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    No. 12,175.
    State of Louisiana ex rel. Isidore H. Davis vs. The Judges of the Court of Appeals, First Circuit.
    Under Article 103 of the Constitution, the Court of Appeals must allow three judicial days in which applications for rehearings may be filed in accordance with Act 18 of 1879.
    QN APPLICATION for a Writ of Mandamus.

      Ben. P. Edwards and J. A. Dormon for Relator/

      J. W. Holbert for Respondents.
    Submitted on briefs June 5, 1896.
    Opinion handed down June 15, 1896.
   On Application for Writ of Mandamus.

The opinion of the court was delivered by

McEnery, J.

This is an application for a mandamus in the exercise of the supervisory jurisdiction of this court to compel the respondent judges to allow an application for a rehearing, to be filed incase of Epstein, Rosenberg & Co. vs. I. H. Davis, and other eases, against the relator. The cases were decided July 12, 1895, and the Circuit Court of Appeals adjourned July 13, 1895. The next regular term of the court convened February 10, 1896, and on the 11th the relator filed an application for a rehearing. The court declined to consider it on the ground that the application was filed too late.

The only question presented is whether the relator was entitled to three judicial days in which to file his application. A judicial day is distinguished from a legal day in this, the former- means a day in which the court is in session, and the legal day is one in which legal and judicial business can be iransacted, as distinguished from dies non.

The Court of Appeals was in error in confounding the jndiciai and legal day.

The Court of Appeals was established by the Constitution of 1879.

Prior to the establishment of the court, Act No. 18 of 1879 was passed, making judgments rendered by the Supreme Court final after six judicial days in the city of New Orleans, and three judicial days in the country parishes where sessions were held.

Article 103 of the Constitution of 1879 provides that the rules of practice regulating appeals to and proceedings in the Supreme Court, shall apply to appeals and proceedings in the Court of Appeals, so far as they may be applicable, until otherwise provided by law.

It was the practice in this court, when this article was enacted, to allow three judicial days within which applicants for rehearings at the country terms could file their applications. It was a legal right conferred by law. Under tbe above article of the Constitution, ifc became a rule of practice, a legal right conferred on all litigants in the Court of Appeals. It is urged that the abolishment of the-country terms of the Supreme Court destroyed the practice of allowing three judicial days for applications for rehearings, and as it no longer exists as a rule of practice in the Supreme Court, the rule is also abolished as to the Court of Appeals. There is no force in this reasoning. The terms of the Court of Appeals were not abolished. It was an existing right when the Court of Appeals was established, and it can only be destroyed by legislative enactment changing the practice in that court.

The relief prayed for is granted and the mandamus made peremptory.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    No. 12,170.
    Shreveport Rod and Gun Club et al. vs. Board of Commissioners Caddo Levee District et als.
    If a conveyance of immovable property, under a resolution of tbe board of directors of tbe corporation, tbe vendor, accepting' tbe offer to buy, is assailed by parties claiming they were the purchasers intended by the resolution, and were deprived of the property by the fraudulent substitution- of those to’’whom the conveyance was made, it is competent for such parties holding the title by competent deed to show by testimony that the conveyance was in pursuance of their offer to buy, accepted by the board, and thus the conveyance accorded with the resolution; such testimony not infringing on the prohibition of parol to create or destroy title to immovable property. a
    The principle that to avoid the sale for lesion the inadequacy of price must be clearly proved, is applied in this ease. Civil Code, Art. 2589; 12 Martin, 421; 5 La. 382.
    A PPEAL from the First Judicial District Court for the Parish of Caddo. Land, J.

      Leonard & Randolph for Plaintiffs, Appellants.

      Wise & Herndon for Commissioners, Defendants, Appellees ;• T. F. Bell for Shreveport Gun Club and W. B. Jacobs and Associates, Defendants, Appellants.
    Argued and submitted June 3, 1896.
    Opinion handed down June 15, 1896.
   The opinion of the court was delivered by

Miller, J.

This suit is for property claimed under an alleged sale of the Caddo Levee Board, the Shreveport Rod and Gun Club, ■plaintiff, and another organization, the Shreveport Gun Club, each ••claiming under that sale, and the board denying it made any sale.

It appears that a proposition was made to the Levee Board by W. B. Jacobs, S. J. Enders, W. B. Jenkins and Mr. Wells for the purchase of the property, and the board accepted the offer by a resolution referring to the proposition as coming from the Gun Club. This was followed by the sale, by authentic act, to Mr. Jacobs and his associates, Enders, Jenkins and Penick, for the price paid them. Soon after these purchasers, with others, organized a corporation under the name of the Shreveport Gun Club, and to this club the purchasers from the board sold the property, the president of the board ratifying the sale. An unincorporated association, under the name of the Shreveport Rod and Gun Club had existed in Shreveport for years, with a large membership, including Jacobs and Enders, two of the purchasers of the land. The contention of the plaintiff is, that as this unincorporated gun club was the only organization bearing that name in existence when the board accepted the offer to buy of the “ Gun Club,” therefore that club was intended and merged as is this unincorporated gun club into the corporation now plaintiff, that the plaintiff is entitled to the land.

The Levee Board, originally one of the defendants, finding itself confronted by two claimants each contending for the property under the resolution for a sale to the Gun Club, concluded to dispute the pretensions of both. In this connection it may be stated the board had an agent for the sale of its land, and we gather from the testimony he had been spoken to by various parties, those who became purchasers and others, in reference to the sale of this property. It was by this agent the offer from the Jacobs party came before the board. We gather the first offer was lower than the price — eleven cents per acre — for which the land was afterward sold. At the first meeting, the board dealing with the offer from the Jacobs party, referred it to the committee and ' adopted a resolution ■ that all sales ■should be ratified by the board; then, on August 20, after receiving the committee's report, came the resolution accepting the offer of the Gun Club, ten cents for eleven thousand acres, and the sale to the Jacobs party followed. On the 19th of September, 1895, the president of the board ratified the sale of the land by the Jacobs party to the incorporated club, and the action of the board closes with a resolution of the 20th September, 1895, in instructing the board’s attorneys to (take proceedings) annual the title given to the •Jacobs party. In this condition, the intervention was filed in the pending litigation between the Shreveport Rod and Gun Olub ■et als. against the levee board, the Shreveport Gun Olub et als.

The pleadings on the part of the plaintiff, the Shreveport Rod and ■Gun Olub, in substance, assert title under the resolution of the board .accepting the offer of the Gun Olub; attacks the title of the Jacobs party, derived from the board and the ratification by the president as not authorized and ultra vires; and prays the board be decreed to ■convey title to the plaintiff. The intervention charges the board, ignorant of the value of the land, was imposed upon; that sold for ■eleven hundred dollars, the property worth five thousand dollars, and prays that the sale be avoided for lesion, or the purchasers be condemned to pay the difference between the alleged value and price, and along with this the board alleges that the sale was not authorized’to the purchasers. The resolution of the lower court was in favor of the board, and, as stated, the case is here on the appeals of the clubs.

The title of the Shreveport Gun Olub being assailed as not authorized by the Levee Board, and hence a fraud on the rights of the ■other club, the plaintiff, the record contains a mass of testimony offered by the defendant club to show that the sale was made to those who made the offer accepted by the board and intended by the resolution. To all this testimony the plaintiff objected. A large portion of the discussion in the plaintiff’s brief is devoted to this objection. The argument for the plaintiff is on the theory that its own title is exhibited by the resolution of the board, accepting the offer of the Gun Olub, the proof of the unincorporated association of that name and that no other club bore it, supplemented by testimony that the membership of the plaintiff corporation is composed of those or some of them belonging to the Gun Olub. On this supposed basis of title, the theory of the plaintiff is, that the resolution for the sale to the Gun Olub precludes any proof to ascertain from whom came the offer to buy in order to fix those intended by the resolution of acceptance. The argument supposes that all such testimony infringes on the prohibition of parol to affect that title the plaintiff conceives it exhibits. In view of the parol necessarily administered' by plaintiff the objection is forcibly suggested it might be made by the other club holding the title by authentic act. Civil Code, Art. 2275; Shepherd vs. Percy, 4 Martin, 275; Heiss vs. Cronan, 12 An. 213; Bradford vs. Cook, 4 An. 229. Bub, in our view, the resolution of the board accepting the offer to buy is not the title. Nor is there-any sanctity attached to the resolution of a corporate body using the terms “the Gun Club,” without other designation, that pre- • eludes proof of the parties intended. The tendency of the testimony was to show the offer came from Mr. Jacobs and his party, and that-they proposed to form a gun club. There is no marked inconsistency, if any, between the resolution and the testimony. Resolutions-are not usually framed with technical accuracy, and the framer might well use the terms “The Gun Club” to denote individuals, proposing such organization, and in no point of view it seems to us,, can there be any objection to testimony explanatory of a resolution, offered to show the parties making the offer accepted as coming-from the Gun Club. Then again, the allegation in plaintiff’s petition substantially is, that the property designed to be sold to the Gun Club-was fraudulently conveyed to Jacobs and his party. When the title of a party is thus assailed, it is surely competent for him to meet the issue by proof there was no such diversion, but that the offer, the-acceptance and the resolution all indicated [those to whom the conveyance was actually made. The ruling of the court admitting the testimony was entirely correct.

