author: DENNIS, Justice.

text:
    SAVE OURSELVES, INC., et al. v. The LOUISIANA ENVIRONMENTAL CONTROL COMMISSION and The Louisiana Department of Natural Resources.
    No. 83-C-1480.
    Supreme Court of Louisiana.
    May 14, 1984.

      Stephen M. Irving, Baton Rouge, Atty. at Law, for plaintiff-applicant.
    William J. Guste, Jr., Atty. Gen., Ian Douglas Lindsey, Asst. Atty. Gen., R. Gordon Kean, Jr., Charles S. McCowan, Jr., Sanders, Downing, Kean & Cazedessus, Baton Rouge, for defendant-respondent.
   DENNIS, Justice.

We granted certiorari to review the lower courts’ approval of permits issued by the Environmental Control Commission to IT Corporation for a major hazardous waste disposal facility on the Mississippi River. 430 So.2d 1114 (La.App.1983). This case raises issues intersecting the State Constitution’s Natural Resource Article and the Louisiana Hazardous Waste Control Law; which is part of the Environmental Affairs Act of 1979. From the record presented for our review we cannot determine whether the agency followed correct interpretations of its constitutional and statutory duties, or whether its determinations are arbitrary, capricious or unreasonable. The judgments below are therefore vacated and the case is remanded to the court of appeal with directions to remand to the Environmental Control Commission for further proceedings consistent with this opinion.

I. Constitutional Provisions

It is the well settled law of this country that a state holds title to land under navigable waters within its limits and that the title is held in trust for the people of the state that they may enjoy and use the waters free from obstruction or interference. Illinois Central R. Co. v. Illinois, 146 U.S. 387, 13 S.Ct. 110, 36 L.Ed. 1018 (1892). A public trust for the protection, conservation and replenishment of all natural resources of the state was recognized by art. VI § 1 of the 1921 Louisiana Constitution. The public trust doctrine was continued by the 1974 Louisiana Constitution, which specifically lists air and water as natural resources, commands protection, conservation and replenishment of them insofar as possible and consistent with health, safety and welfare of the people, and mandates the legislature to enact laws to implement this policy. La. Const, art. IX § 1; Cf. Id. art. IX § 3; Gulf Oil Corp. v. State Mineral Board, 317 So.2d 576, 580 (1975) (on rehearing).

II. The Environmental Statutes

In implementation of the public trust mandate, the legislature enacted the Louisiana Environmental Affairs Act. La.R.S. 30:1051 et seq. The stated purpose of the act is to maintain, protect and enhance a healthful and safe environment through regulation of water control, air quality, solid and hazardous waste, scenic rivers and streams, and radiation, as well as to provide for comprehensive policies on a statewide basis to unify, coordinate, and implement programs for these purposes and for the most advantageous use of the resources of the state. La.R.S. 30:1053.

The Act establishes the Environmental Control Commission (ECC), within the Department of Natural Resources, composed of seven cabinet level executive branch officials. La.R.S. 30:1062. The ECC is authorized to review on appeal the granting or denial by the secretary of the Department of Natural Resources of a permit for a hazardous waste facility, or to grant or deny a permit referred to it by the secretary. La.R.S. 30:1066. Any person aggrieved by a final decision or order of the commission may appeal to the proper court.

Part VII of the Act is designated the Hazardous Waste Control Law. La.R.S. 30:1131-1149.1. The indicated purpose of the law is to assure that necessary safeguards and practices are adhered to on a continuing basis in matters pertaining to the transportation, treatment, storage and disposal of hazardous wastes, and thereby to prevent “substantial abuse of the environment,” by establishing a framework for the regulation, monitoring, and control of generators, transportation, treatment, storage and disposal of hazardous waste. La. R.S. 30:1132. Hazardous waste is defined, in essence, as waste which significantly contributes to an increase in mortality or serious irreversible or incapacitating reversible illness, or as waste which poses a “substantial present or potential hazard to human health or the environment” when improperly treated, stored, transported, disposed of or managed. La.R.S. 30:1133(2). See also, Environmental Law, 39 La.L.Rev. 246, 251 (1978). The secretary, with the advice and cooperation of the Department of Health and Human Resources and the Department of Wildlife and Fisheries, is mandated to promulgate regulations for the identification and regulation of all hazardous waste treatment, storage and disposal facilities, “at a minimum” providing for: (1) Licensing or permit procedures for every facility; (2) Design, construction and operational standards which “will assure safe treatment, storage and disposal without substantial risk to the environment, water supplies, air and human health,” including the submission of plans, designs, engineering reports, geological, hydrological, and other relevant data incidental to the determination of the suitability of an existing or a proposed facility; (3) Adequate record keeping of hazardous wastes managed; (4) Financial responsibility of regulated persons; (5) A Hazardous Waste Protection Fund; (6) Classification of Facilities; (7) Any other regulation necessary to administer or comply with federal or state law. La.R.S. 30:1141. (emphasis added)

III. The Regulations

Pursuant to legislative mandate, the Department of Natural Resources promulgated a body of regulations, entitled the Hazardous Waste Management Plan. (HWMP) The two parts which concern us most in this case are those pertaining to the permit process and the standards for facilities which treat, store or dispose of hazardous waste.

Permits must be secured by operators of facilities which treat, store, and/or dispose of hazardous wastes. HWMP, Rule 5.2.1. Generally, no facility may be used to treat, store or dispose of hazardous waste without a permit for the specific activities, procedures, and classification of waste handled as outlined in its permit. HWMP, Rule 5.2.2 B. No new facilities, or major modifications in existing facilities may be constructed without a permit, HWMP, Rule 5.2.2 C, or placed into operation until the facility is complete and (1) certified by the operator and an engineer as complete in accordance with the permit; and (2) inspected by the Department following a request to make final inspection by the operator. HWMP, Rule 5.2.2 D. A standard permit is issued for the projected life of the site. HWMP, Rule 5.2.4.

Upon acceptance of an application for review, copies are distributed for review and optional comment to: the public, a bulletin, a local newspaper, La. Water Pollution Control Division, La. Air Control Division, Department of Health and Human Resources, Department of Wildlife and Fisheries, Department of Transportation and Development, and local governing bodies. HWMP, Rule 5.3.1 A(7).

The Department evaluation will consider: (a) Purpose and use of facilities; (b) Operation and monitoring plan; (c) Capacity; (d) Closure; (e) Site Suitability; (f) Financial responsibility; (g) Legal Considerations; (h) Special considerations on a site specific basis; (i) Local zoning ordinances. 5.3.1 A(8).

A public hearing will be held for a permit for a commercial site and for any other facility if the Secretary determines it necessary. 5.3.1 A(10)-(ll). Public hearings shall be conducted in accordance with the Administrative Procedure Act (La.R.S. 49:951 et seq.); HWMP, Rule 5.3.1 A(14).

The permit application must include professionally exact and complete studies of (1) the site layout and facility design, showing all improvements and excavation; (2) Site geology; (3) Site hydrology, including surface flow, water wells, drainage, flood hazards, and climate factors; (4) Environmental factors; (5) Geographical factors; (6) Operations plan; (7) Closure plans; (8) Financial responsibility. HWMP, Rule 5.3.-4.

All facilities which treat, store or dispose of hazardous waste must be constructed and operated to comply with the standards outlined in these regulations. HWMP, Rule 8.2.1. Site requirements include those pertaining to: geology — for example, soils of low permeability over an entire area or other means providing a barrier to penetration of surface spills or erosion; geography — no facility in an overflow zone subject to hurricane or flood waters without site protection measures; hydrology — natural or artificial hydrological isolation required. HWMP, Rules 8.3.1 through 8.3.4.

IV. Interrelationship of Constitutional, Statutory and Regulatory Requirements

In summary, the Natural Resources article of the 1974 Louisiana Constitution imposes a duty of environmental protection on all state agencies and officials, establishes a standard of environmental protection, and mandates the legislature to enact laws to implement fully this policy. La. Const, art. IX § 1. In 1978 the legislature directed the Secretary of the Department of Natural Resources to promulgate regulations to prevent the transportation, treatment or disposal of hazardous wastes except by permit issued upon a showing that the particular project or facility to be licensed does not involve a substantial risk to the environment.

The Environmental Affairs Act of 1979 expanded the 1978 statute and created the Environmental Control Commission and charged it with the responsibility of reviewing each application for a permit to determine whether the proposed project or facility complies with the constitutional and legislative standards. La.R.S. 30:1062, 1066.

The Constitutional standard requires environmental protection “insofar as possible and consistent with the health, safety, and welfare of the people.” La. Const, art. IX § 1. This is a rule of reasonableness which requires an agency or official, before granting approval of proposed action affecting the environment, to determine that adverse environmental impacts have been minimized or avoided as much as possible consistently with the public welfare. Thus, the constitution does not establish environmental protection as an exclusive goal, but requires a balancing process in which environmental costs and benefits must be given full and careful consideration along with economic, social and other factors.

The statutory standard requires environmental protection that “will assure safe treatment, storage and disposal [of hazardous wastes] without substantial risk to the environment * * * ” La.R.S. 30:1141. Although it is possible to construe this provision as setting forth a higher standard of protection, reading the statute as a whole, we conclude that the legislative aim merely was to implement and perpetuate the constitutional rule of reasonableness.

