author: McCALEB, Justice.

text:
    198 La. 702
    CITY OF SHREVEPORT v. CASE.
    No. 36297.
    Supreme Court of Louisiana.
    Nov. 3, 1941.
    John S. Webb, Asst. City Atty., of Shreveport, for plaintiff-appellant.
    J. F. Phillips, of Shreveport, for defendant-appellee.
   McCALEB, Justice.

The defendant, Joe Case, was prosecuted in the City Court of Shreveport for operating a motor boat on Cross Lake without a muffler in violation of City Ordinance No. 30 of 1939, the pertinent part of which provides that: “No motor boat shall be permitted upon the waters of Cross Lake unless and until the same is equipped with a muffler in good working order, and if the same be equipped with a cut-out, the same shall be kept closed.”

He moved to quash the charge made against him on the ground that the city ordinance is unconstitutional, null and void for eight separate and distinct reasons. His motion was sustained by the City Judge and the City of Shreveport has appealed from the adverse decision.

Cross Lake is a large body of water located just beyond the city limits of Shreveport. It is approximately ten miles long and varies in width from two to three miles. The title to the bed of this lake was acquired by the City of Shreveport from the State of Louisiana by authority of Act 31 of 1910. By that Act, the State, as owner of the bottom of the lake, authorized the Register of the Land Office to convey its bed to the City of Shreveport so that its water might be available to the city for the purpose of enabling it to provide a water supply of good, pure and wholesome water for its citizens. It further provided that title to the bottom of the lake would remain in the city as long as it utilized the lake for its water supply but, in the event it should cease such use, title would then revert to the State. In addition to this grant, the Legislature, by that statute, also delegated certain power to the city with respect to its control of Cross Lake for the protection and conservation of its water supply and it was provided in Section 4 that the city is given authority to make such rules and regulations for the government of the lake as its City Council might from tirne^ to time determine. Later, by Act 39 of 1926, the powers delegated by the Legislature to the city in Act 31 of 1910 were extended to cover not only the lake itself but the lands surrounding the lake for a distance of 5000 feet from the meander contour line.

In pursuance of the authority vested in it by Acts 31 of 1910 and 39 of 1926, the City of Shreveport, by Ordinance No. 8 of 1935, undertook to prescribe regulatory measures with respect to the use of Cross Lake by the public and in Section 16 thereof the use of the lake by motor boats and other water craft was restricted to certain hours and otherwise conditioned. And, by Ordinance No. 30 of 1939, Section 16 of Ordinance No. 8 of 1935 was supplemented and amended so as to provide that motor boats operating on the waters of the lake should be equipped with a muffler.

The main ground advanced by the defendant in his attack upon the validity of the amended ordinance is that the Legislature, in delegating certain powers to the City of Shreveport over Cross Lake-, has limited the authority of the city to enact such ordinances and regulations which might be necessary for the protection of its water supply from pollution and contamination and that, since the operation of a motor boat upon the lake, either with or without a muffler, admittedly does not contaminate or pollute the water of the lake or affect the city’s water supply, the city, by prohibiting such operations, is attempting to assume power which does not reside in it.

On the other hand, the City Attorney, while conceding that the operation of a motor boat without a muffler does not in any manner tend to contaminate, pollute or otherwise affect the waters of Cross Lake, maintains that the Legislature has, by Acts 31 of 1910 and 39 of 1926, delegated to the City of Shreveport full and plenary power over the waters of the lake and the land adjacent thereto and that, therefore, it is vested with complete authority to enact such police regulations as it may deem necessary for the health, convenience and comfort of the public generally in its use of the lake.

Section 4 of Act 31 of 1910 provides: “That the City of Shreveport in the protection and conservation of its water supply is hereby granted full and plenary power over the said lake and may make such rules and regulations for the government thereof as its City Council may from time to time determine * *

The defendant claims that the above-quoted provision plainly evinces the legislative intention to delegate to the city the restricted power of regulating the use of Cross Lake “in the protection and conservation of its water supply”. Contra, the City Attorney argues that the delegation by the Legislature of police power over Cross Lake to the city is unlimited and he points with confidence to that part of Section 4 of the statute which declares that the city “is hereby granted full and plenary power over the said lake”.

Conceding, for the sake of discussion, that there may be some doubt with respect to the power actually delegated to the City of Shreveport by the Legislature in Section 4 of Act 31 of 1910, we think that a consideration of the Act as a whole clearly indicates that it did not intend to give the city unlimited police power over the lake. The first three sections of the Act make plain the design of the Legislature to permit the city to use the lake solely for the purpose of supplying its citizens with water. And in Section 4 this legislative intention is again manifested by the delegation to the city of full and plenary power to pass such necessary rules and regulations for the government of the lake “in the protection and conservation of its water supply”. This conclusion is fortified by the later statute (Act 39 of 1926) wherein the Legislature extended the jurisdiction of the city to the lands adjacent to and abutting Cross Lake. That Act, which is a law upon the same subject matter and must be read in connection with Act 31 of 1910, declares: “That the City of Shreveport is hereby granted full power and authority to adopt and enforce all needful police and sanitary ordinances and regulations for the protection of the bed and waters of Cross Lake purchased from the State of Louisiana for a water supply and now in use as such from pollution and contamination from any source and is likewise granted similar power and control over the area surrounding said lake for a distance of five thousand feet * * * so as to prevent its pollution, contamination or destruction by salt water, refuse, filth, or from any other cause that would in any manner whatsoever endanger or render harmful or unsanitary the use of the waters of the Lake by the citizens of the City of Shreveport. * * * ” (Italics ours.)

The foregoing makes clear, if any doubt existed, the limited scope of power delegated by the Legislature to the city — that is, the power to pass such ordinances which have for their underlying purpose the prevention of pollution and contamination of the waters of Cross Lake. The language used in the Acts cannot and should not be construed or interpreted to mean that the City of Shreveport has been delegated the police power over Cross Lake which it now enjoys with respect to property and persons situated within the confines of its corporate limits.

It is well established that, as a general rule, the police power of a municipal corporation can be exercised only within its own area and cannot be exerted elsewhere even though it may have acquired property outside of its geographical limits. Of course, the Legislature may, as in this case, grant the municipality the right to exercise police power outside of its corporate limits. But statutes authorizing such municipal power are to be strictly construed. See McQuillin Municipal Corporations, 2d Ed., Vol. 3, Section 952; 19 Ruling Case Law, Section 75, and 43 Corpus Juris, Section 233, and cases there cited.

The City Attorney, in stressing his contention that the city has been delegated the power to enact the ordinance in question, relies heavily upon the decision in City of Shreveport v. Wilkinson, 182 La. 783, 162 So. 621, where this court held that Section 16 of City Ordinance No. 8 of 1935 was constitutional. In that case, Mr. Scott Wilkinson, a prominent attorney of Shreveport, was prosecuted for operating a boat on the waters of Cross Lake in the nighttime in violation of the City Ordinance. He attacked the constitutionality of the ordinance and his plea was maintained by the City Judge. On appeal to this court, the city contended that the ordinance was valid for the reason that the regulation was passed for the purpose of enabling it to protect the water of Cross Lake from pollution and that, if motor boats were permitted to operate on the lake at night, it would be difficult for it to properly police their movements and prevent any one on the boats from throwing refuse or other materials into the water and thereby contaminate it. The - contention of the city was upheld in this court and we found that Section 16 of the ordinance was not in itself unconstitutional.

We think that the decision in the Wilkinson case is readily distinguishable from the case at bar on the ground that, there, the acts prohibited by the ordinance constituted a reasonable exercise by the City Council of the restricted power delegated to the city by the Legislature to pass all needful ordinances for the protection of Cross Lake from contamination and pollution, whereas, here, the act sought to be prohibited is conceded by the city to have no relation whatever to the contamination or pollution of its water supply.

The City Attorney further makes the alternative argument that, in the event we are of the opinion that the power delegated by the Legislature to the City of Shreveport over Cross Lake is limited to the enactment of such measures having for their purpose the prevention of the contamination and pollution of its water supply, then the ordinance should be upheld for another reason- — “that is, where a legislative body may withhold the grant of a right, it may impose terms when conferring it.” The proposition advanced seems to be that the city, in the protection of its water supply, had the right to prohibit the operation of all craft upon the waters of the lake but that, since it has not seen fit to do so, it can nevertheless regulate the operation of water craft by providing that motor boats shall be equipped with mufflers notwithstanding that the use or nonuse of mufflers does not contaminate, pollute or otherwise affect its water supply.

