text:
    No. 367.
    The State of Louisiana vs. John Lake et als.
    ’The issuing of a commission to an officer who is in arrears to the State, and the giving of time by the Auditor for him to make his settlement, does not operate as a discharge to the sureties on his official bond.
    •The liability of the sureties on the official bond continues for a reasonable time after the term of the officer expires, for the making of a new bond. This reasonable time is fixed in this State by law. The Constitution continues all officers in office until their successors are qualified. Under Act 58 of 1877, the Governor can not issue a commission until thirty days after a general election. Under Act 19 of 1878, the newly commissioned officer has thirty days after the receipt of his commission in which to take the oath of office and file and record his bond. The liability of the sureties then continues until thirtv days after the receipt of a new commission, or until a new bond is filed and recorded.
    • Certified statements from the books of the Auditor of I’ublic Accounts are prima facie evidence of the condition of the officer’s accounts with the Auditor’s office.
    A tax collector is properly charged with the tax rolls and licences issued to him, the whole of which he is presumed to have collected unless rebutted by legal vouchers for legal payments. 40 An. 234.
    APPEAL from the First District Court, Parish of Caddo. Taylor, J.

      John B. Land, District Attorney for Plaintiff and Appellee.
    1. The sureties on the bond of an officer can not avail themselves of laches or omissions of other officers in the performance of duties imposed by law as a ground of discharge of their own liability. The ineligibility or disqualification of their principal is no defence. State vs. Powell, 40 An., p. 237, and authorities there cited.

      2. The Auditor of Public Accounts is without power to extend the time fixed by law for the settlement of State Tax Collectors, who are defaulters at the moment they fail to make settlements at the time fixed by law. 31 An., p. 423.
    3. Whether the State can or can not attack a quietus collaterally is immaterial in a case, when judgment of non-suit is rendered against the State, because the auditor’s certified statements show that the taxes, alleged to be covered by the quietus, are still in litigation, and, consequently, non-collectible by the defendant tax collector.
    4. A tax collector who is a defaulter when commissioned by the Governor can not plead his commission as evidence that he has accounted for and paid over the State all sums of money due up to the date of issuance of said commission. Such a commission is not a “ discharge” as contemplated by Art. 171 of the Constitution of 1879; nor is it a “ quietus” or “ treasurer’s receipt” as required by Sec. 118 of the Revised Statutes of 1870 and Act No. 85 of 1888, Sec. 78. The tax collector is charged with sum total of the rolls and of the licenses, and it is for him to offset these by “ legal vouchers” for “ legal payments.” 40 An., p 237; 31 An., p. 736; 37 An., p. 718.
    5. The liability of sureties under a tax collector’s bond extends to such reasonable period beyond the term of office of the principal as would enable a successor, with due diligence, to be appointed and qualified. Mayor vs. Cromwell, 40 N. J. Law, 207; 40 An., p. 245; 8 Mass., 275.
    Art. 161 of the Constitution ordains that“ all officers shall continue to discharge the duties of their offices until their successors shall have been inducted into office;” thereby expressly extending the term of the tax collector’s office beyond the next general State election.
    Act No. 58 of the extra session of 1878, Sec. 40, forbids the Governor to issue commissions to newly elected officials in less than thirty days after a general election.
    Act No. 19 of the Acts of 1878, Sec. 1, gives to the newly commissioned official an additional delay of thirty days within which to furnish bond.
    Section 1132 of the Revised Statutes of 1870, in case the tax collector is a defaulter, allows to him ninety days after the general election within which to prove to the Governor that he is not a defaulter, or has paid the amount of his defalcation.
    6. The State’s claim is based upon and sustained by certified extracts from the books of the Auditor of Public Accounts. The sufficiency of such evidence is disputed by the defendants; but it is well settled that they are official records, kept under requirements of law, and as such are admissible and furnish full prima facie proof. 40 An., p. 237; 26 An., p 268; 12 An., p. 741.
    The case of th State ex rel. Merchant vs. Taylor Daspit, 30 An., p. 112, in which it was held tlmt the certified statements of the Auditor were insufficient, does not bear the slightest analogy to the Lake case. 30 An., p. 112.
    F. G. Thatcher3 Land & Land and Bell <So Randolph for Defendants and Appellants:
    1. Sureties for the fidelity of an officer appointed for a limited term are not liable for his defaults beyond the term of the appointment or commission under which the bond was furnished, and this is not extended by provisions of law to the effect that the official continue in office until his successor is qualified, and if extended at all, it can be for only such reasonable period of time as with due diligence the successor could be appointed and qualified. State vs. Powell, 40 An. 243; Mayor vs. Arnold, 29 American Reports, 224; Building Association, vs. Price, 26 Am, Rep. 703; Harris vs. Babbit Myers, Fed. Decision, 4 Vol., 255, and others quoted in State vs. Powell.
    2. It is only when a tax collector comes to make his annual settlement — when he is presumed to have collected all the taxes for the fiscal year — that the whole assessment roll can be charged against' him. At all other settlements he can be held to account for such amounts as is 'affirmatively shown to have been collected by him, and, if during that fiscal or tax year he has been reappointed or re-elected and given a new bond, his sureties on the old bond will be liable only for the amount collected by him and not accounted for before the filing of the new bond, which amount must be. proved by the State. State ex rel. Merchant vs. Daspit, 30 An. 1112; State vs. Powell, 40 An. 245.
   The opinion of the court was delivered by

McEnbry, J.

The State of Louisiana instituted this suit against the defendant sheriff and tax collector of the parish of Caddo and the sureties on his official bond as tax collector, to recover the sum of $26,194.32 for taxes and licenses collected by him and not accounted for during the years 1889, 1890,1891 and 1892, together with the penalties and costs. The defendant made no defence to the suit.

The co-defendants of the sheriff, sureties on his official bond, answered pleading a general denial, and specially aver also that John Lake was elected sheriff as his own successor at the general election held on April 19, 1892, and that on said date his previous term of office expired, and that from said date respondents are not bound as sureties on his official bond; that he was commissioned sheriff June 26, 1892, and that his bond as tax collector for the term com; mencing April, 1892, was recorded July 26, 1892; that the issuing of said commission to said Lake is evidence that he had accounted for and paid over to the State all sums of money due up to that date, and that the defalcation and delinquencies of the sheriff occurred subsequent to the discharge of his sureties on the bond for the term of office commencing April 19, 1888; that said Lake, sheriff, settled with the State for all taxes and licenses for the years 1889 and 1890; that if said Lake was indebted to the State when his commission issued in 1892, that the Governor and State Auditor, by issuing said commission and giving time to said Lake without the consent of the respondent, discharged them as sureties on his official bond as tax collector.

There was judgment in favor of the State, and the respondents, sureties on the bond of Lake as tax collector, appealed.