The argument for the defendant attacks the capacity of the Shreveport Gun Club to acquire property because the number of' corporators required by law did not concur in the organization (Act No. 112 of 1888). It is also contended that the resolution proposing a sale to the club, there was no power in Mr. Jacobs and his party, termed in the brief the promoters of the organization, to bind it hence the conclusion is deduced that there was no contracting party to buy. Finally, it is claimed there was no sale because it was not ratified. If the sale to Mr. Jacobs and his party is maintained, • it is immaterial to whom, whether a corporation or an individual they conveyed, for the first conveyance disposed of the property The other objection that supposes there was no contracting party answered, we think, by the fact that the vendor alone was concerned on that point. The board sold to parties who did bind themselves and paid the price. The sale by the board itself required no ratification. The ratification required by the resolution on that subject referred to sales by the agent, the natural import of ratification.

We have thus considered the objections urged by the plaintiff to the testimony supporting the title of the defendant club. We have given attention to the plaintiff’s argument impugning the contract by which the board sold and contesting the capacity of the Shreveport Gun Club. But of what pertinence is the discussion in the brief -of plaintiff on these points, if it exhibits no title from the Levee Board? The petition assails the title of the defendant club. The preliminary contention for the plaintiff is to show title in itself. Until that burden is discharged the plaintiff can not call in question the title of the other. What then is the proof adduced by plaintiff to support its pretensions ? It is the resolution of the board, the proof of the existence and membership of the Gun Club when the resolution of acceptance was adopted. But no conveyance. On the defendant’s argument there can be no further testimony, save and except, that which it conceives is essential to show the relation between the Gun Club and the plaintiff corporation. Thus, with no vestige of any conveyance to itself, the plaintiff seeks to overthrow that under which the defendant club holds the property for the price paid, stipulated in the deed. If the controversy is to be determined on the narrow lines maintained by plaintiff, then plaintiff stands solely on the resolution accepting the offer of the Gun Club, with the aid that can be deemed afforded by the very restricted testimony the argument indicates. On the other hand the defendant club presents itself with the legal title by authentic act, first to the Jacobs party and by them to the defendant. The first conveyance is executed the day the resolution is passed, lull of significance of the intention of the resolution and carrying the presumption of conformity of the resolution and the deed. In that condition of the record it is difficult to perceive the basis of the judgment the plaintiff seeks.

The defendant club with the legal title needs no testimony except to repel an attack. But in our view the testimony produced confirms the conveyance to the defendant. It is shown the offer to buy was made through the land agent of the board by Mr. Jacobs, Enders and Wells; it was considered, referred, and after the committee had visited the land and reported the resolution of acceptance was adopted. There is no suggestion, as we read this record, of any other offer before the board. There is no ground to attribute any agency in the matter for the Gun Olub, if, indeed, any such mandate under the stern exaction of our law on the subject could be shown by any evidence in plaintiff’s hands. True, we gather from the record there was an idea of some of the members of the Gun Club the purchase was proposed for that club. There seems to have been expressions from the purchasers, apt, perhaps, to produce that impression. But nothing of this nature in this record could possibly furnish that basis exacted by our law to decree the ownership of immovable property. It is stated in the plaintiff’s brief that the agent testified he made the offer for the Gun Club, but in another part of the testimony he testifies he does not know whether or not the offer was made for the unincorporated club, or for what club-it was made. It is quite certain from the testimony that the proposition came from those to whom the land was conveyed, and Mr. Jacobs testifies he stated to the agent he proposed to buy for the Gun Club to be formed. Prom first to last in the testimony we find no trace of any agency or trust or substitution of any contract when another was intended. The current of proof is that the Jacobs party negotiated for themselves, and took the title in pursuance' of that purpose. We concur in the opinion of the lower court there is no title in plaintiff. In our view the defendant has exhibited title, and it must be maintained, unless the contention of the Levee Board is maintained. ,

We have considered the ground of lesion alleged by the Levee-Board. It is suggested that in this respect there is an inconsistency with the other issue made by intervention, but waiving that, the testimony does not, in our view, sustain the alleged lesion. The price paid was one thousand one hundred dollars. Lesion supposes fraud on the vendor. Inferred as is the fraud from inadequacy of price, that disproportion the law exacts shall be clearly established. Civil Code, Art. 2589 et seq.; Bossier et al. vs. Vienne et al., 12 Martin, 421; Riviere vs. Boissiere, 5 La. 382. The land in this case was subject to overflow, the resort of sportsmen, and its purchase seems to have been sought for hunting purposes. We gather from the record the suggestion of a disputed title, an element for consideration, but its force, the record does not enable us to estimate. Copley vs. Flint & Cox, 16 La. 380. Irrespective of that, if the land had any value except as a hunting ground, it seems to have been purely speculative. There are in the record some valuations of this character on which, in our view, no judgment could rest avoiding the sale. There is testimony tending to show a fair price was paid, and a witness for the defendant, familiar with the land, testifies he would have bought for any price. We have no indication of the testimony relied on to sustain the alleged inadequacy of price, and our examination of the testimony leads to the same conclusion as that of the lower court, that the contention of the board on this point fails.

The lower court admitting all the testimony, holding that no offer came from the Gun Olub, but did come and was accepted, from Mr. Jacobs and his associates, and rejecting the plaintiff’s demand, yet reached the conclusion that the sale should be annulled. As we appreciate the opinion, it holds the resolution proposed a sale to a club, not to individuals; that no proof was admissible to substitute the purchasers for a gun club, therefore the sale to Jacobs and his associates was not authorized; that all sales were to be ratified, and that this sale was never ratified, but repudiated by the board. In this ease there is a sale by the corporation in pursuance of the reso - lution accepting the offer. It can not, in our opinion, be maintained that the corporation could dispute such a sale upon the ground, the sale should have been to a gun club. Nor do we think, if any controversy arose after that sale was executed in reference to the purchasers intended, there could be any objection to testimony that the proposition considered and accepted by the board came from the parties to whom the title was conveyed. At the meeting when this offer was made through the land agent, there was a proposition to abolish the land agency, and at a later period a resolution passed, requiring all sales to be ratified by the board. We think it is foreibley suggested the ratification proposed referred to sales by the agent. Ratification in its usual sense refers to the action of a principal approving the act of another for the principal. We think that sense must, in this case, be attributed to the ratification required. The sale by thex corporation, in pursuance of an acceptance ,by the board of directors, binds without ratification. We can not hold that the resolution, in this case, required the ratification of the corporate act, if indeed the sale itself, following the resolution accepting the offer, was not a ratification. '

The opinion lays stress on the fact that the character of the Shreveport Gun Club does not conform to the statute requiring twenty-five signatures. But if the conveyance to Mr. Jacobs and others divested the title of the board, it is of rio concern to it, to whom the land was afterward conveyed. The board was to sell for cash and it has been paid. Without the slightest injury to itself, we can not appreciate the basis on which the board can expect to set aside the sale, on the ground the sale should have been to a club instead of to the individuals who made the offer, and afterward formed a club, the method of the organization of which is, in our view, of no moment to the board.

We have had no brief from the board, but have sought to accord attention to the grounds of the intervention and those presented in the oral argument, as well as to the opinion of the lower court, and our conclusion is, the sale must be maintained.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be affirmed in so far as it dismisses plaintiff’s suit, and reversed in so far as it maintains the intervention and annuls the sale to W. B. Jacobs, S. J. Enders, A. F. Jenkins and W. S. Penick; and it is now ordered and decreed that the sale to them be and is hereby maintained, and the intervention be and is hereby dismissed with costs.


