author:
HAWTHORNE, Justice.
      FOURNET, Justice Q’NIELL, Chief Justice BOND, Justice. McCALEB, Justice HAWTHORNE, Justice.

text:
    212 La. 886
    ST. MARTIN PARISH POLICE JURY v. IBERVILLE PARISH POLICE JURY.
    No. 38126.
    Supreme Court of Louisiana.
    April 21, 1947.
    On Rehearing Dec. 15, 1947.

      Ferd C. Claiborne, Dist. Atty., of New Roads, and Obier & Middleton, of Plaque-mine, for defendant-appellant.
    L. O. Pecot, Dist. Atty., of Franklin, Minos Armentor, Asst. Dist. Atty., of New Iberia, and Guidry & Willis, of St. Mar-tinville, for plaintiff-appellee.
   HAWTHORNE, Justice.

This is an action to have ascertained and determined judicially the location of the boundary line between the Parishes of St. Martin and Iberville, and the Police Jury of the Parish of Iberville has appealed from a judgment of the district court locating the boundary line as contended by the Police Jury of the Parish of St. Martin and decreeing the lands or area between the disputed lines to be situated wholly within the Parish of St. Martin.

The Police Jury for the Parish of St. Martin instituted this suit against the Police Jury for the Parish of Iberville, alleging that both the Parish of St. Martin and the Parish of Iberville were created by Act No. 1 of 1807, and that the boundary line between these parishes was fixed and established by Act No. 130 of 1847; that under Section 2 of this act the true and correct boundary line between St. Martin and Iber-ville Parishes to the east and northeast of St. Martin Parish, extending from Whiskey Bay (Osea or Oski Bay) running north and northwest to the south line of Township 6 South, Range 8 East, the south boundary of Pointe Coupee Parish, is now, and since 1847 has been, in the middle or thread of the East Fork of Bayou Alabama from its mouth in Whiskey Bay up to its intersection with the south boundary line of Pointe Coupee Parish; that all the lands to the south and west of this alleged boundary line lie within the Parish of St. Martin, and those north and east thereof in the Parish of Iberville.

Plaintiff alleges that, notwithstanding the law defining and fixing this boundary, the Parish of Iberville is arbitrarily and without warrant in law claiming as the boundary “a line commencing at a point about three miles north of the mouth of the East Fork of Bayou Alabama in the southeast corner of Sec. 60 T. 8 S. R. 8 E., following said south line of Sec. 60 to the back line thereof, said line thence running north, northeast, north, northwest following the back lines of Secs. 60, 59, 58, 57, 56, 55, 54, 53, 52, 51, 50, 49, 48, 47, 46, 45, 44, 43, 42, 41, 40 and 39 in T. 8 S. R. 8 East and following the back lines of Secs. 32, 33, 34, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, '64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 93 all in T. 7 S. R. 8 East, to a point where it intersects the Township line between T. 6 S. R. 8 East and T. 7 S. R. 8 E. about four and one-half miles west of the East Fork of Bayou Alabama”; that the boundary line as claimed by defendant is erroneous, arbitrary, and contrary to the proper legal interpretation of Section 2 of Act No. 130 of 1847; that between the two lines there is an area comprising approximately 10,432.44 acres, and that all of these lands lie to the south and west of, and are situated entirely on the west bank of, the East Fork of Bayou Alabama; that the bed or channel of the East Fork of Bayou Alabama exists today as it did in the year 1847, that no material change since that year has taken place in the channel or course of that bayou, and that it has always been and is at the present time a navigable stream.

It is alleged that the Police Jury of St. Martin Parish pursuant to the provisions of Section 2624 of the Revised Statutes of 1870, Section 6356, Dart’s Statutes, on February 19, 1919, adopted an ordinance for the purpose of ascertaining and fixing the boundary line between the Parish of St. Martin and the Parish of Iberville, and by ordinance appointed Charles Gutekunst, civil engineer, as its surveyor, to meet on September 8, 1919, the surveyor to be appointed by Iberville Parish. The petition alleges a full compliance with Section 2624 of the Revised Statutes of 1870 except that it does not allege that due return of the proces verbal and map of the surveyor of the Parish of St. Martin was made to the presidents of the police juries of both parishes, or that plaintiff has caused the map and proces verbal to be filed and preserved in the offices of the recorders of these parishes as required by law.

The petition further alleges that the Parish of St. Martin is entitled to have the survey of Charles Gutekunst, filed on December 1, 1919, recognized as being officially correct and as correctly fixing and describing the boundary line between the parishes, and, further, that a proper and legal interpretation of Section 2 of Act No. 130 of 1847 establishes the boundary line between Iberville and St. Martin Parishes in the middle or thread of the East Fork of Bayou Alabama from its mouth in Whiskey Bay running north and then northwest to the south boundary line of Pointe Coupee Parish, and that all lands west and south of the line are situated wholly within the Parish of St. Martin.

The defendant, Police Jury of the Parish of Iberville, first filed a plea of prematurity aimed at the fact that plaintiff had failed to allege in its petition due return of the proces verbal and map made by Charles Gutekunst. Thereafter plaintiff amended its petition to show a full compliance with Section 2624 of the Revised Statutes of 1870, and, when this amended petition was filed, the plea of prematurity passed out of the case.

To plaintiff’s petition defendant, Police Jury of the Parish of Iberville, filed an answer, admitting that Iberville Parish was created by virtue of Act No. 1 of 1807, and that the boundary line between that parish and the Parish of St. Martin was fixed and established by Section 2 of Act No. 130 of 1847; that the boundary line between the two parishes which plaintiff’s petition alleges defendant is contending for, and as described in the petition, is the true and correct boundary line.

Defendant’s answer denies all material allegations of the petition, particularly those with reference to the survey made by Charles Gutekunst pursuant to Section 2624 of the Revised Statutes of 1870, and alleges that the boundary line between the Parishes of Iberville and St. Martin is, and has since 1847 been, recognized as including within the Parish of Iberville all of the lands lying between the disputed boundary lines, and that all of these lands are shown to lie within the Parish of Iberville by various maps and surveys, all filed in evidence.

Defendant avers that the lands have always been assessed, taxes paid thereon, and muniments of title thereto recorded in the Parish of Iberville, and have been recognized by all persons owning lands situated in this area to be in the Parish of Iberville; that the Police Jury and public officials of the Parish of St. Martin have since 1847 recognized these lands to be within the Parish of Iberville; that following a conference between the officials of these two parishes the officials of the Parish of St. Martin acquiesced in the correctness of the boundary line between the parishes as contended for by defendant, and pursuant thereto the Police Jury for the Parish of Iberville on August 1, 1910, passed a resolution declaring and fixing the boundary line in dispute, and that for all of these reasons the Parish of St. Martin and its officials are estopped from now questioning the correctness of the establishing of said line.

The case was submitted to the district court on an agreed statement of facts and exhibits. The trial court rendered judgment decreeing and fixing the boundary line as contended for by the Parish-of St. Martin, and decreeing the lands or area between the disputed lines to be situated wholly in the Parish of St. Martin. From this judgment defendant, Police Jury for the Parish of Iberville, has appealed to this court.

On the map made by Charles Gutekunst, civil engineer, on December 1, 1919, filed in evidence, plaintiff and defendant have stipulated that they have superimposed a red line showing the boundary line contended for by the Police Jury for the Parish of Iberville. This boundary line is fully described in plaintiff’s petition, as set out hereinabove. We have attached to this opinion a photostatic copy of this map, and for clarity have designated thereon the boundary line contended for by the Parish of Iberville by the letters “A-B-C”, and the line contended for by the Parish of St Martin (which runs up the middle or thread of the East Fork of Bayou Alabama from the southeast corner of Section 60 to the township line between Townships 6 and 7 South, Range 8 East) by the letters “A-D”.

An examination of this map discloses that only a portion of the boundary line as fixed and defined in Section 2 of Act No. 130 of 1847 is in dispute, being that portion which is described in the act as “thence -following the said branch [the East Fork of Bayou Alabama], including the inhabitants of both sides thereof,. upwards to the township line between townships six and seven, or the southern boundary of the parish of Pointe Coupée”. (All italics ours.)

The title to Act No. 130 of 1847 reads as follows: “AN ACT To define the boundary line between the parishes of Iberville and Ascension, and the boundary line between Iberville and St. Martin.”

Section 1 of the act fixes the boundary line between the Parishes of Iberville and Ascension. Section 2 establishes the boundary line between the Parishes of Iberville and St. Martin, reading thus: “Sec. 2. Be it further enacted, &c., That the line between the parishes of Iberville and St. Martin shall begin at a point where the line between townships eleven and twelve strikes the Atchafalaya commonly called Grand River, or Old River, on its western bank, west of and near Lake Natchez; thence running west along said township line until the same strikes the eastern branch of Bayou Pigeon; thence along the middle of said Bayou, and middle of little Bayou Pigeon to the north of Cross Bayou; thence along the middle of Cross Bayou to its 'junction with Lake Long, commonly called Murphy’s Lake; thence through said lake to a point on its western shore, three miles north of said township line; thence west parallel therewith to lake Chicot; thence along the eastern border of said lake Chicot to the main eastern navigable entrance into Bayou Sorel Bay; thence northwardly along the middle of said entrance or pass, and bayou Sorel Bay to the upper Bayou Pigeon; thence along the middle thereof, north-wardly to its junction with the Atchafa-laya, called Grand River; thence along the middle of Grand River to Oski Bay;: thence through the middle thereof to the eastern branch of the bayou Alabama; thence following the said branch, including the inhabitants of both sides thereof, upwards to the township line between townships six and seven, or the southern boundary of the parish of Pointe Coupée; the portion north and east of said line to belong to the parish of Iberville, and south and west to the parish of St. Martin.”