We find no substance whatever in this argument. The rule of law, upon which the City Attorney depends, applies to general police power vested in legislative bodies and has no reference to the restricted extraterritorial power possessed by the city over Cross Lake which has been delegated to it by the Legislature. Assuming that the City of Shreveport, in the exercise of its power to prevent the pollution of Cross Lake, would have had the right to prohibit the operation of all water craft on the lake, it does not follow that it has the right to so regulate the use of water craft on the lake for purposes admittedly extraneous to, and disconnected with, the restricted power delegated to it by the Legislature.

A reading of the authorities cited by the City Attorney ip support of this point amply demonstrates that the doctrine relied upon is inapposite. In fact, in the decision in Town of Keene v. Town of Roxbury, 81 N. H. 332, 126 A. 7, 9, the court specifically recognizes the principle that the delegation of power to a municipality by the Legislature to exercise extraterritorial jurisdiction should be strictly construed and that the Legislature has the right to limit the power delegated with such restrictions as it sees fit to impose. There the court said: “Holding real estate in another town for waterworks purposes is not a matter of municipal right. It may be granted or withheld as the Legislature sees fit. * * * Such use- of property is a public one. Its enjoyment is a kind of franchise, and it is familiar law that a grant of such power may be upon such terms and conditions as the. granting authority sees fit to impose.”

In the instant case, the Legislature did not delegate to the City o,f Shreveport general police power over Cross Lake. On the contrary, it has limited and restricted (as it had the right to do) the authority of the city to enact such needful regulations and ordinances designed for the special purpose of protecting the source of its water supply from pollution and contamination. The attempt by the City Council, in the enactment of the ordinance under attack, to exercise general police power over the lake was therefore ultra vires. The ordinance is not unconstitutional but it is illegal and unenforcible. The City Judge was therefore c'orrect in sustaining the defendant’s motion to quash.

For the reasons assigned, the judgment appealed from is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    198 La. 713
    PAINTEN v. PILIE.
    No. 36340.
    Supreme Court of Louisiana.
    Nov. 3, 1941.

      Prowell & McBride, of New Orleans, for appellants.
    Gauche, Zengel & Wegener, of New Orleans, for appellee.
   McCALEB, Justice.

The plaintiffs, Mr. and Mrs. William R. Painten, prosecuted this appeal from an order rendered by the District Court approving and homologating the procés verbal and report of Mr. E. L. Eustis, Civil Engineer and Surveyor, who was appointed by the court to make a survey and fix the boundary lines of certain contiguous real property of which the plaintiffs and the defendant are adjoining proprietors.

The defendant, Marion V. Pilie, has moved to dismiss the appeal on the ground that the order of homologation is an interlocutory order from which an appeal may not be taken.

The facts pertinent to our consideration of the motion to dismiss are as follows: The plaintiffs and the defendant are the owners of two separate parcels of land situated in the City of New Orleans which adjoin each other. Claiming that the defendant had erected certain fence posts as a boundary line, which encroached upon their land, the plaintiffs brought suit in the District Court to have the boundary between the contiguous properties judicially established. Acting in conformity with Article 841 of the Civil Code, the judge appointed a qualified surveyor, who made a survey of the property and reported his findings to the court. After his procés verbal and report had been filed, the defendant moved and obtained an order for the plaintiffs to show cause why the report should not be homologated and approved. Upon the hearing of this rule, the court made it absolute. The plaintiffs thereafter appealed from the order of homologation.

In resisting the motion to dismiss, the plaintiffs, while conceding' that the order appealed from is an interlocutory one, assert that it has caused them irreparable injury because it is. tantamount to a decision on the merits of the case. In support of their position, they direct our attention to the provisions of Article 566 of the Code of Practice, which permits an appeal from an interlocutory judgment where such judgment has the effect of causing irreparable injury to the appellant.

The contention of the plaintiffs is not tenable. An order homologating the report of a surveyor in an action of boundary does not have the effect of establishing the correct boundary of the contiguous estates and cannot be regarded as a disposal of the case on its merits. Article 841 of the Civil Code, which charges the court with the duty of appointing a surveyor in actions of boundary, provides:

“It is the duty of the judge who has cognizance of suits on the subjects of limits, to appoint surveyors to inspect the premises in question, and the court, on their report, ought to decide according to the title of the parties, and the plans which shall be presented to the court.”

It is to be noted that the Codal article does not permit the court to decide the issue of boundary merely upon the report of the surveyor but that it is the judge’s duty to examine the report in connection with the title of the parties and any other admissible evidence which might be produced upon the trial of the merits of the case. Hence, an order of homologation of a surveyor’s report does not irrevocably bind the judge to sustain the report when the case is finally submitted to him for decision. In Griffing et al. v. King, 12 La.App. 376, 125 So. 497, 498, the Court of Appeal of the Second Circuit was called upon to determine whether an order homol-ogating the report of a surveyor had the effect of disposing of the issue presented by the merits in a boundary suit. In answering the question in the negative, the court said:

“The procedure in such actions is the same as in other actions involving questions of fact as well as of law, and there is not any provision which authorizes the boundaries between estates to he established by summary proceedings or by rule.
“It is usually necessary that a surveyor be appointed to survey the property (article 841, Civ.Code), and, as he is required to make a procés verbal of the survey, which is required to be drafted with some formality and should show in its face that the surveyor has complied with the requirements (articles 833-835, Civ.Code), there could not be any reason why the procés verbal of the survey should not be homologated on a motion or rule to show cause, and, if the parties agree to submit the cause on the merits at that time, there could not be any objection to the line as surveyed being declared to be the boundary line, if the survey is shown to be correct, and no other evidence is offered.
“However, on a motion to homologate the procés verbal of the survey, the correctness of the survey is not at issue, and, even though the survey is correct, it is not conclusive of the question of boundary, * * .*»

We think that the foregoing quotation is a correct statement of the law. In truth, while it has been considered as an accepted practice among the members of the bar to move for, and obtain orders of, homologation of‘ surveyors’ reports in boundary suits, our attention has not been directed to; and we have been unable to find, any article of the Code of Practice or the Civil Code which requires that this procedure be taken. Nor do we see that any substantial advantage may be gained in an action of boundary (save possibly the approval of the survey as to form) by having the court summarily approve the surveyor’s report in advance of a trial on the merits forasmuch as. the court is obliged, finally, to determine the correctness of the survey in connection with the other evidence produced at the trial.

In stressing their argument that the homologation order is a serious judgment which works irreparable injury, counsel for plaintiffs cite Articles 456, 457, 458, 459, 460 and 461 of the Code of Practice and the cases of Betterton v. Adams, 13 La. Ann. 334; Thompson v. Parrent, 12 La. Ann. 183; McNair v. Gourrier, 40 La.Ann. 353, 4 So. 310; McCarty v. Zacharie, 11 La.Ann. 474; and State ex rel. McLellan v. Judge, Man.Unrep.Cas. 101. The articles of the Code of Practice relied upon prescribe the procedure to be followed in homologating the reports of judicial arbitrators, auditors of accounts and other experts who are appointed with the consent of the litigants and are inapplicable to surveyors in boundary suits who are designated by the court under the authority of Article 841 of the Civil Code. The cited cases are likewise inapposite because the questions presented in all of them had reference to the homologation of the reports of auditors or other experts appointed under the provisions of Articles 444, 445 and 446 of the Code of Practice.

Being of the opinion that the interlocutory order of the District Court does not cause irreparable injury to the plaintiffs, the motion of the defendant-appellee is maintained and the appeal is dismissed.


text:
    198 La. 720
    BRANCH v. SPRINGFIELD FIRE & MARINE INS. CO. OF SPRINGFIELD, MASS.
    No. 34232.
    Supreme Court of Louisiana.
    Nov. 3, 1941.

      Theus, Grisham, Davis & Leigh, of Monroe, and St. Clair Adams & Son, of New Orleans, for appellant.
    Harry Fuller, of Winnfield, for appellee.
   McCALEB, Justice.

. This is a suit on a tornado insurance policy in which the insured seeks recovery for the loss he has suffered as a consequence of a windstorm which damaged his property. The facts, which gave rise to the litigation, are as follows: The plaintiff, Mack L. Branch, is the owner of a certain two-story brick building situated in Winnfield, Louisiana. On March 4, 1935, this building sustained substantial damage as the result of a windstorm or tornado. The property was insured against loss or damage by windstorm under a policy issued to the plaintiff by the defendant company. Timely notice of the loss was given to the defendant and, within a few days, it sent its adjuster to Winn-field to make an investigation. The adjuster, a Mr. Prioleau Ellis, in company with a contractor named Jones, examined the insured building, estimated the damage and thereafter offered to pay to the plaintiff the sum of $475 in full settlement of the loss. The plaintiff declined the offer.