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    No. 12,179.
    Jackson Heffner et als. vs. James Heffner, Executor, et als.
    The requirement of the Code that the olographic will shall be dated, requires that the day of the month shall be stated; the day is part of the date, and the month and year, without the day of the month, avoids the olographic will. Civil Code, Art. 1588; Napoleon Code, Art. 970; 4 Boilleux, 91; 3 Troplong, par. 1479; Coin Delisle, pp. 151-542; Lagrave vs. Merle, 5 An. 278; Fuentes, vs. Gaines» 25 An. pp. 85-107.
    APPEAL from the First Judicial District Court for the Parish of Caddo. Land, J,

      Harrison & Aston and D. T. Land for Plaintiffs, Appellees.

      Wise & Herndon for Defendants, Appellants.

      Argued and submitted June 5, 1896.
    Opinion handed down June 15, 1896.
   The opinion of the court was delivered by

Miller, J.

This appeal is from the judgment of the lower court annulling the will, olographic in form, of William Heffner, rendered in the suit of his collateral heirs seeking to set it aside. The ground of attack sustained by the judgment was that the will has no date. Omitting its dispositions the will is in this form:

“State of Louisiana,
“ Caddo parish,
“ Written
dated and signed in my own handwriting, on this day of June, 1898.
“William Heffner.”

The Oode defines the olographic will to be that written, dated and signed by the testator himself. The date, signature and the entirety of the will in the handwriting of the testator are the essentials. C. C., Art. 1588. The testament in this form carries none of the guarantees the law provides in respect to wills in the other forms pre - scribed by the Oode, to prevent forgeries. The nuncupative will by public act is written by the public officer, appointed by law for the purpose; is attested by him and the witnesses, as the expression of the testator’s wishes, dictated to the notary and signed by the testator. The nuncupative will under private signature requires witnesses and the fulfilment of other conditions required by law, to entitle such papers to credit as acts of last will. Civil Code, Arts. 1578, 1581, 1584, et seq. When the Oode comes to prescribe the olographic testament, the notary, the witnesses and all forms of authentication are dispensed with, and the requirement is that such a will to have validity must be wholly written, dated and signed by the hand of the testator. The policy of the law to secure the true representation of the testator’s wishes and guard against fraudulent wills is marked in the requisite of the testator’s handwriting, including the expression of the date when he writes the paper and-affixes the signature it bears. The date in the testator’s handwriting is part of the evidence the law requires of the verity of the instrument. If the paper is forged, the date it must bear may furnish the means of detection. On any issue of the sanity of the testator the dates indicate and restrict the period of inquiry. There are ether reasons suggested by the French authorities, all enforcing the date of the olographic will as indispensable to its validity. Napoleon Code, Art. 970; 3 Troplong, par. 1479; Coin Delisle, 542.

The date in its ordinary sense imports the day of the month, the month and the year. That is also the legal significance of the date. The day of the month is quite as much a part of the date as the month or the year. If the law requires the olographic will to be dated, the exaction extends to every part of the date. The argument to sustain this will insists with great force that on the basis of reason the will should not be held void, because of the omission of the day, readily admitting of the proof tendered and excluded by the lower court. In support of this view we are referred to the frequent use of testimony for supplying omissions in deeds, and common law authorities are cited to show that the omitted date of a will may be proved. But these authorities under a different system of law, can yield no aid in this discussion of a question, in our view, controlled by our Oode. The mandate of the Oode is positive, without and purposely without, any qualification or exception. The will must be dated and the month, without the day, is no date. The hardship of the case has prompted us, in the absence of any direct adjudication of our own courts on the point, to examine the views of the French commentators, dealing with the corresponding article of the Napoleon Oode. They disclose the reason of the law in exacting the date, and maintain the day of the month to be essential. We find the distinction drawn by them between a wrong date, which it seems has been held will not vitiate, and no date or a deficient date, which will avoid the will. But the necessity of the day of the month in the date of the olographic testament is rigidly enforced by the jurisprudence under the Napoleon Oode (see authorities cited and Paillet Manuel de droit Francais notes on Art. 970 N. C. In our own reports the Pena case (Pena vs. New Orleans, 13 An. 86), and the case of Fuentes vs. Gaines, 25 An. 85-107, are pertinent.

That the olographic will must be entirely written, dated and signed by the testator necessarily excludes proof aliunde of the essentials. The only evidence is the will itself. The testimony tendered to supply the deficiency in the will was properly excluded by the lower court.

The judgment of the lower court is, therefore, affirmed with costs.


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    No. 12,182.
    The Mechanics and Traders’ Insurance Company vs. L. D. McLain.
    When a party has been induced to make a payment of money for a consideration the withdrawing or withholding that consideration entitles the party making the payment to a return of his money.
    A PPEAL from the Fifth Judicial District Court for the Parish of Ouachita. Potts, J.

      Stubbs & Bussell for Plaintiff, Appellee.

      E. T. Lamkin for Defendant, Appellant.
    Argued and submitted June 1, 1896.
    Opinion handed down June 15, 1896.
   The opinion of the court was delivered by

Miller, J.

The plaintiff sues to recover the amount of insurance premiums collected by its agent, the defendant, and he reconvening ■claims damages for the alleged withdrawal of his agency. The judgment .of the lower court recognized defendant’s liability for the commissions, allowed him part of the damages claimed, and for the difference in plaintiff’s favor, rendered judgment, from which both parties appeal.

It seems that prior to July, 1893, the plaintiff had an agent in Monroe, conducting their insurance business; he had an arrangement with the defendant by which the agent only, was to be known in the business, but in point of fact, defendant was interested, or, as the agreement expresses it, owned the business, the ownership not to be disclosed, the agent to be solely responsible for all collections, receiving a stipulated portion of the commissions and profits. This arrangement was not known to plaintiff when their agency was created, but became known when their agent fell in arrears. In this condition plaintiff determined to change their agent and selected the defendant. . The negotiation that resulted in the selection is detailed in the testimony of the ' plaintiff’s secretary and the defendant, and it was conducted with knowledge of the plaintiff of the connection of their former agent with the defendant who was to take the agency. The defendant testifies in effect, that the proposition of plaintiff to him was that he should assume the debt of the former agent, in consideration of which the insurance agency should be transferred to him; that he told the secretary it would take two or three years before the defendant’s, commissions would refund him the debt he was to assume, and that estimate as to time, he testifies, was the result of the discussion between them, and with that understanding, the defendant testifies, he accepted the agency. The secretary, testifying on the same point, states there may have been some figuring as to the time required to refund defendant in commissions the indebtedness of the former agent; that would not, the witness adds, imply a continuous agency, nor would the plaintiff consider any such indefinite agency. He further testifies, he never asked that the defendant should assume the indebtedness of the former agent; it may have been a stipulation that he assume the balance on giving him the agency; and while in the course of the testimony of the secretary there are expressions that might be deemed to negative the contract alleged by defendant, still, in answering the question put to him on the subject, we find the expression of the witness’ belief that the transfer of the agency was in consideration of the assumption of the former agent’s debt, and in consideration of defendant’s employment of the former agent. In view of the fact, the secretary conducted the intercourse to which his belief refers; his form of expression carries great force, and does not seem materially to differ from the testimony of the defendant. Following this intercourse between the secretary and the defendant, he was appointed agent, paid the debt, amounting to one thousand six hundred and seventy-eight dollars and seventeen cents, the consideration, he testifies, of the transfer to him, and it is beyond dispute that within a short time after the plaintiff withdrew the agency, the commissions received, on which he testifies he was to rely for reimbursement, not then exceeding six hundred and fifty dollars, as against his outlay of near seventeen hundred dollars.

The amount of premiums collected in the period defendant was permitted to bold the agency, and for which the suit is brought, admits of no dispute. The contention is as to the reconventional demand that defendant is entitled to be reimbursed the amount paid plaintiff on the faith, he claims, of getting the agency, and for damages for its withdrawal.

We can appreciate the testimony of the secretary in reference to a continuous agency. It is natural no principal would favorably consider an agency to endure for all time, or indeed for any time, without that control consistent with the contract that principals usually retain. In this case it is manifest, the plaintiffs were seeking to secure from defendant the assumption and payment of the debt of the former agent, the loss of which might have been apprehended, and it is, we think, clear that the promise was held out by implication, at least, that if the defendant would pay the debt he should have the agency and its commissions as a means of reimbursement. An agency to be withdrawn at once would, of course, not be desirable, and it is quite certain the debt of seventeen hundred dollars was paid on the faith of the agency and its commissions. An examination of the testimony leads us to the conclusion that the agreement contemplated the retention of the agency by defendant until his outlay to obtain the appointment was returned to him in commissions. We do not find in the secretary’s testimony relating to the negotiation with defendant any material difference with the testimony of defendant. We have his positive testimony that was the agreement, and indeed he testifies that a longer duration of his agency was contemplated. In aid of his testimony we have the significance of the payment of the debt, quite natural on the theory of the agreement, but in any other aspect quite out of the usual course. The conclusion is forced on us that the withdrawal of the agency within the brief period after the plaintiffs secured the payment from defendant, violated the agreement and carried the obligation of indemnity to the defendant.

