author: MeEnery, J.

text:
    No. 11,693.
    Britton & Koontz vs. George O. Harvey. The Middlesex Banking Company, Intervenor.
    Movable property declared immovable by destination by tlie Civil Code remains so only so long as the conditions which fix its immobility exist and the rights acquired upon it have existence, otherwise it is subject to the will and pleasure of the owner, who can detach it, pledge it, or sell it.
    !No formal acceptance of pledged property is required. Its delivery to and acceptance by the pledgee is sufficient to perfect the pledge under the written-con-traefc for movables pledged.

      A bona fulo purchaser of property redelivered by the pledgee to the pledgor for temporary use will be protected against the claims of the pledgee on the-property.
    The drawer of the bill can validly pledge property to secure an accommodation acceptor, and also to protect the future holder of the bill.
    APPEAL from the Eighth Judicial District Court, Parish of Con-cordia. Dagg, J.

      Elam efe Dale and Lazarus, Moore & Luce for Plantiffs and Appellants.

      B. R. Boyd for Intervenor, Appellee.
   The opinion of the court was delivered by

MeEnery, J.

This was an action brought in the District Court of Concordia parish, Louisiana, by the appellants agaiast George C. Harvey, in which action writs of attachment and sequestration were issued, and certain property of the defendant, George O. Harvey, was attached and sequestered by the sheriff of Concordia parish. These writs were issued and levied in the month of November, 1893, Subsequently, in the early part of January, 1894, other writs of attachment and sequestration were issued and levied upon twenty head of mules. The Middlesex Banking Company intervened in said suit, claiming title to the said twenty head of mules. Issues were joined upon said intervention,-and the case was tried upon an agreed statement of facts, which was as follows:

“ It is hereby stipulated by and between Messrs. Elam & Dale, attorneys for the plaintiff in the above eniitled suit, and H. R. Boyd', attorney for the Middlesex Banking Company, intervenor in the above entitled suit, that the above cases are to be tried in the above court upon the following facts as herein agreed upon, and that the said agreed statement of facts shall be taken as all the facts in this case in this court, and in any and all courts in which this case may go by appeal or otherwise..

“ It is hereby stipulated and agreed that the Middlesex Banking-Company is a corporation duly organized and existing under and by virtue of the laws of the State of Connecticut, and is duly authorized to do business in the State of Louisiana, and that heretofore, to-wit: on the 31st day of December, 1893, it purchased twenty head of Taules in market overt for the sum of two thousand two hundred •dollars cash, in Memphis in the State of Tennessee, from one Robert .Lockwood, and that the said Middlesex Banking Company did not know, at the time it purchased the said mules as above sec forth, that there had ever been any pledge, equities or any rights against said mules of any kind whatsoever in favor of the plaintiffs above set forth or of any other person; that the said twenty head of mules are worth the sum of two thousand two hundred dollars, and that the same were attached and sequestered in the above entitled suits as the property of one George C. Harvey, and that the said writs of ■attachment and sequestration were issued out of the District Court of Concordia parish, State of Louisiana, and were levied on said mules by the sheriff of Concordia palish, in said parish and State on the-day of January, 1894.

“It is hereby stipulated and agreed that the said mules, so as aforesaid purchased by the Middlesex Banking Company, belonged to one George C. Harvey, and that the said George C. Harvey did, ■on the 9th day of May, 1893, in Concordia'parish, State of Louisiana, make, execute and deliver to Dreyfous Bros, his certain act, a copy •of which is hereto attached marked exhibit ‘A,’ and made a part of this agreed statement of facts. And that the said act was never re■corded, and that the mules described in said act were delivered into the actual possession of W. H. Harvey, who was appointed agent for the pledgees as shown by said act, and that the said mules are the same mules claimed by the Middlesex Banking Company in this suit.

“ It further stipulated and agreed that the said George C. Harvey •used the said mules upon his certain plantation, known as Clermont plantation, in Concordia parish, State of Louisiana, under the supervision and control of W. H. Harvey, as shown by said act; and that -the same were used by him from the 9th day of May, 1893, until about the 3d day of November, 1893, upon said plantation; and that on or about said date the said W. H. Harvey and George C. Harvey removed said mules from said plantation and from Concordia parish, in the State of Louisiana, to Pine Bluff, in the State of Arkansas. And that the said mules were held and used by them for some ten days as their property, and the same were shipped to and sold by them to one J. B. Daniels on the 28th of December, 1893, and the said mules were sold by the said Daniels to one R. L. Derrington on •the 30th day of December, 1893, and that said Derrington sold the said mules to one Eobert Lockwood on the 30th of December, 1893, and that on the 31st day of December, 1893, the said Middlesex Banking Company purchased the said mules in good faith, as above set forth, from the said Eobert Lockwood, and that the removal of said mules from said plantation, and from Concordia parish, in the State of Louisiana, and the sales above set forth, were made without the knowledge or consent of the plaintiffs herein; and it is further agreed that the plaintiffs, as soon as they received the information that the said mules were removed from said plantation, and from Concordia parish, State of Louisiana, sent men in pursuit of them.

“ It is agreed that the affidavits for attachment and sequestration and writs of attachment and sequestration in the above suits in the said courts shall be considered as a part of this agreed statement of facts; that A. & M. Moses are now the owners of said note sued on in their said suit against the said George C. Harvey, and that they were the owners thereof prior to and at the time of the institution of said suit; that Britton & Koontz are now the owners of the drafts sued on in their suit against the said George C. Harvey, and were at the time of and prior to the institution of said suit. That Dreyfous Bros, failed in business prior to the institution of their suits, and were then and are now insolvent, and that the indebtedness to said plaintiffs is just, due and binding on all parties on said notes and drafts set out in said act made a part hereof.”

A copy of the purported pledge, omitting the detailed description of the mules, is as follows:

“State ok Louisiana, \

“ Parish ok Concordia, j

“ Be it remembered that on this the 9th day of May, A. D. 1893, before me, Arestides J. Chaze, a notary public in and for the parish of Concordia and State of Louisiana, personally came and appeared George 0. Harvey, residing in the parish of Concordia, who declared to me, said notary public, that he is indebted unto the commercial firm of Dreyfous Bros., of Natchez, Miss., in the sum of three thousand three hundred and forty-nine dollars and seven cents, with ten per cent, per annum interest from November 1, 1893, until paid, evidenced by his promissory note, dated April 29, 1893, in the sum of three thousand three hundred and forty-nine dollars and seven cents, bearing ten per cent, interest, payable to the order of Drey-fous Bros., at the banking house of Britton & Koontz, at Natchez, Miss., on the 1st day of November, 1893, and paraphed iNe varietur by me, said notary, to identify it with this act.

“The said George O. Harvey further declared that the said note was given to cover acceptances by the firm of Dreyfous Bros, for him, as follows:

“An acceptance in favor of W. H. Hendricks for the sum of two thousand dollars, dated January 4, 1893, due November 4, 1893, with ten per cent, per annum interest from its date.

“An acceptance in favor of A. & M. Moses for one thousand and eighty-five dollars and forty-one cents, with ten per cent, per an-num interest from November 1, 1893, and due November 1, 1893.

“An acceptance for ninety-seven dollars, with ten per cent, per annum interest from November 1, 1893, in favor of A. & M. Moses, and due on November 1, 1893.

“ He further declared that his above described note was given to cover said acceptance and interest thereon.

“ That said George 0. Harvey further declared that said acceptances were given and made for the purchase, from the said Hendricks and A. & M. Moses, of thirty-four head of mules and a horse, and given as advances upon his crop on the Olermont and Oypress Grove plantations, and his other cropping interests in the parish of Con-cordia, and that they are secured by an act of privilege and pledge upon the said crop.

“ He further declared that this act of pledge is given as an additional collateral security for said note and acceptances, the said Dreyfous Bros, in no way waiving their security upon said crop by reason of the giving of the pledge as described herein.

“ In order to more fully secure the said above described note, given for said acceptances, the said George C. Harvey further declared that he has specially pledged and pawned in favor of said Dreyfous Bros., of Natchez, Miss:, the personal property hereinafter described, which he guaranteed to be free from any lien, privilege or other encumbrance.

• “ Mules on the Clermont plantation. (Here follows a description of the mules.)

• “.The said personal property is to remain subjeet to said pledge until the full and final payment of the said note and said acceptances, with principal and interest and attorney’s fees as above stipulated in the sum of ten per cent.

“The said George 0. Harvey further declared that he has delivered and does deliver unto said firm the above described property, and the said Dreyfous Bros, acknowledge the actual delivery and possession of the property.