On April 26, 1935, plaintiff wrote to the home office of the defendant informing it that he had been unable to adjust his claim with Mr. Ellis and requested that he be furnished with blanks for the purpose of making a proof of loss of the storm damage. On April 30th, the proofs of loss were mailed to the plaintiff by the adjuster, Mr. Ellis, and, in the accompanying letter, he informed plaintiff that, since a disagreement existed between the plaintiff and the company respecting the amount of the loss, the company demanded that an appraisal of the damage be made in accordance with the terms of the policy. .He requested that the plaintiff advise the defendant of the name of the appraiser he would select so that the appraisal could be made and the matter settled. On May 4, 1935, the plaintiff informed Mr. Ellis by letter that he was willing to submit his claim to arbitration and that he had selected a Mr. W. O. Averett as the appraiser to represent him. After receiving this letter, the company appointed one L. A. Ellis as its appraiser and subsequently on May 8, 1935, the appraisal agreement was reduced to writing. This agreement provided that the respective appraisers appointed by the parties would select an umpire who would act with them in settling the loss in case they differed in their appraisal. In conformity therewith, a Mr. S. W. Tudor was chosen as umpire.

On June 12, 1935, the appraisers made an examination of the damage to plaintiff’s building and, being unable to agree as to the amount of the loss, called in Mr. Tudor, the umpire, to settle their differences. After viewing the premises, Mr. Tudor estimated that the loss amounted to $675. Mr. L. A: Ellis, the company’s appraiser, concurred in this estimate and he and Mr. Tudor made an award to plaintiff of that sum. Mr. Averett, the appraiser for the plaintiff, declined to sign the award and plaintiff refused to accept it in settlement of his claim. This suit followed.

In the petition he filed in the district court, plaintiff alleged that, as a result of the windstorm, he had suffered a loss amounting to the full sum of $2,942.75, which represented the damage sustained by his building, stock of merchandise, and other damage resulting from rains which occurred after the windstorm but while the building was in a damaged condition.

The defendant company resisted liability to the plaintiff in any sum beyond $675, the amount of the award of the appraisers. Affirmatively pleading that the finding of the appraisers was conclusive of its liability in the premises, it deposited the amount of $675 in the registry of the court and prayed to be hence dismissed with costs.

Soon after the filing of the defendant’s answer and its deposit of the amount of the award in the registry of the court, the plaintiff appeared and set forth that the award was void and unenforcible for the following reasons: (1) that it was not signed by all of the appraisers; (2) that it was for damages caused by fire and not for loss and damage caused by windstorm; (3) that the sound value of the property was not fixed or determined by the appraisers as required by the policy and by the agreement to submit the matter to appraisal; (4) that the appraiser selected by the defendant was not disinterested; (5) that the umpire was suggested by the defendant’s appraiser and that he likewise was not a disinterested party; (6) that plaintiff was not accorded the right to be present at the time the appraisement was made; and (7) that the appraisers and the umpire estimated only part of the damage caused by the windstorm, failing to take into consideration the damage to the front of his building and damage to the permanent fixtures and other items of property covered by the policy.

Thereafter, the case came up for trial on the foregoing issues, ' and the judge, after hearing the evidence, set aside the award of the appraisers and granted judgment in plaintiff’s favor for the following amounts: $1,434.40 for damages to the insured building; $100 for damages to the permanent fixtures, furniture, floors, interior walls, wiring, painting and plastering and $75 for damages to plaintiff’s stock of goods and merchandise, furniture and fixtures, walls and floors found to have been caused by rains occurring after defendant’s refusal to permit plaintiff to repair the damage to the roof of his building. The defendant company has appealed from the adverse judgment.

The primary question presented for determination on this appeal is whether the award is binding upon the plaintiff. The policy provides:

“In the event of disagreement as to the amount of the loss the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each appointing one, and the two so chosen shall first select a competent and disinterested umpire; the appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and failing to agree, shall submit their differences to the umpire; and the award in writing of asv? two shall determine the amount of the loss; * * * ”

In accordance with this covenant; the plaintiff and the defendant entered into a written agreement, submitting the amount of the loss and damage to appraisers, in which it was stipulated that:

“ * * * the appraisement provided for by this agreement is for the purpose of ascertaining and fixing the sound value of said property and the amount of said loss and damage only, and that neither such ap-praisement nor this agreement to enter into same shall waive or invalidate any right or rights of either party to this agreement under said policy or policies or any provision or condition thereof.”

The plaintiff maintains that the award is not binding upon him for the numerous reasons which we have herein-above set forth. However, we do not find that it is necessary to discuss all of the grounds advanced by him as it is our opinion that, since the appraisers failed and neglected to ascertain the sound value of the plaintiff’s building in their appraisement of the loss, the award is null for that reason alone.

The validity of stipulations in insurance policies (similar in language to the one under consideration) providing for an arbitration in case there is a disagreement as to the amount of the loss has been recognized in this State. See Hart v. Springfield Fire & Marine Ins. Co., 136 La. 114, 66 So. 558; Martin v. Home Ins. Co., 16 La.App. 216, 133 So. 773, and Officer v. American Eagle Fire Ins. Co., 175 La. 581, 143 So. 500. But, in order for the award of the appraisers to be binding, it must clearly appear that they have performed the duties required of them by the policy, which is the law between the contracting parties.

In the instant case, the appraisers did not ascertain or estimate the sound value of the building. The policy and the agreement of submission clearly provide that this shall be done. The ' established jurisprudence of this country is that the failure of the appraisers to fix the sound value, where the policy requires it to be fixed, renders the award unenforcible. In Ætna Ins. Co. v. Murray, 66 F.2d 289, 291, the Circuit Court of Appeals of the United States for the Tenth Circuit said: the submission agreement renders the award invalid. Cooley’s Briefs on Insurance, p. 6198; Ætna Ins. Co. v. Hefferlin [9 Cir.], 260 F. 695; Graff v. [National Liberty] Ins. Co., 107 Kan. 648, 193 P. 356. Where the policy and the agreement of submission requires that sound value be ascertained, the failure of the appraisers to ascertain the sound value invalidates the award. Failure to so find cannot be treated as harmless, for by the policy and submission agreement, the-parties so contracted. Continental Ins. Co. v. Garrett [6 Cir.], 125 F. 589; Cooley’s Briefs on Insurance, p. 6200.” (Italics ours.)

“The failure of appraisers to include in the award all of the property covered by

The necessity for the appraisers to ascertain the sound value of the damaged property under agreements of submission to arbitration identical with the one under consideration has likewise been recognized in Phoenix Ins. Co. v. Everfresh Food Co., 8 Cir., 294 F. 51, McInnes v. Southern Home Ins. Co., 142 S.C. 348, 140 S.E. 696; Mason v. Fire Ass’n of Philadelphia, 23 S.D. 431, 122 N.W. 423; Reliance Ins. Co. v. Bowen, Tex.Civ.App., 54 S.W.2d 597; National Union Fire Ins. Co. v. Ozburn, 51 Ga.App., 299, 180 S.E. 238; and Blaetz v. National Fire Ins. Co., Mo.App., 293 S. W. 504. While there are no authorities in Louisiana on the subject, we are disposed to .follow the jurisprudence of the federal courts and our sister states in cases of,this kind. Policy provisions requiring the insured to submit the amount of his loss to private appraisal, although valid, are somewhat in derogation of his right to have his dispute determined by the courts and should be strictly construed. And, where, as here, the policy makes it mandatory for the appraisers to determine the sound value of the insured property, their failure to do so cannot be regarded as harmless.

Since we hold that the plaintiff is not bound by the award of the appraisers, the sole question left for determination is the extent and the amount of the loss. There is a dispute between the parties with respect to the damage to the front of the building where a displacement of the piers has caused the front wall to bulge outwardly. The defendant admits the presence of this damage but it contends, and the witnesses produced by it have testified, that it was in existence prior to, and was not caused by, the windstorm. The witnesses subscribing to the defendant’s contention on this point are Mr. Edward F. Neild, an architect, Mr. L. A. Ellis, one of the appraisers, and Mr. S. W. Tudor, the umpire. They voiced the opinion that the bulge in the front of the building resulted either from subsidence of the soil, faulty construction or from causes other than the windstorm.

On the other hand, the plaintiff, Mr. J. R. Hall, a resident of Winnfield, Dr. S. C. Fittz, who rents offices on the second floor of the building, and Dr. A. W. Rade-scich, who rents offices in the building next to plaintiff’s property, testified that the front of the building was in good condition and did not bulge until after the occurrence of the windstorm. In addition to this, Mr, W. O. Averett and Mr. John H. Kelsoe, plaintiff’s contractors, stated that, in their opinion, the present condition of the front of the building is attributable to the storm.

