text:
    ROBERT FRITZ VS JOHN CRUJAK
    NO. 8387
    COURT OF APPEAL CITY OF NEW ORLEANS

      WILLIAM A. BEER, JUDGE.
    MAY 14, 1923.

   By WILLIAM A. BELL, Judge.

Plaintiff sues defendant in the sum of $1570.00 for damages alleged to have been suffered "by the falling of a portion of drain pipe from defendant’s premises. The trial court rendered judgment for defendant and plaintiff has appealed.

There is no dispute that the accident happened or that plaintiff was actually injured thereby or that defendánt is the owner of the property from whioh the falling object struck and injured plaintiff. The principal defense to this suit is that plaintiff,» by his own negligenoe, caused the accident and, therefore, oannot recover.

We find after oarefully examining the record, in whioh there is some conflicting evidence, that the facts of this case are as follows:

On February 20, 1919, the plaintiff, a colored man, helper on a brewery wagon, was delivering case goods to a saloon operated at Eo. 802 Iforth Rampart btreet; that adjoining this saloon, with a yard intervening,but without a fence separating the premises, was the property of defendant; that plaintiff, in obedience to instructions from the saloon-keeper, had delivered four or five oases in the yard, and while so engaged the funnel or top-most part of a down-pipe or drain was detached from defendant's house, to whioh it had been nailed, causing same to fall some twenty-five feet, striking plaintiff on the nose and inflicting a deep out across the nose or face about an inch and three-quarters; that plaintiff as a result of the accident was so severely and painfully injured as to require his being removed to and retained at'the Charity Eospital, where he was given the tetenus serum and confined for three weeks and unable to work for a total period of fouj weeks. Ihe doctor testifying in the case declared that the soar resulting from the wound is, in his opinion, one that could not be removed.

Defendant answers this suit by alleging that he waives all technical defenses, admits the ownership of the property to 7:hich the drain and broken funnel was attached, hut denieeT^fie accident plaintiff claims to have suffered was caused in any manner by the negligence of the defendant or to the bad repair or faulty oondition of his premises. The real and specific defense is framed in the following language:

"That said accident or any injury suffered by plaintiff therefrom was caused by his own fault and negligence in repeatedly piling heavy cases of beer against the gutter-spout pipe of defendant's house and by continually jarring same, shaking sane loose from its support; that said acts were negligent and were the direct cause of plaintiff's injury."

We are unable to find from the evidence that -defendant has substantiated by any reasonable preponderance of evidence the specific defense undertaken in this case. On the contrary there is but one of the three witnesses summoned by him that makes any positive statemeht that the down-drain pipe, which extended almost to the brick yard beneath, was struck by any object, such as a beer ca3e. This witness,and another of defendant's witnesses, ventures the remarkable theory that tho proprietor of this saloon, not the plaintiff, moved the down-pipe out of alignment to make room for the piling of the cases. This latter fact is specifically denied by the proprietor, and defendant's second witness, on cross-examination as well as on re-direct examination, stated that the proprietor had not touched the pipe. The plaintiff himself positively swears that he never touchod the down-pipe and did not place or throw any case or cases against it. Defendant produces a third witness, tho agent of the defendant, who admits that the drain and funnel had been on the property for over four ye^rs 'without any repair whatsoever, and that the down-pipe which supported the funnel was held in place by thirty or more metal straps placed around the pipe and soldered to it and also nailed to the building. Shis same witness v.as allowed to testify to the locality of the drain-pipe two days after the accident, saying that he found it's lower end had dropped to and was resting on the trick pavement of the yard. This fact, if true, does not in any manner prove that the plaintiff had, hy any act of his, caused this or any other condition of the down-pipe or the funnel resting upon it, whioh could have resulted in the accident.

•We are convinced from the evidenoe that the cause of the accident was natural deterioration of the funnel or upper portion of the drain-pipe, and that even though in the ordinary pursuit of his duties the plaintiff struck or shook the drain-pipe, that this of itself could not have caused the accident.

Epr these reasons,we think the judgment of the trial court should he reversed, and that plaintiff should he awarded reasonable damages, whioh from the evidenoe in this case, seem to he similar to and should he measured in a like amount in accordance with the ruling and award made hy us in the case of Grand v. Toys Brothers Company, Inc., No. 8920 Orleans Appeal. The loss of time, suffering and the nature and extent of damages suffered hy the plaintiff in this case would, in our opinion, he properly compensated hy a Judgment in the sum of $300.00.

IT IS, THER3E0RE, ORDERED, ADJUDGED AMD DECREED that there he judgment in favor of Robert Eritz and against John Crujak, in the sum of Three Hundred Dollars ($300.00), with legal interest thereon, from Judicial demand until paid, all oosts in both courts to he borne hy defendant.

JUDGMENT REVERSED.

MAY 14, 1923.


source: Caselaw Access Project

author: CHARLES F. CLAIBORNE, JUB®.

license: Public Domain

text:
    Charlea F. Claiborne, Judge,
    ROBERT FRITZ VS JOHN CRUJAK
    No. 8387

   ROBS» FRITZ ¥S JOHN CHUJAK

NO. 8387

CHARLES F. CLAIBORNE, JUB®.

On motion to dismiss.

Plaintiff filed suit in the twenty-ninth Judióla! District Court, Parish of Plaquemines. From a Judgnent against him, he took this appeal to this Court. Defendant moves to dismiss the appeal on the following two grounds:

lo "Because on the face of the said bond, which ms intended to be a bond in this cause, it is stated to be a bond in the Civil District Court for the Parish of Orleans, State of Louisiana; that nowhere on the face of the said bond is the proper title of the 29th. Judiei-ai. District Court, in and for the Parish of Plaquemines given, and that, on the hack of the said bond, it aspea*» to have been filed August 19th, 1921 in the "Civil District Court, for the Parish of Orleans", in no named or numbered case, and the same does not constitute the proper filing of said bond or the proper execution and confection of said bond*.

The Bond reads as follows:

"Know all men by these presents that ws Robert Frits, Conrad lieyer Jr., F. B. Freeland, as principal, and P. 13. Adema,, as surety, are held and firmly bound unto Frank J. Labrano, Clerk of the District Court fob the Parish of Plaquemines, his successors, executors, administrators and assigns, in the sum of two hundred dollars for the payment whereof we bind ourselves, our heirs, executors and administrators, firmly % these presents, dated in the City of New Orleans bn this ___ day of August in the year of Our Lord 1921.
Whereas the above bounden Robert Frits, C. JJayer Jr., and F. B. Freeland have this day filed a petition of appeal from a final judj^nont rendered ngninst Robert Fritz in tho milt of Robert Fritz vs John Cnijak, No. 2243 of tho 29th District Court for tho Pariah of Pla-quemines the_day of 1921 and signed on the . da.v of_192,1. I!ow the condition of the above obligation is such ttat the above bound Robert Fritz shall prosecute the said devolutive appeal and shall satisfy whatever judgment roay be rendored against him, or that the same stall be satisfied by the proceeds of his estate0 real or personals if lie be cant in the anneal; otherwise that the said P. Í . Adcr-m. stall >'■ liable in his place".

Cn^the back of the bond we read theca words:

"Filed Aug. 19, 1921 Signeds B« J. Lobrano !>y. Clerk".

This bond is upon a printed fon.i of the Civil '¡istrict Court for the Parish of Orleans, The complaint of the appellee is that the printed words:

"Civil District Court for the tari ah of Orleans", to bo found at the beginning and on the reverse of tho bond have not boon erased. This is immaterial, «'riting prevails over print. In other respects the bond is perfect and is the printed fora used in the Parish of Orleans. It is sufficiently identified with tho appeal to hold tho surety on the bond. 1 :j. 420; 10 A. 313; 40 A. 277,609 ; 35 A. 348; 119 La. tal; 107 La. 2,92; 111 La. 766; 125 La. 13 (30); 8 N. S. 127; 103 La. 518. Cíe vri.ll presume that the deputy Clerk who signed the filing is the proper officer of the Court in wliieh the bond was furnished.

II. The second .ground is as follows:

"Without waiving the foregoing, mover further avers that said bon'! in not • luted, raid the affidavits upon the back thereof ; re not good and sufficient as required by law. Ttat the said P. ; . Adema only signed and snore to the said bond on the 19th day of Awust 1921 while the affidavit of U;e attorneys for the principal of the suid bond was s.ram to t\<o days previously in the City of ¡íes Orleans as to r.n unnamed surety rnd which nomo they did. not then know. Therefore said affidavit was null and void and vías taken, accented, and filed by the Clerk in violation of 'lection 4 of Act 112 of 1916 and is not good and sufficient as the lav; •orescribes1’.

There is no levs? that requires bond ¿f> bo dated. «It . y i ^>ro^/ _ r~x? —* ' fr y' ¿s " o" /y—is r=-~- — makes 'no difference when it vías sRsied^befora it was filed. The data of the filing of the bond fixes the date of its signing. 2C A. 860; banning '.!. C. 370, 186.

iíothing shovit! when ■Vie>iiu signed the bond, Jie nay have oi/'iied it long before he snore to it, on the 19th.

.(hen plaintiff ó9 attorneys, on August 17th, swore that the surety on the bond rao worth the ."mount thereoff tide Court ¡•iust orosuHe that tho bond .hud already been signed Adema and that they had him in mud -"hon they snore that the surety on the bond vais good. The surety on the bond end plo.intiffs* attorneys having attested tl-o bond in the wanuor required by ‘leo. 4 of Act 112 of 1916, the .’lerk did not violeto tito law by filing tho bond.

. otion to dismiss

October 17th. 1921.


author: By WIBLIAM A. ESDI, Judge.

text:
    SUCCESSION OF CHARLES MOLIERE
    NO. 8388
    COURT OF APPEAL PARISH OF ORLEANS
    MAY 14, 1923.

   By WIBLIAM A. ESDI, Judge.

Prom a judgment whioh homoigates the administrator's account and whioh 're all other parties as heirs of the deceased, one of the heirs has appealed, contesting, firstly, ¿he recognition of a certain claim upon a promissory note payable to and held hy one of the brothers of the deceased, and contesting, secondly, the legitimacy of certain other persons recognized as heirs.

The deceased died July 1, 1916, and his succession was opened Pebruary 12, 1918, by parties claiming to be heirs and who alleged at that time that there were debts against the estate. The final account of the administrator, filed August 7, 1920, shows a total estate of $470.00, of whioh, after payment of court costs, administrator's fees and attorneys fees, there remains the sum of $323.85, which balance the administrator recommends shall be paid to certain brothers and sisters, nephews and nieces, of the deceased, m such proportion as may be determined by the court. To this account opposition was filed on August 16, 1920, by Jean louis Koilere,. who alleges that he is the holder and owner of a certain unpaid promissory note, reading as follows:

"Phoenix, la., Pebruary 15, 1916. One (1) year after date X promised to pay to John louis Moliere, for value received f¡225._00) Two hundred and Twenty five Dollars with 8?¿ interest. his (Signed) -Charles X Moliere ) mart "Witness j (Signed) Joseph Rollins."

