author: Monroe, J.

text:
    No. 13,490.
    State ex rel. City of New Orleans vs. Judge of Division “B”, Civil District Court for the Parish of Orleans.
    Syllabus.
    1. The Constitution confers upon the Supreme Court the control and general supervision of ail inferior courts, and, for the purpose of such jurisdiction, authorizes it to mate use of the writs of certiorari> mandamus, prohibition and quo warranto, and other remedial writs, and the functions of the writs mentioned are thereby broadened by the authority of the fundamental law in order that they may subserve the uses to which they are thus assigned.

      2. Where a defendant in injunction applies for the dissolution of the writ, on furnishing bond, and his application is denied, and it appears to this court, upon an application for a mandamus, to compel the court a Qua to grant the same, that no injury will result to the plaintiff in injunction by the dissolution thereof, and that irreparable injury may result to the defendant from its maintenance, and it further appears that the remedy by appeal will be of no avail, and that the relator will, otherwise, be without remedy, the mandamus will be issued.
    3. Where the government of the city of New Orleans is arrested in the discharge of its functions, by an injunction issued at the instance or a tax-payer, who alleges no threatened injury personal to himself, and it appears that the particular act injoined, before becoming binding, must be the subject of subsequent legislative and ex^cjjti-ve action on the part of the officers of the city, and that no injury will result from the dissolution of the injunction, as on bond, the injunction ought to be dissolved, as on bond, upon the application of the city.
    Q N APPLICATION for a Writ of Mandamus.

      Samuel L. Gilmore, City Attorney, (Ilarry H. Hall of Counsel), for Relator.
    Respondent Judge pro se.

      {Dinkelspiel & Hart of .Counsel.)
   The opinion of 'the court was delivered by

Monroe, J.

This court being of opinion that The case presented is one in which the dissolution of the injunction as prayed for by relator will work no irreparable injury to the plaintiffs in injunction, and considering that the discretion vested in the legislative departmenlfc of the city government should not be interfered with by the courts save in clear cases, and after hearing and satisfactory proof of abuse of such discretion, unless it is made to appear that immediate injury will otherwise result to the party complaining; and further consideration that the application in this case was made to restrain the sale of a franchise under the authority of the city government, after the same had been advertised for the greater part of the ninety days required, and at so late a period as to preclude a final hearing upon the merits before the day fixed for said sale, thus giving to the preliminary writ the effect of defeating said sale; and further considering that the rights of all parties are fully preserved with reference to the merits of the ease; and for further reasons which the court reserves the right to file,

It is ordered, adjudged and decreed that the preliminary writ of mandamus herein issued be now made peremptory, and accordingly that the respondent Judge be commanded to permit the city of New Orleans to dissolve the preliminary injunction herein granted by him in the manner as prayed for by said city.

This is-an application for a writ of mandamus, directing the judge a quo to permit the city of New Orleans to dissolve, as on bond, a preliminary injunction, restraining the sale of a certain street railroad franchise.

The respondent, for answer, says that he refused to dissolve the injunction, after hearing the parties, and in the exercise of a discretion vested in him by law, which discretion, as he apprehends, is not subject to review by a writ of mandamus.

There is no doubt that the more common, and the preferable method of bringing up questions of this kind is by appeal. But it is equally unquestionable that, where there is no remedy by appeal, or where an appeal will not afford adequate relief, or meet the ends of justice, the power exists in this court, in the exercise of the supervisory jurisdiction conferred upon it by the Constitution, to interpose its authority by means of some remedial writ or order.

It was with the view that the broadest latitude should be allowed in ■this respect, and that no case, and no litigant, should be beyond the reach of its protection, that the Constitution of 1879 conferred upon the Supreme Court, in addition to its appellate jurisdiction, “control and general supervision over all inferior courts”; and, for the purposes of such control and general supervision, authorized it “to issue writs of certiorari, prohibition, mandamus, quo warranto, and other remedial writs”; and that the present Constitution, adopted after an experience of eighteen years under the Constitution just referred to, confers the same authority, in the same language, and makes the grant more effective by authorizing, not only the court, but “any justice thereof” to issue -the writs necessary to afford relief, and especially authorizes the review of the decisions of the courts of appeal “by certiorari or othenvise”.

If, therefore, a litigant is aggrieved by the action of any inferior tribunal, and no other adequate remedy is provided by law, he is entitled fto invoke the authority thus vested, in this court for his relief. If his case can be brought here by appeal, then, ordinarily, he should avail himself of that remedy. But if the particular remedy thus provided should be inadequate and should' afford no relief, with respect to his grievance, he is entitled to a remedy in some other form, since the power of this count is not restricted to granting relief in cases which may be brought before it by appeal, but extends to all cases cognizable by the inferior courts of this State; and the ease of a litigant, who is entitled to an appeal, but who can derive no benefit therefrom, does noit differ in this respect from that of one who has no right of appeal, the question to be determined being, whether the grievance complained of, considered with reference to its character, and with reference to the existence or non-existence of other adequate remedies,’ is such as to justify the interposition of the authority of this court.