The constitutional-statutory scheme implies several other important principles. Since the ECC, in effect, has been designated to act as the primary public trustee of natural resources and the environment in protecting them from hazardous waste pollution, it necessarily follows that the agency must act with diligence, fairness and faithfulness to protect this particular public interest in the resources. See W. Rodgers, Environmental Law § 2.16 (1977); 1 V. Yannacone & B. Cohen, Environmental Rights and Remedies § 2.1 et seq. (1972). Consequently, the commission’s role as the representative of the public interest does not permit it to act as an umpire passively calling balls and strikes for adversaries appearing before it; the rights of the public must receive active and affirmative protection at the hands of the commission. Cf. Calvert Cliffs’ Coord. Committee v. U.S. Atomic Energy Com’n, 449 F.2d 1109, 1119 (D.C.Cir.1971); Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608, 620 (2d Cir.1965).

The environmental protection framework vests in the commission a latitude of discretion to determine the substantive results in each particular case. Environmental amenities will often be in conflict with economic and social considerations. To consider the former along with the latter must involve a balancing process. In some instances environmental costs may outweigh economic and social benefits and in other instances they may not. This leaves room for a responsible exercise of discretion and may not require particular substantive results in particular problematic instances. See Calvert Cliffs’ Coord. Committee v. U.S. Atomic Energy Com’n, supra.

However, the environmental protection scheme also contains very important procedural provisions designed to see that the discretion entrusted to the ECC is in fact exercised in each individual case. The agency is required to use a systematic, interdisciplinary approach to evaluation of each hazardous waste project or facility. La.R.S. 30:1141. In determining whether the proposed project fully minimizes adverse environmental effects, the commission necessarily must consider whether alternate projects, alternate sites, or mitiga-tive measures would offer more protection for the environment than the project as proposed without unduly curtailing non-environmental benefits. Cf. Calvert Cliffs’ Coord. Committee v. U.S. Atomic Energy Com’n, supra.

This hazardous waste regulatory framework was modelled in part on the Resource Conservation and Recovery Act (RCRA) of 1976, 42 U.S.C. 6901 et seq., and includes features similar to those of the National Environmental Policy Act (NEPA) of 1969, 42 U.S.C. 4321 et seq., and state environmental quality acts patterned after NEPA. See, e.g., The New York State Environmental Quality Review Act, 1975 N.Y.Laws ch. 612, codified at N.Y.Envtl. Conserv.Law art. 8 (McKinney Supp.1982-83); See, G. Levine, The New York State Environmental Quality Review Act of 1975: An Analysis of the Parties’ Responsibilities in the Review/Permit Request Process, 12 Fordham Urb.L.J. 1 (1983-84); W. Rodgers, Environmental Law § 6.3 at 635, § 7.1 at 697 (1977). Consequently, federal and state cases interpreting those statutes may provide guidance in applying the Louisiana statutes. However, it should be kept in mind that the Louisiana regulatory framework is also based on state constitutional provisions and the public trust concept. La. Const, art. IX § 1. For general commentary on the public trust doctrine, see Rodgers, supra, at 170; J. Sax, The Public Trust Doctrine in Natural Resource Law, 68 Mich.L.Rev. 471 (1970); Comment, The Mississippi Public Trust Doctrine, 46 Miss.L.J. 84 (1975); Cf. Comment, The Public Trust Doctrine As A Basis for Environmental Litigation in Louisiana, 27 Loy.L.Rev. 469 (1981).

V. Scope of Review

Before considering the merits of re-lators’ challenges to the permits, some mention must be made of the appropriate scope of review under the circumstances of this case. Generally, administrative agency adjudication is subject to judicial review under § 964 of the Louisiana Administrative Procedure Act (LAPA). In 1982, however, the Louisiana Environmental Affairs Act was amended to provide that the provisions of La.R.S. 49:962 and 964 shall not apply to decisions and orders of the commission. La.R.S. 30:1072 (1982 La. Acts No. 322). This change was part of a provision which now makes a final decision or order of the commission appealable to the Court of Appeal, instead of to the district court as provided by the LAPA. The change in the appellate forum for environmental cases appears to have been the only reason for making § 964 inapplicable to them. There is no substantial difference between the standards of review provided by § 964 and our own jurisprudential rules pertaining to judicial review. See, Central Louisiana Electric Co. Inc. v. Louisiana Public Service Com’n, 437 So.2d 278 (La. 1983); Florane v. Louisiana Public Service Com’n, 433 So.2d 120 (La.1983); Giallanza v. Louisiana Public Service Com’n, 412 So.2d 1369 (La.1982); South Central Bell Telephone Co. v. Louisiana Public Service Com’n, 352 So.2d 964 (La.1977) cert. den., 437 U.S. 911, 98 S.Ct. 3103, 57 L.Ed.2d 1142 (1978); Baton Rouge Water Works v. Louisiana Public Service Com’n, 342 So.2d 609 (La.1977) cert. den., 434 U.S. 827, 98 S.Ct. 105, 54 L.Ed.2d 86 (1977). Accordingly, since the use of the LAPA statutory scheme in environmental cases promotes clarity of analysis, we will continue to apply the standards of judicial review provided by § 964 by analogy.

Pursuant to § 964, a reviewing court may affirm the decision of the agency or remand the case for further proceedings; or it may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) in violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or (6) manifestly erroneous in view of the reliable, probative, and substantial evidence on the whole record. La.R.S. 49:964 G.

Thus, § 964 establishes a multifaceted review function committed to the court. In the present context, for example, that function is divisible into four categories — constitutional or statutory, procedural, substantive and factual.

In reviewing an agency decision, a court must first determine whether its actions were “in violation of constitutional or statutory provisions”, whether they were “in excess of statutory authority of the agency”, or whether they were “affected by other error of law.” La.R.S. 49:964 G(l)(2)(4). It must also consider whether the process used in arriving at the decisions afforded those affected their procedural due. La.R.S. 49:964 G(3). These first four grounds which justify judicial reversal or modification of an agency’s decision involve evaluations of agency actions in light of established legal standards and raise traditional legal issues. R. Force and L. Griffith, The Louisiana Administrative Procedure Act, 42 La.L.Rev. 1227 (1982).

Less clear-cut are the provisions in § 964 G(5) and (6) which require judicial consideration of whether the agency “abuse[d its] discretion” (or was “arbitrary” or “capricious” or guilty of “clearly unwarranted exercise of discretion”) in exercising the quasi-legislative authority delegated to it by the legislature or the constitution, or, on the other hand, whether its decision or finding was “manifestly erroneous in view of the reliable, probative, and substantial evidence on the whole record.”

Due concern both for the intention of the constitution and the statute, and, more generally, for the boundaries between the legislative and the judicial functions, demands that a reviewing court exercise certain aspects of its review function with more circumspection than is appropriate to others. In light of the structure and aims of the public trust doctrine and the environmental act, and the breadth of authority delegated to the ECC, the judicial review function encounters significant limitations in the substantive aspects where the given statutory standards are “arbitrary”, “capricious” or “abuse of discretion”. It is elementary that a court’s function is not to weigh de novo the available evidence and to substitute its judgment for that of the agency. Buras v. Board of Trustees of Police Pension, 367 So.2d 849 (La.1977) See, Weyerhaeuser Co. v. Costle, 590 F.2d 1011 (D.C.Cir.1978); K. Davis, Administrative Law (1982 Supp.) at 536 et seq.

On the other hand, the constitutional-statutory scheme, its history, intent and the nature of the duties it delegates to the agency and the judiciary, does not imply any derogation of the courts’ traditional primacy in interpreting constitutional and statutory provisions and enforcing procedural rectitude. Benson & Gold Chev. v. Louisiana Motor Vehicle Com’n, 403 So.2d 13 (La.1981); Weyerhaeuser Co. v. Costle, supra, at 1027.

The regulatory scheme provided by constitution and statute mandates a particular sort of careful and informed decision-making process and creates judicially enforceable duties. Reviewing courts should not reverse a substantive decision on its merits, unless it be shown that the actual balance of costs and benefits that was struck was arbitrary or clearly gave insufficient weight to environmental protection. However, if the decision was reached procedurally, without individualized consideration and balancing of environmental factors conducted fairly and in good faith, it is the courts’ responsibility to reverse. Cf. Calvert Cliffs’ Coord. Committee v. U.S. Atomic Energy Com’n, supra.

The manifest error test of § 964 G(6) is used in reviewing the facts as found by the agency, as opposed to the arbitrariness test used in reviewing conclusions and exercises of agency discretion. Where there are no factual issues the manifest error test is not used. Insurance Serv. Office v. Commissioner of Insurance, 381 So.2d 515 (La.App. 1st Cir.1979); R. Force & L. Griffith, supra, at 1285.