We have given consideration to the ground on which it is claimed plaintiff is to incur no liability. It is insisted defendant was bound for the debt he paid and can claim no reimbursement. This refers to the arrangement of the former agent and defendant under which he owned the insurance business conducted in the name of the former agent. If the plaintiff, with no knowledge of that arrangement, dealing always with their former agent as occupying that relation, conceived they could hold the defendant, it was their option to seek the enforcement of that liability. If, instead, they preferred to avoid the hazards of litigation and secure payment by promising to the defendant the agency with its commissions for that payment, and thus induced it, the plaintiffs can not now take the position they did not choose to take at first. They had full knowledge while their negotiations with defendant, as we understand the secretary’s testimony, of the relation of defendant with thei,r former agent, and the obligation arising out of their agreement can not, in our view, be defeated, because they now conceive and seek to urge the absence of basis for their engagement on the faith of which they obtained payment from defendant.

The defendant earnestly contends that besides reimbursement he is entitled to damages. We are referred to a case reported in the Insurance Law Journal in which it seems to have been held that probable profits would be allowed not as a measure of damages, but to aid the jury in their estimate of the damages to be awarded an insurance agent wrongfully removed. Our law is, we think, more rigid on this subject than is implied in this extract. Our courts, in this class of cases, are bound by the proof. We can see our way clear to give the plaintiff the indemnity of compelling plaintiff to make him whole for the money he paid not returned in earned commissions. This was the solution of the lower court, and we find no basis in the record to change the judgment, which is therefore affirmed with costs.


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    No. 12,129.
    Naturalization of Theodore Osthoff. Theodore Osthoff vs. A. V. Flotte, Clerk—Mandamus.
    The provisions in Act; No. 123 of 1880 that the clerk of the Civil District Court shall furnish copies of naturalization papers free of cost, when the originals are lost, is not repealed by the section of the Act No. 136 of same session (the fee bill) fixing the charge for copies furnished by the clerk. The fee bill is general in its operation and without effect to repeal the special legislation on this subject in the earlier act. Civil Code, Art. 23; 12 An. 498; 39 An. 513; and 9 An. 329.
    The court applies our settled jurisprudence that the requirement of the Constitution, that the title of the act shall express its .object, is to be understood in a reasonable sense, and holds that the system of registration of voters includes, as an incident, the method of obtaining naturalization certificates; hence the provision that copies of such certificates, to enable the voter to register, shall be furnished by the clerk free of charge, is fairly within the title of the Act No. 123 of 1880, to provide the mode of registration of voters, etc. Const., Art. 29; 6 An. 805; 39 An. 329.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Rogers & Dodds for Plaintiff, Appellee.

      Denégre, Blair & Denégre for Defendant, Appellant.
    Argued and submitted on briefs, June 6, 1896.
    Opinion handed down June 15, 1896.
   The opinion of the court was delivered by

Miller, J.

This is an application for a mandamus to compel the clerk of the Civil District Oourt to issue, without charge, a copy of the naturalization papers of the relator, and the appeal is by the clerk, from a judgment making peremptory the mandamus.

The relator’s reliance is on the 32d section of Act No. 123, p. 164, of 1880, which required the clerk to issue the copy on the application of the party, and without charge. The clerk bases his refusal on the subsequent Act No. 136 of 1880 authorizing the clerk to charge for copies generally.

The title of the Act No. 123 of 1880 is to provide a system of registration. It is minute in its provisions to- secure a correct registration, refers to certificates of naturalization to be produced as evidence of the right to register, and to this end requires copies to be furnished by the clerk when the originals are lost, and that no charge shall be made. It is contended the title to this act does not cover-the subject of the 32d section in reference to the furnishing of these copies. We think the method of registry, that the purpose of the act was to direct, would have been imperfect without providing for-obtaining the naturalization certificates, the evidences of citizenship, and the direction for copies without cost was within the scope of the title as an incident of the subject of the act. Const., Art. 29; Municipality No. 3 vs. Michoud, 6 An. 305; Succession of Lanzetti, 9 Án. 329; Succession of Aaron, 11 An. 671.

The other contention of the defendant is that the 32d section of Act No. 123 of 1880 is repealed by the Act No. 136 of 1880, the fee bill. The charge for copies generally, authorized by that act, is, in our view, not inconsistent with the special legislation in the previous ' act. A. general rule prescribed by a later statute is not accepted as manifesting any purpose to disturb the previously enacted special rule. In our view Sec. 32 of the Act 123 of 1880 is still in force, and hence the relator is entitled to the copy without charge. Civil Code, Art. 23; Succession of Fletcher, 12 An. 498; State vs. Slave Kitty, 12 An. 805; State vs. Labatut, 39 An. 513.

The judgment of the District Courtis therefore affirmed with costs.


author: Breaux, J.

text:
    No. 12,188.
    Succession of Mrs. W. Justus.
    Ordinarily the entries in registers duly made, kept by one bound to record the fact in a foreign country, makes proof when authenticated by the consular officer at the place.
    The certificates were of birth, marriage and death, and as such were admissible in evidence.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Dinkelspiel & Hart and Buck, Walshe & Buck for Executor, Appellee.

      Chrétien & Suihon for Defendant in Rule, Appellant.
    Submitted on briefs June 22, 1896.
    Opinion handed down June 23, 1896.
   The opinion of the court was delivered by

Breaux, J.

This case was remanded to enable the parties interested to prove that there are no minor heirs.

At the trial, certificates of the curate, Reider, were admitted as proof of the fact that there were no minors, Armbruster.

On appeal it was urged by appellant’s counsel that these certificates were offered without having first submitted them for their inspection, and without having given them an opportunity to disprove or explain them.

The appellant further urged that she desired to purchase the property free of all clouds upon the title, and that the case should be remanded to allow the explanation, by testimony, of the family tree of the Armbruster family.

After the case had been remanded to the Civil District Court, the purchaser obtained a commission to take the testimony of the curate who had given the certificates in question.

It was executed in due time and returned.

The curate of a church in Wolfach, Germany, was the witness examined under commission.

He testifies that he kept the register of births, baptisms, marriages and deaths of his church.

He was directed by the question propounded to examine the certificate he had issued on the 28th day of February, 1898, and referred to on the trial of the case as certificate A, and state whether all the facts therein contained were taken from the register of his church or not.

He answered yes. He explains how the information was obtained, showing that these certificates are correct. There is nothing about these certificates, or the statement of this witness, that suggests, in the most remote manner, that they are not absolutely true. The entries were made by one who had authority to make them.

The inquiry heretofore was particularly directed to Anton Armbruster, and as to whether he left minor children.

The family tree shows that he was father of two children, Maria and Karl; the former was born in 1855 and the latter in 1857. Neither is married. Of these facts, we judge that the evidence is-entirely sufficient. From the register, duly kept, the names, date of birth, and other needful facts are given with ample particulars to prove that there are no minors who can be interested in the title.

The United States Consul at Kehl, Germany, certifies that G. Reider, whose name is subscribed as a witness in answer to interrogatories propounded, was parochial clergyman at Wolfach.

The certificates, admitted in addition, show the mai’riage and death of the parents of Joseph Armbruster, the testator in question; the birth of each child and the death certificate of such as died, showing that at his death he had no minor brothers and sisters.

With reference to Anton Armbruster, in our decision remanding the case, we said, inter alia:

The executor of the estate, Mrs. Justus, applied for a rehearing on the ground that Anton Armbruster lived more than five years after the date of the judgment of 24th of November, 1876, probating the will of Joseph Armbruster, and, in consequence, prescription at his death was a bar to any informality of the will.”

On the last- trial, which resulted in a judgment from which this appeal was taken, a certificate properly admitted in evidence shows that he, Anton Armbruster, died 20th October, 1882. It is therefore abundantly proven that the five years in question had .elapsed. He was the father of Maria and Karl, mentioned above. They, Maria and Karl, were not concerned in the estate of their uncle, Joseph Armbruster, during the existence of their father, Anton Armbruster, who lived, as we have just seen, more than five years after the will of his brother Joseph had been probated.

In our former opinion, Succession of Justus, 47 An. 306, we said: “ In order that she may purchase the property free from all clouds upon the title, she desires that the case be remanded, to allow the explanation by testimony of the family tree and the curate’s certificate.”