“ It was further declared and agreed between the said George C. Harvey and the said Dreyfous Bros., herein represented by Ben. Dreyfous, a member of said firm, that W. H. Harvey is constituted the agent of the said firm of Dreyfous Bros., to have and retain possession of the above described property during the existence of this contract and pledge, and the said parties have this day placed the ■said property in the actual possession of the said W. H. Harvey, by the consent of the said G. C. Harvey and the said Dreyfous Bros., for the purpose herein stated.

“ It is further agreed and stipulated that in the event the said Dotes and acceptances are not paid at their maturity, the said firm of Dreyfous Bros, is authorized to sell said property, at private sale, for the best price obtainable, and that said property shall be sold without the necessity of resorting to any court of justice, and at private sale.

The said Geo. 0- Harvey further declared that he obligates himself unto and in favor of said firm of Dreyfous Bros., and unto and in favor of any future holder of said note or acceptances, for all attorney’s fees which they may incur or pay to enforce the collection of •said note and acceptances, which attorney’s fees are fixed at ten per cent, of the amount placed in the hands of counsel for collection.”

The Middlesex Banking Company relies in this case upon five propositions in support of its title to the twenty head of mules.

1. That the purported act of pledge is void, and that Geo. 0. Harvey had no right to pass such an act.

2. That the purported pledge was never accepted by Dreyfous Bros., nor by any one for them.

3. That if Britton & Koontz ever had any valid lien upon the mules, it was lost by the delivery of the mules back to Geo. 0. Harvey by W. H. Harvey.

4. That the Middlesex Banking Company is an innocent purchaser ■of said mules, and is entitled to be protected under the law in its purchase.

5. That Britton & Koontz never acquired any interest in the property purported to be pledged, either upon the face of the instrument or otherwise, and have no standing in any court for the enforcement of their supposed rights.

There was judgment in the lower court in favor of the plaintiffs, Britton & Koontz, and against defendant, Geo. 0. Harvey, for two thousand dollars with interest, and for attorney’s and notarial fees. The writs of attachment and sequestration were sustained as to defendant Geo. 0. Harvey, and the privilege thereunder was recognized and ordered to be enforced on the property seized, and there was judgment in favor of plaintiffs against the g rnishees Gillis, Lev-■erich & Oo. There was judgment in favor of the intervenor for the twenty mules claimed. From the judgment for the-intervenor, the plaintiffs, Britton & Koontz, appealed.

The first proposition of plaintiff is not tenable. To adopt the views of the intervenor would defeat his own claim, as the property would remain immovable, and title could only pass by written act.

The Code divides and classifies all property, corporeal and incorporeal, both immovable and movable, and the classification and description is made in accordance with the nature of the thing, its destination and the objects to which it is applied.

It would be a great undertaking to state the reasons for this division and description of property, the actions necessary to enforce any right springing from the same, and the obligations resulting therefrom, and their interpretation, as they are referable to one or the other classification.

It is a positive declaration of the Code that^movables by destination are immovable. It is a pure fiction, and does not change the nature of the property. It is immovable by destination only so long as the conditi ns exist and the rights upon which it as such have existence ; otherwise it is subject to the will and pleasure of the owner, who can detach it, sell it, or pledge it. Weil vs. Lapeyre, 38 An. 303; Girard vs. New Orleans, 2 An. 901; Caffin vs. Kirwan, 7 An. 221.

The written act of pledge is signed by Dreyfous Bros., by their agent, B. Dreyfous. They have not denied his authority. The signing of the act was consent to the pledge, and the delivery of the property perfected it. We know of no law here, however, which requires the pledgee to make a formal written assent to the pledge. 'The delivery of the pledge is, in itself, an acceptance and assent to the existence of the pledge. On this point the statement of facts is: “That the mules described in said act were delivered into the actual possession of W. H. Harvey, who was appointed agent of the pledgees, as shown by said act.” Auge vs. Varick, 31 An. 865.

The contract of pledge entered into between the parties is exceptional in its character.

There are three obligations secured by it — the note and the acceptances given for it.

It would, on a casual reading of the contract, appear that the acceptances were merged in the note. But we are of the opinion that, the holders of the acceptances are protected by the act of pledge.

The acceptor becomes the principal debtor and the drawer is advanced to the front as first endorser, and the drawer is surety on the-bill or note for its payment, and can be compelled to do so when the requisite steps have been taken to insure his liability, which is conditional. In this case the drawer gave security by way of pledge to protect the acceptor, who was an accommodation acceptor, and entered into a further agreement to secure, by way of pledge, his obligation as endorser. The other acceptances and the note are not-before us. As a fact the pledge was given to secure the payment of the price of the mules, for which drafts or check were given, and accepted by Dreyfous Bros, as accommodation acceptors. He was secured by a pledge which was to continue in existence until the-payment of the acceptances.

He undoubtedly held the pledge in trust for the holders of the-acceptances. It was the debt which gave character to the pledge, and which gives the right and remedies of the parties under it, and not the pledge which determined the nature of the debt. Daniels, on Negotiable Instruments, Sec. 2, par. 834.

Every lawful obligation maybe enforced by the auxiliary obligation of pledge. Oivil Code, 3136.

The principal obligation may be conditional. Oivil Oode, 3137.

There is, therefore, no. reason why one can not give a pledge to-secure his obligation as endorser. Oivil Oode, 3140.

Nor is there any reason why two obligations can not be enforced by the same auxiliary obligation of pledge. In the instant case the-pledgor and drawer of the draft entered into the contract of pledge to secure the accommodation acceptor, and a further obligation in. favor of the holder, to secure by the pledge the holder of the acceptance in case of non-payment by the acceptor.

The objection that the act of pledge was not recorded in the parish of Concordia is without force, as it is only necessary in relation to movable property that the contract be written, and actual delivery be made of the thing pledged.

Continued possession of the thing pledged by the pledgee is essential to its validity, and it is well settled that a delivery back of the possession of the thing pledged to the pledgor terminates the title, unless such delivery be for a temporary purpose only, o.r be to the pledgor in a new character, such as a special bailee or agent. Jones cn Pledges, Sec. 40.

The common and civil law in regard to the delivery of the property to the pledgor for a temporary and special purpose is practically the same; the latter providing, however, that the temporary possession shall be in the interest of the creditor, so that he shall not lose exclusive possession of the same, and the temporal y possession of the thing pledged does not cover a fraud.

The temporary possession must be special and limited; and not for the pledgee’s own use and benefit. The adihission in the statement of facts shows that the pledgor, George C. Harvey, did not have the mules for a special and limited purpose, but that his possession was absolute and unqualified, as he used them for the cultivation of his plantation, for his exclusive use and benefit. In other words, he was not a special bailee of the pledgee for a particular purpose, such as the putting of the pledgor in possession of the property to have some work done on it for the benefit of the pledgee, the redelivery of a note to the pledgor for the special purpose of collection, nor was his possession limited as to time and use. It has been held that when a horse has been temporarily loaned to the pledgor, that he might have the use of it, the pledge was destroyed as to a bona fide purchaser, or an attaching creditor. Day vs. Swift, 48 Me. 368; Colby vs. Cressy, 5 N. H. 237; Geddes vs. Bennett. 6 An. 316.

The case of Reeves vs. Capper, 5 Bing. N. C. 136, and referred to in Casey vs. Cavaroc, 96 U. S. 467, was where the master of a ship having pledged his chronometer to the owners, they permitted him to keep it on board their ship and use it for the purpose of nayigat-ing the ship for a limited time without losing their lien. If there was any possession of the chronometer in the pledgor, it was for the benefit of the pledgee, or it was a co-operative possession by which the pledgee never dispossessed himself of the chronometer. And in the ease of Jacquet vs. Creditors, 38 An. 863, the question at issue was one of possession of the thing pledged. There was no issue raised as to the sale of the thing pledged by the pledgors, who had temporary use of the pledged property. The possession of the property under such circumstances by the pledgee is prinla facie evidence that the debt has been paid and that he is in full ownership of the property. But even if the temporary possession had been placed in the .pledgor by plaintiffs a bona fide purchaser would be protected.

Thus the fact that the pledgor of a horse obtained possession for a special purpose, such as to drive for a few miles to visit a relative upon the promise to return it in a day or two, and while upon the visit traded this horse for another, does not enable the pledgee to recover the horse from the purchaser.” Jones on Pledges, Sec. 47.

There was manifestly no felonious possession of the pledge by Geo. C. Harvey when he sold the mules. His possession was lawful, as he had obtained the same with the consent of the agent of' the plaintiff. He held the legal title to the property and was in lawful possession of the same, and was vested with all the evidences of entire ownership. The bona fide purchasers of the property must be ■jprotected.

