text:
    No. 8965.
    The New Orleans Waterworks Company vs. The Louisiana Sugar Refinery Company and The City of New Orleans.
    XUe Cifey of New Orleans lias the right to grant fclie privilege of laying pipes and conduits, across and ^through the river bank and the public streets, to parties asking the same,, to" draw water from the river for their own use and purposes.
    Tho right thus conceded does not come in conflict with those of the Waterworks Company, and can, therefore, be legally exorcised under the terms of the privilege, and daring the pleasure of the municipal authorities, *
    APPEAL from the Civil District Court for the Parish of Orleans/ J. '

      Albert Voorliies and T. J. Semines & Payne for Plaintiff and Appellan t:
    The legislative Charter, as well as the transfer from the City of New Orleans to plaintiff, confers upon it the exclusive right to supply the City aud her inhabitants with water from the river through pipes and conduits.
    None but contiguous or riparian proprietors can claim the benefit of Sec. 18 of Act No. 33 of 1877. * ’
    T.ho City of New Orleans is, by her transfer to the New Orleans Waterworks Company? bound to warrant this Company in the use and enjoyment of tho above exclusive right. C. C. 2475 (2450), 2476 (2451), 25C0 (2476 )

      A. Goldtlmaite for Defendant and Appellee.
   ' The opinion of the Court was delivered by

Bermudez, C. J.

The object of this suit is to annul the.permission which the City of New Orleans has granted the defendant Company, to ' lay water pipes from its factory to the Mississippi river, under munici-. pal direction and control, the permission being revocable at the pleasure of the council. The petition, is accompanied by a prayer for an injunction to prevent the Company from using said permission and to command the City to revoke the same. It concludes with a demand for ten thousand dollars damages in solido from the Company and the City.

The defense is, that the Company, in common with all other inhabitants, has an inalienable right to draw water from tiie river for their own use and supply; that the defendant lias obtained the valid authority of the City to lay pipes and conduits from the river to within its premises, to accomplish that purpose ; that the plaintiff corporation has- and enjoys the privilege of drawing water from the same river, by means of pipes and conduits, for the sole purpose of supplying with water the City and its inhabitants; that the defendant Company has not supplied, aud does not intend to supply, the City or any inhabitant of the City of New Orleans, with water through its pipes, which are exclusively for its own use and for its manufacturing purposes.

There are other defences, which it is needless to set forth.

From an adverse judgment, the plaintiff corporation appeals.

The facts are few and indisputable.

In 1833, the legislature chartered the Commercial Bank of New Orleans, conferring upon it the right to have forever the exclusive privilege of supplying the City and its inhabitants witli water from the Mississippi river, by means of pipes and conduits, and imposing upon the exercise of that right, certain onerous conditions Which it is unnecessary to mention.

In 1868, under th.e terms of the charter, the franchise and the property of the bank passed for a valuable consideration to the City of New Orleans; who carried on the works until 1877, when the plaintiff corporation being chartered, the City transferred to it all her rights to the franchise and property acquired, as stated.

Section 5 of Act 13 of 1877, p. 51, chartering the plaintiff corporation, provides that it shall have for fifty years the exclusive privilege of supplying the City of New Orleans and its inhabitants with water from the Mississippi river, or any other stream or river, by means of pipes and conduits, and, to that end, to put up such constructions and do such work as may be necessary “through, or over any of the lands or streets of the City of New Orleans.”

Section 18 of the Charter formally recognizes the right of the city council of granting to persons contiguous to the river, the privilege of laying pipes to the river for their exclusive use.

■ The Charter confers rights and imposes obligations which it is not imperative to specify.

In March, 1883, the city council authorized the defendant Company to erect its factory and to lay water and sewerage pipes therefrom to file river, according to' lines and grades to be furnished by the surveyor, under certain restrictions, one of which being that the permission shall remain revocable at the pleasure of the council.

The question which arises, under such state of facts is, simply : Whether the City of New Orleans had the right to grant the authority. If the City had such a right, the defendant Company has a right to exercise it.

In order to determine that question, it is essential, first, to ascertain what is the nature and extent of the privilege originally conferred by the State upon the Commercial Bank and which passed to the City of New Orleans, by whom it was afterwards transferred to the defendant Company, organized, as it was, by a charter which is explicit as to its prerogatives and responsibilities.

The preamble of the Act of 1833, which creates and charters the Commercial Bank, declares that its object is to be the conveying of. water from the river into the City of New Orleans and its faubqnrgs, and into the houses of its inhabitants; and Section 4 confers to it forever the exclusive privilege of supplying the City, its inhabitants and faubourgs, with water from the Mississippi river, by means of pipes or’ conduits or hydrants. Those expressions are almost identical with' those found in the Act of 1877, with the exception that the duration of the privilege, instead of being perpetual, is limited to the term of fifty years.

The right conferred by the legislature in 1833, and confirmed in 1877,. was not to draw water from the river, nor was it to lay pipes and con-, duits on the lands and streets of the City of New Orleans. It was the. exclusive privilege of supplying the City and its inhabitants with water-drawn from the river by those means, the object in view being,.on account of benefits derived by the City, the exclusion of all others, corporations and individuals, from making a similar supply, in other words,. from selling and vending water.

The Commercial Bank, in common with all the inhabitants of the City, possessed, independent of any legislative grant or concession,, the right to draw water from the river for its own purposes, and to. supply the City and its inhabitants with it; but it did not, any more than any of the inhabitants of the City, have the right of laying the-pipes and conduits necessary to convey the water through or over any of the lands or streets of the City, and to do so it required special authority, either directly from the State, or from its functionary, the City herself. The right which it did not possess and which no other inhabitant possessed, was the exclusive privilege of supplying the-City and its inhabitants forever, or a limited time, by means of pipes and conduits laid through the public soil.

The moment that privilege was conferred by the State on the corporation, to supply the City and its inhabitants with water from the river, through pipes and conduits which it was authorized to lay through and over any of the lands or streets of the City, all preexisting, as well as all subsequently arising rights, which could have otherwise been exercised, ceased to be available, and competition for such supply became an absolute legal impossibility.

• The rights to that exclusive privilege, under the present Constitution, is contested by the defendant; but it is entirely out of place to consider whether it exists or not, as, under the pleadings and the facts,, the question of competition is not at all at issue. '

The City of New Orleans does not claim to have conferred on the defendant Company, and that Company does not claim to have received from the City, the right or privilege of supplying the City and its inhabitants with water by means of pipes, conduits and hydrants.

The City and the defendant Company claim only, that the former had a right to grant, and the latter has that to enjoy, the permission of laying pipes and conduits from the river to its factory, for the sole purpose of supplying itself with river water for its own purposes, and for no other.

It cannot be doubted for an instant that, as the City has, under general laws and by her charter, which emanates directly from the sovereign, the exclusive control and regulation of her public lands, quays, streets and avenues, she had the right of permitting the defendant Company to lay pipes and conduits across the quay and through the streets, from the river to within its factory limits, for the purpose of supplying itself with the water needed for its objects. R. C, C. 450, 453, 455, 457 ; 14 An. 854; 32 An. 915.

It is true, that Section 18 of the Charter of 1877 expressly protects riparian or contiguous proprietors against a possible effect of the ex-elusive-privilege granted; but the provision there found is not tobe construed as one conferring a privilege or right which otherwise would have had no existence. It is indisputable, that such riparian or contiguous owners would, independent of the declarations in Section 18, have enjoyed that right, which could, under no contingency, have thus been abridged.

They had, clearly, not only the privilege, in common with all others, ' to draw the running water from the river for domestic purposes, ad lavandum etpotendum, but also, on principle, that, without the need of a previous permission, of laying pipes from the river to their premises, to draw the water necessary for their use. The State and her functionaries—political corporations—however, have the right, in the exercise of the police power, of regulating the enjoyment of that right, denying or permitting it, according as public security and good may or not demand.

If Section 18 was designed for any practical object, it could only have been to secure the contiguous owners, beyond the possibility of a doubt, their indisputable rights, subjecting them, however, to the control of the municipal authorities, as the improvident or careless exercise of such rights, across the river bank and through the public street of a populous metropolis, might be attended with great calamitous consequences, inflicting incalculable wrong and injury.

The right of the plaintiff to the City’s warranty, as transferror of the franchise and property of the former Commercial Bank, is no foundation for this action. If the plaintiff has the exclusive privilege in question, nothing shows that the City has done or does, or proposes doing, anything designed to impair the fight which the plaintiff has to supply, with river water, the City and its inhabitants.

Lord Chief Justice Wilmot, (op. and judg., p. 378) has well observed:

“It is the duty of all courts of justice to keep their eye steadily upon the interests of the public, even in the interest of commutative justice, and when they find an action is founded on a claim injurious to the public and which has a bad tendency, to give it no countenance or assistance in foro civile.'1'1

Well aware of, and in keeping with that wise rule of public security, we think it our duty to reject, as the lower court did, the demand of plaintiff.