The first sentence of § 964 G authorizes a reviewing court to remand the case for further proceedings. This court has held that for the purposes of judicial review, and in order to assure that the agency has acted reasonably in accordance with law, in a contested case involving complex issues, the agency is required to make basic findings supported by evidence and ultimate findings which flow rationally from the basic findings; and it must articulate a rational connection between the facts found and the order issued. Central Louisiana Electric Co. v. Louisiana Public Service Commission, 437 So.2d 278 (La.1983), Giallanza v. Louisiana Public Service Commission, 412 So.2d 1369 (La.1982); Cf. Dunlop v. Bachowski, 421 U.S. 560, 95 S.Ct. 1851, 44 L.Ed.2d 377 (1975). This is particularly so in a case such as this where the agency performs as a public trustee and is duty bound to demonstrate that it has properly exercised the discretion vested in it by the constitution and the statute. Although we may uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned, such as when its findings, reasons and exercise of discretion are necessarily and clearly implied by the record, we will not supply a finding from the evidence or a reasoned basis for the commission’s action that the commission has not found or given. Giallanza v. LPSC, supra; Baton Rouge Waterworks v. Louisiana Public Service Com’n, 342 So.2d 609 (La.1977); Cf. Bowman Transportation Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974); 3 K. Davis, Administrative Law Treatise § 14.29 (1980) at 130.

VI. Lack of Reasons Preventing Review

We cannot determine from this record that the agency fully understood its function or properly exercised the discretion it has been given. The commission did not assign reasons for its decision, and its factual findings do not sufficiently illumine its decision-making process.

IT Corporation applied for and obtained permits to treat, store and dispose of hazardous wastes in connection with an $84 million facility it proposed to build on the Mississippi River near Burnside. The application was opposed before the agency and in the lower courts by Save Ourselves Inc. and other citizens, intervenor-objectors herein. Their challenge focused principally upon the applicant’s proposal to construct a landfill pit for the disposal of treated industrial hazardous waste over three aquifers near the Mississippi River, allegedly endangering the water supply of the population nearby and down river, including that of the City of New Orleans.

IT presented witnesses who testified that IT’s application complied with the HWMP standards for hazardous waste facilities. However, these witnesses did not testify that the adverse environmental effects of the facility had been avoided or minimized to the maximum extent possible. Moreover, none of the witnesses made a cost-benefit analysis of the environmental and non-environmental factors to demonstrate that issuance of the permit would be compatible with the constitutional and statutory standard of environmental protection.

From the present record we cannot tell whether the agency performed its duty to see that the environment would be protected to the fullest extent possible consistent with the health, safety and welfare of the people. The record is silent on whether the agency considered alternate projects, alternate sites or mitigation measures, or whether it made any attempt to quantify environmental costs and weigh them against social and economic benefits of the project. From our review it appears that the agency may have erred by assuming that its duty was to adhere only to its own regulations rather than to the constitutional and statutory mandates.

On the other hand, the intervenor-objector introduced evidence and pointed out weaknesses in the applicant’s case that were not rebutted by the applicant or explained away by the agency: The interve-nors demonstrated that the applicant failed to locate and seal many of the water wells on, and within 2000 feet of, the site, presenting a possibility of existence of other unsealed wells allowing access for contaminants to aquifers from hazardous waste spills or flooding. The intervenors’ expert witnesses testified that without full disclosure of the ingredients of the applicant’s stabilization process, it could not be determined whether the clay liner of the landfill pit would withstand chemical reaction and breakdown for the life expectancy of the hazardous condition; the agency refused to require disclosure and did not explain why this does not raise a prima facie case of a substantial risk to the environment. The evidence introduced by both sides indicates that there is a significant possibility that the hazardous waste site is not hydrologically isolated as required by the regulations, but there is no indication that the agency determined whether this problem posed a substantial risk to the environment.

Further, the evidence in the record points to the possible need for mitigation measures which appear to have been rejected without sufficient reason by the agency: The testimony of witnesses for both the applicant and the intervenors indicates the need for a slurry wall as a second line of protection in addition to the clay liner around the landfill pit. Yet, the agency did not impose this as a condition to the permit. The permit does not limit the number or restrict the location of landfill pits which IT may build on its 1000 acre tract. Because the evidence indicates varying degrees of environmental risk associated with different portions of the property related to the possibility of unsealed wells or other pathways to the sub-strata, the flood plain, and proximity to the river, it would appear that the agency’s failure to impose such restrictions may have been arbitrary, capricious and unreasonable.

Although the intervenor-objectors have not at this time persuaded us that the agency acted in violation of law, in excess of authority, or arbitrarily, capriciously or in abuse of discretion, we conclude that in order to obtain the judicial review to which they and the public are entitled, the commission must provide at least additional analysis and reasons for the agency decision. See Camp v. Pitts, 411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973); State of Maine v. Kreps, 563 F.2d 1043 (1st Cir.1977). There is sufficient indication of possible misunderstanding on the commission’s part of the constitutional and statutory requirements to render it improper for a court merely to rely on the presumptive correctness of the agency’s bottom line result. State of Maine v. Kreps, supra. Cf. Giallanza v. Louisiana Public Service Com’n, supra; Baton Rouge Water Works v. Louisiana Public Service Com’n, supra.

“The administrative process will best be vindicated by clarity in its exercise.” Phelps Dodge Corp. v. National Labor Relations Bd., 313 U.S. 177, 197, 61 S.Ct. 845, 853, 85 L.Ed. 1271, 1284. What was said in that case is equally applicable here: “We do not intend to enter the province that belongs to the board, nor do we do so. All we ask of the board is to give clear indication that it has exercised the discretion with which congress has empowered it. This is to affirm most emphatically the authority of the board.”

As Justice Frankfurter stated in Securities and Exchange Com’n v. Chenery Corp., 318 U.S. 80, 95, 63 S.Ct. 454, 462, 87 L.Ed. 626 (1943): “In finding that the Commission’s order cannot be sustained, we are not imposing any trammels on its powers. We are not enforcing formal requirements. We are not suggesting that the Commission must justify its exercise of administrative discretion in any particular manner or with artistic refinement. We are not sticking in the bark of words. We merely hold that an administrative order cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained.”

The cause should therefore be remanded to the court of appeal with directions to remand to the Commission for such further proceedings, not inconsistent with this opinion, as may be appropriate.

So ordered.

MARCUS, J., concurs.

      . La. Const, art. VI § 1 (1921): "The natural resources of the state shall be protected, conserved and replenished."

      . La. Const, art. IX § 1: "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."

      . A chronology of the passage of applicable statutes and regulations is helpful to an understanding of this case. In 1978 the legislature charged the Department of Natural Resources with promulgating regulations to govern disposal of hazardous wastes. 1978 La. Acts No. 334. The regulatory plan enacted became effective on August 1, 1979. The regulations specified, inter alia, that the secretary of the DNR was charged with accepting or rejecting hazardous waste permits. In the Spring of 1979, prior to the effective date of the DNR’s Hazardous Waste Management Plan (HWMP), the legislature passed the Environmental Affairs Act, La.R.S. 30:1051 et seq., 1979 La. Acts No. 449. The Act established a new regulator body within the DNR, the Environmental Control Commission, which was specifically charged with such duties as promulgating regulations, accepting and reviewing permit applications to operate hazardous waste facilities — duties formerly exercised by the secretary of the DNR. The Environmental Affairs Act became effective January 1, 1980. Since IT submitted its application to dispose of hazardous wastes on April 5, 1980 it was subject to the HWMP as promulgated by the DNR, but necessarily modified by the more recent legislation. In 1983 the legislature amended the Act and renamed it the Environmental Quality Act. While we are cognizant of these recent amendments, citations in this opinion refer to the statutes in effect during the adjudications concerning IT’s applications prior to the 1983 legislative actions.

      . 1983 La. Acts No. 97 added scenic rivers and streams to this list.

      . 1983 La. Acts No. 97 renamed this body the Department of Environmental Quality.

      . Prior to 1982 an Environmental Control Commission order was appealable to the district court. 1982 La. Acts No. 322 amended La.R.S. 49:962 and 964 making a final decision or order of the commission appealable to the court of appeal.

      . 1978 La. Acts No. 334.

      . 1978 La. Act No. 334 dictates that regulations must be consistent, inter alia, with Pub.L. No. 94-580.

      . Subsequently renumbered HWMP, Rule 5.2.6.

      . 1978 La. No. Acts 334 § 1104 (indicating that the regulations be consistent, inter alia, with the federal Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.).


source: Caselaw Access Project

author: WATSON, Justice. CALOGERO, J.,

license: Public Domain

text:
    SUCCESSION OF Henry LYONS.
    No. 83-C-2585.
    Supreme Court of Louisiana.
    May 14, 1984.

      Milton E. Brener, Garon, Brener & McNeely, New Orleans, for applicant.
    James H. Minge, New Orleans, for respondent.
   WATSON, Justice.

The issues are whether decedent Henry Lyons: (1) wrote an olographic will; and (2) had testamentary capacity.

The trial court annulled the will, concluding that it was written and signed by Henry Lyons but that Lyons lacked testamentary capacity on that day. The court of appeal reversed, holding that the opponents of the will failed to carry their burden of proving testamentary incapacity. 441 So.2d 229 (La.App. 4 Cir.1983). A writ was granted to consider the judgment of the court of appeal. 444 So.2d 1216 (La., 1984).

Henry Lyons, seventy-four years of age, was admitted to Touro Infirmary on December 11, 1981, suffering from terminal cancer. The will is dated December 14. Lyons died on February 5, 1982. He had never married; his only survivors were nieces and nephews. In 1976, he had executed a statutory will in favor of his brother, but the brother predeceased him. The olographic will, which is the subject of this suit, names Henry Augustus Lyons, a nephew, as universal legatee. Plaintiffs are other nieces and nephews of Henry Lyons.