John Lake was elected sheriff in 1888, and on the 20th day of June following filed and recorded the bond for his official conduct as tax collector. The respondents are the sureties on this bond. On the 19th day of April, 1892, he was again elected sheriff, and his commission issued on the 21st of June following. He qualified on the 15th day of July, and on the 26th of July filed and recorded his official bond. On the 10th of September, 1892, he was succeeded in office by the present incumbent.

The district judge dismissed as of non-suit the claim for taxes for 1889 and 1890, and therefore the taxes for 1891 and the licenses for 1892 are involved in this appeal.

It will hardly be necessary to comment on the position taken by respondents that the issuing of the commission to Lake by the Governor, and an extension of time, if it had been proven, by the Auditor, had the effect in the first instance of releasing him from indebtedness to the State, and in the second, of canceling his official bond and discharging the sureties. The defalcation made him ineligible to office, but if he entered upon his official duties this did not concern his sureties on his official bond, who were on said bond, vouching for his honesty and fidelity and faithful discharge of duties. An official may be ineligible to office, and yet, until his ineligibility bias been drawn in question and his successor appointed, he is both a de jure and defacto officer.

The sureties are in no way concerned about the title to the office ■or the qualification or disqualification of the officer. 40 An. 287.

The Auditor of the State has no authority to grant an extension of time to the tax collector to make his settlement. The time for these .settlements is fixed by law. The sureties on his official bond went on it with a knowledge of the law; that their principal had to account for money collected for taxes and licenses at stated times. No default •of any official excuses the neglect in another.

It has been held that the liabilities of sureties on an official bond should be held to extend to a reasonable period beyond the term of •office for his successor with due diligence to qualify. Oases cited in .State vs. Powell, 40 An. 245. But in this State the “reasonable” period has been fixed by law.

Art. 161 of the Constitution says: “All officers shall continue to •discharge the duties of their office until their successors- are inducted into office.” It is under this article competent for the Legislature to fix the period within which an officer shall qualify. Two acts of the Legislature designating this period Were in existence when this article of the Constitution was adopted, and being in accord with it, the acts were continued in force. The term of the •office is fixed at four years. This term must necessarily commence from the date of his commission and qualification under it as no-•commission can issue to him under the Act 58 of 1877, extra session, the Governor being prohibited from issuing a commission to him before the expiration of thirty days. Act 19 of 1878, Sec. 11, provides “that all State, district and parochial officers of this State, whether elected or appointed, shall be required within thirty days after the receipt of their commissions to take the oath of office prescribed by law, and give bond 'when bond is required, and cause the •same to be filed in the proper office in the manner and as required by law- The bond of Lake as tax collector was given with reference to existing law. His bond, therefore, continued in force from the •day of its execution until his successor received his commission and -qualified within the thirty days as required by Act 19 of 1878.

The bond was executed on the 20th of June, 1888. His commission •on his re-election was issued 21st June, 1892, and he took the oath ■of office 15th July, 1892, and filed and recorded his bond on the 26th •of July, 1892. Under the act the oath of office must be taken and the bond filed within thirty days.

The new bond was filed more than thirty days after the issue of •the commission, but if we make allowances for necessary delays of mailing and transit we presume it was filed within thirty days after the receipt of his commission. The-record does not show when the commission was received. For the purposes of this suit this date, if proximate.ly correct, will answer all purposes for the decision of this ease. If the sheriff fails to take the oath and give the required Ibond the office ipso facto becomes vacant, and necessarily the sureties on his bond are discharged. State vs. Powell, 40 An. 245.

The sureties on the official bond of an officer therefore continue their liability as such until the officer gives the bond within the thirty days from the receipt of his commission, or until the thirty days expire, when the office becomes vacant.

Sec. 1132, Revised Statutes, giving a sheriff elected ninety days to prove to the satisfaction of the Governor that he is not a defaulter in order to authorize the issuing of a commission to him, has no application to this case.

It is not difficult to ascertain the amount due the State for licenses and taxes by the tax collectors. Throughout the State, except the parish of Orleans, tax collectors are required to render their accounts to the Auditor within the first ten days of April, October and "January, and to make their final settlements with the auditor and police jury of each parish in the ten days after 20th of July of each year. At each settlement they are required to make an oath that the settlement contains a faithful account of all taxes collected, and the amount received, if any, from licenses to persons pursuing any trade, profession or taxed occupation. Sec. 76, Act No. 83 of 1888.

He is charged with the tax rolls and the blank licenses issued to him. Each quarterly statement must be accurate" and complete, the tax collector accounting for money received on account of the State, and the tax roll and license list is credited with the amount collected and paid over. On the final settlement he must account for the entire tax roll and license list, being credited with the blank licenses returned and the credits to which the law entitles him on the tax roll. Failing to return the blank licenses he is chargeable for those not returned as collected, and failing to obtain the proper credits authorized by law on the tax roll, he is charged with the taxes which he does not account for on the delinquent list.

He is a defaulter when he fails to make the settlement quarterly, as required by law, and he and the sureties on his official bond can be proceeded against at once and summarily.

The final settlement of the tax collector should have been made with the Auditor within ten days from the 20th of July, 1892, when a quietus would have issued to him. He did not make this final settlement and obtain a quietas.

For the taxes of 1891 the defendants have failed to show that their principal, Lake, settled according to law for the taxes of 1891, and he is therefore charged with the tax roll unaccounted for, and also for the licenses issued to him and not returned.

When the sheriff and tax collector surrendered the office or resigned it, he was compelled by law to deliver to the recorder of the parish a list of all unpaid or -delinquent taxes. Thus it will be seen that it was quite easy for the sureties to exhibit the list of unpaid taxes and the delinquent tax-payers| since the tax collector obtained his last quietus or from the date of his new bond. The burden of proof is on them to show the credits to which the tax roll is entitled.

The tax collector is therefore chargeable with the amount on the tax roll which he fails to have deducted by reason of inability to collect the tax. There is no evidence showing that any part of the balance due by him on the tax roll of 1891 was collected by him after he qualified by filing his official bond in July, 1892, at which time his sureties were discharged.

Blank licenses were issued to Lake from January to August, 1892, amounting to $15,900. He accounted for $3074, leaving $12,826 unaccounted for.

Sec. 2 of the License Act of 1890 says all licenses shall be due and collectible the first two months of each year, and all unpaid licenses shall become delinquent on the first day of March of each year. He should have returned the delinquent licenses on his first quarterly settlement. It is to be presumed that he obeyed the law and collected licenses when they were due and reported the delinquents. The record shows that in October, 1892, he returned $1073.50 blank licenses to the Auditor, and on June 21, 1892, he paid on account of licenses $2000. No collections of licenses are shown to have been made after he qualified as his own successor in office. Had this been the case it was a matter of proof, the burden of which was on the defendant sureties. That this was in the ability of the sureties to prove is shown by the provisions of Sec. 2 of the License Act of 1890. From the delinquent list of license payers it would have been easy to show the amount paid after they became delinquent, and by whom paid and at what time.