Judgment affirmed with costs.


source: Caselaw Access Project

author: Poché, J.

license: Public Domain

text:
    No. 8666.
    Williams, Pinckard & Co. vs. Julius Aroni.
    A party who contracts with a broker in cotton for future delivery, with special reference to the rules of the Cotton Exchange in New Orleans, agrees thereby that his contract will be governed by such rules, and he will, therefore, be held to comply with the same.
    Hence, if his contract is closed out under such rules, by reason of his broker’s failure, and before its maturity, he must abide the consequences, and must make good the losses of his broker under the contract.
    If the broker settles his liabilities with his creditors at the rate of fifty cents on the dollar, he cannot recover a greater proportion on the account of his principal. He is entitled to recover the amount actually disbursed by him and no more.
    APPEAL from tbe Civil District Court for tbe Parish of Orleans. Tissot, J.

      II. Ij. Dvfour and J. O. Nixon, Jr. for Plaintiffs and Appellees:
    1. Where a contract is made expressly subject to certain rules of trade, and those rules are known to the person making the contract, that person is responsible for any loss that may ensue in either the carryiug out or termination of such contract under such rules.
    2. A person who, with knowledge of all the facts, and under no error of law, acquiesces in a settlement, cannot subsequently, when the market has changed, change his position to the prejudice of those with whom he is dealing.
    3. Parol evidence is admissible to show a new agreement, or a modification of a previous written agreement. Leeds vs. Louisiana, 17 An, 32; Bouligny vs. Urquhart, 4 La. 30; G-ardeur vs. Battaille, 5 An. 597.
    4. Where a broker has made a partial settlement and is still liable for the balance, he can. recover the whole amount of loss made by the customer. Lacy vs. Hill, L. H. 18 Eq. 182.

      F. M. Hudson and W. F. é D. G. Méllen for Defendant and Appellant:
    1. No broker can have a valid claim for his commissions or other compensation, if he has not discharged all the duties of the employment which he has undertaken with proper care, skill, aud fidelity. Parsons on Contracts, 6th ed., Ho. 100; C. C. 3022, 3024; Sibbold vs. Bethlehem Iron Co.,' 11 H. Y. Weekly Digest, 445.
    2. The margins, deposited by the principal with his broker to secure the latter against loss, are a special trust fund which the principal has the right to have applied in payment and satisfaction of the contracts made in his behalf by the broker. 10 Bosworth, H. Y. S. C. 356.
    3. The sole ground on which a broker can recover from his principal, for moneys expended or losses incurred, is that the principal is bound to indemnify his broker for monies paid out or liabilities incurred at the request, express or implied, of the principal. It is immaterial .whether the broker voluntarily converts his principal’s property to his own use, by wrongfully closing out his contracts, or whether, from no fault of the prinoipal, but solely from his own insolvency and inability to carry out his undertaking, the principal's contracts are closed out under the rules of the brokers’ exchange, Duncan vs. Hill, L. R. 8 Ex., pp. 247, 248.
    4. Where the agent, as in this caso, is subjected to loss, not by reason of his having entered into the contracts in behalf of his prinoipal, but by reason of a default of his own—-that is to say, by reason of his insolvency, brought on by want of means to moet his other primary obligations—it cannot be said that be has suffered loss by reason of his contracts in behalf of his principal; and consequently there is no promise which can bo implied on the part of his principal to indemnify him; and no express provision to this effect is is shown; Young vs. Cole, 3 Bing. H. C. 724; Child vs. Morlcy, 8 T. R, 610.
    5. The broker’s insolvency, by defeating the undertaking entered into on behalf of his principal, operates an 'entire failure of consideration on his part, thereby entitling the principal to recover back all funds furnished as margins to protect his contracts, and defeating all claim to compensation on behalf of the broker. Ibid.
    6. Rules among brokers, so far as they relate to tho time and mode of payment, the time and mode of delivery, the various allowances to bo made, and all-such matters as arise upon the contract made in the market, are valid, and their principals would he bound by the usage; but so far as they seek to change the nature or intrinsic character of the contracts, or are against law, they are void, and cannot be permitted to affect the lights of tho principals. Robinson vs. Mollott, L. R., vii. E. & I. App. pp. 818, 819.
    7. A visiting member of the Hew Orleans Cotton Exchange is subject to the rules of order of the Exchange, but is not, by reason of his being a visiting member, bound by rul e 28
    • of the Exchange. Rule 28 is intended to apply to active members of the Exchange, in reference to their contracts with each other; and can have no effect on contracts which such members, as brokers or agents, may have with their principals. ’ It oannot be per mitted to override the law governing the relations between principals and agents. Ibid.
    8. An hgent cannot, in a suit against his principal for moneys alleged to have been paid out by him, for account of his prinoipal, under any circumstances, recover more than the amount actually paid out with interest.
   The opinion of the Court was delivered by

Poché, J.

Plaintiffs, who were brokers in cotton for future delivery, were employed as such by defendant to purchase cotton for him for delivery in April, 1882.

Conforming to their principal’s instructions, they had made for him, and held a contract of purchase of eight hundred bales for the April delivery, when, on the 13th of February, they failed in business, and suspended.

■ Under the rules of the Cotton Exchange, which control and regulate such transactions, all their contracts in the Exchange were closed out, and their notice of suspension having been posted up in the Exchange after 2 o’clock p. sr., their contracts were required to be settled on the average quotation of prices of the next day: the 14th of February, 1882.

On that settlement it was ascertained that the losses sustained by plaintiffs, on account of their ..cotton transactions as defendant’s brokers, amounted to $3,868.93.

In answer to sundry calls made on him by his agents, to cover margins of probable losses occasioned by the purchase as stated above, the defendant had deposited with his said brokers the aggregate amount of $2,435.62.

Allowing him credit for such deposits, plaintiffs have brought this suit for the recovery of the sum disbursed by them, as above stated, which, including other matters to the credit and debit of the account, such as a commission of one.hundred dollars, etc., they foot up at the sum of $3,432.94, for which .they obtained judgment in the lower court. Defendant filed a general denial, followed by the special defence that plaintiffs had closed out his contract without his authority or instructions, and through no fault of his, by which course they had forfeited all rights against him under the contract, and he claimed in reconvention the sum of $2,435.62, which he had deposited with them as above stated.

Further defending, he averred, that plaintiffs had settled all their liabilities under the contracts closed out under the rules of the Exchange, at fifty per cent, of the amounts due, and that, in consequence thereof the only sums which they had disbursed for his account amounted to $1,934.46, leaving them his .debtors for the difference between said sum and the amount of his deposits for margins.

Both parties fully and unequivocally recognize the legality and binding effect of contracts for the purchase and sale of commodities for future delivery. Hence,'the question of the legality or morality of such contracts is entirely. eliminated from the consideration of this cause.

Defendant’s first or main proposition is, that plaintiffs having closed out his contract without his authority or instructions, and contrary to the terms of the undertaking, they are not only debarred from the right of recovering any losses resulting therefrom, but that they have thereby, incurred the liability of reimbursing to their principal all the losses, caused by their wrongful act.

It is not denied that the plaintiffs’ contracts were correctly and legally closed out under the rules of the Exchange, but defendant resists application of these rules to his contract with his brokers.

On this point the record shows that, under his own signature in his contract witli plaintiffs, the defendant agreed to be controlled by the rules of the Exchange, and it also appears that he was a visiting member of the Exchange, and had been the attorney of several committees of that corporation. Hence, the conclusion that he was familiar with the rules of the Exchange, and that he had full and intelligent knowledge of rule 28 of the Association on the subject of failures. In Jtoint of fact, he acknowledges that he was aware of the rule.

This is the rule which provides for the closing out and settlement of all the contracts carried by any member who gives the required notice of his inability to meet his obligations with other members at maturity. That, as well as all the other rules of the Exchange, therefore, became a part of the contract of defendant with his brokers, just as though they had been incorporated in the contract.

In thus employing these agents defendant, therefore, incurred the risk of their failure and of the prescribed consequences thereof, touching his contract with them. True, he omitted or committed no act which contributed in the least to the disaster ¡ but under the circumstances of his contract, he occupies no better position towards his agents than would otherwise be the case, and they are not more liable in responsibility towards him for the unforeseen calamity than they would be for the consequences of a falling market. The failure was not the fault of the defendant, and no more can it be attributed to the negligence or want of skill of the plaintiffs.

Their misfortune was to carry too many contracts of purchase in a falling market, owing to the erroneous judgment of other principals who, like the defendant, had calculated on a different state of things.

In this aspect of the case, the brokers were situated precisely like the agent in the case of Lacey vs. Hill, L. R. Eq. vol. 18, p. 182, who could not foresee the default of their principal, in the face of his positive promise to the contrary.

The two authorities mainly relied upon by defendant, in support of his theory, deal with principals who were shown to be ignorant of the custom of trade invoked against them, and it was therefore held, that they were not bound thereby.

In one of those cases, it was found that the custom or rule invoked was wholly unreasonable.' We therefore conclude, that these decisions cannot control the instant case. Robinson vs. Mollett, L. R. 7 Eng. and Irish Appeals, 802; Duncan vs. Hill, L. R. 8 Ex. 242.

