A and 200-648-A.

Denied.


text:
    STATE of Louisiana ex rel. Billy Wayne SHIRLEY v. 26TH JUDICIAL COURT OF BOSSIER PARISH, Judge Graydon K. Kitchens, Jr., Presiding, Ford Stinson, Indigent Defender, et al.
    No. 83-KH-2599.
    Supreme Court of Louisiana.
    Dec. 27, 1983.
   In re Billy Wayne Shirley, applying for remedial writ. Twenty-sixth Judicial District Court, Parish of Bossier.

Granted for sole purpose of transferring to Court of Appeal, 2nd Circuit for consideration.


text:
    STATE of Louisiana v. Shirley MAILLIAN.
    No. 83-KK-2655.
    Supreme Court of Louisiana.
    Dec. 30, 1983.
   In re Shirley Maillian, applying for writ of review. Nineteenth Judicial District Court, Parish of East Baton Rouge. No. 9-83-007. First Circuit Court of Appeal. No. KW-83-1444.

Denied.