The judge of the lower court apparently was of the view that the plaintiff’s evidence on this question clearly preponderated over that of the defendant for, in fixing the damage to the building, he awarded an amount substantially in conformity with the estimates of Averett and Kelsoe, plaintiff’s experts, of the cost to restore it to its prior condition. These estimates include the repair to the front of the property.

With respect to the amount of damages allowed by the trial judge, the defendant asserts that it is highly excessive and, maintains that the evidence shows that the loss did not exceed the sum of $675 which was the amount of the award of the appraisers. It is true that Mr. L. A. Ellis, Mr. Tudor and one R. J. Jones, a general contractor, testifying for the defendant, stated that the damage to the building could be fully repaired for that sum or less but opposed to this we find the evidence of plaintiff’s witnesses Kelsoe, who made an estimate to repair the building for the sum of $1,371.70, and Averett, who estimated the damage to the building to be $1,497.10. The two last named witnesses included in their appraisal the amount necessary to repair the front of the building whereas the defendant’s witnesses did not consider that damage in fixing the loss at $675. They stated, however, that the bulge in the front of the building could be repaired for an additional $150 or $200.

Confronted with the foregoing diversion in the estimates, the district judge concluded that the damage to the building amounted to $1,434.40. This award is substantially in accord with the testimony of Averett and Kelsoe whose evidence evidently impressed the judge. We are unable to discern manifest error in his finding on this question of fact for he saw and heard the witnesses and was in a much better position than we are to determine the weight to be given to the opposing statements of the defendant’s experts.

The defendant finally complains of two other items of damage allowed by the trial court. These are items of $100 for damages to permanent fixtures and furniture, floors, interior walls, wiring and plastering, and $75 for damages to plaintiff’s stock of goods, merchandise, furniture and fixtures, walls and floors resulting from rainfall occurring after defendant’s refusal to permit plaintiff to repair the damage to the roof of his building.

This complaint is well founded. In the first place, the defendant is not liable under the policy for damage to plaintiff’s stock of merchandise or his furniture, whereas, it is responsible for damages to permanent fixtures, floors, interior walls, wiring, painting and plastering. Since the judge does not segregate the damage to fixtures, etc., for which the defendant was liable, from those which are not covered under the policy, we are unable to ascertain how much he allowed for the former. Furthermore, there is no proof in the record to sustain the awards of $100 and $75 for damages to the items mentioned. The plaintiff testified generally with respect to the damage to his merchandise, fixtures, etc., but he was unable to state with any degree of certainty the extent of the damage or how much it would cost to repair it. Under these circumstances, the claim for damage to these items should have been disallowed.

Under Act 229 of 1910, § 2 (Dart’s General Statutes, Section 1977), we are given the power to tax the costs in this court as we deem equitable. The small reduction which must be made in the judgment is not, in our opinion, sufficient cause to warrant the taxing of the costs of this appeal upon the plaintiff.

For the reasons assigned, the judgment appealed from is amended by reducing the'amount thereof to the sum of $1,434.40 and, as thus amended, it is affirmed. Defendant-appellant to pay all costs.


author: FOURNET, Justice.

text:
    198 La. 732
    WOODS MFG. CO. v. SOUTHERN SALES CO., Inc.
    No. 36375.
    Supreme Court of Louisiana.
    Nov. 3, 1941.
    Chandler & Chandler and H. M. Holder, all of Shreveport, for appellant.
    Cook, Cook & Egan and Albert T. Hughes, Jr., all of Shreveport, for appellee.
   FOURNET, Justice.

This case is before us on appellee’s motion to dismiss the appeal taken from the judgment of the lower court dismissing proceedings instituted by his (appellee’s) co-receiver to liquidate the affairs of the Southern Sales Company, Inc., in receivership, to which proceedings the appellee was made a party defendant.

The affairs of the Southern Sales Company, Inc., have been in receivership since February 13, 1932, being administered up until February 10, 1938, by James S. Mc-Conathy, now deceased. From February 15, 1938, they have been administered by William R. Bledsoe (the appellant) and J. S. McConathy, Jr. (the appellee), as co-receivers. On May 31, 1941, Bledsoe applied to the court for an order directing and authorizing the co-receivers to cease the operation of the business as a going concern and proceed with the liquidation of its affairs, praying that a rule be served on his co-receiver (McConathy) to show cause why the relief sought should not be granted, McConathy having refused to join in the application and recommendation. An opposition to the application was filed by ten of the corporation’s creditors. The trial judge ex proprio motu removed the co-receivers and appointed a new receiver in their stead on June 18, 1941, and, subsequently, on June 23, recalled and dismissed the rule taken by Bledsoe against McConathy on May 31, 1941, wherein the liquidation of the business was sought. Bledsoe has appealed from that judgment as a stockholder of the corporation.

The basis of appellee’s motion is that the appeal presents a moot question for “a judgment in favor of the appellant would be ineffective and a vain thing, because neither of the parties to this appeal has any authority or power since his or their removal, to liquidate or otherwise deal with the receivership and the assets of the receivership in the custody of the court.”

There is no merit to this contention. Bledsoe’s primary purpose in taking the rule was to have the affairs of the corporation liquidated; the fact that McConathy was made a party defendant was only incidental to the principal demand. Whether or not Bledsoe and McConathy have been removed as co-receivers, necessitating the administering of the affairs of the corporation by a receiver other than either the appellant or the appellee,'is of no moment,' for Bledsoe has appealed as a stockholder of the corporation and, as such, he has an interest in seeing that its affairs are liquidated. In re Geddes Undertaking & Embalming Company, 188 La. 366, 177 So. 240. This interest gives him a right of appeal. See Article 571 of the Code of Practice and Succession of Burg, 194 La. 985, 195 So. 513.

For the reasons assigned, the motion to dismiss the appeal is denied.

ROGERS, J., dissents, being of the opinion that the appeal presents only a moot question.


author: ODOM, Justice.

text:
    198 La. 735

    HAAS v. CERAMI.
    No. 36318.
    Supreme Court of Louisiana.
    Nov. 3, 1941.
    Thos. E. Furlow, of New Orleans, and Oliver & Digby, of Monroe, for appellant.
    LeDoux R. Provosty, of Alexandria, and Haas & Haas, of Opelousas, for appellee.
   ODOM, Justice.

The appeal in this case was made returnable in this court on June 3. On May 31, counsel for appellant filed in this court a motion for an extension of the time in which to file' the transcript, on the alleged ground that it was impossible for the clerk of the district court to complete the transcript by the return day or within the three clays of grace. The application for the extension was supported by the. affidavit of one of .the attorneys of the appellant. Based upon the prima facie case presented by the attorney for appellant, the return day for filing the transcript was extended to July 3, within which time the transcript was lodged in this court.

On July 1, counsel for appellee filed a motion to vacate the order granting the extension of the time for filing the transcript, and a motion to dismiss the appeal. The motion to vacate, or set aside the order extending the time for filing the transcript, is based on the alleged ground that the allegations set forth in counsel’s application for the extension of the time were untrue, and that the court was misled by appellant’s counsel. The motion to vacate was supported by the affidavit of the clerk of the district court, in which he stated that there was but little evidence taken on the trial of the case, that he could have prepared the transcript of appeal and filed it before the return day originally fixed, and that the reason he did not do so was that counsel for the appellant instructed him to delay the preparation and filing’ of the transcript.

Rule III of this court provides that a motion for extension of time for filing transcripts “shall be supported by affidavit, and shall state, specifically, the cause which prevents the completion of the transcript within the legal delay. Such affidavit shall be made by the clerk of the trial court, the litigant applying for the extension, or his attorney at law or in fact, as the one or the other may be in possession of the requisite information.”

The motion of counsel for appellant, supported by his own affidavit that it was impossible for the clerk of the district court to prepare and file the transcript within the delay originally allowed or within the three days of grace, made out a prima facie case for the extension of the time, which we granted. But counsel, in thus procuring the extension of time, ran the risk of having the order vacated in case it should subsequently appear that the facts alleged in the motion for the extension and in the supporting affidavit were not true: Oertling v. Commonwealth Bonding & Casualty Co., 134 La. 26, 63 So. 611. In the Oertling case the court quoted with approval the following extract from World’s Industrial & Cotton Centennial Exposition v. Crescent City Railroad Co., 38 La.Ann. 905:

“In’the case of the Succession of Kuntz, 33 [La.]Ann. 30, we showed that orders for extension of time in such matters were altogether at the risk of the appellant, who would not be protected by the order, in delaying his transcript, if it should subsequently appear that the motion had not been seasonably made, and that the order had, in consequence, been granted inadvertently. * * * It is true that an appellate tribunal will always and firmly protect the constitutional right of appeal, but on the other hand, the court must not lose sight of the legal rights acquired by an appellee through the omission or neglect of his opponent.”