' As the defendant contracted with plaintiffs with special reference to the rules of the Cotton Exchange, and bound himself to be governed thereby, the question of the reasonable character, the legality or the binding effect of these rales per se, and of their availability on the enforcement of the contract finds no place for discussion in this case- and must be eliminated therefrom.

We therefore conclude, that plaintiffs are legally entitled to compensation for the losses sustained by them in the transaction of the business.

This brings us to the consideration of the amount which they may lawfully claim.

By their own judicial admission they show that the actual amount disbursed by them on account of defendant’s contract was only fifty per cent, of the amount which they claim, and hence the conclusion that they cannot recover more.

This fact of a settlement at fifty cents on tho dollar is further shown by the written agreement of all their creditors to that effect, and by their subsequent receipt of the amount agreed upon.

The effort of plaintiffs to show that they had a verbal agreement with creditors to pay more as they made collections cannot be entertained for a moment, in the face of a settlement which the rules required to be full, as a condition precedent to their readmission as members of the Exchange. Good faith and fair dealing operate as a complete estoppel of that pretension.

No more can they succeed in their attempt to show that they had settled at par for six hundred bales of the defendant’s contract, by offset with fellow brokers, to whom they had sold cotton, through the process known in the language of the trade as the ringing out of contracts.

The very account which they presented to defendant, and on which this suit is based, charges that the loss on the 800 bales was incurred on the 15th of February, 1882, and hence, defendant’s liability to them cannot be affected by their previous operations with other brokers, while his contract was in full force and at the very time that a call of eighteen hundred dollars was made on him.

A different ruling would open the door to frequent and great abuse of the confidential relations existing between principal and agent, and would tend to legalize very dangerous practices, easily understood without further explanation.

But above all. these considerations, it is clear in law that plaintiffs are absolutely estopped from attempting to prove a claim different from the cause of action set forth in their pleadings.

As the defendant is charged with a loss of $3,868.93, alleged to have been disbursed by his agents, he is legally entitled to ascertain the manner in which that sum was disbursed. Such an examination is of the very essence of-the controversy, and cannot'he resisted or evaded by the agent who judicially demands reimbursement for losses alleged to have been sustained by him in the transaction of his principal’s business, Plaintiffs’ own evidence shows that, on account of the alleged losses sustained in these -transactions, they have actually disbursed hut fifty cents oh the dollar.

They contend, in-their brief, that the deposits made by the defendant had been absorbed by being put up as margins, before the 13th of February, the day of their suspension, and that the portion of defendant’s liability, which they settled at the rate of 50 per cent., was only the -difference between the amount of the deposits and that of the losses. But that argument is not borne out by the record, which is silent on the subject; and the account sued upon leads to a different conclusion.

To the suggestion that the defendant' did not call for a detailed account of the disbursement of - Iris funds, we answer that it was incumbent on the plaintiffs to preseht and prove'such au account.

• In the absence of such proof, we are bound to conclude with the defendant, that his funds were held by his agents at the time of their failure. The burden of proof was on plaintiffs, and their silence must-be construed against them. On such a vital point it will not suffice to - invoke the custom of the Exchange, it must be shown that plaintiffs had actually complied wjth the rule or custom.

' In the absence of such proof, we must construe the account literally, and that view justifies the conclusion that the losses ou defendant’s-purchase was settled by plaintiffs at the rate of fifty cents on the' dollar. Having disbursed but $1,934.46 for account of their principal, they owe him the difference between that sum and the amount of his' deposits.

We are also of opinion that they are entitled to no commission in • the premises, for the reason that they did not perform the service which they had undertaken in their contract.

-Their obligation was to carry the defendant’s contract to April; they closed it with losses in February,' and admitting that they yielded-to overpowering circumstances, it is1 nevertheless true that they did not complete the mission which they had undertaken. Parsons on-“Contracts, 6th Ed., 100.

The judgment of the District Court is therefore reversed, and it is ordered and decreed that there be judgment in favor of the defendant against plaintiffs in the sum of five hundred and one 16--100 dollars ($501.16) and costs in both Courts'. ■

Rehearing refused. ... .


author: Todd, J. Fenner, J.

text:
    No. 8721.
    William T. Levine et al. vs. Bernard Michel.
    In Rn injunction suit to prevent the continuance of the acts complained of, plaintiffs alleging that those acts, if persisted in by defendant, will cause them more than $2,000 damages this Court has jurisdiction of the caso. . • ' ‘ ,
    Under the Statutes'of the State relative to the appointment of Branch Pilots of the Port of Hew Orleans, ¿ñd regulating their duties, a partnership or association of the said pilots, though State officers, for the purpose of furthering and protecting their common interests, is not illegal. Under the language of these Statutes anch association is authorized, an£ excepts the pilots from any legal principio which would forbid such an association of State officers for the purposes declared.
    Articles 1926,192?, 1929 of the Code, authorizing specific performance of obligations to do or not to do,in certain cases, apply to contracts of partnership as well as to other conventional obligations. 4 . t
    Where, by a valid contract of partnership, a partner bound himself: 1st, to devote his time, labor, skill, etc., to the partnership business ; 2d, not to carry on the partnership business otherwise than as a partner, the latter negative obligation may be enforced by injunction, although the former cannot be specifically enforced.
    APPEAL from tile Twenty-fourth District Court, Parish of Plaque-mines. Bwaudais, J.

      J. M. Beckwith for Plaintiffs and Appellees:
    1. Under the ruling in 32 Ac. 1135,118?; 34 An. 834, and in Ho. 8749 of the present docket, this Court is without jurisdiction to hear this case pn.appeal. •
    2. The,agreement of association between the Branch Pilots of the Port of Hew Orleans, set out in the record, is lawful, and is not governed by the law relating to partnership (R, S. 2707-2709) being specially authorized and recognized by statute.
    3. If the articles of association in the record are held to he partnership, the Coúrt will enforce specific performance of the contract, both ofthe affirmative co venan t to contribute to the partnership the authority, skill and labor of the defendant, and the negative covenant on his part not to enter into a like business on his account, or with others, to the injury of his associates. Marble Co. vs. Ripley, 10 Wall. 339; Chitty on Contracts, 11th ed. 341; 2 Term Reps. 482; 7 Mod. 116; 13 East. 538; 6 Simmons, 333; 9 Condensed Eng. Chancery Reps. 236; Parsons on Partnership, 298; 16 Vcs. 382; 4 E. D. Smith, 135; 13 Eng. Law and Equity Reps. 252} 2 Edward’s Chancery Reps. 529; Wintz vs. Vogt, 3 An. 16. ’
    2?. H. McCakb and F. O. Hacharte for Defendant and Appellant:-
    Under the regime of the civil law no one can be enjoined to carry on a partnership requiring the exercise of skill and industry. The only action to which the recalcitrant partner subjects himself for failing to comply with the partnership contract, is a suit for the damages to the partnership occasioned by his acts. Institutes of Justinian, Lib. Ill, Tit. XXVI, § IX; Bail o. Moulong et Brisson, Cour de Lyon, 18 Mai, 1823; R. C. C. 2862; 13 An. 519. L’inéxécution volontaire de ses engagements par un associó le rend passible de dommagesiutérets. Troplong, Confcrat do Société, 988,
    A partner who has agreed to furnish his skill and labor should he deemed to have contracted, a hiring of his services. Pardessus, Cours de Droit Commercial, Tome IV, Ho. 989.
    In an obligation to do or not to do, the creditor cannot coerce his debtor to a performance of his contract without violating his liberty. Jifemo potest praedse cogi ad factum. Pothior, Traite des Obligations, partie 1, chapitre II, § 11, No. 157; Duranton, Liv. Ill, Tit. Ill, No. 453,; Laurent, Tome XVI, No. 459.
    A dispute arising in a pilotage partnership cannot be settled by injunction. 26 An. 311. Nor can the Court, by injunction, direct or control a public officer in the performance of his duties. 34 An. 740 ; 24 An. IG.

      A chancery injunction bill is unknown to and unauthorized by the Louisiana Code of Praotice. In this State a writ of injunction is merely ancillary to a suit—a conservatory act aocom* ’ panying a principal demand. It is synonymous with the common law writ of prohibition. ; ' 99 IT. S. 380.
    Compelling the defendant, by injunction, to specifically perform the obligations stipulated in the articles of co-partnership, violates the very letter of the law authorizing the Branch Pilots to “ form themselves into one or more voluntary private associations.” R. S. 1870, Sec. 2707. Such association ceases to be voluntary and becomes compulsory when kept together by a mandatory injunction.
    The following clause in ft contract of partnership, “ said parties being bound to the provisions of this article in the penal sum of $5,000 each, and forfeiture of all right, title and interest in this partnership,” is a conditional novation, an agreement that if the first obligation ' was not fulfilled, it should be extinguished and supplanted by the second. The creditor cannot, in such case, enforce the primary obligation. Digest Book XLIV, Tit. VII, Law « 44, § 6; Pothier, Traite des Obligations, Partie IT, Chap. V. No. 342; Maroadé, Tomo 4, No. 651; Duranton, Tome 10, No. 485; Idem, Tome It, No. 338.
    A creditor cannot exact the enforcement of a primary obligation and at the same time reserve his right to claim the penalty. A judgment permitting such reservation should-not he affirmed. R. C. C., Arts. 2124, 2125; 18 An. 276.
   The opinion of the Court was delivered by

Todd, J.