The whole case on the merits against the defendant sureties may be summed up in a few words.

The tax collector was charged with the tax roll of 1891. He defaulted on his final settlement, and was indebted to the State for the taxes not accounted for. His sureties became liable at once. Act 83 of 1888, Secs. 39, 76, 77 and 78.

The tax roll shows a balance due to the State of $10,685.81. The burden of proof is on the sureties to prove that this balance was reduced by collections on said roll, made after they were discharged.

Blank licenses were issued to him for $15,000. The licenses were due on 1st March, and after that date the license tax-payer became-delinquent, and the sheriff and tax collector should have accounted for license taxes in his settlement with the Auditor in the first quarterly settlement thereafter. Failing to do so he was a defaulter for the amount of licenses issued to him and unaccounted for, and he- and his sureties at once became liable for the balance. Revenue Act of 1888; License Acts of 1886, 1890.

After he failed in making settlements on the day fixed by law he ipso facto became a defaulter, and the burden of proof is on the-sureties to show that the balances claimed by the State on the tax roll and for licenses were collected after their release on his bond. No such showing has been made. 31 An. 736; 37 An. 718; 40 An. 237.

The case against defendants has been fully made out. The full prima facie showing made by the State by certified extracts from the-Auditor’s books, showing the condition of the sheriff’s accounts, has not been rebutted by defendants by legal vouchers for legal payments or offsets. 40 An. 234.

Judgment affirmed.


source: Caselaw Access Project

author: Breaux, J.

license: Public Domain

text:
    No. 373.
    Merchants and Farmers’ Bank vs. The Hervey Plow Co., Ltd. First National Bank, Third Opponent.
    Mortgages can be executed to secure an amount to become due.
    The authority of an officer to bind a corporation in the management of its ordinary business, may be fairly implied.
    There being no proof nor allegation of fraud or unfair dealing, the plaintiff, a third person, can not require an imputation of payment between creditor and debtor to be changed.
    APPEAL from the First District Court, Parish of Caddo. Hall, J.

      Alexander & Blanchard and Land & Land for Plaintiff and Appellant.

      Wise & Herndon for Third Opponents and Appellees.
   The opinion of the court was delivered by

Breaux, J.

The plaintiff, a judgment creditor of the defendant for $2500, caused certain property of the defendant to be seized and sold to pay its claim.

On the day of sale the First National Bank filed a third opposition, claiming the proceeds of the real estate.

The opponents were the payees of a promissory note for the sum of $5000, with interest from the 26th day of September, 1891.

This note was secured by mortgage of that date on the property seized.

The balance claimed by the opponents on this mortgage is $3829.91. At the sale, the property was adjudicated to the First National Bank, third opponents, for the price of $4000.

The plaintiff, in answer to opponent’s petition of opposition, denies the existence of their mortgage claim, and. specially pleads that if it ever existed, it has been extinguished.

At a meeting of the directors of the defendant company on the 25th day of September, 1891, a resolution was adopted authorizing the president of the company to execute a mortgage in favor of. the First National Bank of Shreveport to secure the payment of the sum of $3756 now due, and the further sum of $1300, to become due upon the real estate and plant of the company,” payable one day after date.

He was also authorized to pledge to the bank as further security the unpaid assessments due by the stockholders to the company.

The secretary and general manager of the company testified that the defendant received the amount of the mortgage, as set forth in the deed of mortgage.

He also testifies that “ after the note and mortgage was executed, I asked Mr. Jacobs, cashier of the First National Bank, to receive these amounts that I collected other than the assessments pledged to the bank, simply for the convenience of the treasurer, to carry on the current business of the company, and not to be applied to the payment of the secured debt. He consented to do so, and I deposited the amounts with that understanding. The amounts deposited, other than the assessments, were drawn out by the treasurer of the Plow Company. This was so agreed when the deposit was made by me, otherwise I would not have put them there. The Hervey Plow Company had no other resources than collections I made for them, as stated, with which to carry on the business.”

The cashier of the First National Bank says that he is acquainted with the business transactions of the Hervey Plow Company, Limited, with his bank.

That the balance claimed by the bank is the amount due it on the mortgage after allowing the Plow Company all proper credits.

He says: “At the date of the execution of the mortgage and note for $5000, the amount then due this bank by the said company was $3756.98, and in accordance with our agreement and mortgage our bank advanced additional sums, aggregating, October 25, $5034.02.

“ For their convenience they desired to make deposits, but with the distinct understanding that they should be drawn out for the conduct of their business, and that I should not apply deposits to the payment of the note and mortgage, except, as before stated.

The acting president of the company knew that such an agreement was indispensable to the work of the company. Without it the company would have been compelled to stop.

The amount collected on assessments pledged was $1434.77.

Two separate accounts — one “debit,” the other “credit,” were introduced in evidence to show the condition of the open account between the defendant and opponent. They are unexplained by any testimony.

The authority of the secretary and manager to enter into an agreement with the First National Bank is denied. The agreement was an incident of the service due by him to the company. It was in the interest of the company, with the knowledge of the members and directors, and binding without proof of an ordinance adopted to that effect.

Plaintiff’s counsel, in their brief, state “that the balance sued for is made by charging the Plow Company under date of December 18, 1891, with demand note $6000.”

That “ there is no testimony explaining this item,” and that “ it is patent that if the sums collected on assessments and amounting to $1434.77 are credited in this account, they have been applied wrongfully and illegally on the ‘ demand note,’ which was not secured by the mortgage and pledge.”

There is no evidence in the record that this amount was credited on the “ demand note.”

There is evidence that it was credited on the mortgage.

In the absence of statements clearly setting forth credits and debits and establishing balances, and in the absence of any testimony showing that it was credited differently than stated by plaintiff’s witnesses, the court will not disturb or change the result.

The bank having agreed to receive the deposits of the Hervey Plow Company subject to its checks, and having consented not to apply such deposits to the credit of the mortgage and pledge, was absolutely without right to. such a credit.

In accordance with that agreement it became a depository of the money, and could not transfer it to its own account in satisfaction of the secured indebtedness.

The agreement was legal and unobjectionable. O. O. 2163.

With the consent of the debtor the deposits were placed to the credit of other claims, needful, the witness states, to the plow factory’s operations.

There is no proof nor allegation of fraud or unfair dealing; the plaintiff, a third person, can not require the imputation to be made to a different debt.

The rules of imputation of payments were laid down with admirable clearness in a case in pari materias, that of Bloodworth vs. Jacobs, 2 An. 25, in which it was held that the receipt in which the imputation is made becomes irrevocable unless there has been surprise or fraud.

The disposition of a fund depends upon the agreement or course of dealing.

