author: Watkins, J.

text:
    No. 13,432.
    John Callaghan vs. The Town of Alexandria.
    Syllabus.
    Under the provisions of the present Constitution, it is only in pursuance of the authority of a vote of a majority in number and amount of the property taxpayers of a municipality that it may incur debt and issue negotiable bonds therefor; and which indebtedness and issuance of bonds must be specially restricted to the extent of one-tenth of the assessed valuation of the property within said municipal corporation, and shall not exceed five mills on the dollar of the assessed valuation of the property in any one year.
    It is not admissible for a municipal corporation to issue bonds for any other purpose than that stated in the submission; and it must be restricted and rest upon the special tax authorized by a vote of the property tax-payers as directed in the Constitution.
    Municipal authorities are not authorized to predicate the issuance of bonds for any other indebtedness than that which is contracted subsequent to the election ; and it can not be rested upon an appropriation of any portion of the general fund tax.
    The law does not require that the ordinances of municipal corporations should be preceded by titles such as are required for legislative enactments.
    APPEAL from the Tenth Judicial District Court, . Parish of Rapides. — HunLer, J.

      Horace H, White for Plaintiff and Appellant.

      Ryan & Blackman for Defendant, Appellee.
   The opinion of the court was delivered by

Watkins, J.

This suit is brought by the plaintiff as a citizen, voter and tax-payer of the city of Alexandria, Louisiana, enjoining the municipal authorities of said city from issuing seventy-one thousand dollars in bonds, for the purposes of sewerage, paving, etc., and the levying of a five-mill special tax, and the setting aside of three and one-half mills of the general fund tax of the city, in order to provide for the payment of the principal and interest of said bonds.

On the issues thus stated, the caso went to trial in the District Court, and a judgment was rendered in favor of the defendant, dissolving the plaintiff’s injunction, and recognizing and sustaining the legality and constitutionality of the ordinance of said city relative to tho aforesaid, bond issue, and the levying and setting aside of the taxes referred to.

From ihe plaintiff’s petition we ascertain that three grounds of illegality in the aforesaid proposed bond issue, are urged.

1. That the ballot used at the special election submitted three questions to the voter, and not one only as the law requires, and that it was so framed, that the voter was compelled to either vote for or against all three propositions in solido, and was rendered unable to vote for one or more if he saw proper; (2) that the ordinance submitting the bond issue to a vote of the people, had no title explaining clearly the substance of the ordinance as submitted; (3) that it is ultra vires of the Mayor and City Council to set aside three and one-half mills out of the general fund taxes of the city annually, commencing with the year 1909, and to run for thirty years thereafter, in addition to a five-mill special tax for the purposes of the aforesaid public improvements.

From the foregoing, it will be observed, that no point is made against the legality or constitutionality of the special five-mill tax; or with respect to the number of votes which were cast in favor thereof.

I.

The following propositions were submitted by the municipal authorities of the city of Alexandria through the instrumentality of an ordinance adopted by the Council on the 16th day of October, 1899, to-wit:

“1. To authorize the incurring of debt and issuing of negotiable bonds by said town to the amount of seventy-one thousand dollars, the said bonds to run for the period of forty years, and to bear interest at not more than five per cent, per annum.

“2. To authorize the levy of a special tax of five mills annually on the assessed valuation of the property of said town for the period of forty years to secure the payment, principal and interest, of said bonds; the said tax to run from and including the year 1909.

“3. To authorize the devoting of three and one-half mills of the general tax for the said town on the assessed valuation of the property of said, town to further secure the payment of said bonds in principal and interest. The appropriation of the three and one-half mills of the general tax on the assessed valuation of the property of said town, l.o commence -and take effect from and including the year 1909; and to remain in effect for thirty years thereafter,”

The objection urged to the form of the ballot used at the election is, that the foregoing three propositions were submitted as a unit, and not severally.; that is to say, that the three propositions were so framed as not to be susceptible of being voted for separately — in other words, so as to enable a voter to vote for one and against another, thus compelling the yoier to vote for all, or against all the propositions stated.

It is submitted upon the part of the defendant, that the ballot used is entirely unobjectionable. The following is the form of the ballot used:

“State op Louisiana, :

“Rakish op Rapides. :

AlexaNdkia, Louisiana, December.1899,

x x . * * x x

“Fon.

“The following propositions submitted to a vote of the property Sax-payers of the city of Alexandria, Louisiana, by ordinance adopted on the 16th day of October, 1899,”- — quoting them.

■“Against,

'“The following propositions submitted to a vote of the property tax-payers of the city of Alexandria, Louisiana, by ordinance adopted on the 16th day of October, 1899,” — quoting them.

*«■***«■

“Name of voter........

“Amount assessed $.”

The contention of defendant’s counsel is that the ballot contained “virtually one proposition, the bond issue. The vote for one or for two of the propositions would have been equivalent to a voting against the whole, as the city would have been powerless to do anything if either number one or two had been carried and number three defeated.”

We think the large majority of the votes both in amount and number for the three propositions show, that it was clearly understood-^ that it would have been of no use or advantage to the people unless the three were carried; besides, if any one had desired to vote for numbers one and two, and against number three, he could have written opposite number three the word “against.”

We think this argument is perfectly conclusive against the objection urged to the form of the ballot.

The insistence of plaintiffs counsel is, that “a voter might have desired to vote for the bond issue, but against the five-mill tax, and the setting aside of the three and one-half mills of thfe general fund; or for the bond issue and the five-mill tax, but against the three and one-half mill appropriation; or for the bond issue and the three and one-half mill tax.”

We think this contention is very well answered by the argument of defendant’s counsel, which is to the effect that the entire proposition was a single one, only the bond issue vel non.

It is perfectly evident that if either the five-mill special tax, or the reservation of three and one-half mills from the general fund tax had been defeated, that the bond issue would have been a failure in its entirety.

II.

The objection that the ordinance of date, October 16th, 1899, directing that a special election be held on the 20th of November, whereat the foregoing proposition was to be submitted to the electors within the limits of the city of Alexandria in pursuance of a petition and proclamation, was not preceded by a title explanatory of its substance, was a sacramental requirement the absence of which rendered said ordinance nugatory and void, can not be sustained.

The caption of the ordinance in question is as follows:

“Alexandria, Louisiana, October 16, 1899.

“The town Board of Aldermen met in special session at 5 o’clock p. M.

“On motion of Alderman Weill, the following ordinance was adopted:

“Whereas, a petition signed, etc.”

After setting forth in full the proposition to be submitted to the voters, the ordinance concludes in the following words:

“Be it ordained by the Mayor and Board of Aldermen of the town of Alexandria that a special election be held and is ordered for the 20th of November, 1899, and the Mayor is authorized and requested to issue his proclamation for said special election,” etc.

By comparison made with the statute, the language of the ordinance is found 1;o be in exact keeping therewith, as will be shown by the following, to-wit:

“Be it further enacted, etc., That the style of all ordinances shall be; “Be it further ordained by the Mayor and Board of Aldermen of the city (town or village as the case may be) of-and all ordinances and allowances shall, as soon as practicable, be published, etc.”

Section 33, Act 136 of 1898.

That statute provides “for the creation and government of municipal corporations throughout the 'State, and defining their powers and duties,” etc. There is nothing in the statute indicating that the ordinance shall have any title such as the plaintili insists upon, or, indeed, any other; and an attentive examination of Articles 232 and 281 of the Constitution of 1898, fails to disclose any provision upon the subject.

We are of the opinion that this objection is not tenable.

III.

In addition to- the three objections above outlined, as those upon which our decision must rest, counsel for plaintiff and appellant have submitted the following additional objection to the bond issue, for our consideration, to-wit:

That the proposed issuance of seventy-one thousand dollars of bonds by the city of Alexandria being substantially the full ten per cent, limit of the assessed valuation of its property, was illegal, because it ax^pears that the city has an additional present indebtedness of more than thirty-three thousand dollars, no part of which is bonded, and which indebtedness existed at the time of the adoption of the Constitution.

Taken altogether, the proposition of the City Council is, to issue seventy-one thousand dollars of bonds predicated upon the five-mill special tax which has been authorized by a vote of the people, and, also, upon three and one-half mills to he annually reserved from the general fund taxes of the city for a period of time concurrent with the bond issue; and this, notwithstanding there is an existing indebtedness of the city of thirty-three thousand dollars, and which was in existence at the time of the adoption of the Constitution, the provisions of which authorized the issuance of bonds.