This is a,suit substantially by the Pilots’ Association, composed of the Branch Pilots of the Port of New Orleans, against the defendant, a member of the same association, to compel him to a specific performance of his engagements under the articles of agreement entered into by said members when the oi’ganization of the association took place; and to enjoin him from the commission of certain acts designated specifically and at large in the petition, and charged to be in violation of his said engagement and obligations to the company.

We are met at the threshold of our inquiry into the case, by a suggestion of the plaintiffs’ and appellees’ counsel that this Court is without jurisdiction of the appeaí—ratione material—and under this suggestion we have made a careful examination of the pleadings and the 'record, with a view to determine the question.

. The main object of the suit, as stated, seems to be to preserve intact, and to protect from infringement on the part of any member, the articles of agreement which form the basis of the association.

There is no moneyed demand made against the defendant, exeept for the payment of the costs of suit. There is, however, an allegation in substance that, if the defendant is permitted to continue in the commission of the acts complained of, it would cause damage to the amount of $2,000. With respect to the acts already done, of which complaint is made, tlio rightis reservedin the petition to claim damages therefor in another suit, and this reservation is made in the judgment.

An injunction issued, as stated, to restrain the defendant from committing the acts specified as violative of his obligations to the association. This injunction was set aside on bond, and the plaintiffs appealed from this order. We note that, in the. petition for the appeal, it is asserted that the damage the defendant will inflict, while the writ of injunction is suspended, exceeds two thousand dollars per month. The object of the suit is to prevent or avoid such damage. It is plain that the Court has jurisdiction.

On the Merits.

The defendant excepted to the plaintiffs’ action, on grounds substantially as follows:

That plaintiffs are absolutely without right to maintain this suit and stand in judgment.

That plaintiffs and defendant being public officers—branch pilots of the Port of New Orleans—were incapable of entering into any contract of co-partnership relating to their offices and to the performance of their duties. That plaintiffs are without authority and the Court with-: out jurisdiction to interfere with, regulate, hinder or prevent the per-, formance of defendant’s official duties as a branch pilot of the Port of' New Orleans.

Coupled with this exception was the answer which, in effect, was a general denial, and an admission that defendant signed the contract set out in the petition, but denied that the same was binding upon him.

From a judgment in favor of plaintiffs, decreeing a specific performance of the contract and perpetuating the injunction, the defendant has appealed.

The provisions of the contract which the defendant is charged with, violating, are mainly these: That it was stipulated that all the earnings of any member of the association, growing out of the pilotage of vessels, should be paid into the common fund of the association, to be distributed, as to the profits accruing, fro rata among the members.

That each member should bring to the business of the association his time, skill, labor, etc., and should not carry on, on his own account or in conjunction with others, any business in the nature of piloting, or of a like character, with that of the association.

It is charged that the defendant has violated these articles of the association by refusing to perform duty on the vessels of the association j that he procured a small open boat, and prosecuted the business of piloting on his own account, iu disregard of his engagements as a member of said association, and in contravention of the laws of the State.

There is no dispute touching the acts of the defendant in this con- • nection. They are virtually admitted and justified, on the ground embraced in the exception, that tho articles of the association were not binding on him, but opposed to law and public policy and, therefore, void, and this is the question to be determined.

The Branch Pilots of the Port of New Orleans have been held by this- Court to he State officers. 14 An. 7; 33 An, 230.

We have been presented by the defendant’s counsel with an array of authorities in support of his proposition, that such officers canuot enter into a partnership for the purpose of pooling their earnings and regulating their duties.

Even admitting this principle is applicable to a class of persons who, though termed State officers, discharge functions that have no apparent connection with any of the several departments of the State government, yet it is contended that the statutes providing for the appointment of Branch Pilots, and defining and regulating their duties, authorize and provide for such au association or partnership as we find in this ease.

The provision referred to is found in See, 2707, R. S., whieh is in these words:

The duly licensed branch pilots of the port of New Orleans may, for the furtherance of their interests, form themselves into one or more voluntary private associations.”

The second article of the said association or partnership accordingly declares that:

The objects and purposes of the said partnership shall be to mutually protect the common interest of the said partners thereto in the pursuance of their profession as branch pilots of the port of New Orleans.”

The reading of tho sections of the law relating to the appointment and duties of these pilots, and the contract referred to, points out very clearly the interests sought to be protected by this agreement. For instance, the law makes it imperative upon each pilot to be the owner or part owner of at least one decked pilot boat of not less than fifty tons burden; and a pilot not owner of such a.vessel is' to he suspended from his office. R. S. 2703.

It might well happen that a pilot, though otherwise competent and qualified, might not be so fortunate as to own in whole oír in part the vessel required. Ample provision is made for such contingency in the articles in question. A number of vessels, valued at $63,000, were contributed by certaiu members of the association, and became the joint property of all, thus enabling each one of them to meet the statutory requirement referred to.

As it was evident that the business of the licensed pilots, relating to the duties imposed upon them would be large and, at times, complicated, difficult to be attended to individually, a general agent and manager was appointed, under an article of the partnership, with an office in New Orleans, to whom such matters were assigned.

We need not further particularize, but it is evident that the interests of the pilots were sought to be provided for in these articles of association, We have examined each of them minutely, and do not find that any of them are in conflict with the provisions- of the law regulating the duties or business of the pilots, but, on the contrary, are designed and calculated to enforce the legal regulations, and add to the efficiency of the service required thereby.

It is, however, contended- by the defendant’s counsel, that the section of the statutes referred to, authorizing the formation of associa- . tions for the furtherance of the interests of the pilots, meant only associations for benevolent purposes. We do not so construe the language of the statute. No legal authorization would be needed for any purpose of that kind, and an attentive examination of the law on the subject leads to the conclusion that the language referred to had a broader significance, and referred to material interests, and not merely to those pertaining to benevolence or humanity.

For instance, Sec. 2709 provides that any branch pilot piloting any vessel from sea and giving satisfaction shall have a preference in pilot-' ing her out to sea agam, provided he or a pilot from the same associa- . tlon shall be in readiness and offer his services, etc.” Why should the law concern itself with thus guarding a material interest of the contemplated association or associations, if its true interest was that the formation of such organizations had no connection whatever with such interests, and was in no manner designed to further or protect them 9 Nor do we find any more force in the suggestion, that its meaning* might have been to authorize the creation of corporations to carry out the objects desired, and not partnerships. We do not perceive how, forming themselves into a corporation for the same or like purposes, the association of the pilots would have been any less amenable to the objections urged against the partnership. If the partnership was illegal, we cannot see why a corporation, under the same conditions, would have been any less so.

The law expressly licensed the pilots to form associations for the furtherance of their interests ; that much granted. It was not a matter of much moment how this association should take place, or by what name it should be called. Whilst every association of persons does not imply a partnership, it is certain that every partnership implies an association. In this instance, as in so many others, we find nothing in the name.

There being nothing in these articles that contravened the law or its policy, the contract between the parties became a law unto themselves, binding in every respect, and which they could not violate with impunity. And recognizing this contract as a legitimate contract and as specially authorized by law, it is the duty and province of the courts to protect the rights of parties thereunder from infringement, and enforce its performance under a proper showing. We know of no principle of law that would deny the power of the courts to do so, and we do not recognize the authorities cited by the defendant’s counsel as having that effect, or as applicable to the circumstauces of this case.

We think the plaintiffs have fully shown that they are entitled to the relief asked, and that the judgment of the lower court, in granting that relief, was correct j and that judgment is affirmed with costs.

On Rehearing.

Fenner, J.

The correctness of our former opinion on the question of the legality of the contract of partnership herein involved is not called in question ; but, its legality being conceded, the point urged upon our notice is that, under our system, such a contract cannot be specifically enforced.

It is not denied that, under the Roman, as well as under the common law, obligations to do or not to do, arising from contracts, were enforced, not specifically, but only by way of damages. The maxim was, “ nemo potest prmeise cogi ad factum.'”

The like rule was expressly embodied in the Napoleon Code, of ■which Art. 1142 provides : “ Toute obligation de faire on de ne pas faire se résout en dommages et intéréts, en cas d'inexécution de la part du débiteur.”

Our own Code, however, contains the following provisions :

“ Art. 1926. On the breach of any obligations to do or not to do, the., obligee is entitled either to damages, or, in cases which permit it, to a specific performance of the contract, at his option, etc.”

“Art. 1927. In ordinary cases, the breach of such a-contract entitles the party aggrieved only to damages, but where this would be an inadequate compensation, and the party has the power of performing the contract, lie may be constrained to specific performance by means prescribed in the laws which regulate the practice of the courts.”

“Art. 1929. If the obligation be not to do, the obligee may also demand that the obligor be restrained from doing anything in contraven-■ tion of it, in cases where he proves “an attempt to do the thing covenanted against.”

That these articles apply to contracts of partnership, as well as to other contracts, sufficiently appears from the generality of their terms, as well as from the provision of Art. 2803. The pretension that Art. 2862 is inconsistent with this position, is without foundation.