If an attorney misrepresents or conceals the facts in order .to obtain an extension of time for the filing of a' transcript of appeal, the appellee has the right, - and should be given an opportunity, to show the true facts and have the order of extension rescinded. Counsel for appellee availed himself of this right by filing a motion to vacate, supported by the affidavit of the clerk that, as a matter of fact, he could have prepared and filed the transcript in time and would have done so but for the instructions given him by counsel for appellant. If this affidavit of the clerk, dated June 14, 1941, stood alone in the record, ap-pellee’s motion to vacate the order and dismiss the appeal should prevail.

But from an affidavit subsequently made by the clerk > of the district court, which is attached to appellant’s answer and opposition to the dismissal of the.appeal, it clearly appears’that the clerk’s first affidavit was based upon a misapprehension on his part as to what should, be - included in the transcript. On the trial of the case,. counsel for’ defendant, offered in evidence certain documents, and some testimony, taken out of court. .On objection made .by counsel for plaintiff, appellee, the court refused to permit the filing of these documents and the testimony taken out of court. Counsel for defendant, appellant, excepted to the ruling of the court and reserved a special bill with the request that the excluded documents, etc., be attached to the bill and brought up to this court. It -was so ordered..by the- judge. Subsequently, a controversy arose between counsel for defendant and the clerk as to whether these excluded documents, etc., should be included in the transcript. This controversy is evidenced by certain letters and telegrams included in the record, which show ,'that counsel for ’appellant repeatedly requésted the clerk to include the excluded documents in the transcript, and that the clerk took the position that they were not to be included, and, on the advice, he says, .of counsel for appellee, he refused to include them. In the clerk’s subsequent certificate, duly verified, which is dated October 1, 1941, he states:

“That while affiant and counsel for defendant, appellant, were endeavoring to reach an accord on said difference the return day crept upon them, without necessary copies of said depositions and exhibits having been prepared.
“That affiant did not wish to close and present to counsel for defendant, appellant, the transcript, minus said depositions and exhibits, without an agreement upon their difference having been reached, and it was absolutely necessary that application be made for extension of the return day.
“That it was not affiant’s-intention in his affidavit, of June 14, 1941, heretofore filed in this cause, to imply that counsel for defendant, appellant, had sought unnecessary delay in completion of the transcript or had been otherwise derelict in his duty.”

It clearly appears, .therefore, that the delay in making up and filing the transcript of appeal in this court was due to the misapprehension and controversy explained above. And, there being nothing to indicate that counsel for defendant, appellant, intended to, or did in fact, mislead the court in their application for the extension of time, the motion to vacate the extension order is denied. And, it further appearing that the clerk of the district court has completed the transcript by including therein the documents, etc., desired by appellant and has filed the transcript within the time as extended by this court, the motion to dismiss the appeal is overruled.


text:
    198 La. 742
    STATE v. LASSITER.

      No. 36249.
    Supreme Court of Louisiana.
    Nov. 3, 1941.
    W. T. Drew, of Minden, for relator.
    Eugene Stanley, Atty. Gen., Niels F. Hertz, Sp. Asst. Atty. Gen., and Graydon K. Kitchens, Dist. Atty. pro tern., of Min-den, for respondents.
   ODOM, Justice.

The Police Jury of Webster Parish adopted an ordinance making it unlawful and a misdemeanor to sell or “possess for sale”' intoxicating liquors in those wards of that parish which had been voted dry at a local option election. The ordinance further provides that the possession “of more than one-half gallon of intoxicating liquor, or of any quantity of intoxicating liquor contained in more than two bottles or containers shall constitute prima facie evidence of possession of same for sale and of a violation of this ordinance”.

The City of Minden -is in Ward 4 of Webster Parish, which ward is dry territory. On December 10, 1940, charge was made by the city marshall against the defendant in the city court of Minden, setting out that on November 1, 1940, she did “unlawfully possess intoxicating liquor commonly called whiskey for sale for beverage purposes, contrary to the Police Jury Ordinance of Webster Parish, La.”

Several pleadings were filed in the city court by defendant. These need not be discussed. Defendant was convicted and fined $100 and costs. She appealed to the district court, where the case was tried de novo.

Before going to trial in the district court, defendant through counsel filed a motion to quash the charge on the ground that the Police Jury of Webster Parish had not been vested with authority to enact an ordinance making it unlawful to possess intoxicating liquors for sale, and that, in so far as the ordinance so provided, it was “ultra vires, unconstitutional, null and void”..

This motion to quash was overruled, and properly so. In State v. Emerson, 197 La. 783, 2 So.2d 212, it was held that under the local option law, which is Act 17, First Extra Session of 1935, police juries were authorized to adopt such ordinances to make prohibition “effective”.

The defendant then went to trial in the district court. After hearing the evidence adduced by both sides, the defendant was adjudged guilty by the district judge. The judgment of the city court and the sentence were affirmed.

After defendant was convicted in the district court, she applied to this court for writs of certiorari, mandamus, and prohibition, which we granted because it appeared from the application for the writs that the verdict of guilty rendered against her was not supported by any legal evidence.

This court has repeatedly held that, if there is any evidence at all to support a conviction in a criminal case, the record will not be examined to ascertain whether the evidence adduced was sufficient to support the verdict of guilty. It has repeatedly held also that, while the court will not review the testimony to ascertain whether it is sufficient to support the verdict rendered, “yet it will examine the record for the purpose of ascertaining whether any testimony at all was adduced, and, in cases where it is found that, as a matter of fact, no testimony at all was adduced against a defendant which tended to support the verdict of guilty rendered, a question of law arises which the court may decide”. State v. Singley et al., 195 La. 519, 197 So. 218, 220, and the numerous cases there cited.

In defendant’s application for the writs, her counsel set out in narrative form the substance of all the testimony adduced both on behalf of the State and on behalf of the defendant. Counsel stated under oath that the facts detailed were not disputed. We ordered the case up because it appeared from the application that, if the conviction were permitted to stand, there would be a miscarriage of justice. In obedience to our order, the district judge filed his return in this court. Counsel for the State also filed answers and briefs. From these answers and briefs we find that it is admitted that the statement of the facts narrated in the application for the writs is correct.

The defendant is a married woman, and the facts are that she and her husband operate a small business in the country some four or five miles from the City- of Minden. The bedroom occupied by defendant and her husband is in the building in which their business establishment is conducted. Defendant’s husband left home on October 1 and remained away from home during the entire month of October. On November 1, while defendant’s husband was still absent from home, the city mar-shall of Minden and a deputy sheriff (these officers having previously obtained a search warrant) searched defendant’s premises and found concealed in the wall of the bedroom seven half-pint bottles of whiskey. The city marshall testified that defendant told them that she did not own the whiskey but that it had been left there by her husband. He testified further that she told them that the whiskey was “theirs”, meaning, as the officers and the judge understood, that it belonged to the defendant and her husband. The officer testified also that the defendant said her husband had been previously convicted for possessing intoxicating liquors for sale and that this time she “would take the rap”. The city marshall was the only witness for the State.

The defendant took the stand and testified in her own behalf. No other witness testified for the defense. She said that the whiskey belonged to her husband and that she had nothing to do with it.. The district judge in his return states the facts to be as follows:

“Mrs. Lassiter and her husband operate a business some five miles out of Minden. The store and living quarters are under one roof. The husband had been away working for a month at the time the liquor was found. It was found concealed in the wall of the bedroom. ■ Her husband had been previously convicted of possession of whiskey for sale, and she told the arresting officer she ‘would take the rap’, presumably because the fine would not be so heavy on her for a first offense as would be the case with her husband, who would be a second offender. Anyway, the husband had been away a month and was not present when the liquor was found. She told the officers it was ‘theirs’. * * * There is not any doubt in my mind that she was in possession of it, (whoever owned it), and that she intended to sell it. If there had been any reasonable doubt about it, that doubt -would have been resolved in favor of the defendant and she would have been acquitted.”

During the progress of the trial, counsel for defendant asked the court to deliver to itself the following charge: “That the husband is head and master of the family [sic] and that whiskey found in the home will 'be presumed to be the property of the husband until proven by the State to be the property of the wife.”

The judge refused to so charge" and states the reason for his ruling in the following language: “The defendant in this case is not charged with the ownership of any intoxicating liquor. - She is charged with possessing it for sale. The evidence disclosed that the husband was not at the place when the search was made, but was working away from home, and had not been home for some weeks, and the query was whether or not the defendant was in possession of it for sale, and on accoimt of the quantity on hand, I presume she had it in possession for sale.” (Italics ours.)

