author: HAWTHORNE, Justice. FOURNET, Chief Justice LE BLANC, Justice.

text:
    216 La. 871
    BARBE et al. v. CITY OF LAKE CHARLES.
    No. 39095.
    Supreme Court of Louisiana.
    Nov. 7, 1949.
    On Rehearing Feb. 13, 1950.

      Patin & Patin, Robert R. Stone, Lake Charles, John I. Fowler, Sulphur, for plaintiffs-appellants.
    Selby & Hickman, James A. Léithead, Russell H. Van Norman, J. B. Holloman, Jr., Lake Charles, for defendant-appellee.
   HAWTHORNE, Justice.

On November 8, 1946, the city council of the City of Lake Charles adopted Ordinance 701, Commission Series, providing for the enlargement of the corporate limits of that city under the provisions of Act No. 315 of 1946. Within the 30 days before the ordinance became effective under the act, four separate suits contesting the extension were filed by residents of that city or of the territory proposed to be annexed thereto. Pursuant to Section 7 of the act, the district judge ordered these suits consolidated and tried as one suit. After trial on the merits there was judgment in favor of the defendant, City of Lake Charles, and against all of the plaintiffs in each of the suits, rejecting their demands and decreeing the ordinance to be reasonable, valid, and enforcible and to become effective within the time provided in Act No. 315 of 1946. From this judgment a suspensive appeal was perfected.

The well written and well reasoned opinion of the trial judge contains a statement of facts concerning the history and growth of the City of-Lake Charles. That city was created pursuant to the provisions of Act No. 79 of 1867, which defined the corporate ‘limits of the city, but now operates under the provisions of Act No. 207 of 1912. These limits remained as originally fixed until extended by the city during the year 1899, and have remained unchanged since that time, a period of approximately 50 years, except for the annexation of an area of about four city blocks on the eastern edge of the corporate limits within the last few years. During all these years the corporate limits have comprised an area of approximately five square miles, including about one-half of -the lake known as Lake Charles, located immediately west of, and adjoining, the business 'section of the city. Under the provisions of Ordinance 701 (the ordinance under attack) approximately 10 square mi'Ies of territory are to be added to the corporate limits, including the remaining one-half of the lake. Pursuant to the ordinance, the corporate limits are to be extended to include a-reas located to the northwest, the west, and' the south of the existing city limits. The population within the corporate limits of the city has increased from 6680 in 1900 to 34,399 in 1945, and a reasonable estimate of the number of people who reside in the area which the city proposes to annex is 10,000. This increase in population is due to the establishment of a number of large industries, such as oil refineries and alkali works.

Appellants attack the validity of the ordinance on several grounds. The first is that “The certificate of the assessor of Calcasieu Parish annexed to the petition filed with the city council of the City of Lake Charles, and which forms the basis of Ordinance 701 Commission Series is fatally defective”.

Section 2 of Act No. 315 of 1946 provides :

■“No ordinance enlarging the boundaries of a municipality shall be valid unless prior to the adoption thereof a petition has been presented to the governing body of the municipality containing the written assent of 25% in number of the resident property owned [owners] in said territory as well as 25% in value of the property with [within] the area "proposed to be included in the corporate limits according to the certificate of the Parish Assessor. The valuation shall be certified to by the assessor according to the assessment of each of the owners signing the petition. Where there has been a change of ownership since the last assessment of the property, the assessor is authorized and directed to certify the valuation of the present owner in accordance with the last assessment appearing on the rolls against any previous owner. In any case where the property of the present owner has not specifically been assessed the assessor is authorized and directed to estimate the assessed value of said property for the current year and to certify same as the value of the property. * * * ”

. The certificate filed with the city council with the petition for annexation reads as follows:

“State of Louisiana

“Parish of Calcasieu

“I, E. R. Plenry, Assessor for the Parish of Calcasieu> State of Louisiana, certify that the values placed. upon' the property appearing opposite each name in the above and foregoing petition are the values as appear on the assessment rolls at the present date. In the case where the property of the present owner has not been specifically assessed, then I have estimated the value and set the value out-opposite each name. From the information which I have in hand, the persons appearing in the above and foregoing petition represent 25% of the resident owners in number and 25% in value of the property within the area proposed to be included in the corporate limits of the City of Lake Charles.

“Witness my hand and seal at Lake Charles, Louisiana, this 4th day of October, 1946.

(Signed) “E. R. Henry

"E. R. Henry, Tax Assessor”

Appellants in brief state that this certificate “lacks that degree of certainty which one expects to find” in such certificate. We are unable to perceive any uncertainty in the certificate itself, as it substantially tracks the language of the statute. If appellants mean that the certificate is uncertain for the reason that the assessor made it “From the information which I have in hand”, we still see no uncertainty, since this phrase could refer only to the official information over which he, as assessor, has control. The mere fact that he subsequently testified under oath, over obj ection, in connection with this same certificate could not and did not make the certificate itself fatally defective as to its form.

Appellants also contend that “The petitions filed with the city council, and on which. Ordinance 701 is based, do not contain the signatures of resident property owners owning twenty-five per cent in value of the total assessed value of all property within the area sought to be annexed”.

As we interpret it, Section 2 of the statute, which we have previously quoted, means that the petition must meet two requirements: It must be signed (1) by 25 per cent in . number of the resident property owners in the territory to be annexed, and (2) by persons owning 25 per cent in value of all the property within the area proposed to be included in the corporate limits.

For a valid ordinance of' annexation to be enacted, both of these requirements must be met, and’ whether both requirements were met in the instant case presents for our determination only a question of fact. The trial judge in his reasons for judgment reviewed all of the evidence and testimony on this point ádduced by both appellants and appellee, and concluded that the petition seeking annexation in the instant case met both tests. He said in regard to this evidence:

“A careful check of the records in the assessor’s office was made by Mr. James A. Leithead, with the assistance of a stenographer. He spent four or five weeks in accumulating data relating to the number of resident property owners and the assessed value of the property in the area sought to be annexed. He prepared a complete list of the assessments of property within this area, showing the name of the person to whom each tract was assessed, the description of the property and its assessed value. He further indicated on this list the persons to whom homestead exemptions had been issued and those who had signed the petition. He álso checked the records of the Register of Voters and in cases where he was not certain he made an actual check of tlie property to determine who were'and were not resident property owners. From the figures which Mr. Leit-head complied as a result of this investigation it is apparent that the signers of the petition represented more than 25% in number of resident property owners and more than 25% in value of the property located in the area sought to be annexed. The Court was impressed with the thoroughness of Mr. Leithead’s work in collecting this information.”

After a careful reading of the record, we cannot say that he committed error in so 'holding.

Still another contention of appellants is that “The refusal of the district judge to allow evidence concerning the East Broad Street section was reversible error”.

The East Broad Street Section, according to counsel’s brief, is an area lying east of the present city limits of Lake Charles. Counsel sought to introduce evidence to establish that this area has been extensively developed both for residential and for commercial purposes, but this evidence was objected to, and the objection sustained by the trial judge, on the ground that it was not material to the issues involved in the instant suits. Counsel argue that this evidence is material because it would establish that the ordinance is unreasonable since it excludes the Broad Street area and includes an area consisting of lands and property which are undeveloped, and that the exclusion of the East Broad Street area is discriminatory.

The only question here presented is the admissibility of the evidence, and we fully agree with the ruling of the trial judge sustaining the objection to its admissibility on the ground that it was not material. A valid ordinance enlarging the boundaries of the City of Lake Charles to include the East Broad Street section could be adopted by the city only after presentation of a petition signed by owners of property in that area in accordance with the provisions of the act. Whether the Broad Street area, located east of the present city limits of Lake Charles, should be annexed is a matter which must be initiated by the owners of property in that area, and the omission or inclusion of that area in the city limits has nothing whatsoever to do with the reasonableness of the inclusion of the area described in Ordinance 701, located principally to the south and west of the present city limits, nor would evidence of its omission establish that the ordinance under attack was discriminatory.

The case of Pyle et al. v. City of Shreveport, 215 La. 257, 40 So.2d 235, cited by appellants, has no application, for in that case we were dealing with two separate, distinct, and non-contiguous areas which the citizens were seeking to have annexed by separate petitions, each group seeking to have its own respective area annexed without reference to the other by merger of the two areas in one ordinance.

Appellants also contend that “The land description contained in Ordinance 701 is fatally defective”.

Section 8 of Act No. 315 of 1946 provides that, when the boundaries of a municipality have been enlarged, the ordinance with reference thereto must define with certainty and precision the territory which is proposed to he included in the corporate limits, and the ordinance must also define the entire boundary as changed. Appellants’ contention that the ordinance is invalid for the reason that the land description is defective is raised in a supplemental petition, in which they allege what they consider to be an error in the description. The trial judge in his written reasons for judgment has ably and fully answered this contention thus: •

“As required by this act the ordinance, in Section 1, first defined with certainty and precision the territory which it is proposed to include in the corporate limits. Plaintiffs urge no complaint as to the description set out in that portion of the ordinance. In Section 2 of the ordinance, however, the entire boundary as changed is set out as required by said act. A part of this description reads as follows:

“ ‘Thence, on up Contraband Bayou with its center line through Sections 13, 24 and 19 of Township 10 South, Range 8 West, to the West line of the Southeast Quarter of the Northeast Quarter of Section 19, Township 10 South, Range 8 West;’

“The technical error pointed out by plaintiffs is that Sections 13 and 24 are located in Township 10 South, Range 9 West, of the Louisiana Meridian, while Section 19 is the only section mentioned in that portion of the description which is located in Township 10 South, Range 8 West. It is argued that the description is not set out with ‘certainty and precision’ as required (by Act 315 of 1946.