The mere reading of the Articles quoted refutes the major portion of the argument for rehearing, and establishes, beyond controversy, that, in proper eases, the Courts of this State may and should enforce specific performance of contracts by both mandatory and injunctive relief.

The reader of the Articles must be struck with the perfect similarity of the ground stated for this relief, viz: where damages “ would be an inadequate compensation,” to the main foundation o'f equity jurisdiction of-specific performance under the English law, viz: where the legal remedy (which is in damages) would be inadequate, 2 Story on Eq., $$ 717, 718; 1 Eonbl. Eq., Bk. 1, ch. 1; Fry on Spec. Perf., § 11,, etc.

In determining, therefore, what are proper cases for specific relief, the equity jurisprudence of England and this country may be instructively consulted. How far our Courts should follow that jurisprudence is a question to be determined in cases as they arise. We have no occasion now to say more than that, in administering such relief, in cases of obligations to do, we should be, guided by that respect for individual liberty which is an ennobling characteristic of our remedial system, so far as obligations not to do are concerned, the remedy by injunction is explicitly pointed out by Art. 1929, in cases properly covered thereby.

To come now to the instant case.

The contract, of which performance is sought, contains obligations both to do and not to do. Thus, it provides that “ each partner shall bring to the business of said firm, all his time, skill, influence, attention and labor.” Here we have an obligation to do, of a character specific performance of which is obviously non-enforcible, because involving the exercise of skill, good-will and like qualities inherent in the volition of the obligor, the exercise of which courts have no power of compelling. Fry on Spec. Perf. §§ 39, 40, 48, 50, 56, 58, 59, and authorities there cited. So far as our former decree involved specific performance of this obligation, it was error and must be corrected. .

The contract also included the following distinct obligation not to do. “No partner shall have the right to enter into and carry on any business of a like nature with, the business of this partnership, whether for his otvn account or in conjunction with others.”

Why should not the.obligor be “restrained from doing anything in contravention of this obligation,” under the. terms of C. C. Art. 1929? We see no reason. Lawful contracts have the effect of laws as upon the parties to them. Therefore, it is the legal duty of the obligor to comply, the legal right of the obligee to exact compliance ; and a violation thereof is “injurious to plaintiff and impairs a right which he claims,” and is, therefore, a proper subject for injunction within the very terms of Art. 296, Code of Practice.

It is true that it was the ancient doctrine of English equity and is, perhaps, still that recognized in this country, that “ when the positive part of an agreement could not be performed by the court, it would not enforce the negative part by injunction.”. But to this rule there was always an exception, universally recognized, in the case of the contract of partnership, as to which it is well established, from an am cient date, that “ where a partner agreed to exert himself for the benefit of the concern, and not to carry on the partnership trade except as a partner, the court would, if the partnership was subsisting, enjoin agninst a breach of the last stipulation, though it certainly could not enforce the former.” Morrison vs. Coleman, 18 Ves. 437; Kemble vs. Kean, 6 Sim. 333; Whitaker vs. Howe, 3 Beav, 383; Willard’s Eng. Jur. p. 277; Pry on Spec. Perf. 230, note, 556, 557, note.

This is precisely the instant case, and we see no reason why a like principle should not be applied under our law.

We find no merit in any of the other objections to our former decree.

We do not consider that the penal clause attached to Art. 7 of the contract affects the right to the remedy by injunction. Fry on Spec, Perf. $ 66 et seq.

It is matter of course that the injunction will remain operative only during the existence of the partnership, and in case plaintiffs should claim its dissolution, that would end the injunction. As we must amend, we will guard this point, though, perhaps, unnecessary.

The reserve of right to claim damages applies, of course, only to damages inflicted by past illegal acts, and is not objectionable.

There is nothing in the objection that a public officer is enjoined from performing the duties of his office. The way to their performance, in the only proper and lawful mode, is left open to him.

The judgment must be restricted to the relief by injunction, and our former decree must be amended in that respect.

It is, therefore, ordered that our former decree herein be annulled and set aside; and it is now ordered, adjudged and decreed, that the judgment appealed from be now amended by striking therefrom the words: “And that the said Bernard Michell be decreed to fulfil and carry out all of his said obligations under the said agreement;” that it be further amended by inserting therein, after the words, “ that the writ of injunction herein issued be made perpetual,” the words, “to be operative, however, only during the continued existence of the partnership ;” and that, as thus amended, the same be affirmed, plaintiffs and appellees to pay costs of this appeal.


author: Bermudez; C. J.

text:
    No. 8865.
    The Mutual National Bank vs. Keenan & Slawson.
    Compensation cannot bo validly set up in extinguishment of a claim for the price of commod* ities sold for cash, where possession of the same was obtained by an artifice or breach of trust.
    The purchase price, payable ccss7i, must bejpttid under the agreement.
    Compensation rests essentially on good faith, and cannot take place against a claim for the ‘ restitution of a thing of which the owner has 'been unjustly deprived.
    Article 1392, C. N., is identical with Article 2210 of our Code, and the authorities agree in that sense. Rulings in 6 An. 46, 207, 356 5 7 An. 53 5 28 An. 629, and other cases, affirmed.
    APPEAL from the Civil District Court for the Parish of Orleans. J.

      T. H. Kennedy for Plaintiff and Appellee:
    Compensation is not allowable against tbe vendor in a casli sale. 28 An. 627 ¡ Marcadé, Vol. 4, ■ pp. 626, 627 j No. 1, p. 629; No. 5 on Art. 1293, Code Napoleon $ 18 Laurent, p. 468, and 2d note.
    ■ Blanc <& Butler for Defendants and Appellants. ,
   The opinion of the Court was delivered by

Bermudez; C. J.

This is an action to recover the price of cotton sold for cash. The defence is compensation. From a judgment adverse to them the defendants appeal.

The following are the facts proved. On December 12th, 1881, Ben Gerson & Son drew a sixty days’ note for $3,000 to the order of defendants, who endorsed it for .accommodation. The note was used by the drawers. A few days previous to its maturity, learning that Gersoa & Son were in failing circumstances and would not take up the note, the defendants, through a broker who did not disclose them as his principals, bought from Gerson & Son 51 bales of cotton for $2,410.70, which they had under their owu control.

The sale was made for cash, with special provision that $2,000 would be paid before 3 i>. m. the same day, February 8th, 1882. When that hour came, the broker informed Gerson & Son that the amount would not be forthcoming, and that the cotton had been bought for Slawson. Gerson & Son then replied that the sale was cancelled. Later in the •day Gerson & Son ascertained that the purchaser was one of the defendants. An attempt by Gerson & Son to sell the same proved unsuccessful, the defendants refusing to deliver it.

On February 14th, 1882, the $3,000 note maturing, the defendants took it up.

It appears that on the 4th of February Gerson & Son, who were indebted to the plaintiff Bank for advances, gave them an order for the cotton, but this order was not used.

. Subsequently, no material circumstance having intervened between Gerson & Son and the defendants affecting the cotton transaction, the former, on March 31st, 1832, transferred to the plaintiff Bauk their rights under it against the defendants.

The plaintiff Bank now sues, under that transfer, to recover the price of the cotton, $2,410.70.

The defendants,- after pleading the general issue, and admitting the cotton transaction, allege the note of Gerson & Son endorsed and paid by them, and plead the amount thereof, $3,000, in compensation of the demand. They finally charge the-simulation of the transfer, and conclude, praying for judgment under the issues.

It appears that on the trial of the case, the defendants, treating their answer and its averments as being a revocatory action, offered evidence, to show knowledge in plaintiff of Gerson & Son’s insolvency, unjust preference, and consequent injury to them, but the Court refused to admit the proof offered as irrelevant under the pleadings, and bills were reserved.

The answer contains no charge to justify the evidence, and no prayer to warrant a judgment upon it.

The court ruled correctly.

Under the facts as found, the only question presented is one of law: whether the compensation set up can avail 1

The defendants urge, with great force, that the plaintiff Bank stands, under the transfer, in the shoes of Gerson & Son; that the transfer cannot prejudice them, and that, as before it took place, the claim of Gerson & Son against them for the. price of the cotton had been extinguished by compensation, the plaintiff Bank acquired nothing under the transfer.

The argument is solid in appearance only. It is significant that on the 8th of February, when the cotton was sold, the $3,000 note was not due; that it matured on the 14th, subsequently, when it was taken tip; that previous to the purchase, of the cotton, the defendants were, well aware of the insolvent circumstances of Gerson & Son.

It was for the purpose, therefore, of covering themselves against the payment of a claim not in existence, conditionally so, and which, under any aspect, was not exigible, that the defendants purchased the cotton. .

The law requires the co-existence of three conditions in order that compensation maybe setup: 1st, Both debts must have the same object. 2d, They must be liquidated. 3d, They must be exigible.

If. they were not exigible, that one of the debtors, who would not be bound to pay actually, would find himself, by the fact of compensation, deprived of the benefit of the term of credit. Mourlon 2, p. 756, No. 1443; Pardessus Dr. Com., Yol. 1, No. 250.