AUTHORSHIP OF THE OLOGRAPHIC WILL

An olographic will is one entirely written, dated and signed by the hand of the testator. LSA-C.C. art. 1588. In a contest over probate of any will, the proponents must prove that the statutory requirements have been met. LSA-C.C.P. art. 2903. In the case of an olographic testament, two credible witnesses must testify that the will was entirely written, dated, and signed in the testator’s handwriting, and the court must be satisfied that the handwriting and signature are those of the testator. LSA-C.C.P. art. 2883.

The will reads as follows:

“December 14, 1981
“I, Henry Lyons, Sr a resident of 2822 Louisiana Avenue New Orleans Louisiana Avenue [sic] make this my last will and testament i [sic] Bequeth [sic] all of the property that i (sic) own at the time of my Death to my nephew Henry Lyons I appoint him executor of my estate with full and free Seizin and Dispensed from giving any Security this my will written, dated and signed By me at New Orleans Louisiana in my own handwriting on this 14th day of December 1981.
“Henry Lyons”
“One page only”

Although the writing on the will reflects an uneven hand, with lighter and darker areas, and a few of the letters are overwritten, this does not establish any legal infirmity.

Henry A. Lyons, the namesake nephew/universal legatee, and his sister, Velma Dennis, both testified that the will was in their uncle’s handwriting. Cy David Francis Courtney, an attorney and an expert in handwriting analysis, compared the will to three samples of the decedent’s handwriting and concluded that the will was written by Henry Lyons.

On the other hand, a niece and two nephews of the decedent testified that the will was not in the testator’s handwriting, while another niece stated that portions of the will, particularly the signature, did not appear to be Henry Lyons’ handwriting.

On cross-examination, one of the opponents of the will admitted he had authorized his attorney to hire a handwriting expert who examined a photograph of the will. This expert was not produced at trial. If a party to a lawsuit has a witness available whom he fails to call without explanation, it is presumed that the testimony of the witness would be adverse. Succession of Yeates, 213 La. 541, 35 So.2d 210 (1948); Succession of Riggio, 405 So.2d 513 (La.1981).

Considering the contradictory nature of the lay testimony, the affirmative opinion of the handwriting expert, and the failure of the will’s opponents to produce the missing expert, there was no error in finding that the will was proven to be written and signed by the decedent.

TESTAMENTARY CAPACITY

The capacity to make a will is tested at the time the will is made. LSA-C.C. art. 1472. To make a donation mortis causa, a person must be of sound mind. LSA-C.C. art. 1475. The question is whether the testator understood the nature of the testamentary act and appreciated its effects. Succession of Moody, 227 La. 609, 80 So.2d 93 (1955). The burden of proving lack of testamentary capacity is upon the party alleging it. Succession of Schmidt, 219 La. 675, 53 So.2d 834 (1951); Succession of Riggio, supra.

There is a presumption in favor of testamentary capacity. Succession of Mithoff, 168 La. 624, 122 So. 886 (1929); Succession of Lambert, 185 La. 416, 169 So. 453 (1936); and Succession of Riggio, supra. The proof required to overcome that presumption is disputed in the jurisprudence.

In Kingsbury v. Whitaker, 32 La.Ann. 1055, 36 Am.Rep. 278 (1880), an early will contest, the court stated that, “The presumptions of the law are in favor of capacity. These must be rebutted by conclusive proofs. Doubts must be resolved in favor of the will.” 32 La.Ann. at 1069.

Succession of Mithoff, supra, likened the requisite burden of proof to that required to overcome the presumption of innocence in criminal cases. In Succession of Lambert, supra, and Succession of Schmidt, supra, the courts relied on the Mithoff approach to uphold contested wills.

However, in LeBleu v. Manning, 225 La. 1087, 74 So.2d 384 (1954) the court cited Mithoff, Lambert and Schmidt as authority, but stated that the presumption of capacity could be destroyed by cogent, satisfactory and convincing evidence. LeBleu was followed by Succession of Riggio, supra.

The courts of appeal have adopted the stringent criminal standard of proof beyond a reasonable doubt. See Succession of Herson, 127 So.2d 61 (La.App. 1 Cir. 1961); Succession of Arnold, 375 So.2d 157 (La.App. 2 Cir.1979), writ denied 376 So.2d 1267; Guidry v. Hardy, 254 So.2d 675 (La. App. 3 Cir.1971); and Succession of Dubos, 422 So.2d 444 (La.App. 4 Cir.1982), writ denied 429 So.2d 132. However, a criminal standard of proof to overcome the presumption of testamentary capacity is inappropriate and can lead to anomalous results. See, for example, Succession of Collins v. Hebert, 377 So.2d 516 (La.App. 3 Cir.1979), writ denied 379 So.2d 15 (La., 1980).

The traditional measure of persuasion in civil cases is a preponderance of the evidence, but there are a limited number of claims and contentions governed by an intermediate standard, usually termed “clear and convincing evidence.”

Generally, this third burden of proof requires more than a “preponderance of the evidence” but less than “beyond a reasonable doubt”. The existence of the disputed fact must be highly probable, that is, much more probable than its non-existence. Louisiana State Bar Association v. Edwins, 329 So.2d 437 (La.1976). This standard is usually employed “where there is thought to be special danger of deception, or where the court considers that the particular type of claim should be disfavored on policy grounds.” McCormick on Evidence, Section 340(b), p. 798 (2nd ed. 1972).

In disciplinary proceedings, the burden rests on the bar association to establish proof of attorney misconduct by clear and convincing evidence. Louisiana State Bar Association v. Edwins, supra. Such a standard of proof is also levied against parties seeking to set aside transactions induced by fraud. Sanders v. Sanders, 222 La. 233, 62 So.2d 284 (1952); Placid Oil Co. v. Taylor, 345 So.2d 254 (La.App. 3 Cir.1977), writ denied 347 So.2d 261. Persons attempting to overcome the presumption of community property status and children seeking to establish filiation to a deceased parent must both satisfy this intermediate level of proof.

In all these situations, strong policy considerations mitigate against use of the preponderance of the evidence test. In the case of bar disciplinary proceedings, a stronger burden of proof has been adopted, despite the fact that the proceedings are not punitive. Instead, they are designed to protect the courts, the dignity of the legal profession and the public good. The accused is entitled to every favorable inference in his favor. In re Novo, 200 La. 833, 9 So.2d 201 (1942). In fraud cases, adoption of the intermediate standard upholds the security of transactions. In community property and filiation situations, the sanctity of the family is protected.

Strong policy considerations are also involved when testamentary capacity is disputed. As the court stated in Kingsbury v. Whitaker, supra:

“To wrest a man’s property from the person to whom he has given it, and to divert it to others from whom he has desired to withhold it, is a most violent injustice, amounting to nothing less than post-mortem robbery, which no court should sanction, unless thoroughly satisfied ... that the testatory was legally incapable of making a will.” 32 La.Ann. 1055 at 1062-1063.

These considerations require that a party alleging lack of testamentary capacity overcome the presumption of capacity by clear and convincing evidence.

In Pennsylvania the burden of proving testamentary capacity is initially with the proponent, but once execution of a will is proved by the required two witnesses, a presumption of testamentary capacity arises and the burden of proof shifts to the opponent to overcome the presumption by clear, strong, and compelling evidence. In re Estate of Kuzma, 487 Pa. 91, 408 A.2d 1369 (1979). In Wisconsin, an objector to a will must prove lack of testamentary capacity by clear, convincing and satisfactory evidence, while in Washington the opponent’s burden is by clear, cogent and convincing evidence. See Matter of Estate of Sorenson, 87 Wis.2d 339, 274 N.W.2d 694 (1979) and In re Estate of Riley, 78 Wash.2d 623, 479 P.2d 1 (1970).

The evidence regarding Henry Lyons’ testamentary capacity is contradictory. The universal legatee testified that he brought his uncle to the hospital on December 11, 1981. On December 14, 1981, he gave his uncle a form prepared by an attorney for use in preparing a will. According to the nephew, his uncle gave him an unsealed envelope containing the will early on the morning of December 15.

Velma Dennis and Wayne Lyons, the universal legatee’s son, testified that they visited the decedent on several occasions while he was hospitalized. Both indicated that the decedent did not seem confused and seemed aware of what was going on around him. Neither saw the decedent on the day the will was written.

One niece, a registered nurse, saw the decedent on a single occasion while he was in the hospital and said he was confused and disoriented, but her testimony about the time of this visit was uncertain.

Another niece, who testified that she visited the deceased every day or every other day, admitted that he had good and bad days. A nephew indicated that several times during the hospitalization his uncle “made sense”.

Still another niece testified that her uncle was incoherent in the hospital. While some of his sentences made sense, others did not. Nevertheless, on December 19, 1981, she was present when decedent signed some checks pertaining to a family estate. He apparently understood what he was doing. Decedent had surgery on December 30.

A nephew, the current executor of the estate, was steadfast in testifying that his uncle remained disoriented throughout his terminal hospitalization.