It is a fundamental rule of statutory construction, well settled in law, that it is the duty of the court to ascertain and give effect to the intention of the Legislature as expressed in the statute, and that in construing the statute all parts thereof should be construed together and each part or section should be construed in connection with every other part or section, as the ultimate object is to reach the legislative intent. Reynolds v. Baldwin, 1 La.Ann. 162; Louisi-Western R. Co. v. Village of Duson, 146 La. 190, 83 So. 455; State ex rel., Lyons v. Democratic State Central Committee et al., 165 La. 531, 115 So. 740; Houghton v. Hall, 177 La. 237, 148 So. 37; 2 Sutherland Statutory Construction (Horack’s Third Edition), Section 4703, page 336.

It is equally well settled that the court must give effect to all parts of a statute, if possible, and construe no sentence, clause, or word as meaningless and as sur-plusage if construction giving force to, and preserving, all words can legitimately be found, and the court should construe an expression in a statute so as to give it effect rather than to render it meaningless in respect to context. Clark et al. v. Morse, 16 La. 575; State v. Fontenot, 112 La. 628, 36 So. 630; State v. Mestayer, 144 La. 601, 80 So. 891; State v. Texas Co. et al., 205 La. 417, 17 So.2d 569; 2 Sutherland Statutory Construction (Horack’s Third Edition), Section 4705, page 339.

The clause “thence following the said branch, including the inhabitants of both sides thereof, upwards to the township line between townships six and seven, or the southern boundary of the parish of Pointe Coupée” is certainly ambiguous, and it has been difficult for us to determine the true intent and meaning of the Legislature in placing it in the act. It is a very indefinite call to be found in a boundary description. We are convinced, however, that the Legislature included these words in the statute for some definite purpose, and that they cannot be declared meaningless if we can give them a reasonable interpretation.

It is to be noted that in fixing the boundary line the Legislature, in every other instance when a bayou, bay, or river constituted a part of the boundary, used the expression “thence along (or through) the middle of” said bayou or other watercourse, until the description of the line reached the East Fork of Bayou Alabama. At this point the Legislature changed its terminology and, instead of repeating “thence along . (or through) the middle thereof”, used the expression “thence following the said branch, including the inhabitants of both sides thereof”. We do not think that anyone can question the fact that, when the East Fork of Bayou Alabama was reached in the description, the Legislature had some definite and fixed reason for departing from the phraseology used to describe the course of the boundary along or through the middle of the various other watercourses. Otherwise the same language and identical words could and would have been used as had been employed before in the act, and the description of this part of the boundary would have read “thence along the middle of said branch”. It is clear to us that the Legislature did not intend that the middle of the East Fork of Bayou Alabama was to be the boundary line between the Parishes of Iberville and St. Martin.

The acts of 1847, passed by the Legislature over a hundred years ago, were published both in English and in French. The clause “thence following the said branch, including the inhabitants of both sides thereof, upwards to the township line between townships six and seven, or the southern boundary of the parish of Pointe Coupée” appears in the French text as “de la, elle suivra la dite brariche des deux cdtés y compris les habitations, jusqu’au dessus de la ligne de township entre les townships six et sept, ou la limite sud de la paroisse Pointe Coupée.”

The writer of this opinion has obtained a translation of this French clause into English 'by competent and qualified French scholars, which translation reads as follows : “thence it [the line] shall follow the aforesaid fork including the plantations on both sides, as far up as the township line between townships six and seven, or the southern boundary of the Parish of Pointe Coupée”.

This translation of the French text discloses that it is not so ambiguous and uncertain as the English text. As pointed out in the case of Parish of La-fourche v. Parish of Terrebonne, 34 La. Ann. 1230, we have not lost sight of the rule of our jurisprudence that, when the two texts differ, the English text must prevail, but that, “ ‘when a law, written in the language of the Constitution is doubtful, the sense in which the members of our Legislature, who at that time spoke French understood it, may be safely called to our assistance to explain what is uncertain’ ”.

We concede it to be true that it is very difficult to define or establish a boundary line so as to include the inhabitants on both sides of a watercourse. But this is not true with respect to the plantations located on both sides of such a watercourse, as these are definite areas and can be ascertained with certainty at the time, or shortly after, an act is adopted containing such a course or call.

The fact that the Legislature changed its phraseology shows that it was its intention not to establish the boundary along the middle or thread of the East Fork of Bayou Alabama. We therefore conclude that it was the intention of the Legislature to follow said fork or branch upward so as to include the plantations on both sides thereof within either the Parish of Iberville or the Parish of St. Martin.

In our efforts to throw some light on this complex problem, we have examined the journals of both the House and the Senate of 1847 for the history of Act No. 130 of that year.

According to these records, on March 9, 1847, a Mr. Templet presented to the House of Representatives two memorials of certain inhabitants of the Parish of Iberville relative to the division line between the Parishes of Ascension and Iberville. These memorials were referred to the Committee on Parochial Affairs. On March 12 the chairman of that committee, pursuant to these ipemorials, reported the following bill: “An act to establish the boundary line between the parishes of Iberville and Ascension.” The bill went through its first, second, and third readings, and passed with its title.

On March 12, 1847, the assistant clerk of the House requested the concurrence of the Senate in certain bills, among these being "An act to establish the boundary line between the parishes of Iberville and Ascension”. On March 17 this bill underwent its first reading in the Senate. On March 25 on motion of Mr. Kenner the rules were suspended, and the Senate took up “An act to establish the boundary line between the parishes of Iberville and Ascension”. This hill then underwent its second reading in the Senate and was, on motion of Mr. Adams, amended and adopted as amended. On motion of Mr. Kenner the rules were again suspended, and the bill underwent its third reading and passed as amended. On motion of Mr. Adams the title of the bill was then amended by adding at its end the words “and the boundary line between Iberville and St. Martin”. On motion the title was adopted as thus amended.

On March 26 the House of Representatives was informed of the concurrence of the Senate with amendment to title and body of “An act to establish the boundary line between the parishes of Iberville and Ascension, and the boundary line between Iberville and St. Martin”, and on March 29 the bill was read and postponed. On April 6, Mr. Derbes moved to strike out that portion annexing a portion of the Parish of St. Martin to the Parish of Ascension. This motion was lost. Thereupon Mr. Williams moved'to concur in the amendments, and on adoption of this motion it was carried by a yea and nay vote, and the amendments of the Senate were concurred in, and the clerk was directed to inform the Senate of this fact.

Mr. Kenner, who was mentioned in *he Senate entry of March 25, 1847, and on whose motion the rules were suspended and the bill read and taken up, was Mr. Duncan F. Kenner, senator from the Parish of Ascension. It is significant that the Mr. Adams who is mentioned in the same senate entry, and who made the motion to amend the bill and place therein Section 2 which defines the boundary line between the Parishes of Iberville and St. Martin, and on whose motion the title was also amended by adding the words “and the boundary line between Iberville and St. Martin”, was Mr. Christopher Adams, senator from the Parishes of Iberville and West Baton Rouge.

The Senate and the House journals clearly disclose that the act which we are now considering had its inception or beginning as a result of two memorials presented to the Legislature of that year by inhabitants of Iberville Parish, and was primarily steered through the Senate by the Iberville Parish senator, on whose motion the title and body of the bill were amended to fix the boundary between Iberville and St. Martin Parishes. If the senator and the representative who represented the Parish of St. Martin in the Senate and the House were present and took any interest in the passage of the bill, the journals fail to disclose this fact.

The title to the act is divided into two parts, the first to define the boundary line between the Parishes of Iberville and Ascension, and the second the boundary line between Iberville and St. Martin, and the act had for its purpose to establish these boundary lines primarily between the Parish of Iberville and the adjoining Parishes of Ascension and St. Martin, or, in other words, the act deals primarily with the Parish of Iberville.

With these facts in mind, considering the act’s inception as a result of memorials from residents of Iberville Parish, and the fact that it was steered through the Senate by the senator who represented that parish, we believe that, by the use of the words “thence following the said branch, including the inhabitants of both sides thereof, upwards to the township line”, the Legislature intended that the plantations on both sides of the bayou were to be included in the Parish of Iberville.

We are supported in this view by subsequent events which occurred during a period of some 40 or 50 years after the date of the act.

Defendant has filed in the record a photostatic copy of a map showing the area in controversy, that is, a part of Powell’s map of the Parishes of Pointe Coupee, West Baton Rouge, and Iberville and parts of St. Martin and Ascension, approved by William J. McCullough, surveyor general of the State of Louisiana, in 1858, or 11 years after the adoption of the statute; copies of township maps or plats of Townships 7 and 8 South, Range 8 East, approved by John Lynch, surveyor general of the State of Louisiana, in 1870, the originals of said maps being filed in the archives of the clerk and recorder of the Parish of Iberville since 1877 or earlier, and were no doubt procured by the Police Jury of Iberville Parish pursuant to the provisions of Section 31 of Act No. 42 of 1871, which made it the duty of the police jury of each parish to procure at the expense of the parish from the original records of the United States surveys a correct map, properly authenticated, of each and every township and part thereof contained in such parish, which maps were to be deposited with the recorder and made accessible to the parish surveyor in making surveys and to the tax collector in preparing assessment rolls; Dickinson’s map of 1883, made pursuant to a resolution of the Police Jury of the Parish of Iberville and covering the Parish of Iberville, most of West Baton Rouge, and parts of St. Martin, Ascension, and Pointe Coupee Parishes; copy of Hardee’s official map of the State of Louisiana of 1895, made pursuant to Act No. 143 of 1894, which provided for an official map of the State of Louisiana to be made by William Joseph Hardee and to be recorded in the state offices and with each parish, and, further, that this map should show “bayous and other watercourses, all removals of parish seats, all new parishes and corrected parish boundaries, * * * compiled from latest and most authentic private and public and government surveys * *

All of these maps without exception show the boundary line between the Parishes of Iberville and St. Martin to be as contended by defendant-appellant, the Police Jury of the Parish of Iberville, and conclusively prove that for a period of approximately 50 years, from the adoption of the act in 1847 to the year 1895, the boundary line between these parishes was at no time considered to be up the middle of the East Fork of Bayou Alabama from the southeast corner of Section 60, Township 8 South, Range 8 East, to the township line between Townships 6 and 7 South, Range 8 East, or the south line of Pointe Coupee Parish.

