author: BOND, Justice.

text:
    213 La. 79
    WASHINGTON v. PALMER.
    No. 38402.
    Supreme Court of Louisiana.
    Jan. 12, 1948.
    Rehearing Denied Feb. 16, 1948.
    Fred L. Jackson, of Homer, for applicant.
    Meadors, Shaw & Meadors, of Homer, for plaintiff-respondent.
   BOND, Justice.

The plaintiff in this suit asserts title to an undivided one-half interest in a tract of land which at one time belonged to the community of acquets and gains existing between her and her husband and which was adjudicated to the defendant under a writ of seizure and sale.

On June 30, 1924, a money judgment was obtained against the plaintiff’s husband, Aimer L. Washington, the head and master of the community of acquets and gains then existing between them. In 1931, Aimer L. Washington was divorced from his wife, the plaintiff. There was no liquidation or settlement of the community property. In 1934, the defendant, the assignee of the judgment obtained in 1924, filed suit for its revival, citing only the plaintiff’s former husband, the sole defendant under the 1924 judgment, and the land involved was seized and sold to the defendant. In the execution proceedings a writ of fieri facias was issued against Aimer L. Washington, and service was made upon him alone. In 1944, Aimer L. Washington died, and shortly thereafter plaintiff sued the defendant, alleging ownership in indivisión of one-half of the property adjudicated to him under the writ of seizure and sale, and praying for a partition thereof.

There was a judgment in the lower court recognizing the plaintiff as the owner of a one-half interest in the land. This judgment was affirmed by the Court of Appeal. 28 So.2d 509. We granted a writ of certi-orari on the application of the defendant, and the case is now before us for review.

The plaintiff contends that when the community was dissolved by divorce she and her husband became owners in indivisión of the property, and since she was not made a party to the suit for revival of the judgment, or to any of the execution proceedings, the sheriff’s sale did not convey her interest in the property but transferred title only to the undivided one-half which was owned by her former husband upon the dissolution of the community.

The question presented herein is whether, after divorce, a wife is a necessary party to a suit to revive a judgment against the community and to an execution sale of community property Under the revival judgment. For the reasons which follow, our conclusion is that the wife is not a necessary party to the revival suit or the execution proceedings.

An analysis of the jurisprudence establishing the rule that the creditor of a community dissolved by the wife’s death may execute on community property by proceeding against the husband alone shows that the reason for the rule is that the husband is personally liable for community debts while the heirs of the wife are only contingently liable and may relieve themselves from personal liability by renouncing her succession or accepting it with benefit of inventory. Verrier v. Loris, 48 La.Ann. 717, 19 So. 677, and Landreaux v. Louque, 43 La.Ann. 234, 9 So. 32. This same situation obtains in the case of a community dissolved by divorce: the husband is personally liable for community debts, while the wife may renounce the community or accept it under benefit of inventory. Therefore, there is the same reason for the existence of a “fictitious community” after a divorce insofar as a proceeding by a community creditor is concerned. This view is not in conflict with the cases cited in the opinion of the Court of Appeal herein (28 So.2d 509) to the effect that after divorce the wife, as a joint owner, may sue her husband for a partition of the community property without alleging or proving the liquidation of the community. Giglio v. Giglio, 159 La. 46, 105 So. 95; Rhodes v. Rhodes, 190 La. 370, 182 So. 541; In re F. H. Koretke Brass & Mfg. Co. Ltd., 195 La. 415, 196 So. 917; Butler v. Bolinger, et al., 16 La.App. 397, 133 So. 778, 779, 782. It will be noted that there is a parallel line of cases involving the community dissolved by the wife’s death, which relate to the rights of the heirs of the wife, as joint owners of community property with the husband, but do not involve the rights of community creditors. Murphy’s Heirs v. Jurey, 39 La.Ann. 785, 2 So. 575; Glassock v. Clark, 33 La.Ann. 584; Tugwell v. Tugwell, 32 La.Ann. 848. Likewise, in the aforementioned cases cited by the Court of Appeal concerning the community dissolved by divorce, the rights of community creditors were not involved. Those cases involved the rights of a wife against her divorced husband. In the instant case, the plaintiff is not suing her husband but the purchaser at a judicial sale in execution of a community debt. After divorce, plaintiff' did not exert her right against her husband to have the community partitioned or liquidated, but allowed it to remain as a whole in her husband’s possession. Thus unliq-uidated, it retained a fictitious existence for the purpose of the execution of a community debt, with the husband as the only-necessary party to the proceeding.

Finding no reason to distinguish the rights of a creditor of a community dissolved by divorce from those of a creditor of a community dissolved by death, we follow the established jurisprudence and hold that the execution sale of the -community property in the instant case operated against the plaintiff’s interest in the property although only her husband was made a party.

Furthermore, citing the plaintiff’s husband, the sole party defendant in the original judgment, was the proper procedure to revive the original judgment under Article 3547, Civil Code. That article clearly requires only the party defendant in the original judgment to be cited in the revival suit. A proceeding to revive a judgment is not a new suit but simply a proceeding in the same suit to continue and keep alive a judgment therein rendered. The fact that the plaintiff and her husband were divorced after the original judgment could not have the effect of adding her as an additional defendant to the revival suit.

For the reasons assigned, the judgment of the lower court is reversed and set aside and plaintiff’s suit is dismissed at her costs.


source: Caselaw Access Project

license: Public Domain

text:
    213 La. 85
    DRESSER et al. v. RECREATION AND PARK COMMISSION OF PARISH OF EAST BATON ROUGE.
    No. 38891.
    Supreme Court of Louisiana.
    Feb. 16, 1948.

      J. Oliver Bouanchaud, of Baton Rouge, for plaintiffs.
    Fred G. Benton, Edward Donald Moseley, and George Mathews, all of Baton Rouge, for defendant.
   BOND, Justice.

The plaintiffs, Dr. Henry O.'Dresser and W. Harry Perkins, Jr., resident property owners of the Parish of East Baton Rouge, La., are appealing from a judgment of the district court dismissing their suit, attacking the validity of an election held on October 28, 1947, and all proceedings of the defendant, Recreation and Park Commission of the Parish of East Baton Rouge, taken thereunder.

The facts and issues of the case are fully and accurately stated and, in our opinion, correctly disposed of by the trial judge in a well-considered written opinion, from which we quote the following:

“Two taxpayers brought this suit to enjoin the Recreation and Park Commission of the Parish of East Baton Rouge from issuing and selling $1,000,000.00 in tax bonds and levying a tax to service these bonds and from levying a maintenance tax of 9ioths of one mill on all of the taxable property of the parish as authorized at an election held in the. parish on October 28, 1947. The election was held under the authority of Section 3(b) of Article 14 of the Constitution of 1921, as embodied in Act No. 387 of 1946, and an enabling statute, Act No. 246 of 1946', adopted by the legislature at the same session.
“The plaintiffs raise a number of points as to the validity of the election and as to certain steps now being taken by the Recreation Commission under the authority of the election. It is admitted, and it is otherwise shown by documents attached to the plaintiffs’ petition, that the election carried by a vote of more than six to one both as to the electors participating therein and as to the property voted. It is also, admitted that the bond and tax money are to be used to make certain capital investments and to maintain a comprehensive recreation and park program for all of the people of the Parish of East Baton Rouge to combat juvenile delinquency and to provide character building and health and recreational activities for the youth of the parish as well as a total recreational program. A stipulation has been filed in which it is shown that the issues of the case are vital to the interest of the people of the parish, and in which it is conceded that the program has the overwhelming indorsement of all of the people.
“The plaintiffs argue that Section 3(b) of Article 14, hereafter called the amendment, is vague and indefinite in that it uses in .one place the language ‘public taxpayer’ instead of using the language ‘property taxpayer,’ and in that it fails to specifically provide whether the majority called for thereunder is to be based -upon all of the qualified taxpaying electors- of the parish, or only upon the majority who participated in the election. In this connection it is pointed out that Act No. 246 of 1946, the concurrent enabling statute, requires any proposals submitted to be approved or rejected 'by only a majority of property taxpayers of the parish qualified to vote, ‘who participate in any such election.’ The language of the said amendment does not so specifically provide. It is contended that although the election carried by the majority shown both as to the electors participating, and as to the amount of property involved, there is nothing in the record to show whether this was a majority of all of the eligible taxpayers or of only those who took part in the election. The suggestion is made that since the amendment is silent in defining this majority that there is in effect a conflict between the amendment and the act, and that if this is true the amendment must govern, and that here in order to validate the proposals acted upon a majority of all of the eligible taxpayers was required.
“The respondent Commission filed exceptions to the jurisdiction of the court 'ratione materiae,’ a plea of prescription, and an exception of no cause or right of action and also an answer on the merits of the case. The petition, answer and stipulations show all of the relevant facts; and since the issues are strictly legal and can be disposed of upon the merits to eliminate any doubt as to the law governing the case, the merits will first be considered.
“The principal point made is that the said amendment is vague and indefinite and is in conflict with the act relied upon and thus does not afford constitutional sanction for the said act. The amendment reads as follows:
“ ‘The Legislature shall have the full power and authority to enact a law creating a Commission to be known as the Recreation and Park Commission for the whole of the Parish of East Baton Rouge, the territorial authority of which shall be inclusive of the City of Baton Rouge, and which shall represent and constitute a public corporation, and shall have all the powers of such corporation, shall have perpetual existence, shall have the right and power to incur debt and contract obligations, to sue and be sued, and to have a corporate seal; to provide the number and method of selecting the persons who shall compose the said Commission, by election, designation, or appointment, as the Legislature may determine, and to define the powers and duties of the said Commission; to provide that the said Commission shall be a subdivision of the State of Louisiana within the meaning of the statutes of the State relative to incurring debts and issuing negotiable bonds therefor; to provide that the said Commission shall have the power to propose to the tax payers of the Parish a debt and to issue negotiable bonds therefor and to incur a tax for the servicing of said bonds, and if authorized by both a majority in number and amount of the public tax payers of the parish, to incur such debt and to issue negotiable bonds therefor, and to impose a tax for the payment of said bonds in principal and interest, provided that the bonds shall run for a period not to exceed 40 years, and shall be sold at public sale for not less than par value and for an interest rate not to exceed 5%; to authorize the said Commission in addition to the foregoing to propose to levy a tax upon all of the taxable property of the Parish, as shown by the assessment rolls of the Parish, not exceeding however one mill on a dollar of assessed valuation in any one year, and if authorized to do so by a majority in number and amount of the duly qualified tax payers qualified to vote under this Constitution and the laws of the State, to actually levy from year to year a tax upon all the taxable property of the Parish as shown by the assessment rolls not exceeding one mill on a dollar of assessed valuation, as the said Commission from year to year may determine, for the purpose of providing current revenue for public recreation and park purposes; and to invest in the said Commission the power of expropriation.’
“It is thus provided that as to the bonds and the incidental tax the language is ‘both a majority in number and amount of the public tax payers of the parish’; and as to the maintenance tax the language is ‘by a majority in number and amount of the duly qualified tax payers’, without the amendment otherwise defining the majority required to approve any specific proposal. On the other hand the said Act No. 246 of 1946 in Section 9 reads as follows :
“ ‘That no tax of any kind shall he levied and no bonds shall be issued hereunder until they have been authorized by both a majority in number and amount of the property tax payers qualified to vote under the Constitution and laws of this state who vote at an election held hereunder. * * * ’