Impartial evidence concerning testamentary capacity included the nurses’ notes and the testimony of one of the attending physicians. Dr. Johnny Gibson, a general surgeon, saw the deceased on December 16, 1981, and again the next day, for five to ten minutes each time. Dr. Gibson had difficulty in communicating with the patient, who only understood after much repetition. In the doctor’s opinion, Henry Lyons was not able to understand business transactions such as the disposition of his property at the time. However, the patient did sign consent forms for emergency treatment and operative procedures on December 11, December 21 and December 29. And significantly, Dr. Gibson appears as the medical witness to the “Consent to Treatment” form of December 29, 1981, (Exhibit 8) which casts some doubt on his assertion that decedent lacked understanding.

The nurses’ notes indicate that on December 14, despite a temperature of up to 101.9 degrees, the decedent was “easily aroused” at 12:00 A.M., “alert” at 7:30 A.M., and “alert and oriented” at 4:00 P.M. Decedent was observed reading at 11:00 A.M. on December 13, and exhibited a good appetite on December 13, 14 and 15.

The opponents of this will failed to overcome the presumption of testamentary capacity by establishing with clear and convincing evidence that Henry Lyons lacked capacity when the will was made on December 14.

Accordingly, the judgment of the court of appeal is affirmed. The matter is remanded to the trial court for further proceedings consistent herewith.

AFFIRMED.

LEMMON, J., dissents for the reasons assigned in the dissenting opinion in the court of appeal.

CALOGERO, J.,

dissenting.

In my opinion opponents of the will should prevail on the testamentary capacity issue; and the dissenting judge in the Court of Appeal was correct concerning testator’s signature.

      . LSA-C.C. art. 1588 provides:
      “The olographic testament is that which is written by the testator himself.
      "In order to be valid, it must be entirely written, dated and signed by the hand of the testator. It is subject to no other form, and may be made anywhere, even out of the State.”

      . LSA-C.C.P. art. 2903 provides:
      “At the contradictory trial to probate a testament, its proponent bears the burden of proving the authenticity of the testament, and its compliance with all of the formal requirements of law.”

      . LSA-C.C.P. art. 2883 provides:
      “A. The olographic testament must be proved by the testimony of two credible witnesses that the testament was entirely written, dated, and signed in the testator’s handwriting. The court must satisfy itself, through interrogation or from the depositions of the witnesses that the handwriting and signature are those of the testator, and must mention these facts in its proces verbal.
      "B. A person’s testimony for the purpose of this Article may be given in the form of an affidavit executed after the death of the testator before a notary and two witnesses, unless the court in its discretion requires the person to appear and testify orally. All affidavits accepted by the court in lieu of oral testimny shall be filed in the probate proceedings. This Paragraph does not apply to testimony with respect to the genuineness of a will that is judicially attacked.”

      . LSA-C.C. art. 2340 provides:
      "Things in the possession of a spouse during the existence of a regime of community of acquets and gains are presumed to be community, but either spouse may prove that they are separate property.”
      See R.D.M. Corporation v. Patterson, 255 La. 301, 230 So.2d 820 (1970); Succession of Hemenway, 228 La. 572, 83 So.2d 377 (1955).

      . LSA-C.C. art. 209, as amended by Act No. 527 of 1982, provides:
      "A. A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment (sic) under Article 203 must prove filiation as to an alleged living parent by a preponderance of the evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided by this Article.
      "B. A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment (sic) under Article 203 must prove filiation as to an alleged deceased parent by clear and convincing evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this Article.
      "C. The proceeding required by this Article must be brought within one year of the death of the alleged parent or within nineteen years of the child’s birth, whichever first occurs. This time limitation shall run against all persons, including minors and interdicts. If the proceeding is not timely instituted, the child may not thereafter establish his filiation.
      "D. The right to bring this proceeding is heritable.”

      . The doctor’s name appears in the transcript as "Gippson” but in all briefs as "Gibson".


author: MARCUS, Justice.

text:
    PAN AMERICAN IMPORT CO., INC. v. Katherine Hebert, Wife of/and Julius K. BUCK, Janet Buck, Wife of/and Jerry Verrette.
    No. 83-C-2558.
    Supreme Court of Louisiana.
    June 25, 1984.
    Patrick C. Kelley, New Orleans, for applicant.

      Mitchell J. Hoffman, Ann Wise, McClos-key, Dennery, Page & Hennesy, New Orleans, La., for respondents.
   MARCUS, Justice.

Pan American Import Co., Inc. (Pan Am) employed Janet Buck from June 1976 until August 1977 when she was fired for embezzling $61,374.62 from the company. Pan Am was reimbursed $25,000 from its bonding company and recovered $7,681.68 from customers. To recover the balance of $28,692.94, Pan Am filed suit in June 1978 against Janet Buck and her live-in boyfriend Jerry Verrette. Janet and Jerry were subsequently married on November 16, 1978. In March 1981, the trial judge granted Pan Am’s motion for summary judgment against Janet Verrette for $26,-142.94. Janet Verrette did not appeal the summary judgment and it became executo-ry in May 1981. Pan Am immediately instituted garnishment proceedings against Jerry Verrette’s salary to collect on the judgment. Jerry Verrette filed a petition to enjoin the garnishment and to recover damages for wrongful garnishment. The trial judge refused to grant injunctive relief, but did order the garnished funds placed in escrow until the suit between Pan Am and Jerry Verrette was resolved.

In July 1981, Jerry Verrette petitioned the court for a judicial separation of property pursuant to La.Civ.Code art. 2374, alleging that his interest in the community regime between Janet and him was threatened to be diminished due to the fault, neglect and/or incompetence of Janet and by the disorder of Janet’s affairs. Pursuant to La.Civ.Code art. 2376, Pan Am intervened in the suit, objecting to the separation of property on the ground that the separation would be in fraud of its rights. This case was consolidated for trial with the earlier suit by Pan Am still pending against Jerry Verrette.

After a trial on the merits, the trial judge dismissed Pan Am’s suit against Jerry Ver-rette for recovery of the money Janet embezzled from the company. In the second case, the judge rendered judgment in favor of Jerry Verrette granting him a separation of property retroactive to July 10, 1981, the date of filing. He held that “[tjhere is nothing fraudulent about Ver-rett [sic] trying to shield his income from a pre-nuptial creditor of his wife. There is utterly no deceit involved. He is attempting to exercise a right conferred by the Code which inevitably is prejudicial to the creditors of the spendthrift spouse.” The trial judge, however, denied Verrette any damages for wrongful garnishment because the seizure of his income as community property to satisfy a separate debt of his wife was valid when it was executed.

Pan Am appealed both judgments of the trial court. The court of appeal affirmed the trial judge’s dismissal of Pan Am’s suit against Jerry Verrette seeking to hold him liable in solido with Janet for the amount she embezzled from Pan Am. However, the court of appeal reversed the trial judge’s grant of a separation of the community regime between Jerry and Janet Verrette. The court found, under La.Civ. Code art. 2376, that the separation of property was “in fraud” of Pan Am’s rights as a creditor because the separation terminated Pan Am’s rights to garnish Jerry Ver-rette’s salary. The court defined fraud as used in article 2376 as “synonymous with ‘bad faith’ ” and held that “when the sole purpose of a petition to separate community property is admittedly to avoid payment of a preexisting debt, we believe that the petitioners are in bad faith and that separation of the community will unfairly deprive creditors of their rights.”

On the application of Jerry and Janet Verrette, we granted certiorari solely to consider the issue of whether Jerry Ver-rette should have been granted a separation of property in this case.

The question presented for our consideration is whether Jerry Verrette’s separation of property under La.Civ.Code art. 2374 is “in fraud of” Pan Am’s rights as a creditor, thereby enabling Pan Am to prevent the separation under La.Civ.Code art. 2376.

Articles 2374 and 2376 were added to the Code as part of the community property revision of 1979 and have never before been considered by this court. Although the articles are new, they have the effect of extending to both spouses and to their creditors rights that were previously only afforded to the wife as protection of her dowry and to the husband’s creditors. Article 2374 enables a spouse to obtain a judicial separation of property when his or her interest in the community “is threatened to be diminished by the fraud, fault, neglect, or incompetence of the other spouse, or by the disorder of the affairs of the other spouse.” However, article 2376 permits the creditors of either spouse to intervene in the proceeding and object to the separation if it is “in fraud of their rights.”

In this case, Jerry Verrette’s interest in the community regime was clearly being threatened by Janet’s fiscal mismanagement; thus, the requirements of article 2374 were met. Yet, the question remains whether his termination of the community regime, thereby removing from Pan Am’s reach Jerry’s salary under garnishment to satisfy Janet’s debt, was “in fraud of” Pan Am’s rights.

We cannot look to prior jurisprudence interpreting the phrase “in fraud of their rights” because no case has ever before considered the matter. However, we can consult the revocatory action articles in pari materia and by analogy consider the interpretation given fraud under those articles. The right of a creditor under article 2376 to object to a separation of property is akin to a revocatory action because the creditor in both actions is avoiding a transaction or proceeding made in fraud of his rights. Article 1969 expresses the general purpose behind the revocatory action: “every act done by a debtor with the intent of depriving his creditor of the eventual right he has upon the property of such debtor, is illegal, and ought, as respects such creditor, to be avoided.” Thus the law establishes the revocatory action, which is “an action to annul any contract made in fraud of [creditors’] rights.” La.Civ.Code art. 1970. The meaning of “fraud” as used in that article is illustrated by article 1978, which provides that:

No contract shall be avoided by this action but such as are made in fraud of creditors, and such as, if carried into execution, would have the effect of defrauding them. If made in good faith, it can not be annulled, although it prove injurious to the creditors; and although made in bad faith, it can not be rescinded, unless it operate to their injury.

