text:
    No. 7320.
    State ex. rel. P. N. Canton vs. Board of Assessors.
    The assessment of certain real estate made in the year 1877 for four years under the statute of that year, and not complained of then, can not he changed thereafter during the four years, except to make proper subtraction for destruction, or proper addition for improvements to the property, made after the assessment.
    j^PPEAL from the Fifth District Court, Parish of Orleans. Rogers, J.

      Chas. E Schmidt and Julien Seghers for plaintiff and appellant.

      Samuel P. Blanc for defendants and appellees.
   The opinion of the court was delivered by

Manning, C. J.

Several pieces of real estate in New Orleans, belonging to Joseph Girod in 1877, were assessed in that year at $23,500.00. No reduction of that assessment was applied for. In June 1878, Canton, the relator, foreclosed a mortgage he held on the property, and purchased it at the sale for $10,700.00. In the following month he applied to the board of assessors for a reduction of the assessments so as to conform to the value as shewn by the price of adjudication. The Board refused, whereupon he demanded that it should appoint an appraiser, to act with another to be appointed by himself, who together should fix the cash value of the property. .This was also refused, and this application for a mandamus has for its purpose to compel the board of assessors to do what he had demanded. The judgment of the lower court sustained the respondent in its refusal.

The question presented is, whether an assessment of real estate, made in 1877 for four years under the statute of that year, not complained of then, can be changed thereafter during the four years, except to make proper subtraction for destruction, pr proper addition for improvements, made after the assessment.

This statute enaets that property shall be assessed once in every four years, but there shall be au annual assessment of personal property, and a revision of the assessment rolls for the purpose of indicating thereon all changes in the ownership of real property, and of deducting therefrom the value of all property lost or destroyed, as well as to add all increased value resulting from new improvements ; and the assessor, in making his revision, shall take note of changes in value produced by the opening or closing of crevasses, or by any fortuitous event which has occurred since the time the first assessment was made. Sess. Acts 1877, p. 137. The rolls thus made shall serve as a basis for all State and eity taxation for the year for which they were made and for three years thereafter, except that annually the assessor shall re-assess movable property, and shall make proper deductions for the destruction of any property and proper additions for improvements. Ibid. p. 155.

Another act was passed in the following year, amendatory of the previous one, (Sess. Acts 1878, p. 231) and the relator bases his right to relief upon the provisions of the two construed together, as well as upon the fact that he was not the owner of the property in 1877, and could not therefore apply for a reduction of the assessment made in that year at the time of the exposure of the rolls. He argues that when the Act of 1878, which took effect at once, declared in its 1st. section that all real estate should be estimated by the Assessor at its cash value, and provided a new mode of obtaining the correction of assessments, and granted the officer acting for the State the right of appeal to the Courts, that Act meant that the Assessors should proceed in 1878 to make new assessments of real estate conformably to its provisions, and should allow the tax-payers and the State relief against over or under valuations in conformity with its provisions. Hence, sec. 90 of the Act of 1877 is to be construed so as to harmonize with sec. 1st. of the Act of 1878.”

The 1st. section of the Act of 1878 is an exact transcript of the 15th. section of the Act of 1877, except that the provision touching personal property and capital is contained in a separate and intercalated sentence. The several provisions for the estimation of real property at its cash value, for a new mode of obtaining the correction of assessments, and for an appeal to the courts, are common to both Acts. The act of 1878 did not originate them. The first sixteen sections of that act are occupied solely with amendments of the law of the previous year, reciting the several sections to be amended numerically, and the 17th. sec., upon which the relator lays great stress, which gives to the assessor the right' of appeal to the courts only accords to the one party the right that had already been granted to the other.

The relator further argues that the 19th. section of the act of 1878 must mean that the assessors were to proceed to make such changes on the roll of 1877 as,he has demanded, and such as the tax-payers might shew themselves entitled to, or its language is unmeaning.

This construction comes of the fault of reading that section by itself, and of interpreting it to suit the necessities of his case.

The first seventeen sections of the Act have already been adverted to. The 18th. section assumes that there are persons and corporations, whose property has not been assessed for years by either city or State, “ because of some irregularity, informality, or omission of the assessors,” and then provides that the City Council shall require the board of assessors to proceed to assess or re-assess such omitted property. On the completion of this assessment of hitherto unassessed property, notice is to be given to the party liable who shall have thirty days to examine and obtain its correction “ in the manner now provided by law by application and arbitration upon these assessments.” Then follows the 19th. section, that the assessors shall immediately after the passage of this Act make such revision and correction of the assessment made in 1877 as may be necessary, and shall transmit this corrected assessment to the proper officers — manifestly referring solely to the assessment of hitherto unassessed property, and to the corrections necessitated by destructions or improvements.

The two Acts harmonize. Construing them together, it is apparent a new assessment of real property was not contemplated for 1878, but that all property hitherto omitted from the rolls should be placed thereon at once, and the same opportunity should be given for correction of its assessment as had been given in the original formation of the rolls, and that deductions for destroyed property and additions for improvements should be made every year.

The time within which assessments may be renewed is wholly within legislative discretion. The practice of making annual assessments of real estate has prevailed so long in thi.s State that many, unaccustomed to any other system, think it a grievance to change it. But in truth such a system is very unusual. Ten years was the duration of such assessments in the old States, and still is in some of them. Unquestionably hardships are produced by a term even of four years. The changes in value may be very great in that time, but that consideration can be addressed only to the discretion of the legislature. Cooley Const. Lim. 513.

It is impossible to make a system of assessment and taxation that shall be practically wholly just. The selection of a particular day in any year as the time for fixing value, or for final closing of the rolls, will often produce injustice. Values may change in less than a year, but necessity requires that a day should be fixed unalterably. The machinery, by which assessments of property for taxation are made, is a cumbrous and many-jointed suit of armour for the protection of the revenue of the body politic. All that legislation can do is to increase its flexibility so that attrition will be diminished as much as possible.

In answer to the prima facie case of the relator for a reduction, as exhibited by the sum for which the property sold, the respondent asserts that the relator loaned $15,000.00 on this property the year before he bought it, and hence the price given by the mortgage creditor at such a sale is not a fair criterion of value. We do not consider the question of value at all. We have dealt alone with the right of a property owner to a reduction of his assessment, before the expiration of the four years for which the assessment was made, in the absence of any destruction of the property or any portion of it. We think the two Acts under review were made expressly to deny such right.

Judgment affirmed.


source: Caselaw Access Project

author: Marr, J. Manning, C. J. Marr, J.

license: Public Domain

text:
    No. 7214.
    Louis Desobry vs. Henry Tête.
    Where a sum of money is received by a factor and commission merchant, under a written stipulation of the factor that he received the money to be invested by him for the owner’s account, the debt thus incurred by the factor is a fiduciary one, and under the United States Bankrupt Act of 1867, is not affected by the factor’s discharge in bankruptcy.
    The balance due by a factor to his client whether liquidated by the promissory note . of the factor, or not, is not, in the hands of a transferree of the client, a fiduciary debt, and therefore is extinguished by the factor’s discharge in bankruptcy.
    ^ PPEAL from the Fifth District Court. Bogers, J.

      Barrow & Pope and Harry L. Edwards for plaintiff and appellee.

      Singleton & Browne and E. W. Huntington for defendant and appellant.
    The opinion of the court on the original hearing was delivered by Marr, J., and on the rehearing by Manning, C. J.
   Marr, J.

In February, 1870, Louis Desobry, who resided in the Parish of Iberville, deposited with Henry Tete, a commission merchant of New Orleans, $22, 000, for which Tete gave him a receipt as follows : “$22,000. Received, New Orleans, February 3d, 1870, from Mr. Louis Desobry, the sum of twenty-two thousand dollars, to be invested for his account, interest on said amount to be paid every six months.”

On the eighteenth February Desobry placed with Téte the additional sum of $3000, of which. $2000 were withdrawn on the sixth February, 1871, leaving balance, $23,000, in the hands of Téte.

Téte was the factor and commission merchant of Dardenne and wife, and on February 10,1872, there was a balance due them of $2000, which Dardenne left with Téte, taking Téte’s note for the amount, at one year, to his order. On the eleventh August, 1873, Dardenne and wife transferred this note to plaintiff.

Téte was also the commission merchant of Edward Desobry; and, on the twenty-fourth January, 1873, there was a balance in his favor of $1068 48. On the fourteenth August, 1873, Edward Desobry transferred this account to plaintiff.

Tete suspended about January, 1873. On the twenty-sixth July he was adjudicated a bankrupt, on his own petition; and, in due course, he was finally discharged.