The main case, out of which the present controversy arises, is now pending, and untried in the Civil District Court, and is appealable, on its merits, to this court. .

The particular order, or judgment, which is the immediate subject of complaint; that is to say the refusal of the judge a quo to dissolve, as on bond, the pending injunction, upon the application of the city of New Orleans, defendant therein, being in the nature of an interlocutory decree, is subject, under our jurisprudence, to appeal, in the event of its being found that it may work an irreparable injury. C. P., 566. State ex rel. Bernard Barthe vs. Judge, 28th Ann., 903; State ex rel. Doullut vs. Judge, 29th Ann., 867.

But the circumstances of the ease are such that the appeal, if allowed, would afford no relief quoad the particular injury complained of. Those circumstances, as disclosed by the pleadings and papers in the record, are as follows, to-wit:

Upon December 26th, 1899, the legislative department of the. city of New Orleans, adopted an drdinanee, which was duly signed by the Mayor upon the following day, providing .for the sale, after ninety days’ advertisement, of a certain street railroad franchise; and the sale was accordingly advertised, Dec. 29,1899, and other days succeeding, to take place March 29, 1900. Upon March 16th, Peter Johnson and E. J. Dare, claiming to be citizens of New Orleans and owners of property assessed at more than two thousand dollars, to each of them, and for that reason interested in the proper administration of the affairs of the city, filed a petition in the Civil District Court, praying that the ordinance authorizing the sale of said franchise, as proposed, be decreed null, and that the sale be perpetually enjoined. A rule nisi was served on the city, and the matter of the issuance of the preliminary injunction, prayed for in the petition, was heard on ¡the 21st, and determined on the 23rd of March, when the rule was made absolute, and the injunction issued on a bond of twenty-five hundred dollars.

We are not so much concerned, at this time, with the allegations of the petition upon which the order for the injunction was made, and it might be conceded for the purposes of the question which we are called upon to decide, that, if sustained, after a trial upon the merits, they or some of them, may be sufficient to entitle the plaintiffs to a judgment annulling the ordinance which is the subject of attack, and annulling any sale made under its authority, though upon this point we reserve our opinion. It suffices for the present to say that it was made to appear upon the trial of the rule nisi that the ordinance received the votes of all the members of the council except three; of whom, two were absent, and one was excused from voting. And it was, thereafter, duly signed by the Mayor.

It also appears that, by the terms of said ordinance, the right is reserved to the council to reject any and all bids, and that in the event of the acceptance of any bid, the city and ¡the successful bidder are, fifteen days thereafter, to enter into a contract, before a notary public, declaring and defining their respective rights and obligations. There is, therefore, a locus poeneteniiae provided for the city, in case the franchise should be adjudicated under the advertisement, of which she could avail herself before becoming bound by such adjudication, and of which it would be equally practicable for the plaintiffs in injunction, or any other complaining citizens, to avail themselves, in order to defeat the consummation of what the plaintiffs allege to be an illegal and ultra vires proceeding.

The effect of the injunction, therefore, is to arrest the officers upon whom is imposed the responsibility of administering the government of the city-of New Orleans, in both its legislative and executive departments, in the discharge of their functions, whilst dealing with a particular subject within the scope of the authority conferred upon them and before any such definite action is imminent as could, of itself, work injury to the public at large, or to any citizen. For, as we have seen, the adjudication can have no effect until ratified by the council, and the ratification must be by means of an ordinance, the question of the adoption of which is subject to the exercise of legislative discretion; and not until fifteen days after the adoption of said ordinance, which may never be adopted, is there any possibility of the city’s entering into a contract whereby she will be bound by said adjudication. It is apparent, also, that no rights acquired by the plaintiffs by reason of the institution of their suit and the issuance of their injunction can be affected by the dissolution of said injunction, as on bond, at the instance of the city. The case remains ¡to be tried on its merits, and the judgment to be rendered will be as effective, so far as the plaintiffs are concerned, whether the injunction be released, as on bond, or kept in force. The dissolution could, therefore, work no injury to them, either irreparable or otherwise, whilst its maintenance, having the effect of preventing the offering of the franchise as contemplated, defeats the deliberately considered plans of the city government, and may work injury not only serious, but, perhaps, irreparable in the sense in which that word has, not unfrequently, been used in our jurisprudence.