“ If a factor receive a fund for a particular object under instructions from his principal, no law and no principle of morals will permit him to apply it to any other; and how any different appropriation of it can be required from him by a third person, it is difficult to apprehend, grcvve est fidem fallere. Take a very common case. The current expenses of a plantation must be paid, a man’s family must be supported; and if the factor agree to pay bills or furnish money for these purposes to a planter, and of the proceeds of a crop consigned to him, can he, after procuring the consignment, apply the proceeds to the extinguishment of a previous debt, and set at nought the very condition on which the crop was consigned to him. We have not considered the law to be so.”

The same rule applies to a depositor of money. The banker or ordinary creditor has no right to set up any claim inconsistent with the terms of agreement.

The judgment appealed from is therefore affirmed at appellant’s-costs.


author: Parlange, J.

text:
    No. 357.
    The State on the Relation of James Henry Jones vs. Judge of the Nineteenth District Court.
    The trial judge will not be ordered to sign a bill ot exception which contains a statement that witnesses ior the defence testified exonerating the accused, the judge averring in his return to the writ of mandamus that the statement does not comport with the facts proven on the trial, and that he is willing to sign a proper bill.
    y^PPLIOATION for Mandamus.

      Todd & Todd for the Relator.
   The opinion of the court was delivered by

Parlange, J.

This is a mandamus proceeding by which relator-seeks to compel the judge of the Nineteeth Judicial District Court to sign a bill of exception which relator, through his counsel, reserved to the refusal of the district judge to give certain charges to-the jury which tried relator for murder. Sentence of death has-been passed on relator, and his appeal from the same is on file in this court.

The respondent judge admits in his return to the writ that he refused to sign the bill of exception. But he states that “ he was and is still willing to sign said bill, and has so stated to counsel for the-accused, provided the wording of the seven first lines thereof be so-amended as not to force him to admit facts upon which he disagreed with” relator’s counsel. The wording objected to by the respondent judge is as follows:

“ Be it remembered that on the trial of this case, after certain evidence on the part of the State, implicating the accused who was present at the homicide, in the killing, had been adduced, and after witnesses for the defence had testified exonerating the defendant from any complicity in the affair, the following charges were asked for,” etc.:

The district judge objects particularly to the words: “ And after-witnesses for the defence had testified exonerating the accused from any complicity in the affair.” He avers that he can not sign a bill-containing such a statement, for reasons which he sets out at length, but mainly because the statement “does not comport with the facts-, proven on the trial,” and because “ counsel can not ask the judge to admit that the evidence adduced on the trial exonerated the-accused.”

We do not understand, as counsel for relator express apprehension in their brief, that the respondent judge denies that there was-any contention whatever as to the guilt or innocence of relator. We-understand that the district judge objects to signing a bill of exception which states: not that there was testimony tending to exonerate or for the purpose of exonerating the relator, but exonerating-him. We feel assured that the district judge will state that there was a contention.

It is clear that it is the duty of the district judge to sign a bill of' exception which will show his refusal of the charges. This refusal he admits. We do not understand him as refusing to sign a bill of exception showing the refusal, but on the contrary as averring his-readiness to sign the bill of exception brought up in this ease, provided the words to which he objects are first stricken out.

We have been referred by the counsel for relator to the decisions of this court reported in 38 An. 536-789, State vs. Tucker, and to other cases. The decisions quoted are correct, but they do not apply to the instant case. That a defendant in a criminal case, in order to preserve a point of law and to enable this court to pass upon the applicability of the point of law, may state the contention in his-bill of exception and that he may state the contention in the manner shown by the authorities quoted, is a perfectly correct proposition; but it is not the proposition involved in this case. This court is now asked to compel the trial judge to sign a bill of exception which states the force and effect of testimony heard by the jury, and to require him to certify that certain witnesses on behalf of' relator “testified exonerating him from any complicity in the affair.”'

Probably the counsel for relator did nob intend to make the statement as broad as it appears on the face of the bill of exception; but the bill must speak for itself.

Relator prays that the district judge be ordered to sign the particular bill of exception in question in its present form. It is evident that we can not so order. Nor can we, in this proceeding, order the district judge to sign a bill framed in accordance with the views we herein expres. In mandamus proceedings there can be no variance between the relief asked and the relief granted, and if the court can not grant the relief specified in the alternative writ, it must refuse any. Besides, the district judge has not refused to sign such a bill as would be held proper under the views we herein express.

Mandamus refused and proceedings dismissed at relator’s costs.


author: Parlance, J.

text:
    No. 383.
    J. N. Lewis vs. N. M. Boyet et al.
    Under Art. 898, Code of Practice, relief will be granted only from the effects of such mistakes, omissions and similar irregularities as arise without fault on part of appellant.
    Where the transcript is grossly defective the appeal will be dismissed.
    A PPEAL from the Justice of the Peace for the Fifth Ward, Parish lx of Webster.

      Drew & Stewart for Plaintiff and Appellant.

      L. K. Watkins and J. E. Reynolds for Defendant and Appellee.
    On Motion eor Continúanos.
   The opinion of the court was delivered by

Parlance, J.

The transcript in this cause was filed in this court •on October 25, 1893. On the same day the defendants and appellees filed a motion to dismiss the appeal for the reasons that the return day was not fixed according to law; that the case was tried in ample time for appeal to this court in October, 1892, and that the return day was illegally fixed at the suggestion of the plaintiff and appellant ; that the transcript is defective for want of copies of the appeal bond, and other papers, and that the certificate to the transcript is not in due form. The motion to dismiss has'not been submitted, and •on this day the appellant has moved for a continuance of this cause, and that the lower court be ordered to send up a correct and complete transcipt by the next term of this court. The appellant does-not even allege that he is not in fault.

Under Art. 898 of the Code of Practice, in which have been embodied acts for the relief of appellants in cases of diminution of the record, this court will grant relief only from the effects of such mistakes, omissions and similar irregularities as arise without fault on the part of the appellant.

More than a year has elapsed since the rendition of the judgment-in the lower court. A term of this court,' other than the present term, has been held since then. The transcript was not filed in this court until the third day of the present term. The transcript is grossly defective. In fact, it is no transcript. Under the circumstances of this case, we hold that the appellant is not entitled to the-relief he asks, and his motion for a continuance and for an order to the lower court to send up a correct and complete transcript, is overruled and refused.

On Motion to Dismiss the Appeal.

The defendants and appellees have moved to dismiss the appeal in this cause. The transcript is grossly defective. It contains neither order of appeal nor appeal bond.

It is therefore ordered that the appeal be dismissed at the costs of plaintiff and appellant.


text:
    No. 381.
    L. L. Crow et al. vs. B. M. Manning, Sheriff, et al.
    The question is not one of constructive service vel non, but whether the wife, who is out of the State, can. be brought into court to respond in a civil suit by citation on her husband, an absentee who happens to be temporarily in this State.
    The service, in so far as she is concerned, being personal, the court was without jurisdiction.
    The husband who joins and aids his wife in committing a tort in an illegal sequestration proceeding instituted to recover her paraphernal claim is bound insolado for the damages occasioned.
    A sheriff acting under the direction of a court of competent jurisdiction and carrying out its orders is not responsible in damages.
    Prescription runs from the day the injury or damage was sustained. Damages-for expected profits must be clearly established.
    APPEAL from the Second District Court, Parish of Bienville. Watkins, J.