The explanation by testimony was had, and we think it proves the verity of the family tree and the curate’s certificate.”

As to the family tree, it appears that the registry was in conform - " ity with the rules of the registering church; the whole community being interested in their truth and preservation, it imports verity upon its face.

It was not a private writing, the object of interest to but few. Best on Evidence.

In our judgment, the title tendered is one that the defendant in rule should accept.

It is. ordered, adjudged and decreed that the judgment appealed from is affirmed at appellant’s costs.


text:
    No. 12,160.
    New Orleans & Carrollton Railroad Company vs. Board of Levee Commissioners of Orleans Levee District.
    Plaintiff proved up its title. The maps introduced in evidence do not impeach the validity of the titie, or lessen the value placed on the property expropriated.
    The defendant having admitted that the property was plaintiff’s, and having fixed a value without deduction for a street, is decreed indebted for the whole property, without reference to the street.
    The grant of a right to extend tracks through certain designated streets can not be construed into an intended indemnification for property expropriated by the Levee Board.
    The evidence of the witnesses sustains the correctness of the judgment appealed from as to the value of the property.
    The party cast in the suit owes the cost.

      APPEAL from the Civil District Court for the Parish of Orleans: Rightor, J.

      Ambrose Smith and John M. Bonner for Plaintiff, Appellee.

      Bernard MeOloskey for Defendant, Appellant.
    Argued and submitted May 23, 1896.
    Opinion handed down June 1, 1896.
    Rehearing refused June 25, 1896.
   The opinion of the court was delivered by

Breaux, J.

The Board of Commissioners of the Orleans Levee District, under authority of law, appropriated property known as the Carrollton Railroad Depot at the same time that it appropriated the property of a number of other persons, upon which it built and constructed a levee.

In 1892 a statute was enacted by the General Assembly authorizing the defendant board to levy a special tax in order to indemnify those whose property had been thus appropriated; the statute provided that the amount to be paid each owner should not exceed the assessed value at the time it was appropriated.

This suit was brought to recover the alleged value of the property, and to that end the plaintiff alleges that since more than fifty years they are the owners, and in proof produced title.

The defendant urges that plaintiff is without right, for the reason that the map in evidence shows that the greater part of the buildings upon defendant’s property was standing within the limits of the public streets.

In the second place, the defendant avers that the plaintiff has already received compensation for the expropriated property, and lastly defendant contends that the property is not in value equal to the amount claimed.

Evidence to prove the value of the property was admitted. The assessment roll shows that the year the property was expropriated it was assessed at the amount now claimed by the plaintiff.

The judgment of the District Court was for plaintiff, in the sum of sixteen thousand six hundred and twenty dollars, and condemned the plaintiff to pay costs.

From the judgment the defendant prosecutes this appeal.

In the answer to the appeal the plaintiff prays that the judgment in its favor be increased to the amount claimed in its petition, subject to a credit of eleven hundred dollars; and that costs be paid by the defendant.

Returning to the fifth question — the ownership of the property— the evidence shows that it was bought by the plaintiff in 1833, and that the title was duly recorded. This is not disputed by the defendant. The defence is limited to the maps, i. e., as to their effect as evidence, showing, the defendant argues, that part of the property was a public street prior to and at the date of the appropriation.

The maps were offered by plaintiff to show the locus in quo. The whole property was assessed as the property of the plaintiff. These maps are not translative of title; nor do they, without the aid of any other evidence whatever, make proof of expropriation. All the witnesses agree in the statement that all the property of defendant, at the point already stated, was appropriated by the Levee Board, in order to construct thereon part of a new levee. In fixing the value no reference was made to any claim the city had to any part of the property as a street. The plaintiff was, in so far as the record shows, the undisputed owner of the property.

Moreover, there was a meeting called of all those whose names were on the assessment rolls to come before the Special Committee of the defendant corporation to obtain title from them and fix the values of the different properties'.

At the instance of the defendant the value of the property of plaintiff was fixed at seventeen thousand seven hundred and twenty dollars; nothing was said before that committee of a street running over any part of the property.

It is true that the claim of the defendant railroad company was rejected, and no amount was allowed by the defendant, but the re - jection was not on the ground that it did not own the property.

. The principal point on which the defence rests is the value of a franchise granted by the city of New Orleans to the plaintiff some time after the defendant had made the appropriation before mentioned. It is urged that the value is equal to the amount plaintiff can claim as indemnity, and that the former (the grant of the franchise) should be considered a fair compensation for the expropriation. In the preamble of the grant it is stated the depot of the New Orleans & Oarrollton Railroad Company has been appropriated and destroyed by the Levee Board of the parish of Orleans for the construction of the new protection levee.

In the ordinance following the preamble no mention is made of indemnity. The ordinance is a mere grant of franchise without any reference to indemnity intended or to any consideration whatever. In the absence of any expression in the text upon the subject we would not be justified in assuming that it was the intention of the City Council to grant a franchise as an indemnity for an appropriation. The two corporations are separate and distinct. Their functions are not the same. The former has naught to do with the appropriations of the latter.

Another depot and workshops were needed by plaintiffs. They bought the site some seven or eight squares from the expropriated depot. Access to this property was essential. The right of way was given through certain named streets. Several causes may have moved the Council to make this grant.

There were contractual obligations between the city and the plaintiff entered into with the view of benefit to each. The former was interested in the successful operation of the road. It is not for us to determine, in the absence of an expression upon the subject, what motive prompted the Council, or that the Council, by a grant of franchise, intended an indemnity to the defendant.

The quantum of indemnity presents the next question. The appellant insists that the amount claimed is excessive, while the appellee prays for an amendment of the judgment and an increase to the amount claimed in the petition.

The witnesses greatly differ in regard to the value of the property. The assessment was considerably higher than it had been the previous year, owing, it seems, to the increase in the value of property in the locality.

Despite the increase in value, some of the witnesses thought that it was a high assessment; others estimated its value at considerably less. The weight of the evidence, we think, sustains the value placed upon it by the defendant. It serves as a basis for the judgment of the District Court. We agree with the conclusion arrived at by the learned judge of that court as to that amount. The property of the old depot remaining to the plaintiff was valued at eleven hundred dollars. This, we think, should be deducted from the value of the whole property. To that extent the defendant is entitled to credit on the amount due for indemnity; it was part of the depot property valued which was not essential in building the new levee.

With reference to the cost: It was not disputed in oral argument; costs are due by the one cast. There are no special statutes exempting the defendant from the effect of the textual provisions of Art. 549 of the Code of Practice. In this respect, also, the judgment is amended.

It is ordered and adjudged that the judgment appealed from be amended by condemning the defendant to pay the costs of suit in the District Court.

As amended the judgment is affirmed.

Costs of appeal to be paid by the appellee.


author: Nicholls, C. J. Breaux, J.

text:
    No. 12,021.
    The Vicksburg, Shreveport & Pacific Railroad Company vs. The Mayor and City Council of Monroe.
    The clause in the charter of the city of Monroe “ to fix the squaring and to prevent any encroachments upon or the stopping and obstructing the streets” * * * gave to that city the right to pass the ordinance to cause the removal of obstacles from the public streets; but the right of a person who denies the legality of the exercise of that power, in respect to a particular locality, to apply to the courts for the purpose of judicially testing whether it fell under the operation of the power, is equally clear.
    The claim that an expropriation of land for railroad purposes by a particular railroad necessarily carries with it, as an immediate and direct consequence, the right of a city or parish to build or carry a street across it without expense of any hind to itself, and without judicial proceedings, is not tenable; certainly not, in the absence of a statute, or of the railway company holding its charter subject to such a right.
    On Rbheakins.
    Bkeaux, J. The defendant having acted within its delegated powers is bound by its compromise, at least until annulled in a direct action.
    APPEAL from the Fifth Judicial District Court for the Parish of Ouachita. Potts, J.

      Stubbs & Bussell for Plaintiff, Appellee.

      Thos. O. Benton, City Attorney, for Defendants, Appellants.
    Argued and submitted January 22, 1896.
    Opinion handed down February 10, 1896.
    Oral argument on application for rehearing June 1, 1896.
    Rehearing refused June 15, 1896.
   Plaintiff alleges that in the year 1858 it acquired for depot •and railroad purposes the tract of land formerly belonging to the heirs of E. N. Wilson, in and near the town of Monroe — that it was acquired by purchase and duly-recorded.