“It is contended that the language ‘public tax payers qualified to vote’ means nothing intelligible, and that in any event upon the showing made here while it is conceded that the election carried by a majority of more than six to one there is nothing in the facts or in the stipulations to show that the participants represented a majority of all of the eligible qualified property taxpayers of the parish.

“The Court believes that the language ‘public taxpayers of the parish’ used in the first part of the amendment necessarily means ‘property taxpayers.’ The other portion of the amendment dealing with the one mill maintenance tax, using the language ‘by a majority in number and amount of the duly qualified tax payers qualified to vote’ and the provision of Act No. 246 of 1946 which is in pari materia, where the language employed is ‘authorized by both a majority in number and amount of the property taxpayers qualified to vote’ make this conclusion inescapable.

“The general policy of this state in regard to tax matters of this nature is to authorize the tax by a vote of the majority of the property owners affected who are qualified electors. Any other interpretation is unreasonable. No tax can be legally voted upon property in this state unless it is sanctioned by the eligible property taxpayers. Here, in any event, the lawmakers in adopting the amendment could not have had in mind one category of taxpayers as to the majority dealing with the one mill tax, and some other category of taxpayers as to any proposed bond issue, where from the whole legislation it is plain that only one subject matter was involved, and that indeed any and all proposals were to be voted upon at one and the same time as was done in this case.

“The suggestion that there is any conflict between the amendment and the act, ana that where this is true the amendment must necessarily govern, and that therefore here the majority anticipated is of all the eligible taxpayers rather than those actually participating in the election is without merit. Plainly all that is meant here is a majority of those participating in the election.

“The consistent general policy of the law is this state in matters of this nature is to require only a majority in number and amount of those participating in the election. Earlier statutes must have been within the knowledge and view of the legislature which adopted the constitutional amendment in the light thereof. In Volume SO of American Jurisprudence, Section 354, we find the following:

“ ‘In the enactment of a statute, earlier acts on the same subject are generally presumed to have been in the knowledge and in view of the legislature which is regarded as having adopted the new statute in the light thereof and with reference thereto. Therefore, in the construction of a statute, reference may be made to earlier statutes on the subject, which are regarded as “in pari materia” with the latter statute.’
“And in Volume 50, Section 299 of the same authority, it is said:
“ ‘Authority is not wanting to the effect that in interpreting an ambiguous statute the courts may among other matters take into consideration the general policy of the law, or the settled policy of the state, in so far as it may throw light on the legislative intention, and that a statute should be interpreted in the light of, and to effectuate, such policy, where it is clearly deducible from consistent acts of the legislature, or where the statute is a part of other legislation designed as a whole to establish an expressed state policy. It has even been presumed that the legislature intended that the statute should be construed in the light of the settled and uniform policy of the law relating to the subject matter, and that there is no intention to depart from any established policy of the law. * * * ’
“There is no instance in the law of this state where a bond or tax proposal of any kind has ever been made dependent upon a majority vote of all of the eligible taxpayers. Generally, only a few people actually participate in these elections, but the assumption must be made that any who fail to exercise their voting privilege are presumed to acquiesce in the will of the active majority, In this case it is stipulated between the parties that while the actual percentage in relation to all is not exactly known, that the number of qualified taxpaying electors who took part in the election is greatly in excess of the number ordinarily participating in similar elections.
“If there were a real conflict here between the amendment and the act, the amendment would, of course, govern. Here, however, the amendment is merely silent as to what kind of majority is required, and the enabling statute which was enacted by the legislature at the same time and which is a part of the same plan is plain in defining this majority as restricted to those who ‘vote at any election held hereunder.’ The whole legislation is to be considered in arriving at a proper conclusion as to what the lawmakers had in mind as to this majority. Here if the amendment had definitely called for a majority of' all eligible taxpayers there would ■ be a conflict, and the amendment would necessarily govern, but where the amendment is silent upon the point and where the enabling statute is clear in its definition of this majority and is consistent with the general policy of the state in respect to matters of this kind there is no question but that only a majority of the qualified electors participating was required.
“The point was considered by the Supreme Court of this State in the case of Citizens & Taxpayers of DeSoto Parish v. Williams, et al., 49 La.Ann. 422, 21 So. 647, 653, 37 L.R.A. 761. There a special tax had been voted in aid of the construction of a railroad through DeSoto Parish. The election had been held under Article 242 of the Constitution in which it was provided that the outcome of the election was to be determined ‘by a vote of the majority of the property taxpayers in numbers and in value,’ and in that case it was argued as here that it was necessary to obtain a majority of the total number of votes and a majority of the total taxable acreage of the parish. The lower court sustained this contention. The Supreme Court of this State in interpreting the said Article 242 in relationship to Article 209 used the following language which this Court believes is exactly applicable to the point here involved:
“ ‘But pretermitting all reference to Article 209, and confining the discussion, arguendo, to the provisions of Article 242, let us consider the phrase, “by a vote of the majority of the property taxpayers, in numbers and in value,” and ascertain its true meaning.
“ ‘It is quite significant, indeed, that the phrase is, “by a vote of the majority of the property taxpayers,” etc., instead of “by a vote of the majority of all the property taxpayers,” etc.
“ ‘Between such phrases as these two, a difference has been taken by nearly all of the courts whose opinions we have examined on the subject, and with the proximate result that, in cases where the word “all” is omitted, the decisions - have been that a majority of those actually voting carries the election in favor of the tax, those not voting being presumed to have acquiesced in the result, while in those cases in which the word “all” occurs an affirmative vote of all the property taxpayers is requisite for that purpose.
“ ‘The following decisions of some of the courts of other states will serve to illustrate the' foregoing propositions.'
“ ‘They are founded upon the precepts of text writers of the first ability, the trend of which may be summarized thus:
“ ‘That the rule to guide those to whom the question is submitted is, to take the majority of votes cast as a test, those who remain away from the polls being presumed to assent to what is done by a majority of those who vote. Their silence, when they had an opportunity to speak and change the result, is taken for consent to the result; that this is the settled doctrine in this country in respect to the election of officers as a general election, and also at elections for the purpose of deciding any special proposition. McCrary, Contest. Elec. p. 114 * *
“In 29 C.J.S., Elections, § 242, the rule is expressed in the following manner, under the title ‘Elections’:
“ ‘It is a fundamental principle of popular government that in elections the will of the majority, expressed in the manner authorized by law, must prevail, unless the constitution otherwise provides. Constitutional provisions requiring a majority vote may be so worded as to require an affirmative assent to be given by the requisite majority of all those entitled to vote. Generally, however, such a provision is construed to mean that the election shall be decided by the required majority of the votes actually cast, irrespective of the number of persons entitled to vote, since qualified electors who fail to vote are presumed to acquiesce in the expressed will of the majority of those who do. * * * ’
“The principle was applied by the Court of Appeals for the Parish of Orleans in the case of State ex reí. Fleury and Tole-dano v. Conway, 8 La.App. 717, et seq:, in which a writ was denied by the Supreme Court wherein the court quoted from Volume 9, Ruling Case Law, page 1115, Section 117, the following:
“ ‘Ordinarily, therefore, voters who do not choose to participate in an election are not to be taken into consideration in declaring the result. If the law requires a question to be decided or an officer to be elected by the votes of the majority of the voters of the county, this does not require that the majority of all the persons in the county entitled to vote shall actually vote affirmatively, but only that the result shall be decided by a majority of the votes cast. And so a constitutional provision requiring the assent of two-thirds of the qualified voters of the county, at an election lawfully held for that purpose, to a proposed issue of municipal bonds, means the vote of two-thirds of the qualified voters present and voting at such election in its favor, as determined by the official return of the result. Voters not attending the election or not voting on the matter submitted are presumed to assent to the expressed will of those attending and voting, unless the law providing for the election declares otherwise. This is true whether the matter is submitted at a meeting under a statute requiring the assent of a majority of all the inhabitants entitled to vote to be ascertained by taking and recording the ayes and nays of such inhabitants attending the meeting, or whether it is submitted to a decision of a majority of the voters of the polls.’
“The amendment here refers only to the majority in number and amount of the taxpayers and the word ‘all’ is omitted, while in the enabling statute, as shown, the provision is added that the majority is to be determined by those participating. The conclusion seems inevitable that the latter majority is what the lawmakers had in mind.”