In addition to these maps we find in the record a copy of Thomas S. Hardee’s 1871 official map of the State of Louisiana, made pursuant to Act No. 166 of 1868. This map does not show any sections thereon, and we are unable to follow the parish boundary line with any degree of certainty. However, it appears that the map shows the line between these parishes to be somewhat farther west than contended by the defendant herein, but it does conclusively show that the maker of this map did not consider the East Fork of Bayou Alabama to be the boundary line between them.

When the Legislature by Act No. 130 of 1847 fixed and defined the boundary line between these two parishes, it exercised a legislative function. The interpretation of this statute is a judicial function, and we realize and concede that the map compilers could not legally fix or establish any boundary other than that defined and called for by the act. We are of the opinion, however, that the map makers who compiled and made the maps discussed hereinabove, at or near the time when the act was passed, may reasonably be supposed to be better acquainted than their descendants with the true intent and object of the Legislature in using the ambiguous clause which is the cause of this controversy, and, when they marked and fixed the line- on these maps as now contended for by appellant, they must have had good reason to believe that they were doing what the Legislature intended them to do.

Although the act was passed over 100 years ago, so far as the evidence in the record shows the Gutekunst survey of 1919, made 72 years after the adoption of the act, was the first to establish and show the boundary line to be up the middle of the East Fork of Bayou Alabama from Whiskey Bay to the township line. To accept this survey it would be necessary for us to delete from the act and com-letely ignore that part of it which includes the inhabitants or plantations on both sides of the bayou in one parish or the other and to give no effect whatsoever to this clause — a clause which we think was deliberately and designedly placed in the act and which has a reasonable meaning and interpretation.

Appellee contends that under this ambiguous clause the Parish of St. Martin would have as much right to claim the irregular sections fronting on the east bank of the bayou as the Parish of Iber-ville has to claim those situated on the west bank thereof. This may be true, but it is significant to us that for a period of almost 100 years the authorities of St. Martin Parish have made no such claim and have seen fit to ignore the clause, while on the other hand the authorities of the Parish of Iberville have construed the phrase so as to include the irregular sections on the west bank of the East Fork of Bayou Alabama in Iberville Parish and have contended that it was the true intent and object of the Legislature that these sections be included within the boundaries of that parish.

In the record there is an affidavit of Joseph A. Grace, clerk of court for the Parish of Iberville from 1892 to 1926, in which he swears that in the summer of 1910 the district attorney from the judicial district of which St. Martin Parish is a part and a committee of police jurors of that parish came to the Parish of Iberville for the purpose of discussing, settling, and fixing the boundary between these parishes, and that, after a discussion with the Police Jury of the Parish of Iberville and after examining records, including township maps, Dickinson’s map, and the Hardee maps, the district attorney and the committee from St. Martin Parish advised the Police Jury of the Parish of Iberville that the disputed area lying west of the East Fork of Bayou Alabama was really within the Parish of Iberville, and agreed that, if the Police Jury of Iberville Parish would pass a resolution designating the boundary as fixed by these maps, the district attorney and the committee would advise the Police Jury of the Parish of St. Martin to pass a similar resolution.

Both plaintiff and defendant admit that, if Joseph A. Grace were sworn as a witness, he would testify in accordance with this affidavit, but counsel for plaintiff do not admit that the facts stated in the affidavit are relevant or have any probative value. In brief they point out, and we think correctly so, that- this committee had no authority to abandon and release any rights of the Parish of St. Martin. However, the record discloses that on August 1, 1910, the Police Jury of the Parish of Iberville acted in accordance with the facts shown in the affidavit and adopted a resolution fixing the boundary line between the two parishes by the various maps herein-above discussed, and this is the line which defendant now claims is the true and correct one.

It is also true that on August 8, 1910, the Police Jury of the Parish of St. Martin met and received the report of the committee appointed to confer with the Police Jury of Iberville Parish relative to the boundary line between these parishes, and the proceedings of this meeting show that final action in the premises was deferred, and the committee was discharged with thanks.

We concede that the action of this committee could not define and establish the boundary line, the fixing of which, as we have pointed out, was strictly a legislative function. Nevertheless its actions indicate that the committee itself accepted the interpretation placed by the Parish of Iber-ville on the ambiguous clause contained in the act so as to fix the 'boundary line as contended for by the authorities of that parish.

Under a resolution of the Police Jury of St. Martin Parish, adopted February 19, 1919, pursuant to the provisions of Section 2624 of the Revised Statutes of 1870, a survey of the area in dispute was made by Charles Gutekunst, surveyor and civil engineer, and it is this survey which shows the boundary fixed by Act No. 130 of 1847 to he along the middle of the East Fork of Bayou Alabama up to the township line, and is the survey on which appellee relies as being a true and correct interpretation of the act of the Legislature.

Following this survey, on August 5, 1920, the Police Jury of the Parish of St. Martin instituted suit against the Police Jury of Iberville Parish to have this survey recognized and approved. Defendant in that suit, Police Jury of Iberville Parish, filed an exception of no cause or right of action. This suit was dismissed on plaintiff’s motion on March 10, 1941, some 21 years after it was filed, no further steps having been taken therein in the meantime.

In its answer to the present suit, defendant, Police Jury of the Parish of Iberville, denies service upon it of the ordinance of the Police Jury of St. Martin Parish, adopted February 19, 1919. In the stipulation of facts it is admitted that the records of the Parishes of Iberville and St. Martin do not show that the Gutekunst map of 1919 and the proces verbal thereof were filed with the president of the Police Jury of Iberville Parish prior to the institution of the present suit.

We find in the record photostatic copies of patents from the State of Louisiana and a certificate of the register of the State Land Office showing patents as having been issued by the state to every section (except two or three) of land in the disputed area, or on the west bank of the East Fork of Bayou Alabama. These patents in every instance where the parish in which the land is situated is named designate the land described as being in the Parish of Iberville, and the other patents do not name or designate any parish whatsoever. It is therefore evident that the State Land Office interpreted Act No. 130 of 1847 as placing these lands in the Parish of Iber-ville.

According to the stipulation of fact, the greater portion of the deeds, transfers, and muniments of title affecting the lands in the area in controversy, probably as much as 85 per cent thereof, are recorded independently and only in the Parish of Iber-ville, while some of the deeds, transfers, and muniments of title affecting these lands, probably 15 per cent thereof, are recorded in the Parish of St. Martin. This clearly indicates to us that the majority of the property owners in the disputed area were of the opinion and belief that the property which they owned was situated in the Parish of Iberville. .

It is also true that property in the disputed area has been assessed in both parishes, that tax sales of lands in this area have taken place in both parishes, and that in the records of the Parish of St. Martin there is a book of entries, “Abstract Record Parish of St. Martin”, certified by John S. Lanier, register, State Land Office, and that this record includes abstracts of entries to every section of land in the disputed area except two sections and a fractional part of one other. We do not, however, find any patents in the record showing the lands in controversy to be situated in the Parish of St. Martin.

Plaintiff has offered in evidence an official map of Louisiana, approved January 12, 1938, compiled by the Board of State Engineers by the authority of Act No. 159 of 1928, and also quadrangle map, edition of 1935, by the United States Army Corps of Engineers. The 1938 official map of the State of Louisiana shows the boundary line between these two parishes as contended for by plaintiff. However, we do not think that this map is of very much value in deciding this controversy when weighed with the numerous other earlier maps discussed hereinabove, all of which support the contention of defendant. The quadrangle map plainly states thereon that the boundary line between these two parishes is in litigation.

Since the Powell map of 1858, the township maps covering the area in controversy, certified by John Lynch in 1870, Dickinson’s map of 1883, and the Hardee map of 1895, the Legislature of this state has been in session many, many times, and, though each of these maps indicates the boundary line between these oarishes to be as contended for by the Police Jury of the Parish of Iberville, the Legislature during all this period of time has never indicated by any act that the map makers in compiling these maps did not correctly interpret Act No. 130 of 1847, or that the line as set out on these maps was not the correct line as called for in the act.

After a careful consideration of the entire record, we are of the opinion that the boundary contended for by the Police Jury of the Parish of Iberville is the boundary as defined and fixed in Act No. 130 of 1847, and that said boundary line is the one within the object and intention of the Legislature of that year.

Similar questions have arisen in our sister states, and we find the following expressions from the courts of Ohio and Virginia :

“The condition of things at the time the law was passed, the surroundings and circumstances calling for the law, the manner in which it was received and interpreted by those who were affected by the law, are weighty, evidentiary facts in determining the meaning and intention of the legislature as expressed by the law.
******
"Endlich on Interpretation of Statutes, say [says] in section 357, ‘It is said that the best exposition of a statute or any other document is, that which it has received from cotemporary authority. Where this has been by enactment or judicial decision, it is, of course, to be accepted as conclusive. But further, the meaning publicly given by cotemporary or long professional usage, is presumed to be the true one, even when the language has etimologically or popularly a different meaning. Those who lived at or near the time when it was passed may reasonably be supposed to be better acquainted than their descendants, with the circumstances to which it had relation as well as with the sense then attached to the legislative expression and the long acquiescence in the interpretation put upon its enactment by notorious practice, may perhaps be regarded as some sanction and approval of it. It gives the sense of community of the terms made use of by the legislature. If there is ambiguity in the language, the understanding and application of it, when the statute first comes into operation sanctioned by long acquiescence on the part of the legislature and judicial tribunals, is the strongest evidence that it has been rightly explained in practice.’ ” Commissioners of Warren County v. Commissioners of Butler County, 6 Ohio Dec. 536.
“And the court is further of opinion that in determining the territorial boundaries specified in said acts due weight should be given to the cotemporaneous interpretation placed upon the same by the courts and other lawful authorities within the same and by the population at large residing therein; and that maps of such territory made out or published by authority of law may properly be referred to as persuasive evidence in support of the pretensions of either party to have such weight as consistently with the other testimony in the cause they shall appear to be entitled to.” Hamilton v. McNeil et al., 13 Grat., Va., 389.