The provisions of the Constitution on this subject axe as follows, to-wit:

‘‘Municipal corporations * * * when authorized to do so by a vote of a majority-in number and amount of the property tax-payers, qualified as electors under the Constitution and laws of this State voting at an election held for that purpose * * * may incur debt and issue negotiable bonds therefor, to the extent of one-tenth of the assessed valuation of the property within said municipal corporation * * * as shown by the last assessment made prior to the submission of the proposition to the property tax-payers, as above provided, and may be authorized by the property tax-payers voting at said election, to levy and assess special taxes upon the property subject to taxation in the parish; * * * provided said taxes so imposed do not exceed five mills on the dollar of the assessed valuation in any one year, nor run for a greater number of years than the number named in the proposition, submitted to the tax-payers.

“No bonds shall be issued for any other purpose than stated in the submission of the proposition to the tax-payers, and published for thirty days as aforesaid, nor for a greater amount than therein mentioned; nor shall such bonds be issued for any other purpose than for paving and improving streets, roads and alleys, purchasing or constructing a system of waterworks, sewerage, drainage, lights, public parks and buildings, bridges, and other works of public improvement, the title to which shall vest in the municipal corporation, etc.” Constitution, Article 281.

From the foregoing it appears that it is only in pursuance of the authority of a vote of a majority in number and amount of the property'tax-payers of a municipality that it may incur debt and issue negotiable bonds therefor; and that indebtedness and the issuance of bonds is specially restricted “to the extent of one-tenth of the assessed valuation of the property within said municipal corporation * * * as shown by the last assessment made prior to the submission of the proposition to the tax-payers,” etc. And this article further provides that said taxes so imposed shall not exceed five mills on the dollar of the assessed valuation in any one year; and it also provides that no bonds shall be issued for any other purpose than is stated in the submission of the proposition to the tax-payers.

In this case it is admitted that the proposed issue of bonds is substantially equal to the full ten per cent, of the assessed valuation of its property; and that the special tax imposed is exactly five mills on the dollar of the assessed valuation of the property of the city.

It further provides that no bonds1 shall be issued for any other purpose than that stated in the submission of the proposition to the taxpayers ; but the municipal authorities have gone further and proposed to reserve three and one-half mills annually of the general fund taxes of the city to be applied to the payment of the bonds, and the reservation to run concurrently therewith.

In our opinion this can not be done. The action of the City Council is manifestly unconstitutional. Not only so, but it is evident that the city being indebted to the extent of thirty-three thousand dollars, in addition to the seventy-one thousand dollars of bonds, which it proposes to issue, is clearly without right to set apart three and one-half mills of its ordinary general fund taxes annually, and for a series of years in the future to be consecrated to the payment of the bonds.

On this showing, it is evident that the city requires its entire alimony to pay current indebtedness, and to malee provision to meet its existing indebtedness. The city is without power or constitutional authority to rest its bond issue, in any part upon this reservation of three and one-half mills of general fund taxes; particularly in view of its large present indebtedness which seems to have been in no way provided for.

It is within the knowledge of this court that frequent discussions have taken place in regard to the legality of bond issues by municipal corporations; and it is fair to presume that the constitutional convention had this difficulty in its mind when the provisions quoted were incorporated in the organic law.

In our view those provisions are clear, explicit, and susceptible of but one interpretation, and that is, that the debt to be secured must be contracted subsequent to the action of the voters authorizing the levy of a special tax, that bonds can only be predicated upon such special tax, and same must be limited in amount to the extent of one-tenth of the assessed valuation of its property within the municipal corporation, and shall not exceed five mills on the dollar of the assessed valuation of its property in any one year.

Entertaining this view, we feel bound to hold, that the judgment of the District Court was erroneous and must be set aside.

It is therefore ordered and decreed that the judgment appealed from be annulled and reversed; and it is further ordered and decreed that the injunction sued out by the plaintiff be and the same is hereby reinstated and maintained at the cost of the defendant in both courts.


source: Caselaw Access Project

author: WatKINS, J.

license: Public Domain

text:
    No. 13,383.
    S. J. Enders vs. Joseph Boisseau.
    Syllabus.
    If afliant makes oath against a party charging him with the commission of a crime for which he is thereunder arrested, he will not be mulcted in damages, notwithstanding his subsequent discharge, if there was probable cause for the charge being preferred.
    APPEAL from the First Judicial District, Parish of Caddo— Land, J.

      D. T. Land for Plaintiff, Appellant.

      John B. Land and Leonard & Randolph for Defendant, Appellee.
   The opinion of the court was delivered by

WatKINS, J.

The object of this suit is to recover of the defendant, the sum of ten thousand dollars damages for a malicious prosecution of the plaintiff, under the following alleged state of facts:

That on or about the 11th of November, 1898, defendant appeared before a justice of the peace and made affidavit that “on information furnished to him” plaintiff did “on or about the 10th day of November, 1898, unlawfully and feloniously shoot at one, Saymour, with intent to kill and murder him”.

That under said charge, a warrant for his arrest was issued by the said justice of the peace, and that he was thereunder arrested by a constable and held in custody until he furnished an appearance bond, and which he did thereafter furnish, and was, thereupon, released from custody.

Petitioner represents that the grand jury which convened in the month of January, 1899, ignored said charges made by the defendant; and lie was, thereupon, discharged by order of the district court from any further prosecution thereupon.

On the foregoing statement, the petition represents that the allegations made in said affidavit “are and were false, slanderous and libelous, and were made by the said Boisseau wilfully, maliciously and without probable cause”; and that he acted unlawfully, maliciously and without probable cause in causing petitioner to be arrested and falsely imprisoned on said charge.

Petitioner further represents that the plaintiff has been damaged “by the insult and affront to his good name and reputation in the community in which he lives, and for the vexation, humiliation, annoyance and outrage to his feelings, in the sum of five thousand dollars; and that, by being arrested and falsely imprisoned on said charges, he has been damaged, by being deprived of his personal liberty, and by the insult, and affront of his good name and reputation in the community in which he lives, and by the vexation, humiliation and annoyance to his feelings in the sum of five thousand dollars.”

The answer of the defendant denies, generally and specially, all the allegations of the petition, except those admitted. He avers that he is an old man, the father of a family, and that during the month of November, 1898, he was reliably informed that plaintiff did maliciously cut and destroy hunting blinds, or stands, owned by one of his sons in Cross Lake, near Shreveport, and that the plaintiff had threatened to kill, and actually shot at the servant of his son, one Saymour Glass, with intent to kill him. He avers that in the interest of peace between his said sons and the plaintiff, and the rest of the community, he approached said plaintiff with a view of settling the controversy which had arisen out of said acts of the plaintiff, but that he refused to repair the injuries he had caused, “although he admitted he had destroyed the hunting, or shooting blind” of his son.

He further avers, “that with good motives, probable cause and with justifiable ends, he repaired to the office of a justice of the peace, and, representing the facts to him, was advised by said justice that the legal course was to cause a warrant to issue for the arrest of the plaintiff for malicious mischief, and for shooting at said Saymour Glass with intent to kill”; and that he “thereupon made the affidavit referred to in the petition.”

He avers, further, that he had been reliably informed, and had good cause to believe it to be true, that plaintiff had maliciously destroyed the shooting blinds and shot at Saymour Glass; and that plaintiff admitted to him the commission of the first named crime prior to the arrest.

“Respondent avers, that the said Enders applied for a preliminary examination on or about November 18th, 1898, before Judge A. D. Land of the district court; and as a result of same, he was held to answer the action of the grand jury on both charges, and was refused a dishcarge.

-x- *••»***

“Respondent further avers, that immediately thereafter, the said Enders pleaded guilty to the first charge of malicious mischief, and was sentenced to pay a fine and costs, as per record in No. 5908 D. C., criminal docket, hereto annexed.

“Respondent avers further, that when the other charge of shooting at Saymour Glass, (he, the said Enders having been arrested at the same time on both charges,) came before the grand jury, your respondent was not summoned and did not appear before the said grand jury, and is not advised as to the reason for its failure to find a bill.

“He avers that his course in this matter was dictated without malice, and that he had probable cause for the action taken; and that the same was in the interest of public order.

“He avers that the plaintiff is wholly unjustifiable in bringing this suit; and it is done to harass your respondent, and to cause him expense; and has damaged your respondent in the sum of five hundred dollars attorney’s fees to defend this suit.”

The premises considered, he prays to be hence dismissed with costs, and that he have judgment in reconvention against the plaintiff for the sum of $500.

Upon these issues, the case went to trial before a jury, who rendered a verdict in favor of the defendant, from which the'plaintiff prosecutes this appeal.

In our conception, this is an action for the damages that are alleged to have resulted from a malicious prosecution, pure and simple, notwithstanding the dual character of the plaintiff’s demand as set forth in his petition; because the alleged slanderous and libelous averments made in 'the affidavit of the defendant resulted in the arrest of the former under a warrant immediately afterwards, and thus constituted one continuous transaction.