“ * * * According to the testimony of Mr. Elmer Schutts, a qualified civil engineer, the above-quoted portion of the ordinance is a ‘repeat or dual description’. The point where the line begins at the mouth of Contraband Bayou is set out with pre-cisión. The questioned portion of the description, therefore, being definitely tied in with a starting point leaves no possible misunderstanding as to the location of the proposed boundary line. The Court concluded, therefore, that the entire boundary as changed is sufficiently defined to meet all of the requirements set out in Act 315 of 1946.” (Italics ours.)

As pointed out by the trial judge, plaintiffs in the lower court urged no complaint as to the description set out in Section I of the ordinance describing the area to be annexed. However, appellants in this court for the first time urge that Section I of the ordinance does not describe the area to be annexed with certainty and precision, and they specifically set out in their briefs in what respects the description in Section I is defective.

These specific objections to the description were not pleaded or urged in the lower court, no evidence was adduced with reference thereto, and the trial judge did not consider or pass upon them. We therefore cannot consider these objections.

Appellants also take the position that “Ordinance 701 Commission Series has been repealed by Ordinance 717 Commission Series of the City of Lake Charles”.

Plaintiffs in two of the consolidated suits, after issue had been joined by the filing of the answers of the city, and on the day the case was fixed for trial on its merits, that is, on July 7, 1947, submitted to the court for filing their second supplemental and amended petition. The trial judge refused to permit the filing of this petition because he was of the opinion that it altered the substance of plaintiffs’ demands in their original and first, supplemental petitions.

In this second supplemental petition plaintiffs allege that Ordinance 701 was repealed and annulled by the provisions of Ordinance 717, Commission Series of the City of Lake Charles, passed on April 1, 1947. In plaintiffs’ original and first supplemental petitions they took the position that Ordinance 701 was null and void in that there had not been a full compliance with the act which governs annexations and provides the means and method by which a municipality may annex additional territory to its corporate limits. In those petitions plaintiffs set forth in detail the alleged failures to follow the provisions of the act, and in the alternative they alleged that the proposed annexation was unreasonable, and that the ordinance should be vacated and the proposed extension denied. On the other hand, in their second supplemental and amended petition, which the trial judge refused to permit them to file, they took the position that Ordinance 717, Commission Series of the City of Lake'Charles, had the effect of repealing and annulling the provisions of Ordinance 701. Under these circumstances it is evident that the second supplemental and amended petition altered the substance of plaintiffs’ original demands,, and the trial judge properly refused its filing under the provisions of Article 419 of the Code of Practice. That article provides that, after issue joined, the plaintiff may, with the leave of court, amend the original petition, provided that the amendment does not alter the substance of his demand by making it different from the one originally brought.

Since the-trial court correctly refused to permit the filing of the second supplemental and amended petition, the effect, if any, which the adoption of Ordinance 717 might have had on Ordinance 701 is not an issue before this court under its appellate jurisdiction, as this question was not decided or passed upon by the lower court.

Appellants further contend that “The city council improperly ignored petitions withdrawing signatures from the original petition where such withdrawals were made prior to the adoption of Ordinance 701”.

After the petition for annexation had been filed with the governing body of the City of Lake Charles, notice of its filing was given by publication in accordance with Paragraph 2 of Section 2 of the act, which provides that notice by publication shall be given once of the filing of the petition in some newspaper published or having a general circulation in the municipality. Thereafter, on October 10, 1946, a hearing was had by the governing authorities of the city under the provisions of the act that anyone desiring to be heard with reference to a proposed ordinance of annexation shall notify the secretary of the municipality in .writing, and that the governing authorities before adopting the ordinance shall grant a hearing. At the hearing both the opponents and the proponents of the proposed annexation were heard, and .after the hearing the council on the same day adopted Ordinance 701 on first reading, and it was published by title in the official journal of the city on October 12, 1946. On October 22, 1946, the ordinance was adopted by the city council on second reading.

After the ordinance had been adopted on second reading, a number of the signers of the. petition for annexation filed with the city .council petitions- seeking to withdraw their names from , the original petition. So far as we are able to ascertain, some of these petitions were .filed on November 5 and, another on November 8, and no showing is made that any petitions for withdrawal were filed prior to November 5.

The city council did not consider the petitions seeking withdrawal, and on the trial of the case the judge sustained this action of the council because there was no evidence that the signatures sought to be withdrawn had been obtained fraudulently or in bad faith.

The action of the city council and the ruling of the trial judge present for our determination the question: When does the right to withdraw a signature from a petition for annexation, filed under the provisions of Act No. 315 of 1946, terminate?

Counsel for appellants have cited no authorities in support of their contention that certain signers of the original petition had the right to withdraw their signatures therefrom under the facts presented in the instant case. Our study of the question presented discloses that the courts of the various states are not in accord as to when the right of a signer of a petition to withdraw therefrom terminates. (1) There are courts holding that the right expires at the time of the filing of the petition. (2) Others hold that it expires when the sufficiency of the petition has been determined. (3) Some hold that it expires when jurisdiction attaches. (4) Others hold that the right exists until the petition is acted upon by the official body to which it is addressed. (5) Still others hold that the right continues until final action is taken upon the petition.

It is universally held, however, that the signers of such a petition may withdraw their signatures a-t any time before the instrument is filed, and that they may not withdraw after final action has been taken. See Annotation, Right of Signer of Petition or Remonstrance to Withdraw Therefrom or Revoke Withdrawal and Time Therefor, 126 A.L.R. 1031, and the numerous authorities cited therein. The instant case does not fall within either of these universally accepted rules, since the petitions seeking withdrawals in this case were filed neither before the original petition was filed nor after final action had been taken on the ordinance by the city council. As pointed cmt in the annotation cited above, the .answer is largely influenced by the nature of the proceedings involved and the terms of the statute under which they are instituted.

By appellants’ contention that these withdrawals should be considered since they were made prior to the final passage of the ordinance, they would have this court adopt the extreme view that the right to withdraw signatures from a petition seeking annexation terminates only after the adoption of the ordinance on third reading.

The very purpose of the petition seeking annexation, containing the assent of the requisite number of resident property owners in the territory to be annexed as well as of the owners of the requisite amount in value of the property within the area proposed to be included in the corporate limits, properly certified by the assessor, is to vest jurisdiction in the municipal authorities. Under the statute it is only after 10 days have elapsed from notice by publication of the filing of the petition for annexation, properly certified by the .assessor as containing the requisite number of signers, and after a hearing afforded to anyone desiring to be heard, that the council is authorized to adopt, in its discretion, the ordinance proposed'by the petition.

In the instant case, pursuant to the request of all the signers of the petition that the ordinance be adopted, the city council chose, in its discretion, to adopt the ordinance on first reading, and published the fact of such adoption in the official journal of the city. The ordinance was also adopted on second reading, at which time none of the signers of the original petition had requested that his name be withdrawn therefrom. It was only shortly before the final adoption of the ordinance on November 8 that the petitions for the withdrawals were filed with -the council.

Under these facts and circumstances, the city council had acted upon the original petition prior to any request of signers of the original petition that their names be removed therefrom. When we take into consideration the nature of. the proceedings involved, that is, the annexation of an area to the corporate limits of a municipality, and the terms and conditions of the statute, which we have discussed hereinabove, in our opinion the petitions for withdrawal, presented after the council had jurisdiction and had acted, came too late and were properly not considered by the city authorities.

Courts in other states have held that withdrawals came too late after the body or officer to -whom the petition was addressed had acted thereon. Valley Center School Dist. No. 20 et al. v. Hansberger, 28 Ariz. 493, 237 P. 957; McQueen v. City of Moscow et al., 28 Idaho 146, 152 P. 799; Fischer et al. v. Board of Sup’rs of Washtenaw County, 156 Mich. 1, 120 N.W. 13; Sim et al. v. Rosholt, 16 N.D. 77, 112 N.W. 50, 11 L.R.A.,N.S., 372. They had before them petitions for various matters, for the establishment of drains, for the organization of a local: improvement district, for local option elections, etc. In one state signers of a petition.for annexation of territory to a city cannot withdraw -their names after the' petition has been filed. Rogers v. Board of Directors of City of Pasadena et al., 218 Cal. 221, 22 P.2d 509.

. It is not our .intention, however, to hold that a signer of a petition for annexation, after further deliberation and reflection, has no right or authority to withdraw his name therefrom after the filing of such a petition, properly certified by the assessor, or within the 10-day period which must elapse after the notice is given of the filing of such petition and before the, adoption of any ordinance, or before a- hearing is held if one is requested; but we do hold that, after all of these delays have elapsed and these steps have been taken, and the city council in its discretion acts upon the petition, as was done in this case, by the passing of the ordinance on first and second readings, the right of the signers to have their names withdrawn expires, in .the absence of any showing that their signatures were obtained fraudulently or in bad faith.

To hold otherwise we would, in effect, be saying that the opponents of a proposed annexation under the provisions of the act, after jurisdiction has been vested ■ in the municipality, and after the governing authorities of such, municipality hay e acted upon the petition, could, by merely inducing the signers of -the petition for annexation ■to withdraw their signatures from the original petition, deprive the city council of jurisdiction and necessitate that the, proponents of annexation seek additional signatures to take the place of those withdrawn (provided the petition does not then contain the requisite number of signatures 'as required by the statute) and to institute the entire proceedings anew, beginning ■with the filing of the petition anew, certified by the assessor as required by the ac't-Such a holding would unreasonably hinder and interfere with the procedure for annexation after the governing body is vested with jurisdiction to act in, regard to the petition. By our decision we feel that we have given due regard to the individual right of the petitioner, and at the same time have prevented making the process, of annexation unworkable.