For the reasons assigned, the judgment appealed from is reversed, and the boundary line between the Parishes of Iberville and St. Martin, starting at Whiskey Bay, is judicially determined and located pursuant to the provisions of Section 2 of Act No. 130 of 1847, as follows: Along the middle of the East Fork of Bayou Alabama to the southeast corner of Section 60, Township 8 South, Range 8 East; thence following the south line of said Section 60 to the back line thereof; thence running north, northeast, north, northwest, following the back or west lines of Sections 60, 59, 58, 57, 56, 55, 54, 53, 52, 51, 50, 49, 48, 47, 46, 45, 44, 43, 42, 41, 40, and 39, in Township 8 South, Range 8 East, and following the back or west lines of Sections 34, 33, 32, 71, 70, 69, 68, 67, 66, 65, 64, 63, 62, 61, 60, 59, 58, 57, 74, 52, 93, 45, 44, 43, 42, 41, 40, 39, 38, 37, and 36, in Township 7 South, Range 8 East, to a point where it intersects the township line between Township 6 South, Range 8 East, and Township 7 South, Range 8 East, or the southern boundary of the Parish of Pointe Coupee, as shown on the Powell map of 1858.

All costs insofar as are allowed by law are to be paid by appellee, Police Jury of the Parish of St. Martin.

FOURNET, Justice

(dissenting).

The General Assembly of the State of Louisiana by its Act No. 130 of 1847 defined the boundary line between the parishes of Iberville and St. Martin with precision and certainty until the line struck the eastern branch of Bayou Alabama. However, the italicized clause in the provision following, “thence following the said branch, including the inhabitants of both sides thereof upwards to the township line between townships six and seven, or the southern boundary of the Parish of Pointe Coupee, gives rise to the different interpretations sought by each of the parishes as explained in the majority opinion. (Italics mine.)

This clause is meaningless and, in my opinion, impossible of any reasonable interpretation. I cannot conceive of any logical or reasonable construction that it can be given in the light of the object of the act.

From my appreciation of the French text, which is not only at variance with the English text in the particulars pointed out in the majority opinion but also with respect to the point from which the line in contror versy should begin (in the English text the point begins at the eastern branch of Bayou Alabama whereas in the French text it begins at the western branch, a point entirely out of line with the other calls), the matter is not clarified for it is inconceivable to me how a reasonable interpretation of this clause as reflected by the French text, could result in the running of the line in the manner provided for in the majority opinion.

There is nothing in the definition that even remotely authorizes the following of the branch of Bayou Alabama up to the point designated as A on the map and then permits it to suddenly (and without suggestion of any kind from the language used in the act) depart from the said branch in a northerly and westerly direction and to follow what seems to be the southern boundary of irregular Section 60 to point B on the map; to from there follow what appears to be the western boundary of a series of similar irregular sections some distance from the said branch to a point where these irregular sections spread out fan-shape and to then arbitrarily select the southern boundary of irregular Section 74 up to where it strikes the main fork of Bayou Alabama as the place where the line is to be run and from thence to the center of the main fork of Bayou Alabama; to then follow the middle of this bayou in a northeasterly direction to the point that when projected strikes the southern boundary of Sections 52 and 93; to then follow the southern and western boundaries of a series of irregular sections until it strikes a range line at a point where the southern boundary of irregular Section 36 meets with it and then proceed due north from there to point C on the map, where this strikes the southern boundary of Pointe. Coupee Parish.

I do not think the general assembly, that had so carefully delineated the boundary up to the point in controversy with precision and certainty, intended to leave the remainder in so much uncertainty, particularly in view of the numerous landmarks that were so easily available and could have been used had it been that body’s intention that the course would be as laid down in the majority opinion.

We should not resort to such a strained construction if there is one that is more reasonable and in keeping with the language used that can be given the statute, particularly when to give it such a construction at the same time gives effect to the entire text of the act.

From my translation of the French text this clause reads in English thusly: “ * * * from there it (said line) shall follow the said branch (east branch of Bayou Alabama), the two sides thereof comprising the habitations (plantations), as far up as the township line between township six and seven, or the southern boundary of the parish of Pointe Coupee,” and it is my opinion that this French text of the clause is just as meaningless and impossible of being given a reasonable construction as is the English text unless it is read and considered with the clause immediately following which points out that the portion (obviously the habitations or plantations) north and east of the said line is to belong to the parish of Iberville and those habitations or plantations to the south and west of such line are to belong to the parish of St. Martin. Otherwise the latter clause would be unnecessary and therefore meaningless for it goes without saying that the location of these two parishes was already definitely established and it would be nothing more than redundancy to say that the portion of the state lying on the Iberville side of the line would form a part of Iber-ville parish and that on the St. Martin side would form a part of St. Martin parish.

For these reasons I respectfully dissent.

Q’NIELL, Chief Justice

(dissenting).

The only question in this case is whether the dividing line between the two parishes, Iberville and St. Martin, shall follow the East Branch of Bayou Alabama all the way up from Osea (or Oski) Bay to the township line which forms the southern boundary of the Parish of Pointe Coupee, or shall follow that branch of Bayou Alabama upwards for a distance of only three miles, and then turn off in a northwestern direction and follow the southern boundary of the irregular section 60 to the rear boundary of that section (a distance of a mile and a half away from the East Branch of Bayou Alabama), and thence go upwards along the irregular course contended for by the Parish of Iberville.

It is not disputed — and in fact is stated and shown in the majority opinion in this case — that the dividing line between the two parishes does run through the center of the East Branch of Bayou Alabama from Osea (or Oski) Bay upward for a distance of three miles.

In the French text of Section 2 of Act No. 130 of 1847, it is said that the dividing line between the two parishes shall follow the West Branch of Bayou Alabama (la branche occidentale du bayou Alabama). But it is conceded that the use of the French word occidentale, instead of orientate, in the French text of the statute, was a mistake, the intention being to use the words la branche orientate, which means the East Branch. In fact there is no West Branch of Bayou Alabama, the only two branches being the Main Branch and the East Branch. The Main Branch does not empty into Osea Bay, but empties into the Atchafalaya River, many miles west from the place where the East Branch empties into Osea Bay. Hence we all agree that the words in the French text la branche occidentale, mean the East Branch, as stated in the English text of the statute. With that understanding, the French text, very plainly, declares that the dividing line between the two parishes shall follow the East Branch of Bayou Alabama all the may up from Osea Bay to the township line between townships six and seven, or the southern boundary line of the Parish of Pointe Coupee.

Commencing at the mou'th of the East Branch of the bayou, at Osea Bay, the statute declares: “thence, it shall follow the said branch (de la elle suivra la dite branche), the two banks thereof comprising habitations (des deux cotés y compris les habitations), upward to the township line between townships six and seven (jusqu’au dessus de la ligne de township entre les townships six et sept)”

The French word siuvra is a form of the verb suivre and means “shall follow”. The word “follow” — suivre—in the sense in which the surveyors use it, means, according to all of the dictionaries, “to proceed along, as a route or course”. Therefore, to say that the dividing line between the two parishes shall follow the said branch (suivra la dite branche) of Bayou Alabama upward to the township line between townships six and seven (jusqu’au dessus de la ligne de township entre les townships six et sept) means that the dividing line shall run along the center of the said branch of Bayou Alabama, all the way up to the township line. Certainly, it does not mean that the line shall follow the center of the East Branch of the bayou for a distance of only three miles upward towards the township line and then turn abruptly northwestward and ru'n a distance of a mile and a half away from the East Branch of the bayou, and thence follow the zigzag line, or series of lines, which the Parish of Iberville is contending for, out in the dense cypress swamp where there is nothing to show or indicate a boundary line.

In this connection, it seems impossible that the Legislature intended to adopt as the dividing line between the two parishes, the irregular and indefinite series of lines which the court is now adopting as the line which shall follow the East Branch of Bayou Alabama (elle suivra la díte branche) upward to the township line between townships six and seven (jusqu’atu dessns de la ligne de township entre les townships six et sept). The irregular or broken line which the majority of the members of the court have adopted crosses the Main Branch of Bayou Alabama about three miles below the township line between townships 6 and 7; and, at the place of crossing, the line follows the middle of the Main Branch of Bayou Alabama for a distance of about a quarter of a mile. And, stranger still, the line intersects the range line between ranges 7 and 8, about half a mile below the township line. At that point the range line is about a mile and a half west from the East Branch of Bayou Alabama.

The cause of the error of doubting that the East Branch of Bayou Alabama is the boundary line between the two parishes, Iberville and St. Martin, from Osea Bay all the way up to the township line between townships 6 and 7, is the fault in the translation of the parenthetical phrase, des deux cdtés y compris les habitations. That expression was translated in the English text, •erroneously, thus: “including the inhabitants of both sides thereof”. The literal translation of the phrase,- according to Spiers and Surenne’s French Pronouncing Dictionary, would be “the two banks of which — meaning the two banks of the East branch of Bayou Alabama — comprising habitations.” Les habitations does not necessarily mean the habitations, but means ■simply habitations. In many instances, such as in this instance, it is proper to omit the article “the”, in translating from French to English, — e. g. les habitations.