In November, 1873, this suit was brought by Louis Desobry to recover the aggregate of the several claims just mentioned, amounting to $26,065 48. Téte pleaded and relied solely upon his discharge in bankruptcy. The District Judge, on the authority of the decision in Banning vs. Blakely, 27 A. 257, that commission merchants when exercising their functions as such are acting in a fiduciary capacity, and are not relieved from their obligations, contracted in that capacity, by a discharge in bankruptcy, rendered judgment in favor of plaintiff for the full amount demanded. The question is was this a correct interpretation of section 33 of the Bankrupt Act, which is as follows:

“No debt created by the fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in any fiduciary character, shall be discharged under this act.”

The allegation of the petition with respect to the d.ebt represented by the note of February 10, 1872, is:. “ That said sum of $2000 remained a trust fund in the hands of Tete; and he is bound to account for the same as such.”

Tete says, after selling the crop, there remained a balance to the credit of Dardenne of something over $2000 ; that Dardenne took the excess and asked Téte to give his note for the $2000; and that he Téte, did not propose this mode of settlement.

Dardenne being asked why the note was given, why he took the note, answered: “ I stated to Mr. Téte that I did not wish any amount to show, or any balance to show upon his books to my credit: That I was afraid my creditors would garnishee it in his hands, therefore I wished-to protect myself as a precautionary measure on my part. I said the money shall remain here, and to show that the money is here I will take your note for the sum ; and he gave me his simple note without interest. I told him I did not want it to show on the books ; and that still left the money in his hands.” He also states that while he held this note he drew sight drafts on Tete which were paid.

Whatever the relations between Dardenne and Téte may have been originally, their relation with respect to the $2000 after the giving of the note, February 10, 1872, was simply that of debtor and creditor; and that relation did not result from any suggestion on the part of Téte, but from Dardenne’s dishonest purpose to secure the money against the pursuit of his creditors, according to his own testimony. His statement indicates that he used part of the money, at least, for plantation purposes, by sight drafts on Téte. This part of the demand of plaintiff deserves no further notice or comment; and it may be eliminated at once.

The allegation of the petition with respect to the account transferred by Edward Desobry to Louis Desobry is that the balance shown by that account “ is a trust fund in his (Téte’s) hands.”.

This account begins January 17,1872, with a balance of $2583 60, in favor of Desobry, from the last account rendered. Desobry shipped his crops to Téte, which Tete sold for his account, and carried proceeds to his credit, the whole amounting to $8266 20. He ordered goods and supplies, which Téte bought and shipped to him, from time to time during the year; and he drew sight drafts on Téte as his convenience required, amounting to $7200 72, to his debit, leaving balance due him at the close of the account, January 24,1873, $1065 48.

In Chapman vs. Forsyth, 2 Howard 208, suit was brought in the Circuit Court of the United States, to recover the proceeds of 150 bales of cotton, shipped to and sold by Forsyth, a factor and commission merchant, for account of the owner. Forsyth pleaded his discharge under the Bankrupt Act of 1841; and plaintiff demurred. The judges were divided in opinion; and one of the questions certified to the Supreme Court of the United States was:

“Is a commission merchant and factor, who sells for others, indebted in a fiduciary capacity, within the act. provided he withholds the money received for property sold by him, and which property was sold on account of the owner, and the money received on the owner’s account ?”

The first section of the bankrupt act under which this question arose excluded from the operation of the discharge “ debts created in consequence of a defalcation as a public officer, or as executor, administrator, guardian, or trustee, or while acting in any other fiduciary capacity.”

The court decided, without dissent, after full argument, that the factor was not acting in a fiduciary capacity, within the meaning of the act, in the case stated.

It is obvious that the words used in section 33, of the act of 1867, “ While acting in any fiduciary character,” mean nothing more, nothing less, than the corresponding words in the first section of the act of 1841, “ while acting in any other fiduciary capacity.” The words “ character ” and capacity,” as used, are synonymous ; and the other slight difference in the phraseology is the necessary consequence of the omission, in the act of 1867, of the words, “ executor, administrator, guardian, or trustee,” used in the act of 1841. As these several fiduciaries are specially'mentioned in the act of 1841, it was necessary, in order that all fiduciaries should be included, to use the word “ other ” between the words “any” and “fiduciary;” but as the act of 1867 does not designate any fiduciaries specially, it was necessary, to suppress the word “ other” and to use only the word “any,” in order to include all fiduciaries, as the intention of both acts was.

In Owsley vs. Cobin, Nat. Bankrupt Register, 15, p. 489, the plaintiff shipped to defendants certain goods for sale on commission, which defendants sold; and they rendered account sales, showing net proceeds, which they failed to pay. The question was whether this was a debt contracted in a fiduciary capacity, within the intendment of section 33 of the act of 1867. The case was tried in the Circuit Court of the United States in South Carolina, in June, 1877, before the Circuit Judge and the District Judge. Under instructions by the court the jury found a verdict for the defendants. There was a motion for new trial, which was heard by Chief Justice Waite. His opinion was “that the debt due by the defendants in this case, as factors or commission merchants, is not such a debt, contracted in a fiduciary capacity, as is contemplated by the act of Congress to be excepted from the operation of a discharge, in bankruptcy.” And the new trial was refused. It will be observed that these two cases differ essentially from the case under consideration. It does not appear in Forsyth’s case, nor in Cobin’s case, that there was any account current between the factors and the owners of the goods; and the relation between them, on the facts stated, was apparently that of principal and agent, purely and simply.

In the present case the account sued on begins with a balance, showing previous dealing. It was an account current running through an entire year. Every one doing business with a factor and leaving balances in his hands, against which he draws at sight, at his pleasure, understands that the factor does not keep the money in his safe or about his person ; and that, in the nature of things, he could not open a separate bank account, or make special deposits, for each one of the numerous persons whose property he has received and sold on commission. By common consent, and necessarily, in all such cases, the money received by the factor is deposited in bank to the credit of-the factor; and when the owner demands his, in whole or in part, by draft or otherwise, the factor draws his own check, against his own bank account, for the amount.

In many cases the relation between the factor and those whose property he receives and sells on commission would seem to be merely that of principal and agent. But where the one is receiving and selling, from time to time, and the other draws at his convenience, and there are numerous debits and credits in account current, resulting in a balance in favor of the one or the other, the relation between them -is no longer merely that of agency. So well is this understood, that factors, in such cases, in the absence of an agreement to the contrary, usu.ally keep an interest account, which a mere agent would not think of doing. By the consent of both parties, by their course of dealing, the relation is that of debtor and creditor ; and the balance with which the account may close, against the factor, is not a debt created by him while acting in a fiduciary character, within the meaning and intendment of the bankrupt act of 1867. We accept the decision of the Supreme Court of the United States in Forsyth’s case, and that of Chief Justice Waite in Cobin’s case, as authoritative interpretations of statutes of the United States; and we can not assent to the contrary doctrine, maintained by our predecessors in Banning vs. Bleakly, 27 A.

It is not charged in the petition that any part of the demand of plaintiff is “ a debt created by the fraud or embezzlement of the bankrupt ; ” nor are the words “ fiduciary character ” or “ fiduciary capacity ” used in the petition. With respect to the balance of account sued for, as in reference to the Dardenne note, the distinct and only charge implying a fiduciary relation is that the amount is a trust fund in the hands of Tete. We do not find the words “trust fund” in section 33 of the bankrupt act; and we can not conceive of any such thing as a trust fund, in any legal acceptation of the term, except such fund as may be in the hands of some public officer, or of an executor, or an administrator, or a guardian, or a trustee, technically so called, and held for the special purposes designated by law, or resulting from the nature of the appointment. We presume that the words are used in the petition to express the idea that these two debts were created by Téte while acting in a fiduciary character. It is clear from the decisions in the cases of Forsyth and Cobin, and in Buckner’s case, 2 A. 1023, that they are not trust funds; and that they are not debts created in a fiduciary capacity.

As to the money placed by Desobry with Téte for investment, the allegations of the petition are, that Desobry instructed Téte so to invest as that the interest should be collectible every six months * * “That from time to time Téte rendered to petitioner accounts showing the collection of said interest, and petitioner believed he had said funds invested in good securities. But lately, to wit, about the eighteenth January, or shortly afterward, said Téte represented to petitioner that he had never performed the trust confided to him, but had, in violation thereof, unknown to petitioner, retained said funds in his own possession.”

The receipt given by Tete is silent as to the manner in which the money was to be invested, and as to the rate of interest. Téte was doing a very large commission business. His credit was very good, and he was reputed to be worth $200,000; and, upon the mere showing of the receipt itself, if he retained Desobry’s money, believing, as no doubt he and Desobry both believed at the time, that it was safe in his hands, his use of it in his business would not have involved either actual fraud or moral turpitude, or intentional wrong.