It is our opinion that the other contentions as to the adoption of a budget, the designation of fiscal agents, the anticipation of revenues by the issuance of certificates of indebtedness are all equally without merit.

In Section 3 of Act No. 246 of 1946, the Recreation and Park Commission of the Parish of East Baton Rouge is constituted a corporation with “all the powers of public corporations”, with permission “to incur debts and contract obligations, to sue and'to be sued * *

Construing this provision with the laws of this State relative to public corporations upon the subject of borrowing of money, particularly Act No. 79 of 1916, § 1, this Commission in order to pay for current expenses for any year, is authorized to anticipate the revenues of such year and to borrow the money to pay such expenses and to issue negotiable cei'tificates of indebtedness covering said loan.

The context of Act No. 246 of 1946, as well as the purpose of the law places no restrictions upon the Recreation and Park Commission but, on the other hand, justification exists for extending the privilege of anticipating revenues to said commission as applied to other public corporations.

The opinion of the trial judge continues as follows:

“For all of the foregoing reasons, this Court believes that the exception of no cause or right of action should be sustained.

“In any event, however, insofar as the said election is concerned and the other steps taken in pursuance to it the Court has concluded that all of the contentions relied upon by the plaintiffs are foreclosed under the provisions of Section 14(n) of Article 14 of the Constitution of 1921, as amended, and Act No. 246 of 1946, and Act No. 46 of 1921, Ex. Sess., as amended. Under these laws the right to contest the legality, formality and regularity of the said election is prescribed against by the lapse of sixty days, and this Court is denied jurisdiction to inquire into such matters. The Court has therefore also concluded that the special plea of prescription of sixty days relied upon by the respondent, and the exception to the jurisdiction Tatione materiae’ should both be sustained.

“Here the election was held on the 28th day of October, 1947, and the results thereof were canvassed and the returns promulgated at a meeting held on October 31st, 1947, and the ordinance promulgating these results was published in the official journal of the parish of the 19th day of November, 1947. The sixty day prescriptive period had thus expired before this suit was filed.
“Section 43 of Act-No. 46 of 1921, Ex. Sess., provides as follows:
“ ‘For a period of sixty days from the date of the promulgation of the result of any election held under the provisions of this act, any person in interest shall have the right to contest the legality thereof, the bond issue provided for, or the tax authorized for any cause; after which time, no one shall have any cause or right of action to contest the legality, formality or regularity of said election, tax provision or bond authorization, for any cause whatsoever. If the validity of any election, special tax or bond issue authorized or provided for under the provisions of this act be not raised within the sixty days herein prescribed, the authority to issue the bonds, the regularity thereof, and of the taxes necessary to pay the same, shall be conclusively presumed, and no court shall have authority to inquire into such matters. If any resolution be adopted or proceeding had more than thirty days after the promulgation of the result of the election, no contest, action or proceeding to question the validity or legality of such resolution or proceeding so adopted shall be begun in any court by any person for any cau'se whatsoever, after the expiration of thirty days from the date when the resolution was adopted or proceeding had.’ (Volume 6, Dart’s Statutes, page 545, Section 8896.)
“In Section 9 of Act No. 246 of 1946, which is the enabling statute with which we are here concerned, we find the following provision:
“ ‘Except as is herein especially ■ provided, any such election and all steps connected therewith, and the imposition of any tax or the issuance and sale of any bonds thereunder shall be carried out as is provided by Act No. 46 of the Laws of Louisiana, 1921, as now or hereafter amended, including the manner of calling and conducting such election, and canvassing and promulgating the results thereof.’
“Thus this prescriptive period is incorporated into Act No. 246 of 1946 by reference.
“Exactly the same language is used in Section 43 of Act No. 46 of 1921, Ex. Sess., as is contained in Article 14, Section 14(n), of the Constitution of 1921. The cases under Article 14, Section 14(n), must therefore be taken into account in arriving at the proper application of these laws to the issues here presented. The Supreme Court of this State has maintained the sixty day contest period in all cases where the legality, formality or regularity of any such election, tax provision or bond authorization was involved whatever the basis of complaint and whether the issues involved were legal or constitutional. Roberts et al. v. Evangeline Parish School Board, 155 La. 331, 99 So. 280; Hardin v. Police Jury of Vernon Parish, 155 La. 899, 99 So. 690; Chiara v. Lafourche Terrebonne Drainage District, 159 La. 422, 105 So. 418; Gravity Drainage District v. Caldwell & Co., 171 La. 58, 129 So. 668; Nanney v. Town of Leesville, 198 La. 773, 4 So.2d 825; Browning v. Webster Parish School Board, 212 La. 139, 31 So.2d 621; Roy v. City of Lafayette, 168 La. 1081, 123 So. 720.
“Here no constitutional question is involved. The only seriou's point at issue is whether sufficient votes were cast at the election to sustain the result. If there were a conflict between the constitutional amendment and the enabling act, the conflict would be resolved in favor of the amendment and the question would still remain as to the adequacy of the vote cast at the election. This is a legal question which is foreclosed by Section 43 of the said Act No. 46 of 1921, Ex.Sess. The foregoing cases show that the Supreme Court has applied the sixty day prescriptive period in denying the jurisdiction of the Court to inquire into any kind of legal or constitutional question where the election was held upon some semblance of legal authority.
“In the Roberts case, supra [155 La. 331, 99 So. 282], the first decision by this Cou'rt under Article 14, Section 14(n), the bond issue and tax were attacked on the ground that the statutes under which a school district was created were in conflict with Article 250 of the Constitution of 1898 and other provisions of the Constitution of 1921. In speaking of the language used in Section 14(n) identical with the language employed in Section 43 of Act No. 46 of 1921, Ex.Sess., the Supreme Court of this State made the following observations:
v ‘It seems to us that language could not be used to express more strongly the very patent intention of the constitutional convention, to wit, that after 60 days have elapsed without any attack upon a bond issue and tax voted by property taxpayers under color of law, any person may safely purchase such bonds and feel secure that the taxes levied to pay them will be sustained by the courts of this state. The constitutional convention had the right to say this; it did say it, and that is the end of the matter.’
“In Hardin case, supra [155 La. 899, 99 So. 695], the Supreme Court had the following to say after quoting Section 43 of Act No. 46 of 1921, and Article 14, Section 14(n) of the Constitution:
“ ‘* * * The apparent purpose was, after the expiration of sixty days from the promulgation of the result of such bond elections, to remove from doubt the validity of all bonds authorized under this section of the Constitution and the laws carrying it into effect. Of course, as heretofore pointed out in the case of-vs. -, there must be at least a color of right in the authority which conducts the proceedings for holding the election and issuing the bonds. Certainly there would be no such color of authority in the “village barber” or other agencies, which, in extreme illustrations, have been suggested in other cases. * * *
“ ‘Where the subdivision purporting to act has jurisdiction, and there is an apparent purpose to proceed under the provisions of the Constitution and laws putting it into effect, no omission to comply with the literal terms of either can be urged to nullify the result after the running of the period of repose fixed by the Constitution itself.’
“In the case of Chiara [159 La. 422, 105 So. 419] supra, the Supreme Court made the following observations:
“ ‘ * * * the Constitution of this state and the statutes passed pursuant thereto has not only granted to a taxpayer, whether resident or nonresident, the unlimited and unrestricted right to question the validity or the legality of an election authorizing a bond issue and the levy of a tax for drainage works, but has expressly and in terms unmistakable withheld from such taxpayer the right judicially to raise such questions, unless he comes into court with such complaints within a period of 60 days after the promulgation of the returns of any such election. We think it will suffice to quote only from Act 225 of 1916, Act 46 of 1921 (Ex.Sess.), and the constitutional provision of 1921.’
“In the case of Gravity Drainage District, supra, the bonds of a drainage district were brought in issue on the grounds that the board purporting to act as the governing body was not in reality the valid and properly constituted agency of the district, that the organization of the drainage district was void, that the bonds were not issued for a purpose authorized by the constitution, and that the proposition submitted to the voters did not definitely state the number of years for which the bonds were to run. The Supreme Court of this State held in respect to all of these matters that it had no authority whatever to inquire into the issues presented in the face of the plea of prescription of sixty days under the said Article 14, Section 14(n),
“For these reasons judgment will be rendered herein in favor of the defendant as prayed for declaring the validity of the election and all proceedings subsequently taken by the Recreation Commission thereunder, recalling and vacating the rule nisi, and dismissing the plaintiffs’ suit at the plaintiffs’ cost.
“Baton Rouge, Louisiana, this 6 day of February, 1948.”