That in the year 1859-60 it acquired for a valuable consideration from Dr. John Calderwood and wife a strip of land one hundred and fifty feet wide through the tract of land immediately adjoining the Wilson tract below and on the south thereof — that same, however, was acquired by the original Vicksburg, Shreveport & Texas Railroad Company, which constructed its railroad and tracks thereon in the year 1859-60, and that same has been operated ever since, save an interval during the war.

The petitioner had, by purchase, succeeded to all the rights of the Vicksburg, Shreveport & Texas Railroad Company, and had made extensive and valuable additions to the tracks and works. That for the proper and safe use of ios property, whose large machine shops and numerous tracks have been made, and to prevent trespassers from its yards and tracks where they have no right, and to prevent accidents and injury to persons so trespassing, the plaintiff had enclosed on either side its shop and track yard for its own protection and that of the public.

That pretending that two several streets of the town crossed the tracks and yard of the company, to-wit: the streets known as Grammont and Wood, had been closed by plaintiff, the Mayor and City Council of Monroe had ordered and threatened the removal of said fence on what they claim is Grammont and Wood streets; that said removal would be made and a consequent trespass on the rights and property of petitioner which would work irreparable damage to it, which if estimated in money would be over twenty-one hundred dollars besides the expenses and costs of the proceeding then instituted.

On the prayer of plaintiff an injunction issued restraining the Mayor and City Council of Monroe from committing the trespass threatened, and that they be required not to interfere with or remove the fence constructed by petitioner for the protection of its yards, shops, machinery and tracks in the town of Monroe from Sixth street to the crossing of Oak street by plaintiff’s line of road as now fixed.

Defendants answered, pleading first a general denial. They admitted the repeal of Ordinance No. 588 (closing Grammont street), approved March 2, 1885, and the adoption of the preamble and resolutions to Ordinance No. 843, approved February 4, 1895, ordering plaintiff to remove obstructions to Grammont and Wood streets.

They averred that said preamble, resolution and ordinance were adopted in strict accordance with the powers and rights of the Mayor and City Council of Monroe, as fixed by the charter of said city and the amendments thereto. They denied that plaintiffs or their assignor “ acquired from Dr. John Calderwood and wife a strip of land one hundred and fifty feet wide through the tract of land immediately adjoining the Wilson tract below and on the south thereof.” They averred that by judgment of the Supreme Court in the suit of the Vicksburg, Shreveport & Texas Railroad Company vs. John Calderwood, No. 794 on the docket of said court, rendered on the 23d of July, 1860, a strip of one hundred feet wide through the above mentioned tract of land was expropriated to the use of the above railroad company; and that said strip of land is held by plaintiff subject to all the restrictions and provisions of law applicable to lands expropriated for public use and benefit. They averred that Grammont street and its extension to beyond Young’s Bayou was used as a free thoroughfare and road before the Vicksburg, Shreveport & Texas Railroad was built or incorporated; that said street and road was located on the Calderwood or Hart tract and on that of the Wilson or Railroad tract. That the Railroad and Hart addition to the town of Monroe was surveyed and laid off by G. Y. Dabney, Superintendent and Chief Engineer of the North Louisiana & Texas Railroad in the year 1870, and the map of said addition was filed in the Recorder’s office of the parish of Ouachita, and paraphed “ Ne Varietur” on the 12th of January, 1871.

That by said survey and the filing of said map, and by divers acts on the sale of property and recognition of said map, the said Grammont street, from its intersection with Hall street to the eastern limits of the town and city of Monroe, was dedicated to the public use and became one of the streets of said town and city of Monroe. Théy averred that Wood street, from Young’s Bayou, the eastern boundary of the city, to the Vicksburg, Shreveport & Pacific Railroad,, has been regularly and legally dedicated to the public use as one of the streets of the city of Monroe. They averred that petitioner’s property, the Vicksburg, Shreveport & Pacific Railway, is a public highway under the Constitution and laws of the State of Louisiana,, and as such plaintiffs are totally without power to obstruct or prevent free ingress or egress from any public road or street to or from the right of way of said railroad or highway. They averred that. Wood street was dedicated to public use as a street of the city of Monroe, from the right of way of said North Louisiana & Texas Railroad (now Vicksburg, Shreveport & Pacific Railroad) to the eastern limits of the city, by the filing in the Recorder’s office of the parish of Ouachita the map of Delery’s addition to the city of Monroe, in 1871, and by other acts ratifying said dedication. They averred that they had been specially damaged by the injunction obtained by the plaintiffs in the sum of five hundred dollars as attorney’s fees, and in the further sum of two thousand dollars by the illegal interruption of travel on the streets of the city by the costs incurred, by bringing the authority of the city in contempt and otherwise.

The District Court gave judgment in favor of the plaintiff, perpetuating the injunction, and the defendants appealed.

The opinion of the court was delivered by

Nicholls, C. J.

We find in the record a correspondence between parties representing the railroad company and the city authorities of Monroe, just prior to the passage of Ordinance No. 588, declaring Grammont street closed. On November, 1884, F. Y. Dabney, chief engineer and superintendent, wrote a letter to the mayor and City Council that he was in receipt of information which justified him in the belief that Grammont street, from the freight depot as then located to the vicinity of the Hebrew cemetery, was a part of the original property of the road and had never been alienated, and that it would be a grievous burden upon the company to keep that street. open at all times in view of the numerous tracks that were designed to cross it. He further stated that it was his duty to inform them that unless it could be shown that the company had no rights in the premises, the company would be forced to close said street at such points as it crossed its tracks.

John Scott, vice president and general manager of the railroad company, also wrote to the Mayor and Council. He stated to them that he had been advised that the street claimed by some of the citizens of Monroe to exist through the railroad’s yard, being an extension of Grammont street as laid out on some of the maps, had been used by the public only by sufferance of the railroad temporarily while there was no necessity to prevent such use. That he had lately become aware that a different view of the public right was entertained by some of the inhabitants of Monroe, and that, in deference to their wishes, the council had deemed it just, and had felt constrained to demand, that said alleged street be and remain unobstructed until and unless it could be judicially determined that no such public streets exist as a matter of right. That the company would therefore find it necessary, to protect itself from any injury and damage so large as to be wholly disproportionate to the public inconvenience involved, to enter into a litigation with the public'through the Council; but believing that the Council in common with the citizens of' Monroe generally would be willing to deal with the questions involved in a spirit of fairness, the company itself being reluctant to gain public ill will by insisting on its rights through the courts if the controversy could be otherwise settled to the mutual satisfaction of' the parties concerned, it asked that the street in question be declared by a resolution of the Council to be henceforth vacated as a public street, permanently abandoned and closed. In consideration of such-action the company proposed to pay the necessary expense of opening and making such other street or streets as would best contribute-to the public convenience, as a substitute or substitutes for the one closed, to be designated by the Council and agreed upon as a condition to the closing of the street then asked for. The company suggested that the matter be at once considered, and the expense of opening a new street, so far as the acquisition of necessary lands was concerned, be ascertained, and that the resolution asked for be passed-to take effect only upon the conditions to be therein stated. The-company asked that in the meantime further action by the authorities in respect to the proposed removal of alleged obstructions be temporarily suspended — the company also suspending any action on its part in respect to legal proceeding in the premises.

The passage by the Council of the Ordinance No. 588, closing Grammont street on the terms and conditions stated, followed shortly after, the ordinance obviously evincing a compromise between the parties relatively to their respective contentions and claims.

Shortly after the company purchased from Ferd. Cook and the heirs of Delery the lots and ground necessary to be acquired to enable it to make the necessary changes in the streets and opened a connection between Grammont and Eighth street. It also opened, ditched and graded Eleventh street from intersection with Oak street to Elysian street through the property purchased from the heirs of Delery and its own property.

Matters seem to have been satisfactorily adjusted between the company and the railroad from 1885 and 1886 up to within a short period prior to the passage of Ordinance No. 843, which repealed the Ordinance No. 588, by which Grammont street was declared closed, and notified the railroad to remove obstructions, declared to then exist interfering with the free use of Grammont street and of Wood street where said streets cross the tracks of the railroad, and to remove the fence from the sidewalks of Grammont street on the north of said railroad line.

The act which gave rise to this repealing ordinance seems to have been the placing by the company of a fence around a portion of its grounds, the fence closing the space covered by what the Council claimed to be the public street known as Grammont and closing East Wood street at its point of intersection with the railroad’s right of way.

Counsel for the city says the legal questions presented to the court for consideration are:

1. Has the Mayor and city of Monroe the authority to cause the removal of obstacles from the streets of the city?

2. Are Grammont and Wood public streets of the city of Monroe by express or implied dedication?

3. Has a railroad company, after buying or having property donated to it by formal act with regard to its situation on a known and recognized street, the right to run a fence across that street and claim the street as its own property?