Appellants’ last contention is that Ordinance 701 of the City of Lake Charles is invalid,in -that it seeks to extend unreasonably the limits of the City of Lake Charles-

The area to be annexed consists of one large tract of 'land lying principally on the west and the south of the present corporate limits of the City of Lake Charles, and has for its outside boundaries streams, watercourses, and the lines of governmental subdivisions. Plaintiffs have designated certain portions of this area as Tracts A,' B, and C. Tract A is situated in the northwest portion of the area to be annexed, Tract B in the southwest, and Tract C in the southeast. Plaintiffs contend that these areas are either swampy and subject to overflow, or farming and grazing lands, or not suited for develop'ment as city property, or sparsely populated. They contend that the inclusion of lands having such characteristics makes the proposed extension of all the area described in Ordinance 701 unreasonable.

In Section 4 of Act No. 315 of 1946, it is provided that, if the proposed extension should be adjudged by the courts to be unreasonable, the ordinance of annexation shall be vacated and the proposed extension denied. Under this provision, in order to determine whether the extension of the corporate limits of a municipality is unreasonable, the proposed extension must be considered in its entirety. The question is not whether each portion of the tract included in the proposed annexation, if considered separately, would be a reasonable extension, for the ordinance stands or falls in its entirety.

The trial judge on this point cited the case of Forbes et al. v. City of Meridian, 86 Miss. 243, 38 So. 676, and McQuillin on Municipal Corporations. The ruling of the Mississippi case is the general rule as stated by McQuillin as follows:

“ * * * In determining the reasonableness of the extension of corporate boundaries the extension must be considered as a whole; the question is not whether it is reasonable in each and every part. * * * ” 2 McQuillin, op. cit., supra, 3d Ed., p: 320. ■

Under the well settled j.urisoru-dence of this state, the burden of proving the unreasonableness of an annexation is upon the opponents thereof, and such unreasonableness must be made to appear by abundant evidence. See Lawrence et al. v. Town of Mansfield, 129 La. 672, 56 So. 633, and Harvey Canal Land & Improvement Co. et al. v. Gelbke, 166 La. 896, 118 So. 75.

The plaintiffs in the instant case, therefore, have the burden -of proving the' unreasonableness of the ordinance, and this •unreasonableness must be made to appear by abundant evidence. With reference to annexation, what is reasonable or unreasonable depends largely upon the particular facts in any given situation, such as that the property is needed for the future growth of the city and for police, fire, or sanitary protection. It should never be permitted when made solely for the purpose of taxation or increasing the revenues óf the city by this means.

In the instant case some of the plaintiffs by motion filed during the trial requested the trial judge to visit and inspect all of the territory to be annexed in order to determine the reasonableness of the annexation. In his written reasons for judgment he states that, after hearing all of the evidence which was introduced at the trial, he made an inspection by land,- air, and water, and that, from all the evidence adduced and from his personal observation, he concluded that the proposed annexation was reasonable. After a careful reading and analysis of all the evidence, we cannot say that there is manifest error in the trial judge’s holding on this point, and certainly our reading convinces us that these plaintiffs have not sustained the burden of proving by abundant evidence that the proposed extension is unreasonable.

For the reasons assigned, the judgment appealed from is affirmed; appellants to pay all costs.

FOURNET and PONDER, JJ., dissent.

FOURNET, Chief Justice

(dissenting).

The majority opinion holds that a signer of a petition presented to a city or municipality requesting the adoption of an ordinance annexing additional acreage to the city proper has a right to withdraw his name from such petition “after the filing of such a petition, properly certified by the assessor, or within the 10-day period which must elapse after the notice is given of the filing of such a petition and before the adoption of any ordinance, or before a hearing is held if one is requested; but * * * that after all of these delays have elapsed and these steps have been taken, and the city council in its discretion acts upon the petition, as was done in this case, by the passing of the ordinance on first and second readings, the right of the signers to have their names withdrawn expires, in the absence of any showing that their signatures were obtained fraudulently or in bad faith.”

This holding is based on the theory that at that stage of the proceeding the municipality has been vested with jurisdiction, and any sanction of the withdrawal of signatures after that .time would “deprive the city council of jurisdiction and necessitate that the proponents of annexation seek additional signatures to take the place of those withdrawn” and institute the entire proceedings anew, thus hindering and interfering with the procedure of annexation “after the governing body is vested with, jurisdiction to act in regard to the petition.” (Italics mine.)

It is difficult for me to follow this reasoning. The author of the majority opinion overlooks the fact that although the legislature in its wisdom has seen fit to authorize cities and municipalities to enlarge or contract their boundaries, this may be done only in the manner set out in the legislative grant and that, being creatures of the legislature with only such power and authority as that body specifically delegates to them, the city or municipality is power-' less to expand the boundaries when the procedure is deviated from.

In its act the legislature, in clear and unambiguous language, sets out the procedure that must be followed for annexing or contracting boundaries of cities and municipalities. We find that this authority cannot be exerted unless the governing officials have been presented with a petition signed by the requisite number of resident property owners owning the requisite value of the property in the area affected (25,% in each instance); that this valuation must be certified by the assessor; that notice of the intended change be published; and that those interested be permitted to appear and protest. After this procedure has been followed, and only then, are municipalities authorized to adopt the ordinance that enlarges or contracts the territory.

The majority opinion seems to put stress on the fact that the city, preparatory to adopting the ordinance in this case, had passed it on first and second readings. But this is a mere formality of a procedural nature. These first and second readings are only steps toward the final adoption of the ordinance and no more give the ordinance validity than do the first and second readings of acts before the legislature make them laws. It is the final reading and adoption that gives the ordinance its life and validity. And since it appears that before this ordinance was actually adopted a sufficient number of the original signers of the petition had withdrawn their names to reduce the requisite number of property owners and assessed valuation below the required 25%, the city lacked the authority to adopt the ordinance.

For these reasons, I respectfully dissent.

On Rehearing

LE BLANC, Justice.

The sole issue presented on the rehearing granted in this case is: When does the right of withdrawal of signatures to a petition for annexation filed under the provisions of Act No. 315 of 1946 terminate?

After citing five different rules which prevail in other jurisdictions, the majority opinion, on original hearing, adopted the one which limits the right of withdrawal to the time when jurisdiction over the subject matter attaches. This is somewhat of a middle-ground rule between two extremes: one holding that the right expires at the time of the filing of the petition; and the other, that it continues until final action is taken on the subject matter of the petition. The city council was held, in this case, to have become vested with jurisdiction after the petition filed by the required number of resident property owners in the area sought to be annexed, as well as the required percentage of property values,' according to the certificate of the Parish Assessor, had been properly presented and ten days had elapsed from the time of notice of its filing by publication, and after holding of a hearing on the petition; all as is required under the provisions of the statute.

There can hardly be any doubt but at that time, the city council had become vested with power to act on the matter submitted to it and determine it, at its own discretion, and that, after all, is what is meant by the term “jurisdiction”, generally speaking, with regard to such governing bodies. Vol. 23, Words and Phrases, Perm. Ed., pages 358,- 381.

We still believe that the middle ground rule, based on the ground of jurisdiction having attached, is a fair and reasonable one and is particularly appropriate in a case of this kind where the procedure set out in a statute, leading to a proposition as important as the one here involved, has been carefully followed. Certainly there appears to have been no attempt or intention on the part of the city council to circumvent any of the provisions of the statute or to deviate from the procedure therein designated. The filing of the petition was duly advertised for the period required, and the hearing was held at which everyone interested was given the right to be heard. The petition was then acted on and the ordinance introduced. The ordinance was then read for a second time and it was not until the time arrived for its filial adoption that some of the parties who had signed the petition sought to withdraw their names. It is true, as contended, that a person should be given the right to change his mind on any proposition but we are of the opinion that in matters involving the procedure outlined in a statute, such as the one under consideration, he should not be' permitted to do so after all' such procedure had been gone through, the petition which he signed acted upon, and all that remained to be done was for the governing body to take final action by adopting the ordinance. Th'e pufp'ose of such a statute could readily be thwarted by a few people opposed to the proposition presented, by inducing a sufficient number óf signers to withdraw their names from the petition and thus take the matter out of the hands* of the governing body where they had been satisfied to place it before and had permitted favorable action to be taken. As suggested in the majority opinion on the original hearing, to permit a withdrawal of names from the petition up to the time of the final action in a case like this, would make the process of annexation very difficult indeed, if not impossible.

In their brief on rehearing, counsel for plaintiff cited two cases decided by this court, neither of which would appear to be of great weight in determining the question presented. In the first, City of New Orleans v. Stewart, 18 La.Ann. 710, it was stated that a paving lien would not be held unenforceable because of the fact that the' ordinance creating the same had been adopted after opposition had been filed but then withdrawn. The court went on to say: “ * * * there is nothing in the law which prevents a reasonable withdrawal of the opposition.” The difference between the situation in that case and the one in the case now before us is apparent. In the cited case, the action taken was of a negative character and allowed the proceedings to continue as though uninterrupted, while in the present case the action sought to he upheld by the withdrawal is one which would put an end to all of the proceedings taken up to that time, or if not to end them, then certainly to cause serious delay.