It is evident that if the judgment appealed from be affirmed insofar as to recognize the claim of the aforesaid opponent, that nothing will remain in the estate to be distributed to heirs of the deceased, and hence, in that event, no determination need be made by this court as to the contest of heirship herein raised.

It is contended by appellant, Ann Moliere, sister of deceased and wife of Charles Enos,"that she has no knowledge that said alleged note was ever signed by the deceased; that even if signed, the same is without consideration and was not and is not a debt by the deceased, and, finally, that far from said Jean Louis Moliere being a creditor of the deceased, that he is a debtor of the deceased."

The burden of proof to substantiate all the above defenses falls upon appellant, who has not, from our appreciation of the evidence, been successful in 4.0 doing. In the first place it is to be noted that neither appellant nor the others, who Originally contested with her the right to administer this estate, interposed any opposition to the provisional account of the administrator, which account was filed on August 00, 1919, and upon which the above claim was recognized, acknowledged and listed as the only debt of the succession. The evidence shows there was no other debt, except certain amounts due the very holder of the note, who is shown to have paid taxes due on the only piece of real estate sold in the succession. It was attempted by argument to prove prescription of the note, though no such defense was interpleaded. The date of the note, considered with other dates above mentioned, shows clearly that the obligation was not prescribed, but even if this were not a fact, the acknowledgment of this debt by the administrator in placing same on his provisional aooount, interrupted any prescription which could have accrued. Maraist Syndic. v. Guilbeau, administrator, 31 Ann., 713; Succession of Richmond, 35 Ann., 858; C. P. Art. 985.

The consideration of the note is shown to have been for advances made by the holder in payment of the maker's share in certain real estate Jointly purchased by them and others on February 15, 1898, from the People's Bank of Hew Orleans. It is argued that no such obligation could have existed betwee-the two brothers in 1916, when the note was given-, beoaus March, 1915, by notarial act, the brothers and others, as purchasers of the above real estate, partitioned the same, and in said act declared:

"Ho return money is to be made to any of them fthe parties) * * * and they discharge each other from all claims, demands, matters and things whatsoever in the premises."

We see no merit in the above contention. Ho authority has been cited, nor do we know of any, that would have precluded the brothers as between themselves from reviving in 1916 a debt arising in 1898, even though it may be presumed that they in-intended by the above-quoted olause in the partition act of 1915, to discharge any and all obligations which might have existed between them. V/e are not inclined to give any such effect to the above-quoted discharge between the parties to the act of partition. Joseph Rollins, witness on the note, testifying in these proceedings, is shown to have been a disinterested party, who declared in corroboration of the testimony by the surviving brothe^ thalt the deceased, at the moment of the signing of the note, made clear his intentions to thereby discharge or pay his then indebtedness to his brother, the holder and payee of the note. In the present case, appellant's pleadings carry no allegations of fraud, nor is there any speoifio denials of the signature or mark on the note. The authorities cited by counsel for appellant, particularly those in supplemental brief, have no application to this case. In the cited case of Watts v. Collier, 140 La., 105, speoifio denial of the signature was made by the obligor himself, and the court there held that -aa such oircumstanoes,where the private writing bears a cross mark purporting to represent the signature of the obligor, the uncorroborated testimony of one witness, that he saw the alleged obligor make the cross or held or touched the pen with which it was made, could not prevail over the denial of the obligor on oath. We cannot see the application of that case to the instant one, but on the contrary it seems to be therein implied that in the absence of no better evidenoe than that now before ua, oourts must be bound thereby, unless stronger rebuttal evi-denoo be offered. We are convinoed that the findings of the Judge of the trial oourt, who heard and saw the witnesses, should not be set aside. The holder of the note, in whose favor the Judgment was rendered, having died since the appeal taken herein, his widow, Mrs. Vanilla (Williams) Moliere, has, on proper motion and order been made a party to this appeal. Finding the Judgment appealed from in favor of Jean Louis Moliere to be correct, we refrain, for reasons aforementioned, from consideration of the other issues herein involved.

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the Judgment appealed from, insofar as it recognizes and maintains the opposition of Jean Louis Moliere (now deceased) to the administrator's final account, be and the Bame is hereby affiimedj and it is further ordered that said account be amended so as to place thereon, as an ordinary creditor of the Estate o'f Charles Moliere., appellee, Mrs. Vanilla ('Williams) Moliere, widow in community, and sole heir of Jean Louis Moliere, in the sum offlpwo HUNDRED AMD TWENTY FIVE DOLLARS (#225.00), with eight per cent, per annum interest from February 15, 19L. , until paid, and for all costs of opposition in both oourts.

JUDGMENT AFFIRMED.

MAY 14, 1923.


author: Dinkelspiel; J P3R CURIA!!:

text:
    NO. 8389
    No. 8419
    COURT OF APPEAL PARISH OF ORLEANS.
    JOHN D. NIX, JR., versus ALEXANDER MADISON.
    By Dinkelspiel; J.
   Dinkelspiel; J

It is evident from an examination of Doth these records that they ought to be consolidated, for the reason that they are interwoven and bring before this Court the same subjeot matter and therefore the consolidation and the motion must prevail.

The question presented for our consideration has been passed upon in the same proceedings by this Court, Ho. 7900 of its docket and the syllabus in that oase reads:

"A Sheriff's proces verbal of o sale fulfills all the requirements of the Code of Practioe and is of itself a oomplete deed.
The seizing creditor who becomes the adjudicates of property may retain in his hands such a proportion of his bid as will satisfy his claim and is bound to withhold the balance to pay special mortgages or privileges or the debtor himself.
He has no right to pay and the Sheriff has no right to receive an amount in excess of his writ the duty of the Sheriff under Article, Code of Practice 670, to announce that the purchaser shall retain in his hands the amount of superior privileges and special mortgages is only a relative duty in the interest of the owner and of subsequent mortgagees and not absolute and does not affeot the validity of the sale."
It appears to us, clear that the property in dispute in the first suit is the same identical property which was declared to be property sold trader a judgment of the First City Court of the Parish of Orleans and bought in by Joseph Petrie & Company. They paid into the hands of the Constable sufficient money to satisfy the writ in that oase and that was all that was necessary,as decided by this Court. The property was adjudicated to the defendants on April 19th, 1915 and the proces verbal of sale made to them of that date and registered in the Conveyance Office October 11th, 1915; the adjudication in the Succession of Siadflson was made on October 15th, 1915, three days after the registry of defendant’s prooes verbal, but it was there oontended that the prooes verbal was not an absolute transfer of the above property to Petrie & Company. This contention, 'said the Court is not supported by law or authority, quoting Article 690 of the Code of Practice, Civil Code S608 (3586);Article 691, 693 and 693 of the Civil Code discloses that the Sheriff shall pass an act of sale to the purchaser and state what the act of sale shall contain and Article 694 direots the Sheriff to sell to the purchaser all the rights of the debtor to the thing sold and Article 695 of the Civil Code concludes "This act Of sale adds nothing to the foroe and effect of the adjudication but is only intended to afford the proof of it, consequently if the Sheriff has omitted any .of the formalities above prescribed the adjudication shall not be void on that account if it otherwise appears that it was made by virtue of a legal authority and all the formalities requisite for its validity."
"That there is nothing to show that the defendants have made any further payments on the purchase price of said property other than the original deposit of $53.50 and that in as much as the terms of sale were cash, the defendants have no title until they have paid the Constable the entire prici of adjudication."

The Court adds such is not the law or jurisprudence.

In that entire controversy this Court has decided, quoting numerous authorities that the defendants there got a complete title to the property in question.

notwithstanding the decision of this Court, the plaintiff, Nix, in the Succession of Alexander Madison, had appointed a curator ad hoc and there attempted and did seize the identical property bought by Petrie & Co. and the latter filed a petition for injunction in the Civil District Court in the same case, entitled "John D, Nix, Jr. vs.OAlexander Madison, "being 111,303 of the docket of said Court and amongst other allegations claimed that the seizure of petitioner's said property is illegal, null and void because the property of petitioner could not be seized in proceedings in which they were not a party and without notioe and further that Madison was dead long prior to the issuance of the writ of Fi Fa and no proceedings could be oarried on against a dead person and further that said property was not the property of Madison but the property of petitioners and that John D. Hix, Jr., the plaintiff had full notice of the sale and adjudication end was present and bidding at the sale made by the Constable and that he, Hix, had intervened in said proceedings in the First City Court, recognizing petitioners' title to said property.

On lotion to dissolve the injunction made by the attorneys of Hix, that on the face of the papers talcing all the allegations of the petition as true, there was no oase and various grounds unnecessary at this time to state.

There was also filed an exception of no cause of action and further that the case had not been properly allotted.

After hearing the Court maintained the injunction, dissolved the writ with damages and also maintained that the oase had not been properly docketed and from these judgments there is this appeal.

We have endeavored to give in as concise terms as possible, all the issues involved in this case and coming to the conclusion that the case No. 7900 of the dooket of this Court, entitled John D. Nix, Jr. vs. Joseph Petrie & Co. Ltd., this Court had fully and finally determined this oase and parties interested bound thereby and having quoted from the opinion of this Court, giving its reasons, we see no necessity of further discus-stoigxilciHXicK#: sion and we are of the opinion that the Judge erred in dissolving this injunction with damages end that he further erred in maintaining the exceptions of no cause of action.

Code of Practice, Article 685.
Ash vs. Southern Chemical & Fertilizer Co. 107 La. 312.
Robinson & Co. vs. Cosner, 136 La. p. 595.

We are of the opinion that whatever claims plaintiff makes as against the proceeds of sale, in the hands of Petrie & Company and whatever claims there may he hy Petrie against the property in question, can be and must be litigated in these proceedings, now ordered consolidated; together also with whatever olaims and counter claims the parties may have against each other growing out of the rents and revenues received or due by Nix, and the expenditures made by him on account of the property; to the end of establishing what balance if any is due Six on the note herein sued upon, end how much of the price of sale due by Petrie may remain to pay the said bale.nce.

For the reasons assigned it is ordered, adjudged and decreed that the judgment of the District Court be and hereby is annulled, reversed and that there now be judgment in favor of Petrie & Company, maintaining the writ of injunction and that the exception of no oause of action and the further exception of want of allottment be and the same are hereby overruled and this case reamdded to be proceeded with in accordance with law and the views herein expressed, at cost of said Mix in this Court and costs in the lower Court to await final judgment.

Judgment reversed and remanded.

NO. 8389-8419.