4. Has a railroad company, after having expropriated land for its right of way, the right to build a fence cutting off a public street or road at its intersection or crossing of that right of way?

On the first point submitted counsel say: “The power of the Mayor and City Council, under the fifth section of its amended charter (Act No. 81 of 1871), is ample and complete with respect to the management and control of the streets, public roads, etc., of the city, to-wit: ‘The Mayor and City Council shall have full power and authority to make and pass such laws as are necessary and proper. Ninth, to survey and lay out streets, to regulate and make improvements to the streets, public squares and other propety, * * * to order and direct the ditching, filling, opening, widening and continuing any of the streets, * * * to determine the completion and pavements of the streets; to fix the squaring and prevent any encroachments upon or the stopping and obstructing of the streets * * * and to order any object, whatever may be its value, which may encumber the said places or prevent and embarrass the free use of the same to be removed or sold for whom it may concern in the same manner and after such advertisement as shall be required by ordinance.’ ”

The city complains that though it was specially authorized by its charter to cause the removal of obstacles from the public streets it has been restrained from doing so by injunction.

The right of the city of Monroe under its charter to cause the removal of obstructions from its public streets is unquestionable, but the right of a person who denies the legality of the exercise of that power in respect to a particular locality to apply to the courts for the purpose of judicially testing whether it fell under the operation of the power is equally clear. The city of Monroe and the plaintiff company were at issue as far back as 1885 as to whether the street known as Grammont street extended along or across the company grounds or not. Whether from a fear on both sides as to what would have been the result of litigation designed to settle that matter through the courts or from a spirit of mutual concession or self-interest, the fact remains that the parties adjusted their differences at that time in a manner satisfactory to both. They designedly withdrew from determination by the courts their respective claims and pretensions.

The circumstances of this case do not call for any investigation by us of the original rights of the parties in respect to Grammont street.

The ninth section of Act No. 81 of 1871 has been materially changed by an amendment to the sapm made by the fifth section of Act No. 81 of 1873. We quote so much of this last mentioned section (Sec. 5) as is necessary for our present purposes:

Section 5. That the ninth paragraph of Sec. 9 of said aforementioned act to be so amended and re-enacted as to read as follows:
“Ninth — To survey and lay out streets, to regulate and make improvements to the streets * * * to order and direct the ditching, filling, opening, widening and continuing of any of the streets; and if for the above or other public purposes the land of any private person or body corporate is necessary to be had, to purchase the same at a reasonable price or cause the same to be expropriated according to the mode and formalities prescribed by existing laws upon the subject; to close and sell to any parties any street, alleys or real estate donated to the city for the use thereof in cases in which such •closing and sale would enure to the public convenience and inderests of said corporation.” The action of the City Oouncil in enacting ■Ordinance 588 of 1885 was obviously grounded upon this section of the law of 1873, as the recitals of the ordinance show. It declares that the closing of the street when accomplished by compliance on the part of the railroad company with the obligations imposed on them therein would enure to the public benefit, convenience and interest of the city.

The Oouncil was authorized to pass the ordinance.

The city contends that the company has failed to comply with its obligations under the ordinance, and, therefore, it has a right to ignore it and proceed as if it had not been passed. We note the fact that the closing of the street was conditioned upon compliance by the railroad company with its obligations, but we think that as •a matter of fact the company has complied with them; not only this, but the city has taken possession of Eleventh street over the property purchased by the company to be used as a substituted street and dealt with it as such. It is not claimed that that street or its use passed to the city otherwise than under the act of compromise — it has not been expropriated nor has it been dedicated to the public •except through and by the terms of the compromise between the parties. We are of the opinion that the act of agreement stands between the city (one of the parties to the act) and its course as in. form and manner it has undertaken to presently proceed. Railroad Co. vs. Jacobs, 44 An. 922.

The city in its brief says it “ draws a distinction between Grammont street and Wood street from the fact that plaintiff claims the former street as being entirely located on its own property and denies the dedication, whereas the dedication of Wood street is indisputable and plaintiff can only resist the right of the city to open that street or keep it open to a portion of its right of way. Plaintiff ■claims in its petition for injunction that it purchased the strip on which its right of way is located from Dr. Oalderwood and wife, but it has been shown this allegation is erroneous.”

Referring to Wood street the brief says: “ On all the maps which have been introduced in evidence in this suit, except the map of the Railroad and Hart’s addition, Wood street is represented as running from the eastern limit of the city to and into the railroad right of way. The original map of Delery’s addition filed in 1871 has been lost, but that map with all others showing special additions was embodied in the McLeran maps (filed in evidence) accepted by the city in 1874. Wood street never crossed the railroad right of way, as there is a portion of it west of the railroad which has never yet been ■expropriated by the city. But for twenty-four years it was open on the east side and recognized and used as a public street into the right of way, until it was fenced by plaintiff prior to the institution ■of this suit. Wood' street enters the right of way on expropriated property. The expropriation was made for public use. Can the railroad now deprive the public of that use which they have had for more than twenty years, and deprive the property owners on Wood ■■street of a servitude which they acquired when they purchased the property? Article 244 of the Constitution of 1879 declares that ‘railways heretofore constructed or that hereafter may be constructed in this State are hereby declared public highways.’ A way open to all the people is a highway. The exceptional feature of the instant case, is that Wood street has never been opened across the right of way of plaintiff; an object which the City Council has in view in the immediate future. The facts of the case are these: At the point of intersection there is a space of at least forty feet on the ■east side of the right of way unoccupied by tracks. Diagonally across from Wood street, on the west side of the right of way and ■extending to it, is Extension alley, recognized in plaintiff’s deeds and map, and, therefore, persons passing to and from Wood street either-went to the east, along the right of way to Oak street, or to the west to Desiard street, or else crossed the tracks and right of way to Extension alley.”

The city of Monroe was incorporated by act of the General Assembly, approved March 14, 1820. It has been since greatly enlarged by successive additions to its territory of rural property in the neighborhood laid out into squares and streets by its owners, the property so laid out having been brought under the power and control of' the city by subsequent acts of the Legislature (see Act No 102 of 1871,. Act. No. 81 of 1873). Among these additions was one known as the- “ Delery addition.” The map connected with that addition is stated to have been lost, but the property is not claimed to have been laid out by its owners prior to 1871. It was dehors the city limits long after the railroad company acquired its right of way, which was as far back as 1858 or 1860. Railroad vs. Calderwood, 15 An. 481.

We have found on the maps offered in evidence a street designated by the name of Wood or West Wood street. It commences at the Ouachita river and runs back into the city until it reaches Eighth street, which is a longitudinal street running more or less parallel to the river. East Wood street stops at Eighth street and directly opposite to Wood street, on the opposite side of Eighth is private property, which extends from Eighth to the railroad’s right of way. To the right of West Wood street, going from the river, is Oak street, which, commencing at the river, crosses the railroad’s right of way and extends beyond to the eastern limit of the city. The longitudinal streets-are designated by numbers (though some of them are known also by special names) — the numbers running from two to eighteen or more; Second street being that nearest Ouachita river. The streets running back, or away from the river and nearest to WestWood street, are, first, Grammont street, which, starting at the Ouachita river, runs back to Eighth street; and next, on the left of Grammont street commencing at the river, is Desiard street, which crosses the railroad track, and extends to the eastern limits of the city. At a point on the line of Eighth street furthest from the river and about midway between where Wood and Oak streets strike Eighth street starts an alley about twenty feet wide, known as Extension alley, which runs back as far as the nearest line of plaintiff's right of way. Were West Wood street extended from Eighth to and over the plaintiff’s right of way it would connect with a street known as East Wood street, claimed to have been dedicated to the public through the Delery addition in 1871 to the city. In making the plan of that addition the Delerys ran East Wood street to the right of way, but left open no longitudinal street along the right of way by which parties intending to pass to the front of the city could turn toward Oak street, and there cross the tracks. The side lines of the lots of the Delery property on East Wood street nearest the railroad ran directly up to and along the back line of the right of way. East Wood street was substantially a “ cul de sac.” The Delerys had no power to extend it over the right of way; they might deal with their own property, but certainly could not dispose of that of other persons. In the voluntary disposition of their own property they were at liberty to dedicate to the public just so much, or just so little as they thought proper. They were under no obligation to grant gratuitously a street along the railroad line of way from West Wood to Oak street. The city took what the Delerys gave and no more. It is under these conditions that the city claims that the placing by the railroad company of a fence along their line of road so as to bar entrance upon it from the way of East Wood street was an illegal interference with public rights and an unauthorized obstruction upon a public street. This contention is based upon the proposition that the railroad company did not hold its right of way by “ purchase,” but by an “expropriation for public use;” that the public use to which the property expropriated was thus thrown open was not limited to use for railroad purposes, but for all public purposes, and certainly for that of a highway for crossing purposes. The expropriation proceedings devoted the strip expropriated for railroad purposes for a, full consideration paid for that right by the railroad company.