The learned judge of the lower court entertained this view of the law, .and thus instructed the jury in his charge — the same being in writing and incorporated in the transcript — and in support of his instruction he cites Dearmond vs. St. Amant, 40th Ann., 374, in which Mr. Justice Fenner in speaking for the court, made the statement of the law applicable to slander and malicious prosecution when combined, viz:

“The defamation of. character alleged, consists merely in making “ public statements that plaintiff was guilty of a crime for. which he “ was arrested and prosecuted upon the affidavit of defendant.

“Manifestly, the slander merged in the prosecution, and if the pros- “ ecution is not actionable, neither is the slander.”'

Evidently for a much stronger reason, were the alleged slander and libel merged into the prosecution of the plaintiff in the case under consideration, as the allegation of the petition is, that the slanderous and libelous utterances of which complaint is made, were set out in the affidavit made by defendant, whereas in the case quoted, they consisted “in public statements, that the plaintiff was guilty of the crime “ for which he was arrested and prosecuted upon the affidavit,” etc., entirely outside of the affidavit.

It is upon this hypothesis that the judge correctly charged the jury, and that they considered and decided the cáse.

As we are of opinion that the reproduction of his charge will greatly facilitate a proper understanding of the .cause, we give it in ex-tenso.

“Plaintiff sues for $5000 damages for slander, and $500 damages for a malicious prosecution. ‘The slander is merged in the prosecution, and if the prosecution is not actionable, neither is the slander’. Dearmond vs. St. Amant, 40th Ann., 374 —33 Ann., 1265.

“In order to maintain an action for a malicious prosecution, two things must concur:

“1. The motive of the party instituting, or prosecuting the suit must have been malicious.

“2. The suit or proceeding complained of must have been instituted without any probable cause therefor. ’

“ Tt is the malice composed of bad feeling and the knowledge of the want of á probable and just cause, whjch create a liability. Public, interest 'and a proper administration of .justice require that. actions for malicious prosecutions should not be maintained without clear proof of malice and want of probable cause.’ Bulet vs. Mullen, 44 Ann., 194.

“ ‘Probable cause consists in an honest belief, based on reasonable grounds, in the guilt of the person accused.’ Steed vs. Knowles, Y9 Ala., 446.

“In a suit for damages for malicious prosecution, the presumption of want of probable cause, following from the acquittal or discharge of the accused, can be successfully rebutted by evidence showing, that the party provoking the prosecution acted on information reasonably calculated to cause and lead a man of ordinary caution and prudence to believe and entertain an honest and strong suspicion of the guilt of the party accused. Plassan vs. Lottery Co., 34 Ann., 426.

“A commitment in a criminal case is -prima facie evidence of probable cause.

“A discharge, or acquittal in a criminal ease is prima facie evidence of want of probable cause. Whaling vs. Wells, 50 La. Ann., 562.

“An arrest without probable cause raises a presumption of malice. 29 Ann., 112.

“This presumption may, however, be rebutted by evidence showing that the party prosecuting, acted on information reasonably calculated to cause and lead a man of ordinary caution and prudence to believe, or entertain an honest and strong suspicion of the guilt of the party accused.

“If you find from the evidence that defendant made the affidavit in question maliciously and without probable cause, you will find a verdict for the plaintiff for such reasonable sum as will in your conscientious judgment compensate him for his alleged physical and mental suffering, and injury to his credit, reputation and character.

“On the contrary, if you should find from the evidence that the defendant had probable cause for making such affidavit,-you will find a verdict for the defendant.”

Counsel for the plaintiff requested the judge a quo to give to the jury ten special charges, which are stated in full in his brief, but which need not be reproduced, for it is sufficient to say, that they are to the general effect, that unless the defendant proves that the charge made in the affidavit is true, the plaintiff is liable in damages; that if the grand jury ignored the charge, it is sufficient proof of a want of probable cause; that malice is inferable from a want of probable cause — and others of a kindred character.

We are of opinion that they were all properly disposed of in the judge’s general charge.

The only other ground that is seriously pressed by plaintiff’s counsel is, that the judge erred in permitting parol testimony to he adduced as to the outcome of the preliminary examination of the plaintiff; and we think that objection was correctly disposed of, for two reasons, (1) that the proceedings were not all reduced to writing; (2) that plaintiff’s counsel testified that the plaintiff was held as the result of the preliminary examination. As a matter of fact, there can be no doubt of this.

The facts of this case are very fairly stated in the answer, and the averments therein made are substantially confirmed by the witnesses.

This ease is quite similar to that of Dearmond vs. St. Amant, cited supra.

The facts of that case were, that an evident attempt had been made to burn the defendant’s store in the night-time, and he set detectives to ferret out the perpetrator; and that, after several days thus employed, and having obtained what he supposed was satisfactory evidence of the plaintiff’s complicity in the crime by means of a confession, he made an affidavit against him, and caused his arrest under a warrant, and incarceration in jail.

It transpired subsequently that the confession had been extorted thorugh duress and promises of release from confinement, and upon a preliminary examination before the district judge, he was discharged after an imprisonment of one week.

The District Attorney, subsequently, entered a nolle prosequi of the prosecution.

On this state of facts the court in its opinion expressed the following sound and universally accepted principles of law, as applicable thereto, viz:

“If plaintiff is innocent of the heinous charge, as the law presumes him to be, he has undoubtedly suffered a great wrong; and for him to be compelled to bear it without redress is, indeed, a hardship, but it is one of those sacrifices which the individual is required to make to the interests of society.

“It is not only the lawful right, but the civil duty of every citizen, to set on foot criminal proceedings whenever he believes, honestly, and on reasonable grounds, that crime has been committed.

“The social interests require, and the law invites him thus to aid the State in the discovery and punishment of crime; and it would be equally unjust and impolitic to make him a guarantor of the success of the prosecution, or to make its failure an actionable wrong.

“Hence the law wisely holds the prosecutor harmless in such a case, notwithstanding the acquittal of the person accused, unless his conduct has been tainted by two concurrent vices: (1) Malicious motive; (2) want of probable cause, i. e. absence of reasonable grounds for believing in the truth of the charge made.”

In that case the jury awarded damages in favor of the plaintiff, but this court set aside the verdict and rendered judgment in favor of the defendant, rejecting the plaintiff’s demand.

In our view the facts of the instant case are stronger in favor of the defendant, -in two particulars than those of the case stated, i. e. (1) in that the plaintiff was upon the preliminary examination before the district judge, placed under bond to appear and answer such charge as the grand jury might find against him; (2) and that the defendant was not summoned as a witness to appear before the grand jury when the matter was taken up for investigation, and he was not advised when it was to be investigated by that body.

Our conclusion is that the proof discloses, that the defendant had probable cause for making the affidavit for the arrest of the plaintiff, and that he was not actuated by malice, but acted upon reasonable grounds for the belief that the plaintiff was guilty of the charge preferred against him.

Judgment affirmed.

Rehearing refused.


author: Nicholls, C. J.'

text:
    No. 13,313.
    The Franklin and Abbeville Railroad Company vs. Aristide L. Monnot.
    Syllabus.
    1. The mere fact that a switch with a building with platforms and ramps, was constructed on a plantation by a railroad corporation, to whom the owner of the property had granted a right of way for tracks, turnouts, and a station house, and that the buildings, platforms and ramps were used by the owner and the neighboring planters for loading cane upon the cars, does not establish necessarily .the fact that the switch and buildings were those contemplated by the grant of the right of way.
    2. A claim to that effect is repelled by evidence showing that they were placed there while the property was the temporary terminus of the road, that they were used by the owner of the property for loading his own cane, and the use of the same by others was permissive, and by indulgence, that the railroad’s track crossed the public road as it entered, and, also, as it left the property, and that to reach this particular building from the public road, a right of passage on to the plantation, not granted by the act, but claimed as an incident of the grant, would have to be conceded to the general public.
    APPEAL from the Twenty-fourth Judicial District Court, Parish of St. Mary — Allen, J.

      Philip H. Mentz and Guy M. Hornor for Plaintiff, Appellant.

      Milling & Sanders, John B. Roberts, and Foster & Broussard for Defendant, Appellee.
   STATEMENT OF THE CASE.

The opinion of the court was delivered by

Nicholls, C. J.'