Judgment affirmed.

Rehearing refused.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    No. 11,679.
    Douglas Blackwell et al. vs. The St. Louis, Iron Mountain & Southern Railroad Company.
    Passengers approaching the railroad track they propose to cross must exercise reasonable care to avoid accidents, and when it appears that if there had been such precaution the near approach of the train would have been ascertained, the traveler can not recover damages if, on attempting to cross, he is struck by the locomotive, Beach on Contributory Negligence, Secs. 181,184.
    The mere omission oí train signals will not subject the railroad company to damages if the traveler scruck by the locomptive attempts to cross the track without observing usual precautions to avoid such accidents.
    .Least of all will the company be held for damages caused by the locomotive strik-ingthe traveler crossingthe tracks if the evidence shows the usual signals of the approaching train were given, and which should have been heard and heeded.
    APPEAL from the Fifth District Court, Parish of Ouachita. Vaughan, J. ad hoc.

      Newton & Madison and Garrett & Munholland for Plaintiffs and Appellees.

      Fred. G. Hudson for Defendant, Appellant.
   The opinion of the court was delivered by

Miller, J.

Plaintiffs in these consolidated cases sue for damages alleged to have been caused by the fault of those in charge of defendant’s trains of cars striking the wagon of plaintiffs, at the time crossing the tracks of defendant’s railroad. The result of the accident was the bodily injuries of plaintiffs and the damage to the wagon and horse. Prom judgments based on verdicts of the jury against defendant, this appeal is prosecuted.

The freight train was proceeding north from Monroe, and plaintiffs in the wagon were knocked off the track at Sicard Crossing. Almost parallel with the track is the road from Monroe, and along this road the wagon was on its way, intending "to cross the tracks at Sicard. On the west side of the track, from which side plaintiffs attempted to cross, there is a seed house about one hundred and forty feet in length, placed there by defendant; south of the crossing, and between the crossing and the house, there was, when the accident occurred, two box cars on a siding. It is charged in the petition, the house and box cars obstructed the view of the train coming from the south, and made it impossible, until on the main track, for any one to see a train approaching in that direction. It is alleged that when the plaintiffs in the wagon reached the crossing, with no view to the south, owing to the obstructions of the house and box cars, and not warned by any whistle of the approaching train, nor able to hear any train or noise, they started to cross, but before clearing the track the wagon was struck by the engine, the plaintiffs thrown to the ground with great violence, causing serious internal injuries to plaintiffs, besides the damage to the wagon and the crippling of the horses. The negligence attributed to defendant is, that the train was running at an unusual rate of speed, passing the station at-an unexpected time not scheduled; that the engineer failed to ring the bell or sound the whistle at the whistling board, about 1000 feet from the crossing, and the obstacles placed by the defendant, preventing any one from seeiDg the train.

"We have given all due attention to plaintiffs’ argument inferring the negligence of defendant from the fact that the seed house prevented the sight of the track south. It must necessarily happen from the accumulation of freight, or other causes, that such obstructions from side-tracking of cars will occasionally exist. While such obstructions should prompt a greater degree of vigilance on the part of railroad companies to guard against accidents, the very fact of such obstructions calls for carefulness from travelers proposing crossing the tracks. See Beach on Contributory Negligence, Sec. 196, p. 254. In proportion as the danger is increased must the vigilance of the traveler who approaches the crossing be increased,” is the text of the author. In our view the imprudence of the plaintiffs, exhibited by the record, overshadows the alleged negligence of the company, in respect to the side-tracking of the cars. See also 1 Thompson on Negligence, 422, Sec. 7. "

The train leaving Monroe going north stops at Parker’s Crossing. Next is Sicard, about a mile distant. The train on the track is easily perceived from the road approaching -che track, and almost parallel to it in some places. Along this road the plaintiffs in the wagon were riding on the evening of the accident, and another wagon was a short distance behind. We do not affirm it to be the duty of a traveler to look behind, but it can not fail to impress the mind that a freight train of eleven cars moving along this railroad near by, making the usual noise and nearing the point the wagon was to ■cross, should have attracted no attention from the plaintiffs in the wagon. Any one approaching the track he is to cross is usually prompted to use both sight and hearing. Those in the rear wagon both saw and heard the train and hallooed, as they express it, to plaintiffs. Plaintiffs heard neither voice or train. When plaintiffs reached the crossing the train was very close at hand, striking the wagon before it cleared the track. Sicard is a flag station where the train does not stop, unless flagged. It is such a point freight trains may be expected to pass, if not at all times, as one of the witnesses expressed it, at least not with the regularity of passenger trains. True, the sight south was interfered with by the side cars and the seed house. These obstructions, while they are not to be lost sight of in considering the question of responsibility, certainly should have suggested caution to travelers about crossing the tracks. It seems to us that caution could not have been observed by the plaintiffs. If, -when this wagon reached the crossing, there had been a pause and the listening which ordinary prudence and the law exacts, how is it possible the plaintiffs could fail to hear the noise of this long train then within the short distance demonstrated by the collision before the wagon reached the other side. The suggestiveness of negligence on plaintiffs’ part is not lessened on examining the testimony as to plaintiffs’ course on reaching the crossing. One of the plaintiffs, he says, checked up and took time to go across; the statement of the other is he checked up, halted a little; another witness, in the wagon behind, who, admitting he was trying to beat the train, was close behind plaintiffs, and barely escaped their, fate by turning his horse away from the crossing just in time to escape being struck on the track, asked what plaintiffs did on reaching the crossing, answers, they did as one does coming to a bridge, or something of that kind, don’t come to a full stop, but check up. We think this testimony indicates that there was no full pause and attentive ear given by plaintiffs or they would have heard the train so near to the crossing and refrained from attempting to pass the track in front of the advancing train. Aside from the inferences naturally suggested by the testimony produced by plaintiffs we have in the record the testimony of the conductor, brakemen, firemen and others, that the usual signals by whistles were given, and besides the fireman testifies he rung his bell for half a mile before the crossing was reached. The whistling board is one thousand four hundred feet from Sicard. It may well be that the whistles were not sounded at that precise point. If only that whistle had been given at that short distance it would not have been as efficient a warning as whistles from one-quarter, one-half and a mile, the distances given by the witnesses. There is negative testimony that none were given. The affirmative testimony outweighs that of the witnesses, who it may well be said did not hear. We think on this branch, as on the whole case, there is no basis for the judgment against the company.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided, annulled and reversed at plaintiffs’ cosls.

Rehearing refused.


text:
    No. 11,613.
    George Font et als. vs. Gulf State Land and Improvement Company.
    The application to remove a cause irom the State to the Circuit Court oí the United States is too late if died after the delay given defendant to except or answer. Act of Congress 13th August, 1888; 25 Statutes at Large, 425, Sec. 3; 138 U. S. 298.
    The delay for filing the exception or answer of the defendant is at an end ten days after citation, not counting the day on which citation is served. C. P., Arts. 180, 310; 25 An. 136.
    A sale by authentic act has full effect between the parties unless a counter letter is reserved and is conclusive on all except forced heirs and creditors. C. C. Art. 1993; 11 La. 424; 9 Rob. 28; 2 H. D. 1034, No. 1, et seq.

    Hence a purchaser at a tax sale under'an assessment against one having no title can not, when sued by the owner, dispute his title on the ground it is simulated;, whether simulated or not, it binds all except heirs or creditors of the vendor. Ibid.

    An assessment against the owner and notice to him is requisite to pass title by a tax sale made under the revenue act No. 85 of 1888. Constitution, Art. 210; 33 An. 1162; 43 An. 426; 44 An. 912; 45 An. 1109; 46 An. 403.
    APPEAL from the Civil District Court for the Parish of Orleans. King, J.

      Thomas H. Thorpe and Gus A. Breaux for Plaintiffs, Appellees.

      W. S. Benedict, Percy B. Benedict and Robert G. Dugué for Defendant, Appellant.
   The opinion of the court was delivered by

Miller, J.

The plaintiffs, heirs of Louis P. Bundy, bring the petitory action for land acquired by him in 1837. The defendant, a Mississippi corporation, claimed the removal of the suit to the United States Circuit Court, which application being denied by the lower court, the defendant, under reservation of his asserted right to remove, filed an answer. There was judgment of the lower court in plaintiffs’ favor and defendant appeals.