JOHN D. NIX, JR. VS ALEXANDER MADISON.

STATS OF LOUISIANA COURT OF APPEAL PARISH OF ORLEANS.

OH APPLICATIOH POR EBHSARIHS.

P3R CURIA!!:

Plaintiff complains of eur judgment gene rallyXas to which we can only refer to our former opinion. He complains specially that in the last clause of that opinien we have denied his mortgage and vendor’s lien rights against the property itself, and reserved him only a personal <3^Uvn/ against Petrie & C*, the owners of the property.

However we may have expressed ourselves, we intended no such result, as shown hy our decree; which is strictly in accord with a decree handed down this day in the matter entitled Schiltoffsky vs Marmillon, (No. 8134 of our docket), plaintiffs mortgage and vendor's lien rights are fully presefved.

We did not decide in our decree of Pehruary 21st 1921 (Hix vs Petrie, Ho 7900) that Petrie's privilege was superior to that of Mix, or vice versa; on the contrary we said; "it is immaterial in this case whether plaintiffs» claim was superior or not to the defoudant’s on the property seized". So that that question is left quite open.

December 12th, 1921.

We regret that we oannot make ourselY83 olearer about a matter which to us seems quite clear. Again we refer to the Schilieffsky case, supra.

Rehearing Refused.

Hew Orleans la,


author: CHARLES F. CLAIBORNE, JUDGE.

text:
    Charles F. Claiborne, Judge.
    S. S. ROSENTHAL VS. G. W. PRUSTMAN, Appellant.
    No. 8392
    October 31st, 1921.

   S. s. ROSENTHAL VS. <}. f. PRUTSMAN, Appellant.

No. 8392,

CHARLES F. CLAIBORNE, JUDGE.

This is a suit by a lessor against the lessee for can-callation of a lease for making another use of the property than that specified -oa- the lease.

Petitioner alleges that by an act under private signature he leased to the defendant Prutsman the upper duplex apartment No. 8838 St. Charles Avenue; that by said lease it was provided that «

"the premises herein leased are to be used for the following purposes, Dwelling x x x; Lessee is obligated to make no x xjx use of the leased premises for a purpose other, than^tipulated herein; x x x should the lessee, in any manner, violate any of the conditions of this lease, the lessor herSby expressly reserves to himself the right of cancelling said lease, without putting the lessee in default; the lessee hereby assenting thereto and herein waiving all legal notices to vacate" x x x;

that in violation of said lease the wife of the defendant is, and for some times past has been, conducting regularly in the said leased premises the business or profession of Christian Science practioner or healer for compensation, and that her patients, at her invitation, customarily and fequently resort to the said leased premises for treatment; all to the knowledge of the said Prutsman and with his approval and consent- and by his instigation; that such use of said premises constitutes a violation of the said lease which under the law and under the stipulations of the said lease, entitles your petitioner to the cancellation thereof. Plaintiff prays for judgment condemning the defendant to vacate the leased premises.

The defendant admitted the lease, and further answering admitted ,

"that Mrs. Pr”tsman. his wife, receives in their residence, among other visitors, friends who, with her, believe in "Christian Science" and that she has in the past and does now, when desired by the callers, administer treatment to them, sometimes for eompensation and sometimes without, but he denies that her action in so doing is a violation of the lease in any particular, end avers that it would be a violation of Article I Section 4 of the Bill of Eights of the Constitution of the State of Louisiana to attempt to deny to your respondent or his wife the right to practice "Christian Science" or the Art of Healing, which is but the practice of her religion or Christian faith".

Defendant prayed that plaintiff’s petition be dismissed.

There was judgnent for the plaintiff and defendant has appealed.

There is no allegation that the practices of the defendant caused damage or injury or a nuisance, Testimony on that subject was excluded on plaintiff's objection.

The burden of proof is upon the plaintiff to show a clear case of violation of the lease. The lessee must be given the benefit of any doubt. The lessor, like the vendor, must explain himself clearly respecting the extent of his obligations; any obscure or. ambiguous clause is construed against him. C. C. 2474 (2449); 105 La. 294 (303); 30 A. 255; 30 Dalloz Rep. Leg. p 295; p 313 147; 1 Domat p 209 5 10; 25 Laurent p 110 $ 99; 3 Duver-gier p 23 § 26; 18 Baudry-L^c p 28 47; 1 Guillonard p 105¿85; 1 Pothier Obligatus p 67.

"There is a familiar canon of construction that all contracts, including leases of every description shall be most strongly construed against the grantor, and that if there be any doubt or uncertainty as to the meaning of any such lease it shall be construed most strongly in favor of the grantee". 24 Cyc 915 (c).

It is also general law that forfeiture of contracts are not favored. In the case of Scibett-a vs Marciante Mo. 7974 this Court said:

"Forfeiture of contracts or leases are not encouraged by the Courts, and will be enforced only when the rig^it thereto is clear beyond a doubt both of fact and of law".

This opinion was in pursuance of the jurisprudence of this State. 6 A. 279, 566; 12 A. 823; 17 A. 321; 21 A. 21,23; 49 A. 1549; 50 A. 379 (384); 1 Baudry-Lac p 404 772.

"Forfeiture by acts of the parties to a lease x x x because of a breach of a covenant or condition or wrongful act of the tenant are not favored by the Courts x x and a stipulation or covenant permitting a forfeiture before the lease would otherwise terminate will be construed most strongly against the lessor". 24 Cyc p 1347 (b); 18 A. & E. E. L. ? 371, 378.

The right of a lessor to dissolve a lease for putting the premises to a use other than the one intended or specified in the lease is not absolute; it is left to the discretion of the Court. 39 A.769; 120 La. 730; 30 Dalloz Hep. Leg. p 348 Mo. 281, 300, 301; same Yol 10 Supplement p 174 170, 178; 4 Aubry & Eau p 83; 1 Baudry Lac p 406 Mo. 774; 3 Duvergier p 381 401; L Guillonard 203; 2 id 527; 25 Laurent p 287, 288 264; Trofílong Louage p 410 316.

The Articles of the Code governing this case are as follows:

C. C.-1926 (1920) "On the breach of any obligation to do or not to do, the obligee x x may require the dissolution of the contract &o ".
C. C. 2046 (2041)«“A resolutory condition is implied in all commutative contracts, to take effect, in case either of the parties do not comply with his engagements; in this case x x the party complaining of a breach of the contract of tha contract, may either sue for its dissotion & c
0. C» 2710 ( 2680)."The lessee is hound: lo To en.ioy the thing leased as a good administrator, according to the use for which it was intended by the lease, x x xn C. C. 2711 (2681). "If the lessee makes another use of the thing than that for which it was intended, and if argr loss is thereby sustained by the lessor, the latter may obtain the dissolution of the lease & c".

In interpreting these Articles SUr Supreme Court has decided that premises rented for a store could not be used as a kitchen 7 E. 205; that a building erected to serve as a boarding and lodging-house could not be converted into a coffee-house. 39 A. 766.

In France it has been held that a builcüng rented as a dwelling could not be occupied as a gambling house^ear for immoral purposes, nor for a restaurant, nor for a hotel, nor for a coffee-house, nor for a club, nor for a blacksmith or locksmith shop, nor to carry on a commercial business, nor to change a concert hall into a coffee-house. Our researches, however, have failed to produce a single case in which the lease of a building to be used as a residence or dwelling would be violated by being occupied, in part, by a physician, or lawyer, or other person following a profession or occupation inviting the visit of clients, patients, or customers.

In the case of Moreira vs Heckman No. 7842 this Court said:

"A dwelling-house is a place for the accommodation and shelter of human beings, and the householde r may admit into his house whomsoever he pleases even boarders and lodgers; nor does his home thereby cease to be his private dwelling house".

A person who receives a boarder in her home cannot be said to be a boarding house keeper. 22 A. 316.

A house remains a residence when the keeping of boarders is only an incident; but becomes a boarding house when the keeping of boarders is the main purpose.1 L. R. A. N. S. 962.

The only witnesses who testify to the use of the rented premises are the plaintiff himself and two detectives employed by him to inquire into the actions of the defendant's wife.

The plaintiff testified that lots of people rang at the door bell and asked to see the ladv doctor or Mrs. Prutsman; hais son lives in the same house and isa physician, and many people call to see him; his sign is on the house.

One of the detectives is a woman; she called on the "Christian Science lady" to be treated for a headache; there were others there; she went alone once, and another time with a lady; she paid one dollar for each of two treatments; the "Christian Science lady" told her about Christian Science, explained to her; she told her what Christian Science would do for her and to forget about her trouble, and that the headache would get all rigfrt.

The other detective is a man; he called on Mrs. Prutsman one afternoon to receive treatment and she gave him instructions in Christian Science: he went back the next day and got the other treatment; the second day there was another patient waiting; he did not go into the room, but waited in the hall.

We do not see how it can be said that the actions of the defendant detailed above can be construed into making another use of the property; it still remained a dwelling and the receiving of visitors or patients was only incidental. We have nothing to do with the question whether the defendant's acts were part of a religion or of a business; the question is did that "dwelling" lose its character as such by reason of defendant's actions? If defendant's contention was correct then a lawyer could not receive his clients, a physician his patients, or an artist his customers, in a house occupied by him as his dwelling and rented by him as such, without violationg his lease. We believe that such would be too narrow a construction to give to the Articles of the Code especially in the absence of any precedent, and in absence of any injury to the property. We take in consideration also the fact that the plaintiff's son is a physician, resides in another part of the same building, haB his sign as such affixed to the front of the house, inviting the visit of patients, and, in the language of plaintiff, as a witness, receives "frequent calls*. There is no allegation that the defendant is in competition with him. There is no doubt that the plaintiff might have stipulated that there should be in his building no professional man, no artist, no Christian Science Healer, and even that no one should ever have access to the building except the members of defendant's family. But he has not done so. In the absence of such a clause the defendant was free to receive any persons he ohose, whether it was socially or in business. 6 A. L. R. 465.

In the language of our Supreme Court in Sieward vs Denechaud 120 La. 720 (730):

"The destination in the use of this búilding is not syi-cha'Xged to a prejudicial extent, in so far as plaintiff is concerned; at any rate, not to such an extent as would justify us in annulling the lease. At this time, with the testimony before us, we must decline to grant plaintiff's demand".

It is therefore ordered that the judgment herein be reversed and that there now be judgnent in favor of defendant rejecting plaintiff's demand at his cost in both Courts.

October 31st, 1921.


author: Charles F.Claiborne,Judge.

text:
    GEORGE Kerner, Appellant VS Hortman Co.
    No. 8396
    CHARLES F.CLAIBORNE,Judge
    November 27th 1922

   GEORGE KERNER,Appellant Vs. HORTMAM 00.

No.8306

Charles F.Claiborne,Judge.