I do not find in Spiers & Surenne’s French Pronouncing Dictionary, in the edition of 1867, or of 1915, or of 1930, that the French word habitation means plantation. The only definitions given for the French word habitation are habitation, abode, place of abode, dwelling, residence, place of residence. The word plantation is not mentioned at all as a definition of the French word habitation. Nor is the French word habitation given as a definition for the English word plantation in that part of Spiers and Surenne’s Dictionary which translates the English words into French. I mention this because I do not believe that there were any plantations on the East Branch of Bayou Alabama in the year 1847, when Act 130 of that year was enacted. We must remember that that statute was enacted before the enactment of the swamp land grants of 1849 and 1850, Act of March 2, 1849, 43 U.S.C.A. § 982, and Act of September 28, 1850, 43 U.S.C.A. § 982, by which the swamp lands, such as the dense cypress swamp through which ran the East Branch of Bayou Alabama, were transferred by the Federal Government to the State of Louisiana. My opinion therefore is that we should translate the French word habitations as meaning “habitations”, — the true meaning of the phrase being — as the English text indicates —that both banks of the East Branch of the bayou were inhabited. It is possible, of course, that in those days- — a hundred years ago — in the French language as spoken in Lortisiana the French word habitation was used sometimes as meaning “plantation”. But that is a matter of little or no importance here because of the likelihood that the habitations on both banks of the East Branch of Bayou Alabama, in 1847, were very few and Very small places of residence. One reason why it is not likely that the legislators who wrote Act No. 130 of 1847 intended to call these habitations “plantations” is that the word plantation, in the dictionaries, is spelled the same in French as in English, — so why should they not have used that word.

Referring again to the parenthetical phrase "des deux cdtés y compris les habitations’1 — the most harmful mistake that was made in the translation was in translating the word compris as meaning “including”. Compris is a participle, a form of the French verb comprendre. It is true that one of its meanings is “include”, but that is not its only meaning. According to the French dictionary it means also to comprehend, to comprise, to contain, etc. As we all know, it is sometimes not possible to give a literal translation to a French expression and retain its sense. According to my understanding the word containing or comprising would be a more appropriate definition for the French word compris, as it is used in Act No. 130 of 1847. A liberal translation of the phrase, des deux cotes y compris les habitations, would be “the two banks of which” — meaning both banks of the East Branch of Bayou Alabama — “comprising habitations — or having habitations on them.”

By translating the phrase, des deux cotes y compris les habitations, as meaning “including the plantations on both sides” the majority opinion makes it necessary to add or interpolate the name of the parish in which the so-called plantations are to be included. And the court concludes that these so-called plantations, on both banks of the bayou, should be included not in the Parish of St. Martin but in the Parish of Iberville. The reason for that conclusion, as I understand, is (1st) that it was in response to “two memorials of certain inhabitants of the Parish of Iberville relative to the division between the Parishes of Ascension and Iberville” that the bill to define the boundary line between those two parishes was introduced in the Legislature, and (2nd) that Mr. Adams, who made the motion to amend the bill by adding the words “and the boundary line between Iber-ville and St. Martin”, was the senator from the Parishes of Iberville and West Baton Rouge.

I respectfully submit that in our interpretation of this statute we should adhere to the words of the Act and be not governed by any supposed intention on the part of the sponsor or sponsors of the bill in the Legislature. We must remember that the statute represents the expressions of a majority of the members of both houses of the Legislature. If they had intended to say that the habitations, or so-called plantations, on both sides of the East Branch of Bayou Alabama, should be included in the Parish of Iberville, they would have said so in the statute. I see no good reason for supplying the statement that the habitations or so-called plantations on both sides of the East Branch of Bayou Alabama should be included in the Parish of Iberville. The object of the statute, as expressed in both languages, in its title, was to define the boundary line between the two parishes. And the statute declares that the dividing line between the two parishes, Iberville and St. Martin, shall follow the East Branch of Bayou Alabama upward to the township line between townships six and seven, which is the northern boundary of both parishes, being the southern boundary of the Parish of Pointe Coupee.

I agree, of course, with the statement in the majority opinion that “The interpretation of this statute is a judicial function”, and with the statement “that the map compilers could not legally fix or establish any boundary other than that defined and called for by the act”, — Act No. 130 of 1847.

For that reason my opinion is that Powell’s map, approved in 1858, should be dealt with merely as showing the source and origin of the error made in subsequent maps, such as Dickinson’s map, made in 1883, and Hardee’s map of 1871, and the Hardee map of 1894. In this connection I agree with the statement in the majority opinion that the Hardee map of 1871 does not locate the dividing line between the two parishes “with any degree of certainty”. The photolithographs of T. 7 and 8 S., R. 8 E., filed in the recorder’s office in Iber-ville Parish in 1877, of course, do not purport to show the dividing line between the two parishes.

The survey made by Charles Gutekunst, surveyor and civil engineer, in 1919, adheres to the declaration in the statute that the dividing line between the two Parishes, Iberville and St. Martin, shall follow the East Branch of Bayou Alabama from Osea Bay upward to the township line between townships six and seven. And the notes which appear as a legend on his map declare : “This map is made from approved maps and field notes of the U. S. Government and actual surveys made by me”,— Charles Gutekunst.

The official map compiled by the Board of State Engineers under authority of Act No. 159 of 1928, and the quadrangle map made by the United States Army Corps of Engineers, also show that the surveyors and engineers who made the surveys from which these maps were compiled adhered to the declaration in the statute that the dividing line between the two parishes. Iberville and St. Martin, shall follow the East Branch of Bayou Alabama upward from Osea Bay to the township line between townships six and seven, which is the northern boundary of the two parishes, being the southern boundary of the Parish of Pointe Coupee.

However, I rest my opinion in this case upon the declaration in the statute that the dividing line between the two parishes, Iberville and St. Martin, shall follow the East Branch of Bayou Alabama, — the two banks thereof comprising habitations,— upward from Osea Bay to the toibnship line between townships six and seven,— and upon the declaration in the majority opinion that “the interpretation of this statute is a judicial function” and “that the map compilers could not legally fix or establish any boundary other than that defined and called for by the act”, — Act No. 130 of 1847.

On Rehearing

BOND, Justice.

This action, now before us on rehearing, is one to have ascertained and determined judicially the location of the boundary line between the Parishes of St. Martin and Iberville, as fixed by Section 2 of Act No. 130 of 1847.

The writer adopts in full the reasons of the author of the original opinion, insofar as said reasons are based upon the application of the doctrine of contemporaneous construction relative to the fixing of the boundary line between said parishes beginning at the southeast corner of Section 60, Township 8 South, Range 8 East; thence following the south line of said Section 60 to the back line thereof; thence running ■north, northeast, north, northwest, following the back or west lines of Sections 60, etc., as shown in the original decree. But, in accepting the findings of the author of the original opinion on the basis of contemporaneous construction, it becomes necessary to amend and modify the original decree herein rendered so as to fix that portion of the boundary line between the parishes of St. Martin and Iberville beginning at Whiskey (Oski) Bay to the Southeast corner of Section 60.

In the original opinion, in fixing the boundary line as the center of the East Fork of Bayou Alabama from Whiskey Bay to the southeast corner of Section 60, Township 8 South, Range 8 East, the majority of the Court was misled in relying upon the admissions in the agreed statement of facts upon which this case was tried, the briefs, and the argument of counsel for both Parishes, that this portion of the boundary line was not in dispute. Because of these admissions, the writer almost fell into the same error. However, the petition and the answer put at issue this portion of the boundary line and, as pointed out in the original opinion, this is a matter for judicial determination. Hence, the admissions are not binding upon the parties nor the Court and since the matter is before us, it should be disposed of at this time.

The maps relied upon in the original opinion, namely, the Powell Map of 1858, the Maps of Townships 7 and 8 South, Range 8 East, the Dickinson Map of 1S83, and the Hardee Map of 1895, place the boundary. line between said parishes as “the East Bank of the East Fork of Bayou Alabama beginning at Whiskey Bay, and thence running north along said bank to a point opposite to the southeast corner of Section 60, Township 8 South, Range 8 East, on the west bank of the river, and thence crossing said bayou to the southeast corner of Section 60, etc., as set out in the original decree. Since the writer is affirming this decree solely upon the contemporaneous construction based upon these maps, it becomes necessary to amend the original decree only as to that portion of the line between Whiskey Bay and the southeast corner of Section 60, in order to conform with the boundary line as fixed by said surveys and maps.

For the reasons assigned, the original decree rendered herein is amended to read, as follows:

The boundary line between the Parishes of ■ Iberville and St. Martin is judicially determined and located pursuant to the provisions of Section 2 of Act No. 130 of 1847, as: Starting at Whiskey (Oski) Bay; thence along the Eastern bank of the East Fork of Bayou Alabama to a point where it intersects a projected line of the southern boundary of Section 60; thence crossing- said Bayou from said point and along said projected line to the Western bank of the East Fork of Bayou Alabama where it meets the southeast corner of Section 60, Township 8 South, Range 8 East; thence following the back or west lines of Sections 60, 59, 58, 57, 56, 55, 54, 53, 52, 51, 50, 49, 48, 47, 46, 45, 44, 43, 42, 41, 40, and 39, in Township 8 South, Range 8 East, and following the back or west lines of Sections 34, 33, 32, 71, 70, 69, 68, 67, 66, 65, 64, 63, 62, 61, 60, 59, 58, 57, 74, 52, 93, 45, 44, 43, 42, 41, 40, 39, 38, 37, and 36, in Township 7 South, Range 8 East, to a point where it intersects the township line between Township 6 South, Range 8 East, and Township 7 South, Range 8 East, or the southern boundary of the Parish of Pointe Coupee, as shown on the Powell map of 1858.

All costs of court to be paid by plaintiff-appellee.

McCALEB, Justice

(dissenting).