In Neal vs. Clark, 5 Otto, 704, on error to the Supreme Court of Appeals of Virginia, that court had decided that a bankrupt not chargeable with actual fraud, but who had committed constructive fraud under the State law, was not entitled to the benefits of his discharge in bankruptcy. The Supreme Court of the United States reversed the decision of the Virginia court; and held that the “fraud” referred to in section 33 of the act of 1867 “ means positive fraud, or fraud in fact, involving moral turpitude or intentional wrong ; and not implied fraud, or fraud in law, which may exist without the imputation of bad faith.” The constructive fraud committed by the Bankrupt is not within the meaning of the act; and “ his discharge in bankruptcy affords him complete protection.” P. 709.

It is not charged in the petition, in distinct terms, that there was fraud or embezzlement on the part of Tete. These are grave charges. Either, if proven, would suffice to deprive the bankrupt of the benefits of his discharge; and one of them is a crime, punishable, under the State law, by imprisonment in the penitentiary. They must be set forth and charged in distinct terms before they can be the subject of judicial inquiry: and they are not to be deduced, inferentially, from statements in the pleadings which may be susceptible of a different interpretation. There is nothing in the allegations of the petition from which it can be-inferred that Téte intended, at the time he used Desobry’s money, to deprive Desobry either of the principal or the interest; or that he did not intend to account faithfully for the interest, at the end of every six months, and to return the principal whenever it should be demanded.

The proof shows that Téte rendered accounts to Desobry every six months ; and Desobry admits that they were received by him from time to time. These accounts include dealings to a large amount; and each of them closes with a balance in favor of Desobry. The form of the entry of the semi-annual interest is the same in all these accounts ; and that in the first account will serve as an example: “By six months interest on $22,000, from February 5,1870, to August 5,1870, at ten per cent, $1100. By six months interest on $3000, from February 18,1870, to August 18,1870, at ten per cent, $150.”

There was nothing in these accounts to mislead Desobry, or to indicate that the money had been invested in securities of any kind; and there was no charge, in any of them, for commissions for investing, or for collecting the interest. No one would suppose that a merchant, doing only a factorage and commission business, could afford to look around and find safe securities in which to invest so large an amount, at so high a rate of interest, payable every six months, without some pecuniary compensation; and if any conclusion, as to the manner of the investment, could be deduced from the accounts, it would be that Téte had invested the money in his own business, and charged himself with the interest; and not that he had, gratuitously, made investments on such favorable terms in good securities, and collected and accounted for the interest so promptly for nearly three years, without the loss of a day to Desobry, as a mere matter of friendly agency.

Desobry says he never authorized Tete to retain the money himself, either verbally or in writing. “ There were no directions given Mr. Téte in what he should invest my funds; but it was understood these funds would be invested in commercial and mortgage paper which should be doubly and triply secured. This was so understood in the conversation at his office, at which no one but he and myself were present.”

Mr. Desobry must have known that those who are able to furnish such securities as he describes can always obtain money, on much better terms than he required, from banks and other corporations, and individual capitalists.

Téte’s explanation of this business is: “After giving the receipt to Mr. Desobry he stated that he would rather have a fixed rate of interest for his money, of ten per cent, payable every six-months. I told him it would be a hard case if I had to invest the money outside, as frequently the money would be idle, and would have to remain in our hands for fifteen to twenty days at a time, without interest. He said he would rather have the money remain with me, at a fixed rate of interest of ten per cent per annum; and with this understanding I took the money.” To the other question : “ Did you give him credit accordingly on your books?” Tete answered: “Yes, that account was never charged with any investment made on his account.”

Again, Tete was asked whether it was true, as alleged in the petition, that it was only about the eighteenth January that he, Tete, represented to Desobry that he had never performed the trust, etc. He answered that it was not true. ■ After stating that plaintiff knew that he used the money in his business, Tete was asked how he knew that fact. He answered: “ Because, the next day after I gave him the receipt for the money to be invested, Mr. Desobry called upon me, at my office, and requested me to use the money in my business, at a fixed rate of interest, at ten per cent per annum, and payable every six months.”

This testimony was objected to, and the objection was maintained, on the ground that it tended to contradict or vary the written contract expressed in the receipt; that the receipt created a perfect contract to invest the money for account of plaintiff; and that this testimony tended to prove a second and different agreement, to make a loan and not to invest.

We think the objection was not well taken. The receipt simply shows that the money was to be invested, for account of Desobry, so as to have the interest paid every six months. The testimony did hot tend to vary or contradict the receipt in any respect. “ Invest ” does not necessarily indicate the purchase of property, or stocks, or a loan on negotiable securities. It implies the outlay of money, in some permanent form, so as to yield an income; and the use of the money by Téte, at the required rate of interest, payable every six months, was an investment, in. every sense of the term, not different from that expressed in the receipt.

Besides, plaintiff had attempted to prove, dehors, and beyond the receipt, that the understanding was that the investment was to be in good commercial and mortgage paper; and such proof was essential to his case. The testimony of Téte was clearly admissible to prove that this was not the understanding.

It was also admissible to disprove the allegation of the petition that Téte, in violation of the trust confided in him, “ unknown to petitioner,” had retained the money in his possession.

If we should balance the testimony of Desobry by that of Tete, the allegations of the petition would simply be not proven. The testimony of Desobry, as to the manner in which the investment was to be made, is not supported by any proof in the record; and his statement that it was to be doubly and triply secured, by commercial and mortgage paper, presupposes a stringency in the money market, and a superfluity of good securities, which do not usually co-exist, and which, in the nature of things, could be but temporary.

The testimony of Téte is strongly corroborated by the entire history of this business. From February, 1870, up to January, 1873, when Tete suspended, no inquiry was made by Desobry, no question asked as to how his money had been invested. He had the receipt in his possession, and knew that it contained no limitation of Téte’s discretion as to the manner of investment, except as to the payment of the interest, the rate of which it did not fix. Téte’s clerks prove the manner in which the accounts with Desobry were kept, from the beginning, and the frequent rendering of accounts to Desobry. The large dealings between Téte and Desobry, and his son, Edward Desobry, and his son-in-law, Dardenne, running through several years : the credit which Téte enjoyed, and his reputed wealth, make it more than probable that Desobry would have preferred to leave his money in the hands of Téte, at a fixed rate of interest, rather than to rely on the uncertainty of finding equally safe investments otherwise, on the required terms.

The debt to plaintiff was not created while Téte was acting in a fiduciary character, within the intendment and meaning of section 33 of the bankrupt act, as interpreted by the Supreme Court of the United States, and the Circuit Court, in the cases cited : There is no proof of actual fraud, or of intentional wrong, or of moral turpitude on the part of Tete ; and there is nothing in the record to take the debt sued for out of the operation of the discharge in bankruptcy.

The judgment appealed from is therefore annulled, avoided, and reversed ; and it is now ordered, adjudged, and decreed that the demand of the plaintiff, appellee, Louis Desobry, be rejected, and his suit and petition be dismissed; and that he pay the costs in this court and in the District Court.

Mr. Justice DeBlanc does not concur in this opinion and decree.

Mr. Justice White dissents and reserves his right to hereafter file his reasons.

On Rehearing.

Manning, C. J.

The bankrupt Act of 1841 forbade the discharge of a debtor from debts “created in consequence of a defalcation as a public officer, or as executor, administrator, guardian, or trustee, or while acting in any other fiduciary capacity.”

The bankrupt Act of 1867 provided that “ no debt created by the fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or while in any fiduciary character, shall be discharged.”

The Supreme Court of the United States held that a factor was not within the exceptions of the Act of 1841, not being included in the general designation ‘other fiduciary capacity’ — ruling that those words must mean the same class of trusts as those specifically mentioned, all •of which were special and not implied trusts. Chapman v. Eorsyth, 2 How. 202. There has been no decision of that court upon this portion of the corresponding clause of the Act of 1867, the case of Neal v. Clark, 5 Otto, 704, dealing alone with that part of the clause which relates to ‘fraud,’ and settling only that constructive fraud is not within the meaning of that Act.

Meanwhile the State courts have differed as to whether the changed phraseology of the last Act imparts to it a different meaning from the first.

The Massachusetts court hold that the phrase ‘fiduciary character’ does not include the obligation of a debtor, to whom accepted bills of exchange were delivered by their owner with directions to collect them and apply so much of their proceeds as was necessary to the payment of debts owing by the owner to the estate of a deceased person, of whom the debtor was administratrix — saying that the phrase implies a fiduciary relation existing previous to or independent of the particular transaction from which the debt arises, and that in that case the debt •arose out of a single transaction and its creation involved no element other than that of contract. The'court there apply the ruling in Chapman v. Forsyth for the reason that the language of the two bankrupt Acts is “substantially the same.” Cronan v. Cotting, 104 Mass. 245.