The other case cited is that of Perot v. Police Jury of Natchitoches Parish, 208 La. 1, 22 So.2d 666; however, there is nothing in the opinion in that case which bears on the question here at issue ■ as the court seems to have been concerned only with the admissibility of certain counter petitions to a proposition for calling a local option election, that were irregular and invalid on their face. No mention is made of the time in which they could be filed.

Counsel also cited several cases from other jurisdictions in which, for the most part, a rule other' than the “jurisdictional rule,” if it can be so called, was followed. Those cases all tend to emphasize the divergence of opinion on the subject, which after all, is not one of purely legal aspects, but one that is largely concerned with policy considerations. In the final analysis it would seem that the rule which is the least harsh and unworkable, and which tends to give effect to the provisions of a statute, such as the one with which , we are concerned in this case, is the proper rule to be followed. We believe that the rule that was held to apply in the majority opinion on the original hearing is the one that .best carries out the intention and purpose of the law and for these reasons we adhere to the ruling therein made.

It is ordered that the original decree heretofore handed down be now reinstated and made the final judgment of the court.

FOURNET, C. J., and PONDER, J., dissent.


source: Caselaw Access Project

author: HAWTHORNE, Justice. PER CURIAM.

license: Public Domain

text:
    216 La. 904
    McMURREY et al. v. GRAY et al.
    No. 39062.
    Supreme Court of Louisiana.
    Dec. 9, 1949.
    Rehearing Denied Feb. 13, 1950.

      Simon Herold, Shreveport, for defendants-appellants.
    Herold, Cousin & Herold, Cook, Clark & Egan, Shreveport, for plaintiff-appellees.
   HAWTHORNE, Justice.

Plaintiffs, Bunyan J. Johnson, Clarence E. Swanson, Mrs. Beulah Johnson Mason, and Jim McMurrey, instituted this suit praying that they (other than McMurrey) be recognized as the owners of all mineral rights in a tract of land situated, in Caddo Parish, containing 498.21 acres, subject to a valid oil and gas lease made by them to Jim McMurrey, and that the defendants be •enjoined from slandering their title and from interfering with the exercise of the mineral servitude through the operations of McMurrey under the lease.

Defendants, Wilbur P. Gray and his wife, Mrs. Ruby Gillespie Gray, and Barney C. Hickey and his wife, Mrs. Willie Mae Per-ryman Hickey, contend that they are the owners of all the minerals in the property by virtue of the ' prescription liberandi causa, and in the alternative that, should the court hold that the operations by Mc-Murrey, plaintiffs’ lessee, were sufficient to constitute a good faith attempt to obtain production, they should nevertheless be recognized as the owners of an undivided 278.035/498.21 interest in and to the minerals, as servitudes representing this proportion of the mineral interest had expired by nonuse before McMurrey started operations under the lease.

The district court held that the plaintiffs Johnson, Swanson, and Mrs. Masoq were the owners of an undivided 220.175/-498.21 interest in the oil, gas, and other minerals under the tract, since the drilling operations of McMurréy were a boña fide attempt to obtain production and interrupted the running of the prescription, and granted unto plaintiffs an' injunction permanently enjoining defendants from interfering with the further and continued exercise of the right of plaintiffs under the mineral servitude and the oil, gas, and mineral lease. From this portion of the judgment the defendants have appealed. The judgment of the district court also held that the alternative plea of defendants was well founded, and that they were the owners of the fractional interest claimed in their alternative demand, clear and free of the McMurrey lease. Plaintiffs have answered defendants’ appeal, praying that they be recognized as the owners of all the minerals in the property.

On March 26, 1936, the Continental American Bank & Trust Company, fee simple owner of this tract of land, conveyed it by warranty deed to Bunyan J. Johnson and Clarence E. Swanson, two of the plaintiffs, reserving to itself an undivided one-half of all the minerals. Thereafter, between May. 21 and May 25, 1936, Johnson and Swanson by six separate •mineral sales sold a portion of the mineral interest which they had obtained from the bank. A little more than year after their acquisition, that is, on March 29,1937, Johnson and Swanson conveyed the tract to the defendants by warranty deed which contains the following clause: “It is expresly stipulated and agreed that vendors reserve unto themselves all of the oil, gas and other minerals, in, to and under the property hereinabove described, together with all rights of ingress and egress upon and over said property for the purpose of going upon the same, exploring and developing the same for the purpose of removing oil, gas and other minerals therefrom.”

For the purpose of clarity, we here point out that the1 undivided 220.175/498.21 interest in the oil, gas, and other minerals, recognized to be in plaintiffs (other than McMurrey) by the judgment of the lower court, is the interests of Mrs. Beulah Johnson Mason and the interest of Johnson and Swanson remaining unsold by them at the time they conveyed the land to defendants herein on March 29, 1937; and that the 278.035/498.21 interest, which the lower court held reverted to the defendants since the servitudes as to it expired in 1946 by nonuser for a period of 10 years, is composed of the one-half interest reserved by the Continental American Bank & Trust Company and the total interest in the six mineral sales made by Johnson and Swanson to various vendees.

All parties to this suit admit and agree that the mineral servitudes of the Continental American Bank & Trust Company and the six vendees of Johnson and Swanson have expired by nonuse since no well was drilled on the property within 10 years from the dates of the creation of the servi-tudes in 1936. Plaintiffs Johnson and Swanson take the position that upon the expiration of these servitudes in 1946 the minerals conveyed or reserved by these various instruments reverted to them under the above-quoted reservation, although at that time the land was owned by the defendants herein. Plaintiffs contend that the drilling of the well on the premises by the lessee, McMurrey, as hereinafter set forth, was a bona fide attempt to produce oil and gas from the property and was an exercise of the servitudes of Johnson, Swanson, and Mrs. Mason, and interrupted prescription before it accrued on March .29, 1947.

The trial judge in his well written reasons for judgment concluded that the servitudes of the Continental American Bank & Trust Company and of the six vendees of Johnson and Swanson had reverted to the defendants, the owners of the land. We think this conclusion is correct, and we quote and adopt as our own his reasons therefor, in part, as follows:

“In determining who owned the minerals under said land on February 26, 1947, the date of the McMurrey lease, it becomes necessary to decide to. whom inured the one-half of the minerals reserved by the bank in its sale to Johnson and Swanson on March 26, 1936, and the fractional mineral interests sold by Johnson and Swanson in the six mineral deeds executed by them between May 21st and May 25th, 1936. It is not denied that these servitudes were lost by nonuser for ten years and defendants plead the prescription of ten years liberandi causa. The plea is good and is sustained.

“It is plaintiffs’ contention that, upon the lapsing of the mineral servitudes created by the reservation and the mineral sales referred to in the preceding paragraph, said mineral rights inured to Johnson and Swanson under the reservation in their deed to defendants on March 29, 1937, which reservation we quoted in the beginning of the opinion, because, by thus reserving ‘unto themselves’ all the minerals under the land, Johnson and Swanson, reserved ‘unto themselves’ all the mineral rights in the land including the ‘reversionary rights’ to the minerals covered 'by said' servitudes. ■On the other hand, defendants contend that the mineral rights covered by said mineral servitudes reverted to them as the owners of the land at the time of the lapsing of said servitudes.”

The trial judge pointed out that this question was settled in the recent case of Gulf Refining Co. v. Orr et al., 207 La. 915, 22 So.2d 269, 270, in which the case of McDonald v. Richard et al., 203 La. 155, 13 So.2d 712, was compared and discussed. He then quoted the following extract from the Orr case:

“The question involved in this case cannot be distinguished in principle from the question involved in the case of McDonald v. Richard * * *. In that case; this court held that where the owner sold his land but reserved the- mineral rights and the purchaser of the land sold the mineral rights to which he had no title, and later sold the land, when the original vendor of the land lost his mineral servitude by the liberative prescription of ten years for nonuser, ' the lapsing of the servitude -inured to the party owning the land when the obligation lapsed.

“If the owner of the land incumbered with a mineral servitude cannot create another servitude thereon by the sale of the same mineral rights, which he does not own, it logically follows that neither can he create another-mineral servitude on the land by a reservation in- the deed o'f sale of the same mineral rights which he does not own.” •

The trial judge went on to say:

“To hold otherwise would mean, as Chief Justice O’Niell pointed.out in McDonald v. Richard, that a landowner may impose an interminable seriés of mineral servitudes upon his land by making a series of sales (or reservations) of the same mineral rights, with the stipulation or understanding that each servitude thus imposed upon the land would take' effect only when and if the previously imposed servitude or serv-itudes should become' extinguished by the liberative prescription of 10 years.'

“But plaintiffs argue that Johnson and Swanson, by the reservation in their deed to defendants, . reserved ‘unto themselves’ not only all the minerals they then owned, but, also, intended to reserve, and by .the language of the reservation, did actually .reserve ‘unto themselves’ the ‘rever-sionary rights’ to the .minerals then outstanding and owned by others.-. And they point out that the Supreme Court said, in Gailey v. McFarlain, 194 La. 150, 193 So. 570, that' the reversionary mineral interest of the' owner of the fee simple title is ‘a certain object’ which can be legally sold. True, that was said, but, as was pointed out in McDonald v. Richard, and we quote the opinion of the Court:

“The reservation in the deed from Johnson and Swanson to these defendants on March 29, 1937, did reserve to Johnson and Swanson the remainder of the minerals which had not theretofore been reserved or sold and created in-favor of Johnson and Swanson a servitude on. said remainder. Thereafter, on April 6, 1937, Mrs. Mason acquired from Johnson and Swanson an undivided 50/726 of the minerals in the 498.21 .acre tract.