For these reasons the judgment appealed from is affirmed.

McCALEB, J., concurs in the decree.


author: HAMITER, Justice.

text:
    213 La. 109
    LEMOINE v. LACOUR et ux.
    No. 38465.
    Supreme Court of Louisiana.
    Feb. 16, 1948.
    Judgments of dismissal amended to the extent of reserving to plaintiff the right to supplement his pleadings so as to state a cause of action, and case remanded to the district court, but suit dismissed as to such demand, if pleadings are not so supplemented within specified time.

      K. Hundley, of Alexandria, for plaintiff-app ellant-relator.
    J. B. Nachman, of Alexandria, for defendants-appellees-respondents.
   HAMITER, Justice.

The main demand of plaintiff herein is for specific performance to compel the defendants to make formal conveyance of a one-acre parcel of land, with improvements thereon, located in Rapides Parish.

He alleges that defendants agreed verbally, during the first part of July, 1944, to sell the property to him for the sum of $350, payable in ten monthly installments of $35 each; that he made nine of the monthly payments, as is fully shown by the receipts therefor attached to the petition, and that the tenth payment, which was tendered to defendants but by them declined, has been deposited in the registry of the court; and that defendants have refused to give him a deed to the property, notwithstanding he has fully complied with the agreement.

Plaintiff prays that defendants be ordered and commanded to execute an appropriate deed. Alternatively, he asks Judgment for all sums expended by him in connection with the property.

Defendants excepted to the petition as stating no cause of action. The exception was sustained by the district court, and the suit dismissed, as to the demand for specific performance; it was overruled as to the alternative or money demand. On appeal to the Court of Appeal the judgment was affirmed. The case is presently before us on a writ of certiorari or review granted on plaintiff’s application.

The Court of Appeal, as well as the district court, correctly concluded that the petition in its present form states no cause of action. Plaintiff expressly alleges that the agreement of sale, under which he seeks specific performance was verbal. Civil Code Article 2440, states:

“All sales of immovable property shall be made by authentic act or under private signature.
“Except as provided in Article 2275, every verbal sale of immovables shall be null, as well for third persons as for the contracting parties themselves, and the testimonial proof of it shall not be admitted.”

And there is nothing in the petition to bring the case within the provisions of the referred to Civil Code Article 2275 reading:

“Every transfer of immovable property must be in writing; but if a verbal sale, or other disposition of such property, be made, it shall be good against the vendor, as well as against the vendee, who confesses it when interrogated on oath, provided actual delivery has been made of the immovable property thus sold.”

There are nine receipts, of course, attached to and made a part of the petition, which are to be considered in passing upon the exception of no cause of action. All of them are identical, except for their respective dates, and recite:

“Received from Mr. Clifton Lemoine $35.00 for payment on place.
“W. L. Lacour
“C. P. Lemoine.”

Plaintiff’s counsel contends that these receipts constitute written evidence of his contract of sale with the defendants and are sufficient to permit the introduction of parol testimony to identify the property. And in support of the contention he cites Saunders v. Bolden, 155 La. 136, 98 So. 867, Guice et al. v. Mason et al., 156 La. 201, 100 So. 397, 398, and Walker v. Ferchaud et al., 210 La. 283, 26 So.2d 746, 747. The cited cases are not appropriate here. In each of them the writing relied on contained a substantial description of the affected property. Thus in the Saunders case the property was described as the “Judie Lewis place.” In Guice v. Mason the description was “a certain 80-acre tract of land laying broadside with the 160-acre tract that he [vendee] now lives on’’ (brackets ours). And in Walker v. Fer-chaud the contract of sale made reference to “124 Stella Street, on grounds measuring about 60 x 150, as per title.” In the instant case, however, each of the receipts merely evidences a “payment on place;” it contains no description whatever of any property.

There is applicable here, we think, the doctrine of Kernan v. Baham, 45 La. Ann. 799, 13 So. 155, which was followed in Jackson v. Harris et al., Second Circuit, 18 La.App. 484, 136 So. 166, viz.:

“The writings which defendants present as establishing their title are not only insufficient per se for that purpose, but they are so defective as not to serve as a basis upon which a title could be built up or eked out by parol. The declaration that the promissory note was given as ‘the price of certain lands in the parish of St. Tammany’ is entirely too general to justify the admission of parol evidence to establish possession of particular property by the party named in the instrument as the vendee, and from such possession to assume ór infer it to be that referred to in the writing. Parol evidence to establish identity is allowable, as is likewise parol evidence of possession, in aid of a defective or ambiguous description; hut this is only in cases where there is a sufficient body in the description to leave the title substantially resting on writing, and not essentially on parol, as it would have to rest, if at all, in the case at bar. [45 La.Ann. 799, 13 So. 159.]”

But it is our opinion that the Court of Appeal, as well as the district court, after concluding that the petition stated no cause of action, should have granted to plaintiff (as he requested in the alternative) permission to supplement his pleadings and to interrogate defendants on oath regarding the verbal sale, pursuant to the provisions of Civil Code Article 2275. Plaintiff has already alleged that immediately after entering into the contract of sale he moved on to the property and that he has lived there continuously since that time. If he can show also that the defendants, in their answers to interrogatories on facts and articles, have confessed the existence of the asserted agreement, clearly his petition will state a cause of action.

Under our modern jurisprudence, in the interest of justice, the technical rules of pleading have been greatly relaxed, and a plaintiff now is accorded the privilege of amending his petition so as to state a cause of action if he can and ■ thereby prevent the dismissal of his suit. Drewett et al. v. Carnahan et al., 186 La. 243, 172 So. 6; Pool v. Pool et al., La.App., First Circuit, 16 So.2d 132; and Reagor v. First National Life Insurance Company, - La.Sup. -, 33 So.2d 521, recently decided by this court and not yet reported in State Reports.

For the reasons assigned the judgments of the Court of Appeal and of the district court, which dismissed plaintiff’s suit as to his demand for specific performance, are amended to the extent of reserving to plaintiff the right to supplement his pleadings in the manner above indicated so as to state a cause of action; and the case is remanded to the district court for further proceedings according to law and not inconsistent with the views herein expressed. If, however, the pleadings are not so supplemented within ninety days from the time this decree becomes final, the suit, as to the demand for specific performance, shall stand dismissed. The costs incurred in this court and in the Court of Appeal shall be paid by defendants. All other costs shall await the final determination of the litigation.

O’NIELL, C. J., absent.


author: FOURNET, Justice.

text:
    213 La. 116
    EDWARDS et al. v. TOWN OF PONCHATOULA et al.
    No. 38417.
    Supreme Court of Louisiana.
    Jan. 12, 1948.
    Rehearing Denied Feb. 16, 1948.

      Lewis L. Morgan, of Covington, and Ponder & Ponder and L. B. Ponder, Jr., all of Amite, for plaintiffs-appellants.
    C. Paul Phelps, City Atty., and A. B. Pierson, both of Ponchatoula, and Reid & Reid, of Hammond, for defendants-appel-lees.
   FOURNET, Justice.

The plaintiffs, citizens and taxpayers of the town of Ponchatoula, Louisiana, are appealing from a judgment dismissing their suit against the town to have declared null and void, and to enjoin the enforcement of, an ordinance contracting the corporate limits by excluding therefrom a certain designated area on a part of which is located industrial plants owned and operated by Marion T. Fannaly, Inc.

According to the. record the Fannaly corporation started a cold packing business in the town a few years ago on a comparatively small scale. This has since grown into one of the largest businesses of its kind in the country, with the result that the corporation now has a modern plant covering some three squares in the area excluded from the town limits by the ordinance, the value of these facilities being estimated to be equal to or in excess of the assessed valuation of all of the remaining property within the corporate limits,— $1,000,000. From its very inception the plant has been exempt from all taxes— state, parochial, and municipal — having obtained a certificate of exemption from the State Board of Commerce and Industry. This exemption will soon expire.

In 1945 the corporation proposed to the town of Ponchatoula that if it would exclude from its territorial limits that part of the town north of Willow street and east of the Illinois Central Railroad, it would double its plant facilities and pay to. the town $7,500 as soon as the ordinance providing for such contraction would become operative and a like sum on January 10, 1946, in order that the town might buy a much needed new fire engine, road equipment, and improvements for its water system. It also agreed to pay $600 a year, at the rate of $50 a month, to the fire department, and $300 a year, or $25 a month, for police protection. In this proposition it is suggested that if the plans are put into effect “the Hayes Dairy Products plans to dispose of their present plant and to erect a complete dairy manufacturing plant on Square 19 for cooling and pasteurizing milk, manufacturing of ice cream, cheese, butter, evaporated, or condensed milk, etc. This plant would be in the corporate limits of Ponchatoula.”