The Missouri court say the language of the Act of 1867 seems to have been made broader intentionally, and that a factor stands in a fiduciary relation to his principal in respect to the proceeds of goods sold, and his debt thus incurred is not discharged under that Act. Lanecke v. Booth, 47 Mo. 387. Similar decisions have been made by •other courts which were elaborately set forth in Banning vs. Bleakely 27 Annual, 257, in which case the same doctrine was maintained, and was reiterated in Brown v. Garrard, 28 Annual, 870.

The U. S. Circuit Court, sitting at New York, had the-question squarely presented, and Nelson J. said the provision in the Act of 1867 was much broader than in the Act of 1841, and therefore the case of Chapman v. Forsyth did not control the construction of the later Act. In re Kimball, 6 Blatchf. 292. On the other hand, in the U. S. Circuit Court, sitting at Charleston, Waite C. J. ruled that the debt due by the defendant in that case as a factor or commission merchant is not such a debt, contracted in a fiduciary capacity, as is contemplated by the Act of Congress to be exempted from the operation of a discharge in bankruptcy. Owsley v. Cobin, 15 Nat. Bankr. Register, 489.

Whatever may be the grounds of these conflicting decisions in the State courts and the U. S.'Circuit Courts, — whether based upon the idea that the language of the Act of 1867 is more comprehensive than that of 1841, or that the relation of a factor to his principal, quoad the proceeds of goods sold, is essentially fiduciary in its character — the legislation of this State has attached the quality of a trust to that relation, has conferred upon it the responsibilities ensuing therefrom, and has affixed criminal penalties to its violation. Rev. Stats, sec. 905.

The words ‘ while acting in any fiduciary character,’ employed in the Act of 1867, will be construed in each State with reference to its own legislation, and the present contrariety of opinion will doubtless continue until a decision of the U. S. Supreme Court shall have definitively settled their interpretation. The legislation of this State has stamped the relation of the factor with his principal with the character of a fiduciary, and the consequences of that relation having been formally adjudicated in Banning v. Bleakley, we shall adhere to that ruling and apply it to the present case.

Upon the matters of fact tending to shew what relation existed between Tete and Desobry, we are satisfied that it Was fiduciary in its character as'to the sum of $22,000 for which the receipt of Feb. 3,1873 was given, and as to the sum of $1,000, balance of account on Feb. 18,1873. If the testimony, offered to shew a parol agreement, varying the written receipt, be admissible, .the most that can be said of it is that it is contradictory, and does not conclusively establish the change of the contract. If it be inadmissible, the receipt speaks for itself, and the accounts rendered Desobry by Tete from time to time are in conformity with the stipulation in the receipt that the money was “ to be invested for Desobry’s account.” In these accounts Desobry was credited with the revenues derived from the investment, as if they were collected from third parties.

But Tete did not hold the relation of fiduciary to Desobry as to the Dardenne note for $2000, nor as to the balance of account with Edward Desobry, both of which were acquired by Louis Desobry by transfer. The judgment of the lower court was error as to these two items. Therefore

It is ordered and adjudged that our former decree is set aside and annulled, and that the judgment of the lower court is reversed as to the two items of $2,000 and $1,065.48, and is affirmed for the sum of twenty-three thousand dollars with five per centum per annum interest from February 18,1873 and the costs of the lower court — the costs of this appeal to be paid by the plaintiff and appellee.

On Rehearing. Dissenting Opinion.

Marr, J.

I can not concur in the opinion and decree pronounced on the rehearing in this case; and I adhere to the views expressed in the original opinion.

If it be conceded that the pleadings are sufficient to raise that issue, the single question would be, “ was the debt created while Tete was acting in any fiduciary character, within the meaning and intendment of the bankrupt act? and I do not think that the law of Louisiana, Revised Statutes of 1870, section 905, has any bearing on this question.

This section is but the re-enáctment of section 81 of the act of 1855, p. 142, which was the re-enactment of section 1 of the act of 1845, p. 46. The single object of this statute was to punish the crime of embezzlement; and the penalty is imprisonment in the penitentiary, at hard labor, for not less than one year and not more than seven years. This penalty is imposed upon “ any servant, clerk, broker, agent, consignee, trustee, attorney, mandatary, depositary, common carrier, bailee, curator, testamentary executor, administrator, tutor, or any person holding any office or trust under the executive or judicial authority of this State, or in the service of any public or private corporation or company, who shall wrongfully use, dispose of, conceal, or otherwise embezzle any money, bill, * * * or any other property which he shall have received for another, or for his employer, * * * or by virtue of his office, trust, or employment, or which shall have been intrusted to his care, keeping, or possession by another,” etc.

These terms are broad enough to include all persons who can commit the crime of embezzlement; but the statute"does not use the word “fiduciary;” nor does it attempt to declare what shall constitute a “fiduciary character.” The essential difference between larceny and embezzlement is, that the possession of the thing stolen was wrongful ab initio while embezzlement can only be committed by one whose possession was, originally, lawful. In neither case can the crime be committed without the intent to deprive the owner of his property.

The fact that Tete accounted to Desobry semi-annually, for the interest agreed upon, ten per cent, for nearly three years, and the additional fact that in none of the accounts rendered by Tete was there any charge by way of commission or otherwise, for investing the capital, or for collecting and accounting for the interest, prove conclusively to my mind, the absence of any such intent; and these facts would have necessitated the acquittal of Tete, if he had been prosecuted for embezzlement.

No one can be deprived of a right, in consequence of crime, without first having had an opportunity to defend himself against the charge that he committed that crime. When the creditor pretends that the discharge in bankruptcy does not apply to the debt which he demands, because it was created by the crime of embezzlement, the burden is on him to prove the commission of that crime. Even fraud, not punishable as a crime, can not be proven without being distinctly charged ; and it would be strange, indeed, if any crime could be inquired into collaterally, in a court exclusively of civil jurisdiction, where that crime is not plainly and unequivocally charged in the pleadings.- 1 incline to the opinion that, where the creditor attempts to hold.the bankrupt liable, notwithstanding his discharge, on the ground that the debt was created by embezzlement, he is bound to produce the record of conviction of that crime.

The final decree in this- case is not based upon the assumption that Tete was actually guilty of the crime of embezzlement, because, every one is presumed to be innocent of crime until his guilt has been proven : because he was not even prosecuted for, much less convicted of this crime; and because he was not charged with it in the pleadings. The opinion proceeds upon the theory that the statute referred to raises to the dignity of a “fiduciary character” each one of the persons punishable for embezzlement; and that this crime can be committed only by one who is acting in a “ fiduciary character.”

It is certainly true that embezzlement can not be committed by any other than one in whom a certain degree of confidence has been reposed; but the question still remains, “Can the crime of embezzlement be committed only by one who is acting in a fiduciary character, within the meaning and contemplation of the bankrupt act?” In the strongest view of the ease against Tete, he was merely the gratuitous agent of Desobry, to invest the money intrusted to him for that purpose. So far as the statute is concerned his liability in this relation is no greater than that of a factor, or of any other of the persons designated, all of whom are placed in the same category with respect to the crime against which it is leveled. If the “fiduciary character” is to be deduced from the fact that Téte occupied toward Desobry one of the relations mentioned in the statute, it would logically follow, as our predecessors decided in Banning vs. Bleakeley, 27 A. 257, that he was acting in a “ fiduciary character, ” with respect to Edward Desobry, whose crops he received and sold as consignee and factor.

I can not accept the decision in Banning vs. Bleakeley as an authoritative interpretation of section 33 of the bankrupt act, because, in my opinion, it is directly in conflict with the jurisprudence of the Supreme and Circuit Courts of the United States as established by the cases cited in the original opinion. There is nothing in the statute of Louisiana applicable to a factor, or other agent or attorney, which is not equally applicable to menial servants ; and the menial servant, with respect to the petty sums intrusted to him for daily domestic purposes, occupies, with respect to his employer, the same relation, differing only in degree and importance, as the clerk, or broker, or attorney, or factor, or other agent. If these persons while performing the functions of their engagements are acting in a “fiduciary character” simply because the statute makes them amenable to a criminal prosecution for embezzlement, the menial servant occupies the same relation, for the same reason, while performing the functions of his employment.