It therefore clearly appears that the only evidence the judge had before him to convict the defendant, of the charge of possessing liquor for sale was the fact that the liquor was found in the bedroom occupied by her during the absence of her husband. In other words, the trial judge “presumed”, or drew the inference, that, “on account of the quantity on hand”, she had it in possession for sale. ■

Mrs. Lassiter’s testimony that her husband had deposited the liquor in the wall of the bedroom and left it there is not disputed. That, in fact, seems to be conceded. Mrs. Lassiter continued to occupy the bedroom during her husband’s absence. So far as the record discloses, she had merely let the liquor remain where her husband deposited and left it. There is no testimony, direct or circumstantial, to show, even to indicate, that Mrs. Lassiter had any part in the depositing of the liquor in the place where it was found or that she approved of, or acquiesced in, her husband’s conduct in putting it there. All she did was to let it remain during his absence where he put it.

Now, the only evidence, the only circumstance, upon which the judge relied in this case as proof that Mrs. Lassiter was guilty of possessing this liquor for sale was the established fact that she had let it remain for a month during her husband’s absence where he had put it. 'If it be conceded that the husband was, while at home, engaged in the liquor traffic and that he had obtained and was holding this liquor for the purpose of selling it, and if it be conceded that his wife was aware of her husband’s intentions in this respect, these bare facts afford no reason for holding that the wife intended to carry on the prohibited traffic during his absence from home.

So far as we are informed by the record, there are no facts or circumstances remotely indicating that Mrs. Lassiter intended to sell this liquor, or, to put it in other words, that she possessed it for sale. The verdict of guilty rendered against her was. therefore not supported by any evidence at all.

The judge says that “the query was whether or not the defendant was in possession of it for sale, and on account of the quantity on hand, I presume she had it in possession for sale”.

“Presumption,” says Webster, is-“An inference as to the existence of one fact not certainly known, from the known existence of some other fact”. Article-2284 of the Revised Civil Code says that “Presumptions are consequences which the law or the judge draws from a known fact to a fact unknown”.

The known facts in this case are that seven half-pint bottles of whiskey were found in defendant’s bedroom and that defendant’s husband had put them there. From these known facts alone, the judge “presumed”, or drew the inference, that defendant was in possession of intoxicating liquors for sale. In the absence of any other circumstances indicating that defendant possessed this liquor for sale, we think the judge erred in his conclusion.

We attach no special importance to defendant’s statement that the liquor was “theirs” and that she would “take the rap”. It is likely that she thought that, in as much as her husband had brought the liquor to the place and left it there, it belonged to them both. But from this it cannot be inferred, we think, that she intended to sell it. It is likely also that she thought that, merely because the liquor was found in her bedroom, she would be convicted of having it in possession for sale. Hence her statement that she would “take the rap”.

It is probable, we think, that, in reaching the conclusion which he did, the judge was influenced, to some extent at least, by that provision of the police jury ordinance making the possession of “more than one-half gallon of intoxicating liquor, or of any quantity of intoxicating liquor contained in more than two bottjes or containers” prima facie evidence of possession of such liquor for sale in violation of the ordinance. That ordinance, however, is invalid in so far as it makes the possession of liquor in certain quantities prima facie evidence of an intent to sell, because police juries are not vested with authority to prescribe rules of evidence. Police juries have no powers except those delegated to, or conferred upon, them by the Legislature, and the Legislature has not authorized them to lay down rules of evidence. In State v. Emile, 136 La. 891, 67 So. 947, it was held that police juries had no powers except those delegated to them by the State Legislature, were not vested with any general police powers, and, in the absence of special legislative authority, could not pass ordinances forbidding the keeping of intoxicating liquors for sale in prohibition territory. However, since that decision was rendered, the Legislature has delegated to police juries the power to adopt such ordinances. See State v. Emerson, 197 La. 783, 2 So.2d 212.

In City of Shreveport v. Maroun, 134 La. 490, 64 So. 388, 391, it was held that the city council of Shreveport was without authority to declare the possession of intoxicating liquor to be prima facie evidence of the keeping of a “blind tiger”, because it was found by the court that the Legislature had not attempted to give the city council authority “to define or to make rules of evidence”.

“The general power of the legislature to prescribe rules of evidence and methods of proof is undoubted”. 10 R.C.L., page 863, Section 6. See “Evidence”, 20' Am.Jur., page 38, Section 8. The police juries of this state have no such power. For a comprehensive discussion of the powers of police juries, see State v. Emile, supra; Farmer v. Myles, 106 La. 333, 30 So. 858, and cases there cited.

For the reasons assigned, it is ordered that the preliminary writ of prohibition heretofore granted in this case be and is hereby made peremptory, and further ordered that the judgment convicting and sentencing the defendant be quashed and set aside, and that the defendant be discharged.


author: HIGGINS, Justice.

text:
    198 La. 752
    BURTON et al. v. ALLEN PARISH POLICE JURY.
    No. 36166.
    Supreme Court of Louisiana.
    Nov. 3, 1941.

      Cline, Thompson, Lawes & Cavanaugh, of Lake Charles, for plaintiffs-appellees.
    Eugene Stanley, Atty. Gen., and W. D. Goff, First Asst. Atty. Gen., for defendant-appellant.
   HIGGINS, Justice.

The liquidating trustees of the Calcasieu National Bank in Lake Charles instituted this suit against the Allen Parish Police Jury for the sum of $7,500, with 8% per annum interest thereon from February 15, 1933 until paid and 10% additional, upon the principal and interest, as attorneys’ fees, which alleged obligation represents money loaned and advanced to the defendant by the bank before it went into liquidation and is evidenced by a certain promissory note executed by the defendant in favor of the bank, dated July 15, 1932, and payable February 15, 1933, which note and a certified copy of the resolution passed by the defendant on July 14, 1932, authorizing the making of the loan and the execution of the note, are annexed to and made a part of the petition.

In its answer, the defendant admitted having made the loan from the bank (of which the plaintiffs are trustees), the execution of the note, and that the indebtedness was due by it to the bank at the time it went into liquidation on July 21, 1934, but averred that at that time it had to its credit, on deposit in the Oakdale and Kinder Branches of the said bank, the following sums in checking accounts, to-wit:

Road District No. 5, Maintenance Account . $ 6,872.54
Road District No. 5, Refund Ac- • count . 20,013.61
Road District No. 2, Maintenance Account . 1,336.13
Road District No. 2, Refund Account . 12,260.80
Total deposits ... $40,483.08

The defendant pleaded that the bank in question was governed by the National Banking Laws, that it had, before the insolvency of the bank, demanded that its indebtedness of $7,500 to the bank be offset by an equal amount of its deposits, and that it was now entitled to have the setoff made and, in reconvention, prayed for judgment against the plaintiffs for the balance of $32,983.08, with legal interest from July 21, 1934 until paid, and all costs of the suit.

To the defendant’s plea of compensation and setoff the plaintiffs filed a plea of estop-pel which was based on two grounds: (1) That the defendant, in its answer, asserted that the funds deposited with the bank belonged to Road Districts Nos. 2 and 5, each of which was a separate political entity or body under the laws of this State, and that these were special funds dedicated under the statutory law and the ordinances of the defendant for the special purposes of being used in paying interest and principal on road bonds and in the construction of roads and highways in the districts and, therefore, formed no part of the general fund of the parish and could not be used by it to pay its ordinary general indebtedness, and for these reasons, there was no mutuality of the parties and the obligations; (2) that a plan of reorganization of the bank was submitted to the defendant and was duly approved and accepted by the Police Jury of Allen Parish as the governing authority of Road Districts Nos. 2 and 5 of the Parish, and under this plan the defendant was paid, in cash, 40% of the deposits, and for the balance thereof, accepted certificates of participation from the liquidating bank executed in favor of the two road districts; that the defendant, by duly adopted resolutions as the governing authority of each of the road districts and in consideration of the above cash and the certificates of participation, executed waivers of sale in favor of the new organized bank under the plan of reorganization and having accepted and retained the cash and certificates, is now precluded from claiming the right to plead compensation and setoff against the plaintiffs herein. Annexed to and made a part of the plea of estoppel are the above referred to resolutions of the Police Jury, the certificates of participation, and the acts of waiver of sale in favor of the new bank, executed by the Police Jury of Allen Parish as the governing authority of Road Districts Nos. 2 and 5, under the plan of reorganization.