“ * * all that was decided in Gailey v. McFarlain was that the owner of a certain tract of land that was subject to a mineral servitude did not afterwards sell his so-called “reversionary rights,” or “re-versionary interest,” in the mineral rights which he had previously sold.’

“In other words, all that the Court did in Gailey v. McFarlain was to interpret the language of the deed therein involved and 'concluded,

“ ‘It is our opinion that there was no sale- or grant in praesenti of McFarlain’s rever-sionary mineral interest in the Triche deed dated July 20, 1926.’

* ■ . * * * *

“Applying these approved principles to the reservation in the deed from Johnson and Swanson to these defendants, it seems clear to us that Johnson and Swanson did not * *' * reserve their so-called rever-sionary rights to the then outstanding mineral interest. * * *

“It is our opinion that the one-half of the minerals reserved by the Bank in its sale to Johnson and Swanson on March 26, 1936, and the fractional mineral interest sold by Johnson and Swanson in the six mineral deeds executed by them between May 21st and May 25th, 1936, reverted to and revested in defendants at the expiration of 10 years from the dates of said sales. And, since defendants did not sign the Mc-Murrey lease of February 26, 1947, they own such interest free of said lease.

“Thus on February 26, 1947, defendants owned an undivided 278.035/498.21 interest (this fraction is the computation of counsel -for defendants and its correctness is not questioned -by plaintiffs) in the minerals, Mrs. Mason owned an undivided 50/726 interest in the minerals and Johnson-and Swanson owned the undivided remaining interest in the minerals. * * * ”

We might further point out that the trial judge’s conclusion is supported by the recent decision of this court in Long-Bell Petroleum Co., Inc., et al. v. Tritico, 43 So.2d 782, in which this court pointed out that,' in order for one making a reservation of a mineral right thus to create a new servitude, the one making the reservation must of necessity be the, owner of the right' at the time the reservation is made.

There now remains for our consideration the question of whether the •drilling operations of McMurrey were a user of the servitude so that the prescription of 10 years liberandi cause was interrupted as to the servitude created by plaintiffs’ reservation in their deed to the defendants, which prescription accrued on March 29, 1947, unless so interrupted.

On February 26, 1947, an oil,, gas, and mineral lease was executed by Johnson, Swanson, and Mrs. Beulah Johnson Mason to Jim McMurrey. The consideration recited in this lease was $100.00 and the obligation on the part of the lessee to commence actual drilling operations on the property on or before March 28, 1947, for the production of oil and gas.-

After the execution of this lease, the lessee, McMurrey, obtained a permit from the Conservation Department to drill a well on this tract of land to the Nacatosh sand or zone. After the construction of a plank or tram road to the well site, the lessee on or about March IS, 1947, moved to the site a portable drilling rig. Photographs of this rig were filed in evidence, and from these pictures it appears that the power necessary for drilling operations was furnished to this rig by a motor mounted on the rear of a large truck, and that the construction of a derrick was unnecessary.

Actual drilling operations started on March 16, 1947, and continued until March 26. By these operations a well, designated as McMurrey No. 1, was drilled to the Nacatosh sand, which, according tó numerous witnesses, is found at a depth of between 900 and 1000 feet, but no production was obtained in this sand or zone. Thereafter McMurrey’s men began to remove the drilling equipment' from the premises, and by March 28 only the pipe in the hole and 'the plank road which- had been constructed remained on the premises. Since production had not been obtained' in the Nacatosh sand, an application dated March 31, 1947, was made to the Department Af ■Conservation' for ah amended permit' to drill to the Travis Peak zone or sand, and it was subsequently granted. In the last days of March or about the first of April, the lessee, McMurrey, entered into an oral contract with J. D. Baker to deepen the well to the Travis Peak zone, found at approximately 6000 feet in this area-. Baker was in the drilling business and owned drilling equipment, including the necessary derrick to drill to a depth of 9000 or 10,-000 feet, which was only about four or five miles away from this tract. In order to move this heavy rig onto the premises, ■it was necessary -to repair the plank road which had been constructed on the property, and, when McMurrey sent his .men for this purpose to the- premises on_ or about April 4, they discovered that the gateway through which entrance was made onto-the leased premises-was fenced up, with a sign thereon reading: “Gray & Hickey Estate. Stay Out.” This gate had been closed and the sign placed thereon by defendant Hickey on April 2, 1947. McMurrey sent his employees to talk with Hickey about going back on the land, -but they were forbidden to re-enter., Plaintiffs then on April 15, 1947, filed the instant suit.

■,'We cannot agree with the holding of the lower court that the drilling operations of McMurrey to the Nacatosh sand, in themselves alone, constituted a bona, fide attempt to obtain production from that stratum and interrupted the running -of the prescription liberandi causa.

As this court has pointed out, no iron-clad rule can be established to determine whether there has been a use of such a servitude to interrupt prescription. But it may be said that, where exploitation or •drilling operations have been begun but have been stopped or ábandoned at a depth at which there is no reasonable hope-'of discovering minerals in paying quantities, there has been no user of the servitude to interrupt prescription. In other words, the drilling of the well and the exploitation must be in good faith with reasonable expectation that the well will be a producer. Keebler et al. v. Seubert et al., 167 La. 901, 120 So. 591; Louisiana Petroleum Co. v. Broussard et al., 172 La. 613, 135 So. 1; Hunter Co., Inc., v. Ulrich, 200 La. 536, 8 So.2d 531.

The well in the instant case was drilled in the area of the Waskom field, and there were some seven or eight strata which had produced in this area. These strata vary in depth from 900 feet, the Nacatosh sand, to approximately 6000 feet, the Travis Peak. According to defendants’ Exhibit 13, a map revised by the Globe Map Company to show the location and ownership of the various wells surrounding this tract, there were numerous depleted and abandoned wells which had been drilled to the Naca-tosh sand. The record discloses that the last Nacatosh wells were drilled in the area during the early 1930’s and produced for only a short time, and that there were no wells producing from this sand in the vicinity of the McMurrey location. The closest producing well to the property, which produced from the Travis Peak at around 6180 feet, was located approximately two miles south of the McMurrey •location.

McMurrey testified that he had a reasonable expectation of securing commercial .production from the Nacatosh sand, and that1 this expectation was based primarily on a map prepared by a geologist, which indicated a closure or high on the property, and, further, on the fact that there had been three or four wells producing from the Nacatosh sand scattered at a distance of some 15 miles around his location. The geologist who made the map testified that he knew nothing of the development of this area for oil and gas; that he was not •familiar with the history of the Nacatosh production in the area; that he merely superimposed the sub-surface structure on a surface map, which he prepared from the logs of wells drilled in the area. The testimony of this witness, as well as that of another expert called by plaintiffs, as to the probability of obtaining production in the Nacatosh sand is, to say the least, unconvincing. Defendants called numerous oil men with long experience who had worked in the Waskom field for many years. A fair analysis of their testimony convinces us that there was no reasonable possibility of plaintiffs’ obtaining production from the Nacatosh sand, as this sand had long since been depleted. It is thus shown by a preponderance of the evidence that McMurrey himself could not have reasonably expected to obtain production from’ the Nacatosh sand, and that the drilling of the well to this sand only did not interrupt prescription.

In brief filed in this court plaintiffs state that their position, taken in the pleadings, at the trial, and in this court, “has always been not that McMurrey went on the land to drill a Travis Peak test primarily, but his intention was to drill a Nacatosh well, and only if it was non-productive he would go to the Travis Peak horizon, found at approximately 5900 to 6000 feet in this area”, and that, in the event that this court should hold that the drilling of this well to the Nacatosh sand “was not an effective exercise of the servitude, then plaintiffs clearly intended to drill to a deeper horizon and were in the act of doing so when physically restrained by the defendants. They should be permitted to continue the deeper drilling, and the injunction against the defendants should be maintained”. We think that the evidence supports plaintiffs’ position.

The record reveals that, during McMur-rey’s drilling operations, he set 253 feet of 10%-inch casing in the well, and that, if he had intended only to drill to the Naca-tosh sand, one or two joints of eight-inch casing would have been sufficient; that, with the amount of 10%-inch casing set, the well could be reworked to be drilled to the Travis Peak horizon; that at the beginning of the operations he purchased a sufficient amount of pipe and tubing for a Travis Peak test; that, instead of cementing and plugging the well as 'required by the Conservation Department for abandoned wells, he capped the well with a bull plug, which could be unscrewed and removed so that further drilling could be continued; that, only a few days after the removal of the portable drilling rig, he entered into an oral contract with J. D. Baker, a drilling contractor and the owner of a large steam rig capable of drilling to the Travis Peak, to deepen the well to that zone at a cost of $4.85 per foot; that application was made on March 31 to the Conservation Department for a permit to drill to the Travis Peak sand; that on or about April 4 Mc-Murrey sent his men to the premises to repair the plank road so that the heavy drilling rig could be moved to the site, and that they were not permitted to re-enter the premises by the defendants, who had closed and posted the entrance to the well site.

In the light of these facts and circumstances, it is clear that McMurrey never intended to abandon, nor did he abandon, his drilling operations, and that, when he was barred from the premises by the defendants, he was engaged in the preparation to continue deeper drilling. The defendants should therefore be enjoined from interfering with the drilling of the well Mc-Murrey No. 1 to deeper horizons, and plaintiffs should be permitted to continue their efforts to interrupt prescription by these drilling operations. For the purpose of so continuing plaintiffs should be, and are, granted a reasonable time to resume these operations.