Speaking on the subject of compensation, Pardessus Dr. Com. says, Vol. 1, p. 282, No. 235, §2, “Cette compensation doit étre offerte de bonne foi. Ainsi Pon ne pourrait trouver ce caractére dans la conduite d’un crdancier qui achéterait diez son debiteur des marchandises qu’il feindrait de vouloir payer comptant et qui apres en avoir fait l’enlevement, n’effectuerait pas le paiement, mais exciperait d’une compensation. II en serait de méme de celui qui, empruntant, comme pour un besoin extrémement, pressé, une somme qu’il promettrait de rendre incessamment, refuserait ensuite d’exécuter cet engagement, sous le pretexte que le préteur est son redevable. Ces sortes de ruses sont indignes de la bonne foi du commerce. Le créancier doit agir directement et. les tribunaux n’accorderaient point, dans ce cas, un succés préparé par un' véritable abus de confiance.”

In support he refers to a decision of .the Court of Cassation. See also Merlin Yo. Compensation, §2.

This Court has emphatically recognized and applied those principles in the following cases which it is unnecessary to analyze. Haydel vs. Roussel, 1 An. 35; Yale vs. Nolan, 3 An. 449; Nolan vs. Shaw, 6 An. 46; McKee vs. Amonett, Ib. 207; Rhodes vs. Hooper, Ib. 356; Breed vs. Purvis, 7 An. 53; Bogert vs. Egerton, 11 An. 73; Vincent vs Gandolfo, 12 An. 526; Guillebeau vs. Melançon, 28 An. 629.

The doctrine rests upon the principle clearly announced in Article 2210, R. C. C., which is to the effect that compensation' shall not take place against a claim for the restitution of a thing of which the owner, has been unjustly deprived. This Article is found in the N. C. as Article 1292.

The notes upon it treat the party who has obtained the unjust possession of the thing of which restitution is asked, as a spoliator.

Bigot Preameneu says: “La compensation ne peut ófcre opposée par celui qui est spoliateur d’une chose, í\ la demande qui lui en est faite. Le spoliateur ne peut sous quelque pretexte que ce soit, étre autorisó il reteñir ce qu’il a volé; l’ordre public l’exige.”

Del vi n court says: “ Quoique la compensation s’opére de pleine droit, le spoliateur n’y est pas recevable, Spoliatus ante omnia reatituend%is.')

There can surely be no escape from the operation of such principles, in a case like the present one, in which the creditor, setting ■ up compensation, had undoubted knowledge of the insolvenoy of his debtor,, and by a preconcerted artifice, unjustly deprives his debtor of property of which he otherwise would not have obtained possession, and this with the view of paying himself and securing au undue preference.

If it be true that the defendants could not have set up compensation, against Gerson & Son, had they been the actual plaintiffs herein, how. can the defendants pretend that they can do so against a third innocent party?

There being no error in the judgment appealed from, it is affirmed with costs.


author: Manning, J. Poché, J. Eenner, J. Bermudez, C. J.

text:
    No. 7687.
    W. S. Beers vs. The Board of Health et als.
    Tho law is not, if a party threatens another with the commission of a wrong, miles» he does an act which he is not obliged to do, that such party has a right to commit the wrong, and that tho injured party cannot recover damages.
    The authorities agree that, after a wrong has boon committed, tho damaged party shall not. increase it, and that, if he does, ho shall have no right to complain for loss or injury sustained in consequence of his wilful acts of commission or omission.
    Damages can bo recovered from an officer, although apparently acting in tho discharge of offi. cial functions, for the execution of an order of his, which was unauthorised, arbitrary and wrongful,
    Tho President of a Board of Health, ordering tho fumigation of a vessel carrying a cargo of fruit, is personally answerable in damages where he thus nets under his declared personal responsibility, without authority from, law or tho Board, and arbitrarily ¡ and where the cargo was in consequence damaged.
    Where witnesses,who belong to the same trade and business, testify as to the value of articles within their lino, the safe rule is to allow the lowest estimate.
    APPEAL from the Sixth District Court, for the Parish of Orleans. Righto v, 3.

      Geo. It. Bright for Plaintiff and Appellee.

      Breavx é Ball for the Public Administrator, on the same side.

      F. O. Zaeharie and T. H. Kennedy for Defendants and Appellees.
   The opinion of the Court was delivered by

Manning, J.

The plaintiff sues the Board of Health, and the individual members thereof, to recover $3,598 as damages for injury to a cargo of fruit caused by fumigating the vessel at the quarantine station.

The schooner came from Port Antonio, Jamaica, where she took in this cargo of bananas in March, 1878, and arrived at the quarantine station April 3d. There was no yellow fever at that Port when she left, and no disease of any kind on the schooner then, or duriug the voyage, or at her arrival. The master of the schooner had a clear bill of health. The Governor had not issued his proclamation declaring any place infected. Yellow fever has never prevailed at Port Antonio. One case only is reported there, brought from elsewhere.

On the arrival of the schooner at the quarantine station the resident physician telegraphed the President of the Board of Health for instructions. It seems he was already under orders to fumigate vessels, since lie stated to the President that the master insisted that fumigation would ruin his cargo, burning sulphur being the article used. Dr. Choppin telegraphed in reply ordering the fumigation, adding “fumes of sulphur do not injure fruit. Put carbolic acid carefully in bilge, but do not sprinkle it over fruit.”

This order was obeyed, and the fruit was blackened. The cargo, valued at $4,375, sold for $839.50

The order was made by the President of the Board without its sanction, though his action was afterwards approved by the Board, one member only dissenting, and the plaintiff contends that this makes it the act of the Board, for the consequences of which the Board and each member thereof is responsible.

We do not think this sanction of the Board retroaets, and makes them responsible for the trespass of the President. The illegal act, if it were illegal, had been already committed, and they did not make themselves co-trespassers by a subsequent approval of it.

The defendant contends that the act was not illegal, but on the contrary was authorized under the power conferred specially upon the Board by the Act of 1876, whereby authority is given it to “disinfect, fumigate, and purify any vessel from ports in which yellow fever usually prevails, or from ports where other contagious or infectious diseases are reported to exist.” Sess. Acts, p. 110. The hindrance to the application of this law is the absence of that condition, the existence , of which must form the basis aud the justification of the Board’s action. Yellow fever does not usually prevail in this Port Antonio, and no other contagious or infectious diseases were reported to exist there.

The power must therefore be derived from some other source, and we can find none unless it be in that clause of the law reorganizing the Board of Health, which authorizes it to establish quarantine stations upon any of the approaches to New Orleans, whenever in its dis-' cretion they may be necessary to protect the health of the City or the State, and to make all needful regulations for the management and police of these stations, and also provides a penalty for any master of a vessel who shall refuse to allow the quarantine officer to disinfect or fumigate his vessel. Sess. Acts 1877, Sec. 7, p. 119.

The Board had authorized its President to act in cases of emergency, and to report his action to the Board when it met. Under that authorization the President ordered the fumigation of this vessel without consulting the Board, and his action as already stated was approved. The physicians who were examined as witnesses say that yellow fever is endemic in the West India Islands, and that Jamaica is in the yellow fever zone, that is, that it is likely to appear there at any time, but there seems to be no doubt that it was not there when this schooner left. Certainly it was not at Port Antonio.

It looks like an arbitrary act to have ordered the fumigation of a vessel with a clear bill of health, coming from a port where there was and had been no sickness, before the proclamation of any port whatever as infected, and with a cargo, the marketable value of which would be destroyed by fumigation. Ignorance of the fact that it would destroy the cargo does not excuse the act, and although we feel that considerations of public policy are entitled to great weight, and the need to uphold the authorities in efforts to secure the public health presses with peculiar force upon us here, we should not be inclined to disallow a claim for damages so well founded as this is, had not the plaintiff refused to do or permit to be done what would have saved his cargo.

The health officer, on receiving Dr. Choppin’s order to fumigate the schooner, suggested to the master to unload his cargo on the customhouse wharf at the quarantine station, and offered assistance to help the crew unload. This was done because the master persisted in saying that the fruit would be ruined, and an opportunity was thus given him to avoid the injury and loss.which he apprehended. He asked who would pay for this unloading, and on being told he must pay the expense refused to do it, although he was convinced the fumigation would destroy tlie saleable quality of his caigo. There were 1,750 bunches of bananas. What time it would have taken to unload, fumigate the vessel, and reload does not appear. The actual detention was a little over six hours. The expense could not have been very considerable, but whether little or much, could have been preferred as a claim for reimbursement.

The plaintiff resists this conclusion, arguing that it was rather the duty of the defendant to cease the continuance of his wrongs than the plaintiff’s to give up acknowledged rights, citing Sutherland to that effect, and a Statute of Congress forbidding under penalty any vessel unloading before coming to the place for the discharge of cargo.

The Act of Congress might as well be held to apply to the partial discharge of cargo to lighten the ship at sea in a storm, as to a discharge for disinfection under quarantine or health laws, and the author cited continues the quotation from the Michigan Court in this wise:

“ If a man tortiously injure the roof of my dwelling, and I obstinately leave it in that condition, and having the opportunity, refuse or neglect to repair, until the furniture and bedding in the house are injured or destroyed by the rains, I cannot recover of him for this injury to my furniture and bedding, which I might have avoided by timely repairs. And if a man comes to my field where my cattle are grazing and turn them out into the street and turn his own cattle in, thus ousting me from the possession, and claiming and holding exclusive possession against me, I cannot leave my cattle to starve on the street and charge him with their full value ; * * * but I can recover only such damages as I have suffered, beyond what I might have avoided, by reasonable diligence.”