Hence, the two elements of fraud in the context of a revocatory action are bad faith and injury to the creditor. Further, it has been held that the creditor must suffer a present injury; a future injury will not suffice. The court in Feist v. Wilier & Gamm, Inc., 16 La.App. 618, 133 So. 797 (1931), quoted with approval in Martin Lebreton Insurance Agency v. Phillips, 364 So.2d 1032 (La.1978), stated:

However, we are of the opinion that the injury which it is essential that plaintiff in a revocatory action should show, relates to a present injury and not a future injury which might occur, if and when the insolvent debtor obtains some property.
The revocatory action, we think, is given to individual creditors in contemplation that they have or will proceed under their judgments against the property of the debtor, and that when the action sought to be revoked is merely a preference, such preference must relate to property which is subject to execution under their judgments and not to property which may become subject to execution in the near or distant future. [Citations omitted.]

In conformity with the interpretation given fraud under the revocatory action articles, we will also interpret fraud as used in article 2376 to require bad faith and present injury to the complaining creditor. We find that, in the instant case, Pan Am did not suffer a present injury by being deprived of the right to garnish Jerry’s salary because that salary constituted future property against which Pan Am had no present right of execution. Thus we hold that, under La.Civ.Code art. 2376, Pan Am has no right to object to Jerry’s separation of property because it was not made “in fraud of” Pan Am’s rights. This conclusion pretermits the need to decide whether Jerry was in bad faith.

Such an interpretation of fraud in article 2376 puts a spouse who chooses to go separate in property under article 2374 in the same position, relative to a creditor seeking to garnish the non-debtor spouse’s salary, as a spouse who obtains a separation of property by getting a judicial separation of marriage or a divorce. However, article 2374 enables the spouse to terminate the community regime without having to end the marriage, thereby protecting the sanctity of the family unit, evidently one of the goals of the legislature in enacting article 2374. Such an interpretation of fraud in article 2376 also promotes consistency within the Code because it equalizes the position of the spouse who goes separate in property under article 2374 with that of the spouse who obtains a separation of property via a matrimonial agreement before or during marriage or by a judicial separation of the marriage or divorce.

Therefore, we reverse the judgment of the court of appeal insofar as that court reversed the district court’s grant of a separation of property to Jerry Verrette and reinstate the district court’s grant of the separation of property.

DECREE

For the reasons assigned, the judgment of the court of appeal reversing the judgment of the district court granting a separation of property and allowing the garnishment of Jerry Yerrette’s salary to continue is reversed; judgment of the district court granting a separation of property retroactive to July 10, 1981 is reinstated.

      . The petition erroneously named the defendants as "Janet Buck, wife of/and Jerry Verrette” although the couple did not get married until after suit was filed.

      . La.Civ.Code art. 2374 provides:
      When the interest of a spouse in a community property regime is threatened to be diminished by the fraud, fault, neglect, or incompetence of the other spouse, or by the disorder of the affairs of the other spouse, he may obtain a judgment decreeing separation of property.

      . La.Civ.Code art. 2376 provides:
      The creditors of a spouse, by intervention in the proceeding, may object to the separation of property or modification of their matrimonial regime as being in fraud of their rights. They also may sue to annul a judgment of separation of property within one year from the date of the rendition of the final judgment. After execution of the judgment, they may assert nullity only to the extent that they have been prejudiced.

      . These matters were subsequently consolidated with a third suit by Pan Am against Katherine Hebert, wife of/and Julius K. Buck (Janet’s parents) and Janet and Jerry Verrette, seeking a "Declaratory Judgment, Revocatory Action and/or Action en Declaration de Simulation” finding a house listed on the public records as owned by the Bucks to be in reality the separate property of Janet Verrette.

      . In the third suit, the judge held that the house in question was the separate property of Janet Verrette.

      . Actually, Jerry and Janet Verrette appealed the judgment in the third case declaring the house to be Janet’s separate property. In an answer to that appeal, Pan Am sought to have the other two judgments in the consolidated action reversed.

      . 440 So.2d 182 (La.App. 4th Cir.1983). The court also let stand the trial court’s judgment declaring the house to be Janet’s separate property.

      . 445 So.2d 445 (La. 1984). Otherwise, the writ application was denied.

      . La.Civ.Code art. 2425 (1870) provided:
      The wife may, during the marriage, petition against the husband for a separation of property, whenever her dowry is in danger, owing to the mismanagement of her husband, or otherwise, or when the disorder of his affairs induces her to believe that his estate may not be sufficient to meet her rights and claims.
      La.Civ.Code art. 2434 (1870) provided:
      The creditors of the husband may object to the separation of property decreed and even executed with a view to defraud them. They may even become parties to the suit for a separation of property, and be heard against it.

      . La.Civ.Code art. 2329.


author: BLANCHE, Justice. DENNIS, Justice,

text:
    STATE of Louisiana v. Rickey L. McKEEL.
    No. 84-KA-0301.
    Supreme Court of Louisiana.
    June 25, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William Campbell, Asst. Dist. Atty., for plaintiff-appellee.
    Dwight Doskey, New Orleans, Orleans Indigent Defender Program, for defendant-appellant.
   BLANCHE, Justice.

By this appeal, we are asked to consider the constitutionality of La.R.S. 14:54.1. Defendant was convicted of two counts of 14:54.1 — communication of false information of planned arson — and sentenced to two consecutive twenty year terms. These convictions were reversed by the 4th Circuit Court of Appeal, which found the statute to be unconstitutionally vague. From this ruling, the State now appeals.

FACTS

The circumstances surrounding defendant’s conviction go back to 1980. In that year, defendant pled guilty to simple arson of the Frame Shop, a commercial structure located in the French Quarter, and received a three year suspended sentence, five years probation and a $3,000.00 fine. In February, 1981, while on probation from the arson conviction, defendant entered the Frame Shop, which was being repaired at the time, and told a carpenter “You doing a nice job ... But I don’t see why you’re doing it, because I’m going to burn the _again”. Tr. p. 32. Later, on March 24, 1981, defendant drove up to the shop in a car and shouted to the same carpenter, “I thought I burned it down for good.” Tr. p. 33. This information was then conveyed by the shop owner to the police, who arrested defendant and charged him with two counts of communicating threats of arson in violation of R.S. 14:54.1.

Defendant filed a motion to quash the indictment on the ground that the indictment did not allege conduct proscribed by the statute. Essentially, defendant contended that the statute was designed to include only false threats or false information of arson. The motion to quash was denied and defendant was convicted of both counts, and sentenced to consecutive terms of twenty years.

Defendant appealed, urging that R.S. 14:54.1 was overly vague, in violation of Art. I, § 13 of the Louisiana Constitution. The 4th Circuit reversed, finding that the statute was susceptible of two different, yet equally reasonable interpretations. The Court of Appeal also concluded that the sentencing provision of R.S. 14:54.1 was unconstitutional.

Constitutionality of R.S. 14:54.1

Article I, § 13 of the Louisiana Constitution states that “In a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him.” If a statute is so ambiguous that it does not give adequate warning of the conduct proscribed, the due process notions embodied in § 13 are offended. Traditionally, a statute has been considered unconstitutionally vague if men of common intelligence must guess as to its meaning. State v. Prestridge, 399 So.2d 564 (La.1981); State v. McCoy, 395 So.2d 319 (La. 1980); State v. Cannon, 383 So.2d 389 (La.1980). Thus, the task of this court is to examine the language of the statute and assess whether two reasonable, different interpretations may be derived by a reading of it.

La.R.S. 14:54.1 is preceded by the title “Communicating of False Information of Planned Arson.” The statute itself provides:

Communicating of false information of arson or attempted arson is the intentional impartation or conveyance, or causing the importation or conveyance by the use of the mail, telephone, telegraph, word of mouth or other means of communication, of any threat or false information knowing the same to be false, concerning an attempt or alleged attempt being made, or to be made, to commit either aggravated or simple arson.

The State argues that the statute is susceptible of only one interpretation; i.e., that the crime described consists of either (1) intentional threats to commit arson, or (2) intentional communication of false information of an attempt to commit arson, knowing the same to be false. Under this interpretation, the State contends that defendant was guilty of the first type of offense — intentional communication of threats to commit arson..

The Court of Appeal, on the other hand, concluded that an equally reasonable interpretation could be reached. By reading the statute so that the phrase “knowing the same to be false” modifies both the nouns “threat” and “false information”, the Court found that the proscribed conduct arguably consisted of: (1) intentional communication of threats of arson knowing them to be false, or (2) intentional communication of false information of arson knowing the information to be false. Under’this interpretation, defendant’s conduct might not have been within the ambit of the statute, since his threat may not have been “false”; i.e., he might actually have intended to carry out his threat.

We do not agree with the Fourth Circuit’s conclusion that R.S. 14:54.1 is susceptible of more than one interpretation. Instead, we conclude that the alternate approach suggested by the Court of Appeal is the correct one.