It is urged the lower court erred in refusing the removal. The act of Congress on this subject requires that the defendant entitled to such removal must make the application at or before the time the plea or answer is due. The Supreme Court of the United States has held that compliance with this act by the defendant as to the time of the application is necessary to give jurisdiction to the Circuit Court, so that neither consent, the extension of time, nor failure of plaintiff to take a default, will serve as the equivalent of the requirement of the act. If not made at or before the plea or answer is due, the application comes too late. The defendant under our Oode of Practice has ten days after service of petition to except or answer. In computing the delay, neither the day of the service of citation nor that on which the delay expires is counted. In this case the citation was served on the 9th April, the ten days expired on the 19th and the default was taken on the 20th. The application to remove was made on the 23d. We note the contention that the 20th is not to be counted, because it is claimed the delay expired on that day. If it did, it would not avail defendant, not making the application till the 23d, The day the delay expired, in our view, was the 19th; the 20th was no portion of the delay. The lower court, we think, ruled correctly in refusing the removal. Act of Congress 13th August, 1888, Sec. 3; 25 Statutes at Large, p. 434; Kansas R. R. vs. Daughtry, 138 U. S. 298; Code of Practice, Arts. 180, 310; Hart vs. Nixon, 25 An. 136.

The defendant’s answer is a denial of plaintiffs’ claim of ownership, coupled with the averment that the title from Green to Louis F. Bundy, the basis of plaintiffs’ suit, was simulated, and had been so decreed in a suit between plaintiffs or their ancestor Bundy and his vendor Green and George H. Brown. It is further averred that Green, his widow and Brown have always been in possession of the property, andnone ever was taken by Bundy or his heirs, i The answer then sets up a tax title, under an assessment against Brown, avers payment of taxes, and in the event of eviction prays reimbursement of the price paid at the tax sale and taxes.

The plaintiffs exhibit in support of their claim a title from John Green to Louis F. Bundy, of date 16th of December, 1837, of the ten lots on State street in controversy. The defendant, purchasing at a tax sale of the property made in 1892 under the assessment in the name of George W. Brown, claims to be entitled, in order to maintain its title, to show that the conveyance to Bundy was a simulation. This contention that the holder of a tax title, not a creditor or heir of John Green, can attack his conveyance to Bundy, made over half a century since, is that on which defendant mainly relies.

The lower court excluded, on the objection of plaintiffs, certain acts of sale and the judicial record of the suit of the heirs of Bundy against John Green, including his answer to interrogatories on facts-- and articles. This documentary evidence comes up with the bill. We are not informed by the offer or by the argument of the connection with this case of this documentary evidence. The acts and the suit have no pertinence to the issue here, but refer to property other than that involved in this suit. We think the evidence was-properly excluded. The defendant also offered testimony to show that Bundy or his heirs never had possession, but that possession at-all times was in Green and his heirs. As this court had already decided that Green could not attack his title by authentic act to-' Bundy, the lower court excluded the testimony to attack Bundy’s title offered by the defendant, a purchaser at a tax sale, made under-an assessment against Brown. In any aspect of the question, the-testimony was properly excluded. The property stood on the public-records as that of Louis P. Bundy, under a conveyance from Green dating back to 1837. On what principle is the defendant, not a creditor or heir of Green, to attack a sale made by Green to Bundy.. That conveyance bound Green and his heirs, as this court had already-decided. After that decision, the defendant chose to buy the prop - erty at a tax sale under an assessment against Brown, who never had any ownership. And now the defendant, to maintain his tax title, proposes to show the simulation of the Bundy title, and, if. shown, it would not be an assessment against Brown. But the defendant is in no position to show the alleged simulation. Unless a-counter letter is reserved, the vendor and his heirs are not permitted to dispute the authentic act. Civil Code, Arts. 2236, 2239. The-verity of the act is also conclusive as to all except creditors and forced heirs of the vendor. It is elementary that one not a creditor of the vendor can not assail his conveyance of property. Civil Code, Art. 1993; Fennessy vs. Gonsoulin, 11 La. 424; Labauve vs. Boudreau, 9 Rob. 28; 2 Hennen’s Digest, 1034, No. 1, et seq. Again, one who puts his property in the name of another whose title is recorded is bound by the recorded title. Assessments are directed to be made against the recorded owner. 'Instead of assessing the property here in the name of Bundy or his heirs, it was assessed in the name of one who bore no relation to the property. In view of the principle of law that holds the title by authentic act conclusive as to parties and as to all except forced heirs and creditors, we can not recognize the right of the defendant, neither a creditor nor heir of Green, to originate a litigation as to the reality of Bundy’s title. As to the defendant, Bundy must be deemed to be the owner, because the law gives that effect to the authentic act. This leads to the conclusion that the evidence to show the-simulation or the alleged simulation of the Bundy title was properly excluded. The excluded testimony had no tendency to sustain a tax sale on an assessment against Brown, under which assessment defendant bought. The theory that the tax sale purchaser can defeat-the right of the recorded owner by attacking his title as simulated is, in our view, utterly inadmissible. That title, spread by authentic acts in the public records, has full effect as to all, whether simulated or not, except with reference to creditors and heirs of the vendor.. The holder of the tax title is not within the exception.

The tax sale to this defendant was under the revenue act No. 85 of 1888. Under that statute and the Constitution an assessment and notice to.the owner was indispensable to vest title in the purchaser at the tax sale. The prima facie effect of a tax title opposed by defendant yields to the proof of plaintiffs’ ownership at the time when, it was attempted to sell their property to defendant under an assessment against Brown. Constitution, Art. 210; Hayes vs. Viator, 33 An. 1162; Breaux vs. Negrotto, Jr., 43 An. 426; Norres vs. Hays, 44 An. 912; Montgomery vs. Land and Lumber Company, 46 An. 403.

Tax titles carry the prima facie weight attached to them by the Constitution. We are not disposed to attribute bad faith to a purchaser at a tax sale unless a very clear basis exists. We do not think defendant should pay revenues prior to judicial demand; nor do we think the ease is one for damages from a frivolous appeal.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed so far as it condemns defendant to pay rent from 1st January, 1893, and it is now ordered, adjudged and decreed that except in that respect the judgment of the lower court be affirmed, with the modification that defendant pay rent from judicial demand and that the plaintiff pay costs.


text:
    No. 11,582.
    Patterson & Ray vs. The City of New Orleans.
    One who prints bill heads, orders and other forms for commercial purposes on paper bought by him, and who cuts and folds the paper into shapes for such purposes, as well as to serve for ledgers and commercial books, is not a manufacturer of stationery, entitled to exemption from taxation. Constitution, Art. 207.
    PPEAL from the Fourth City Court of New Orleans. Labatt, J.

      Gurley & Mellen for Plaintiffs, Appellees.

      E. A. O’Sullivan, Oity Attorney, George W. Elynn and Thomas B. Bozier, Assistant City Attorneys, for Defendant, Appellant.
   The opinion of the court was delivered by

Miller, J.

The plaintiff enjoined the collection of taxes assessed against them on merchandise and machinery, claiming the property was employed in the manufacture of stationery, and exempt from taxation. From the judgment of the lower court, sustaining the exemption claimed, the city prosecutes this appeal.

The Constitution declares that property engaged in the manufac-tories of certain classes shall not be taxed. Among these classes is embraced manufactories of stationery. Constitution, Art. 207. Plaintiff's claim to be within this exemption, i. e., that their property is employed in the manufacture of stationery.

The proof shows that the plaintiffs keep a printing establishment. They buy paper, and they print on the paper bill heads, blank books, order blanks and other forms used in commercial business, and the plaintiffs cut the paper into the length and width required for such purposes. The Constitution uses the word manufacture in its ordinary sense. Its natural import is to produce an article, and in its common application refers to changing the raw material into some new and useful form. The Constitution itself is illustrative of the significance of the word intended by the exemption. The exemptions extend to cotton mills, manufactories of textile fabrics, leather, furniture, agricultural implements and others. Some of these manufactories deal with the article already changed from the raw material, others deal with the raw material, but in all these exemptions the Constitution contemplates manufac-tories that produce an article, not a mere addition or mode of use of an article already manufactured. The paper on which the plaintiffs print bill heads is manufactured to serve the purposes denoted by the printed headings the plaintiffs supply with their printing press. All recognize that the mill that brings the paper into existence by applying machinery to the proper material is a manufacturer. None desiring to use language in its usual acceptation would apply the word to one who simply prints on the paper the forms expressive of the uses to be made of the paper. To sustain the asserted exemption would be to make it depend not on the manufacture, but on the use made of the article after it is manufactured. Stationery embraces ink, pens, writing paper, envelopes and similar articles used in an office. Those who produce these articles are manufacturers embraced in the constitutional exemptions. But we can not extend that exemption to those who merely print on the paper bill headings or similar forms that otherwise would be written by the pen. Nor do we think the mere folding or cutting the paper in the shapes required for letter or bill heads or commercial books constitutes the manufacture of any thing.