Plaintiff's automobile collided with defendants truck and suffered damage;hence this suit.

The plaintiff alleged that on June 8th at about ten o'clock in the morning he was driving his Ford Truck up St.Charles Avenue towards Carrollton Avenue,thus having the right.of way^ when ^at the intersection of Sixth Street^an auto-truck driven by one of defendant's employees approached on Sixth Street from the direction of the river,and crossing the intersection of St.Charles Avenue collided with plaintiff’s auto inflicting damages to the amount of |l61.15;that the collision was caused by the carelessness and negligence of the defendant,while the plaintiff exercised due care and was free from negligence.

The defendant avered on the contrary that the collision "was due wholly and solely to the fault of petitioner in driving into the truck of respondent at a time when said truck had almost crossed St.Charles Avenue on its way out Sixth Street; that when its said truck started to cross,there was ample time for it to have done so in safety had petitioner used proper care in the operation of his automobile,but that instead of exercising ordinary care petitioner recklessly and carelessly drove into the truck of your respondent."

There was judgment for defendant and plaintiff has appealed.

The evidence of defendant is that on June 8th at ten o’olock in the morning,and while it was raining,the defendant’s chauffeur was driving down St. Charlees Avenue on the River side of the neutral ground;when he reached Sixth Street he turned to his left,and proceeded to cross St.Bhalres Avenue; after he had crossed it all but about six feet,plaintiff's car collided with Ms truck on tlie Mnd wheel of the engine and the radiator of the oar was hit and thrown in the gutter at the downtown wood corner of Sixth Street and St.Charles Avenue;plaintiff was driving up town along the neut^l ground;whep he reached Sixth Street' he swerved to the right,and ran into defendant's truck four or six feet from the woodside curbing of the St.Charles Street banquet;if he had proceeded straight along the neutral ground he would not have come in contact with the truck.

Pláintiff was says that he was driving his car up St. Charles Avenue along the neutral ground; when he approached Sixth Street about twenty feet from the corner,he noticed defendant's truck crossing St.Charles Avenue and blew his horn; he went right ahead because he had the right of way;neither the plaintiff nor the defendant slowed up;plaintiff turned into Sixth Street to avoid the accident,but struok defendant's car and was thrown into a ditch about fifteen feet from St.Charles Avenue and Sixth Street.

Plaintiff seems to rest his case upon his assumption that he had the right of way.But there is no question of right of way here.

The traffio ordinance regulating the, right''and duties of ohauffeurs and granting the right of way^not been offered in evidenoe.Courts cannot take judicial oognizance 6f City ordinances.They mUBt be peade pleaded^introduoed in evidenoe to be considered.1 H.D.486 Taylor Dig.333-3 La Dig.121 -7 A 495 14 A 303-32 A 1161-33 A 107 -35 A 367-44A 85-45 A 30 -104 La.l (6) 105 La 762-107 La 413 (416) -124 La 774 (778) 130 La.195 (200) 131 La 381-139 La 605 (614) 1 Me Sloin 299-6 Ct.App 69

TMs case must therefore be decided according to the common law rules of the law of the road .According to those rul’es neither the plaintiff nor the defendant was entitled to the right of way.Each party had equal rights on both Sixth and St.Charles Streets.

When each approached a common point where a collision might occur,it was the duty of hoth to stop and avoid it,

In this case neither stopped.The law puttthe hlame upon him who had the last chance of avoiding the accident.In this case it appears to us that the last chanoe was with the plaintiff, for the defendant had already crossed nearly the whole of St. Charles Street, when the plaintiff dashed into him.If he had restrained his auto,as he oould and should have done^and had he used proper care,the accident would not have happened.lt was & therefore his fault.The judge of the City Court was of that opinion and we cannot say that he erred.

Judgment affirmed.


author: BY: WILLIAM A. BELL, JUDGE:

text:
    MARRERO LAND & IMPROVEMENT ASS'N ET ALS., versus TOWN OF WESTWEGO
    NO. 8,403
    COURT OF APPEAL PARISH OF ORLEANS
    HON. PRENTICE E. EDRINGTON, JUDGE.
   BY: WILLIAM A. BELL, JUDGE:

This is a suit instituted by plaintiffs under the provisions of Section 3 of Act 136 of 1898 of the General Assembly of the State of Louisiana, providing that any party in interest may appeal from an ordinance extending the 1' mits of any city, town or village, if such appeal be presented before the ordinance becomes operative.

The town of Westvego adopted an ordinance on the 30th day of December, 1919, extending its limits, defining its boundaries, and providing for the publication of said ordinance as required by Act 136 of 1898 above referred to; plaintiffs, who are property owners within the area sought to be included in the extension, filed this suit protesting against said ordinance within the time prescribed by law.

The ordinance objected to by the complainants herein, ehanees the boundaries of the town of Westvego, so as to include within the incorporate limits of said town, the territory described as follows, to wit:

"That part of the Parish- of Jefferson, State of Louisiana, commencing at the intersection of the Mississippi River with the prolongation of the eastern or-lover line of the Dugues Canal, thence along'said eastern or lower' line of the Dugues Canal to the point of intersection with the southern boundary of the township line known as T.- 13'S R £3 E,S E District of Louisiana west of the Mississippi River, thence along said township line' in the westerly direction to a point where said township line intersects th$' eastern boundary .line of the Subdivision known as Salaville, thence along the Eastern line- known as Salaville.until it intersects'the southern boundary line of the right of way of the Morgan, Louisiana & Texas R.R. & Steamship Co. thence along the southern boundary line of the right of way of the Morgan, Louisiana Texas R.R. -& Steamship Co. until it intersects the line located at' Three hundred' (300) feet east of the .eastern ■ boundary line of Avenue A of the .subdivision known as Salaville, thence along the line located at Three Hundred (300) feet east of the eastern, line of Avenue A of the River, thén,ce along the" Mississippi River to the point of beginning."

There has been filed in the record a blue-print or map, marked. "D-I" showing the present town of rjest'v.'ego, which is comprised within the area marked by the letters "A-B-C-D-VW-T-3 and R." The same map shows the territory sought to be annexed, and is comprised within the area marked by the letters A-B-C-D-Q-E-M-I-E and p, and is outlined in red pencil. (Trans .p.22)

Sec. 4 of Act 136 of 1898, provides that the appeal from the ordinance in proceedings of this nature, shall be by suit in the District Court of the parish where the property is located, and shall be brought against the mayor of the city, town, or village; and that the question for determination by the Court shall be whether the proposed extension or contraction of the corporate limits BE, OR BE ITOT, REASOEABIE. Complainants, in their petition allege that the proposed extension of the town of Westwego is unreasonable, upon the following alleged grounds of opposition.

1st. "That the community which is proposed to annex is largely agricultural in character, and possesses none of the characteristics of a town.
2nd. That a large part of said territory is widely separate from the Town of Yfestwégo, and is inaccessible to the territory proposed to be annexed.
3rd. Because the territory which is proposed'to be annexed'has not been laid out as a town and is really nothing but a community composed of small farmers and dairymen.
4th.' Because the territory which is proposed to be annexed will derive no benefits from the proposed extension and that there will only be added the additional burden of Taxes- imposed upon the territory proposed to' be annexed with no benefits derived therefrom.
5th. That the proposed extension or annexation is unreasonable; and that it is an arbitrary annexation' made without the consent of those people residing in the territory proposed to be annexed and is against their will and desire."

The Town of Westwego, through its Mayor, has answered the petition of appeal filed in this'proceeding., S4<í particularly avers in response to said petition -chat the State ordinance is fair, just, reasonable, and legitimate, and that the property included in the proposed extension lies immediately contiguous and adjacent to the present boundary of the town, and is the same nature as property .within the present limits of the town, some of which, having been laid off in town lots, and sold as such, and that the annual amount of taxes assessed against the property included in the ordinance, based on the assessment of 1S19, will not exceed the. sum of §2,000. It is finally, averred by the respondent, . that, the described property-proposed to be included in-the'Town, is in need of police protection and sanitary regulations, and that the land will.be greatly improved by a v.ater-work system and electric light system-, which the Town is now instituting, and, proposes' to have constructed; - that the proposed extension merely represents /the -aotual growth' of the Town of Westwego, and' that the -inhabitants of the present town and of the territory included in said proposed ordinance, have come to be, virtually one oommunity, or town.

Upon the issues as above presented, the sole cuestión for determination's whether or not-the extension as proposed,' be, or be not, reasonable. From the judgmant of the . Trial Court, that the-said extension is-reasonable, oomplairiants have appealed herein, to this Court, The record'.before us is most extensive and voluminous, oontai-ning considerable testimony, maps, pnot-ogr.aphs, aeroplane pictures, diagrams and plots, etc., to all of which v.-e have given closest scrutiny'and examination.We have particularly'considered the--reasons for .judgme.nt appearing in the record, and upon analysis .of same, paralleled with the documentary and.oral evidence with which the record is replete, we find ourselves unable.'to..agree with the eoncluslo.ns of .the Trial. Court, to the effect that "none of the contentions “of plaintiff are borne out by the -evidence,-but;■ on'the contrary* .."that the proposed extension would be; a reasonable one,;-and o«j>, "that .ought -to be made, to allow the'proper growth-of.'the entire; Town' of Westwego." This cause was submitted to the Court during the month of April, 1921, and the facts as existing at that time going to establish the reasonableness or not of the proposed extension are particularly presented by the testimony of the witness, Hr. Conrad A. Buchler, now one of the counsels for the Town of Westwego, defendant and appellee, and who was, at the time of the adoption of the ordinanoe, the Mayor of the Town of Westwego, and one of the town officials voting for the extension. This witness, in presenting before the Court the grounds; why the proposed extensions were thought by the ■Town Council reasonable, was forced, on direot examination, as 'a witness called by complainants herein, to admit that at the time of the enactment of the ordinanoe, and of the trial of this suit, Westwego had no electric lights of its own, but, on the contrary, \yas under contract for ten years, lighting to be furnished it from the South Hew Orleans light & Traction Company, beginning in Ootob.er, 1921, thus showing that ns a town improvement, the expense of which would have to be borne by the who^e Town of Westwego, when and as extended, oould not be possible, unless the contract in question could be annulled. It was further admitted by this witness, that no gas or gas plant, or equipment, had ever been used anywhere in Westwego, nor was any contemplated; that the town had no sewerage or water works at the time of the adoption of the ordinance, nor any site for water works planned, within the town as then constituted, but that one was contemplated Just outside of the then limits of the Town, there being no available space for same in the Town as then^25stituted, the proposed new site being designated by him under the letter "X" shown on the blue-print filed in evidence. In this ownnection, it was stated by the witness, that the erection of a municipal water-works plant being: contemplated, there had been voted by the Town people a bond issue of $100-,OOO, this vote being taken after the passing of the ordinance of extending the Town limits, and that nothing had been done by the Town authorities towards the erection of the water-works plant because of their inability to sell od-negotiate the bonds. He finally admitted "in 'order to go ahead with the building of the water-works plant, that another eleotion, fixing a higher rate of interest on the bonds, would have to be held, and that ultimately, the intention of the Town was to use all of the Ferry Franchise of some $40,000 ii for the. completion of this plant. Thus it is shown, that as to the sewerage and water works for the Town of Westwego, the'matter was in suoh abeyanoe 'as to be nothing else but an unaccomplished or unrealized dream. It is further testified by the witness that wi'thin the area designated by the le.tters, "E-F-G-B" on the plan, and designated by the word "woods," on said plan, there were no inhabitants, that half of said location was swamp lands not under cultivation, and lying between the public road and the line running east and west , ■designated by witness under the letters "I-J."