The gravamen of the offense punishable by R.S. 14:54.1 is the communication of false information of arson. This is evident from the title of the statute as well as the first clause of the text of the statute. Further, the word “threat” is not set off from the term “or false information knowing the same to be false” by a comma; instead the phrase “threat or false information knowing the same to be false” reads as a continuous whole, and implies that both the threat and the false information must be known to be false.

Several factors support this conclusion. The legislative history of the statute shows that R.S. 14:54.1 began in the House of Representatives as HB No. 297. This bill was originally designated as an amendment to Title 14 of the Revised Statutes ... “by adding thereto a new Section to be designated as R.S. 14:54.1, relative to arson and use of explosives, to make it a crime to communicate false information relative to acts of arson to be committed.” Journal of the House of Representatives, p. 94 (1970 Regular Session). The word “threat” was only added to the text as a floor amendment on the day of passage of the bill by the House. Journal, House of Representatives, p. 1340 (1970 Regular Session). At the time, a comma separated “threat” from the phrase “or false information,” and the bill was virtually identical to an analogous federal statute, 18 U.S.C. § 837(d). This comma was deleted by Senate Amendment before ultimate passage of the bill into law. Senate Journal, p. 1075 (1970 Regular Session).

The deletion of the comma thus indicates an intent that “threat” not be considered apart from the remainder of the clause; and that in order to be punishable under the statute, a threat must be made with the knowledge that it is false. While we recognize that this interpretation places a high burden on the State to demonstrate the falsity of a threat, that is a matter for legislative rather than judicial cognizance.

Having concluded that R.S. 14:54.1 is constitutional, we must now examine whether the State’s evidence was legally sufficient to convict defendant of the offense. The record is devoid of any evidence which would-show that defendant’s statements were made knowing them to be false. For this reason, we conclude that viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could not have concluded beyond a reasonable doubt that defendant was guilty of the offense charged; “communicating a threat of arson” as defined in the statute. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

DECREE

For the reasons assigned, the Court of Appeal’s decision is amended to the extent that it holds R.S. 14:54.1 to be unconstitutional. However, insofar as it reverses defendant’s conviction, the Court of Appeal decision is affirmed.

DENNIS, J., concurs with reasons.

DENNIS, Justice,

concurring.

I respectfully concur.

In upholding the statute it concerned me that we may be affirming a statute which abridges freedom of speech in violation of the First Amendment. However, I ultimately conclude that the making of a false threat or the giving of false information of arson is beyond the protection of the First Amendment. It falls within the principle of the false cry of fire in a crowded theatre, Schenck v. U.S., 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470, or the imparting of false information with respect to the existence of a bomb on a loaded aircraft, United States v. Rutherford, 332 F.2d 444 (2d Cir.1964), cert. den. 377 U.S. 994, 84 S.Ct. 1922, 12 L.Ed.2d 1046 (1964). Such speech is characterized as a verbal act by Mr. Justice Lamar in Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797, cited in the Schenck opinion. U.S. v. Rutherford, supra.

      . 18 U.S.C. § 837(d) was repealed in 1970 and reincorporated into 844(e) which now reads:
      (e) Whoever, through the use of the mail, telephone, telegraph or other instrument of commerce, willfully makes any threat, or maliciously conveys false information knowing the same to be, concerning an attempt or alleged attempt being made, or to be made, to kill, injury or intimidate any individual or unlawfully to damage or destroy any building, vehicle or other real or personal property by means of fire or an explosive shall be imprisoned for not more than five years or fined not more than $5,000.00 or both.

      . We note that in 1978, the legislature enacted R.S. 14:40.1, which defines terrorizing and prohibits activity similar that proscribed in R.S. 14:54.1, but contains a maximum penalty of six months. This inconsistency in punishments perhaps warrants a complete re-examination by the legislature as to this area of criminal conduct.


text:
    Randall Albert LERAY, Plaintiff-Respondent v. ST. PAUL FIRE & MARINE INSURANCE CO., et al. including Edwards Laboratories, Division of American Hospital Supply Corporation.
    No. 84-C-0486.
    Supreme Court of Louisiana.
    July 18, 1984.
    Robert E. Leake, Jr., Hammett, Leake & Hammett, New Orleans, for defendant-petitioner.
    Paul H. Dué, Dué, Dodson, deGravelles, Robinson & Caskey, Baton Rouge, for plaintiff-respondent.
   On joint motion of the parties, by undersigned counsel, and upon suggesting to the Court that this case is before the Court on a writ of certiorari, 448 So.2d 108, issued to the Court of Appeal, 444 So.2d 1252, First Circuit, and that this case was argued on June 26, 1984 and no decision thereon has yet been rendered, and that the parties have reached a compromise settlement of all issues before the Court and desire and therefore move that these proceedings be terminated as moot by reason of said compromise settlement;

IT IS ORDERED that this case is declared moot by reason of the compromise settlement of the issues by the parties and the record of this case is ordered to be returned to the lower court for further action consistent with this order.


text:
    STATE of Louisiana v. Saul WHITTAKER.
    No. 84-KH-0787.
    Supreme Court of Louisiana.
    May 11, 1984.
   In re Saul Whittaker, applying for writ of mandamus to the Criminal District Court, Parish of Orleans, No. 293-843; 4th Circuit Court of Appeal, No. K-1954.

Denied.


text:
    N.A. “Red” MASON v. STAUFFER CHEMICAL COMPANY.
    No. 84-C-0971.
    Supreme Court of Louisiana.
    June 8, 1984.
   In re Stauffer Chemical Company, applying for writ of certiorari and review to the First Circuit Court of Appeal, No. 83-CA-0581, from the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 212974.

Case below: 451 So.2d 32.

Denied.


text:
    CALLAIS CABLEVISION, INC. v. HOUMA CABLEVISION, INC., et al.
    No. 84-C-0960.
    Supreme Court of Louisiana.
    June 8, 1984.
   In re Calíais Cablevision, Inc., applying for writ of certiorari, or writ of review, to the Court of Appeal, First Circuit, No. 83-CA-0220; Parish of Terrebonne, 32nd Judicial District Court, No. 66824.

Case below: 451 So.2d 6.

Denied.

LEMMON, J., would grant the writ.


text:
    STATE of Louisiana v. Walden SCOTT.
    No. 84-K-1052.
    Supreme Court of Louisiana.
    June 15, 1984.
   In re Walden Scott, applying for writs of certiorari and review to the Fifth Circuit Court of Appeal, No. 83-KA-637, from the Twenty-Fourth Judicial District Court, Parish of Jefferson, No. 82-3352, Division “G”.

Case below: 451 So.2d 1135.

Granted.


text:
    Beulah Howell BROWN, et al. v. Vera McClanahan WOOD, et vir.
    No. 84-C-1047.
    Supreme Court of Louisiana.
    June 15, 1984.
   In re Beulah Howell Brown, et al, applying for writ of certiorari to the Second Circuit Court of Appeal, No. 15886-CA, from the Thirty-Seventh Judicial District Court, Parish of Caldwell, No. 13652.

Case below: 451 So.2d 569.

Denied.

DENNIS, J., would grant the writ.


text:
    Thomas T. MIGUEZ, Sr., Administrator of the Estate of His Minor Child, Dudley Miguez v. URBAN DEVELOPMENTS, INC., Sea & Sar’s et al.
    No. 84-C-1111.
    Supreme Court of Louisiana.
    June 25, 1984.
   In re Thomas T. Miguez, Sr., et al., applying for writ of certiorari to the Fifth Circuit Court of Appeal, No. 83-CA-755; 24th Judicial District Court, Parish of Jefferson, No. 261-339, Section M.

Case below: 451 So.2d 614.

Denied.


text:
    STATE of Louisiana v. Mark O’CONNER.
    No. 84-KK-1092.
    Supreme Court of Louisiana.
    June 25, 1984.
   In re Mark O’Conner, applying for writs of certiorari, prohibition and mandamus, First Parish Court for the Parish of Jefferson, No. 467404; Court of Appeal, Fifth Circuit, No. 84-K-200.

Case below: 451 So.2d 1192.

Denied.


text:
    SUCCESSION OF Mateal Rhodes MANGLE.
    No. 84-C-1112.
    Supreme Court of Louisiana.
    June 25, 1984.
   In re Louise Rhodes, applying for writ of certiorari, or review, to the Court of Appeal, Third Circuit, No. 83-606; Parish of Rapides, 9th Judicial District Court, No. 18488.

Case below: 452 So.2d 197.

Denied.


author: LEMMON, J.,

text:
    STATE of Louisiana ex rel. Leslie LOWENFIELD v. STATE of Louisiana.
    No. 84-KH-1282.
    Supreme Court of Louisiana.
    July 5, 1984.
   In re Leslie Lowenfield, applying for remedial writs to the Twenty-Fourth Judicial District Court, Parish of Jefferson, No. 82-3478, Division “N”.

Denied.

LEMMON, J.,

concurs. Relator may raise his complaints by brief in the appeal which is presently pending.


text:
    STATE of Louisiana v. Kevin WISE.
    No. 84-KH-1337.
    Supreme Court of Louisiana.
    July 12, 1984.
   In re Kevin Wise, applying for remedial writs to the Criminal District Court, Parish of Orleans, No. 298-819-G.