Since we have concluded that the drilling of the well only to the Nacatosh sand was not a valid user of the servitude of plaintiffs and did not interrupt prescription, the judgment of the lower court recognizing such use as an interruption of prescription must be reversed.

For the reasons assigned, the judgment of the district court fixing the ownership of the respective mineral interests of all' parties to this suit is affirmed. In all other respects the judgment is reversed and set aside. It is now ordered that plaintiffs be permitted to continue with the drilling of the well McMurrey No. 1, and that defendants 'be enjoined from interfering with such drilling to deeper horizons, plaintiffs to resume such drilling within a reasonable time. It is further ordered that one-half of the costs of these proceedings be paid by plaintiffs and one-half by defendants.

On Application for Rehearing.

PER CURIAM.

In an application for a rehearing, plaintiffs contend, among other things, that we erred in not holding that prescription was interrupted in view of our conclusion that McMurrey did not intend to abandon his drilling operations after he reached the Nacatosh sand and that he would have continued deeper drilling but for defendants’ act in denying him access to the land.

An examination of the record discloses that plaintiffs are not in a position to claim that prescription was interrupted because McMurrey intended to. continue his drilling operations, inasmuch as plaintiffs at no time heretofore claimed that such an interruption was effected. On the contrary, as pointed out in our- opinion, plaintiffs contended that, if the court should hold that the drilling of the well to the Nacatosh sand was not an effective exercise of the servitude but that McMurrey intended to drill to a deeper horizon (Travis Peak), “They should be permitted to continue the deeper drilling, and the injunction against the defendants should be maintained.” This relief was granted.

The application for a rehearing is refused.


author: MOISE, Justice.

text:
    216 La. 923
    CITY OF ALEXANDRIA v. JONES.
    No. 39633.
    Supreme Court of Louisiana.
    Feb. 13, 1950.

      Joe Van Derveer, Chattanooga, Tenn., Stafford & Pitts, Alexandria, for defendant-appellant.
    Frank H. Peterman, City Attorney, Alexandria, for appellee.
   MOISE, Justice.

This appeal has been prosecuted from a judgment of the City Court of Alexandria Ward, Rapides Parish, Louisiana, which found the defendant guilty of violating Penal Ordinance No. 500 of the City of Alexandria, “regulating solicitors, peddlers, hawkers, itinerant merchants or transient vendors of merchandise in the City of Alexandria, Louisiana: declaring it to be a nuisance for those engaging in such pursuits to go in or upon private residences without having been requested or invited to do so : providing penalties for the violation hereof: repealing all ordinances in conflict herewith.”

The prosecution was based upon an agreed statement of facts, which we summarize briefly as follows: Defendant is an employee of Olan Mills, Incorporated of Tennessee, a corporation chartered under the laws of Tennessee and qualified to do and doing business in Louisiana. The business in which it is engaged is the manufacture, processing and finishing of photographs (in Tennessee), for which sales units, to one ■ of which defendant Sam Jones belonged, solicit orders from door to door (in Tennessee and other states.) Defendant Sam Jones called at the doors of three private residences in the City of Alexandria on September 8, 1949,. and solicited orders for photographs in behalf of his employer, without having been invited or requested to do so by the occupants or the owners of the residences. He was arrested and charged with violating Penal Ordinance No. 500. He filed a motion to .quash (which was overruled),, urging that the going in and upon private residences is not a nuisance and is beyond the power of the City of Alexandria to suppress, and that the ordinance violates Section 2, Article 1, of the Constitution of Louisiana and also the Fourteenth Amendment of the Constitution of the United States.

The question presented for our consideration is the power of the City to enact, and the constitutionality of the enactment.

Ah ordinance of the City of Shreveport, the provisions of which are practically identical with the ordinance herein attacked, was held constitutional and valid by this Court in City of Shreveport v. Cunningham, 1938, 190 La. 481, 182 So. 649. That case is the last expression of this Court on the subject of ordinances regulating sales' by peddlers, hawkers, etc.; and we are urged to overrule it. But that case is well-reasoned, and what was said there is applicable to the ordinance presently before us, 190 La. 481, 489ff., 182 So. 649, 651 ff.

“Ordinance No. 50 of 1937 of the City of Shreveport does not pretend ‘to suppress’ peddlers altogether. It does not prohibit a peddler from hawking his goods in the street, or upon a sidewalk in front of private residences. This ordinance only declares to be a nuisance ‘the practice of going in and upon private residences in the City of Shreveport, Louisiana, by solicitors, peddlers, hawkers or itinerant merchants and transient vendors of merchandise, not having been requested or invited so to do by the owner or owners, occupant or occupants of said private residences, for the purpose of soliciting orders for the sale of goods, wares and merchandise, and/or for the purpose of disposing of and/or peddling or hawking the same.’ * * *

“It is true that the State of Louisiana licenses peddlers. * * * But we know of no law in this State that gives to a licensed peddler the right, carte blanche, to enter a private residence for the sale of his goods. Nór do we know of any authority vested in the State of Louisiana to grant to a peddler any such arbitrary or unreasonable privilege under his license regardless of the consent or invitation of the owner or the occupant.

“As n'O' such.legal right exists, the alleged deprivation of such right asserted by defendant, is not obnoxious to the liberty of contract which a peddler or solicitor may claim under either the State Constitution or the Federal Constitution, Const.La.1921, art. 4, § 15; U.S.C.A.Const. art. 1, § 10, cl. I. Besides, liberty of contract must yield necessarily to the legitimate exertion of its police power by the State, and by its municipalities acting under plenary delegation of such power, as in the instant case. * * * ”

The validity of an earlier ordinance of the City of Alexandria, substantially embodying the same provisions as the one before us, in relation to the provisions of the United States Constitution, which were claimed to have been violated, was sustained by the United States District Court for the Western District of Louisiana in the case of Breard v. City of Alexandria, 1947, 69 F.Supp. 722. The main part of that earlier ordinance corresponds to Section 1 of Penal Ordinance No. 500, herein attacked, and reads:

“ ‘Section 1. Be it ordained by the council of the City.of Alexandria, Louisiana, in regular session convened, that the practice of going upon private residences in the City of Alexandria, Louisiana by solicitors, peddlers, hawkers or itinerant merchants and transient vendors of merchandise not having been requested or invited so to do by the owner or owners, occupant or occupants, of said private residences, for the purpose of soliciting orders for the sale of goods, wares ánd merchandise, and/or for the purpose of disposing of any (and) /or peddling or hawking the same, is hereby prohibited and declared to be unlawful.’ (Italics ours.)” 69 F.Supp. at page 723. ■

In concluding that the above ordinance was not discriminatory or arbitrary, and constituted a fair exercise of the police power without infringing or violating any of the rights guaranteed by the United States Constitutibn, the Court said, 69 F. Supp. at page 723ff. :

“The.new law provides for no permit, no bond, no discretion being vested in any one and straight-away prohibits and declares it to. be. unlawful for solicitors/- etc., to go upon private premises, unless they have ‘been requested or invited so to do by the owner.’

“There is no burden on interstate commerce here, because there is no license required, there is no permit necessary, there is no authority arid power left in the discretion of anyone. All solicitors from out of state are treated alike, there is no prohibition of interstate commerce; all the solicitor has to do is to get on a telephone and get an invitation to call at the home.

“The prohibition of the promiscuous entry into private residences is the proper exercise by the city of Alexandria of the police power vested in it by the state of Louisiana.

* * * * * *

“Therefore, the ordinance before us for consideration is not in violation of State law and our supreme court has indicated that it is not a violation of the Federal law.

******

“We conclude that the instant ordinance does not prohibit the plaintiff from engaging in his business, but merely regulates the manner in which he shall conduct that business. This is a right which the state may exercise under its police power, and is not'in violation of Federal law.

* * * * *

“ * * * a municipality may prohibit a certain manner of doing business, if all in the same class are treated alike. There is no absolute prohibition by the instant ordinance of the selling of magazines within the city of Alexandria; only a certain manner of soliciting the sale of magazines is prohibited under the police power.

******

“Barbier v. Connolly, 113 U.S. 27, 5 S. Ct. 357, 359, 28 L.Ed. 923, is an old case— one cited often in the lecture halls of our law schools — and the following language from it appeals to us:

“ ‘The fourteenth amendment, in declaring that no state “shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws,” undoubtedly intended not only that there should be no arbitrary deprivation of life or liberty, or arbitrary spoliation of property, but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should be equally entitled to pursue their happiness, and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to the pursuits of any one, except as applied to the same pursuits by others under like circumstances ; that no greater burdens should be laid upon one than are laid upon others in the same calling and condition; and that in the administration of criminal justice no different or higher punishment should be imposed upon one than such as is prescribed to all for like offenses.

“ ‘But neither the amendment — broad and comprehensive as it is — nor any other amendment, was designed to interfere with the power of the state, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the state, develop its resources, and add to its wealth and prosperity.’ ”

The defendant’s presentation of facts is ingenious, and there is a dramatic fulness of particulars, but the cases discussed come frcim jurisdictions other than our own. The defendant argues that by reason of these cases the doctrine of stare decisis should not be applied. He says: “ ‘There is no virtue in sinning against light or in persisting in palpable error, for nothing is settled until it is settled right.’ ” The rule of stare decisis does admit of exceptions, where the former determination has been evidently contrary to .reason, and “the judge in such a case does not pretend to answer a new rule of law, but rather to vindicate the old from misrepresentation; for, if it.be found that the former decision is manifestly absurd and injurious, it is obviously a bad determination of what the true law is, and thus being bad law, should not be followed.”