      L. K. Watkins, J. A. Dorman and Drew & Stewart for Plaintiffs and Appellees.

      W. U. Richardson, B. P. Edwards, J. E. Reynolds and A. J. Murff -for Defendants and Appellants.
   The opinion of the court was delivered by

Breaux, J.

Mrs. Annie P. Mower, authorized, assisted and joined by her husband, Calvin R. Mower, domiciled in the State of Illinois, represented by Emile O. Drew, of Bienville parish, as attorney in fact, brought an action against T. Martin and caused property to be sequestered.

The indebtedness to her by the defendant in the suit, T. M. Martin, was $600, due on trees sold to the defendant in that ease, and $190 ■for timber she claimed was destroyed by him.

She made the usual allegations for a writ of sequestration, and described the property she desired to have sequestered, and which the sheriff sequestered and took into his possession on the 10th day of December, 1891.

On defendant’s motion this writ was dissolved for the reason that ■she had no privilege that would sustain a sequestration.

The property sequestered was claimed at the time by a partner•ship, of which H. S. Crow, Z. Martin, L. L. Crow and T. M. Martin were the members.

The partnership was dissolved; the three partners who succeeded to the rights of the partnership brought suit against the sheriff who ■executed the writ of sequestration, against Mrs. Mower and her ■husband, and against É. C. Drew, agent, for damages in solido by ■the illegal sequestration.

One citation for Mrs. Mower and husband was served on E. O. ■Drew, agent.

Another addressed to the same parties was served on O. R. .Mower, the husband, personally, who was temporarily in the parish ■on the 10th day of December, 1892.

They, Mower and wife, subsequently, interposed the plea of want ■of jurisdiction ratione materise to try a cause against them, being ¡absentees, which was overruled.

They also interposed the plea of estoppel and pleaded the pre,-scription of twelve months, also no cause of action.

The answer of the defendants is a general denial.

The judgment of the District Court condemns the defendants, B. M. Manning, sheriff, O. R. Mower and P. P. Mower in solido in the sum of $5004.25, with legal interest from judicial demand.

Prom the judgment they appeal. ■

The sheriff having made service of the citation to Mrs. Mower by handing it to her husband the question arises as to whether it is such a service as binds, and is legal as to her, an absentee.

The service upon Drew, agent, is illegal, for he was without authority to represent her in the suit.

It therefore remains for us to determine the legal effect of the citation to Mrs. Mower served upon Mower, husband.

The absentee may be cited in answer whenever he is found within the limits of the State.

The service was legally made upon the absentee Mower, in so far .as he is personally concerned.

If the petition and citation be directed against a married woman the service may be made by delivering it to the husband.

A defendant who is an absentee may be brought within the court’s jurisdiction by personal service.

The service is personal when delivered to himself.

The wife was an absentee, and no personal service was made as to her.

The husband’s authority was sufficient to bind her to respond in so' far as relates to a citation pure and simple.

In this case if it be decided that the service is legal against the wife it will have the effect of constructively bringing her into court, and of conferring jurisdiction.

The condition under which jurisdiction arises is personal presence.

By the presence of her husband she is not present personally nor ■constructively.

One of the elements to confer jurisdiction is lacking — the service upon the wife personally.

The personal service upon the husband is not a personal service as to her.

The case of Pennoyer vs. Neff, — U. S. — , to which our attention is invited, has no bearing.

The question is not one of constructive service vel non, but whether the wife, an absentee, can be brought into court by citation on her husband, absentee, who happens to be temporarily in this State.

The service, in so far as she is concerned, not being personal, the court was without jurisdiction.

The plea to the jurisdiction invoked as an admission of citation is not such an admission as waives citation, it having been interposed by an absentee.

As against her, citation is the basis of the action. The plea as presented covers both want of citation and jurisdiction.

The court was without jurisdiction because the defendant had not been legally cited.

The amount claimed being an allegbd paraphernal right of the wife, the husband having joined his wife to authorize and assist her in the suit, the defendant contends that plaintiffs have no right of action against him.

Every person is responsible for the damage .he has occasioned by his negligence or imprudence.

If defendant’s wife has committed a trespass, a tort, as is alleged, and thereby has caused damages, he who has [authorized, joined and aided in the act is also bound.

He joined in the petition and all subsequent proceedings of sequestration. It is true that had he declined to authorize his wife she possibly would have obtained the authorization of the court.

But the court, without reference to the character of the action or the nature of the claim, would have granted the authority.

She would have appeared before the court quoad the suit as a femme sole.

The court would have been indifferent and impartial as to the result]

The husband is an active party to the suit, with full knowledge of the character of the claim, and persisting in the trespass by continuously giving authority and consent to the trespasser, and has taken an active part in the proceedings from beginning to end.

Those who commit tc rts or assist in their commission are bound in solido for the damages occasioned. 15 An. 583.

It is also sought to hold the sheriff responsible.

He was ordered to sequester certain property.

It is described with particularity. It was not left to him to sequester the property of the defendant, with some discretion to determine whether or not certain property belonged to the defendant or to a third person.

By a court of competent jurisdiction he was commanded to sequester property described and referred to in the order.

In Brainard vs. Head, 15 An. 490, this court held: “A sheriff has no legal right to question either the facts or the law of any decree, order or judgment rendered by a court of competent jurisdiction. His duty is to obey and execute the lawful mandates of the court, and in the discharge of this duty he is justified and protected by the law, and as a consequence can not be held liable in damages.”

The duty was as pronounced and as imperative in the case at bar.

Those who were instrumental in obtaining an illegal order may be held in damages.

But not the executive officer who only obeyed the mandate of the' courts.

A plea of estoppel was interposed, based on an alleged consent of one of the defendants, H. L. Orow, to the issue of the writ of sequestration and on an agreement of another of the defendants.

The facts urged as an estoppel against the former, H. L. Orow, are that he held a conversation with Drew,’agent for Mrs. Mower, in which he expressed the desire of supplanting Martin, as party to the contract with Mrs. Mower for trees to be sawed at their sawmill.

That upon this conversation the agent sued out the writ of sequestration; that Orow pointed out the property to be sequestered, and that his copartner was appointed the sheriff’s keeper.

The agreement that the defendant avers is denied.

The testimony upon the subject is contradictory and irreconcilable.

The purpose of the agreement and the conflicting testimony are such, that the rights of the parties will not be considered affected by them in any manner.

Such an agreement, if entered into, does not recommend itself to the instrumentalities of the courts for enforcement.