The case was submitted on an agreed stipulation of facts and thirty-three exhibits, which showed the facts of the case to be as set forth in the pleadings. The district judge maintained the plea of es-toppel filed by the plaintiffs to the defense of setoff and compensation urged by the defendant, rendered judgment in favor of the plaintiffs as prayed for, and rejected the reconventional demand. The defendant has appealed.

We shall first consider the second ground of the plea of estoppel.

There is no doubt that the defendant received certain definite advantages and benefits from the transactions with the plaintiffs and has not, in any manner, returned any of the money or the participating certificates, nor has it, in any way, attempted to restore the status quo of the parties.

In the case of Brock v. Town of Kentwood, 196 La. 318, 323, 199 So. 133, 134, the State Bank Commissioner, as liquidator of a State Bank, instituted suit against the defendant on its promissory note to recover the principal, interest and attorney’s fees. The defendant pleaded certain alleged technical irregularities or illegalities, but made no offer to return the benefits and advantages obtained by the loan. In affirming the judgment of the district court, this Court said: “Plaintiff has invoked the jurisprudence which has developed under Article 1965 of the Revised Civil Code to the effect that no one should be permitted to enrich himself at the expense of another. The party to a contract who has obtained and retained all of the benefits granted to him thereby cannot subsequently successfully urge that the contract is void and by some legal technicality defeat the contractual rights of the party who has performed his part of the agreement. Consequently, a municipal corporation, as any other political subdivision, cannot on the one hand enrich itself by receiving the benefits of a loan and retaining all of the advantages gained thereby and on the other urge that the note or contract is void. Burk v. Livingston Parish School Board, 190 La. 504, 182 So. 656; Turfitt v. Police Jury of Tangipahoa Parish, 191 La. 635, 186 So. 52; Reconstruction Finance Corporation v. Tangipahoa Parish School Board, 192 La. 1059, 190 So. 217; City of Monroe et al. v. Ouachita Parish School Board, 172 La. 861, 135 So. 657; Busch-Everett Company v. Vivian Oil Company, 128 La. 886, 55 So. 564, and Article 1965, Revised Civil Code.” (See also State ex rel. Shell Oil Co., Inc. v. Register of State Land Office, 193 La. 883, 192 So. 519.)

Under the above authorities it is clear that the defendant, in the instant case, cannot retain the benefits and advantages gained under the reorganization plan and in no way offer to return or tender the cash dividend of 40% and the participating certificates, and, at the same time, ask the Court to relieve it of its obligation.

Having reached this conclusion, it is unnecessary to consider the first ground of the estoppel urged by the plaintiffs, and the defendant’s plea of compensation and setoff.

In this Court the defendant has, for the first time, attempted to raise and urge issues not covered by the pleadings. We refuse to consider these new matters, because it would be necessary to remand the case to the lower court for the purpose of taking testimony on these points, which were in no way covered by the defendant’s previous pleadings.

For the reasons assigned, the judgment appealed from is affirmed.


author: ROGERS, Justice.

text:
    198 La. 758
    STATE ex rel. BRINGHURST et al. v. ZONING BOARD OF APPEAL AND ADJUSTMENT et al.
    No. 36294.
    Supreme Court of Louisiana.
    Nov. 3, 1941.
    Louis B. Claverie, of New Orleans, for plaintiffs and appellees.
    Lavinius L. Williams, of New Orleans, for defendants and appellants.
   ROGERS, Justice.

James Cornelius Jones applied to the City Engineer for a permit to convert into a four-family dwelling his two-family dwelling, No. 4319 Hamilton Street, in the City of New Orleans. The property is situated in an “A” residential district as established by Ordinance No. 11,302, Commission Council Series, known as the Comprehensive Zoning Ordinance of the City of New Orleans. The City Engineer disapproved the application for the reason that the construction of the proposed four-family dwelling would be violative of the restrictions placed upon the use of the property by the municipal ordinance. Jones appealed from the ruling of the City Engineer to the Zoning Board of Appeal and Adjustment, created by Ordinance No. 13,649, Commission Council Series, adopted by the municipal authorities pursuant to the provisions of Act 240 of 1926.

At the hearing which was held on the appeal, a number of neighboring property owners appeared and opposed the issuance of the permit sought by Jones. After considering these oppositions, ' the Zoning Board of Appeal and Adjustment adopted a resolution reversing the ruling of the City Engineer and directing him to issue the permit.

Within thirty days after the adoption of the resolution, four of the protesting home owners applied to the Civil District Court for the Parish of Orleans for the issuance of a writ of certiorari to review the decision of the Board. Section 7 of Act 240 of 1926. The application was granted, and after hearing the parties, through counsel, the Civil District Court, holding that the Zoning Board of Appeal and Adjustment was without authority to grant the relief sought by Jones, reversed the decision of the Board, and reinstated the ruling of the City Engineer refusing the permit. The Zoning Board of Appeal and Adjustment has appealed from the judgment of the Civil District Court, and the appellees have moved to dismiss the appeal on the following grounds: First, no appeal exists in a proceeding of this kind as a matter of right; second, if an appeal does exist in such a proceeding as a matter of right, the zoning Board of Appeal and Adjustment has no standing to appeal, because Act 240 of 1926 does not grant the Board a right of appeal; and third, the Zoning Board, as a quasi judicial body, has no such interest in the dispute as would give it a right to appeal from the judgment of the Civil District Court setting aside the Board’s decision.

There is no necessity for discussing the first two grounds of the motion to dismiss, since the third ground is clearly well-founded.

The Zoning Board of Appeal and Adjustment of the City of New Orleans is solely a creature of statute, its creation being authorized by section 7 of Act 240 of 1926 and being actually created by Ordinance No. 13,649 of the Commission Council Series for the City of New Orleans. The Board has no powers save those conferred upon it by law and such as are implied in the powers so conferred.

The powers of the Zoning Board of Appeal and Adjustment, as provided in section 7 of Act 240 of 1926, are: First, to hear and decide appeals where it is alleged there is error in an order, requirement, decision, or determination made by an administrative official in the enforcement of the statute or of any ordinance adopted pursuant thereto; second, to hear and decide all matters referred to it or upon which it is required to pass under such ordinance; and third, in conformity with the provisions of the statute, to reverse or affirm wholly or partly, or to modify the order, requirement, decision, or determination appealed from. Section 7 of Act 240 of 1926 also provides that within thirty days after the filing of the decision of the Board in its office any person or persons jointly or severally aggrieved thereby may present to the district court of the parish or the municipality in which the property affected is situated a verified petition, setting forth the illegality of the decision, in whole or in part, and specifying the grounds of the alleged illegality. Upon the presentation of the petition, the court may allow a writ of certiora-ri directed to the Zoning Board of Appeal and Adjustment to review its decision and prescribe a time within which the return must be made. Upon the hearing, the court may take additional evidence or appoint a referee to take such evidence -and report his findings of fact and conclusions of law. After the hearing the court may reverse or affirm, wholly or in part, or may modify the decision brought before it for review.

It will be observed that the enumerated powers do not include the right of the Zoning Board of Appeal and Adjustment to appeal from a judgment of the district court reversing its own decision. (The right to question the decisions of the Board is limited by section 7 of Act 240 of 1926 to “any person or persons jointly or severally aggrieved by any decision of the board of adjustment.”) Nor do the general provisions of the Code of Practice authorize the Zoning Board of Appeal and Adjustment to appeal from the judgment of the Civil District Court in a matter of this kind.

Article 564 of the Code of Practice provides : “An appeal is the act by which one of the parties to a suit has recourse to a superior tribunal, in order to have the judgment of an inferior court corrected.”

Article 571 of the Code of Practice provides: “The right of appeal is given, not only to those who were parties to the cause in which a judgment has been rendered against them, but also to third persons not parties to such suit, when such third persons allege that they have been aggrieved by the judgment.”

In State ex rel. Kreher v. Quinlan, 182 La. 721, 162 So. 577, 578, after analyzing the statute under which the Zoning Board of Appeal and Adjustment was created, this court held that the Board is essentially a quasi judicial body and that the rulings or decisions of the Board involve the exercise of the judgment and discretion of its members after a public hearing. It was stated in the opinion that “the Legislature, by providing for a writ of certiorari to review the rulings or decisions of the board, has fully recognized its quasi judicial character, as such writ is directed only to an inferior judge. Code Prac. art. 855.”

The proceeding in this case is a special statutory proceeding in which the jurisdiction of both the Zoning Board of Appeal and Adjustment and the Civil District Court was exercised according to the statute and not according to general laws. In the exercise of its jurisdiction, the Zoning Board of Appeal and Adjustment acted as a quasi judicial body in hearing and deciding the appeal from the ruling made by the City Engineer refusing the application of the owner for a permit to convert a two-family dwelling into a four-family dwelling. In the exercise of its jurisdiction, the Civil District Court issued the writ of certiorari authorized by the statute, under which it reviewed and reversed the decision of the Zoning Board of Appeal and Adjustment.