The plaintiffs alleged that by act under private signature of date of the 26th May, 1890, duly recorded, they acquired a servitude or right of way for the railroad they were then contemplating building and which they had since built, on and through certain described property in the parish of St. Mary, from John Murphy and the children of James Murphy; that said right of way as then granted and accepted and since used was fifty feet in width or twenty-five feet on either side of the centre line of their railroad track, and was in perpetuity; that by the same act they acquired the right of way and site for a double track, turnouts, and a station house, this right being also in perpetuity, and that as a necessary adjunct to said railroad they erected on the said land a station house with the usual ramp and platform, as well as a railroad switch and turnout for switching cars, all of which constructions had been actually used by them since they were placed on the land; that said railroad track being thus placed on said land and said station house and adjuncts being there '¿rected in order to make same available, and useful for the purpose for which they were granted and accepted, and especially that freights might be delivered to the cars of said company, at said station, and the same being all enclosed by the lands of the grantors, it became necessary and it was their right to have a passage from the public road which ran south of and parallel, or nearly so, with the railroí. d, and at about one hundred feet distant from the said track to the railroad at said station, and that the servitude of passage being thus legally due over the land between the public road and said rail-•oad, was acquiesced in by the owners of said land and used by the plaintiffs and those delivering freight to plaintiffs, for the purpose already stated; that two gates were erected upon the boundary line of said land separating said land from the public road to permit the entrance and exit of teams hauling freight to said station houses for such railroad, and that these entrances and said servitudes have been used frequently and as their business required by plaintiffs, and those dealing with it and during the last six years past; that plaintiffs and their grantors selected and laid out the ground over which the passage to and from should be exercised, and located the places where the gates should be put, and they thereby fixed said route and the manner, of using said right; that their grantors permitted and directed the hauling of cane raised on their said land to said railroad, through the passage described from the public road to the railroad, they having an interest in the said cane, it having been raised on said land either by themselves, or by other persons for them, or by persons who paid them for the use of the land; that they in all such cases derived a benefit for the use by themselves of said right of passage; that plaintiffs’ grantors had directed and assisted third persons in using said passage; that no right of passage would be useful or possible to the company unless over same route outside of the right of way already occupied by the railroad; that in 1897 the owners of said land sold to defendant a portion of said land (which plaintiffs described as that on which the said railroad and other tracks and the station house were erected), and that he had closed the gates for the purpose of preventing and was preventing the plaintiffs from using the said servitude of passage over said land from the public road to said railroad and station house; that defendant having purchased said property after said grant and the recording of the same, was estopped from contesting the right of way, and legally compelled to permit the exercise of the same.

In view of the same plaintiffs prayed that a mandatory injunction issue to defendant commanding him to remove that portion of the fence on the southern boundary line of the land acquired by him from plaintiffs’ grantors as well as all other obstructions that he had erected in the form of gates or otherwise, which prevent or impede the exercise of the said right of passage over the route and at the place where it had been exercised, and that it be decreed that said right óf passage might be exercised by all persons having business with plaintiffs, and those who might wish to deliver freight to its ears, or to take freight therefor, and to all persons who might wish to get on or off their cars at said place, and that plaintiffs recover judgment for one thousand dollars damages.

A preliminary injunction having issued, the same was, on defendant’s application, dissolved on bond.

Defendant answered pleading an amplified general denial, and praying for damages as for an illegal and malicious injunction.

The District Court rendered judgment in favor of defendant and against plaintiffs, dissolving the injunction taken out and according defendant one hundred and fifty dollars as damages, for the issuance of the same, also rejecting plaintiffs’ demand and dismissing their suit.

Plaintiffs appealed.

Defendant moved that the judgment be amended by increasing the damages granted to him.

After the case was submitted, defendant moved the dismissal of the appeal upon the ground that since this appeal was taken, the plaintiffs, through their agents, have torn up and carried away the switch track, at their Murphy switch (the switch on the land referred to in the pres-, ent litigation), torn down and carried away the platform, ramp, and all other structures used for loading cane and other freight, and that there was nothing now left except a small house about twelve by fourteen feet, which was entirely abandoned, having no steps to same and no method of access thereto; that it had entirely abandoned the switch as a place of loading cane or receiving, forwarding or delivering freight, and had no station house there, except the wreck of a house above referred to, which was entirely abandoned, and not used by the plaintiffs; that plaintiffs had acquiesced in the judgment appealed from.

Attached to the motion to dismiss is an affidavit of defendant’s at-, torneys that these facts came to their knowledge only after the submission of the cause in the Supreme Court.

The plaintiffs are a public railroad corporation organized under tlie laws of Louisiana. Prior to organizing, they acquired rights of way evidenced generally by instruments similar to the one filed in this litigation.

The act declared upon declares that the right of way is given for and in consideration of the advantages, benefits, and conveniences accruing to the grantors, and as neighbors, and of the probable enhancement of the grantor’s adjoining lands of the railroad.

The right of way was granted over and across certain described property and was itself described as “fifty feet in width or twenty-five feet on each side of the centre line of the railroad, as the same is now located and constructed, or may be finally located and constructed by said company, its successors, or assigns, over, across, or through said above described land, and the grant of right of way shall be in perpetuity, or so long as it is used for the purposes of a railroad; further the right of way to all timber that may fall upon the line of said railroad.

The right of way or any additional quantity of land than the fifty feet mentioned which might be used for a double track, side track, turnouts, or station houses, also granted.”

The road contemplated was built which the right of way was granted for. It enters .upon the land on which the right of way was given, from the east from a public road which, running at that point north and south, separates the Murphy tract from the lands of Dumartrait, crosses the Murphy land in an easterly and westerly direction, crosses the same public road at a second point to the west and passes over to the lands of Landry and others. The public road referred to, after running southward two hundred and fifteen feet from the point where the railroad track crosses it on the eastern boundary of the Murphy tract, next the Dumartrait lands, turns to the west, and running in a northerly direction, gradually approaches and is finally crossed a second time by the railroad track, on the west as has just been stated. The Murphy lands extended both north and south of this public road.

During the course of the construction of the railroad, its temporary western terminus was for a very considerable time, upon the Murphy property, and while matters were in that situation the railroad company constructed to the south of their track, a short curved turnout switch on the Murphy property, that is to say, a switch which leaving the track on the east, curved first to the south and west, and then to the north and west, shifting the track again.

About the middle of this curved switch the railroad constructed what is spoken of in the testimony, as the Murphy platform, and station house and ramps. The Murphy land between the railroad track and the public road to the south, was at that time, not fenced in.

The Murphys were planters cultivating cane, by themselves and through tenants for sale to other parties. They hauled their cane to this station house for .shipment, the loading being by hand. The planters in the neighborhood did likewise, selecting as they pleased, the points at which they crossed from the road to the station house.

In.course of time the Murphy land was fenced, but a lane was left leading from the public road to the station with a gate at the end, next to the public road. Cane was continued to be hauled by the Murphys and their neighbors through this lane, but about 1896 the railroad company having obtained permission from Landry, who owned the property to the west of the Murphys, to put up a station house, with a derrick and hoist on his land and next the public road spoken of, the use of the Murphy station and platform and ramps was discontinued and has not been resumed since.

On the 24th of March, 1897, the Murphys sold to the defendant, Monnot, one hundred arpents of their land, in which was included the portion of the same between the railroad track and the public road.

The act of sale made no allusion to a servitude in favor of the plaintiff company.

The present suit was filed on the 16th day of October, 1897.

Opinion.

The plaintiffs claim no right other than that which results from the act granting the right of way. Their position is that the station house, platform, and ramps and the curved turnout switch, were constructed as those mentioned in and contemplated in the grant of the right of way; that they were first located and afterwards used with the acquiescence and consent of the owners of the land; that in the situation in which they were they would be perfectly useless unless they could be reached by access from the public road in the immediate neighborhood; and that the only means of access to the same, was through the gate and lane already mentioned, and that a right of passage through the same, passed to the corporation as an incident of the grant to it. Plaintiffs rely very greatly upon the decision of this court in Patout vs. Lewis, reported in 51 Ann., 210.

We do not attach to the construction and use of the switch, platform, station house, and ramps, the same probative force that the plaintiffs claim for them. There is nothing going to or tending to show that they were constructed under the grant of right of way. When constructed the Murphy land was the temporary terminus of the road and that fact must not be lost sight of in the considering of their character and purpose. The Murphys themselves were planters and hauling cane, and there is nothing to indicate that the buildings and switch were for other purposes than the use and convenience of the owners of the land, except the fact that the neighborhood planters used them for the time being.

John Murphy, one of the owners, testified that this use was simply permissive for the time being, and through indulgence, and that he exercised at the time his right and power of excluding persons from the property.

All the probabilities point to the truthfulness of this statement, which was not attempted to be controverted. The disuse of the platform and building as the railroad track was constructed further on and the establishment of the station, the platform, the derrick and hoist, on the Landry property, a few hundred feet to the west at the junction of the railroad track with the public road, confirm Murphy’s declaration, and satisfy us that the works on the Murphy land were not placed there for more than temporary use of the Murphys and such persons as they might authorize to take advantage of them, so long as the terminus of the road was on that property.

The company never had a freight agent or officers at the' building and it was in no sense-a depot.

Plaintiffs are besides in error in stating that access to this platform and building was only through the gate and lane referred' to in the pleadings.

Access to the public road was easy, by persons passing either to the east or west, alongside of, and parallel to their track, where the latter struck the public road.