The mere reading of section 33 of the bankrupt act shows that the Congress meant and intended that the crime of embezzlement might be committed by one who was not acting in any fiduciary character, within the purview of that section: that there might be a defalcation of a public officer which would not constitute the crime of embezzlement; and that a. debt might be created by one while acting in a fiduciary character which would neither be the consequence of the crime of embezzlement nor of a defalcation by a public officer. I can not undertake to say precisely what the Congress meant by the words “ any fiduciary character,” nor how that character is to be created ; but it seems clear to me that the courts of the United .States, in the several cases cited in the original opinion, maintain the doctrine that the fiduciary character contemplated is not the relation which the law of any State may imply from the contract out of which the debt or pecuniary obligation arises. The Constitution has conferred upon Congress no power to establish any other than uniform laws on the subject of bankruptcies, throughout the United States ; and uniformity requires that the discharge shall be operative alike, to the same extent, in each and all of the States. In one State certain debts and obligations may be treated as fiduciary, which in some other State might not be so regarded ; and if reference is to be had to the local laws and jurisprudence of any State, in order to ascertain what is a fiduciary character, in the intendment of the bankrupt act, it might well happen that the discharge would be an effectual bar in one State while in another State it would not relieve the bankrupt.

In my opinion .the testimony of Tete was admissible ; and, taken in connection with all the facts and circumstances of the case, it satisfies me, as a matter of fact, that the relation between him and Desobry was, with the knowledge and by the consent of Desobry, that of debtor and creditor: that the debt was not created by fraud or embezzlement on the part of Tete, nor while he was acting in any fiduciary character, within the scope and meaning of the bankrupt act'; and that it is not excluded from the operation and effect of the discharge,

The concurrence of all the other members of the Court in the opinion and decreo pronounced on the rehearing, has made it necessary for me to state the grounds of my dissent. The questions involved are of very great importance; and they are so presented in this case that they may be reviewed and finally settled, as I trust they will be, by the arbiter in the last resort, the Supreme Court of the United States.


author: White, J.

text:
    No. 7576.
    State ex rel. Frank Morey vs. the Judge of the Fifth District Court.
    Whore a petition is filed praying, for certain alleged reasons, the forfeiture of the charter of a banking corporation, an order of court, which does not decree the forfeiture, but which merely appoints commissioners to take charge of the assets of the corporation, can not be construed as directing the liauidation of the affairs of the corporation.
    An order of court rendered in chambers can not operate to forfeit the charter of a • corporation when tho issue of forfeiture, vel non, was put in question by tho answer
    .A stockholder of a corporation has an interest to prevent the sale of the corporate property by persons having no legal power or mandate to soil.
    An interlocutory decree ordering a sale of corporate property to be made by persons without legal power to sell, may inflict irreparable injury on a stockholder of the corporation, and hence may be susponsively appealed from by him.
    The fact that a corporator might seek recourse on tho bond of the seeming liquidators of the corporation, on account of tho sale of corporate property by them, demonstrates his right of appeal from a decree of court ordering the sale.
    REPLICATION for writs of mandamus and prohibition.

      Joseph P. Hornor and Francis TV. Baker for relator.

      TV. S. Benedict for respondent.
   The opinion of the court was delivered by

White, J.

The relator seeks by mandamus and prohibition to-compel the granting of a suspensive appeal'from an order directing the sale at public auction of certain real estate and movables, the property of the Citizens’ Savings Bank. The proceedings disclosed by the record are as follows : On October 2,1879, E. V. Hitch filed a petition alleging that the aforementioned corporation had by various acts, which were specifically enumerated, violated its charter, and prayed for judgment decreeing the forfeiture of defendant’s charter and for an inventory and the appointment of liquidators. On the same day, an answer was filed in the name of the defendant, denying that the charter bad been violated, but admitting the facts alleged, and concluding by submitting the case to the judgment of the court. Thereupon, on the same day, the following order was rendered :

“ The foregoing petition, with the answer and the evidence therewith submitted, being duly considered, and being of opinion it is necessary an officer of the court do take charge of the property.and assets of the Citizens’ Savings Bank:
“ It is ordered that E. Y. Hitch and P. H. Legendre be and they are hereby appointed commissioners of said bank on their taking oath and giving bond, each in the sum of fifteen thousand dollars conditioned according to law. It is further ordered that Octave Morel, notary public, do take an inventory of the assets of said bank, and that George Palfrey and E. A. Luminais be appointed appraisers to value the same; and let all proceedings against said bank or its property be stayed.”

Yarious other proceedings were had, not pertinent to the present inquiry, and, on the 10th of October, the commissioners applied for authority to sell certain real estate and movable property, which was allowed. The relator, alleging and swearing that he was a large stockholder, having an interest exceeding five hundred dollars, and that the order to sell would illegally entail irreparable injury on him, asked a suspensive appeal; which being refused, aid of this jurisdiction was invoked.

In answer to the-alternative writs; the court a qua says the appeal was refused for, in substance, the following reasons :

1. Because the corporation having been previously placed in liquidation by the appointment of liquidators, the order of sale was simply an act of administration, and, therefore, not susoeptible of being.suspensively appealed from.

2. Because the relator, being a stockholder, was really a defendant, and could not by way of appeal frustrate or delay a previously ordered liquidation.

3. Because the order of sale was not a final judgment, and not an interlocutory one from which irreparable injury could result.

4. Because if any injury could result from the order of sale, the recourse of the relator was on the bond of the liquidators.

In considering the sufficiency of the return the inquiry is twofold: the first, as to the order of sale being not susceptible of a suspensive appeal in consequence of its having been rendered as an auxiliary or supplement to a previous decree of forfeiture and consequent liquidation ; the second, because of its interlocutory nature and the legal impossibility of irreparable injury flowing from it. We niust, as a matter of course, upon the first branch of the investigation examine the proceedings which are referred to by the answer, for the purpose, not of reviewing them, but of determining their nature as affecting the order from which the appeal was prayed and refused.

So doing, we conclude, as a matter of fact, that no such order as one directing the liquidation of the affairs of the corporation was ever rendered. Two commissioners were appointed by the court to take charge of the property and assets of the Citizens’ Savings Bank. But these commissioners in the nature of things must have been intended, and in legal contemplation can only be considered, as custodians or quasi judicial sequestrators. R. S. 294. The forfeiture of the charter was a legal prerequisite to its liquidation, and no such decree seems to have been rendered. The order appointing the commissioners was rendered on the same day the petition was filed ; it was not in terms a decree of forfeiture, and it could not have legally so operated, as it was rendered in chambers and out of term, when the issue of forfeiture vel non was put in question by the answer. Bank vs. Dawson, 13 L. 506; 15 L. 26; 5 A. 179; 9 A. 265.

Taking this view of the proceedings, the second question is freed from serious difficulty. That a stockholder has an interest in preventing the sale of the property, real and personal, of the corporation by persons having no legal power or mandate so to do, does not brook discussion. That the sale of the assets whilst the corporation is yet in being by liquidators, so denominated, without legal warrant, may entail irreparable injury, seems equally clear. 22 A. 200. The fact that the corporator might seek recourse on the bond of the seeming liquidators is a demonstration of the right to the appeal. 12 A. 455.

The writs are made peremptory, with costs.


author: Manning, O. J.

text:
    No. 7515.
    The State vs. Sandford Miles.
    An arrest of judgment in a criminal ease will not be allowed on the ground of a want of ciualifleation of the jury commissioners. Such an objection must be made in the preliminary stages of the trial.
    PPEAL from the Thirteenth Judicial District Court, parish of Concordia. Hough, J.

      H. K Ogden, Attorney General, for the State.

      G. F. Bowles for defendant and appellant.
   The opinion of the court was delivered by

Manning, O. J.

The defendant was indicted for and convicted of shooting one Tatum with intent to murder, and was sentenced to imprisonment at hard labour for five years. He moved in arrest of judgment on three grounds;—

I. The jury commissioners were not sworn before the drawing of the jury.

2. The evidence of the selection and appointment of the jury commissioners who drew the jury for that term of .the court does not appear on the minutes.

. 3. It does not appear of record or upon the minutes that the jury commissioners were sworn before drawing the jury.

The objections come too late, and are not good grounds for a motion in arrest of judgment. They should have been pleaded at an anterior stage of the trial. The practice has been long settled not to arrest judgment on the ground of irregularities in the summoning or the procedure of the grand jury. Wharton Crim. Law 863 citing numerous authorities. State v. Swift, 14 Annual, 827. And the same rule applies to the petit jury.

An objection to the mode, or the want, of qualification of the jury commissioners should have been made in the preliminary stages of the trial. The prisoner cannot take the chances of a trial by a jury of his own choice, or to which he does not object, and afterwards avail himself of irregularities in its selection or composition by a motion in arrest after a verdict against him. State v. Alverez, 7 Annual, 284.

Judgment affirmed.


author: Spencer, J.

text:
    No. 7642.
    City of New Orleans vs. Louisiana Savings Bank and Safe Deposit Co.
    A law exempting the shares of stockholders and all the other property of a corporation from taxation, except its real estate, is unconstitutional.
    The assessment of the property of a tax-payer on the assessment rolls, and the methods used in fixing its value are presumed to be correct until he proves the contrary,
    A law imposing on a corporation the payment of the taxes on its stock by its shareholders is constitutional.
    It is not necessary that the assessment roll should itemize the property of a corporation over and above its capital stock, designated as surplus.
    In assessing the real estate of a corporation its present, and not its cost value, is-the standard of valuation. '
    REPEAL from the Fifth District Court, parish of Orleans. Rogers, J.