The remainder of this section was shown to be composed of sand hills, resulting from crevasses, uninhabited, and though capable of drainage, as yet, in no. way improved. Though frequently questioned as to witness's knowledge of the population in the various sub-divisions of the entire proposed extension, he was unable, to venture even a guess, though he admitted that .the present peculation of Westwego was about 1500 people, but seemed entirely .ignorant as to the number of pefiple proposed to be added to this population, by virtue of the extension. As the Mayor of the Town at the time of the ordinance, it. is reasonable to .suppose that had the, population of this proposed extension been of any consequence in number', that this witness, above all others, would have been .advised definitely on this subject. He finally admitted that the new area proposed is very sparsely settled. Further testifying, ve learn from this witness that the Town itself, has no Board of Health nor any police force, other than a paid Town Marshal and a few deputies, all of Whom ¿re unpaid, and no fire.department, Ho Commission for roads-, all of. which are well-graveled, and -supervised by the Town Marshal .only,-that no tax is paid, nor ' any assessment of any kind.for keeping up the. streets in .the -.TCWn' of - Westv/ego; the expenditures made by the Town in the year being some $6,000 for improvements, but not extensions -p3^-róads, these-expenditures appearing to-’be for. the particular improvements, and not as an annual or budgeted expense. -Witness ■iC Conclusion admits that there are ho industries with.in the 'proposed area but the two large plants belonging respectively ihoS,;the-'.Kentuoky Distillery and Warehouse Company, ’and The 8otít.tóbstern-land.&.Turpentine Company. This, witness taking theVsiand again, testifies in direct examination on behalf of defendant j concerning.various photographs -offered'by him,..numbering from'1 to 12 inc. ,■ and. introduced OPor the 'purpose of showing .particularly the .nature and location of .structures, or buildings frtfm'the new Catholic-Church', in square Ro, 4, on..the plot offered; .up to, and including the'home and dairy |f.-Barbe--and Rouis 3auragfTs property-; tie. buildings, .on Robert Clone’s property, and those .of the .industrial plant of $Ke Southwestern land & Turpentine Company',, these last three ./^iotures'-,'to wit:' Wo., 7-- 8 and '9,/'as well as the pictures • •RCt\C':.and E, concerning .theySlarp- ana. Batley.properties, show-, ihg- o'on%tíOns -.io-,:t'E¿t'''part, of t.he .new or proposed extension Cit^atédf;CbbU.t; a-..mile, from.’the present boundaries .of-the town Between- the houses shown .on picture Ho. 10; known ,asS?.Siarp.'.a.--Quarters," .and the section on. the plot desoribed as (^Q*3j^C;.. theye is nothing but- the swamp or sand hills embraced ■yi'tRla'-.tJp'.eeotion described -on said plot as "woods.," Examination 1:^iSlibi'S.niidi-ngs.. in-:p.iot.ures Ros, 2-3-448-6-7-8 and 1Ó, do not S.;ShCwrin.rthe'evidence, a thickly populated district, but, on the. £Ó;^f!fa|^¿'o'jf .l^S^pr-.yao.ant- lots' and. large open country^ while in picture 10, there appears nothing but a number of cheap Negro quarters, usually found contiguous to a plantation.

Victor A. Petrie, who appears to have qualified, as Mayor of the Town of Westwego just a week before testifying,and from the evidence appears to be the largest individual owner of rental property in the Town, swears that there are no more lots for sale, "not one," and that he had many applicants for all the rental property belonging to him, all of w'hich was oooupied. He lays stress upon the faot that Miss Beattie has a fine residence, and two or three other fine residences are in the neighborhood, and that Mr. Sharp has a few common buildings, and that there are a few factories in that section of the land sought to be annexed, that, as a member of the School Board he confirms the allegation, or contention of defendants, that there has been located a site for the new high school about a blo.ok or two from the Church shown on the map as being in square 4, His testimony in chief, is deoidedly partial to the proposed annexation, though his reasons for the same are not oonvinoing; in fact, on cross-examination, he admits that there is room for expansion on all the space, or section, embraced in the plotted lots Nos. 4 to 22, shown on the map, but gives as explanation why such lots are not available for expansion, that no one wishes to go back in the woods, and yet, it is plain from the examination of the plot or map, that all of these lots are the ones most contiguous to, and lying directly east of the present Town of Westwego. When shown the photograph offered by plaintiff, marked P-22, which, upon examination, olearly discloses the large vacant portion of ground presently within the Town limits, and not built upon nor occupied, 'he was forced to admit that his original statement of there being no available lots or building ■pace in the Town of Westwego was not correct. Many other witnesses testifying for defendant, state that there is a large amount of vacant ground presently in the Town of Westwego. Suoh testimony Justifies the belief that extension of territory for the purpose of progressive development of he Town is not necessary, but that same might not be deolare'd wholly unreasonable if. the extension was planned to embrace only lots 4 to 22 inclusive, lying presently next to the east side of the Town, between the Mississippi River and the'rear drainage canal shown on the map; but the extensions are made to reach much farther than behind these, as yet unoccupied plotted squares, up to a point a mile or more to the east., and embracing,^as several witnesses have testified^ an area almost ten times greater than the present Town itself, 'the additional area being estimated by the engineer making the official map now before us, at 585.74 aores, as against only 60 acres comprising the business and residential Town of lfestw,ego as presently constituted. One half'of these additional aores is,(as previously stated^ swamp land, and uninhabited, and the other half sparsely settled, mostly agricultural and pasture land, with a population of not more than 150 people, consisting of a few white families, and the remainder Negroes. It .is shown that at least 220 aores of the proposed extension is swamp and uninhabited, in fact, one of the witnesses for complainants, and owner of "Sharp's Quarters," who is a man sixty years of age, has lived nearly all of his life in the area under consideration, swears that ■ 70 aores of the proposed extension within the areas designated by O-F-G-H-Qt may be called good land, but the balance, of some 350 aores, is wholly swamp, or undrained land. This same witness, who lives in the present Town of WestWego, swears that these are several good vacant, lots within the Town, as presently constituted, and that same are now in weeds and grass.

Another witness, Robert Klein, on behalf -of complainants, fifty-five years of age, and. who has . lived in the territory sought to be annexed all of his life, testifies in confirmation of Sharp and others, that two thirds of the land sought to be annexed is swamp, and that only twelve or thirteen white families live there, and some Negroes. He further swears that the Town of Westwego, as presently constituted, has no fire department, water works, swwerage and water, or lighting system, nor police protection, except the Town Marshal and some few deputies, and all of these facts concerning the status of the land to be annexed, as well as the equipment of the land presently'constituting the 'Town, is verified by another fitness, Mr. ISO A. Marrero, president, or acting president, of the Marrero land & Improvement Association. This last named witness is speoifio on the point that the present Town of Westwego is in no position to offer water works, sewerage or electric lights, and that the new water works plant cannot be financed under present conditions. The testimony of the ex-Mayor o^Westwego, Mr, Buohler, shows, among other facts, that he and those advocating the ordinance/believe it particularly advantageous and neoessary to include the Kentucky Distilleries & Warehouse. Riant ln-the new extension, because of the temporary disturbance incident to the $40,000 theft of alcohol, occurring shortly before the passage of the ordinance, and thus establishing grounds of belief that this industry should be given police proteotion. The testimony of. Mr. W.B. O'Neil, the manager of the Distilleries, shows that this particular incident was one in which softe of the inhabitants themselves, of the present Town of Westwego, and none of'the inhabitants of the district proposed to be annexed, were participants in the theft referred to. This latter witness further testifies that the plant has no need of police proteotion,'that it has •> within, its own plant all light and water neoessary,Mr. O'Neil,', on behalf of the Distilleries Company, and Messrs. .Marrero and Sharp; all of whom respectively represent three of the complainants in, ■ this action, are uniform in the statement that they would! oóns-épt- ,■ to .the annexation proposed, and the resultant burdens of Town- . taxation, If any correspondent benefits to them oould be shown and assured.

It needs but a casual glance at the two aeroplane'.^ pictures filed in evidence, to convinoe us that tie proposed annexation, nearly all of which is shown in these two pictures, '• is but sparsely settled, and largely suited to but agrioultu^pí. and to farming pursuits. The two industries in these pictures, to wit, that of the Southwestern land fc Turpentine Company, and the Kentucky Distilleries and Warehouse Company, are surrounded on all sides by bushy, though high-grade land, showing little, if any residential or town-like surroundings. The large map in evidence clearly locates the Kentucky Distilleries & Warehouse Company, as -being nearest to the present Town limits, while a large tract of land separates it from the Buokner-Chipley tract of land, oooupied by the aforesaid Turpentine Company, Keither one of these industrial plants are shown by witnesses fo.r defendant, to be in need of any water works, eleotrio light, drainage, sewerage, or police advantages, which the officials of the Town of Westwego as now constituted, would proffer them as benefits Which they could not hope to enjoy unless included within the Jurisdiction, or under the management of the Town, It is shown that the Kentucky Distilleries is presently, and has for some time back, been shut down, the plant not being under operation, and that such was its condition at the time of the passage of the ordinance. Defendants own expert witness, fir. Bayne, is shown, to have been employed for advice as to the best location of the-proposed water works, and instead of locating same at the point "Z" on the map, as proposed by witness Buohler, this expert states that he recommended the location of the same within the presea* Town limits, in square 3, and between Avenues. A and B, and that he estimates the cost of a proper water works system, to meet the requirements of. fire prevention bureau, and filtoration plant, would be some $94,000, an amount quite out of the reach presently, of the financial powers of the Town of Weatwego, This same witness, on cross-examination, States that his- estimate for a water work» system costing $94,000, if 'estimated to include the new' Or proposed extension, would, coat considerably more, possibly a» mush as an additional^50,000 AsttJjsr». It is further stated by thus 'witness that the lands in the wooded, area Jtíro.wn, on the map eouid be- drains a and cleared and. made aval labia, Í fer wefcMeutiai purposes, but sM fM that to 'dies*, the same .would cost About f&OQ »& ««es,, »ná in gmib the swamps and rid the lana of weeds and roots, would cost about 500 dollars an afire, all of this land being termed by the witness as "ordinary louisiana swamp."