It is exceedingly improbable that the owners of the land would have consented to a location of a station house at any place other than one of those two points, that they would have permitted, under the circumstances, their plantation to be cut into and traversed by a public road, over the use of which they would have lost control, with no resulting benefit either to themselves or to the public. The facts in the Patout case were entirely different from those of the case at bar.

The road, for which a right of way was granted, in the ease cited, by Lewis, was a tramway avowedly to he utilized by the parties in whose favor the grant was given, in aid of their transportations over it of cane purchased not only from Lewis, but from all the neighbors.

The grant of right of way was not only for the main track of the road but for a particularly described spur switch, which was provided for to diverge from the main track, and to terminate with a dumping ground attached thereto and on a public road running perpendicularly to the main track.

The real matter in dispute in that ease was, whether, in view of the-obvious object and purpose of this spur switch, and of the dumping ground unmistakably intended for use by the general public, the owner could legally bar entrance to the dumping ground through the boundary fence. We held he could not.

Allusion was made in the opinion to what would have been the situation had the location of the road been such as to fall a few inches or a few feet inside of the boundary line.

The necessities of the case did not call for this expression of opinion, for the dumping ground terminated directly upon the public road.

The conditions under which the plaintiffs seek to have a right of passage in their favor recognized, from the public road to the platform and station building on the Murphy tract, are entirely different, as we have stated, from those in the matter of the Patout right of way. There is no parallelism in the two cases.

Entertaining the view we do of the rights of the parties, we have not deemed it necessary to examine and take any action upon defendant’s motion to dismiss.

For the reasons assigned, it is hereby ordered, adjudged and decreed that the judgment appealed from be and the same is hereby affirmed.


text:
    No. 13,181.
    B. J. McNulty vs. New Orleans, City and Lake Railroad Company.
    Syllabus.
    The proof disclosing that g person having no contractual relations with a street railroad corporation, goes upon Its track at a late hour of the night, in an obscure and unfrequented locality, and has a collision with its engine, by means of which he suffers an injury, he is without right to recover damages because of his contributory negligence, even if it be conceded that the company’s employees were not without fault.
    But if the proof shows that the head-light of the engine was burning, that the bell was ringing, and the speed of the engine in accordance with regulations, a mere trespasser is without any ground of complaint. (Snyder vs. Railroad Company, 42 Ann., 302.)
    APPEAL from the Civil District Court, Parish of Orleans.— Ellis, J.

      Parherson £ Tobin for Plaintiff, Appellee.

      Denegre, Blair £ Denegre for Defendant, Appellant.
   The opinion of the court was delivered by

Watkins, J.

This is an action against the defendant for the recovery of thirty thousand dollars damages, which the plaintiff alleges he sustained on account of the personal injuries that were inflicted upon him by a switch-engine which ran against him and knocked him down and ran over him, breaking both his legs in such manner as to necessitate their amputation.

The answer was a general denial, coupled with the averment that the collision of which the plaintiff complains was “wholly caused or contributed to by the plaintiff’s own negligence.”

The ease was tried by a jury who rendered a verdict in favor of the plaintiff for the sum of $150.00, and from the judgment thereon rendered, the defendant has prosecuted this appeal.

The plaintiff has filed an answer to the appeal, and prayed that the allowance in his favor be increased to the amount demanded in his petition.

The case of the plaintiff as stated in his petition is as follows, viz:

“That on Friday night, June 26th, 1896, at 10 o’clock, he was walking on the public platform of the station of said railroad company at West End; (and) that, as he was so engaged, in company with a friend, engine No. 3 of said railroad company, moving in the same direction in which he was going, while switching from one track to another, so protruded over the side of the rails and upon the platform, as to strike petitioner in the side, and knock him down.

“That he fell with his legs under the wheels, and, they were broken and mangled to such an extent, that amputation was necessary.”

On this statement of the cause and incidents of the accident, plaintiff charges that same was exclusively due to gross carelessness, negligence and want of skill on the part of the officers and employees of the defendant; and he avers that he could not have avoided the same, because the engine was moving backwards, no bell was rung, no light was exhibited, and no signal of any kind was given, so as to indicate its approach.

He avers that, subsequent to the accident, he was taken to the Charity Hospital, and both of his legs were amputated; and as a result of the operation, he was closely confined for a period of nine weeks, suffered great bodily pain and mental anxiety, and has been thereby deprived of his accustomed means of making a living.

The statement of the plaintiff, as a witness in his own behalf, is of the following purport, viz:

That he was about thirty-one years old at the time the accident occurred, a citizen of New Orleans, and a book-binder by trade, and had been so employed for several years; and at such work he earned $2.25 per day.

That at about the hour of 10 o’clock on the night of June 26th, 1896, he was walking down the defendant’s track, at the point where the Lake View Park is situated; that is “between the bridge and the road that leads to Spanish Fort, near Lake View Park, near a switch.” That as he “was walking down, (he) heard a rumbling sound like, and looked around and saw a black object; and it struck (him) and knocked him down, and rolled over (him).”

That he saw the engine pass with a head-light on the part that last rolled over him; it flashed in (his) face.

That he heard no bell ring, nor any whistle sounded.

That he was on his way to the tow-boat house to sleep, as he had often done before.

On cross-examination, the witness admitted that he had often visited West End, and was quite familiar with the situation of the defendant’s tracks and switches at the terminus of its road at that place; and that he knew that, after the arrival of a train from the city, its “engine switches off and comes back on the outside track to the cut-over, and then turns back.” .

That on the evening of the accident, and just prior to its occurrence, he had passed through the depot, went by Lake View Park, and was “walking on the tracks with (his) back turned to the depot;” and that “while walking around there (he was) knocked down by the engine.”

That he had spent the day at West End from 11 o’clock in the morning; that a portion of the time he was engaged in catching crabs, a portion of the time he spent at Mr. Winter’s place, and played a few games of cards and drank a glass of beer.

One witness who was an intending passenger on the West End train on the evening of the accident, states that while “he was standing, waiting to get the train, at about 10 o’clock at night” he saw the engine but “did notice (that) it had no headlight.” That he was by himself.

He explains on his cross-examination, that the engine he saw was on a train which was coming from the city; but he did not see it as it was going back, as he was then on the train.

This is the substance of the plaintiff’s testimony.

On the part of the defendant, the following is a fair summary of facts, viz:

The accident occurred something more than three hundred feet from the West End station, or terminus of the road at Lake Pontchartrain.

The plaintiff was not promenading on the depot platform, but had, to all appearances, stepped to one side for the purpose of obeying a call of nature; and his position was such that he could not be readily seen by the locomotive engineer in time to enable him to avoid a collision — he having used every possible means to avert an accident, after he was discovered.

The testimony explains that, at this depot, there is a very large covered platform, arranged for the convenient entrance of passengers into, and exit from trains.

That emerging from this structure are double tracks which extend in the direction of the city; and along these tracks a long platform extends, which terminates at the place marked “Pavillion” on the defendant’s map. That pavillion is the property of a- man named Dressel who owns a park which is adjacent thereto, and with which the defendant has nothing to do. That pavillion is a little more than two hundred and fifty feet from the station.

The defendant’s tracks continue alongside of the pavillion, in the direction of the city.

Just beyond the pavillion, there is a high board fence, which is about three feet from the edge of the planks upon which the rails are rested.

Between the tracks and this fence, there is a space which is about eighteen inches or two feet below the level of the tracks. At the pavillion, there are two tracks extending in the direction of the city, and between them is a clear space of more than seven feet in width; and any pedestrian who wishes to use this planked right-of-way as a place to walk on, can do so without risk of coming in collision with a passing train or locomotive, if in the exercise of due and proper caution and care.

The mode of handling trains upon these tracks is for the train coming in from the city to go in on the right hand track, looking in the direction of the station, until it reaches the cross-over switch, when it crosses over to the left hand track, and enters the depot.

The engine which is at the Pontchartrain end of the depot platform is uncoupled as soon as the train comes to a halt, and, by means of a switch just beyond the end of the station, it reaches the track that passes on the outside of the picket fence in the station, passes alongside of the coal bin, goes on the cross-over switch, makes the crossing, backs down on the canal track into the station, and, being coupled to the train again at its rear end, takes it hack to the city again.

Hence, it is to be expected, that, soon after the arrival of the train from the city, the engine will come out to the rear end of the station and pass along the track and over the spot where the plaintiff was injured.

Of this method of proceedure, the plaintiff was well advised, and having been well aware of the recent arrival of a train from the city on the night in question, he, in the exercise of proper care and caution, should not have selected the place he did for the purpose of attending to a call of nature.

The trend of all the evidence is, that, on the night of the aforesaid unfortunate occurrence, the engine was on its way from the station along the lake side track to the cross-over switch, moving at its usual and proper speed, with its head-light burning, and its bell ringing as is customary and usual.