That one of the partners was appointed keeper, under the writ of sequestration, and retained the Keepership during thirty-three days, is not a waiver of any real right he may have had on the property.

It is not similar to the owner who points out his property to be sold. In this case, during the pendency of the suit, he consented to act as keeper.

In so far as relates to T. M. Martin, another defendant, the facts are that in 1891 he made a contract with C. R. Mower for timber of the lands of Mrs. H. P. Mower, in consideration of the delivery to her of one-tenth of all the lumber sawed.

This contract expired about the time that the sequestration was issued.

It is in evidence that Zach. Martin, H. S. and L. L. Crow entered into an agreement in May, 1891, by which they became jointly interested in his timber contract with Mrs. Mower.

Under this agreement they erected a saw-mill on the lands of Mrs. Mower, and sawed timber from her land, from June, 1891, until December 10, 1891. During that time the tenth stipulated for Mrs. Mower was not paid.

On the last mentioned date Mrs. Mower instituted suit and sued out a writ of sequestration, claiming an amount due for the tenth of the lumber.

At the expiration of thirty-three days Mrs. Mower bonded the property and delivered it to T.'M. Martin, who, with Zach. Martin, operated the mill until the sequestration was finally dissolved.

In 1892, Martin and Drew, agent, entered into an agreement, reciting that, whereas, Drew, agent, had executed a forthcoming bond for the release of the property sequestered in the case of Annie P. Mower and husband vs. T. M. Martin, they agreed that he (Martin) should have possession of and use the property sequestered.

That the suit was to remain in court until an accurate statement could be furnished of the property, and his indebtedness fixed.

He abandoned all claim for damages and lumber.

The previous existing contract for timber from Mrs. Mower’s land was acknowledged and renewed.

In June of that year the sequestration was dissolved on the ground that Mrs. Mower had no privilege to sustain a sequestration.

No reference was made to this agreement.

In June, 1898, the partnership affairs of the firm of Martin & ■Crow was settled, T. M. Martin withdrew from the partnership, and the remaining members of the partnership were subrogated to his rights.

It is in place to now state that T. L. Martin, having waived all right to lumber and damages, he had none to transfer, and as to this claim plaintiffs are absolutely without a cause of action.

The plea of prescription is also interposed, viz.: the prescription •of one year.

Twelve months and three days had elapsed iron the date of sequestration to the date citation was served.

Prescription runs from the day on which the damage was sustained. •C. O. 3637.

The suit is for damages for wrongful seizure of property.

The loss and damage caused to plaintiffs by the seizure made on the 10th day of December, 1891, was presented. Service was made ■on the 12th day of December, 1892.

Plaintiffs contend that the damages were accruing from day to day, and only prescribed from the time it actually occurred. This is indisputable as to the damages to the mill and other property if any occurred from day to day after the seizure.

Suit was not brought for the lumber which was sequestered, but for damages caused by its seizure.

The damages caused on the 10th day of December, 1891, are prescribed, being for damages in the loss of lumber taken that day.

It remains for us to determine whether any damages have been ■proven as accruing to the plaintiffs, personally.

The property on the day it was sequestered was valued by the sheriff and the appraisers at $2125.

One of the partners testifies that the mill shed leaked, and as a result the operations of the mill were interrupted in rainy weather, which was frequent at the time; the roads were in bad condition ■and heavy, transportation over them was difficult, lumber was not in ■demand and the profits small.

Disinterested witnesses testify that the mill would not have been ■operated half the time.

The damages claimed are entirely for profits the parties think ■could have been realized.

The whole case depends on varying estimates.

The records do not disclose that any profits were realized just pre»ceding the sequestration or afterward.

There is proof, but it does not impress us as showing profits — only "the reverse.

The possible profits of an enterprise must be proven with some ■degree of certainty, and should not be made to depend upon gross estimates of possible revenues and of possible expenses without reference to details and particulars.

The contingencies attending profits or the possibilities of losses forcibly present themselves on an examination of the testimony.

“We have earnestly applied ourselves to find damages proven.

The evidence is not such as to establish the claim made.

Were we to follow the estimates of interested witnesses a decree would be entered for a large amount without testimony satisfactorily showing the actual cost of operating a mill and of the possible price of its products in the markets.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that plaintiffs’ demand be rejected and their suit dismissed at their costs in, both courts.

On Application for Rehearing.

McEnery, J. We have carefully and patiently examined the record in this case to verify the facts stated in the opinion. We find only one error — the date of .the citation on P. Mower. That error was in the confusion of dates resulting from the certificate of the clerk to the citation, which came up separately, and the return on the citation by the sheriff. But this error can have no effect on the merits of the case. The facts fully justify the decree rendered.

Rehearing refused.


author: McEnery, J.

text:
    No. 365.
    A. B. Caruth and Wife vs. Texas & Pacific Railroad Company.
    Same syllabus as in Odom vs. Railroad, decided this term.
    APPEAL from the Ninth District Oourt, Parish of De Soto. Hall, J.

    Geo. E. Head, Lee & Liverman and J. G. Egan & Son for Plaintiff and Appellant:
    The defendant company having plead contributory negligence the burden of the proof is upon them to show it 15 Wallace, 406, 407; 93 IT. S. 391; 40 An. 417.
    Contributory negligence can not be set up asa defence when such alleged negligence was the result of tremor and excitement, produced by the defendant’s misconduct, or when the latter’s negligence puts the plaintiff to a sudden election between acting as he did or submitting to a grave inconvenience. 2Redfield on Railways, See. 194, etseq.; Wharton on Negligence, Secs. 395,377; 2 Thompson on Negligence, p. 1174; Lehman vs. Railway Company, 37 An. 708.
    It is the duty of the railway carriers to provide safe modes of ingress and egress to and from their cars; to provide sufficient lights at their stations wherepassengers take or leave their trains at night; to have its stations open and lighted, and its servants ready for the accommodation of those who may wish to leave its trains or depart by same. For neglect of said duty resulting in injury to passengers the carrier is responsible. Thompson on Carriers of Passengers, p. 708: Wharton on Negligence, Secs. 652, 644; Moses vs. Railway Company, 39 An, 653, 4, 5 and 6; Penniston vs. Railway Company, 34 An. 777; Lehman vs. Railway Company, 37 An. 705; 37 An. 648, 698.