We have no function to revise questions of assessments unless the legality or constitutionality of the tax is involved, or the amount gives jurisdiction to this court. The assessment on plaintiffs’ stock in trade presents no question for revision here. Constitution, Art. 81; The First Municipality vs. Pease, 2 An. 538; Penn vs. The First Municipality, 4 An. 13. Our decision will only reverse that of the lower court in respect to the assessment of machinery.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided, annulled and reversed in so far as it enjoins the sale of the machinery; in other respects it be affirmed; and that plaintiffs pay costs.

Rehearing refused.


text:
    No. 11,581.
    Samuel S. Earle vs. The City of New Orleans et als.
    For the reasons given in Patterson & Ray vs. New Orleans, ante, p. 275, the decision of the lower court is reversed and annulled, at plaintiff’s costs.
    PPEAL from the Fourth City Court of New Orleans. Labatt, J.

      Gurley & Mellen for Plaintiff and Appellee.

      George W. Flynn and Thomas B. Bozier, Assistant City Attorneys, . and E. A. O’Sullivan, City Attorney, for Defendants and Appellants.
   The opinion of the court was delivered by

Miller, J.

Plaintiff enjoined the collection of taxes assessed on machinery, claiming exemption on the same grounds as presented in the case of Patterson & Ray vs. New Orleans, just decided, ante, p. 275. The assessment in this case is on machinery only.

Rehearing refused.


author: Miller, J. Watkins, J.

text:
    No. 11,495.
    State ex rel. Phanor Breazeale, District Attorney, vs. Clifton Cannon, Sheriff and Ex Officio Tax Collector, Parish of Avoyelles.
    •'Sheriffs are required to enter¡¡on the book provided for the purpose, all taxes and licenses with the interest thereon collected; the entries of the payment of the taxes and interest are to be contemporaneous with the dates of collection; from this book the Parish Treasurer is to transcribe in his book the taxes collected; the book is to be open at all times to public inspection, and the sheriff is also required to pay over to the Parish Treasurer in the first week of each month all collection o£ taxes and licenses; these provisions, designed to guard the public funds from loss by accident or defalcation, define functions of the highest importance to the public, and serious violation of such duties by the sheriff furnish the basis to remove him from office. Act No. 85 of 1888, Secs. 76 and 86; Act No. 84 of 1892; Constitution, Arts. 196, 201.
    * That the sheriff finally pays over the taxes and licenses collected byjhim will not excuse the breaches of official duty, in not keeping his books as prescribed by law, in respect to his receipt of public funds, and in not making settlement at the periods designated by the statute; to hold that settlement at last is to be accepted as the equivalent of such public duties not performed, would be to make public funds dependent for tlieir safety on the ability of the sheriff to settle finally, and would displace the statutory requirements of faithful accounts and prompt settlement, which, if observed, would effectually protect the public interests.
    APPEAL from the Tenth District Court, Parish of Avoyelles. Coco, J.

      Phanor Breazeale, District Attorney, for Plaintiff and Appellant; .Fenner, Henderson & Fenner of Counsel.

      Thomas Overton, Joffrion & Joffrion and Clegg & Thorpe for Defend - -ant, Appellee.
   The judgment of the District Court which was in favor of the defendant, was on first hearing in this court affirmed. A rehearing was applied for and granted. On the final hearing the opinion of the ■court was delivered by

Miller, J.

This case has been elaborately argued on the rehearing; is one of public interest as well as of great importance to the -defendant. The opinion of this court has been reviewed with an earnest desire to reach a conclusion authorized by the testimony and ■consistent with the law and the articles of the Constitution bearing ■on the subject.

The proceeding is by the District Attorney of the parish of Avoyelles to remove the sheriff from office on grounds of malfeasance, non-feasance and misconduct in office. Constitution, Arts. 196, 201. The defendant interposed exceptions to the frame of the petition, based also on the alleged absence of the requisites prescribed by the Constitution for maintaining the proceeding, and ■challenging the jurisdiction of this court to pronounce on the appeal -the judgment of removal. All these objections have received due consideration and are fully discussed in the original opinion. We thought the petition made a ease for submission to the jury, and that the appeal called for the decision of this court on the charges. We adhere to this view. Constitution, Arts. 196, 201.

The charges in part relate to the official books of defendant and import his failure to enter the taxes collected by him in the mode prescribed by law. The sheriffs of the country parishes are ex officio the tax collectors of the State as well as of the parishes. Constitution, Art. 118. It is of paramount importance that these taxes shall be promptly collected and faithfully paid over at stated periods. To effect this our legislation provides that books exhibiting the appropriate columns for entering State and parish taxes and licenses shall be kept by the sheriffs, in which they shall enter at the dates of the collections all taxes received. The Auditor of the State is to be furnished with a sworn statement of this book, to be compared with the accounts rendered of the tax collector. The Parish Treasurer is directed to transcribe into his duplicate book the entries in the sheriff’s cash book, and to compare these entries with the sheriff’s receipt book. The law further provides that this sheriff’s cash book, with its entries contemporaneous with the payments of the taxes, is to be open at all times to the public inspection, so that all may see the daily tax collections, and so that any omission of collections may be detected. See Act No. 85 of 1888, Sec. 86, amended by Act No. 84 of 1892. With respect to licenses the law directs that a register shall be kept of those to whom the licenses issue and the dates of payment. Act. 150 of 1890, Sec. 22. The Auditor, required to furnish the cash book to the sheriffs, includes in the columns of the book one for the entry of licenses and interest paid. It is manifest that the failure of a sheriff to observe the directions of this legislation renders nugatory the checks and guarantees intended to secure the faithful collection and accounting for the taxes. The supervision of the Auditor to be provided with the sworn statement from the cash book, showing the entries of payments made at the dates when received, would be defeated if no such book is kept, or if the entries are not made or made irregularly. The check of transcribing the entries from the sheriff’s book to that of the Parish Treasurer all entries of tax collections, is impaired or made utterly ineffective, if the sheriff does not enter the taxes on his book. The public inspection of the daily entries of the taxes paid to the sheriff is of no avail if the book does not make the exhibit required by law of the daily receipts of the taxes. Above all, this cash book to be kept by the sheriff is designed to secure accounting of the public funds in his hands. The improper retention or loss, as well as the opportunity for appropriating the public funds, are all intended to be guarded against by the explicit provisions of the statute, that every dollar of taxes that comes into the sheriff’s hands shall with the interest be entered when received in the sheriff’s cash book; transferred thence to the Parish Treasurer’s book, andthatthisbookof the Sheriff, the primary and contemporaneous record of all his collections, shall be at all times exposed to the public view. Thus the system of accounting for all the public funds of the State and parishes, except Orleans, is based on the sheriff’s record of the payments to him. If that record is not kept, the chief safeguard to ensure fidelity and punctuality in paying over the public funds is displaced. The appreciation of the necessity for the legislation under discussion is evidenced by the fact that provisions analagous to those under consideration occur in all our revenue statutes, and to make more stringent the requirement in this respect the act of 1888 was superseded by the more recent statute, which with great particularity imposes on the sheriffs this duty of making a daily record of their tax collections. Act No. 85 of 1888, Sec. 86; Act No. 84 of 1892. The plaintiff’s petition imputes to the defendant the violation of this act of 1892. The penalty provided by that act is dismissal from office. The control of this court is not derived from the legislative act or the penalty the act provides. The legislative understanding of the gravity of the breach of official duty is denoted by the deprivation of office the act directs. But without such penalty provided by the law, it is the function of this court by the terms of the Constitution to remove from office sheriffs and others for official misconduct. That function we are called on in this case to exert. Constitution, Arts. 196, 201.

The relators have brought before us the sheriff’s books purporting to show the tax and license collections. Our attention has been directed to the entry of the collection in October, November and December, 1892, of the taxes of 1891. The proper place for these entries was in the collection book of the taxes of 1891. Instead, the entries out of their natural order are found in the book of collections of the subsequent year, and in the back part of that book where no one would look for such entries. The law contemplates a continuous day to day record of the collections, not entries to one period in the cash book and then carried to another book to which reference is made and no attention would be directed. The irregularity of these entries is best illustrated by the consequence. In the unusual place near the end of a book, detached from the entries of the collections of the previous months of the year, these fall collections eluded observation. The Parish Treasurer charged with the scrutiny of the sheriff’s cash book, and with transcribing the entries in it, naturally ■confining his attention to the appropriate place where such entries should appear along with and following the other collections of the taxes of 1891, had no knoweledge of these fall collections until ■brought to his notice by the District Attorney, and were ascertained by him in the researches that led to the institution of this suit. It is plain that these entries are in striking contrast with that daily •and continuous contemporaneous record of the collection the law exacts. Eor the purposes of inspection the law proposes, it is well nigh the same as if there were no entries. We should hardly feel authorized to remove a public officer on the mere ground of failure to make particular entries, or even because they do not appear in their proper place. But the facts in connection with these entries are to be taken with the other evidence, and they all tend to the ■conclusion of the lax administration of the defendant’s office. We have given attention to this explanation that these fall collections were not inserted in the book of 1891 taxes, in order to make room in that .book for the entry of the taxes of 1892, which he designates current taxes. We are not impressed with the adequacy of the explanation, especially in view of the fact that the mode of entering the collections was followed by the delay of months in paying over the collections.