I subscribed to the original opinion herein, as I was of the view that the controverted language contained in Section 2 of Act No. 130 of 1847 was so ambiguous that it was impossible to ascertain therefrom the true intention of the Legislature; that, under the circumstances, the court was compelled, ex necessitate rei, to rely upon the interpretations given to the statute by the officials (surveyors, assessors, etc.) having to deal with it about the time the law took effect and that, by applying the contemporaneous construction o.f such officers, as shown by their plats and maps, the case was with the Parish of Iberville.

Further consideration of the matter, however, has convinced me of the error of my former views. The portion of the statute in dispute reads “ * * * thence through the middle thereof to the eastern branch of the bayou Alabama; thence following the said branch, including the inhabitants on both sides thereof, upwards to the township line between townships six and seven, or the southern boundary of the parish of Pointe Coupee; * * * (Italics mine.) Everyone is in agreement that the uncertainty resulting from the above quoted language is brought about by the parenthetical clause “including the inhabitants on both sides thereof”. Eliminating that clause, the pertinent language would read “thence following the said branch (eastern branch of Bayou Alabama) upwards to the township line between townships six and seven, or the southern boundary of the parish of Pointe Coupee.” Thus, it seems clear enough that the Legislature intended (and expressed its intention) that the boundary line between Iberville and St. Martin Parishes should follow the eastern branch of Bayou Alabama upwards to the township line to the point where the bayou struck the southern boundary of Pointe Coupee Parish.

However, since the parenthetical clause “including the inhabitants on both sides thereof” has been used and is directly connected with the otherwise clear provisions, it, too, must be read with the whole and its effect considered so that the entire provision can be given a meaning, if that is possible. Everyone concedes that the clause, as it appears in English, cannot make sense when applied to a boundary line. On the other hand, according to the translations of the French text of the statute, which have been made by Chief Justice O’Niell and Justice Fournet, the clause is shown to be merely descriptive of the area surrounding the eastern branch of Bayou Alabama, rather than to include plantations within one parish or the other, as found by the scholars who translated the French text into English for the author of the original opinion.

I do not for a moment assert that the translations of the dissenting justices are to be given more weight than the translation of the scholars, to whom the French text was referred, as I am not sufficiently versed in the French language to have an independent opinion. I assume that each translation is entitled to equal dignity. This being so, it now seems manifest to me that the translations of the dissenting justices should prevail for the reason that those translations of the parenthetical phrase blend and fit with the other language of the statute so as to make the entire provision clear and readily understandable. Conversely, the other translation of the clause, when read with the language with which it is associated, destroys the import of that language, rendering it unintelligible and incapable of interpretation.

. As a consequence, the court, in concluding in favor of the Parish of Iberville on the theory of contemporaneous construction, has been unable to fix the boundary following the eastern branch of Bayou Alabama “upwards to the township line between townships six and seven” and has substituted in its place and stead a boundary line based on ancient surveys, which are completely in discord with the provisions of the legislative act.

I respectfully dissent.

On Rehearing

HAWTHORNE, Justice.

I concur in the decree rendered herein on rehearing and also in the reasoning upon which this decree is based. In addition, I still fully subscribe to all the reasoning given in the opinion rendered on original hearing.

O’NIELL, C. J., adheres to his dissenting opinion.

FOURNET, J., adheres to his dissenting opinion.


source: Caselaw Access Project

author: FOURNET, Justice. PER CURIAM.

license: Public Domain

text:
    212 La. 937
    BARBARA, Inc. v. BILLELO et al.
    No. 37333.
    Supreme Court of Louisiana.
    Dec. 15, 1947.
    Rehearing Denied Jan. 12, 1948.
    Theo Cotonio, of New Orleans, for defendants and appellants.
    Albert B. Koorie and Albert B. Granzin, Jr., both of New Orleans, for plaintiff and appellee.
   FOURNET, Justice.

The defendants Lorenzo Giovingo and his wife, Vincenza Billelo, are appealing from a judgment rendered in their favor in accordance with their demand in reconvention ordering the plaintiff, Barbara, Inc., to specifically perform its agreement to purchase certain property belonging to them located at 433-435 Saratoga Street in the city of New Orleans.

Ordinarily a party in whose favor a judgment has been rendered in strict accordance with the prayer of his petition cannot appeal. State ex rel. John T. Moore Planting Co. v. Howell, 139 La. 336, 71 So. 529. However, the appellants are contending in the instant case that the judge was without right to render judgment herein for, prior to its rendition, they moved, through their attorney, for the discontinuance of their reconventional demand, upon which the judgment was predicated.

It is the settled jurisprudence of this court that a plaintiff may discontinue his suit at any time prior to the rendition of judgment “unless thereby some acquired right of the defendant would be impaired.” Davis v. Young, 35 La.Ann. 739. See, also, Lanusse’s Syndics v. Pimpienella, 4 Mart., N.S., La., 439; Adams v. Lewis, 7 Mart., N.S., La., 400, 405; Broussard v. Duhamel, 4 La. 366; Smalley v. Lawrence, 9 Rob., La., 210, 213; McDonogh v. Dutillet, 3 La. Ann. 660; Donnell v. Parrott, 10 La.Ann. 703; Barrow v. Robichaux, 15 La.Ann. 70; Barron v. Jacobs, 38 La.Ann. 370; Meyers & Co. v. Birotte, 41 La.Ann. 745, 6 So. 607; State ex rel. Gondran v. Rost, 48 La.Ann. 455, 19 So. 256; Thompson v. McCausland, 136 La. 774, 67 So. 826; State v. Howell, supra; Person v. Person, 172 La. 740, 135 So. 225; and Rives v. Starcke, 195 La. 378, 196 So. 657. And while this right to discontinue the suit has been expressly granted the plaintiff by Article 491 of the Code of Practice, this same right has been accorded a defendant filing a reconventional demand (Suberville v. Adams, 47 La.Ann. 68, 16 So. 652) and a defendant called in warranty. Broussard v. Duhamel, 4 La. 366. The reason therefor is that although a re-conventional demand is usually contained in the defendant’s answer, it is not deemed to be a part thereof. It enjoys the status of an independent suit and, as such, is subject to all of the rules of pleading relative to the petition, the defendant, quoad the reconventional demand, becoming the plaintiff in this separate cause of action and the plaintiff in the original suit becoming the defendant. McDonough v. Copeland, 9 La. 308; Coxe v. Downs, 9 Rob., La., 133; McMasters v. Palmer, 4 La.Ann. 381; Powell v. Graves, 14 La.Ann. 860; Bayly & Pond v. Stacey & Poland, 30 La.Ann. 1210; Davis v. Young, supra; Stringfellow v. Nowlin Bros., 157 La. 683, 102 So. 869; Senseley v. First Nat. Life Ins. Co., 205 La. 61, 16 So.2d 906; Woodward-Wight & Co. v. Haas, La.App., 149 So. 161. (Italics ours.)

An examination of the record in this case reveals that the plaintiff instituted suit on February 1, 1940, to have declared null and void a certain contract entered into between it and the defendants on October 18, 1937, for the purchase of the property above described and to have returned the $300 deposited by it with the real estate agent, N. J. Clesi, Inc., in connection with the transaction, the basis for such action being that the title to the property was defective and suggestive of litigation. The real estate broker was made a party to the suit.

After the disposition of several preliminary proceedings filed in the matter, Clesi answered on July 17, 1941, claiming the right to a commission of $200 and asked for judgment accordingly. The defendants (who are the appellants in this court) answered on October 3, 1941, denying the title to the property was defective, as alleged by the plaintiff, or that the plaintiff was entitled to have the $300 deposited in connection with the transaction returned to it, and they prayed in reconvention for the specific performance of the contract.

After several continuances had been granted, the case was finally fixed for trial on April 20, 1943, and when it was called for trial • on that day the plaintiff, through its counsel, consented that judgment be entered against it on the reconven-tional demand and ordering the specific performance of the contract; whereupon the defendants’ counsel immediately moved for the discontinuance of the reconventional demand and the court, after taking the matter under advisement, rendered the judgment now appealed from.

From the foregoing it may be seen that the discontinuance of the reconventional demand filed by the defendants could in no wise affect the plaintiff’s main action or that it would otherwise prejudice any of the rights the plaintiff may have.

For the reasons assigned, the judgment appealed from is annulled and set aside; the reconventional demand of the defendants is dismissed at their cost; and the case is remanded to the lower court in order that the plaintiff may prosecute its suit on the main demand.

On Rehearing.

PER CURIAM.

Our attention having been called to the fact that we overlooked fixing the costs in these proceedings, the original decree herein is amended so as to assess the costs of appeal against plaintiff and appellee, Barbara, Inc.; all other costs to await the final determination of this litigation.


author: HAWTHORNE, Justice.

text:
    212 La. 943
    STATE v. MOORE et al.
    No. 38654.
    Supreme Court of Louisiana.
    Dec. 15, 1947.
    Gahagan & Pierson, of Natchitoches, for defendants-appellants.
    Fred S. LeBlanc, Atty. Gen., M. E. Culli-gan, Asst. Atty. Gen., and H. L. Hughes, Dist. Atty., of Natchitoches, for appellee.
   HAWTHORNE, Justice.

The defendants, O. P. Moore, T. H. Phillips, Alvin Gray, and George Williams, all Negroes, were indicted by the grand jury for the Parish of Natchitoches for the attempted murder of Webb J. Edmonds, a white man, by beating and kicking him, and were placed on trial before an all white jury. George Williams and O. P. Moore were adjudged guilty as charged and were sentenced to hard labor in the state penitentiary for a period of one year and three years, respectively. T. H. Phillips and Alvin Gray were found guilty of aggravated assault, and each was sentenced to a term of six months in the parish jail. From their conviction and sentences all of these defendants have appealed.