That at a point which is about forty feet beyond the pavillion in the direction of the city, the plaintiff had placed himself in a very dark locality, and was to all appearances, oblivious to his surroundings and the very great danger he was in.

After the accident, several persons visited the locus in quo, and found the plaintiff with his trousers down at the time and loosed from the waist; and human excrement was observed upon the track — indicating the way the plaintiff was occupied when the collision occurred.

A witness who was standing in the bow of his boat, near by the scene of the accident, heard the train come up, and soon afterwards heard some one holloa: “Get out of there,” or “Get out of the way, there;” then the engine was reversed, and made a considerable noise.

That he then went to the spot and found the plaintiff lying in the space between the fence and the railroad, with his trousers down to his ankles, and his person naked up to the waist.

That before leaving his boat, he looked in the direction of the engine, and saw the head-light burning, and heard the bell ringing.

The butcher-boy of the train states, that, on the evening of the accident, the engine had hooked on to a baggage car in the rear of the Station, and was pulling out to go to the cross-over track, and that he was standing on the coal-bin, and got on the baggage car to ride down as far as the switch, and while standing there, he heard the bell ringing.

That he heard the engineer call out and he felt a sudden jerk, and the engine stopped. That he got down and saw a man lying on the platform where the tracks were, and his trousers were down and his shirt raised.

The foregoing are the leading and salient facts; but it must be admitted that some of them were disputed with respect to minor details by a few witnesses. But, in all essential respects, the case on the evidence, is altogether different from the case stated in the pleadings.

Instead of being on the promenade on the platform in company with a friend, the plaintiff was quite a number of feet distant from the platform, near the cross-over switch track which the engine was bound to pass; and in a dark and unfrequented locality, where it was not expected any person would be found at so late an hour as ten o’clock at night. This case is controlled by the views expressed in Snyder vs. Railroad Company, 42nd Ann., 302, and is to be differentiated from McGuire vs. Railroad Company, 46th Ann., 1543.

We are of opinion that the verdict and judgment appealed from are erroneous, and must be reversed.

It is, therefore, ordered and decreed that the verdict of the jury and the judgment'thereon based be annulled and reversed; and it is further ordered and decreed that the demands of the plaintiff be rejected at his cost in both courts.


author: Blandhard, J.

text:
    No. 13,451.
    State ex rel. Thomas F. McMahon vs. John St. Paul, Judge of Division “C,” Civil District Court.
    Syllabus.
    1. If errors be committed in setting cases for trial, or if irregularities arise in the assignment of causes for hearing in the trial court, the same is.no ground for applying to this court for its writ of certiorari, or of prohibition. The remedy is by appeal to the appropriate appellate tribunal, upon proper objection and reservation made.
    2. Directing the ejectment of a plaintiff, claiming a lease, from the premises, and ordering the defendant owner to be put into possession thereof, is only a necessary sequence of the judgment rejecting the plaintiff’s demand to be recognized as holding under a lease.
    3. The suit itself involved the right of possession of the property; this was tendered as an issue by plaintiff’s petition; and if the trial court had juris: diction to decree its possession to the plaintiff, it had jurisdiction to decree its possession to the defendant.
    PPLICATION for Writs of Certiorari and Prohibition.

      Solomon Wolff for Relator.
    Respondent Judge pro se.

      Frank McGloin for Mrs. Salome Blaum, Respondent.
   The opinion of the court was delivered by

Blandhard, J.

The relator was a tenant occupying certain storehouse premises in the city of New Orleans.

There had been, years before, a written contract of lease of the property by the year. This written lease had been renewed for several years, then the written lease ceased, and verbal renewals took place.

This continued down to the year 1899, when there was a verbal renewal of the lease for another year from October 1st, 1899, to September 30th, 1900.

This is the contention of relator.

Per contra the owner of the property contends that the successive verbal renewals of the lease were only by the month, and that the renewal which is alleged to have taken place in 1899 was but a continuation of the lease by the month.

Considering the relator but a monthly tenant, and desiring to occupy the premises herself, Mrs. Blaum, the owner, on January 13, 1900, caused a formal notice to vacate to be served upon him.

This notice emanated from the constable’s office, First City Court, and service thereof was made by the deputy constable.

It warned the relator to vacate and surrender the premises by January 31st, 1900.

This was but the preliminary step to formal ejectment proceedings in the event relator failed to vacate.

Following the service of this notice upon him, relator brought suit in the Civil District Court against Mrs. Blaum, alleging in his petition a verbal lease of the property for one year from October 1st, 1899, to and inclusive of September 30th, 1900, at a monthly rental of $60, which had always been promptly paid; that two-thirds of the year was yet to run; that the value of the unexpired lease was $480; and that Mrs. Blaum, in violation of the contract of lease, was threatening to eject him, and would do so unless restrained, etc.

He prayed for judgment decreeing a contract of lease as claimed by him, and for a writ of injunction against the owner inhibiting her from taking 'further proceedings to eject him.

This, demand was immediately answered by Mrs. Blaum, to the effect that the plaintiff (relator herein) was only a monthly tenant of her premises; that he was not entitled to hold possession thereof beyond January 31, 1900; that she had given him formal written notice to vacate; that he had promised to vacate pursuant to said notice; that she is entitled to possession of her property; and that the suit is hut an artifice designed to unduly continue the plaintiff in possession thereof.

She asked the rejection of his demand and in reconvention prayed for judgment ordering- the plaintiff to vacate the premises.

Considering- the summary character of her demand for possession, she asked that the cause be set down for trial on a day to be fixed, after three days’ notice.

Whereupon, the trial judge entered an order for the filing of the demand in reconvention and for the ease to be set down for trial on a day named, plaintiff to be duly notified.

Plaintiff appeared and objected to the summary trial as being contrary to law and the rules of the court. He contended that his suit was for the recognition and enforcement of a contract of lease declared on; that the ease should be placed on the trial docket and be heard in its turn; and that the defendant, by her pretended reconven-tional demand, was seeking to stamp the original proceeding with a character foreign to it.

In the event this objection should be overruled, he excepted to the jurisdiction of the court raiione materiae on the issue raised by the reeonventional demand.

The objection to the trial of the cause as fixed was overruled and trial had. The exception to the jurisdiction of the court was denied, and as the result of the trial there was judgment in favor of defendant, Mrs. Blaum, rejecting plaintiff’s demand to be recognized as holding a lease good until September 30, 1900, decreeing- Mrs. Blaum entitled to possession, and ordering- the plaintiff to be ejected therefrom.

Whereupon, the plaintiff, relator here, applied to this court for its writs of prohibition and certiorari, alleging -the nullity of the judgment of the District Court.

The contention is the judgment is null because rendered by a court not seized of jurisdiction ratione materiae, and that the reeonventional demand of Mrs. Blaum, under which she was awarded a decree of ejectment, even if within the jurisdiction of the court, is yet governed as to time and mode of trial by the original demand.

The preliminary rule to show cause issued, and the respondent judge replies that in so far as relator complains of his action in fixing the original cause for trial, it was his province, as judge of the trial court, to determine such matters, and that if he erred therein, the remedy is by appeal (there being an appeal in the cause to the Court of Appeals for the Parish of Orleans) and not by resort to this court through its writ of certiorari.

This position is correct.

If errors be committed in setting cases for trial, or if irregularities arise in the assignment of causes for hearing in the District Court, the same is no ground for applying to this court for its writ of certiorari, or of prohibition. The remedy is by appeal to the appropriate appellate tribunal, upon proper objection and reservation made. State ex rel. Shaw vs. Judge, 48 La. Ann. 27.

In his further reply, respondent judge affirms the jurisdiction of his court over the whole subject matter of the case as presented to him.

And so he had jurisdiction.

The case of the relator is without merit.

The demand in reconvention, even if entitled to be viewed as such, is incidental and collateral to the main suit.

Succession of Hoover vs. York & Hoover, Executors, 30 La. Ann. 752; 45 La. Ann. 1321, 1364.

And what the answer sets up is hardly to be viewed as an independent demand, even though it be called a reconventional demand. It was accessory to the suit and could well be passed upon in the judgment disposing of the plaintiffs demand. Directing the defendant to be put into possession of the premises and for the ejectment of the plaintiff was only a necessary sequence of the judgment rejecting plaintiffs demand to be recognized as holding under a yearly lease which entitled him to remain in possession of the property.

State ex rel. Minor vs. Judges, 49 La. Ann. 304.

The judgment was an entirety and incorporated as part of it the decree for placing the defendant in possession.

The suit itself involved the right of possession of the property. The very allegations of the plaintiffs petition tendered this as the issue, and if the court had jurisdiction to decree its possession to the plaintiff, it likewise had jurisdiction to decree its possession to the defendant.

For the plaintiff to say that the court could maintain him in his possession (the very object of his suit), but could not eject him as the result of the same suit from possession, is to occupy a singular and anomalous position — one which this court can scarcely be expected to sustain.