It is in proof that in December, 1892, the defendant collected from two railroad companies about one thousand nine hundred dollars of State and parish taxes of 1892. These collections were not entered except by an interlineation made in March, 1893. This large collection, like the taxes of 1891, escaped attention, with the attendant result of a deferred accounting, to be noted when we come to consider the method of settlement adopted by the defendant. We have considered in this connection the explanation in effect that these collections were overlooked in copying from the stub book into the cash book; that, discovered by defendant in checking off with the Parish Treasurer, they were then entered in the cash book and the amounts paid over with interest, and the further explanation is that defendant was then worried in mind by the trouble of his brother, and hence unfitted for attention to business. The testimony as to the discovery of the omissions shows some conflict; that offered by relator tends to show the omission was' discovered by others not defendant and was then paid over, and in relator’s brief is the suggestion, when would the omission have been corrected if not discovered by others. The proof is that after the payment of these railroad taxes the defendant made three settlements with the Parish Treasurer. It emphasizes the lack of system in keeping his accounts that in none of these settlements of December 31, January 6,10 and 16 was there any accounting for these railroad taxes, and the settlement of December 31 was the day after these large collections and the other settlements a few days later. With all the benefit defendant can derive from his explanation, at least, it remains that if he had observed the law the primary entry of these collections would have been made promptly; not in his stub book, but in the cash book; the omission would not have occurred, nor would its discovery have depended on the examination two months after, whether by the officers of the jury or by the defendant, and least of all, would the paying over of taxes collected in December, 1892, have been delayed to the discovery at the later period.

'On this same branch of the case, che failure to keep the books required by law, our attention is drawn to two payments of licenses claimed never to have- been entered, one of two hundred and forty dollars and another of one hundred dollars, both for 1892. The party who paid the two hundred and forty dollars for the license of 1892 is credited with a payment in May, 1893, with two hundred- and twenty dollars and two dollars and twenty cents interest. It is to be presumed the payment in 1893 was for the license of that year. There is no entry of the amount paid in 1892, either of the two hundred and forty dollars nor of the one hundred dollars. Another payment proved to have been made defendant is one hundred dollars on account of a license. This is conceded by defendant’s explanation not to have been entered. That explanation is payment being on account, defendant treats the amount as a deposit by the party. The answer of defendant as to the non-entry of the two amounts, two hundred and forty dollars and one hundred dollars, first discussed, is they were included in his settlements. With the explanation, still there is incontestibly collections of public funds without entries added to the other testimony of defendant’s disregard of duty.

There is still further proof of the defendant’s neglect to keep his books in the mode directed by the very explicit and peremptory terms of the statute. The attention of the police jury seems to have been directed to defendant’s accounts in 1892. Then commenced the examination of his books and calls for settlements which led to the institution of this suit. In these examinations not only were disclosed the omissions already discussed, but others of a serious character. Taxes and licenses bear interest, respectively, from 31st December and 1st March of the year they become due. This interest on the taxes is required by the statutes to be entered in the sheriff’s books along with the principal. See Act No. 85 of 1888, See. 3139; Act No. 84 of 1892; Act No. 150 of 1890, Secs. 22 and 23. One fact brought to the attention of the jury in their investigations and distinctly proved is that an examination in March, 1893, showed that the large collections of taxes in the preceding month had not at that date been entered in the book. The fact itself evinces that instead of full and accurate entries of collections contemporaneous with payments, the entries were made after, with all the hazards of forgetfulness, mistake and other causes of omission intended to be guarded against by the statutory requirement of contemporaneous registry. The absence of system and failure to observe plain legal exactions receives further illustration. There is submitted to us the registry of licenses collected by defendant in 1893. These license collections begin in the early part of the year. In this registry we find that while interest is charged on some licenses, in other and numerous instances no interest whatever is charged. This feature is made more significant from the fact that on the collections in the later months of the year 1893, on which. interest was due since the first March, there are no entries for interest, while some of the earlier < collections bear interest. It is thus made conclusive to us that in this important particular, not only were there no contemporaneous charges of interest, but none whatever. The same conclusion is forced on us with respect to the interest on the taxes collected from April to October, 1892. These collections cover a large space in defendant’s book, and with no entry of interest running on all these taxes from 31st December, 1891. .

There is yet another fact brought to our notice in connection with defendant’s books. There is an entryunder dateof April, 1893, of the State and levee taxes of 1891 of the estate of Prith, one hundred and eighty-two dolllars principal and forty-six dollars of interest. No such payment was made of that date and no interest was ever paid over to the State Treasurer. The explanation from defendant of this is that he paid the taxes to the State before any interest became due with the understanding the tax-payer should refund the amount with interest at two per cent, per month required by law on delinquent taxes. The State never received this inte'rest. With the full benefit of the explanation it remains that the books intended to be a faithful record of all receipts of public money show a charge for interest never paid to the State because the defendant claims that, though figuring on his books as received, it was not due to the State. The transaction with all the other evidence in our opinion demonstrates the marked breach of official duty we have to deal with.

The explicit and peremptory direction of the law in respect to the books of his office, the defendant has treated as if the mandate was not on the statute book. We have the proof of large collections without any entries at the time; of entries not appearing in the proper place; of taxes and licenses collected with no interest whatever charged, and as the sequence of all this, there is the incomesti-ble evidence of large amounts collected and not paid over until the omissions are discovered, although the defendant claims he perceived the omissions, and although it is in proof that he then paid over the amounts. In all aspects on this branch of the case the wisdom of the legislation requiring books to be kept by those who collect the public revenues, and that the books shall be an accurate record of all collections by entries contemporaneous with the collections, is forcibly illustrated by the utter disregard of his duty in this respect fixed on defendant by the proof in the record. Under the constitutional provisions which gave to the citizens the right to demand the removal of public officers for malfeasance and non-feasance ifi office, and which impose on the judiciary the duty enforcing that demand when made in the form prescribed by the constitution, this court has now to determine whether serious violations of official duty incontestibly established are to be deemed trivial and afford no basis for the remedy provided by the organic law for the protection of the State, the parishes and the citizens against abuses in office.

On the other branch of this case, the failure of defendant to make settlements of his collections of taxes and licenses, the proof shows defaults of the defendant more serious than those already discussed, if comparisons are to be admitted.

Obvious public policy forbids the retention of public funds by the officials charged with the collections beyond a reasonable time requisite to adjust the accounts and pay oyer the amounts. If such funds are permitted to be retained beyond such reasonable time, surely no public advantage can result, and the pecuniary benefit- of the official in whose hands are accumulated the funds of the State and parish, it will not be claimed is within the contemplation of the law. The loss of public revenues in the past, whether by accident or by defalcation, have arisen mainly from laxity in accounting by public officials. The holding on to public money indefinitely, instead of promptly paying it over, besides exposing the public funds to loss from accident, supplies the opportunity for the improper use of the funds, apt to result in their appropriation by the official, tempted to-use funds in his hands not his own. The spirit of our legislation from an early period is altogether opposed to any withholding of public-money by public officials for any period more than required to pre- ' pare the account and make payment to the treasury. Hence, the very explicit legislation that all tax collectors shall settle and pay over to the parish treasurer, in the first week of each month, all parish-taxes and licenses collected and a final settlement shall be made in the month of July of every year. .Act No. 85 of 1888, Sec. 76. The proof on- this branch of thb case brings to our notice that when the police jury were inducted, whose action led to these proceedings, the defendant had not conformed to the required settlement. From April to September, 1892, he made no settlements. The jury turned their attention to the subject and in September, 1892, the defendant paid nearly eight thousand dollars of the taxes of 1891. These taxes became exigible on the 31st December, 1891. It is quite manifest this large September payment embraced the accumulated collections of months previous. There are no settlements in May or June, or July or August or in the first week in September and July, fixed for final settlement, but passed away with no compliance. These taxes-of 1891 are those in part entered without the charges for interest exacted by law, required to be collected and entered when collected. There is to be added to this the delayed payment of other taxes of 1891 entered in the back part of the tax collection book, beginning with taxes collected in 1893. These taxes, overlooked because of the unusual place where entered, received in the fall months of 1892, were not paid over till July, 1893, though tendered by defendant, as we appreciate the testimony, in March, 1893. But the tender itself makes prominent the default.