Webb J. Edmonds, a white man, on the date charged in the indictment, went to a Negro nightclub, located at Clarence in the Parish of Natchitoches, in the early morning hours. While there he became involved in a difficulty with all of these defendants as well as other persons. During this al-' taxation the prosecuting witness, Edmonds, drew a gun and shot one of the accused, Moore, in the leg. Thereupon Moore and several other Negroes knocked Edmonds down and beat, struck, and kicked him severely.

During the trial, the State placed upon the witness stand a Negro, Alex Dumas, who was involved in the fight and who had previously pleaded guilty to the offense charged against all these defendants. In the course of his examination, in the presence of the jury, the district attorney said to this witness, “Then you struck him because he was a white man.” Counsel for defendants objected to this statement as being prejudicial to the rights of the accused and reserved a formal bill of exception. The basis of counsel’s objection, as stated in the motion for a new trial, is that, in view of the fact that defendants were Negroes and the prosecuting witness was a white man, they were deprived by the district attorney’s remark of a fair trial as guaranteed by the Constitution of the United States and this state.

Since all of these defendants were Negroes and were being tried for the attempted murder of a white man before a jury composed entirely of members of the white race, and since the witness himself, a Negro, had been charged with the same crime and had previously pleaded guilty thereto, in our opinion the remark of the district attorney, framed as a question, was an appeal to race prejudice, was highly prejudicial to the rights of the accused, and entitled them to a new trial.

Appeals to prejudice by a district attorney against a defendant in a criminal prosecution, by reason of his race or color, have been generally condemned by appellate courts throughout the United States, and afford sufficient reason for reversal of conviction or the granting of a new trial.

Our own Code of Criminal Procedure itself, in Article 381 dealing with the argument of counsel in a criminal case, specifically provides that counsel shall refrain from any appeal to prejudice. In our opinion it makes no difference -^Jiether such appeal to prejudice is made in argument of counsel to the jury or by means of a statement framed in the form of a question which is heard by the jury, for in either event the result is that the rights of defendant are prejudiced thereby.

The State in brief filed in this court has not given any reason why the question was asked or any reason why it was proper, has not given us a single citation of authority in support of its position, and has pointed out to us no reason in law why this particular case should not be governed by the rule of law that appeals by counsel against a defendant in a criminal prosecution by reason of his race or color are prejudicial and constitute reversible error.

The trial judge in his per curiam stated that he “either at the time of the above 'question, or at another time during the course of the trial, instructed the jury that they were to disregard and not consider any statement made that might tend toward prejudicing their minds,” and that in his opinion “the question as asked did not prejudice the jury as to the defendants in any way.”

From this per curiam we are unable to say at what time the trial judge instructed the jury to disregard and not consider any statement that might tend toward prejudicing their minds, and his statement that the quesion did not prejudice the jury as to the defendants is merely his conclusion or opinion and is not supported by any circumstances of fact showing how he arrived at such conclusion. To say the least, the per curiam is vague and indefinite as to when the instructions were given.

We recognize the general rule to be that a verdict should not be set aside on account of improper remarks by the prosecuting attorney when the jury is instructed to disregard such remarks. However, even conceding that the instructions in this case were given at the time the statement was made, we think that the appeal to race prejudice constituted such an error as could not be cured by the judge’s instructions to disregard. State v. Bessa et al., 115 La. 259, 38 So. 985; State v. Washington, 136 La. 855, 67 So. 930. See also State v. Thomas, 161 La. 1010, 109 So. 819, and the very recent case of State v. Bryant, 1946, 209 La. 918, 25 So.2d 814, in both of which this rule of law was recognized.

In State v. Bessa et al., supra, [115 La. 259, 38 So. 987], two Negro defendants were charged with striking the prosecuting witness, a white man, with intent to murder, and were tried before a white jury. In his opening address the district attorney called the attention of the jury to the race to which the prosecuting witness belonged, and, although the trial judge instructed the jury to disregard the remark, this court reversed the conviction, saying in the course of its discussion of this appeal to race prejudice that, “ * * * such an appeal having been once made, the effects thereof cannot be counteracted by any mere cautionary words of sober reason that may be uttered by the judge. * * * ”

Having reached the conclusion that reversible error has béen committed in the lower court and that defendants are entitled to a new trial, we find it unnecessary to consider the other bills of exception found in the record, as the circumstances under which they were reserved will probably not arise in a subsequent prosecution.

For the reasons assigned, the verdicts and sentences of the defendants are reversed, and defendants are granted a new trial.

•FOURNET and CALEB, JJ., concur in the decree.


author: HAWTHORNE, Justice. McCALEB, Justice

text:
    212 La. 949
    WHITNEY NAT. BANK OF NEW ORLEANS v. LITTLE CREEK OIL CO., Inc., et al.
    No. 38629.
    Supreme Court of Louisiana.
    Dec. 15, 1947.

      Kenneth C. Barranger, of New Orleans, for defendant-appellant Little Creek Oil Co. Inc.
    John W. O’Boyle, of Dallas, Tex., James D. Heldt, of New York City, and J. Blanc Monroe and Malcolm L. Monroe, both of New Orleans (Monroe & Lemann, of New Orleans, of counsel), for defendant-appellee Nebo Oil Co., Inc.
    Milling, Godchaux, Saal & Milling, of New Orleans, for plaintiff-appellee Whitney Nat. Bank of New. Orleans.
   HAWTHORNE, Justice.

On February 1, 1947, Nebo Oil Company, Inc., as lessor, entered into an oil, gas, and sulphur lease with Little Creek Oil Company, Inc., as lessee, in which the lessor leased unto lessee 320 acres of land situated in the Parish of Natchitoches, Louisiana, described as the NE%, and the SW% of Section 19, Township 13 North, Range 6 West. This lease, which was executed in two counterparts, together with the consideration named therein, $2400.00, was deposited in the Whitney National Bank of New Orleans under an escrow agreement pending examination of title. A dispute having arisen between lessor arid lessee as to the validity of the lessor’s title to the minerals underlying the property leased,, the Whitney National Rank, as depositary,, deposited the lease and the consideration named therein in the registry of the court, and interpleaded both the lessor and the lessee, praying that each assert its respective-rights. In due course the Whitney National Bank was discharged, and the controversy was then, and is now, between Nebo Oil Company, Inc., lessor, and Little Creek Oil Company, Inc., lessee.

Little Creek Oil Company, Inc., contended that the title of Nebo Oil Company, Inc., to the minerals leased had prescribed by ten years’ non-use, and that Nebo did not own the minerals underlying the property described in the lease. It asked for the return of the consideration for the lease and for its cancellation.

Nebo Oil Company, Inc., on the other hand, contended that its title to the minerals had not been lost by the ten-year prescription, these minerals being imprescrip-tible under Act No. 315 of 1940, and, in the alternative, that, if that act was not applicable, there had been an interruption of the prescription of ten years for the reason that the minerals underlying these tracts had been pooled with other minerals from which production had been obtained and royalties distributed to the members of the pool. It asked that the consideration, together with one counterpart of the lease, be delivered to it.

The judgment of the district court recognized Nebo Oil Company, Inc., to have a valid title to the oil, gas, and sulphur under the property leased for the reason that its mineral rights had become imprescriptible under the provisions of Act No. 315 of 1940; decreed the lease to be good and valid, and ordered the Whitney National Bank, as depositary, to deliver the consideration and one original counterpart of the lease to Nebo and the other original counterpart to Little Creek.

From this judgment Little Creek has appealed to this court. Nebo has answered the appeal, praying that the judgment of the lower court be affirmed, and contending in the alternative that there has been an. interruption of prescription because of the aforementioned pooling agreement.

On November 12, 1932, the Bodcaw Lumber Company of Louisiana, Inc., the owner at that time of the surface as well as the mineral rights thereunder, conveyed unto the Good Pine Oil Company, Inc., all of the oil, gas, and sulphur underlying a tract of land containing 37,532.13 acres, of which tract the 320 acres here involved were a part. Appellee, Nebo, acquired its title to these minerals by mesne conveyances from Good Pine Oil Company, Inc., in the month •of January, 1942.

The Bodcaw Lumber Company of Louisiana, Inc., on February 11, 1936, a little •over three years after the sale of the minerals to appellee’s author in title, Good Pine Oil Company, Inc., conveyed a tract of land comprising more than 24,000 acres to the United States of America, of which tract the 320 acres under which the minerals had been previously conveyed, and now claimed by Nebo, formed a part. This sale to the United States government was made subject to the previous sale by the vendor therein to the Good Pine Oil Company, Inc., of all the oil, gas, and sulphur under the tracts of land here involved, said reservation being set out in the deed, a certified copy of which is filed in the record, as follows: “This sale and transfer is made subject to the sale of all the oil, gas and sul-phur, in, on, and under all of the lands conveyed herein, as shown by act of sale dated November 12, 1932, * * * wherein Bodcaw Lumber Company of Louisiana, Incorporated, was the vendor, and Good Pine Oil Company, Incorporated, was the vendee. The mention of these mineral sales and of the rights granted therein is made solely for the purpose of limiting vendor’s warranty to the United States of America in the present sale, and the recital of the said mineral sales shall in no wise extend or enlarge the same in point of time, or limit, control, or otherwise restrict the manner of exercising its rights by the Good Pine Oil Company, Incorporated, it successors and assigns.”

Subsequent to the sale by Bodcaw Lumber Company to the United States, but within 10 years after that company had parted with its title to the minerals under the property conveyed, the Legislature of this state adopted Act No. 315 of 1940, the relevant portion thereof reading as follows: “Section 1. Be it enacted by the Legislature of Louisiana, That when land is acquired by conventional deed or contract, condemnation or expropriation proceedings by the United States of America, or any of its subdivisions or agencies, from any person, firm or corporation, and by the act of acquisition, verdict or judgment, oil, gas and/or other minerals or royalties are reserved, or the land so acquired is by the act of acquisition conveyed subject to a prior sale or reservation of oil, gas, and/or other minerals or royalties, still in force and effect, said rights so reserved or previously sold shall be imprescriptible.”