Besides, the plaintiff averred, in his petition, the value of his possession of the property for the unexpired term of the lease he claimed to he $480. The judgment of the court ejects him from the premises not alone for one month, the value of the rental of which would he less than $100, the minimum limit of the jurisdiction of the District Court, hut for the full tíme he claimed the unexpired lease for— worth, according to his own showing, $480. It decreed him not entitled to its possession during that time and, in effect, decrees the right of possession to he in the defendant during that time.

It is, thus, seen that the court had jurisdiction of the whole controversy. The- writ of possession when it issues on the judgment is not to put the defendant in possession for one month, hut for the whole time in controversy between her and the plaintiff.

The writ of ejectment, when issued, is not to oust the plaintiff for one month merely, but for all the time he laid claim to under his alleged lease.

For these reasons, it is ordered that the rule nisi issued herein be discharged at the costs of the relator.


author: MoNROE, J.

text:
    No. 13,441.
    City of New Orleans vs. Emanuel Steinhardt.
    Syllabus.
    l. The authority of an attorney at law to represent his client will be presumed, unless challenged under oath.
    The city of New Orleans is authorized to open and widen streets without a petition from property holders, and the propriety of so doing in a given case is a matter of legislative, rather than judicial, discretion, with which the courts will not interfere except in cases of gross abuse of authority.
    3. The city also has the power to authorize the use of the streets for the purposes of railroads, and may, in the same ordinance, provide for the opening and widening of a street, and for its use, when opened and widened, by a steam railroad' company, the privilege granted not being exclusive.
    4. The assessment made by a jury, in an expropriation case, will not be disturbed unless manifestly erroneous.
    APPEAL from the Civil District Court, Parish of Orleans.— King, J.

      Samuel L. Gilmore, City Attorney, (Hugh G. Gage of Counsel) for Plaintiff, Appellant.

      Farrar, Jonas & KruUschnitt for Defendant, Appellee.
   The opinion of the court was delivered by

MoNROE, J.

The city of New Orleans alleges that, acting under the authority conferred upon it by its charter (Act No. 45 of 1896), it adopted an ordinance for the opening and widening of Water and Front streets; that, in order to carry out the purpose of said ordinance, it is necessary to purchase or expropriate a certain strip of land, which is described, belonging to the defendant; that it has tendered him one thousand dollars, which is far in excess of its value for said strip, and the tender has been refused; that said strip is absolutely required for the contemplated- public improvement, and that its expropriation by judgment of the court is necessary. And it prays for a jury to assess the damages, and for judgment, etc.

The defendant sets up, by way of exception:

1. That the suit was brought without special corporate action or authority, and that the City Attorney was unauthorized to bring it by virtue of his office.

2. That the petition discloses no cause of action.

For answer, the defendant admits the ownership of the property, and a tender by Hunter C. Leake, claiming to represent the city of New Orleans, of one thousand dollars, as-the value or price of the same.

He denies that the city is authorized, under its charter, to open or widen streets, save upon the petition of the property holders, pursuant to Section 99 of said charter, and he further denies that any such petition has been presented for the opening and widening of Water and Front streets, or that there is any ordinance or authority for the acquisition of his property by expropriation. And he alleges that the sole purpose of the proposed acquisition, as appears from the face of the ordinance, made part of the petition, is to enable the city to carry out a commutative contract, made in its private capacity, with the Chicago, St. Louis & New Orleans Railroad Company; and, under the guise of opening and widening streets, to acquire defendant’s property and to turn it over to said corporation for its exclusive use as a road-bed. That it is proposed to conceal this purpose by terming this road-bed a neutral ground, but that no power exists in the city to expropriate property in order to leave an idle strip in the middle of the street; and the ordinance is but a scheme and contract whereby the city agrees to prostitute her governmental powers to oppress her citizens and take their property for the purpose of selling it to the railroad company at an enhanced price, said price to consist of the cost of expropriation, and of certain conditions imposed on the railroad company for the benefit of the city of New Orleans and of other members of the community.

That said scheme was rendered the more necessary by reason of the fact that the said railroad company has parted with the control of its railroads in this State to the Illinois Central Railroad Company, a non-resident corporation, and that neither of said companies can exercise the power of eminent domain in Louisiana; and that the exercise of such power, by the city of New Orleans, for their benefit, is ultra vires, and a fraud in law; and the taking of his property, under such circumstances, will be to deprive him thereof, without due process of law, in violation of Article 2 of the Constitution of the State, and of the 14th Amendment to the Constitution of the United States.

He further alleges that his property is worth five thousand dollars, but that he refuses to part with it at all.

By supplemental petition, the city alleges that the Chicago, St. Louis & New Orleans Railroad Company and the Illinois Central Railroad Company have accepted the ordinance mentioned in, and made part of, the original petition; and the acceptance is made part of said supplemental petition. Thereafter, the defendant renewed his plea of no cause of action, and it was agreed that the answer filed should be considered as applying to both petitions.

There was verdict and judgment in the court a qua, in favor of the plaintiff, who has, however, appealed upon the question of amount; and the defendant has answered the appeal, praying for a reversal of the judgment, or, if that be not granted, for an increase of the amount allowed, to $2,500.

The exception that the suit was brought by the City Attorney without special corporate action and authority, is dilatory in its character, and was filed after the cause was called for trial, the jury empaneled, and a continuance granted on account of the indisposition of the defendant. Under these circumstances, though no answer had been filed, there is force in the suggestion that it came too late. Preter-mitting this question, however, the exception was not verified by affidavit, and it has been held that the authority of an attorney at law to represent his client will be presumed, unless challenged under oath. Succession of Patrick, 20th Ann., 204; Dockham vs. Potter, 27th Ann., 73; Bender vs. McDowell, 46th Ann., 393.

Beyond this, the ordinance, made part of the petition, provides for the purchase and expropriation of certain property, including that owned by the defendant, who admits, in his answer filed with the exception, that he refused to sell. Under these circumstances, the City Attorney is the proper officer to carry the ordinance into effect. Act 45, of 1896, Section 36.

The exception of “no cause of action” may be considered with the merits.

The ordinance mentioned contemplates the making of a continuous street, or boulevard, 110 feet wide, along the river front, from Penis-ton street to the upper boundary of the city, a distance of several miles. The plans offered in evidence show that, by reason of the conformation of the city, between those points, and the manner of its growth, and, perhaps, other causes combined, the streets nearest the levee not unfrequently stop short, necessitating a movement at right angles, in the direction of the river or the lake, and the taking of another, parallel street, in order to go either up or down. Thus Water street is stopped abruptly, and finally, at Upperline street, by private property, which is bounded in front by the levee, and in the rear, by Front street. But Front street is one hundred feet farther back than the rear line of Water street. Five squares farther up, Front street misses its own connection; that is to say, the river line, on the lower line of Valmont street, is not continued as the river, but as the lake, line, on the upper side of that street, thus missing the connection by the width of the street. Seven squares farther up still, Front street, which, after the cessation of Water street, is the nearest street to the levee, is cut off permanently by the Marine Hospital property, and from that point to the city’s upper boundary, as we understand the plans, there is no street or thoroughfare upon the inside of, and near, the levee. The plans also show that, for the purposes of the proposed improvement, the utilization of Water and Front streets, if not indispensible, is certainly the most rational course to adopt, and the one which will create the least disturbance of private rights. Considering the ordinance, therefore, in connection with the plans, and apart from any connection with the railroad company, the improvement proposed seems to be calculated to sub-serve the public interest and convenience.

The Chairmaa of the Streets and Landings Committee of the City Council says, in regard to it:

“The Committee found the river front, above the Stuyvesant Docks, in a bad condition, full of ponds and impassable. The Committee thought that the river front, all the way up the protection levee, might be advantageous to commerce by having a railroad track and street along there, that the ground could be used for the establishment of manufactures, where they could have the advantage of switch tracks. And, after taking all these things into consideration, believing that it would benefit the whole city of New Orleans, the Committee decided on a neutral ground, with a roadway on the river side, and a roadway on the city side; * * * the Committee formed their judgment that the road on the city side could be used by the people, and the road on the outside could be used for the purposes of commerce, and they thought it would be better to have sufficient provision for future development.”

It is said that the city is without power to open or widen streets except upon the petition of the property holders, and agreeably to Section 99 of the charter; but we find such power conferred in express terms, and without reference to any action by the property holders, by Section 15 of the charter,, whilst Section 99 provides that streets may also be opened and widened upon petition of the property holders, but, in such case, the cost is to be borne by those whose property receives the benefit, and not, as in the other case, by the city at large.