A re-examination of Breard v. City of Alexandria and City of Shreveport v. Cunningham confirms our opinion that the principles there in enunciated and the conclusions reached are both legal and proper.

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


author: McCALEB, Justice.

text:
    216 La. 932
    STATE v. ALEXANDER.
    No. 39632.
    Supreme Court of Louisiana.
    Feb. 13, 1950.

      Ponder & Ponder, Amite, for Defendant-Appellant.
    Bolivar- E. Kemp, Jr., Atty. Gen., M. E. Culligan, Asst. Atty. Gen., Joseph A. Sims, District Atty., Hammond, Erlo Durbin, Asst. District Atty., Denham Springs, .for Plaintiff-Appellee.
   McCALEB, Justice.

Appellant was convicted of incest, in that he had sexual relations with one of his daughters, and was sentenced to ten years imprisonment at hard labor in the State Penitentiary. During the course of the proceedings, he allegedly reserved 26 bills of exception upon which he relies for a reversal of his conviction.

An examination of the record discloses that the so-called bills of exception do not conform to the requirements of Articles 499 and 500 of the Code of Criminal Procedure, most of them being so carelessly drawn that they are indefinite, confusing and, in some instances, practically unintelligible. In addition, the trial judge has signally contributed to the condition of the record by failing to append a per curiam to any of the bills and has violated the provisions of Article 504 of the Code of Criminal Procedure by not certifying at the foot of each bill the reason why a per curiam has 'not been furnished. Notwithstanding these deficiencies, we have undertaken an analysis of the respective contentions of' defense counsel and find that, in at least one instance, prejudicial error occurred which necessitates the remanding of the matter for a new trial.

It appears from the record that, while appellant was testifying in his own behalf, he was asked on cross-examination whether he ever tried to have intercourse with Mrs. Skelton, another daughter. Counsel for the defendant objected to the question; his objection was overruled and appellant answered in the negative. In another part of his examination, he was asked whether he did not attack Mrs. Breaux, a stepdaughter, and attempt to have intercourse with her. Counsel for the defense again objected, the judge overruled the objection and appellant denied the charge. Despite the negative answers of appellant, the State thereafter produced Mrs. Skelton and Mrs. Breaux in rebuttal and they were permitted to testify, over defense counsel’s objection, that appellant had regularly indulged in sexual intercourse with Mrs. Breaux during 1929 (almost 20 years prior to the commission of the crime herein charged) and that he attempted to have intercourse with Mrs. Skelton in 1938. ,

Since, as above stated, the reasons for the rulings of the trial judge on the objections of defense counsel to the foregoing evidence are not to be found in- the record, we have ■ no way of • ascertaining why lie thought the evidence was admissible. . Nor does the record show the purpose of the 'State in attempting to elicit from appellant on cross-examination whether he had illicit relationships with other members of his' household (although it seems apparent that the. rebuttal ..evidence of Mrs. -Skelton and Mrs. Breaux was introduced -for the purpose of contradicting appellant). Be this ,as it may, counsel for the State contend in this court that the evidence was admissible for the purpose of showing appellant’s criminal intent and the case of State v. Cupit, 189 La. 509, 179 So. 837 is relied on in support of their position. Under the circumstances, we are compelled to consider whether the evidence should have been received for the limited purpose of showing’ intent.

We think'it clear that the evidence was irrelevant to exhibit criminal intent on the part of appellant., Whereas Article 445 of the Code of Criminal Procedure declares that evidence of similar acts are admissible to show intent, such proof is receivable only in cases where intent forms an essential part of the inquiry. Article 446, Code of Criminal Procedure.

The crime of incest “is the mar-' riage to, or cohabitation with, any ascendant dr descendant, brother or sister, uncle or niece, aunt or nephew, with knowledge of their relationship.” Article 78, Criminal Code. The elements of the offense are the intercourse coupled with knowledge of the relationship. Intent is not an ingredient of the crime. This being so, evidence of the commission of similar but disconnected offenses with other members of appellant’s household would have been inadmissible for the purpose of showing intent had the State offered it for that limited purpose on its case in chief. Therefore, it follows that it was irrelevant when sought to be elicited from appellant on cross-examination and by other impeaching testimony on rebuttal. Articles 494 and 495, Code of Criminal Procedure..

The case of State v. Cupit is plainly distinguishable for,'there, the charge was''assault with intent to commit rape. The evidence of separate.and.disconnected crimes of the same nature was held to be admissible to shpw intent only because intent was an essential ingredient, of the crime charged.

' The; conviction, and sentence are reversed and set aside and the case is remanded to the District Court for a new trial.

PONDEP, J., recused.

      . “499. * * * On the trial of all criminal cases, whenever a hill of exceptions shall be reserved to the ruling on any objection, the court shall at the time and without delay order the clerk or the stenographer to take down the facts upon which the 'objection and the ruling are based, together with the objection, ■ the ruling and the reasons of the ruling, . which statement, objection, ruling and, reasons, so taken down, shall be preserved among the records of the trial, and shall, when signed, by the judge, constitute the bill of exceptions; provided that whenever a bill has been reserved ■ the judge may be coerced by mandamus :to sign the same.” ,
      “500. * * * The bill of exceptions must show the circumstances under which and the evidence upon which the ruling complained of is based; and the accused is without right to have 'taken down any evidence except that, which is necessary as a basis, for his bill;, he can not require that any evidence be taken down that appertains to guilt or innocence.”

      . “504. * * * Whenever necessary the trial judge shah append -- to the ■ bill of exceptions a per curiam in order that the appellate court may be fully informed as to all of the circumstances pertaining ' to the questions raised • by the bill. If the bill of exceptions requires no per curiam comment, the judge shall so certify at the foot of the bill at the time he signs- the same." ‘ ■ ■

      . If the evidence sought to be adduced on cross-examination of a defendant is collateral to the issue, it is incompetent as impeaching' evidence and the answers given by the witness cannot subsequently be contradicted by the party putting the .question. State v. Swindall, 129 La. 760, 56 So. 702; Wharton’s Criminal Evidence, 11th Ed., Vol. 3, Section 1353 and State v. Ward, 166 La. 806, 118 So. 26.


text:
    216 La. 940
    FIELDS v. GENERAL CASUALTY CO. OF AMERICA.
    No. 39235.
    Supreme Court of Louisiana.
    Feb. 13, 1950.

      R. F. Walker, Lemuel C. Parker and Frederick A. Scott, Baton Rouge for plaintiff-applicant.
    Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, for defendant-appellee--respondent.
   McCALEB, Justice.

This is a suit for workmen’s compensation. Plaintiff was employed as a laborer by Mrs. Charles J. Hebert, who operates a retail feed and seed business in the city of Baton Rouge under the name of Dayton Feed and Seed Store. Plaintiff’s duties were to keep the store clean and load sacks of feed on the cars or trucks of customers-of the store. He claims that he suffered a hernia on May 6, 1946, when he picked up a sack of feed to load it on a one-half ton truck; that an unsuccessful operation was performed and that, as a consequence, he- is totally permanently disabled to do work of a reasonable character. He joined, as defendants, his employer and her liability insurance carrier praying for judgment in solido for 400 weeks compensation less a credit of 18 weeks previously paid by defendants.

Defendants deny liability for compensation asserting that Mrs. Hebert is not engaged in a hazardous business, as defined by paragraph 2 of Section 1 of the Employer’s Liability Act, Act No. 20 of 1914, as amended; further that plaintiff did not suffer a hernia in the course of his employment and that, if he did, he is not disabled as a result thereof.

The trial court sustained both of these defenses. Plaintiff appealed to the Court of Appeal, First Circuit, where the judgment was affirmed, 36 So.2d 843, the court being of the opinion that the accident was not compensable because his employer was not engaged in a hazardous occupation. We granted certiorari.

After a full consideration of the case in this court, we are of the opinion that the judgment of the Court of Appeal is correct. A retail seed and feed store is admittedly not a business designated as hazardous under paragraph 2 of Sections 1 of the Employer’s Liability Act wherein various trades and occupations, considered to be dangerous, are specifically enumerated. Accordingly, there can be no liability for compensation unless plaintiff is able to show that there are certain hazardous features of the business, with which he has been brought in contact, or that the business has been previously decláred to-be hazardous, either by agreement or judicially, under paragraph 3 of Section 1 or that, if not hazardous, the parties -have contracted in writing to be governed by the act -as' provided in paragraph 4 of Section 1.

In an effort to bring the business within the purview of the statute, counsel for plaintiff proclaims that it involves the operation of a warehouse (denominated as a hazardous enterprise under paragraph 2(a) of Section 1) because the feed is stored in sacks on the premises and that, since plaintiff had to lift and carry the heavy (maximum 100 lbs.) sacks, he is entitled to compensation.

There is no merit in the contention. The -storing of goods on property for purposes of sale and distribution does not constitute the operation of a warehouse. It is only where a person is engaged in the business of storing goods for profit that he can be classed as a “warehouseman” and the structure in which the goods are stored as a “warehouse”. Act No. S3 of 1920; Caldwell v. George Sproull Co., La.App., 164 So. 651.

The next proposition advanced by counsel is that Mrs. Hebert conducts a hazardous business in -that it entails the lifting and loading of heavy sacks of feed, and that, this being so, liability ensues by operation of paragraph 3 of Section 1 because it was impliedly agreed that the employment was covered by the act. And, pointing to the fact that Mrs-. Hebert had taken out a compensation insurance policy; that plaintiff had been named as one of the employees covered therein and that the wages earned by him were included in calculating the amount of premiums thereon, counsel declare that this evidences an implied agreement between plaintiff and his employer.