      S. P. Blanc, Assistant City Attorney, for plaintiff and appellee.

      Chas. 8. Rice and W. 8. Benedict for defendant and appellant.
   The opinion of the court was delivered by

Spencer, J.

Plaintiff sues defendant to recover the following taxes:

1st. The tax on its assets and property over and above the capital stock, exclusive of real estate and non-taxable property. This surplus is estimated and assessed on the roll at 139,669.

2nd. The tax on shares of stockholders in said company, after deducting the real estate and other property otherwise assessed or exempt from taxation. These shares are assessed against each stockholder by name, and their aggregate value is fixed at $406,900 on the assessment roll.

The defense is, first, that by the third section of act 70 of 1870. itnftorporating the defendant bank, it is exempt from taxation “ except on its real estate,” and that it has paid its real estate tax.

The present Court and its predecessor under the constitution of 1868 have so often held that such exemption as that here claimed was beyond the constitutional power of the General Assembly that we are not disposed to re-state the grounds of that opinion.

See 31 A. 292; 31 A. 440; 31 A. 637; 31 A. 519; 27 A. 376 ; 27 A. 646; 27 A. 648; 28 A. 512; 28 A. 498; 28 A. 756 .

The second defense is, that the assessment of $39,669, as surplus oyer and above its capital, has no foundation in fact to rest upon. That it owns no such surplus. If it were conceded, that, after the rolls have been exposed and advertised for correction as required by law the correctness thereof is still open to controversy, still in the present case no proof was tendered of this allegation, and the assessment must stand, as at least prima facie correct. The onus of showing the error was on the defendant. "N. O. vs. Canal Bank,” 29 A. 851, and same case decided by Supreme Court of the United States, October term, 1878.

The third ground of defense is, that “ the record does not show that the requirements of law, under which the pretended assessments were made, were complied with.” The roll seems to be in the form prescribed by law. and the presumption is that proper methods of ascertaining values were resorted to by the assessors.

The fourth point is, that admitting the right of the State to impose a tax on the shares of the shareholders in banking corporations, and that the State may compel the banks to pay the tax so levied, yet the charter exempts this bank from paying taxes on these shares. That such taxes must be collected therefore from the shareholders themselves. We have seen that the exemption conferred on this bank was from taxation, “ except on its real estate.” We have seen that that exemption was unconstitutional — and therefore void. But even if it had been valid, we do not see that it would have prevented the Legislature from, imposing on it the payment of the taxes due by its shareholders — since its property, profits, and assets belonged to the shareholders ultimately. In such a case we have no reason to believe that such an imposition violates the constitution, and no reasons have been advanced by defendant in support of the alleged unconstitutionality. This ease differs essentially from that of Citizens’ Bank vs. Bouny, Tax Collector,” lately decided. (No. 7368.)

It is next complained that the roll exhibited in evidence does not show the description and value of any real estate. This suit is not for taxes on its real estate. That was otherwise assessed, and defendant alleges that that tax has been paid. The roll does show that a deduction of $93,100 was made from the capital of the company before fixing the value of the shares assessed. We presume that deduction was composed of the real estate otherwise assessed, and of property exempt, such as U. S. bonds, etc. We must presume, in the absence of proof to the contrary, that the assessors did their duty.

Again, it is said that the roll does not itemize the property assessed as surplus. In the nature of things it could not do so. That amount is charged as being the excess of the value of defendant’s property, etc., over and above the amount of its capital.

Lastly, it is said that the real estate of the bank was only assessed at $30,000, when it originally cost $102,000, and that the latter sum should have been deducted in fixing the value of shares. It is the present value, and not that of 1870, that is to be deducted. Besides, if $102,-000 was the proper deduction, then it would have been the proper value upon which to tax the bank on its real estate. What it may have lost through its stockholders’ assessment it has gained on its own.

The judgment appealed from is affirmed with costs.


author: DeBlanc, J.

text:
    No. 7199.
    W. W. Walker et al. vs. City of New Orleans.
    The city of New Orleans has no right to require that persons owning vehicles for hire within its limits, and who have paid their city licenses shall obtain from the city, at a certain fixed and exorbitant price, the plates which an ordinance of the city has prescribed for the convenient identification of the vehicles. Such an exaction is another license, in disguise, and therefore unconstitutional.
    ^PPEAL from the Sixth District Court, parish of Orleans. Bightor,

      Edward Phillips for plaintiffs and appellees.

      Sara. P. Blanc, Assistant City Attorney, for defendant and appellant.
   The opinion of the court was delivered by

DeBlanc, J.

These consolidated suits were brought by owners of .drays, hacks, carriages, floats, carts and vehicles, to enjoin the City of New Orleans from enforcing an ordinance, adopted on the éth of

December, 1877, and which was to go into effect from and after the 1st of January, 1878.

In substance, the enjoined ordinance provides that — besides the license which is to be obtained by any owner or driver of a vehicle kept for hire — they shall pay, for a pair of license plates to be attached to the vehicle, charges or fees which vary from five to twenty dollars.

These plates, which are intended to readily and conveniently identify the vehicles, cost twenty cents a pair ; and — under the ordinance — must be taken from the City at from eight to one hundred and fifty times what they cost.

By the 11th paragraph of section 12 of the City charter, its Council is empowered “ to regulate the proper government of carts, drays, “ carriages, omnibuses, and other vehicles of every description, freight, “ locomotive, passenger and street cars, which run in the streets, and “ within the limits of the City, and to require that the owners of said “ vehicles shall take a license, and to fix the fees and charges of ail “ vehicles kept for hire.”

Acts of 1870, Ex. s. p. 86.

Plaintiffs denounce the charge thus sought to be recovered, as one which is — not only arbritrary and unequal .in amount — but, besides, one which is not authorized by any law ; and — in his printed argument — the counsel who represents the City, contends that said charge was imposed by the Council, in the legitimate exercise of its police, and not its taxing power.

License laws — according to Cooley — are of two kinds: “ those which require the payment of a license fee by way of raising a revenue, and are therefore the exercise of the power of taxation ; and those which are mere police regulations, and which require the payment of such license fee as will cover the expense of the license, and of enforcing the regulation.”

Cooley, on Const. Law, p. 586.

At page 201 of the same book — speaking of the exaction of a license fee with a view to revenue, he says: “the charter must plainly show an intent to confer that power, or the municipal corporation can not assume it.”

It is evident, as maintained by plaintiffs’ counsel, that the authority conferred on the Council “ to fx the fees and charges of all vehicles Icept for hire,” is widely different from that which it had exercised. That clause merely empowers the Council — in order to guard against and prevent extortion — to fix the compensation which the owners and drivers of vehicles shall be entitled to claim for their use. The plain terms of that plain clause, repel and exclude the bold pretension that the City could or can sell, and compel its inhabitants to purchase — at from five to twenty dollars, that which, at any time and nearly everywhere, they could procure for twenty cents.

The city may — for purposes of identification and inspection- — require that plates be attached to vehicles kept for hire, and prescribe the form of those plates ; but it can not — under the pretext of securing that distinctive mark — impose, on an already taxed and legitimate industry, an exaction which — by whatever name it may be called — is but a disguised and additional license.

Under the 20th paragraph of section 12 of its charter, the City is empowered to levy, impose and collect a license tax upon all persons pursuing a calling, etc. That done, and as to those who pursue but one calling, its power — in that respect — is exhausted, and — thereafter—it can, under no provision of its charter, impose a license charge on the drays, wagons, carts, floats and vehicles belonging to those who have paid for the privilege of using them in their callings.

“ The right to exact that license, is yet more evident — we are told— when we reflect that expensive pavements are laid and the streets formed, solely for the purpose of affording a passage to vehicles” — but, is this done for the exclusive benefit of the owners and drivers of those vehicles ? Is it not for the advantage of factors, merchants and financiers that drays and floats go from the unloading steamers to the presses, thence to the vessels? Is it not for the convenience of others, that hired carriages are seen constantly moving in every direction, towards atheatre or a graveyard ? As their owners and drivers, those who use them contribute to the inevitable injury done to the pavements, and should — in equal proportion — contribute to their repairs.

“ The constitution requires that a license tax, as well as a tax on property, shall be equal and uniform. To be equal and uniform, the tax imposed must be the same upon all who engage in the particular profession or calling taxed,” without regard — as in this instance — to the number of wheels of the vehicles, or the number of horses by which they are drawn. Whether by the State or by the City, but one license can be imposed upon those who pursue but one occupation. 30 A. 1094; 28 A. 102; 23 A. 449, 663; 22 A. 440; 20 A. 373; 10 A; 56; 11 A. 739. Const. 1868, art. 118.