In the furtherance of this plan or proposition, Marion T. Fannaly, president of the corporation, appeared before various civic bodies and organizations in the community explaining the proposal to them and he obtained from them resolutions recommending that the ordinance be adopted contracting the corporate limits as requested. The particulars in connection with the plan (and as outlined above) were detailed in a full page advertisement in a local newspaper, the readers being advised that the plan would be submitted to the town council at its regular meeting on Tuesday, November 6, 1945, and that it would again be taken up by the council for final consideration at a special meeting scheduled to be held one week later, on November 13. On that day the ordinance was adopted by the council, the Mayor and one of the councilmen not voting. By this ordinance the town limits were refixed so as to exclude an area of approximately 70 acres located only three blocks from the main street of the town. One of the in-dhstries benefited by such exclusion is directly across Willow street from a competitor in the same business (veneering). The corporation’s cold storage and packing business, also affected by the ordinance, is only two blocks from a competing business, although the latter business is operated on a much smaller scale.

Following the adoption of the ordinance, A. M. Edwards, Jr., Leon Edwards, the A. M. Edwards Company, Inc., Albert L. Wright, Everett Cowen, Carl Wilson,- and Edward Vineyard, joined by the Poncha-toula Farm Bureau and the Ponchatoula Farmers Union, instituted this proceeding. The last five parties, because of certain allegations contained in the petition, subsequently discontinued their suit.

It is the contention of the plaintiffs that Act 154 of 1944 (amending and re-enacting Section 1 of Act 35 of 1924, as amended and re-enacted by Act 149 of 1928), authorizing the council’s action in contracting the town limits, is unconstitutional in that (1) because of extraneous matter contained in the body the act expresses more than one object, the title of which is not indicative thereof, and (2) it seeks to place a limit upon the period during which the ordinance adopted by municipal authorities in extending or contracting the territorial limits of the various municipalities may be contested. They contend, further, that to uphold the action of the town council as being authorized under this legislative act is in violation of Section 22 of Article X of the Constitution of 1921. It is their further argument that the ordinance is grossly unreasonable and tends to establish the dangerous precedent of permitting a corporation to barter for tax immunity for a stipulated sum, thereby discriminating against competing industries, seriously jeapordizing the fisc of the community, and making the burden of maintaining the municipality more onerous on the remaining taxpayers, with the ultimate reduction of the security of the bondholders as well as the revenues needed for the maintenance of the peace and safety of the community.

Act 154 of 1944, as indicated by its title, is an act to amend and re-enact Section 1 of Act 35 of 1924, as amended and re-enacted by Act 149 of 1928, and a perusal of the body of the act does show that there is contained therein extraneous matter entirely foreign to the object thereof. The act as reported in the bound volume of the acts of the legislature for 1944 released by the Secretary of State also appears to be incomplete. However, the portion' of the act applicable to the issues here presented for our consideration are, for all intents and purposes, identical with the 1928 act, with the exception that there is contained in the 1944 act a provision to the effect that the only question to be decided on appeals taken from the adoption of such ordinances is “whether the proposed extension or contraction of the corporate limits be or be not reasonable,” a matter that has been established by the jurisprudence of this court previous to the adoption of the 1944 act. Lawrence v. Mansfield, 129 La. 672, 56 So. 633; Bowman-Hicks Lumber Co. v. Oakdale, 144 La. 849, 81 So. 367. It therefore follows that whether or not (because of the extraneous matter contained in the act) it be held invalid (and conceding that the act is not valid for the purpose of disposing of this case), the provisions of Act 35 of 1924, as amended by Act 149 of 1928, which were followed, are controlling.

Likewise, the further contention' of counsel for the plaintiffs that because the act of 1928 and the act of 1944 contain the provision that limits the time within which an attack may be made upon the ordinance adopted by the municipality in extending or contracting the corporate limits renders both of these acts unconstitutional, is without foundation. The authorities cited in support of this contention are not applicable to the case at bar. It is clearly within the province of the legislature in all cases where there is no constitutional inhibition, to place a limit upon the time within which such matters may be contested in the courts.

It is elementary that municipal corporations are creatures of the state, established by the legislature for the purpose of administering local affairs of government. Such powers as these corporation's have, as well as the limits of the territory they are to govern, are all matters that are entirely within the province of the legislature and so long as there is no constitutional provision restricting the legislature’s authority in this respect, that body may enlarge or diminish the territory of these corporations, consolidate on'e with another in whole or in part, and even terminate their existence at will. It may also legally delegate these powers to the municipal authorities. 38 Am.Jur. 635, dealing with Municipal Corporations, Section 18, etc.

This brings up for our consideration', therefore, the question of the reasonableness of the ordinance.

The trial judge in his written reasons for judgment, after declaring that he felt the courts should not interfere with the discretion vested in the municipal authorities in the adoption of ordinances of this nature so long as the town is benefited, the prejudice to or benefit by individual property included or excluded by such action being immaterial, based his conclusion' that the ordinance was reasonable largely upon the testimony of the members of the town council and the recommendations made to them by two local civic organizations, the American Legion an'd the Business Men’s Association.

The three members of the council voting for the ordinance testified most positively they were not in any manner influenced in casting their vote by the cash offer of the corporation' but, instead, that they were motivated entirely and solely by what they thought to be to the town’s best interest, as it appeared to them after they received the advice and counsel of numerous professional and business men in the community, expressed in the resolutions adopted by the civic organization's. The Mayor and the councilman not voting also testified it was their opinion the action of the council was for the best interest of the town.

The resolution adopted by the American Legion simply declares that since the Fan-naly corporation has made a proposition to the town, the purpose of which is to exclude the manufacturing plant of the corporation from the corporate limits, and since such proposition would be to the advantage of the town because the expansion' of the plant would increase the payroll and benefit the merchants and citizens generally, the Legion' approved the proposition.

The resolution of the Business Men’s Association, however, more nearly expresses the real object of and the motivating factor behind the proposition and its ultimate effect for, in the detailed explanation of the reasons for its adoption, is contained the statement that Mr. Fan-naly, president of the corporation, appeared personally before the membership and explained to them the proposition substantially as it was outlined in the newspaper advertisement 'and declared that in order to meet the competition of similar plants located closer to the sources of the supplies needed for their functioning' he was forced to ask the town council to contract the town limits so as to exclude the corporation’s property, “thereby saving the Town tax,” and that, in return for this release, he was prepared to pay into the town: treasury the considerations offered. In addition to this, the resolution contains the statement that he proposed “to build a Modern Creamery of increased capacity as well as other buildings inside the corporation [limits] which will compensate for the loss of some of the potential tax he would be liable for.” (Italics an'd brackets ours.)

An examination of all of the evidence in the record, together with the above mentioned resolutions, unmistakably shows that the corporation’s sole motive in making this proposal was to secure relief from municipal tax levies on its industry and on its proposed additions thereto without following the procedure set out in Section 22 of Article X of the Constitution, wherein it is declared that before such exemption can be granted “the question of granting such exemption' to each such new industry or to each such addition or additions to any industry already established, and the length of time such exemption shall continue, be previously submitted to the resident property taxpayers qualified to vote in the municipality or in the parish, wherein such exemption is sought to be granted, at any election called for that purpose and, a majority of those voting, in number and amount, do vote in favor thereof * *

The procedure followed in the in-' stant case, in our opinion, is nothing more than an attempt to circumvent this constitutional provision, thus permitting the municipality to do indirectly what it is prohibited from doing directly without securing the approval of the resident property taxpayers in an election. Furthermore, regardless how sincere may have been the motives of the members of the town council in' this case, we feel that for us to place our stamp of approval on the action taken by them would -not only be against the public policy of this state but would also tend to open wide the doors now closed on the right of municipalities to traffic and sell their taxing power for cash and other considerations, with the result that a municipal authority might be enabled to resort to such practice in any of the innumerable contrivances and schemes that the skillful, resourceful, and adroit min'd of man can conceive.

Moreover, we think that to allow this ordinance to become operative, in the light of the provisions of the act authorizing its adoption relating to the procedure that must be followed in the event it is deemed advisable at a later date to extend the corporate limits to include this area, could result in most unfortunate and irremediable consequences. To illustrate — suppose the proponents of this ordinance fail to carry out the promises made to secure its adoption, i. e., to expand their plant, build a large and modern dairy within the city limits, or pay the cash considerations promised. The town would be powerless to again include within the corporate limits the territory thus deleted, for this can only be done when there has been continuously on file in the office of the clerk of the municipality for at least 10 days prior to the adoption of an ordinance extending the boundaries of the city the written' assent of at least 25'% in number and value of those who at the time of the filing of said petition own property within the area that would thus become subject to taxation (Section 1 of Act 3-5 of 1924, as amended), which would mean that in a case such as this, the petition could never be secured,, it appearing from the evidence in the record that the corporation in this case owns all of the valuable property located in the area, thus leaving the matter of its incorporation into the city limits at a future date solely to the will and desire of the corporation'.

For the reasons assigned, the judgment appealed from is annulled and set aside and it is now ordered, adjudged, and decreed that there be judgment in favor of the plaintiffs, A. M. Edwards, Jr., Leoti Edwards, an'd the A. M. Edwards Company, Inc., and against the Town of Pon-chatoula, decreeing the ordinance adopted by its legally constituted officials on November 13, 1945, refixing the boundaries of the corporate limits of the town to ex-elude therefrom the area north of Willow street and east of the Illinois Central Railroad, to be null and void and of no effect.