      Passengers have a right to proper and sufficient time for alighting from a train at their places of destination, and it is gross negligence to start a train while they are on the steps of a car platform in the act of alighting. They are responsible to injuries occasioned to passengers by such negligence. 87 An. 707..
    Where a passenger is on the steps of a car platform in the act of alighting therefrom and the conductor starts the train without warning and the passenger is precipitated to the ground by the sudden jerking motion of the train and injured, such conduct shows a reckless disregard by the carrier for the safety of its passengers and a gross neglect of its duty to them, and they are responsible in damages for the injuries received by passengers occasioned by such conduct. 35 An. 202.
    Two thousand dollars damages is not sufficient in a case of this kind, taking into consideration the following elements of damages, which are proper in estimating and assessing the same: (1) Expenses of surgical and medical attention and nursing. (2) The bodily pain according to its degree and duration. (3) Bodily injury, taking into account the loss of time the extent and probable duration of the injury, its effect on the health; the mental and physical powers; the capacity for labor, and the earning of money. (4) The probable duration of the injury, as to whether temporary or permanent. Lacey’s Digest Railway Dec., p. 172; Nos. 23, 24, p. 173, Nos. 43, 44, 46, 47, Sedgwick; Munsun Dam., p. 243 (note).
    The amount of damages in this case is totally insufficient where the evidence shows that the injuries are permanent, and where a vigorous and healthy young wife is reduced by them to a chronic invalid.

      Wise & Herndon for Defendant and Appellant:
    1. Plaintiff must make his case certain. The burden of proof is on him.
    2. A railroad company is not liable to a passenger for an accident which the passenger might have prevented by ordinary attention to her own safety, even though the agents in charge of the train are tyso remiss in their duty. 30 An. 15; 32 An. 615; 33 An. 154.
    3. One who passed out of a railway car and got upon the platform thereof to step or jump from the car while it was in motion can not recover for injuries suffered in consequence thereof, even though he had reached his place of destination, and the train which had previously stopped to permit passengers to alight, ead not so stopped for a reasonable length of time. 6 Am. and Eng. Ry. Oases, 879; 41 An. 795; Fournet et ai. vs. Morgan’s L. & T. R. & S.S. Co., July term, 1891, of ;his court; see Southern Reporter fo.r November, 1892, p. 541.
    4. It is contributory negligence for a passenger to leave a car while it is in motion, and in an action by a passenger to recover damages for injuries received while so alighting, the court should so instruct the jury. 33 Am. and Eng. Ry. Cases, 444.
    5. Passenger. — Duty of conductor to assist passenger to alight. No duty rests upon the conductor of a railway traiuto assist a female passenger to alight from the car. 31 Am. and Eng. Ry. Cases, 45; 33 Am. and Eng. Ry. Cases, 520.
    6. Duty of conductors in starting train as to passengers alighting. The conductor of a railway train is only required, after having the station announced, to stop the.train, and hold it such reasonable time as will permit the passengers to alight in safety. It is not his duty “to know” that a passenger has left the cars before he gives the signal to start. 31 Am. and Ehg. Ry. Cases, 45; 35 Am. and Eng. Ry. Cases, 520.
    7. Excessive and vindictive damages will not be allowed. 11 An. 292; 40 An. 64.
   The opinion of the court was delivered by

McEnery, J.

The plaintiff brought this suit to recover damages against the defendant company for personal injuries inflicted upon his wife when she was leaving defendant’s train at Mansfield Junction.

The answer is a general denial, with a plea of contributory negligence on the part of defendant.

The case was tried by a jury and a verdict rendered in favor of plaintiff for $2000 damages. The defendant appealed from the judgment rendered thereon.

The plaintiff was a passenger on defendant’s train, and left the same at Mansfield Junction.

The evidence establishes the following facts: That the train was behind schedule time and stopped at the Junction a very short time —not sufficient for passengers to get on or off with safety; that Mrs. Oaruth used due diligence in the short time allowed her in leaving the train; that when she was on the car step, in the act of alighting, the train started and she was injured by being thrown, as the plaintiff declares, “between the fender and the end of the car, struck in the back and pitched forward.”

The testimony introduced to contradict this is negative in character. The train was in motion when the witness, Yarborough, assisted her from the step of the car, and it is probable that the car moved before he assisted Ser and inflicted the injury upon her. It is in evidence that she had received no fall and that she had been placed ¡in no situation to inflict an injury upon her before she entered defendant’s car. Immediately on reaching the ground she complained of being hurt. She was examined the next day by a physician and numerous bruises were found upon her body and located in such a manner as to be inflicted in the manner which the husband'describes. It would be a- very violent presumption to hold that these bruises were self-inflicted for the purpose of this suit, or to hold that her exclamation of being hurt was made for the same purpose. The law as announced, in the case of Adam vs. Railroad, decided at this term, is applicable to this, and it will be unnecessary to again go over the same ground.

We have some difficulty in fixing the amount of damage inflicted upon plaintiff’s wife. The evidence as to the results of the injury is unsatisfactory to us. We are unable to say whether the disease with which defendant is suffering is in consequence of this injury. We can go no further than to say that she was bruised and undoubtedly temporarily suffered.

The amount of damages allowed by the jury is excessive.

We can scarcely distinguish this case from the case of Odom vs. Railroad, either in the facts or the injury inflicted upon plaintiff’s wife.

We will therefore fix the damages at $500.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended so as to reduce the amount of damages to the sum of five hundred dollars ($500). In other respects it is affirmed; plaintiff to pay costs of appeal.


text:
    No. 356.
    The State ex rel. Phanor Breazeale, District Attorney, vs. Clifton Cannon, Sheriff.
    In a suit under Art. 171 of the Constitution to have a sheriff declared ineligible because he is a defaulter, the quietus of the auditor, although given after his election, the receipts of the parish treasurer and receipts of the auditor, the manner in which the police jury makes its settlement with the tax collectors, the amount pa d the parish treasurer to show that this was only a partial payment, parol and written testimony as to the fact of defalcation are all admissible in evidence.
    The suit to remove an ineligible officer for defalcation is conducted under Art. 171, and not Arts. 196, 201.
    In a suit of this kind the State does not have to give bond for an appeal.
    APPEAL from the Tenth District Court, Parish of Avoyelles. Coco, J.

      Phanor Breazeale for Plaintiff and Appellant.

      Thomas Overton, John O. Wiekliffe and Joffrion & Joffrion for Defendant and Appellee.
   The opinion of the court was delivered by

McEnery, J.


text:
    No. 374.
    Mrs. P. P. George et al. vs. J. S. Young, Sheriff and Tax Collector.
    The produce taxes authorized by Act 74 of 1892 are local assessments and enfranchised from the limitations of the Constitution.
    The legislative judgment embodied in the act creating the “Caddo Levee District,” within defined lines, includes the persons and property which are benefited by the improvement proposed.
    It should not be reversed by judicial interposition unless error is evident.
    The exact proportion of benefits can not be established in levying “ local assessments ” for public improvement.
    The levee tax is due, although the benefit from the line of levees is not immediate and direct.
    It is not manifest that the plaintiffs are not benefited and that they can not at any time be brought within the immediate benefits 'intended in establishing the Caddo Levee District.
    APPEAL from the First District Court, Parish of Caddo. Taylor, J.