It has appeared to the judge of the Trial Court, who, in his reasons for judgment, states he has personally Inspected the territory to be included in the extension, that the ordinance is reasonable, because of the fact that the proposed extension, at least that part known' as Marrero land property, and the property of Mary Beattie, are already sub-divided into lots now selling at an average of $260 per lot (30' x 120'). If this land, sub-divided into lots Was contiguous to the. present town and town lots of Vestwego, it might he considered reasonable to take in suoh territory and to assume that these newly acquired or included lots would unite with the larger oorporation in risking ft homogeneous town, but the Beattie sub-division is shown to be widely separated from, and in the lower extreme eastern part of the proposed annexation, with -no próbable benefits of local government to be derived by the new territory, from the present territory. In relation to a similar situation, it has been stated that "when actual unity is impracticable, legal unity should not be attempted." Vestal vs. Little Rock, 15 S. W. 891. In McQuillin on Municipal Corporations, Vol. 1, Par. 276, the text writer comments as follows:

"Several tracts may be annexed as being contiguousif one is contiguous to the municipality, and the otter tracts are contiguous to each other." Catterlin vs. Frankfort, 87 Ind. 45.

Another reason given by the Judge of the lower Court is that the new Catholic Church, at which the people' of the Town worship, nov; situated outside of the present Town limits, would be included in the extension. This, of Itself, would be no reason for the extension, inasmuch as the Ohuroh. oannot, of itself, return benefits to the Corporation through taxation, and as a fact, the evidence shows that the looatior of the Church is within square 4, directly contiguous to the central, or nea&-central part of the present Town, and -¿test for this reason, inclusion or not, of the Church, would not materially help or benefit those v.ithin or without the present Town limits. It is further found as a reasonable ground for inclusion, that the site of the new proposed high school, y/hioh is already purchased by the School Board, and which is located some distance east of the-Church, and opposite square lío. 29 on the plot, would be a considerable advantage to ^he new, as well, as to the old Town. The school building is not, under present conditions, a municipal building, but a parish or district school building, and its functioning is not dependent upon the proposed annexation. It is noted in the reasons for Judgment, that a small portion of the land in the proposed extension, is used for agricultural purposes, and that tie great bulk of the land remains idle except as used for pasture purposes Unless it oan be shown (and the aeroplane pictures show to the contrary) that this large bulk of land is available for town purposes, we are inclined to respectfully differ from our brother of the lover Court, in finding this as a reason for expansion of the present Town of Uestv.ego. Uhile it is further noted in the opinion that the swamp land will, in the future, be easily drained, re find, on closer examination of the evidence on'this point, that suoh facilities are not to be hoped for, nor easily, nor inexpensively obtained in the near future. We do not find from the evidence, as stated in the oonolusions of the Court, that the Toy/n of Uestvego is presently congested to any suoh extent as v/ould Justify the expansion of this Town a mile or more east of its present situation, especially when suoh a tract of land as is embraced in square 4 to 22, immediately contiguous to the present Town, W not, as ye^,occupied for residential or industrial purposes.

Counsel for defendant urg“3 our particular attention to the ruling made in Lawrence v. Town of Hansfield, 129 La. 672. Ue have carefully examined the opinion of tr.e Chief Justice upon the merits of this ease, and find nothing therein said by the Supreme Court which in any way opposes the views we would adopt here. In the Mansfield ease, the higher Court found (as v/e cannot in this case) that the testimony was about equally divided, upon which the question, velnon, of reasonableness of the ordinance could be decided, and laid down the doctrine that in order to characterize the measure of a body as unreasonable, it must be made to appear by abundant evidence that it is unreasonable. This is but another method of declaring that in cases arising under Act 136 of 1898, the burden of proof'as to the ordinance being or not being reasonable falls, in each case, upon the petitioners in appeal, that is, upon oomplainants. The convincing evidence of every witness for the petitioners herein - coupled with and fortified by the record admissions forced, in cross-examination, upon the witnesses for defendant,- establishes conclusively that the burden, required in the Mansfield case has been fully carried by the oomplainants now before us.

In Railroad Co. vs Town of Vadalia, 117 La. 562, the Supreme Court did not reverse the lower court on the question of the reasonableness of the ordinance, but upon the question of the constitutionality -of Act 136. of 1898, and after finding the Act constitutional, it was then decided upon the merits of the case, established upon circumstances wholly different from those arising in the instant case, that the Railroad's contention that the ordinances were unreasonable, were insufficiently supported by the evidence.

Analysis of the case of State v. Mayor of Dodson, 123 La. 904, shows no similarity whatever to the facta before us. But in said case, as. well as the Vadalia case, there can be no doubt that the Supreme Court has decreed that under the statute che functions delegated to municipal authorities invested by the aot with power to exert their judgment and discretion on matters of town extensions, etc*, are in their nature judicial, rather than legislative. This being the interpretation given to the Statute, it is not difficult to see the wisdom of our courts in holding as shown in the Mansfield decision, that the burden of disproving'the reasonableness of a quasi Judicial body's action, should fall upon those challenging the same. As said above, the petitioners in the instant case have successfully carried this burden.

In the case of Bowman Hicks Lumber Company, et al., v. Town of Oakdale, 144 La. 849, it is true that tho Supreme Court affirmed the Judgment of the Lower Court, maintaining the reasonableness of the ordinance, and also in that case, .as in this one, the Judge, a quo, had inspected personally the proposed extension, court giving to the appellate^the benefit of his views in a v«ll-oonsidered opinion. The printed report or this decision is of value in enabling us to -compafe that oase with the one before us for consideration, for the -particular reason that on page 851 of the report, there appears a map showing definitely the fact that all of the properties of the four several complainants were .immediately contiguous to the Town of Oakdale, and that the nature of the business, which was the manufacturing of lumber, required large quarters in connection with each of the plants, or liupber yards, and mills , a fact which naturally resulted in almost completely surrounding the Town of Oakdale with labor and like grades of employment, creating settlements of people in large numbers, v.ho were.not amenable to the police, health or other control of the Town which these mill-yards and quarters encircled. The facts are shown further, that in the Oakdale ease the contemplated additions, running in four directions would have done nothing more than double the area of the Town site, whereas in the instant ease, as heretofore noted, it was shown that the increased area would be almost ten times that of the Town of Testwego.

McQuillin on "Municipal Corporations," discusses the rule of reason, which should, apply in cases of addition or reduction of municipal boundaries, as follows;

Vol, 1, Par. 274; p. 681.
"As a general proposition, the reasonableness of the extension must be determined by the oirenmstanoes existing at the time of the prooeedingjtxxxxx. In determining the reasonableness of the extension of corporate boundaries, the extensión must b<- considered as a whole, the cginotion is not whether it is reasonable in each and every part."
Par. 275:
"The extension is not unreasonable if the territory embraced is nearly all improved and necessary for municipal purposes. But if the territory is sparsely settled, situated remotely from the thickly settled portion of the municipality, and would receive no advantage or benefit from the extension, but would be burdened with additional taxes, and the residents of the territory prefer to remain v-ithout the municipality, it should not be annexed." Orlando vs. Orlando Water & Light Co., 39 So. 532, Supreme Court of Florida.
Par. 278:
"A3 the territory of a municipal corporation is usually divided into lots and blocks, and the residents do not depend on the cultivation of the soil for a livelihood, it Is not the policy of the law to annex large tracts of agricultural lands.to a municipality, unless under the circumstances of the particular case, they should be included, for instance, if they should be needed for city purposes.
Farm lands which would derive no material benefit from being included within the boundaries of a municipal corporation, and which would be burdened with additional taxes, and which are not needed for municipal purposes, should not be annexed."

In the case just cited, the allegations of the petition objecting to annexation were, in effect, that the district supposed to be annexed was sparsely Settled, that less than ten registered voters lived therein, that it was remotely situated from the thickly settled portion of the Oity to which it was to be annexed, that the objectors would reoelve no advantage of light or pollóe protection, that in do way was it advantageous, but would be a burden resulting from additional taxation, and that the residents or objectors, preferred to remain in the oountry. All, or at least a large majority, of the above objections apply to the case under our consideration,from the facts as shown. In Town of Latonia vs. Hopkins, 47 S. W. 248, denying the right of .annexation, it was ruled that the Court should be satisfied that the adding of the territory to the Torn would be for its interest, and would cause no material injury to the persons owning real estate in the territory to be annexed, and in this case the court found facts quite similar to those under consideration, it; appearing from the evidence, that opt of 1050 acres, of which 600 acres had been put into lots by a syndicate, scarcely any streets had been laid out in said portion, and that there were houses on only about one in ten of said lots, the balanoe of the 600 acres being used for agricultural purposes, never being platted.

In the Latonia case the Court said:

"In our opinion, it would not be of benefit to the Town, itself, to annex such a vast scope of territory, as it would impose upon the municipality the Herculean task of providing side-valks; lights, and other necessities of municipal existence

The plan which has as its objective the purpose alone of increasing the income of a municipality, does not square with reason or justice, when opposition based upon conclusive evidence of disadvantage to the territory and its inhabitants sought to be annexed, is presented, as in this case. The rule laid down by the Supreme Court of Mississippi, in the case of Forbes et als., vs. Mayor, etc., City of Meridian, reported in the 58 Southern Reporter, 678, is most applicable to tl;e facts as we understand them in this case, and \.e quote that portion of the opinion found in the brief of counsel for complainants, as follows:

"The power of extending corporate limits is granted, not to be resorted to for the purposes alone of increasing the income of the municipality, but in order that the benefits incident to Civic Government my be extended to those residents in the territory adjacent to the municipality and included in the extension; and, 'further, that the municipality, by extending its police government, its sanitary and quarantine regulations, and its more adequate fire protection, may thereby conserve the best interests 'of the inhabitants rithin its original borders, and also give to those living in the territory included in the extension more efficient protection against devastation by fire and the enforcement of necessary sanitary regulations to public health, decrease the danger from disease and pestilence. These are the paramount considerations, and incidental to these, the citizens included in the extension are entitled to share in common with the other inhabitants of a municipality, the convenience of sidev/alks and lighted streets, firb protection and all other advantages of city life."

Of course, innumerable authorities may be weighed on either side of this question, but it is one that must be decided under the circumstances applicable to each case. Wnat may, or may not be reasonable, depends entirely upon the situations and surroundings presenting themselves in the particular case under which the question is to be determined. In "Words and Phrases?: "The word 'reasonable' is a term difficult of definition, and usually it must be considered with the facts of the particular controversy in determining its force and latitude. See 33 Cyc. 1560, "Reasonable: A generic term difficult of adequate definition; a relative term,to be determined according to the circumstances of the case."