Both Nebo and Little Creek concede that since Bodcaw Lumber Company parted with these minerals on November 12, 1932, there have been no wells drilled on the 320-acre tracts or on land contiguous thereto, and that there has been no use or exercise of the mineral servitude or other acts sufficient to interrupt prescription with respect to the minerals leased, unless production and payment of royalties under a pooling or unitization agreement had the effect of interrupting prescription, as is contended by Nebo.

It is Little Creek’s contention that Act No. 315 of 1940 can apply only to sales made after its enactment in 1940, and that it has no application to sales made prior to its passage even though the mineral rights had not prescribed when the statute became law. In the lower court Little Creek especially pleaded the unconstitutionality of Act No. 315 of 1940, contending that, for the act to be applicable to the prior sale in 1936 to the United States government of the land by Bodcaw Lumber Company, which was made subject to the prior mineral sale to Good Pine, it would be necessary to give the act a retroactive or retrospective effect, thereby (1) violating the Constitution of the United States in that it impairs the obligation of contracts and deprives the surface owners of property without due process of law, as set forth in Section 10, Article I, of said Constitution, and the Fourteenth Amendment thereto, and (2) violating the Fourteenth Amendment to tha Constitution of the United States in that it deprives the United States of the equal protection of the law.

As pointed out in appellant’s brief herein, this controversy arose because the United States is claiming title to these minerals, and this is shown by photostatic copies, filed in the record, of certain decisions of the Department of the Interior, Bureau of Land Management, rendered during 1947. These decisions show that the United States contends that Act No. 315 of 1940 does not have a retroactive effect, and is not applicable with respect to reservations created or mineral rights granted, sold, excepted, or otherwise conveyed prior to its enactment, and, further, that, if the statute is held to apply to transfers executed before its passage, it is unconstitutional for the reasons set out in the decisions.

Appellant, Little Creek, has adopted the contentions of the United States as its sole and only contentions, and these decisions are the only authority upon which it relies in support of its position.

• The lower court in its reasons for judgment, after citing and discussing numerous authorities, was of the opinion that Act No. 315 of 1940 was applicable to the instant case, and that such application did not impair any vested right or obligation of contract, and that there was no foundation for the contention that Act No. 315 of 1940 denied to anyone the equal protection of the law. The judgment further provided that nothing contained therein should be construed as res judicata as against the United States, which was not a party to this suit.

It appears to us, as it did to the lower court, that Act No. 315 of 1940 is applicable to the sale by Bodcaw to the United States on February 11, 1936, which was made subject to the vendor’s conveyance of the minerals to Good Pine on November 12, 1932,—not because there is anything in the terms of the statute to indicate that it was intended to have a retroactive application, but because of the general rule of law established by the jurisprudence of this court that laws of prescription and those limiting the time within which actions may be brought are retrospective in their operation. See De Armas v. De Armas et al., 3 La.Ann. 526; Shreveport Long Leaf Lbr. Co., Inc., v. Wilson et al., 195 La. 814, 197 So. 566, and State v. Alden Mills, 202 La. 416, 12 So.2d 204.

Articles 789 and 3546 of the Civil Code, which the act in question seeks to-affect or change insofar as they apply to mineral servitudes on land acquired by the United States subject to mineral reservations, are articles establishing a period of prescription. See Sample et al. v. Whitaker et al., 172 La. 722, 135 So. 38. Since the act itself affects that prescriptive period, the general rule in the foregoing paragraph is applicable.

If, as we assume, the statute does have a retroactive effect, then, as stated above, Little Creek contends that the statute is unconstitutional as to the United States for the reasons hereinabove given. In other words, appellant is championing the rights of the United States. We are of the opinion that this contention cannot be answered in the instant case without the United States being made a party to this suit, for it is a well recognized principle of constitutional law that one not prejudiced by a statute cannot question its constitutionality or obtain a decision as to its validity as impairing the rights of others.

Willis on Constitutional Law, Chapter III, page 91, gives the rule as follows:

“Who are entitled to raise questions of constitutionality? Anyone whose rights are injuriously affected and no one else. It is not enough that the statute is unconstitutional as to other persons or classes. The person attacking the statute must come within the class. * * * ”

In other constitutional authorities we find the rule stated:

“ * * * Nor will a court listen to an objection made to the constitutionality of an act by a party whose rights it does not affect, and who has therefore no interest in defeating it. * * *” Cooley, A Treatise on Constitutional Limitations, Carring-ton’s 8.th Ed., Chapter VII, page 339.
“One of the elementary doctrines of constitutional law, firmly established by the authorities, is that the constitutionality of a legislative act is open to attack only by a person whose rights are affected thereby. Before a law can be assailed by any person on the ground that it is unconstitutional, he must show that he has an interest in the question in that the enforcement of the law would be an infringement on his rights. Assailants must therefore show the applicability of the statute and that they are thereby injuriously affected. The burden of proof is upon those who claim themselves harmed by a statute to show how, as to them, the statute is unconstitutional. Thus, one who invoices the power of the court to declare an act of Congress to be unconstitutional must be able to show not only that the statute is invalid, but that he has sustained, or is in immediate danger of sustaining, some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally. * * *
“The corollary to the general rule is that one who is not prejudiced by the enforcement of an act of the legislature cannot question its constitutionality. Thus, one against whom no attempt has been made to enforce a statute may not challenge its constitutionality, nor may one excepted from the operation of a law attack it.
* * * Hi 5⅜ *
“No one can obtain a decision as to the invalidity of a law on the ground that it impairs the rights of others, for one attacking the constitutionality of a statute is not the champion of any rights except his own. * * *” 11 Am.Jur., Const.Law, Section 111, page 748.

This well established rule has been applied in this state in the cases of State v. Thrift Oil & Gas Co., 162 La. 165, 110 So. 188, 51 A.L.R. 261; Conway v. Lane Cotton Mills Co., 178 La. 626, 152 So. 312; State v. Standard Oil Co. of Louisiana, 188 La. 978, 178 So. 601; Ricks v. Department of State Civil Service et al., 200 La. 341, 8 So.2d 49.

A reading of the statute shows conclusively that it is aimed directly at the United States, and at no other. If constitutional, it does not in any way affect or prejudice the rights of Little Creek, and the United States is the only party which has an interest in raising the question of the constitutionality insofar as the act may be applicable to its purchase from Bodcaw Lumber Company prior to the date of the enactment thereof.

Since it appears to us that Act No. 315 of 1940 is applicable in the instant case, and since under the rule discussed above appellant, Little Creek, cannot urge the unconstitutionality of the statute, being without power to do so, it would seem that this court should order appellant to accept title to the minerals here involved and pay the consideration to appellee, Nebo. But, since the title to the minerals is clearly suggestive of litigation, to us it appears to be inequitable to require Little Creek to do so, notwithstanding the fact that it has not urged this as a reason for its failure to take title and has stated in oral argument before this court that it would accept title provided we find the act to be applicable and constitutional. Therefore, since we cannot pass upon the constitutionality of the act insofar as it may be applicable to the facts presented by this case, we have concluded to dismiss the suit for non-join-der of necessary parties under the rule of law that this court has authority ex proprio motu to recognize the failure to join necessary parties and to dismiss a suit for that reason. A precedent for this action is found in the case of Bologna Bros, et al. v. Stephens et al., 206 La. 112, 18 So.2d 914, 917, wherein it was said that “No exception of non-joinder was filed; however, the court of its own motion may take cognizance of the lack of necessary parties.” See also Succession of Todd, 165 La. 453, 115 So. 653.

Appellee, Nebo, contends that the United States is not a necessary party to this suit and in support of this contention cites and relies on the following cases : Hall et al. v. Nevill et al., 3 La.Ann. 326; Rightor v. Kohn et al., 16 La. 501; Abney v. Levy, 169 La. 159, 124 So. 766; Slaughter v. Watson, 190 La. 331, 182 So. 529; Parish of Jefferson v. Texas Co., 192 La. 934, 189 So. 580.

In each of the cited cases this court did consider the title of a third party although such third party was not a party to the suit, but it is to be noted that in none of these cases was it contended that title was in a third party because an act of the Legislature was unconstitutional as to that third party. In the instant case it is contended that title is in the United States, a third party not a party to this suit, because the statute is unconstitutional as to that third) party, the United States.

The judgment of the lower court recognized the fact that the United States was not a party to this suit, and in doing so provided that nothing in the judgment should be construed as res judicata as to the United States. It is contended that we should not hold that the United States is a necessary party and dismiss the suit for non-joinder of this party, because the United States cannot be sued or made a party to this suit without its consent.

Be that as it may, the United States is the only party which has an interest in urging the unconstitutionality of the statute, and the judgment wherein the lower court found the statute to be applicable and constitutional and provided that nothing therein was to be construed as res judicata as against the United States, was improper without the government being a party hereto.

Since the statute apparently is applicable to the facts of this-case, it, would serve no useful purpose for us to discuss appellant’s alternative plea in regard to the alleged pooling agreement.

For the reasons assigned, the judgment appealed from is reversed, and it is now ordered that this suit be dismissed; one-half of the costs to be paid by Nebo Oil Company, Inc., and the other by Little Creek Oil Company, Inc.

O’NIELL, C. J., dissents.

McCALEB, J., dissents with reasons.

McCALEB, Justice

(dissenting).

I am in full accord with the ruling that little Creek Oil Company, Inc. is without interest in questioning the constitutionality of Act No. 315 of 1940. This being so, the judgment should be affirmed inasmuch as Little Creek is not refusing the title on the ground that it is suggestive of litigation. For this reason, I respectfully dissent.