The instances of licenses collected and not paid over have been noticed in discussing the omitted entries. We gather from the record that these licenses were included in the settlement ultimately obtained by the jury. We are not at liberty to infer, however, that as to the .amount received on account of one of the licenses any payment was made. The references in the briefs on this point are not as distinct as could be wished, but we accept the testimony and statements in the briefs that the defendant discharged all liability to-State and parish. With regard to the payment on account, we understand defendant’s position to be he refused to receive it as part payment, the law prohibiting partial payments of licenses, but that he holds it as a deposit. The explanation virtually concedes that the party did business without a license, and the State or parish is not to be benefited by a part payment, which, though prohibited,, defendant receives. These license collections, at least, concur in illustrating the failure of appreciation of the defendant of prompt settlements.

The retention of the railroad taxes by defendant, received and not entered in December, 1892, and not paid over till March, 1893, when the omission was fortunately discovered, has been discussed. With the explanation on this point already considered, there is the incon-testible fact of the failure to account for a large amount of public funds at the period when payment should have been made, and the explanation itself points to the cause of defendant’s remissness in his utter failure to observe the plain requirements of the law for the guidance of officials charged with collecting the public revenues.

We do not care to pursue further the examination of the charges-against the defendant. The views presented are sufficient to dispose of the case. There is disclosed departures from official duty of the greatest character. It is due to the defendant to state that his accounts with the State were adjusted; no complaint comes from the State. So his accounts with the parish were finally closed, and we accept the testimony that he has fully settled with the parish. This excludes the imputation that would otherwise rest on him, but there remains the violations we have discussed of statutory provisions couched in the plainest language, demanded by the public interest, and these departures from official duty, in the performance of the judicial functions, can not be overlooked, least of all sanctioned. It would be more congenial to our feelings if we could view defendant’s ultimate settlement as an extinguishment of the causes of complaint urged here. Were we to yield to our inclination, and so hold, it would be to proclaim that rigid legal requirements of public officials are not binding, if fortunately the public interest, in the end happen to escape injury.

We have given all the attention it deserves to the fact urged in defence of the sheriff, that quarterly settlements had been the rule under a resolution of 1884 of the police jury. The legislative act of 1888 was the guide for the sheriff. That statute discarded the idea that the public taxes should remain in the sheriff’s hands in aid of no public purpose, and against all considerations of public policy, for ninety days after the collections. The statute confronted him with its plain exaction of monthly settlements, and in the first week of the month. Nor can we appreciate that an official can invoke the ordinance, since nine months, in the case of his large payment in September, 1892, went by with neither monthly nor quarterly settlements.

The defendant held his office under the law and is bound by it. This court is vested with the function to enforce against public officials the requirements of the laws. The duty is unpleasant, but none the less imperative. To sustain the defences in this case would be in effect to announce that public officials may with impunity disregard their obligations, and that this court charged with the enforcement of the law may grant dispensations to such officials against the text and spirit of plain statutory enactments.

It is therefore ordered, adjudged and decreed that our former judgment be set aside, that the judgment of the lower court be avoided and annulled, and it is now adjudged and decreed that the defendant be and he is hereby removed from his office as sheriff of the parish of Avoyelles, and that defendant pay costs.

Dissentin'© Opinion.

Watkins, J.

The plaintiff prefaces his brief upon this application with this following statement, namely:

“We recognize and appreciate the conscientious labor which the court has expended in the evisceration of the true facts from the evidence presented in this complicated record.

“We should be slow .to dissent from or question the correctness of any conclusion of law or fact reached by the court after such careful and painstaking investigation.

“ In truth, we find that the court has decided all the questions of law involved in favor of relator, except those bearing upon the germinal question of defendant’s liability to removal from office.

“W.e further find that the court has substantially decided all the issues of fact presented in favor of relator, or in other words has-•held that all, or nearly all, the numerous charges of non-feasance- and malfeasance set forth in the petition are fully proved.”

I take this statement to mean that the plaintiff urges no objection-to the facts as related in the opinion.

Basing its conclusion upon the state of the whole case, our original opinion declares that—

“It will thus appear that the case of the relator is that the defendant, as sheriff and ex-oflcio tax collector, has been guilty pf a. technical disregard of the rules and regulations specified in the tax statutes with reference to the collection of taxes, and that the respondent’s failure to observe such regulations afforded opportunity for wrong-doing; not that respondent was guilty of any criminal act, or had failed ultimately to account for all the public moneys he had collected and received — for the fact is not denied that he had made all of his monthly, quarterly and even final settlements prior to the-filing of this suit.”

This proposition is not denied in plaintiff’s application, but, on the-contrary, it is affirmed to be true; and the insistence of plaintiff’s-counsel is, that for this “technical disregard of the rules and regulations specified” the defendant should be removed from office.

The argument of plaintiff’s counsel on this application, orally andi in writing, is chiefly confined to the seventeenth (17th) and nineteenth (19th) charges. . Let us see what is the statement of our .opinion with respect to them. It says:

“The seventeenth charge is as follows, viz.: It is shown that on December 26 and 80, 1892, or about said dates, (he) collected from the Texas & Pacific Railroad Company and the Southern Pacific Railroad Company some fifteen hundred dollars for State and parish-taxes; that he failed to pay to the parish treasurer the amounts so collected until abouo March 23, 1893, although he pretended to make on January 18, 1893, February 10, 1893, and March 10, 1893, true and faithful settlements of all taxes and licenses collected by him -during the respective months of December, 1892, and January and. February, 1893.” The substance of this charge is that the respondent collected the sums specified and thereafter failed and neglected to carry same into his accounts and settlements thereafter made, not that he had carried said moneyinto his settlements and accounts, and thereafter failed to pay same over to the parish treasurer. The respondent’s cash book does show that he had collected of the Texas & Pacific Railroad Company about cne thousand dollars on December 26, 1892, and the proof shows that in a settlement subsequently made this sum was not included. But the respondent affirms that when the omission was discovered, while he and the parish treasurer were engaged in checking up his stub book, it was immediately entered in the cash book at date of payment, a supplemental statement filed and the money paid over at once, with interest added, etc. 15 So. Rep. 632.

“ ‘ Nineteenth. It is shown that.he has failed absolutely to 'keep his cash book furnished to him by the State Auditor, as prescribed and required by Act No. 84 of 1892, in the manner required by law, viz.: He has failed to make therein the entries of the payment of taxes and other moneys paid him by the tax-payers at the time of such payments. That on December 26 and 80, 1892, or about that time, the T. & P. R. R. Co. and the S. P. R. R. Co. paid the amount of taxes due by each, amounting to several hundred dollars, and they were not entered in the cash book at the time.’ The sense of this charge is that the respondent has failed to keep his cash book in the manner prescribed by law, and not that he did not keep a cash book at all; in other words, that ‘he failed to make therein the entries of the payment of taxes and other moneys paid him by the tax-payers at the time of such payments,’ citing the instance of the two railroad companies. The statute relied upon by the relator requires that the auditor shall furnish the tax collector with a blank cash book, paged, ruled and divided into columns, in such form that the tax collector may enter therein the names of the persons making payments of taxes, dates of payments, amounts paid, on what account paid, etc. That law provides that ‘ the State taxes paid shall be first entered, and afterward a like entry of parish taxes shall be made.’ 15 So. Rep. 633.

“ ‘The tax collector shall make such entry or entries at the time the tax-payer makes the payment of taxes.’ The law then prescribes and defines the duties of the parish treasurer with regard to transcribing the entries of the tax collector from his duplicate cashbook, .and the kind of a certificate he shall append thereto. The final clause of the statute contains the penalty that is affixed to any violation of its provisions on the part of the tax collector, and it is in these words, viz.: In case of the failure of the tax collector to keep said book as above prescribed, he shall be, on complaint, dismissed from office, and shall be liable to fine and imprisonment, at the discretion of the court.’ Act 84 of 1892. What is the true intent and meaning of the phrase, In case of the failure of the tax collector to keep said book as above prescribed? ’ Does it not mean just what it says — ‘keep said book as above prescribed?’ That is to say, the tax collector is required to keep the cash book in the manner indicated above; that is, according to the designations of the act from 1 to 8. While it is true that the law requires the tax collector to make entries of the taxes paid at the time the tax-payer makes .the payment,’ yet it was not the intention of the Legislature to attach to any mere accidental omission of an amount of taxes paid, on the very date the payment was made, the severe penalties of the act. It could not have been the intention of the Legislature to declare that the omission to make an entry, however small, should subject the tax collector to dismissal from office, as well as to ñne and imprisonment. If such were indeed the case it would be scarcely possible for any tax collector to escape the consequences of the law.” 15 So. Rep. 633, 634.