The vehicles and horses of plaintiffs have been assessed and taxed in proportion to their value. The tax thns levied has been paid by them. To pursue their occupation, they are disposed and ready to take out and to pay a license tax, one which will assist in defraying — not only the cost of the license itself — but, generally, all the expenses incurred by the city in carrying out the provisions of its charter. Th'eir tender fills the measure of the only license which — either under the constitution or the laws — can justly be exacted from them. They do not belong to a class which, in the interest of the State or the City, should be taxed out of existence.

The license charge or fee claimed from them is unreasonable and illegal, exorbitant and unconstitutional.

It is — therefore—ordered, adjudged and decreed that the judgment appealed from is affirmed with costs.

Rehearing refused.


text:
    No. 7618.
    M. C. Barry, Inspector, etc., vs. Garnier, etc.
    'This court is without jurisdiction oí an appeal from a judgment condemning a party to pay a penalty, or forfeiture of fifty dollars, imposed by a statute of the State. '
    APPEAL from the Third Justice of the Peace for the parish of Orleans. Buisson, J.

      Frank D. Chretien for plaintiffs and appellees.

      Chas. Louque for defendant and appellant.
   The opinion of the court was delivered by

DeBlanc, J.

The action — in this case — is brought against’defendant 'by M. 0. Barry, as Inspector of Weights and Measures and informer, •and by the city of New Orleans, to recover from him a fine of fifty dollars, for having sold — in violation of sections 3921 and 3923 of the Bovised Statutes — an unstamped and incorrect measure. *

The judgment appealed from strictly corresponds with the plaintiffs demand and was rendered in their favor for the amount of the fine imposed by the State law.

A motion is made to dismiss the appeal, for the reason that our jurisdiction does not extend to the matter in dispute.

In answer to that motion, defendant contends :

1. That the laws relative to weights and measures are not self-■acting — that the Common Council of New Orleans are authorized to pass ordinances to insure, within the limits of the city, the execution of these laws — R. S. 3915 — and that, as without such an ordinance, their execution is not insured, the fine is therefore.imposed by said city.

2. .That if the fine be imposed by a State law; the State alone— through its proper officers — can sue for its violation.

■ That the fine is imposed by a State law, and not by a city ordinance, there is not the slightest doubt. It is the State law alone which provides : “ that no person shall buy or sell — by weight or measure, which <loes not correspond with the standard therein referred to, or is not stamped after the parishes have procured said standard, under tile penalty of fifty dollars for each offence, etc.”

Rev. St. sec 3921.

When the matter in dispute is under five hundred dollars, our jurisdiction extends to only those eases in which the constitutionality or legality of any tax, toll, or impost of any kind or nature whatsoever— or any fine, forfeiture, or penalty imposed by a municipal corporation, shall be in contestation — and, in criminal cases, on questions of law, whenever * * * a fine actually imposed exceeds three hundred dollars.

Const of 1868, art 74.

Here, the matter iii dispute is not a tax, toll or impost, nor a fine, forfeiture or penalty imposed by a municipal corporation, but a penalty of fifty dollars imposed by a State enactment, and which — according to the terms of the enactment — is “ to be recovered before any tribunal of competent jurisdiction; one half to the benefit of the informer, and the-other half to the parish in which the offender resides.

Rev. St. sect. 3921.

That matter — it is evident — does not fall within our jurisdiction.

It is — therefore—ordered that defendant’s appeal be, and it is hereby dismissed at his costs.


text:
    No. 7488.
    Mrs. Rosanna O’Keefe vs. T. H. Handy, Sheriff, et al.
    Where a married woman, with the authority of her husband, and the sanction of the j udge’ executes a mortgage on her property to secure the payment of money borrowed by her, it is, prima facie, valid, and no threats of her husband made out of the presence and hearing of the mortgage creditor, and to which he was not a party, can affect the validity of the mortgage.
    The surrender of a matured mortgage-note, and the cancellation of the mortgage, is a sufficient consideration for a second note for the same debt, secured by a second mortgage, and payable at a later date.
    The defense by a married woman that although authorized by the judge to execute a mortgage on her property, he did not make the'preliminary examination of her reanired by law, can not be maintained when it appears that after becoming a widow she has voluntarily ratified the mortgage debt by'paying the interest on it.
    REPEAL from the Sixth District Court, parish of Orleans. Bightor,

      H. H. Briján and Simeon Belden for plaintiff and appellant.

      O. F. Schmidt and F. D. Seghers for defendants and appellees.
   The opinion of the court was delivered by

DeBlanc, J.

In February last this case was remanded to the lower court, with instructions to admit and consider some evidence which plaintiff had vainly attempted to introduce on the first trial. That evidence is now before us-.

In January 1878, S. 0. Young obtained from the 6th District Court— an order commanding the seizure and the sale of certain real estate, the paraphernal property of Mrs. O’Keefe, and which it appears she was twice judicially authorized to mortgage and did mortgage, in 1867 and 1871, and twice to secure an alleged loan of fifteen hundred dollars.

The first of said mortgages — that of 1867 — was granted in favor of Louis Mathe, the other in favor of Benjamin C. Young. In the last of the notarial acts passed between Mrs. O’Keefe and the mortgagees, Mathe intervened, acknowledged that his claim had been paid with the funds borrowed from Young, and authorized the cancelling of the mortgage securing its payment.

The evidence adduce 1 on the trial leaves no doubt that but one loan was made to Mrs. O’Keefe, and it was that of 1867, which Mathe testified he made as the agent and with the funds of Benjamin 0. Young. As to the act of 1871, it merely was the useless renewal — in the name of the real creditor — of the obligation and mortgage of 1867. The term of that obligation was thereby extended until 1872.

In June 1873, Mr. O’Keefe died, and, thereafter — from the month of December of that year until 1877, his widow punctually paid, as soon as it was due, the interest which accrued on the note held by Young, and he — on'that account — extended, not less than five times, the term fixed for the payment of the principal, and would have again postponed the already extended term, had not his debtor failed to satisfy State and city taxes levied on the mortgaged property.

The note referred to was, after its maturity, transferred by the creditor to one of his sons, who obtained an order to foreclose the mortgage by which it is secured, and that order was enjoined by Mrs. O’Keefe on the grounds:

1. That she was not examined by the judge who issued the certificate by which she was authorized to make a loan and mortgage her separate property, and that the recitals contained in said certificate are false and fraudulent.

2. That — to the knowledge of Mathe, who acted as the agent of Young — the money was advanced to her husband, did not enure to her benefit, and that it was by constant threats on the part of the latter that she was induced to execute the note and mortgage.

In answer to Mrs. O’Keefe’s injunction, the creditor, after a general denial, specially charges that she has, since the death of her husband and by several payments of interest due on the note, ratified the contract which she now assails.

The law under which the. recited contracts were entered into, is plain; it reads :

“A married woman over the age of twenty-one years, may — by and with the authorization of her husband, and with the sanction of the judge, borrow money or contract debts for her separate benefit and advantage, and to secure the same grant mortgages or other securities affecting her separate estate, paraphernal or dotal.

O. 0.126.

When, with the sanction of the judge, she grants a mortgage, the act drawn to that effect, when executed as prescribed'by law, furnishes full proof against her and her heirs, and is as binding in law and equity, and has the same effect as if made by a femme settle.

C. C. 127 and 128.

Whether as regards a married woman duly authorized, or any other person, fraud vitiates every contract in which it enters ; and the effect of the law which we have quoted, merely was — as we held in Barth vs. Kasa — to shift the burden of proof, when its provisions have been complied with, and — in such a case — to constrain the wife who has acted with the judge’s sanction, to verify any alleged fraud.

30 A. 942.

It does not appear that either Mathé or Young was a party to the pretended threats and reproaches which it is averred — were brought to bear on Mrs. O’Keefe, by her husband, nor that they heard those reproaches and threats. If made at all, they were made out of their presence, and can in no way affect the creditor’s rights. Were it otherwise, who would run the risk of advancing money to a married woman ?

26 A. 418.

As a witness in her own behalf, Mrs. O’Keefe acknowledged that she had gone to, and had met the judge; but denied that she had been examined by him, and swore — not only that the money was to be borrowed for herhusband — but that she had so stated to Mathé, who absolutely contradicted that part of her declaration, and testified that she had called upon him for a loan of money.