The principle which we here apply is stated succinctly by the same author thus:

u If the plaintiff omit to use his opportunities and does not reasonably exert himself to lessen the damages, which may result from the defendant’s act, he is not entitled to compensation for the injury which he might and ought to have prevented, except to the extent of proper compensation for such measures or acts of prevention as the case required and wei;e within Ms knowledge and power.” 2 Sutherland on Damages, 238. See also Levy vs. Car. Canal Co., 34 An. 180; Tardos vs. Jackson R. R. Co., not yet reported.

Judgment affirmed.

Dissenting Opinion.

Poché, J.

The majority opinion in this case concedes to plaintiff all the facts which should have dictated a judgment in his favor.

The propositions of law which he advances in support of his demand are also sustained in a great measure.

The Court finds that the act of Dr. Choppin, in ordering the fumigation of the .vessel, was not sanctioned by law, was not authorized by the Board of Health, and was not justifiable either by reason or justice. And yet the plaintiff is denied the just relief to which he is manifestly entitled, because he refused to tamely submit to a wrong for the purpose of avoiding a greater wrong. As it is conceded that the President of the Board exercised a power not vested in him by law, his liability must be tested by the same rule which would apply to a private citizen, who would have arbitrarily invaded the sacred rights of another.

Now, if the captain of this vessel had been overpowered by an armed body of men, who would have insisted on fumigating his vessel at the risk of damaging his cargo, and he had declined their proffered liberality of allowing him the time to unload and reload his merchandise, would his refusal be entertained for a moment as a proper defence in an action for damages against the wrong-doers? Evidently not.

I see no possible difference between such a case and the circumstances of this case, in which the conduct of the President of the Board is avowedly unjustifiable, unlawful and arbitrary.

The following principle enunciated by the Supreme Court of Michigan has a peculiar application to the present case, and should, in my opinion, have been applied in justification of the captain’s refusal to unload his vessel ¡

“ As to the question of duty, as well might it be said, if he had repeatedly assaulted and beaten me and my family, in my own house, and declared his intention of repeating the process as long as we should remain there, it would be my duty to remove myself and family from the house to avoid increasing the damage which might otherwise accrue from his further continuance or repetition of the like conduct.”

I agree with my Associates in their conclusion exonerating the Board and its other members from responsibility in the premises, but in my opinion the President of the Board was undouotedly responsible for all the damages suffered by plaintiff, who, like many other men engaged in commerce, will see very little encouragement to bring his vessels and cargoes to a port where he finds such little protection for his property and his sacred rights.

I, therefore, dissent'from the decree rendered in the case.

Mr,. Justice Todd concurs in this opinion.

Concurring Opinion.

Eenner, J.

If the action of Choppin liad been clearly wanton and arbitrary, I should doubt the applicability of the principle that plaintiff should lose his damages because he did not do what was possible to avert or lessen them. But Choppin’s action was not of the character indicated, but was doubtless taken in the conscientious discharge of what he believed to be a grave public duty. Although the evidence taken after the fact, perhaps, establishes that Port Antonio was not infected with yellow fever, or usually subject thereto within the terms of the law, it is not to be forgotten that it lies within that extensive nidus of the disease which is professionally known as the yellow fever zone, in which, as a general rule, yellow fever is endemic. The exemption of this particular obscure port was an exceptional fact, of which Choppin was not bound or presumed to be aware. Nor was he bound to accept the mere assurance, to that effect, of interested parties, whose misrepresentation might expose an immense population to the calamities of pestilence.

Plaintiff had no reason to doubt that the health authorities, who were without private interest, were acting in good faith; and it was his duty to have done what lay within his power to avert damage, when offered the opportunity to do so.

I, therefore, concur in the decree herein.

On Rehearing.

Bermudez, C. J.

The argument on the rehearing has failed to demonstrate that the Court erred in exculpating the members of the Board from the responsibility which was sought to be fastened upon them.

A review of the evidence shows that the Court had not misunder.stood the facts, and that the same were correctly stated.

A reconsideration of the perplexing legal questions involved, having a bearing on this case, has, however, established that the plaintiff cannot be considered as having been in fault, as was first found, and that he was not, therefore, properly chargeable with contributory negligence in refusing to unload the fruit cargo, illegally ordered to be fumigated by the President of the Board of Health in his individual recognized responsibility.

The testimony shows that he refused to unload and declined to pay for the unloading, but it does not establish that he objected to its being done. After the fumigation, against,which the plaintiff had entered a formal protest, had taken place, he did everything in his power to prevent an aggravation of the wrong inflicted upon him, by endeavoring to realize for the damaged cargo as much as possible under the pressing circumstances of the time.

It is worthy of note, that when plaintiff’s agent called on the President of the Board to prevent the fumigation, that officer remained deaf to the protest, and persisted in the execution of his instructions to the quarantine agents, saying that he was responsible for the act.

It is also to be observed that whatever may have been the authority of the President of the Board to cause vessels to be fumigated, there has been offered no justification for the fumigation of that portion of the craft in which the fruit had been stored—a thing, one of the witnesses says, which had never been heard of previously.

The authorities do not go to the length, nor could they, of saying that, if a party threatens another with the commission of a wrong, unless he do a certain act which he is not obliged to do, such party has a right to commit the wrong, and the damaged party cannot recover.

The authorities all concur in establishing the proposition that, after a wrong has been committed, the damaged party shall not increase it, and that if he do, he shall have no right to complain for loss or injury sustained in consequence of his wilful acts of commission or omission. Sedgwick, 7th ed., p. 170; 54 N. Y. 528; 43 Me. 578; 38 Iowa, 522; 45 Md. 136; 17 Pick. 284; 1 Md. 329.

Liability attaches in such a case as this, as the act done, and which occasioned the loss, was unauthorized, arbitrary and wrongful.

The testimony shows that there were 1,750 bunches of bananas of a superior quality on board the vessel, and in excellent condition when it reached the quarantine ; that there was a scarcity of such fruit on the market where it was in demand, and that, had the cargo not been fumigated and consequently damaged, it would, on its arrival here, have realized quite a high price, some witnesses say as high as $3 a bunch. In cases of this description, however, it is not safe to accept blindly the highest estimate of witnesses belonging to the same trade ' or business, for there exists among them a certain esprit cle corps which has to be guarded against, and which materially reflects upon and affects their evaluation. The safe rule in such cases is to adopt the lowest estimate. The testimony also shows that in ordinary times a bunch of bananas realizes a dollar; but, that at the particular date of the arrival of the cargo, in this case, in New Orleans, the fruit would have realized $1.75 per bunch, if sound.

At that price the proceeds of sale would have amounted to $3,062.50 deducting therefrom $849.50 which the cargo brought, there remains a balance of $2,223, which the plaintiff is entitled to recover as damages, but without interest.

It -is, therefore, ordered that the previous decree herein made be annulled and set aside, so far as it affirms the judgment appealed from, in favor of S. Choppin, and it is now ordered and adjudged that the judgment appealed from, in so far as rendered in favor of Samuel Choppin, be and it is now reversed and avoided.

And it is now ordered and adjudged that the succession of William S. Beers do have and recover from the succession of Samuel Choppin, or its legal representatives, his widow in community and heirs, in the proportion fixed by law, half from the former and half jointly from the latter, each for his virile share, the sum of two thousand two hundred and twenty-three dollars ($2,223) without interest, and the costs .in both Courts.

It is further ordered and adjudged that, in other respects, the previous decree herein remain undisturbed, and accordingly, that the judgment of the lower court, in favor of the other defendant, be affirmed at the cost of the cast defendant and his succession.

Mr. Justice Fenner and Mr. Justice Manning adhere to the original decree.


author: Todd, J.

text:
    No. 8966.
    The State of Louisiana vs. Moise Morgan.
    An amendment allowed during trial, in a case of rape, substituting a different name to that of the person charged as having been ravished, with the object of substituting another person, affects the substance of the indictment and is not permissible under Sec. 1047, B. S. The District Court was right after verdict to quash the same.
    APPEAL from the Twenty-fifth District Court, Parish of Lafayette. Clegg, J.

      J. A. Chargois, District Attorney, for the State, Appellee.

      D. Caffery for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The State appeals from a judgment setting aside the verdict of the jury sustaining a motion in arrest of judgment, in a prosecution of the defendant for the crime of rape.

The indictment charged the defendant with having committed the rape on the person of Marie Logan.