PONDER, J., recused.


text:
    213 La. 129
    STATE v. CALLOWAY.
    No. 38790.
    Supreme Court of Louisiana.
    Feb. 16, 1948.
    Rudolph F. Becker, Jr., of New Orleans, for - appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Cul-ligan, Asst. Atty. Gen., Herve Racivitch, Dist. Atty., and Beuker F. Amann, Asst. Dist. Atty., both of New Orleans, for ap-pellee.
   BOND, Justice.

The defendant, Wilson Calloway, having been convicted of “simple battery” upon a 15 year old girl, was sentenced to serve 7 months in the Parish Prison. He is appealing from his conviction and sentence, relying for the reversal thereof on a lone bill of exception reserved to the trial judge’s ruling in refusing his motion for a new trial, the basis of which is that the verdict is “unjust and unfair” and “contrary to the law and evidence”. This motion presents only a question of fact over which we have no appellate jurisdiction. Art. 516, Code of Criminal Procedure. It is only when there is no evidence at all to support the crime charged or an essential element thereof that this court is authorized to review the evidence. State v. Nomey, 204 La. 667, 16 So.2d 226, and State v. Valentine, 203 La. 1057, 1058, 14 So.2d 851.

The conviction and sentence are affirmed.

O’NIELL, C. J., absent.


author: HAWTHORNE, Justice.

text:
    213 La. 131
    STATE v. ASHER.
    No. 38771.
    Supreme Court of Louisiana.
    Feb. 16, 1948.
    Chandler C. Luzenberg, Jr., of New Orleans, for appellant.
    Fred S. LeBlanc, Atty. Gen., M. E. Cul-ligan, Asst. Atty. Gen., and Herve Raciv-itch, Dist. Atty., and E. A. Haggerty, Jr., and Beuker F. Amann, Asst. Dist. Attys., all of New Orleans, for appellee.
   HAWTHORNE, Justice.

The defendant, Joe Asher, was convicted of the crime of simple battery, as denounced by Article 35 of the Louisiana Criminal Code, and was sentenced to serve 10 months in the parish prison. He has appealed.

The record does not show that any bill of exception was reserved during the trial in the lower court, and the law of this state is well settled that in the absence of a bill of exception the judgment of the lower court will not be reversed except when there is error patent on the face of the record. We find no such error in this case. State v. Wilson, 109 La. 74, 33 So. 85; State v. McCrocklin, 130 La. 106, 57 So. 645; State v. Pullen, 130 La. 249, 57 So. 906; State v. Braxton, 157 La. 733, 103 So. 24; State v. Creech, 183 La. 433, 164 So. 162; State v. Stewart, 188 La. 546, 177 So. 662; State v. Green, 205 La. 439, 17 So.2d 620.

The conviction and sentence are affirmed.

O’NIELL, C. J., absent.


text:
    213 La. 133
    BANK OF LAFAYETTE & TRUST CO. v. COMMERCIAL BANK OF LAFAYETTE & TRUST CO. et al.
    No. 38762.
    Supreme Court of Louisiana.

      Feb. 16, 1948.
    Davidson & Davidson, of Lafayette, for plaintiff-appellant.
    Welton P. Mouton and Voorhies & Labbe, all of Lafayette, for defendants-ap-pellees.
   HAWTHORNE, Justice.

Plaintiff-appellant, Bank of Lafayette & Trust Company in liquidation, represented by its liquidating commissioners, instituted this suit on February 19, 1944, against the Commercial Bank of Lafayette & Trust Company, also in liquidation, and Wilfred J. Begnaud, state bank commissioner, and F. L. Gauthier, special agent in charge, for an accounting of the assets and liabilities which were acquired by the defendant bank from the plaintiff bank under and by virtue of a contract dated March 27, 1931, this account to be rendered as of February 7, 1944, and prayed that as a result of said accounting plaintiff bank be decreed to be the owner of the funds and assets which resulted from a liquidation of assets acquired from the plaintiff bank by the defendant bank, such funds and assets to be transferred to the plaintiff bank for the use and benefit of its stockholders.

To plaintiff’s petition defendants filed what they styled “an exception of estop-pel”. This exception was submitted to the lower court on an agreed statement of facts, and in due course the district judge rendered judgment maintaining the plea, rejecting plaintiff’s demands, and dismissing its suit at its costs. From this judgment plaintiff has appealed to this court.

The Bank of Lafayette & Trust Company, by act of sale dated March 27, 1931, conveyed unto the Commercial Bank of Lafayette & Trust Company all its assets of every nature and description as they appeared on the books of the bank as of the close of business on that day. The consideration was the assumption by the Commercial Bank of Lafayette & Trust Company of all the obligations and liabilities of the seller as of that day, exclusive of the obligation of the selling bank to its own stockholders.

In connection with this sale, the parties thereto entered into the contract, likewise dated March 27, 1931, out of which this litigation arises. In this contract defendant, Commercial Bank of Lafayette & Trust Company, agreed that during a period of three years from and after the date of the sale it would p-oceed to collect and reduce to cash the assets acquired by it from the plaintiff bank, the method of so doing to rest in the uncontrolled discretion of the defendant bank, with full power to sell, compromise, substitute, etc.; that it would report annually in writing to the liquidating commissioners of the Bank of Lafayette & Trust Company (that bank being placed in voluntary liquidation thereafter by act of its stockholders on May S, 1931) the results of the operations of these assets during the preceding year; that it would at the end of three years from the date of the sale render a final report to the liquidating commissioners of the result of its handling of the assets acquired by it. The defendant further agreed that at the end of the third year it would pay to the liquidating commissioners of the selling bank any sums realized by it in excess of the liabilities of the selling bank, assumed by it in the act of sale, less costs, charges, and expenses incurred in realization thereof, the purpose being to account for any residuum left in due course of administration of the assets in excess of the liabilities and expenses in handling such assets.

The selling bank guaranteed that the assets conveyed to the purchaser would on liquidation produce and realize for the purchaser, Commercial Bank of Lafayette ' & Trust Company, 'a sum equal to the debts and liabilities assumed, by it in the act of sale, including depositors’ accounts, by obligating itself to indemnify the purchasing bank up to the amount of $150,000 against any loss which might be incurred in the liquidation of the assets and the assumption of the liabilities. Should the assets, on liquidation prove unequal or insufficient to discharge the liabilities aforesaid, the Bank of Lafayette & Trust Company .under its guarantee agreed to pay to the Commercial Bank of Lafayette & Trust Company upon demand the sum of $150,000, or .so much thereof as might be necessary to make good any loss of the purchasing bank resulting from the liquidation of these assets for a sum less than the amount of the liabilities so assumed.

Eight individuals, who were actually officers and stockholders of the Bank of Lafayette & Trust Company, two of whom were named as liquidators, made themselves parties to this contract and agreement, obligating themselves individually and as sureties in various amounts up to the aggregate sum of $150,000, thus likewise guaranteeing the purchasing bank against loss as a result of its taking over the assets and liabilities of the Bank of Lafayette & Trust Company.

At the end of the three-year period the Commercial Bank of Lafayette & Trust Company rendered what it styled its final report, in compliance with the contract, showing a loss far in excess of $150,000, and demanded of the Bank of Lafayette & Trust Company and the indemnitors' the full sum of $150,000 in accordance with their obligation in the contract.

The Bank of Lafayette & Trust Company denied all liability under the contract, and took the position that the Commercial Bank of Lafayette & Trust Company had breached the contract. ' After the Commercial Bank itself was placed in liquidation, it was compelled to institute suit on the claim. That suit was filed on June 11, 1934, for the full amount of $150,-000, predicated on the contract of March 27, 1931, against each of the guarantors and the Bank of Lafayette & Trust Company in liquidation, plaintiff in the case now under consideration.

In answer to that suit defendants therein, denying liability, took the position that the Commercial Bank of Lafayette & Trust Company had failed to carry out the obligations imposed upon it by the contract of March 27, 1931, thereby breaching the contract; that this contract expired by its terms on March 27, 1934, and that, if such liability had existed, it ceased to exist on that date because of the prior failure of the Commercial Bank of Lafayette & Trust Company to comply with the obligations which it had assumed under this contract. Moreover, in its answer the Bank of Lafayette & Trust Company, one of the defendants therein, did not advance any claim against the plaintiff therein or ask for an accounting predicated on the contract.

Although many pleas and exceptions were filed and disposed of therein over a period of years, that suit was never tried on the merits, but was compromised on May 22, 1941, approximately seven years after it had been filed, and was dismissed as to all parties. In this compromise certain of the guarantors who had been named defendants paid to the Commercial Bank of Lafayette & Trust Company, in full satisfaction of the indemnity agreement, $15,000 in cash and transferred to the bank certain oil royalties and bank stock.

According to the stipulation of facts in the record, the liquidation of the assets of the Commercial Bank of Lafayette and Trust Company, as well as those acquired from the Bank of Lafayette & Trust Company pursuant to the contract dated March 27, 1931, continued up to February 9, 1944. On January 3, 1944, the state bank commissioner and the special agent caused to be inserted in a newspaper published in the Town of Lafayette a notice of a meeting of the stockholders of the Commercial Bank of Lafayette & Trust Company to be held on February 9, 1944, which notice stated that the Commercial Bank of Lafayette & «Trust Company had paid all debts and charges, and that the state bank commissioner proposed to deliver to the stockholders all the assets remaining on hand after the payment of all debts and charges due by the bank. This was plaintiff’s first knowledge that the liquidation of assets was sufficient to pay all debts and charges and leave a residue thereafter. The plaintiff instituted the present suit on February 19, 1944, praying for an accounting of the assets acquired from it by the defendant bank, and for any residue resulting from the liquidation of those assets.