      Bell & Randolph for Plaintiffs and Appellees:
    1. The specific acreage and produce taxes authorized by Act No. 74 of 1892 are not taxes in the strict legal sense, but “local assessments” or “forced contributions,” requiring no constitutional warrant, but rest for their validity on an inherent function of government, are enfranchised from the restraints of the Constitution, but are subjected to the limitation of commensurate benefit to the particularized property on which said assessment or contribution is imposed. 48 An. 15 and 337.
    2. The ad valorem or 10-mill tax provided for in said Act No. 74, while it may be a tax eo nomine, imposed by virtue of Art. 214 of the Constitution, is not enfranchised from Constitution’s restraints, and a fortiori, is not relieved from the primordial restriction, underlying all exactions by virtue of the taxing power “ taxation and protection are reciprocal.”
    3. As a corollary to the foregoing, any district tax, assessment or forced contribution imposed by a board of íevee commissioners, for the purpose of building levees to protect the property of said district from overflow, on lands that by the location and construction of the levee are thrown “outside the breastworks,” and between the levee and a navigable stream, is illegal and ultra the power qf the levee commissioners, for the reason that said lands can not possibly receive any benefit, but positive injury from levee constructed or proposed.
    4. When a board of levee commissioners so locate and construct a levee on a navigable stream as to leave lands in front of the levee so constructed and between it and said navigable stream, it excludes said lands from its taxing district, inasmuch as the levees thus established, according to law, become the banks of said navigable stream, and the land thus thrown out becomes a part . -of said banks, or the bed, of the river, the use of which is in the public, and not intended to be protected from overflow. O. 0., Art. 457; Henderson vs. Mayer, 8 La. 657.

      Wise & Herndon, Attorneys for the Caddo Levee Board, for Defendant and Appellant. _
   The opinion of the court was delivered by

Breaux, J.

The plaintiffs and appellees are owners of lands situated within the limits of the “ Caddo Levee District;” that district-embraces all that portion of the land subject to overflow in the parish of Caddo, within stated boundaries. The provisions of the act creating the district are similar to the other legislative acts creating levee districts for the protection of lands and property from destruction or damage by flood.

Lands and other property in the district are subject to taxation, local assessment and forced contribution, to raise fund for the purpose of the act.

The plaintiffs claim exemption from the levee taxes sought to be collected under the terms of the act, and assign for reason that their-lands are left out and are not protected by levees; that they receive no possible benefit, but positive injury, and that any tax, contribution or assessment imposed and levied are illegal and not within the powers of the levee commissioners.

They interpose objection to the assessment imposed under Sec. 6-of the act, and to the special assessment under Sec. 7.

The evidence shows that the levees at this time afford no protection to plaintiff’s lands; that they are between the levee and the-natural banks of the river; that they derive no benefit from the location and construction of the levees, but on the contrary are damaged ; that they are more exposed to overflow than prior to the construction of the levee built by the State, being part of the system of State levees in the parish of Caddo as located by State Engineers.

Adjudications upon the subject of local taxation for local improvement have been frequent.

As early as the ease of Yeatman vs. Crandall, 11 An. 220 — not the-first adjudication upon the subject — it was decided that the Legislature might lawfully erect any portion of the State it saw fit into a district for special local improvement and assess the cost exclusively upon the district.

One of the justices in that case yielded his opinion expressed in. several dissents and concurred with the court in holding that the-article in question and similar articles under the Constitution pre■ceding, were not intended to apply to municipal or local taxation for improvements.

In the present decade also a number of adjudications have been made. In the last decided case there was an additional ground which is stated as follows:

“That the particular land of the plaintiff is subject to overflow, and is not protected by the levees built or proposed to be built; that it requires no such protection and can derive no possible benefit or advantage from the levees, and that, therefore, the assessments are a taxing of private property for public purposes without compensation.”

Passing upon the question, the court says that it is only where the assessment is manifestly unjust and oppressive that a court would be justified in overruling the legislative.judgment.

The Legislature necessarily has a large discretion on this subject.

In carrying out this scheme of leveeing it has defined the limits by following certain lines of lands subject to overflow.

It was not possible in defining these limits to consult personal interests or to except those lands not susceptible of receiving immediate benefit.

These acts creating levee districts embrace entire areas; if exceptions were made it would probably defeat the purpose in adopting the law.

Approximate or even remote equality would be an impossibility.

Certain lands must, in the nature of things, receive much greater benefit than others.

The exemption of certain lands from the operations of the law would defeat the legislative intent.

Judicial interposition becomes delicate and exceedingly difficult.

To interpose, it must be made manifest that the property is permanently and intentionally excluded from'all possible benefits.

We quote from Cooley on Constitutional Limitations, p. 509:

“ In many other cases, besides, the construction, improvement and repair of streets may, in special taxing districts, be created with a view to local improvements. The eases of drains to relieve swamps, marshes and other lowlands of their stagnant water, and of levees to prevent being overflowed by rivers, will at once suggest themselves. In providing for such cases, however, the Legislature exercises another power besides the power of taxation. On the theory that the drainage is for the sole purpose of benefiting the lands of individuals, it might be difficult to defend such legislation. But if the stagnant water comes to threaten disease it may be a nuisance, which, under its power oi police, the State would have authority to abate.”

The lands are included within the limits of the district.

The benefits of the levee system it is not the legislative intent to limit to particular lines.

If the lands adjacent are overflowed and uninhabitable, those of plaintiff’s must necessarily be valueless.

These considerations governed heretofore in a well considered case by a full bench.

The organ of the court in the case was the organ of the court in the first case decided under the present Constitution, i. e., - vs. Tax Collector, 39 An. 455.

After a number of intervening years the first decision was unanimously affirmed.

In the last, the Minor case (43 An. 337), the question of the extent of the interest was involved.

The doctrines laid down in that casé apply to the case at bar.

Public necessity demanded the adoption of a measure as a protection from overflow.

The taxes imposed and collected under, the measure adopted are not expended for the good of the few. It contributes to a system in which the whole State is interested.

Without levee districts and levee protection a large area of land would be uninhabitable.

The value of all lands within these districts would amount to little, if anything, whether within the limit of immediate protection or beyond.

In the general system of levees every land owner has an appreciable interest.

Plaintiffs in injunction also urge in their defence against the tax that thé Board of Levee Commissioners have located and constructed a levee on a navigable stream (so as to leave lands in front of the levee so constructed and between it and the navigable stream), it excludes these lands from the taxing district; that they become the banks, of which the lands thrown out become a part, the use of which is in the public, and not intended to be protected from overflow.

They refer to Art. 457, 0.0.

These lands are subject to a public servitude, which is well defined..

The ownership remains to the owner of the lands, and extends to the borders of the water.

They exercise all the rights of owners over the “ littoral” except those specially reserved in public interest.

The use in the public does not change the title, and render them, less subject to taxation.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed.

It is further ordered, adjudged and decreed that plaintiffs’ demand be rejected and dismissed; that their writ of injunction be dissolved and annulled; that plaintiffs pay the costs of both courts.