The Zoning Board of Appeal and Adjustment was not a party to the proceeding before it, nor did it have any interest in the proceeding other than to decide the question presented for determination according to the proven facts and applicable lqw. Obviously, the Zoning Board of Appeal and Adjustment has no more right to appeal from the decision of the Civil District Court reversing its own decision than one of the judges of the Civil District Court would have to appeal to this Court from a judgment of the Court of Appeal reversing one of his decisions.

This rule has been recognized and applied by the courts of Maryland and Pennsylvania. In the case of Miles v. McKinney, 174 Md. 551, 199 A. 540, 545, 117 A.L.R. 217, the Maryland Court of Appeals, after reviewing the governing statute and ordinance creating the Board of Zoning Appeals in the City of Baltimore, which statute and ordinance are almost identical in terms with those under consideration in this case, stated: “Apart from legislative authority it would seem clear that the Board has no more right to appeal from its own decisions to the Baltimore City Court, or, from the decisions of that court to the Court of Appeals, than a justice of the peace, or such an agency as the State Industrial Accident Commission would have to appeal from judgments of a court reversing their' decisions.”

In the course of its opinion, the Court quoted with approval the general rule relative to the right of appeal by judicial and. quasi judicial officers and boards, as set forth in 4 C.J.S., Appeal and Error, p. 389, § 205, as follows: “As a general rule a court or board exercising judicial or quasi judicial functions, not being a party to its proceedings, and not having any legal interest in maintaining its determination, can neither appeal from a judgment or order of a court reversing the proceedings nor be heard on the appeal.”

The Court also referred to and discussed a number of cases supporting the general rule.

In the case of Appeal of Board of Adjustments of Landsdowne Borough, 313 Pa. 523, 170 A. 867, 868, the Supreme Court of Pennsylvania, quashing an appeal of the Board of Adjustments, which was created under statutory authority similar to that granted by the Legislature of this State, well said: “The statute gives no right of appeal to a'ny one from the final order of the court of common pleas. Whether or not, despite this fact, a property owner can appeal if his rights have been injuriously affected by the order made, and whether or not the borough of Landsdowne can appeal as the representative of all the property owners therein, we are not now called upon to decide, since no appeal has been taken by either or any of them. It is clear, however, that the board of adjustment, as a board, has not been, and cannot be, injuriously affected by the order, and hence has no standing to appeal. It might just as well be claimed that an auditor or master could appeal from a decree of the court sustaining exceptions to his report.”

For the reasons assigned, the appeal herein is dismissed.


text:
    198 La. 766
    STATE ex rel. HURLEY et al. v. ZONING BOARD OF APPEAL AND ADJUSTMENT et al.
    No. 36363.
    Supreme Court of Louisiana.
    Nov. 3, 1941.

      James M. Colomb, Jr., and J. E. Hurley, both of New Orleans, for plaintiffs, appel-lees.
    Lavinius Williams, of New Orleans, for defendant and appellant.
   ROGERS, Justice.

Miss Beatrice Ford and Mrs. Harry Mar-chesseau applied to the City Engineer for a permit to construct a three-family dwelling, with garage attached, on their property No. 1315 Third Street in the City of New Orleans. The permit was refused by the City Engineer, on the ground that the proposed construction violated the restrictions placed upon the use of the property by the Comprehensive Zoning Ordinance of the municipality, in classifying as class “A” residential the district in which the property is situated. Ordinance No. 11,302, Commission Council Series of the City of New Orleans.

Miss Ford and Mrs. Marchesseau appealed to the Zoning Board of Appeal and Adjustment from the ruling of the City Engineer. The Board held a hearing on the appeal at which certain neighboring property owners were present and objected to the granting of the applicants’ application for the reasons set forth in their objections. Despite the protests offered to the granting of the application of Miss Ford and Mrs. Marchesseau, the Zoning Board of Appeal and Adjustment adopted a resolution reversing the ruling of the City Engineer and directing him to issue the permit. Within thirty days after the adoption of the resolution, the protesting neighboring property owners, Jack E. Hurley and Mrs. Thelma Barkdull, wife of Dr. H. Theodore Simon, petitioned the Civil District Court for the Parish of Orleans for the issuance of a writ of certiorari to review the decision of the Zoning Board of Appeal and Adjustment. A writ of cer-tiorari was granted on the petition, and after hearing the parties, through their counsel, the Civil District Court reversed the decision of the Board and reinstated the ruling of the City Engineer.

The Zoning Board of Appeal and Adjustment has appealed from the judgment of the Civil District Court, and the ap-pellees, Mr. Hurley and Mrs. Simon, have moved to dismiss the appeal on the ground, among others, that the Zoning Board of Appeal and Adjustment, as a quasi judicial body, has no right of appeal, since it can in no sense be aggrieved or injuriously affected by the judgment of the Civil District Court.

The same question was presented for decision in the case of State ex rel. Robert G. Bringhurst et al. v. Zoning Board of Appeal and Adjustment et al., La.Sup., 4 So.2d 820, this day decided. In that case it was held, following the general rule that the Zoning Board of Appeal and Adjustment of the City of New Orleans, exercising quasi judicial functions, not being a party to the proceeding and not having a legal interest in maintaining its decision, had no standing to appeal from the judgment of the Civil District Court reversing the decision. Hence, the appellees’ motion to dismiss the appeal is well-founded and must prevail.

For the reasons assigned, the appeal herein is dismissed.


text:
    198 La. 770
    STATE v. SHADIONS.
    No. 36243.
    Supreme Court of Louisiana.
    Nov. 3, 1941.

      Eugene Stanley, Atty. Gen., Niels F. Hertz, Sp. Asst. Atty. Gen., and James U. Galloway, Dist. Atty., of Shreveport, for the State, plaintiff, appellee.
    James T. Jeter, of Shreveport, for defendant, appellant.
   ROGERS, Justice.

The appellant was charged by bill of information with feloniously receiving and having in his possession certain articles of jewelry and wearing apparel of the value of $250. Appellant was tried upon the bill and found guilty of receiving stolen goods of the value of $68. He then filed a motion in arrest of judgment, which was overruled, and the bill of exception reserved to the ruling is the only bill presented by the record.

The motion in arrest of judgment is predicated upon two grounds: First, that Act 369 of 1938, upon which the prosecution is founded, is unconstitutional inasmuch as the law which it sought to amend (section 832 of the Revised Statutes of 1870, as amended by Act 72 of 1898) was not enacted and published at length as required by section 17 of Article 3 of the State-Constitution; and, second, that Act 369 of 1938 is broader than its title and embraces-two objects in violation of section 16 of Article 3 of the State Constitution.

First. Section 17 of Article 3 of the State Constitution reads as follows: “§ 17. No law shall be revived or amended by reference to its title, but in such cases the act revived, or section as amended, shall be reenacted and published at length.”

The mere reading of the constitutional provision discloses it does not require that the law which is amended shall be reenacted and published at length. Its requirement is that the law as amended shall be reenacted and published. Act 369 of 1938, which was adopted to amend section 832 of the revised statutes of 1870, as-amended by Act 72 of 1898, meets the constitutional requirement.

Second. After alleging that Act 369 of 1938 is violative of section 16 of Article 3 of the State Constitution, in that it embraces two objects and is broader than its title, appellant further alleges that the statute goes further than the law it attempts to amend, inasmuch as it makes the harboring of a thief an offense and prescribes the penalty therefor, which offense and penalty are not embraced in the title or in the law which it attempts to amend.

In State v. Neal, 165 La. 989, 116 So. 482, the same attack was made upon the law before its amendment by Act 369 of 1938. The title of Act 72 of 1898, which was involved in the Neal case, reads as follows: “An Act To amend and re-enact Section 832 of the Revised Statutes of 1870.” This Court held that the title contained but one object, which was to amend and re-enact section 832 of the Revised Statutes; that under that title it was proper for the Legislature to make such changes, within constitutional limitations, in the subject matter of the section as it deemed advisable and even to incorporate new matter germane to that subject matter; that the Legislature carried out the object declared in the title of the legislative act by changing the 'penalty, and by providing one penalty for receiving stolen property and an added penalty for harboring a thief; and that it was within the province of the Legislature to make those changes under the title given to the legislative act, and, therefore, the making of the changes did not have the effect of giving the statute two objects.

The motion in arrest was properly overruled. Appellant was charged with an offense denounced by a law which is constitutional.

For the reasons assigned, the conviction and sentence appealed from are affirmed.