The exception which the trial judge sustained in dismissing plaintiff’s suit, among other things, sets forth “That plaintiff herein is barred by laches from bringing these proceedings against exceptors herein, in failing to file its alleged claim under Section 4, Act 300 of 1910”. Exceptors simply mean by this language that plaintiff’s suit is barred by its failure to file its claim with the commissioner of the defendant bank in liquidation on or before August 15, 1934, in accordance with the published notice of the commissioner to all claimants, except depositors, to file their respective claims (the first publication being on May 5, 1934, and the last on August 10, 1934).

That the trial judge so considered the plea is clearly shown in his reasons for judgment, in which, after discussing several other reasons for sustaining the plea, he stated that there was the additional reason that the claim was not filed within the period referred to in the bank liquidation act. Act No. 300 of 1910.

The pertinent part of Section 4 of Act No. 300 of 1910 reads as follows: “As soon as practicable after taking such possession of a corporation the State Examiner of State Banks now state bank commissioner shall cause to be published a notice to appear at least once per week for three months in such newspaper as he may select. This notice shall call upon all persons, other than depositors, mho may have claims against the corporation to file the same with the State Examiner of State Banks and make legal proof as t-o the justice thereof, at a place and within a time not earlier than the last day of publication of such notice to be specified therein. If the said Examiner shall doubt the justice or validity of any such claim so. filed, he may reject the same and serve notice of such rejection upon the claimant either by mail or personally. * * * ” (All italics ours.)

The same section of the act further provides that an action on any claim so filed which has been rejected may be brought only within six months after the date of the service of notice of rejection.

The stipulation filed herein shows that on April 20, 1934, the Commercial Bank of Lafayette & Trust Company was placed in liquidation, and, pursuant to the provisions of Section 4 of Act No. 300 of 1910, a notice was published in a newspaper of Lafayette Louisiana, in the manner and during the time provided by the statute, to the creditors, other than depositors, who might have claims against the bank to file them on or before August IS, 1934.

Plaintiff-appellant, the Bank of Lafayette & Trust Company, did not file any claim, and the first notice to the Commercial Bank of Lafayette & Trust Company of the claim of the plaintiff bank, now urged in the present suit, was given when the Bank of Lafayette & Trust Company asserted this claim on January 29, 1944, by a rule filed in the liquidation proceedings of the Commercial Bank of Lafayette & Trust Company, which was subsequently dismissed as of nonsuit.

Section 4 of Act No. 300 of 1910 has been interpreted in the case of In re Interstate Trust and Banking Co., 188 La. 211, 176 So. 1, 6, wherein numerous claimants filed oppositions to a provisional account filed by the liquidators, opposing the distribution to each depositor of 10 per cent of his deposit, and demanded to be paid by preference, either because of alleged rank of their respective claims or-because of alleged privileges upon the assets of the defunct bank. The liquidators filed a plea in bar, founded on the proposition that the opponents to the account had failed to comply with the provisions of Section 4 of Act No. 300 of 1910, in that they had failed to file their claims within the prescribed limit of time after the publication of notice for the filing of such claims by creditors other than depositors.

On appeal this court concluded that the plea filed by the liquidators was well founded and should prevail, and accordingly dismissed the claim of the opponents who had failed to file and make legal proof of their claims pursuant to Section 4 of Act No. 300 of 1910, these claims being barred by statutory limitation.

In the cited case this court analyzed and discussed Act No. 300 of 1910 and pointed out that the act covers all claims against a hanking corporation in liquidation> not only claims for depositors but other claims as well. In the course of our opinion we said: “It is clear that the general purpose of Act No. 300 of 1910 is to provide a method for the prompt, economical, and equitable liquidation of banks and banking institutions. It is also clear that the provisions of section 4 of the statute constitute an important part of the comprehensive plan provided for such liquidation. And it is not difficult to conceive that the entire plan would be seriously impaired, if not destroyed, if persons other than depositors should be permitted to file' their claims at any time their convenience or caprice might dictate.”

In our further discussion of the act in that case we said: “If it mas the intention of the Legislature, and me think it mas, that all claimants other than depositors should he required to file and prove their claims within a fixed period of time, then it inevitably follows that failure to comply with the requirement bars such claimants from subsequently asserting their claims. If this were not so, the publishing of the notice and the calling upon claim-amts for the presentation and proof of their claims are but idle ceremonies amd are of no legal or practical effect whatever."

In sustaining the plea in bar in the cited case, we pointed out that no unfairness would result to the opponents for the reason that they all received notice by publication to file their claims, and the three months’ period allowed by the act for filing claims and the six months’ period allowed for instituting suit afforded them ample time and opportunity to assert judicially their rights if they so desired.

In Mullins et al. v. De Soto Bank & Trust Co. et al., 149 F.2d 864, 866, the United States Circuit Court of Appeals for the Fifth Circuit, in affirming a judgment of the District Court, 56 F.Supp. 907, dismissing certain claims filed against the bank in liquidation on the express ground that the claims were barred on account of the failure of the claimants - to file them with the bank liquidators within the statutory period as prescribed by Section 4 of Act No. 300 of 1910, said: “* * * the invoked act contains no exception of, no qualifications as to, kinds of claims, or by whom pressed or presented. * * *”

The claimants in that case contended that the statutory bar was not applicable for the reason that, under the facts stated therein, they did not and could not know of the existence of their claims until long after the time fixed by the notice, published by the liquidators, for filing of claims, but the court, after reviewing the act and holding that it was applicable, stated that it was immaterial whether the claimants knew of their claims.

This brings us to the question of whether, in the instant case, the claim of the plaintiff bank' is such a claim as must be filed pursuant to Section 4 of Act No. 300 of 1910. We think that it is, and that the judgment of the district- court dismissing plaintiff’s suit is correct; for, notwithstanding the fact that the plaintiff bank had previously taken the position that the contract of March 27, 1931, had been breached, and that there was no liability thereunder on its guaranty, -it did not file any claim within the time fixed by the notice to all creditors to do so, nor, so far as the record discloses, did the defendant bank have any knowledge of any claim against it by plaintiff until January 29, 1944, approximately 10 years after the defendant bank had been placed in liquidation.

In the case here under consideration, the first and primary object of plaintiff is to obtain an accounting, and, if it is entitled to such an accounting, it was entitled to the accounting when it took the position that the defendant had breached the contract, and could have made such a claim to the bank commissioner when the defendant bank was placed in liquidation. Section 4 of the act here under consideration makes no exception as to the nature or kind of claims, covering and including all persons who may have claims. It makes no exceptions with reference to matured or unma-tured, secured or unsecured, liquidated or unliquidated, conditional and privileged claims, or claims for an accounting.

In 1934, if plaintiff had filed its claim for an accounting with the liquidators of the defendant bank, and if it had been successful in its contention that the contract had been breached by the failure of defendant to liquidate the assets so acquired, we know of no reason why it could not have obtained an accounting and a judgment against the defendant for such breach.

Plaintiff contends that Act No. 300 of 1910 has no application to the instant case for the reason that the plaintiff bank had no claim against the defendant bank until the assets which had been taken over by virtue of the contract of March 27, 1931, were liquidated and reduced to cash, and the result disclosed whether there would be a sufficient amount to pay the debts of the Bank of Lafayette & Trust Company.

In this contention the plaintiff overlooks the fact that its first and primary object in the present suit is to obtain an accounting, and it is perfectly logical that, if the Bank of Lafayette & Trust Company has the right to demand at this late date by virtue of said contract an accounting and any residuum remaining after the liquidation of the assets and payment of the liabilities, it also had the right under the contract to demand an accounting of the disposition and conditions of the assets acquired by the Commercial Bank & Trust Company from the time plaintiff first took the position that the contract had been breached, which was shown to be April 4, 1934, and prior to the time defendant bank was placed in liquidation. It appears to us that what plaintiff really complains of is the result of such an accounting if one had been made in 1934.

Plaintiff further contends that it was only' after the debts were fully paid and a residue left, within the meaning of the contract, that a cause of action could be asserted by the plaintiff bank; or, stated somewhat differently, that under the very terms of the contract there was no responsibility or liability by the defendant bank to plaintiff until a residuum was left after the payment of all debts, and that the first knowledge it had of any such residuum came to it on January 3, 1944, when the commissioner’s published notice of a stockholders’ meeting to be held revealed that there was a residue remaining on hand. It contends that for these reasons any suit which may have been instituted prior to the time the assets were liquidated would have been met with a plea of prematurity under the terms of the contract.

We do not think there is any merit in this contention, for it in no way excuses plaintiff’s failure to file its claim pursuant to the statute with the defendant bank in liquidation, as plaintiff in making this contention clearly overlooks the fact that in 1934 it contended, as it does now, that the contract had been breached. If this were so, plaintiff had at that time a cause of action for such breach.

For the reasons assigned, the judgment is affirmed at plaintiff-appellant’s costs.