Not only is it true that the city is authorized, by express grant, to open and widen streets, but we think it may be regarded as well settled that, in the exercise of the power, whether to open, widen, or improve streets, its discretion will not be controlled by the courts. Dillon on Municipal Corporations, Vol. 1, Section 9; Inhabitants vs. City, 14th Ann., 452; Canal and Navigation Co. vs. City, 38th Ann., 308. The same section, which confers authority to “order the ditching, filling, opening, widening and paving of the public streets,” also confers the power “to authorize the use of the streets for railroads operated by horse, electric, steam, or other motive power,” etc.; and this court has held, in a case where it was urged, “that the city had no right to designate neutral ground in the centre” of the street, that the administrative power, with regard to the streets is plenary, and that it is settled doctrine that the city may designate the part of the street to be occupied by a street railway company. Schmitt vs. City, 48th Ann., 1441.

It is thus seen that the work contemplated by the ordinance is a work of public improvement, irrespective of any particular interest or concern that the railroad company may have in it; that the matter of making or not making such improvement, of its wisdom or unwisdom, is a subject for the exercise of legislative and not of judicial discretion ; that the city has power, conferred by express grant, to authorize steam railroads to use the streets; and that, it is established jurisprudence in this State that a particular part of a street may be designated for the use of a street railroad. It would be difficult to find any reason for making any distinction, in this latter respect, between a street railroad and any other railroad, and we conclude that the power to authorize the use of the streets by any railroad carries with it the power to determine where and how the tracks shall be laid.

The next inquiry is, what has the city actually done in the present case?

The ordinance provides for the widening of Water street for a certain distance, from a width of fifty feet to one hundred and ten feet; for connecting it, by an oblique turn, with Front street; for a similar widening of Front street, between Upperline and'Valmont streets, by the addition of a strip sixty feet wide on the river side; and, between Valmont and Joseph streets, by the addition of a like strip on the lake side; for the opening of a new street from Joseph street, between the park and the river, to the upper limits of the park; and for an extension of such street from the point last mentioned to' Hilary street, and on to the upper boundary of the parish, within sixty feet of the inner toe of the levee, the private property necessary for the purpose to be purchased or expropriated.

The ordinance, taken in connection with the plans to which it refers, further provides, that the street thus contemplated, one hundred and ten feet wide, shall have two banquettes, each eight feet wide, and two roadways for vehicles, each twenty-two feet wide, and, between these roadways, a neutral ground, fifty feet wide.

It is further provided that the Chicago, St. Louis & New Orleans Railroad Company, its lessees, successors and assigns, shall have the right to construct and maintain two tracks upon the lake side of the neutral ground thus provided for, upon the condition:

1. That the entire cost of purchasing and expropriating property, as provided by the ordinance, shall be paid by said company, although the property acquired shall be, and remain, perpetually dedicated to public • use for street purposes and purposes provided for by the ordinance.

2. That the company shall provide the funds necessary to move the levee, in front of the park, farthur out, the consent and co-operation of the authorities being first obtained.

3. That the company shall construct, on the river side of the neutral ground of the new street, between the park and the upper boundary of the parish, two tracks, similar in all respects to. those which it constructs 'for its own purposes on the lake side of said neutral ground, which tracks shall belong to the city of New Orleans, for the public use.

It is further provided that all tracks, connections, spurs and switches shall be laid and constructed on lines and grades to be furnished by the city engineer; that the railroad company shall so maintain the road as as not to obstruct the drainage; that it shall keep in order the entire neutral ground above the park, and also below the park, until the river side of that portion is occupied by the tracks of other roads, or public tracks; that all intersections of streets shall be planked or paved by thé company, between tracks and between rails, and easy approaches provided; that the company shall not discriminate illegally or unjustly against the city; that it shall belt, over its tracks in the city,, at a rate not to exceed $1.50 per car, its own cars and those of other companies and individuals, without unjust discrimination, provided that it shall not be obliged to handle cars for other companies at a lower rate than is charged by such companies for similar service.

There are other provisions, as to the beginning and completion of the work, and to the effect that the company shall acquire no rights until the conditions imposed on it are fulfilled.

Comparing what the city has done, with what it has the right to do, the action taken seems to be within the limits of the authority conferred by the charter. If a street one hundred and ten feet wide now existed between Peniston street and its upper boundary, the city could make a neutral ground fifty feet wide in the middle of it, and could authorize any railroad company to lay its tracks thereon, as provided by the ordinance under consideration.

There is no exclusive grant to the railroad company, and no taking of property without due process of law, or acquiring of it through the right of eminent domain in order to sell it at an enhanced price to a private corporation. It happened that, for several miles along the levee, there was no continuous thoroughfare for any purpose, and still less was there any street wide enough, or straight enough, or long enough to enable steam trains to reach the Mississippi river and thus connect the land and water carriers, and the interstate and foreign commerce carried on through this port. The officers, whose duty it was to consider the questions, reached the conclusion that some action should be taken, not for one reason, but for a variety of reasons, either of which would have been sufficient, and not for the benefit of one person, or one corporation, but in the interest, and for the advantage, of the entire community. They realized that they were vested with authority to open streets and to widen them, and to permit the use of them for railroads, and that it would be in the interest of the city so to exercise that authority as to furnish a free passage up and down the levee to the public at large, and at the same time provide a means whereby imports and exports might be transferred at ship’s side. They, therefore, used their power in each of the directions mentioned in aid of its exercise in the other. In deliberating as to the opening of a thoroughfare along the river front, it was the part of wisdom for them to consider the uses which would be made of it, and if they contemplated, as they did, that it would be used for steam railroads, as well as for other purposes, it would have been folly for them not to have provided accordingly. It would be a bad use of discretion to open an alley where a street is needed, or to open a narrow street where there is demand for a wide one, just as it would be bad-judgment to pave where there is no hauling, and to leave unpaved, the streets over which the heaviest traffic is conducted. But the determination of these questions is entrusted to certain officers, and it is scarcely a ■proper subject for the consideration of the courts.

Something has been said in argument concerning the fact that there is to be a curb about eight inches in height upon either border of the neutral ground, and it is argued that this amounts to an exclusion of the .public at large from that portion of the street and its practical appropriation by the Chicago, St. Louis & New Orleans Railroad Company for its own purposes. It will be remembered, however, that no exclusive grant is conferred upon the corporation mentioned, even as to the tracks which are to be laid for its use; whilst, upon the other hand, express provision is made for the accommodation, upon the same portion of the street, of other roads, as occasion may require, or the city may determine. The banquettes upon streets are generally curbed, with a view to separate them from the roadways and protect the public from the dangers incidental to the indiscriminate mixing of pedestrian and vehicular travel, and, whilst a pedestrian may travel on the roadway, if he chooses, he is practically excluded by the perils which he is likely to encounter, but vehicles are not permitted to make use of the banquettes.

In the present case, if pedestrians, or bicyclists, or automobilists, or persons moving about in vehicles drawn by horses, should choose to make use of the portion of the street upon which railroad tracks are laid, and over which steam trains may be continually passing, in preference to using the banquettes and roadways which are alongside, and which are especially intended for, and adapted to, their service, we find nothing in the ordinance before us which would prevent their doing so, nor will the curbing prevent their obtaining access to the neutral ground at the street crossings. The case, therefore, differs materially in its facts from that of Lagare vs. Chicago, 139 Ill., 46, to which we have been referred, where it appeared that a street, upon which there was already one steam railroad track, was to be widened, by expropriation, and six additional tracks were to be laid, and the seven tracks were to be entirely cut off from the rest of the street by a brick wall twelve feet high. It was there held that the expropriation was for the exclusive benefit of the railroad companies, and the court refused to sustain it. Our conclusion, then, is that the present expropriation proceeding is a competent exercise of authority on the part of the city government.

The defendant paid six thousand five hundred dollars for his property, in 1897. It measures two hundred and fifty-one feet front on Front street* by a depth of two hundred feet between the parallel streets, Soniat and Dufossat, aiid runs back from Front street to the toe of the levee. In addition to this, however, it has a batture extending six hundred feet in front of the levee, which is under water in high stages of the river, and which is known as a growing, or making, batture. Most of the witnesses who were examined value the property, inside the levees, at three thousand five hundred dollars, which, considered with reference to the price paid for the whole, would fix the value of the batture at three thousand dollars. The strip, sixty feet in length, to be taken from the Front street side of the property, is somewhat less than one-third of the square inside of the levee, valued at three thousand five hundred dollars, but it leaves a lot 251x140 instead of 251x200, as it now stands, and as all the testimony indicates that the property is not likely to be wanted for any other purpose than the establishment of a manufacturing' plant, we are inclined to think that the taking of the sixty feet may be somewhat prejudicial to the value of the remainder. This, we apprehend, was the view taken by the jury in fixing the value of the strip at one thousand three hundred and fifty dollars. This is, no doubt, a full allowance, but not sufficiently out of the way to justify our interference with it.

The judgment appealed from is therefore affirmed.