After arraignment and plea, the case was taken up for trial, and during the progress the trial and after part of the evidence had been introduced, the District Attorney moved to erase the name of Marie Logan and insert instead the name of Bose Bastían as the true name of the person against whom the alleged offense was committed. To this change or amendment counsel of the accused objected, and upon the motion being granted, he reserved his objections, appearing in a bill of exceptions. The trial proceeded, and the jury returned a verdict of guilty, without Capital punishment. Thereupon, a motion in arrest was made, substantially oh the ground that the defendant had never been indicted for a rape upon Rose Bastían, had never been arraigned or pleaded to such charge, and that the amendment allowed during the trial was not merely to correct a description, or give the true name of the person alleged to have been injured, but to insert the name of a different person and, in effect, to institute a new and different prosecution from that originated by the indictment.

This motion was sustained, the verdict quashed, and the accused held in custody, to answer to the charge before another jury, after arraignment and plea.

The appellee asks for no amendment of the judgment.

' It clearly appears from the record, that the amendment to the indictment was not merely to the effect of correcting an error or misdescription as to the name of the party upon whom the offense was committed, but, in point of fact, to substitute the name of a different person, so that the indictment, as originally found, charged that the rape had been committed upon one person—an actual living person—■ and as subsequently changed, that another and different person had been ravished. In other words, the error in the indictment was not merely as to the name, but really as to the person against whom the crime was committed.

The part of the Section (R. S. 1047) under which this amendment was moved, reads thus :

“ Whenever, on or before trial of any indictment for any crime or misdemeanor, there shall appear to be any variance between the statement in the indictment and the evidence offered in proof thereof, * '* in the name or description of any person, body politic or corporate^, therein stated or alleged to be injured or damaged, or intended to be injured or damaged by the commission of such offense; or in the Christian name or surname, or both Christian name and surname, or other description whatsoever, or of any person whomsoever therein named or described, * * it shall be lawful for the court before which the trial shall be had, if it shall consider such variance not material to the merits of the case, and that the defendant cannot be prejudiced thereby in his defense, to order such indictment to be amended according to the proof, * * the trial to be had before the same or another jury, as the court may think reasonable, etc.”

It is evident from a reading of the above, that the statute only authorized such a change in an indictment, as to names, as would correct formal errors or misdescriptions in names attempted or intended to he set forth properly therein, and not to make radical and material changes as to persons, or things pertaining to the substance of the indictment, and by which the defendant might be prejudiced.

■ This is no new construction of the statute, but one in accord with repeated decisions of this Court. State vs. Nicholson, 14 An. 785; State vs. Cook, 20 An. 145; Ib. 408; see also, Wharton, Am. Crim. Law, 6th Ed., Secs. 250-256; Waterman, Archibold, (7th Ed.) 274.

The last authorities cited relate to the construction of the English statute, (14 and 15 Viet.) from which the Act of 1855 (R. S. 1047) was originally derived.

It is plain, that such a change, not merely of names, but of persons, amounting substantially to the substitution of one person for another, upon whom the offense was committed, would necessarily work to the prejudice of the accused.

Judgment affirmed.


author: Bermudez, C. J.

text:
    No. 8973.
    The State of Louisiana vs. Emile Dalon.
    Act 2tfo. D8 of 1880, the object of which is to organize anú put in motion the Criminal District Court for the Parish of Orleans, created by Article 130 of the Constitution, is not a local or special Ittvo and does not fall under the ban of the Constitutional prohibition embodied in Article 48.
    It has but one object and that object is expressed in its title* 33 An. 783, affirmed.
    If part of Section 4 he unconstitutional, the remaining is not assailable and constitutes the Section*
    APPEAL from the Criminal District Court for the Parish of Orleans. Maman, J.

      J. G. JEgan, Attorney General for the State, Appellee.

      L. Mart'ero and J. M. Prcilt) for Defendant and Appellant.
   The opinion of the Court was delivered by

Bermudez, C. J.

The defendant was convicted of arson. He appeals from the verdict and judgment thereon sentencing him to fifteen years at hard labor,

His challenge to the array, which was overruled by the court, assails the constitutionality of Act No. 98 of 1880, on these grounds :

■ 1. That it is a local or special law which was not notified and published, as required by Article 48 of the Constitution in force; and

2. That the Act embraces more than one object, in violation of Article 29 of the Constitution.

. 3. That Section four of the Act is unconstitutional, and being so, the other Sections of the Act become inoperative and are of no effect.

I.

The Act was designed to organize the Criminal District Court for the Parish of Orleans, as established by Article 130 of the Constitution, by providing for and regulating the machinery indispensably necessary to put that Court in motion, and thus preserve public order and general welfare and tranquility. It has no private or local good in view, but aims solely at the enforcement of the laws enacted for the prevention and punishment of crime. It is a public, .a general act, which regulates the common good of each and every member of the human family within the limits of the State.

The words “ local” or “special” are clearly used in contradistinction of the word “ general.” There being no power to enact local or special laws, on subjects not enumerated in Article 46, unless after notice and publication, it is clear that the only laws which the legislature can pass must be general in character,

“ General laws are said to be those which relate or bind all within the jurisdiction of the law making power,, limited as that power may be in its territorial operation or by constitutional restraint.” Sedgwick on Const. Stat, Law, p. 30.

“ The number of persons upon whom the law shall have any direct effect, may be very few, by reason of the subject to which it relates, but it must operate equally and uniformly upon all brought within the relations and circumstances for which it provides.” People vs. Cooper, 83 Ill. p. 589.

“ Those are to be regarded as public acts which regulate the general interest of the State or of any of its divisions.” New Portland vs. New Vineyard, 4 Shep. 69.

“A public act is a universal rule that regards the whole community.” Stephens Comment. Vol. 1, p. 67: Kent, Vol. 1, p. 506; Dwarris on Stat. p. 629.

. “An Act is general within the meaning of the Constitution, which, in its subjects, relates to all the people of the State, or their property, though its operation be not equally applicable to all the parts of the Slate. Local acts are such as are confined to the persons and property, both of a specific locality.” Kerrigan vs. Force, 16 N. Y. 185.

“ The word local, as applied to a bill, to an act, to a law, means such bill, act, or law, as touches but a portion of the territory of the State, a part of its people, a portion of its citizens.

“An Act is local within the meaning of the Constitution, which in its subjects, relates to but a portion of the people of the State, or to their property and may not, either in its subject, operation, or immediate and necessary results, affect the people of the State, or their property in general.” People vs. Supervisors, 43 N. Y. 7, 16; see also, 10 Wis. R. p. 178; 4 Blatchf. 236; 9 Wis. 279; 70 Ill. 398.

The Constitution now in force contains two Articles on the subject of local or special laws: Article 46, which prohibits peremptorily such legislation on the subjects specified,and Article 48, which forbids the same on subjects not enumerated in Article 46, unless, after publication of an intention to apply for the passage thereof; the last Article being, therefore, permissive of such legislation, where the intention was published and that fact is shown, in the manner directed.

A moment’s reflection satisfies the mind that the intention to apply alluded to, can only mean that of private individuals seeking some private advantage or advancement for the benefit of private persons or property within a certain locality.

It is manifest that the Act assailed was one of indispensable necessity to put in motion a court created by the Constitution, and which, without such legislation, would have remained lifeless and cumbersome.

If the attack on the Act has any force, the conclusion would be unavoidable that, as long as no one would conceive the idea of memorializing the legislature for the adoption of such an Act and publish such intention' at his cost, the Criminal District Court, created by the Constitution and designed to prove of such great public service, would continue in perpetual inactivity, impotent to afford the effective protection which society expects from the exercise of its solemn powers. The mere announcement of the proposition carries its refutation.

A review of the authorities leads to the irresistible conclusion that the Act in question, which is in character one eminently public and conservative of individual security and general welfare, and which was essential for the discipline of a judicial organization created by the Constitution and for the administration of criminal justice in the most important subdivision of the State, does not fall under the ban of constitutional proscription, and is, therefore, constitutional and valid, and must be enforced.

The argument, that a law which relates solely to the machinery of a court of justice having jurisdiction over the territory of one parish only, is a local or special law, because it does not operate throughout the State and all the parishes thereof, is perfectly preposterous, and so hollow that it cannot stand criticism.

The real distinction between public or general laws and local or special laws is, that the former affect the community as a whole, whether throughout the State or one of its subdivisions; and the latter affect private persons, private property, private or local private interests.

II and III.

The second objection which goes to the constitutionality of the very Act in question, has already received judicial consideration and determination, as not being unconstitutional, on the score that it violates Article 29 of the Constitution, which prescribes, that every law shall embrace but one object, and that shall be expressed in its title. State vs. Crowley, 33 An. 783.

The ruling in that case is correct, and is affirmed as such.

It is not oxact to say that we there decided that Section four of the Act is unconstitutional, for we did not do so. We merely hypothetically said, that if it were,' this would not render the entire Act unconstitutional, inasmuch as every other part or section of the Act remains covered by the title. •

Indeed, that portion only of the section which refers to the drawing of juries for the Civil District Court for the Parish of Orleans would be the part affected, and would be considered as never having been enacted or incorporated in the law. The remaining portion of the Section concerning the jury wheel or box, which is to be emptied or refilled by order of either of the Judges of the Criminal District Court, would continue in force and operate as Section four.

We therefore conclude,.that Act 98 of 1880 is not unconstitutional, as charged, and that the District Court did not err iu overruling the challenge to the array.

Judgment affirmed.