On the other hand, counsel for defendants assert that an implied agreement will not suffice; that the agreement must be express and in writing, Benjamin v. Standard Acc. Ins. Co. of Detroit, 152 La. 874, 94 So. 428, and that, in any event, the fact that the employer took out a policy of workmen’s compensation insurance does not authorize a holding that there was an implied agreement between the parties for payment of compensation.

We do not coincide with the view of defense counsel that paragraph 3 of Section 1 of the act makes mandatory a written agreement by the parties that the employer’s business is hazardous. But we think that the agreement must be express in order to be effective. Paragraph 3 of Section 1 declares: “3. If there be or arise any hazardous trade, business or occupation or work other than these herein-above enumerated, it shall come under the provisions of this act. The question of whether or not a trade, business or. occupation not named herein is hazardous may be determined by agreement between the employer and employee or by submission at the instance of either employer or employee to the Judge of the Court which shall have jurisdiction over the employer in a civil case. The decision of the Court shall not be retroactive in its effect.” (Emphasis ours.)

There cannot be any doubt as to the meaning of the foregoing provision. It is set forth that the employer and employee may, by agreement, determine that the business of the employer is hazardous. There is no requirement that the understanding be in writing. That the lawmakers .intended that an oral agreement would be sufficient under paragraph 3 is made quite plain by a consideration of the succeeding paragraph, numbered 4. . That paragraph provides in substance that, even though the employer is engaged in a trade not specified under paragraph 2 or one that has not been determined to be hazardous “under the operation of paragraph 3”,'the employer and employee may, nevertheless, “voluntarily contract in writing to come under the benefit and protection of the provisions of this act * * * This, of course, simply means that an employer not engaged in a hazardous business may contract with his employee that they will be governed by the act. But the agreement, •to be valid, must be in writing. This is the holding of the court in Benjamin v. Standard Acc. Ins. Co. of Detroit, supra. However, if the parties have expressly agreed that the business is hazardous, paragraph 3 is applicable and the agreement will be given effect even though it is not in writing.

But there must be an agreement between the parties. In the instant case, there is none. The fact that the employer took out a policy of compensation insurance for her own protection (and presumably also for her employee) cannot be converted into an agreement by implication. Plaintiff was not a party thereto and was not bound thereby. If he had been injured as a result of the negligence of his employer, no court would refuse him damages, Article 2315, C.C., because his employer saw fit to take out compensation insurance.

Counsel for plaintiff further assert that the defendants are estopped to deny that his injuries are compensable in view of the issuance of the policy of insurance, treatment voluntarily given him by the insurer after the accident and payment of compensation for 18 weeks.

The point is without substance. Paragraph 5 of Section 18 of the statute, as amended by Act No. 85 of 1926, specifically provides that neither the furnishing of medical services nor payments by the employer or his insurance carrier “shall constitute an admission of liability for compensation under this act”. See also Foret v. Paul Zibilich Co., Inc., 18 La.App. 363, 137 So. 366; Franz v. Sun Indemnity Co., La.App., 7 So.2d 636 and Benjamin v. Standard Acc. Ins. Co. of Detroit, supra.

Finally, counsel contend that the business has hazardous features as it involves the loading of sacks of feed upon motor vehicles or trucks of customers oí the store. The theory of this argument is that the customers’ use of motor vehicles to haul away their purchases forms an integral part of Mrs. Hebert’s business because the nature of her sales (heavy sacks of feed) is such that she anticipates the use of motor vehicles in making deliveries and that she employed plaintiff for thfe specific purpose of assisting in this feature of her trade.

This proposition is untenable as it rests on the faulty assumption that the use of motor vehicles by the store’s cus-, tomers is a part of the employer’s business. Mrs. Hebert neither owns nor does she lease or otherwise use motor vehicles in making deliveries; the feed, seed and other commodities sold by her are delivered at the store. As a convenience to her customers, she hired plaintiff to load their purchases on their vehicles.

The judgment of the Court of Appeal is affirmed.

      . It is well settled that it is the nature of the employer’s business and not the particular, work done by the employee which is the determinative factor in suits for compensation. Paragraph 2 of Section 1 of Act No. 20 of 1014; Shipp v. Bordelon, 152 La. 795, 94 So. 399; Kern v. Southport Mill, 174 La. 432, 141 So. 19 and Hogan v. T. J. Moss Tie Co., 210 La. 362, 27 So.2d 131.


author: Le BLANC, Justice.

text:
    216 La. 950
    GEHRKIN v. GEHRKIN.
    No. 39100.
    Supreme Court of Louisiana.
    Feb. 13, 1950.
    Cabral & Courtin, William M. Campbell, Jr., New Orleans, for plaintiff-appellant.

      Lawrence W. Bergeron, New Orleans, for defendant-appellee.
   Le BLANC, Justice.

This is a proceeding instituted by rule by a divorced wife against 'her former husband ordering him to show cause why a judgment for accumulated alimony for maintenance and support of their minor child should not be rendered against him and further, why he should not be fined or imprisoned, or both, for failure to pay alimony in accordance with the judgment.

'It appears from the averments of the motion that judgment was rendered on October 17, 1941, awarding alimony in the sum of $5 per week for the maintenance and support of the minor child, Marjorie Ann Gehrkin, and that the defendant was in arrears 104 weeks, or a total of $520.

No pleadings appear to have been filed by defendant in answer to the rule but on the return day thereof he appeared in court with his counsel and evidently put the rule at issue because testimony was taken in open court and argument had. The district judge took the matter under advisement and later rendered judgment condemning the defendant to pay alimony to the plaintiff “at the rate of seven and 00/100 ($7.00) per week in lieu of five dollars per week.” The judgment makes no mention of. the demand for accumulated alimony but there is a note sighed by the district judge, which is in the record, in which he states that from the testimony of the plaintiff it appears that she did not care to collect back alimony. Further it is therein stated that the court will not go into the right of waiver “at this time.” This, we take to mean, the right of this plaintiff to waive alimony on behalf of the minor child. The judgment having in effect, rejected the demand for back alimony in the sum of $520 — this appeal was taken by the plaintiff.

In Snow v. Snow, 188 La. 660, 177 So. 793, 801, this court, after an exhaustive review of the jurisprudence on the subject, announced its conclusion that the district judge, in that case, “was right in maintaining that he had no authority to release the defendant from his debt for the past-due installments of alimony.” This ruling was affirmed in Williams v. Williams, 211 La. 939, 31 So.2d 170.

As pointed out in Snow v. Snow, whilst Article 232 of the Civil Code provides a method for the discharge from or reduction of alimony when the circumstances of the parties have changed, there is no indication or suggestion in the article “that a judgment for the payment of alimony in the future may be canceled as to alimony which has accumulated since the judgment was rendered, on the defendant’s complaining, after failing to pay the alimony, that he was unable to pay it when it came due.” As was further pointed out, although Act No. 189 of 1898, Dart’s Revised Statutes, § 1733, provides that one who has failed to obey an order or judgment condemning the payment of money shall not be held in contempt of court, if the failure was due to inability to comply with the order or judgment, he was not thereby relieved of the debt itself. The purpose of the statute was to relieve him of the odium of being held in contempt of court for failure to pay, which it is stated, “is a very different thing from releasing him from the debt itself.”

A manner in which the defendant may have become released from the debt here sought to be recognized against him would be by prescription as, under the provisions of Article 3538 of the Revised Civil Code, an action for arrearages of •alimony is prescribed by three years. But there are' two reasons why that article does not apply in this case; first the action was brought within the three year period and, second, the demand to have the judgment for alimony accumulated is made on behalf of a minor and as to that kind of judgment, it was held in Wright v.' Wright, 189 La. 539, 179 So. 866, that even the ten years prescription by which all judgments prescribe under Article 3547 of the Civil Code, does not apply.

It would seem therefore that we are left with only the question of waiver by the plaintiff as to her rights under the judgment, which question, apparently, was raised in the lower court as it is referred to in the note or memorandum signed by the district judge and is the only one that is discussed in brief of counsel for defendant before this court.

Assuming, for purpose of the argument, however, that the law allows a mother to waive an alimony decree by judgment of court in favor of her child, we are of the opinion that the proof in this case fails to establish any such waiver. We understand her testimony to mean that during the time she did not exact payments from her husband, it was because she could take care of her child with what assistance she was getting from the husband she was then married to, and she did not want to press the defendant who had other family obligations to take care of. For this forbearance on her part, it is now claimed that she waived and renounced all alimony the minor’s father should have paid during that time under the judgment rendered against him. This, we do not agree to. The law imposed no duty on. her, as far as we know, to make periodic demands on the defendant in order to keep the judgment she held executory. When in time it became necessary for her to assert her rights under the judgment she did so by instituting this proceeding and nothing could stand as better proof that she never intended to waive any of her rights thereunder.

That part of the judgment which increased the rate of alimony from $5 to $7 per week cannot be disturbed as the defendant did not appeal, nor did he answer the appeal taken by plaintiff.

The judgment appealed from will have to be amended with respect to the demand for accumulated alimony, and accordingly, it is now ordered that the said judgment be amended by condemning the defendant in rule, John R. Gehrkin, to pay plaintiff in rule, Mrs. Margaret Stephens, his divorced wife and now the wife, of Charles P. El-chinger, accumulated alimony in the sum of $520 for the maintenance and support of the minor, Marjorie Ann Gehrkin; and otherwise, that said judgment be affirmed.

All costs to be paid by the defendant, appellee.

MOISE, J., takes no part.