It is difficult to see how an outlay of the money of the company could be held to forcibly enure to the benefit of the city of Monroe. So far from property which has been appropriated to one public use being thereby ipso facto made applicable to all other public uses, it has been repeatedly questioned whether it could be made applicable at all for a different purpose than that for which it had been specifically expropriated. Lewis on Eminent Domain, Sec. 266, says that “ a general authority to lay out highways and streets is sufficient to authorize a lay-out across the right of way of a railroad but under a general authority to lay out highways a part of the right of way can not be taken longitudinally, nor can the way be laid through the depot grounds, shops and the like, which are devoted to special uses in connection with the road and necessary to its operation and in constant use in connection therewith. But a slight interference with the platform of a depot will not prevent the establishment of a highway.”

We do not undertake to discuss under what circumstances and to what extent the power of eminent domain over property already expropriated for one specific public use can be applied to make it serve another public purpose. Each case will have to be determined by its special circumstances. The authority cited is used by us as going to show that the city’s claim that an expropriation of land for railroad purposes by a particular railroad necessarily carries with it as an immediate and direct consequence the right of a city or parish to build or carry a street across it without expense of any kind to itself, and without judicial proceedings, is not tenable; certainly not in the absence of a statute or of the company’s holding its charter subject to such right.

In the case at bar the city has never attempted by expropriation proceeding to extend East Wood street across the railroad right of way oyer to Eighth street, where that West Wood street now terminates. In order to make the connection between East and West Wood street, not only would the city have to obtain a right of way across the railroad property, but it would have to expropriate a portion of the private property lying between the railroad, West Wood and Eighth street. It is idle to discuss npw what the Council could -or could not do under expropriation proceedings taken out under its '(power of opening and closing streets granted by the fifth section of Act No. 81 of 1873. It will be time enough to examine into that anatter when an actual issue confronts us. No proceedings ■of that character have been instituted. As matters stand (and we are dealing with the parties from the present condition of things .alone,) the city objects to the company’s fencing in its right of way .■along its line of intersection with East Wood street as an interference with public rights and an obstruction upon a public street obviously under an asserted claim in the public to pass longitudinally along plaintiff’s right of way from the head of East Wood street to Extension alley or Oak street. That right in the public does not in our •opinion exist, simply by virtue of its having been left unenclosed and a portion of the public suffered to pass along it unopposed. The company was not forced to fence its right of way, but it had the right to do so, so long as the legal rights of others were mot impaired. Grossman vs. City of Oakland, 41 Pac. 6. There ihas been no dedication by the company to the public of any portion of its right of way nor is there any description in this case. New Orleans & Carrollton R. R. Co. vs. Carrollton, 3 An. 285; Torres vs. Falgoust, 37 An. 500; City of Shreveport vs. Drouin, 41 An. 870; Kansas City C. & S. Ry. Co. vs. Woolard, 1 Mo., App. Rep. 258; Am. Digest, 1895, p. 2155, No. 24. We think the judgment correct and it is hereby affirmed.

On Appication por Rehearing.

Breaux, J.

We have carefully re-examined the issues in this case and have not found it possible, in law, to disturb the conditions accepted by all the parties to the compromise and executed many years ago.

We understand that the fences closing these streets run on the lines agreed upon between the plaintiff and the defendant in 1885— i. e.,'where the streets intersect the right of way, and indirectly affect, the right of way. Other points and other streets, as to the right to close them, are not before us for decision.

We would not be justified in treating the ordinance as void. It must remain in force until decreed null in proceedings to that end.

It may be that the Council desiring to encourage plaintiff’s enterprise has conceded more than it should have conceded; nevertheless the concession was made and has been accepted and the conditions complied with. It has become a fait aeeompli, which, under •any view, is not void, and can not be absolutely ignored by the defendant as attempted by ordering the reopening of the street.

We have not held that a railroad company has the right to build a fence, cutting off a public street or road at its intersection or crossing, but we decided that it has authority to carry out a compromise with a municipal corporation and close a street in accordance with •one of its ordinances looking to the closing of the street and the opening of another thoroughfare, in lieu of the thoroughfare closed. The power to close streets is delegated to the Council. There is no question here of eminent domain or of the exercise of that right; an undeniable right of those having the required interest for its exercise.

The plaintiff has not made dedication of the street enclosed to public use.

If it had, the compromise would have the effect; of putting an end to that use, at least until annulled in a direct action.

Municipal corporations have no power to pass ordinances transferring a privilege or right for an expressed consideration and afterward repeal them without granting to the transferees of the privilege or right the least hearing.

Our original decree remains undisturbed.

       Ordinance No. 588 referred to is as follows:
      •“ An ordinance declaring Grammont street where it is crossed by the tracks of the Y. S. & P. R. Company closed against public travel as a thoroughfare whenever the said railroad company shall have opened Grammont street into Eighth, properly ditched, graded and otherwise prepared for public uses, and shall have properly opened, ditched and graded a street running north from a •point where Oak street intersects with the main track of the Y. S. & P. Railroad to Grammont street, and shall have opened, ditched and graded a street running north from Grammont street to Elysian street. The opening, ditching and grading of said streets to be done at the expense of said railroad company, and the closing of said Grammont street, by the operation hereof, at said point being declared to enure to the public convenience and interest of the city.
      “Be it ordained by the Mayor and City Council of Monroe, That Grammont •street, where it is crossed by the tracks of the Y. S. & P. R. R. Co., be and the same is hereby declared closed against public travel a¿ a thoroughfare; provided, that the Y. S. & P. R. R. Co. shall open Grammont street into Eighth street, properly ditched, graded, and otherwise prepared for public uses, and provided said company shall open, ditch and grade a street running north from a point where •Oak street intersects with the main track of said railroad, and thence to Grammont street, and provided said company shall open, ditch and grade a street running from Grammont street to Elysian street; said work herein imposed on said •company to be done within a period to be fixed by the Mayor and to be notified by him to the company — official notice of the passage of this ordinance to be made— •and provided further, that all expense for the purchase of the property to open the streets which said company is herein required to open is to be borne by it, also all cost of ditching and grading the same, and provided further, that the work •contemplated under the provisions of this ordinance be done to the entire satisfaction of the Mayor.
      “Be it further ordained, That the closing of said street at said point when accomplished by compliance on the part of said railroad company with the obli•gations herein imposed on them is hereby declared to enure to the public benefit, convenience and interest of the city.”
      This ordinance is declared to have been adopted in 1885.
      Ordinance No. 848 and the preamble and resolutions attached to it, also referred •to in the pleadings, are as follows:
      “ Whereas, Y. S. & P. R. R, Company have continued for years openly and persistently to avoid, fail and refuse to comply with the obligation entered into by them which induced the Mayor and City Council to provisionally close Grammont •street as a thoroughfare where it crosses the tracks of said railroad company; and
      “Whereas, in disregard and contempt of the protests and demands of said Mayor and City Council the said company has inclosed both Grammont and Wood streets, and thus cut off all communication north and south of said tracks from Besiard to Oak. Therefore.be it
      “ Resolved, That the Mayor be and he is hereby authorized to notify the officers •of said Y. S. & P. R R. Co. that Ordinance No. 588, approved March 5,1885, has been this day repealed, and further to order said railroad company to remove all •obstructions now existing which will in any way interfere with the free use of Grammont street and of Wood street, where said streets cross the track of said railroad, to remove the fence from the sidewalks of Grammont street on the north •of said railroad line, and to notify said company that if said obstructions are not removed within ten days they will be removed by the police force at the costs of •said railroad company.”
      Approved February 4, 1895.
      Ordinance No, 843,
      Repealing Ordinance No. 588, Approved March 2,1885.
      Section 1. Be it ordained by the Mayor and City Oouncil of the city of Monroe in regular session convened, That Ordinance No. 588, approved March 2, 1885, •entitled “ An ordinance declaring Grammont street where it crosses by the track •of the V. S. & P. Railway Company closed against public trafile as a thoroughfare ” is hereby repealed.
      Sec. 2. Be it further ordained, etc., That this ordinance shall take effect from .and after its passage.
      Approved February 4, 1895.