O’NIELL, C. J., absent.


text:
    213 La. 147
    CONTINENTAL INS. CO. v. MARTIN, Secretary of State and Insurance Com’r, et al.
    No. 38753.
    Supreme Court of Louisiana.
    Feb. 16, 1948.
    George B. Matthews, of Baton Rouge, Lemle, Moreno & Lemle, of New Orleans, for plaintiff and appellant. .
    Fred S. LeBlanc, Atty. Gen., and W. C. Perrault, 1st Asst. Atty. Gen., for Wade O. Martin, Jr., Secretary of State and Insurance Commissioner, defendant and ap-pellee.
    H. M. Oster, of Dallas, Tex., and Kemble K. Kennedy, of Baton Rouge, for Continental Fire & Casualty Ins. Corp., inter-vener and appellee.
   HAMITER, Justice.

The Continental Insurance Company, a corporation organized under the laws of the State of. New York and qualified to do business in the State of Louisiana (hereinafter referred to as the New York company), instituted this injunction proceeding against Wade O. Martin, Jr., Secretary of State and Insurance Commissioner of Louisiana, to enjoin and prohibit him from issuing a certificate of authority to engage in business in Louisiana to the Continental Fire and Casualty Insurance Corporation, a corporation organized under the laws of the State of Texas (hereinafter referred to as the Texas company). Plaintiff alleges that such official has made known his intention to grant the certificate to the Texas company, and that he will issue it unless restrained by process of a court of competent jurisdiction.

The New York company was organized in 1852 and is licensed to do.business in every state of the United States. The Texas company was organized in 1944 and is qualified to operate in Texas, Arizona, Arkansas and Oklahoma. Both write fire and casualty insurance.

The basis of this proceeding is Act 116 of 1946, the pertinent provision of which reads as follows:

“ * * * That the corporate name of any insurance company organized under the laws of this State or any foreign insurance company desiring to qualify to do business in this State shall not be the same as, nor deceptively similar to, the name of any other domestic insurance corporation or of any foreign insurance corporation authorized to do business in this State, * * *>>

On the filing of the petition plaintiff secured a temporary restraining order and also a rule directed to the defendant to show cause why a preliminary writ of injunction should not issue.

Thereafter, the Texas company joined in the proceeding by way of intervention, resisting the demands of plaintiff.

When the rule to show cause came on to be heard defendant filed exceptions of no right and no cause of action and an answer; and it was then agreed by counsel that the case be assigned for a trial of the exceptions and of the merits on July 1, 1947, the temporary restraining ordei meanwhile to remain in full force and effect. On that date, after agreeing that defendant’s answer to the rule be considered as an answer to the merits, counsel commenced the trial.

At the trial’s conclusion, the court decreed that the exceptions of no right and no cause of action be overruled and, further, that there be judgment in favor of the defendant and the intervenor dissolving the temporary restraining order theretofore issued, recalling and setting aside the rule nisi for a preliminary writ of injunction and dismissing plaintiff’s suit at its costs.

Immediately after the signing of the judgment, plaintiff’s counsel obtained an order for an appeal, devolutive in character for there was nothing to suspend, and in due course perfected it. At the same time they gave notice of their intention to apply to this court for writs of prohibition, mandamus and certiorari.

On the showing made in plaintiff’s application (the transcript of evidence was not a part thereof), we refused to grant the remedial writs, assigning as our reason for the refusal': “There appears no abuse of the trial judge’s discretion in refusing to grant the preliminary writ of injunction.”

The case now, presented on the entire record as made up in the trial court, is before us for consideration on plaintiff’s de-volutive appeal.

At the commencement of their argument here, appellee’s counsel suggest that we should not entertain the appeal, they stating, to quote from their brief, that:

“It is the position of appellees that the question in this case has actually become moot in view of the fact that the remedial writs were denied to appellant and the Continental Fire & Casualty Insurance Corporation has been granted a Certificate of Authority to do business and is doing business in the State of Louisiana. Technically, the question might not be moot, but for all practical purposes it is moot, indeed. Since this Court held that trial judge did not abuse his discretion in refusing to grant a writ of preliminary injunction and the entire relief sought, as the prayer of the petition will show, was injunctive in character,- it appears that there is nothing for this Court to adjudicate.”

There is nothing in the record supporting the statement that the certificate of authority has been issued. But, conceding it to be correct, the suggestion that the question involved in this proceeding “is now moot for all practical purposes, although technically it might not be moot” need not he considered in view of the conclusion we have reached on the merits of the case as presented by the appeal.

Appellant does not contend here that it has an exclusive right to the use of the name “Continental.” It concedes that the word “Continental” is a geographical adjective that cannot he exclusively appropriated as a trade name. Neither has it sought to show, and it does not now suggest, that the Texas company is guilty of an unfair competition against which the New York company’s name, possessing secondary signification by reason of the long use thereof, should be protected. Rather, for the success of this action, appellant relies entirely on Act 116 of 1946 which forbids the issuance of a certificate of authority to any insurance company having a corporate name the same as or deceptively similar to the name of any other insurance company presently authorized to do business in this state.

While admitting that the corporate name of the Texas company (Continental Fire and Casualty Insurance Corporation) is not the same as that of the New York company (Cbntineiital Insurance Company), and further admitting that by a reading of those names side by side they are clearly distinguishable, counsel for appellant maintains that there exists a deceptive similarity between the two such as the Legislature intended to prevent through the enactment of Act 116 of 1946. In this connection they argue, to quote from their brief, that:

“If it were the practice of the average member of the general public, before taking out a policy of insurance, to hold side by side the corporate names of the plaintiff and the Intervenor, there could be no possibility of deception, if such person could read. If there were no possibility of deception, if that were the general practice, then there would have been no need for legislation such as is embodied in Act 116 of 1946. What the legislature intended to prevent was the possibility of practicing deception upon the ayerage member of the public exercising the usual degree of care, which is a smaller degree of care than would be involved in holding the corporate names in juxtaposition. What the legislature intended to prevent was the entrance into Louisiana oí a company with a name so similar to the name of another company already here that the general use or designation of the applying company could be used as a means of deception of the average person. The statute envisioned usual and not theoretical conduct. * * *”

It is to be noted that no provision is made in Act 116 of 1946 for the actual issuing by the Secretary of State of certificates of authority. That statute merely prescribes one of the conditions, among the many found in our law, that must be met and satisfied before an insurance company can qualify to do business in this state. The matter of the issuance of a certificate of authority is provided for by Act 105 (Section 2, Article II) of 1898, wherein the following is said:

“* * * ,N° Insurance company organized under the laws of any other State in the United States, or of any foreign government, shall be admitted and authorized to do business in this State-until:
‡ * ‡ * ‡ :je
“It shall obtain from the Secretary of State a certificate that it has complied with the laws of this State and is authorized to make contracts of insurance.”

By this provision seemingly the Secretary of State is granted some discretion in determining whether or not the insurance company applying for authorization to do business has complied with the laws of this state, including Act 116 of 1946. To say the least it clearly confers upon him the power to act in the first instance. From which it follows that in the present case this court should not and must not interfere with that official in the carrying out of his announced intention of issuing the certificate of authority to the Texas company unless the record discloses an abuse of the power granted him.

From the record it appears that when the Texas company filed application for the certificate of authority, the New York company objected in writing on the' ground that the corporate name of the former was deceptively similar to that of the latter. Thereupon the Secretary of State, who is also the Insurance Commissioner of Louisiana, ordered a hearing on the question raised by the objection. At the hearing, held in due course, both companies (represented by counsel) presented evidence and oral arguments. Thereafter, and following the filing of briefs by the respective parties,, the Secretary of State concluded that a certificate of authority should be issued to the Texas company.

There was evidence offered at such hearing, as well as at the trial of this case in the district court, showing that some confusion has arisen in the mail of the two companies by reason of the similarity of their corporate names. It was also shown, however, that confusion of that kind often occurs in the field of insurance where the names of companies are entirely dissimilar. But an eliminating of mere confusion in the mail obviously was not contemplated by the Legislature in the enactment of Act 116 of 1946. It intended, unquestionably, to provide protection against deception arising out of the use of similar names. And this protection, we think, is primarily for the benefit of the public generally.

Of course competing corporations are also protected in some measure by the statute, although their protection principally is afforded by the laws- relating to unfair competition. But no proof has been made of actual injury to this plaintiff as a result of the Texas company’s use of its corporate name, notwithstanding that both have been and are conducting competing businesses in the States of Texas, Arizona and Arkansas. Nor is it shown by the record that the Texas company has been guilty of unfair competition, or that it selected its name with the view of infringing upon the business and good will of the New York company.

That the general public will be deceived' by the similarity of the corporate names, of the two companies involved herein does not appear likely. It is well known, and the record supports the statement, that in obtaining fire and casualty insurance the average individual is not concerned at all about the name' of the company that will issue the policy. Ordinarily he deals with a reputable agency or broker, in whom he has faith and confidence, and' relies on the latter’s judgment in the choosing of the insurer. And there is slight possibility that an experienced insurance agent will be misled by a similarity of names. Of course, a few individuals and industrial concerns insist on selecting their insurers; but they, in most instances, are thoroughly familiar with insurance matters and records and can easily distinguish between companies enjoying similar names.

From the evidence before us, we conclude, as did the trial judge, that the Secretary of State did not abuse the power vested in him by law when he decided that a certificate of authority to do business in this state should be issued to the Continental Fire and Casualty Insurance Corporation.

The judgment is affirmed.

O’NIELL, C. J., absent.