Granted and transferred to the 4th Circuit Court of Appeal for consideration.


text:
    STATE of Louisiana v. Gregory O. THOMAS.
    No. 83-K-2321.
    Supreme Court of Louisiana.
    July 17, 1984.
   In re Gregory 0. Thomas, applying for writ of certiorari to the First Circuit Court of Appeal, No. 83-KA-0188, from the Nineteenth Judicial District Court, Parish of East Baton Rouge.

Case below: 439 So.2d 629.

Granted in part and denied in part. The Court of Appeal opinion is reversed insofar as it amended defendant’s sentence. The sentence originally imposed by the trial court is reinstated as is. State v. Jackson, 452 So.2d 682 (La.1984). Otherwise the writ is denied.


text:
    STATE of Louisiana v. Michael JOHNSON.
    No. 83-K-2361.
    Supreme Court of Louisiana.
    July 17, 1984.
   In re Michael Johnson, applying for writ of certiorari or review to the First Circuit Court of Appeal, No. 83-KA-0470; Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 6-82-635.

Case below: 439 So.2d 636.

Granted in part and denied in part. The Court of Appeal opinion is reversed insofar as it amended defendant’s sentence. The sentence originally imposed by the trial court is reinstated as is. State v. Jackson, 452 So.2d 682 (La.1984). Otherwise the writ is denied.


text:
    STATE of Louisiana v. Rickey PHILLIPS.
    No. 84-K-0882.
    Supreme Court of Louisiana.
    July 17, 1984.
   In re Rickey Phillips, applying for writ of certiorari or review to the First Circuit Court of Appeal, Nos. 83-KA-1092 and 83-KA-1093, Parish of East Baton Rouge, Nineteenth Judicial District Court, Nos. 10-81-299 and 3-83-1167.

Case below: 448 So.2d 243.

Granted in part and denied in part. The Court of Appeal opinion is reversed insofar as it amended defendant’s sentence. The sentence originally imposed by the trial court is reinstated as is. State v. Jackson, 452 So.2d 682 (La.1984). Otherwise the writ is denied.


text:
    STATE of Louisiana v. Alvin NORMAN.
    No. 84-K-0886.
    Supreme Court of Louisiana.
    July 17, 1984.
   In re Alvin Norman, applying for writ of certiorari or review, to the Court of Appeal, First Circuit, Nos. 83-KA-1107 and 83-KA-1108; Parish of East Baton Rouge, 'Nineteenth Judicial District Court, No. 4-82-1052, Section IV.

Case below: 448 So.2d 246.

Granted in part and denied in part. The Court of Appeal opinion is reversed insofar as it vacated defendant’s sentence and remanded the case to the trial court for re-sentencing. The sentence originally imposed by the trial court is reinstated as is. State v. Jackson, 452 So.2d 682 (La.1984). Otherwise the writ is denied.


text:
    STATE of Louisiana v. Lionel SORINA.
    No. 84-KK-1382.
    Supreme Court of Louisiana.
    July 20, 1984.
   In re Lionel Sorina, applying for writ of review to the Fourth Circuit Court of Appeal, No. K-2569; Criminal District Court, Parish of Orleans, No. 284-109, Section "I".

Granted. The court of appeal order is vacated.


text:
    STATE of Louisiana v. Rickey A. PRICE.
    No. 84-KK-1317.
    Supreme Court of Louisiana.
    July 20, 1984.
   In re Rickey A. Price, applying for supervisory writs to the Criminal District Court, Parish of Orleans, No. 300-411, Fourth Circuit Court of Appeal, No. K-2488.

Writ denied. It is not imperative that this Court rule at this time on the constitutionality of LA R.S. 14:71(2). If defendant is convicted he may appeal his conviction and at that time he may challenge the constitutionality of LA R.S. 14:71(2), if the jury at his trial is instructed or charged with R.S. 14:71(2).

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


text:
    STATE of Louisiana v. Lionel SORINA.
    No. 84-KK-1382.
    Supreme Court of Louisiana.
    July 24, 1984.
   In re State of Louisiana, through the District Attorney, applying for reconsideration of granted writ, with order, dated July 20, 1984, 452 So.2d 1178; Court of Appeal, Fourth Circuit, No. K-2569; Criminal District Court, No. 284-109, Parish of Orleans.

Denied.


author: WARD, Judge.

text:
    Arthur C. DALE v. FRENCH MARKET CORPORATION.
    No. CA-1339.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1984.
    Rehearing Denied July 24, 1984.
    Salvador Anzelmo, City Atty., Harold D. Marchand, Asst. City Atty., New Orleans, for defendant-appellee, French Market Corp.
    Arthur C. Dale, Jr., in pro. per.
    Before WARD, CIACCIO and LOBRA-NO, JJ.
   WARD, Judge.

This appeal presents the issue of whether the City of New Orleans proved that Arthur Dale was unable to perform his duties as a security officer for the French Market Corporation, an agency of the City. The French Market Corporation fired Dale because it believed Dale physically unfit, and Dale appealed to the City Civil Service Commission. After a hearing, the Commission upheld the action of the French Market Corporation and Dale has appealed to this Court.

The appointing authority, in this case the City through its agent, the French Market Corporation, must bear the burden of proving that its action was justified. La. Const. 1974, Art. 10, Sec. 8; Dept. of Public Safety v. Rigby, 401 So.2d 1017 (La.App. 1st Cir.1981). Once the Civil Service Commission finds the French Market Corporation has proved its case, the scope of our review is limited to a determination of whether the Commission’s decision was manifestly erroneous. In this case, we hold that it was and we reverse.

The record of the Commission hearing, the basis of its ruling, does not support its conclusion that Dale was physically unfit. That record shows that on July 29, 1982, while on duty, Dale became dizzy, short of breath, and unable to continue work that day. He requested sick leave and the French Market Corporation granted it. Dale remained out on sick leave status until October 1, 1982 when his sick leave benefits were exhausted. Dale then requested annual leave, but his request was denied because of manpower shortages. The French Market Corporation ordered Dale to undergo a re-entry physical examination on October 11, and, in the same letter, ordered him to report for work on October 12. Although Dale had been under the care of Dr. Ignatius Tedesco for angina pectoris, he reported as ordered, to Dr. Thomas Campbell, the Civil Service Medical Examiner, for the re-entry physical. After taking Dale’s medical history, Dr. Campbell briefly examined Dale, found he was slightly overweight and his blood pressure somewhat high, but not remarkable. Neither condition was disqualifying. Because he believed more information was necessary, Dr. Campbell called Dr. Tedesco and later spoke with him about Dale. After the conversation, Dr. Campbell concluded Dale was unfit to return to work, and he told the French Market Corporation that Dale was physically unfit to work. Dr. Campbell conceded that his conclusion was based solely on the opinion he received from Dr. Tedesco. After receiving Dr. Campbell’s opinion, the French Market Corporation terminated Dale on October 14.

At the hearing, after several futile attempts to bring Dr. Tedesco to the Civil Service Commission to testify, both parties stipulated that Dr. Tedesco’s testimony would be the same as the opinion he expressed in a letter to the City Attorney, and the letter was accepted in lieu of his testimony. Consequently, all parties agree —Dr. Ignatius Tedesco’s letter was determinative of the question of Dale’s physical fitness. That letter says:

DF.. 1GSATICS TEDESCO. JR.

37]; CANAL STREET

NEW ORLEANS. LA 70119

January 22, 1983

Misa. Avia Russell New Orleans, La.

Res Kr. Arthur Dale

Deer Kiss. Russell:

This la to certify that Kr. Arthur Dale has been having Annina Pectoris since before October 27, 1982. Patient had a normal EKG on/*y£‘/»r '7, W* However, Angina Pectoris Is only a symptom of possible heart disease and not a definitive diagnosis.

He has been under treatment for Angina Pectoris and Its possible dire consequences.

If patient wants to continue working full time It is my opinion that he should havefurther Investigation Into possible heart disease. He should be admitted to the hospital and should have a Stress test with Halter Konltor and complete Cardlo Vascular work. If all tests are within normal limits the patient can resume his usual work.

In spite of what the City Attorney argues and what the Commission believes, the probative value of this letter is questionable. The French Market Corporation fired Dale on October 14, 1982, three months before the letter was written. Presumably, the letter is indicative of what Dr. Tedesco told Dr. Campbell — but that is not in the record, and we do not consider that as proven. Thus we are left with a record that does not even reveal the basis of Dr. Campbell's opinion. Nonetheless, even if we assume the letter is proof of what Dr. Tedesco told Dr. Campbell, Dr. Tedesco’s letter simply cannot be interpreted as an opinion that Arthur Dale is physically unfit for employment as a security guard. Rather, the letter says further tests are needed to assure that Dale is physically fit to return to work.

There is no other evidence that Dale is physically unfit or incompetent. To the contrary, witnesses who appeared for the French Market Corporation all testified that before his illness Dale was a competent and reliable employee. If the French Market Corporation had evidence that Dale was incompetent because of his age or health, it did not produce it. And it is not for this Court to assume facts not in the record.

Hence, the Commission’s finding that the French Market Corporation proved Dale physically unfit was manifestly erroneous.

IT IS ORDERED that the French Market Corporation reinstate Arthur Dale to his former position retroactive to October 14, 1982, with all pay and benefits from that date.

REVERSED AND RENDERED.