For the reasons herein set forth, we are of the opinion that the law and the evidenoe in this case is in favor of plaintiffs and appellants heiein, that each and all of the objections set forth in. their petition, are well founded, an’d that the ordinance as adopted by the Town of Westwego oil the 30th day of December, 1919, proposing extension of the corporate limits of sala town, is not reasonable, and should be set aside. It is therefore ordered, adjudged and decreed, that the judgment herein of the 28th judicial district court for the parish of Jefferson, herein appealed from, be annulled, voided and reversed, and that the ordinance above mentioned be, and the same is hereby vacated, defendant herein to pay all costs of both courts.

March 27, 1922.

JUDGMENT REVERSED.


author: Dinkelspiel; J

text:
    NO. 8408
    COURT OF APPEAL PARISH OF ORLEANS
    OSCAP M. GWIN versus CITY OF NEW ORLEANS ET AL.

   Dinkelspiel; J

Plaintiff avers that on July 14th, 1931, the City of Sew Orleans through the Building Department, City Engineer's Office of said City, issued to the Pokorny Realty Company, of this city., owners of the building Ho. 407 St. Charles Street, in the square boundéd by Perdido, Poydras and Carondelet Streets, inxihs a permit to heve done and to do certain re-y.irs to the said building, ft a cost of $2350, which work consisted of repairs to decayed parts of said building wnere necessery, including support to píete glass and floors of show window. Alleging further.that the said Pokorny Realty Comer pany had previously contracted with your petition^to do the er said repair work, end that petitioner or e,nd on behalf, of the said Pokorny Realty Company applied for, and obtained, a permit to do the said work on the aforesaid premises, paid $2,50 fee to the City Engineer's Office for said permit to make repairs to said building and to show window on sidewalk, as aforesaid, and ell of which was verbally explained to the’ City Engineer's representative, and the said permit read as follows:

"This is to certify that Pokorny Realty Co., has complied with all the provisions of Ordinance No. 6713, adopted August 3, 1910. and permission is hereby granted to Pokorny Realty Co., to build at- s cost of $1250» "Repairs to Building", Petitioner further alleges that a few days thereafter .his employees began hauling material and also began to do the work under his contract, when .a representative of the City Engineer's office notified petitioner verbally that he would not i>é able to do any work on the show dindow. -Further alleges that on August 2nd, 1931, whilst-engaged in doing oert&ln work in the build, ing in the inside, his foreman and two oarpenters were arrested and sent to the First Precinct Polioe Station’and were prevented • from doing eny work, and that petitioner's employee* were refused permission to enter into said building for the purpose of geidetnxg. getting the permit issued, which wes k*pt on the building, 'Petitioner evers th?t notwithstanding the issuance of said permit the city of Mew Orlesns end the City Engineer's Office persisted in refusing to permit petitioner to do sny work on said premises or to enter s»me for said purpose and threatened that an affidavit would he me.de against petitioner if he failed to oomply with the order. Petitioner further alleges that the offioers end agents of the oity of Mew Orleans in violation of lew and of said permit c.re acting arbitrarily, oppressive, unfair, end unconstitutional, depriving petitioner’of'his only means of earning livelihood, end = Iso in vi&lation of the Constitution of tlie United States, end finally complaining that the aota of the oity aforesaid, ere unfair, unjust, inequitable and arbitrary end are done for the purpose of harassing petitioner in the pursuit of a lawful business end occupation, and that petitioner is a duly licensed building contractor, end that the aforesaid acts have damaged p-tit loner end xxs willoontinue to damage him unless the oity of Mew Orleans, its events and officers are prohibited from interfering with petitioner, and further have oa-used and ere causing petitioner ireepereble injury end damages, Invading petitioner'e personal and nrcperty ri~hts, for which compensation there is no sdequate/KBtsdty at lew since neither the Police Authorities nor the city flould he made to reap-nd in damages; ihiiiix Sir* and that if he persists in carrying on the work as stated, he and his workmen will be arrested rnd harassed by the officers end agents of the City of Msw Orlesns; th:refore a writ cf injunction is neoessery to protect petitioner in the premises, therefore after the usual affidavit and security being furnished in a sum fixed by the Court, the prayer is the t a writ of injunction be issued enjoining and restraining, Andrew UcShene, ifeyor of the City of Mew Orleans, John Klower, City Engineer, and Guy Moloney, Inspector of the Police of this oity, from in any wise interfering with petitioner and his employees in the prossoution oí se id work, which work consists of repairs to all decayed parts of s'.id building, wherever .necessary, including supports to plate glass and floors of shew windows:. that after due trial the injunction be maintained and the city end the authorities be enjoined from proceeding in the manner referred to. The petition was sworn to, bond given ss required by lew end the order of the Court was:
"The foregoing petition*^ oonddered, let the City of Hew Orleans, John Slower, City Engineer, and Guy Molony, Inspector of Police show cause on Friday the 13th de.y of August, 1931, at 10:30 A. M., why writs of injunction should not issue ss preyed.
(Signed) Porter Parker Judge."

Annexed to the petition are the permits referred to.

The answer of the City, through the Mayor, the City Engineer and the Supreintendent of Police, to the rule to show cruse, admit that a permit was issued on the de.te referred to, covering repairs on the building, not to exceed #1350, hut defendants deny that authority was given to plaintiff to make any repairs on, to reconstruct or to build any show windows or do any act in xiix violation of the Building Code or of the law. Further averring th't contrary to the provisions of Ordinance ho. 6713, known as the "Building Code", the said nlaintiff and his employees attempted to obstruct the public streets and sidewalks by building thereon certain show esses for a distance of sixteen inches beyond the property line and that said acts were in violation of the se id ordinance, contrary to law, and constituted an obstruction to the street and a public nuisance. And averring further that on the date in question plaintiff end his employees endeavored to violate the ordianoes end laws aforesaid by obstructing the public property, end that a representative of the City Architect's office ordered ssid work.discontinued in so far ;s it constituted an encroachment on the public streets; ihxkxixxsxHstrtolisdxxaxsaKzraashmxiitxiiHxkhsxs that plaintiff's employees pritend ■ d +ÉH; t'Tléj* Sí'óüilr g® ÍSsiás ani work on ctVr p-rts of the building, ’out :n ris-llty corittfivfe'4 Í8 wc'fk §ft tbs show windows in :;ue3tion b'hini the bsrflc* á> wti-iei? »?~& ;5üí ífi íro’ñ-f 6'f the pl'-ce; th"t ther-upon plaintiff •- Hi bis aaípieyses tí re dtiiy *rrés'f"i in Tccirdence with lrv;, :hd- sri 8.1 fids tit in- á-e in the i ir~t Redsfder' a Court figf inst plaintiff un-i.-r crdírrñc* tío. ©7Í3' s-fórea: i4-,- rf'hibís Oiuse is itill pending; ín th': íirot R--cori:r's Ccti-is't.

Arid assuming the position of ;lf:.ntifi in recoweníion, -•ver th • t ^etitiori-r h-s t hr ■-trli-si to sb-truct slid Snore oh upon th; cubilo etfcrl?;) >»hioh sot const-itutss- s. nuis-vnes, th*t defend-ncs -.r: entitl-i tó • 15 injunction prchioiting snd restrain-in'?; p'l- i-ntiff from further --ction. in the premises; tli--t the dsn'•jr=- o used- to the -lei-no nt = ar- irreparable, s,ni di.ends.nts heve na dí ...i:-te remedy -■£ l-r\í« They pr-y th:t plaintafi ' s suit be divai; sea, hv_- i____- nd rej oteá <-# hi.3 cost end that there be jud.uK nt in reccnre-nticn in f-ver of defendants against ple.intif-' enjoining *nd r-str-ining plaintiff from performing sny .irk on the -•■ho-.v -indo?:* "nd free, a.batruotinc "nd enoro'-ebing the audio stre--tí -'nd sidewalks, end for *11 giner-l relief.

&sSxxSiJxxmx»*ai An --r.er.del petit1 .n filed by Csc'-r Ü. 3-..-in, i-i'terates : 11 the "ferment? cc-r.ti ined in the criginel petion, nd ol-iming furth.-r th-t the crdin-nce in gueeticn does net 7 ; ply *nd h-s never been oen.-truei to apply to ra.:. ire but ordinance only t: n structure;,ar.l the pr-.y-r -i: ah t the/xa?x±xs be declared unoon-titution7!, null, void *n-d of no effect, '-ni aleo . _ u-ol red dioorimina-toxy t-ni finelly -r-ys for gen-.r 1 relief.

On the-r issued. ch= p rties .rent to triel.

rithcut ..nt=rin¿' into 'th: t ti*,ony in this a*s:, it is surf ic ;--ns to s-y this the eviieno: t a. due a d shows beyond ocncn y, th:t pi int iff, gent ov:r th- building nd iua m: dt er- ■ r,.r.'.a r¡tí uno r th- rmit ievued to do ..ark on the p-r?.-..ie *nu hr.-;--. ’nucos, -no. in th.- o;« i-se of ' work-it ■•? s --hewn tha-t the .at rkm c, ;iri r-p ir’n; -r.d pi at tin? a. . ai-Vcn-- of th.- front of the building where the -showces-e stood, they hs<I began to install stp.irwey «ni had siso taken out the rotten wood, at the bottom of ths show window when they were interrupted by the City Engineer's representative who tried to stop them end they were informed by the City Architect tbe-t they must t’.ke the window off the street sdd do it immediately, if not they were threatened with being jelled and in feet some of the men were arrested; it w^s further shown thft the show window in front of the building extended sixteen inches out, beyond the property line, that there wee no intention to move the show window out,3asiiB and to all the testimony thrt w-s offered, counsel for the City objected on ths ground th-1 the fsets involved show nothing but a legal question ss to whether or not the plaintiff .was or w~.s not violating the city ordinance. The objections were referred to the m..rits ?nd the testimony throughout this record ehows what w-s stated et the beginning.

The evidence introduced by ths City of hew Orleans does not in any wey materially change the issue in this cese, and doss not satisfy us that this was vrork done otherwise then the permit of the oity engineer's office permitted to b® done,

In the case of the State vs. Moritz Schuchardt, to be found in the 42nd s- Ann. at p. 49, it wee held: (the ordinance in question being identical with ths one referred to in this case) the court goes on to sey at p. 51:

"But the question presented for disoussion is, whether the power conferred by th® letter pirt of the perear«oh includes the authority to forbid necessary repairs to such buildings with the .seme kind of materis'ls used in the original construction?

If repairs and reconstruction ;:s synonymous terms, the power would undoubtedly be included.