Taking the two charges in connection, this further statement of the opinion follows, viz.:

“ But the proof is to the effect that the respondent paid in three hundred and fifteen dollars and twenty cents on March 10, 1893, and in April, 1893, tendered in full all the delinquent taxes collected from October, 1892, to April, 1893, but same were declined by the parish treasurer, pursuant to the instructions of the district attorney. But his receipt from the parish treasurer shows a full settlement made in July, 1893. It also appears that all of these collections are properly entered in the respondent’s cash book of 1893. The respondent explains that it was his custom to make entries of delinquent taxes collected in the back part of his cash book in which he kept the entries of current taxes, leaving a sufficient space between them; and that this was done in order to prevent confusion in his accounts. He explains that his stub book of receipts issued is art ample check on the entries made in the cash book, and that access to it can always be had for the purpose of the detection of errors or omissions therein.” 15 So. Rep. 635.

What are the conclusions that are to be drawn from the admissions-of plaintiff’s brief — the conclusion of the court on the whole case, and the disposition made by the opinion of the two charges that are-insisted upon in the argument on this application?

Simplified, the seventeenth charge is that the respondent made-collections of taxes from the railroad companies in the latter part of December, 1892, and failed to pay the same into the parish treasury until March, 1893, notwithstanding tax settlements were made with the parish between those dates; and the nineteenth is that he failed to make proper entries in his cash book of the aforesaid collections-“at the time of payment.”

But the facts are — as stated in the above quoted extracts from our opinion — that the amounts collected of the railroad companies were treated as delinquent taxes of 1892, and, as such, entries thereof were made in the baek portion of his cash book of 1893, according to his custom.

That these amounts not having been carried into the settlements that were intermediately made, the attention of the respondent was attracted to the omission while he and the parish treasurer were engaged in checking up (the respondent’s) stub book.”

That as soon as his attention was called to this omission, entries were made in the cash book as of dates of payment, a supplemental statement was prepared, a computation of the interest made and the principal and the interest turned over to the parish treasurer.

That subsequently the respondent tendered to the parish treasurer a full settlement of all delinquent taxes he had collected between October, 1892, and April, 1893, but the latter declined it in pursuance of the instructions of the district attorney, and in consequence of such declination the respondent failed to secure a final settlement of his accounts until July, 1893.

It is apparent that this failure to promptly pay over the amounts collected from the railroad companies was a solitary, isolated instance. That in all likelihood the failure to carry these amounts into the accounts of January and February, 1893, was occasioned by the fact that being delinquent taxes the entries of them in the back portion of the cash book were overlooked, and that on making a comparison between the stub book and cash book the oversight attracted the attention of the respondent and the parish treasurer and caused its immediate correction.

Resting our present decision upon the points indicated, can there be a doubt as to the accuracy of the statement of our opinion “ that the case of the relator is, that the defendant, as sheriff and tax collector, has been guilty of a technical disregard of the rules and regu-Jations specified in the tax statutes?” We think not.

The theory of our opinion is that the tax statutes must be examined for the purpose of ascertaining what duties are imposed upon tax collectors, and, necessarily, such statutes must be consulted for ■the purpose of ascertaining what are the corresponding penalties to 'be inflicted for the violation thereof.

But, assuming that our opinion was in this respect erroneous, and ■that we can and must go outside of the statutes to find an interpretation of the aets and conduct of the respondent, what is the result?

The acts of the respondent were not criminal in character or wrong in themselves. They do not evidence an improper use or disposition of the fund's he had collected. They do not disclose a ■customary and habitual delinquency, or default in making settlements. They do not disclose any injury to have been suffered by either the State or parish by the delay in making settlements.

His conduct does not evince a wilful disregard of the law governing the duties of tax collectors, but an accidental omission in the correct and timely performance of them. It attests a perfect willingness to make immediate correction of his errors as soon as his attention was attracted to them. It shows that he kept his cash book so as to keep delinquent taxes separated from current taxes, and if this was not the legal and proper way same should have been kept the fault was one of accident and not of intention on the part of the respondent.

Taken all in all, is there discoverable in the acts or conduct of the respondent any evidence of either misfeasance or non-feasance out-ride and independent of penalties denounced in the tax statutes?

I can discover none.

In State ex rel. Whitaker vs. Adams, 46 An. 830, we had occasion to critically and carefully examine the articles of the Constitution governing removal proceedings, and in the course of our opinion we . said:

“ What were the object and purpose of this extraordinary grant of exceptional power to the judiciary? In our opinion it was to furnish -a guard and a protection against the unjustifiable continuance in office of incompetent and unworthy officers, by giving to the people, acting directly in their own right, a special remedy to which they could themselves have free recourse, independently of the official action of others. Without this article the people would have to rely entirely for relief upon the Governor, or General Assembly, or the municipal authorities, who, no matter how great the' occasion or cause for action might be, would be free to act or not as they thought necessary.”

And that such is the object and purpose of “this extraordinary grant of exceptional power ” I now affirm; that is to say, it was intended as “ a protection against the unjustifiable continuance in office of incompetent and unworthy officers.” But this record does not disclose either the ineompeteney or unworthiness of the respondent in the sense of our opinion in that case, or of the instant case; and hence there is no cause shown for his removal.

And we understand that the plaintiff’s counsel is committed to this theory, because, in the course of their argument on this, the nineteenth charge, they state: “We do contend that if the evidence shows flagrant violations of this provision the defendant should be removed from office.” 15 So. Rep. 634.

The present opinion of the court neither purports to deal with any particular charge of the petition, nor does it proceed upon the lines of the application for rehearing.

It purports to deal, in a general way, with a variety of isolated facts, without reference to method or order, which have in my opinion as much pertinency to charges which were specifically abandoned at the argument as to those that were insisted upon in argument and decided by the court.

But aside from those details we have the following circumstances in respondent’s favor, viz.:

1. That he was twice acquitted by juries of his parish of the same issues we have before us.

2. That there was an unanimous decision of this court in his favor in May of 1894, and ever since that time the case has been pending on this application.

3. Since the case was decided, the Legislature convened and adjourned, but during its session an act was passed directing the treasurer to refund to the respondent the sum of one hundred and seventeen dollars as having been “ erroneously paid to the State in the settlement of licenses of 1892,” (Act 184 of 1894) the discussion of which is the pivotal point in the present opinion of the court.

4. That at the time the original opinion herein was rendered a like judgment was rendered in favor of the respondent in State ex rel. O. D. Billon vs. A. L. Bourgeois (ante p. 184), sheriff of the parish of St. James, and there was a like application for a rehearing made therein which has been suspended until this time, an opinion in which has this day been handed down, refusing a rehearing and maintaining him in office.

In my opinion the reasoning and conclusions of the court in that ease are conclusively in favor of respondent in this case. On the theory of our opinion in that case there is no aggravation for any of the charges against the respondent in this ease. He has not been found guilty of fraud, or wrong-doing. He has not been shown guilty of the violation of a single provision of the revenue laws, wherein his duties are enumerated and defined, and wherein specific penalties are imposed for the violation thereof, and the violation of which is made the very foundation and groundwork of all the charges against him in plaintiff’s petition.

He has been found guilty, and is to be removed from office without any precept of law — statutory or constitutional, criminal or civil, outside of the revenue law — being assigned as that in which the duties violated have been pointed out as justifying the judgment rendered against him.

For the reasons assigned in the unanimous opinion of the court in the Bourgeois ease, as well as those assigned in the original opinion in this case (see 15 So. Rep., p. 626), I still adhere to that opinion as a correct exposition of the law and the facts of this ease, and dissent from the present opinion of the court.

       Exception, to the petition was, that it did not set out in the language of the •Constitution that the suit was instituted by the District Attorney “ on the written request and information of twenty-five citizens and tax-payers.”
      It was objected to the appeal that when a cause has been tried by a jury, and the jury has given a general verdict, the lower court must give judgment pursuant to the same unless a new trial has been granted. As in this case a general verdict had been found in favor of defendant, which was virtually an acquittal, the District Court was powerless to render a judgment of conviction; that the Supreme Court could not render a judgment prohibited tothe District Court; to set aside the verdict would be to render an original judgment of conviction. Citing Thompson vs. Chapman, 7 An. 258.—Reporter.