It was not proven that the judge who issued the certificate knew any of the parties, that he was a friend of the husband, or that he was actuated, in that instance, by any improper motive; and — had he been so actuated — how imagine that after the death of her husband, when the cause of her silent apprehensions had ceased to exist, Mrs. O’Keefe — the alleged victim of the most extraordinary conspiration — would have refrained, until the institution cf this suit, from denouncing the conspirators and their fraud? How imagine that when, as a widow, she resumed the capacity of which — as a wife — she had been deprived during her marriage, the widow willingly continued to discharge — by partial payments of interests and for several years — an obligation which — through the fraud of judge and notary, husband and attorney, she had reluctantly subscribed ? This seems as unreasonable as improbable.

In reference to the first mortgage, Robert J. Ker, the notary before whom the parties appeared to grant and accept said mortgage, testified that, when a loan was made to a married woman, his invariable practice was to hand the money to her and to no one else, and one of his sons, who — under his dictation — wrote the act of 1867, declared that the money then loaned was delivered to Mrs. O’Keefe, in presence of the notary and witnesses.

These declarations counterbalance — if they do not outweigh — the ■denials of Mrs. O’Keefe, and — legally—leave uncontradicted the recitals of the notarial act, and — among them — her own acknowledgment that she received the money loaned in 1867.

As to the consideration of the second note and second mortgage, it was the surrender of the note of 1867, and the cancellation of the mortgage securing its payment. That consideration did enure to Mrs. O’Keefe’s benefit. That transaction delayed the enforcement of a matured claim, the validity of which is asserted and acknowledged in acts Which bear her signature.

The conflict of evidence which marks so many pages of the Record, impels us to pass upon another, an important defence presented and relied upon by the mortgage creditor, and it is that, by the several payments of interest made by her since the death of her husband, Mrs. O’Keefe has ratified the contract of 1871.

That contract, she contends, is one of those which the law prohibits, which never had any legal existence, and to which no ratification can give a validity inconsistent with and repugnant to the prohibition.

Had Mrs. O’Keefe proven, and this she has not done, that she had bound herself for a debt contracted by her husband, we would have paused and considered how the preservation of public order and good morals can be so gravely imperilled by such an act, when the debt is an honest one, that the contract should be classed as one of those which, by our legislation and jurisprudence, are beyond the pale of ratification.

The other ground of nullity urged by Mrs. O’Keefe is that, though she was authorized by the judge to borrow the money and mortgage her property, she was not thus authorized after the preliminary examination prescribed by law. It may be — and on this point we reserve our opinion — that, under special charges and exceptional circumstances, the wife might be permitted to impeach and contradict the judge’s certificate ; but were she to attempt it, and succeed in her attempt, her contract would still remain one of those which — in the very words of the Code — “ may be made valid after the marriage is dissolved, either by-express or implied ratification,” and this Mrs. O’Keefe has done after the death of her husband.

C. 0.1786 (1779) 4 L. R. 328.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from is affirmed with costs.


text:
    No. 7591.
    The State of Louisiana vs. the Citizens’ Savings Bank.
    Before a-suit for the forfeiture of the charter o£ any bank located in the city of New Orleans can be entertained, it is indispensable that a petition praying for the forfeiture shall be presented by the Attorney General, or ’by the district attorney, or by them both.
    The officers of a bank are without authority to waive the service of a petition praying a forfeiture of its charter, or to waive the delay within which third persons may intervene to protect their interest, or of filing an answer which virtually confesses the forfeiture of the charter, and admits the necessity of the immediate liquidation of the bank.
    A court is without authority to order the liquidation of a bank and the transfer of its assets to commissioners until the propriety of such an order has, on proper inquiry, been judicially ascertained.
    A PPEAL from the Fifth District Court, parish of Orleans, Rogers, J

      W. S. Benedict for plaintiff and appellee.

      Jos. P. Hornor and F. W. Balcer for intervenor and appellant.
   The opinion of the court was delivered by

DeBlanc, J.

On the 2d of October, 1879, the State of Louisiana-through the Attorney General — joined by E. V. Hitch, whose interest in this matter is not disclosed by the pleadings, filed in the 5th District Court, then in vacation, a petition which does not bear the signature of the Attorney General, in which it is alleged that the Citizens’ Savings Bank has mismanaged its affairs and violated its charter, and in which it is prayed that said charter be declared forfeited, the liquidation of the Bank ordered, an inventory taken of its assets, a commissioner appointed to take charge of the liquidation, and all proceedings against it stayed, on the grounds — 1st: that it has refused to receive and to pay deposits — 2d: that it has failed to pay and credit interest on deposits — 3d: that it has not invested deposits in the securities authorized by the charter, but has invested them in other and unauthorized ways — 4th: that its capital stock has been reduced, its checks and drafts dishonored, its 'insolvency acknowledged by its directors, and its dissolution deemed expedient by the holders of at least three fourths of its-stock.

In its answer, which — as the petition — was filed on the 2d of October, the defendant admitted the correctness of every charge upon which the demand is based, but denied that it had forfeited its charter, and — on the same day — submitted the case to the decision of the court.

On the 2d of October, the judge — considering the petition, the an■swer and the evidence — and the whole of that evidence was the Bank’s ■admission — declared that it was necessary for an officer of the court to take charge of the property and assets of defendant, and — in conformity to the parties’ pleadings — appointed as commissioners of the Bank, E. V. Hitch and P. H. Legendre, ordered an inventory of its assets and stayed all proceedings against it.

The commissioners thus appointed qualified on the 2d of Oetober ■■and — on the 10th of said month— applied for and obtained an order to •sell, on conditions which they themselves fixed, the banking-house and furniture belonging to defendant.

From the order of the 5th District Court, rendered at chambers and on the 2d of October, Frank Morey — a stockholder — has appealed.

The first section of the act of 1842, on which it is conceded that plaintiff’s action is based, provides in plain terms that, in such an action as this, it is the Attorney General himself who shall present the petition,, and he is directed so to do whenever any bank of this State — located in the city of Hew Orleans — shall have incurred the forfeiture of its charter. Under that act, he — or the district attorney — must first ascertain that the forfeiture has been incurred; and that done, they, or either of them, •can alone present a petition to have the corporation dissplved. It is a •special duty imposed upon them as public officers, one which is attached •to their official capacity, and which they can not confide or delegate to others.

Act of 1842, p. 234, sect. 1.

The appellant does not — as defendant’s counsel seems to believe— deny that the attorney who prepared and filed the answer, was authorized to do so ; but he denies — and in this he is right — that the officers • of the Bank, who are mere agents, with limited powers, could — as they did in this instance — have waived the service of the petition which threatened the very existence of the corporation which they represented, •waived the necessity of the otherwise indispensable citation, waived the usual delay within which third parties may intervene to protect their in-terest; and — more particularly — that they could, legally, have assumed the extraordinary privilege of virtually confessing the forfeiture of the •charter, and the necessity of an immediate liquidation of the Bank, and —by that confession — which was filed as soon as prepared, and acted upon as soon as filed, compel the transfer to chosen commissioners of the property and assets of said Bank.

Defendant alleges in his brief, but neither in the petition, nor in. the answer, is it alleged that by a vote of three fourths in majority of the stockholders, it had been resolved that it was necessary to liquidate-the Bank. If any of the stockholders did think and determine that the liquidation was expedient, why didn’t they join the Attorney General, verify the pretended violations of the charter and ask its forfeiture ?' Their tardy approval of the proceedings instituted by one who is designated by counsel as' an informant, a nominal party, could — in no way— affect and impair the rights of the other stockholders, and validate — as. to them — the irregular proceedings by which they were inevitably taken by surprise.

It has not been alleged by either a creditor, a stockholder, or any one authorized to represent the State — nor has it been shown, except by a confession which we do not impugn, but which — in this particular instance — we do not consider as conclusive, that the Bank has mismanaged its affairs, and — as charged — deliberately failed to conform to the provisions of the act by which it was incorporated, and its assets could not have been — as they were — under these most informal proceedings— transferred into the hands of commissioners, whose appointment was so sudden, that its propriety could not have been inquired into and contested. That propriety was tacitly recognized by the order appealed from, but it was not — as it should have been — judicially ascertained.

16 A. 27. 5 R. 63.

The petition and the affidavit thereto attached, the answer and submission to the court, the order which — in its effects — is equivalent to a decree of forfeiture, the oath of the commissioners and their bond, bear but one and the same date — the 2d of October — and as fair as they may be, those proceedings were conducted with a celerity, which — whether-intentionally or not — -did effectually close the door against the most legitimate interventions ; and, in as much as no attempt has been made-to justify it — that unusual celerity casts a shadow on the assailed .order,, and can not be sanctioned.

It is — therefore—decreed that the order of October 2d, 1879, and the proceedings had thereunder, be and they are hereby avoided and annulled, and this action dismissed as in case of nonsuit, at plaintiff’s-costs in both courts.