But a very wide differ.noe exists between the meaning of the two terms; and besides, the ordinance does not only forbid the reps.ire of the. building, but even of s portion of the same, In the legislative enactment no reference -is me.de to repairs, and the power th-.-rsin conferred is in terms restricted to the prohibition of the reconstruction of e former wooden building with the same or similar materials. The reconstruction of a building presupposes ? previous destruction of demolition of such building, -»nd in such .? cese the operation could in’no sense be deemed or ecid to be a repairing of'suoh building, for the repairing of & building must, in the very neture of things, presuppose the contemporaneous existence of the building.

Hence It follows thet the sole object contemplated by the l»w maker wss to 'uthcrize the City Council to prohibit the reconstruction in wood, within the limits to be by it prescribed, of buildings originally built of wood, and existing as such ;-t the date of the ordinance, but which might subsequently be destroyed by fire or otherwise, or which might thereafter be demolished by the owners. But ecting under that legislative mandate, which avowedly was its only authority in the premises, the council went a great step further end it proposed to forbid the repairing of the roofs of such-buildings, except by using in such repairs non-combustib'le materials. Henoe asme the pre- . s“nt prosecution of this defendant for having replaced on the roof of his building old shingles by new ones. Evidently the de.nger from fire -,v°s not increased by that operation, end therefore it csn not be "rgus'd that he aoted in violation of the spirit or the letter of the statute, from which the city could derive ' its. sole power in the premises,"

And at page 53 the Court goes on:

"flow, the power in a municipal corporation to oontrol the owners cf property within its limits in using or building their property in e- manner different from their inolinetioni desire or convenience, can hot be ranked emong the implied and incidental powers which such corporations mey exefoise in the bbsenoe of legislative express/ábc®áaS2áaatodxw mandates, it is a useful power, presumably necessary to provide for the greatest good of the greatest number, but it is, at the same time, a power in derogation of common right, end unless it be expressly conferred, it will never be presumed to exist. Succession of Irwin, 33 An. 68, and authorities therein cited.
Except as to incidental power, end which need not be, though they usually ere, mentioned in the oharter, the oh»rter itself, is the measure of the authority to be exercised, and the general disposition of the courts in this country has been to •confine municipalities within the limits that a strict construction of the grants of powers in their charters will assign to them, thus applying substantially the same rule that is applied to charters of private corporations.

The Court finally held that the ordinance in question was null and void, and was ultra vires.

In the case of Crowley vs. West, 52 An. p. 534, in case of discrimination and violation of a, city ordinance, and the effect thereof, the court says:

"We find nothing in the record which would justify us ' in answering this question in the affirmative. Ordinances of municipal corporations, purporting to have been adopted, in the exercise of implied, or general authority, must be "lawful," "reasonable.," "impartial", "fair", "general," "oonsistent with publlo policy", and "not in contravention of oommon righti" Dillon on Mun. Corporations (4th Ed.)."
The Court goes on to say that"the business to be effected is a legitimate business, and there is not a syllable of' testimony in the reoord before us going to show it is conducted otherwise than in a proper manner,"

authorities are And the/authorities here quoted are in consonance with authorities the/authorities quoted in plaintiff's brief, State vs. Mahner, 43 Ann. 496, State vs. Gantz 124 La. 535, and New Orleans Baseball Association vs. the City of New Orleans, 118 La. 235. All of these authorities hold that where an ordinance is discriminating 6x vdiioh permits s. public' off ioial to discriminate it is unconstitutional, null and void.

The permit granted by the Cifcfcy Engineer's offioe in this case p-rmitted the repairs in question, and we can see no ^iol^-ticn of any ordinance introduced by the defendant, and there is no l-w which permits the city to °n?ct ordinances denying to one, the right to do certain things, whilst giving, to ethers th~ right to do the s^ms things.

F„r the r<'sons assigned, it is ordered, adjudged, srd decreed, th-t the judgment of th? Court equo be and the s-'.-ms ie hereoy affirmed, costs of both Courts to be paid by the defendant.

-Judgment affirmed-


text:
    CHAS. B. LEVY, versus LAWRENCE HERMAN
    No. 8421
    COURT OF APPEAL PARISH OF ORLEANS
    WILLIAM A. BELL, JUDGE:
    November 27, 1922.
   This is a suit to recover the sum of One Hundred and Forty-Eight Dollars and Seventeen Cents ($148.17) from defendant, 'who was formerly vendor of certain real estate upon which pity taxes for year 1918 had never been paid. The amount claimed represents a sum total paid by plaintiff, the former vendee who subsequent to acquisition from the vendor, defendant herein, was compelled to redeem the said real estate Sold at city tax sale for the delinquent caxws aforesaid.

There was judgment for plaintiff in the amount prayed for, and defendant has appealed.

For determination of the matter before us, the deseriptibn and locality of the property is not important, no question of title thereto being involved. The only issue is liability vel non of defendant under the warranty clauses of the deed.by which he conveyed to plaintiff the property subsequently .sold, or partly sold, by the City of Hew Orleans in satisfaction of delinquent taxes for the year 1918.

The evidence is conclusive that in the deeds of sale and re-sale involving the conveyance between the parties, coupled with usual clauses of warranty and subrogation, all taxes were declared and warranted by defendant to have been paid up to and inclusive of City taxes for the year 1919. All parties mentioned in the deeds believed this to be a fact. It was not disclosed to the contrary until sfter advertisement and sale by the City of Hew. Orleans of a portion of the property to one 3. J. Z-ahn, from *hom plaintiff redeemed by payment of the amount now sued upon. It is specifically alleged in the petition, not denied in the answer, and therefore to be taken ss true, that plaintiff, being informed of' the tax sale attempted without avail to have defendant' redeem the property, and failing in this, that plaintiff was compelled to ao so himself.

We find that through error of: assessment appearing on the City's assessment rolls for the year 1917, property owned by defendant and sold by him in that same year to other parties than plaintiff; was allowed to remain'in defendant's name while the property which defendant had not sold to anyone until he sold to plaintiff in 1919, was assessed to those partiew to whom he had sold in 1917. The result of this 6rror on the part of the assessment officials, was that in the year 1918 when plaintiff paid City taxes for that year, he was given receipt and credit for payment of City taxes of 1918 on property which he had previously sold in 1917. Failing, as he admits; to carefully read and examine the receipt given for 1918 taxes, he remained in the complacent, but erroneous, belief that he had paid all taxes on the property finally conveyed to plaintiff in 1919, and subsequently sold by the City for the delinquent taxes of 1918.

It is not an issue before us, nor are we concerned with determining by whose fault the error arose resulting in the ultimate tax sale which undoubtedly clouded plaintiff's title to property bought in good faith and under all precautions Which the law could reasonably impose upon a purchaser of real estate.

The invalidity of the tax sale under which Zahn aoquired and from whom the plaintiff redeemed, is pleaded by defendant, as the sole defense to tints suit. He has alleged ana attempted to prove the erroneous assessment above referred to, as well as failure on the part of the tax authorities to serve notice of delinquency on either parties to this suit. It is argued, that because of these irregularities, the tax sale íb' striken with nullity and relieves defendant of any liability to plaintiff or others arising from the tax sale or redemption. Such a defense is a collateral one, not pertinent to the issues arising from this ease', and cannot be pleaded as a valid defense 'against the cause of action,-which has arisen.

As afores-tated, .the warranty clauses in the .'deeds -of sale by which defendant conveyed to the plaintiff herein, and the subrogations given in favor of all of plaintiff's transferees against eny defects in the title to property, conveyed, and• partícula vly against any encumbíañ®®® WMsfe Sight bay® ex- .... '■ • > ‘,,7 .„'rr.lJií-u -,X\\ ,i ’Jü[L1C..vví.í: óS ■•:."* o íi .rU'*. isted at the time of the conveyance, assures to the plaintiff rs"5iX at ■ I.V.O OÍ , J-..-;.-,- ' - -herein a right and cause action in seeking sugh peligf against --- S--t. -. '.,iO c„o oi; uoitn In ,:i., ..w . defendant as will held him harmless from any liability for taxes j_„í nos..; Ni /.■•tkm.ss ? •' -,!.y ••,.5'* or other encumbrances which arose prior to, or at the time of '■'“fir U i j'tj Tit it „■ i. .; t, 0 1- C . O j the deeds of sale.

Vie find frgm the gfi^er¿g§ iñ tMs 0&se thit the neoessity for a redemption of the property &§ ü!®á§ fey plaintiff arose through no fault of his, and that defendant, unjLgr his warranties, is bound to place him in that position in teiqh he would have been at the time of the conveyance. We also find ho wor. ,.u i'tvci t- y. ... b . ... as a necessary conclusion from the pleadings of this Case, that hsat.fcf/sr^ ooriolu;,. oj. j.-, •¡-‘i.i'u .i. ■ defendant has made a record admission to the effect that he was ;k ¡-.h's . ,acic- a r;g-... • ......' given opportunity to avoid the neoessity of plaintiff's bringing .* V'Cl1. 0¿ uO J \.0 .< v. ' ’ . j • j j;, ¿ , C j i fhis suit, and that he himself could have redeemed the property í-Ni-cT iKl os ¿í./- uiAí v .*.£ <.r>v.í J" 'jy‘-\1u .» yf; * *. •* and fulfilled the warranties undertaken hy him. Even though tv.r.% ..'.'xj...'.. ..c;.. onoorta.. j i '. .: ■ , ... the error from which this litigation has arisen i& thgt of a ¡rtig 8t?0T .from wrx.Vo this il-.i Jetion v* . third party, not made a litfsant in the proceedings, it is no <t i-|¡ r/lt '.V-oocOdjr'g: . defense to him whose duty is to comply With h.ig warranty, to plead the fault of said third party as a defense iso hi§ liability,

Whatever the defendant's remedies may be to Vti.i.'i-.' • ' i ; ;■ i .reooup t,he losses growing out of the erroneous assessment and veo;: ...;¡: o,o . row 1 y . ■■ ■ ■ i* - . • .. ■ Subsequent tax sale and redemption, defendant cannot collaterally ¡,;uD.v;.<£tt¡>rvc tax oslo >:¡¡f »di-r -li-on, d-.¡'t..i,í>s-'jt o...... -* "+-hers, or of his own, as a defense against plead the fault oí o ufe**;’ nx ¡ bis own. „e .- , .. . JV , +._ ,. , , • J'-iflobted to one the liability for v/hioh he alone is primarily íuuenú f> ;.x . who has suffered because of the error not chargeable against the plaintiff.

For these reasons, we are of the opinion that the judgment appealed from is correct.

?l 3-S therefore ordered, adjudged and decreed, that the judgment Jiprein appealed from be, and the same hereby is, affirmed, at defendant's cost in both courts.

JUDGMENT AFFIRMED.

November 27, 1922.