Upon the one hand, then, the plaintiffs in injunction cannot he injured by its dissolution in the manner proposed, whilst the city'of New Orleans, defendant in injunction, may be seriously injured by the refusal of its application for dissolution, as on bond. We are of opinion, under these circumstances, that the city has a substantial grievance; and Ithe question is, has she any remedy ? It will be remembered that the ninety days’ advertisement of ¡the franchise was begun upon December 29, 1899, and that the injunction was applied for March 16,1900, and was issued upon the 23rd of the same month— only six days before that fixed for the sale. When, therefore, the application to dissolve, as on bond, was refused, the remedy by appeal was not available, because the appeal would have left the injunction in force, and the matter could not have been heard or determined, in this court, before the day fixed for the sale; and hence, the sale could not take place, as advertised. If ¡the injunction had issued within a reasonable time after the advertisement first appeared, the matter might, perhaps, have been determined, both in the District Court and here, in time ¡to have relieved the situation. But the plaintiffs in injunction delayed their application until, practically, the last moment; and, because it was then too late for the city to invoke the remedy supposed to be applicable in such cases, it is said she is without remedy. This is to say, not only that there is a wrong without a remedy, but that the very broad grant of authority conferred upon this court, by the fundamental law, with respect to the “control and general supervision over all inferior courts”, is still inadequate for the purposes of what appears to be a very simple case.

The difficulty, it is said, lies in the fact that the writ of mandamus will only issue to direct a judge to perform some purely ministerial act, and will not lie to compel him to do a thing, the doing of which is within his discretion. This is undeniably true as a general proposition, but the functions of that writ have been considerably broadened by ithe terms in which the supervisory jurisdiction mentioned above has been conferred upon this court, since the language of the Constitution is, that in the exercise, and for the purposes, of that jurisdiction, we may issue “writs of certiorari, prohibition, mandarnus, quo warranto, and other remedial writs •” whereas, referring to the writs of mandamus and prohibition, as defined in the Code of Practice, we find that they were intended only for the use of a court, exercising appellate jurisdiction over an inferior court (O. P., 839, 946). The authority of the Constitution, then, being superior to that of the Code of Practice, the use in this court of the writs mentioned is no longer confined to cases as to which this court has only appellate jurisdiction, but is extended to all eases where they may be needed for the purposes contemplated by the Constitution.

The Code of Practice expresses the generally accepted idea of .the functions of the writ of mandamus, and the rule therein contained, that its use, as between courts, is confined to those exercising appellate jurisdiction, is as commonly received as the rule that the writ does not lie to control the discretion of a judge. And yet, acting under the authority of the Constitution, its use has been extended in Ithe one respect, by this court, and it would be difficult to find any sound reason why it should not be extended in the other. It is quite evident, that, if it becomes a question whether the court will exercise the jurisdiction conferred upon it, or decline to do so because the writ of mandamus may not originally have been intended for such use, we ought to follow the Constitution rather than the text writers, or even cases which have been decided by us, and in which this view of the matter was not considered.

In dealing with the subject of ithe exercise of its supervisory jurisdiction, and of the manner of its exercise, this court said, in State ex rel. Saizan vs. Judge, 48th Ann., 1501:

“In the exercise of its supervisory jurisdiction, the Supreme Court is not rigidly tied down to form; when the facts of a given case, being recited, present a case for relief under its supervisory jurisdiction, and the prayer is for such orders and decrees as those facts will justify, and for general relief, the Supreme Court will not remit the relator -to new, expensive, unnecessary, .and sometimes worthless remedies, simply by reason of a mistake, in the writ asked for.”

In the instant case there was absolutely no other remedy to which the relator could have been remitted; as the matter was brought to the attention of the court so late, that when it was able to take action, the moment for the contemplated sale had arrived.

It is not necessary that we should make any radical departure from established jurisprudence for the purposes of the question now under consideration. It is well settled that, when an injunction is dissolved on bond, and the plaintiff is refused an appeal from the order granting ithe dissolution, a mandamus will lie to compel the granting of the appeal; provided this court reaches the conclusion that such dissolution may work an irreparable injury. In order to reach this conclusion, however, it is necessary to review and reverse conclusions reached by the trial judge, who refuses the appeal upon the ground that the plaintiff will sustain no irreparable injury by such refusal. When, therefore, the mandamus issues, and he is ordered to grant the appeal, it may be said that it is, in effect, controlling his judgment, by mandamus, in a matter with respect to which he has exercised a discretion vested in him by law. The right of appeal is, in such a case, not absolute, but is granted, or refused, by the judge, as he may believe that the resulting injury will be irreparable or otherwise.

If, upon the other hand, iit be true, that a litigant is entitled to an appeal from any interlocutory order which may cause him irreparable injury, then it follows that if the defendant in injunction is refused an order to bond, and such refusal would cause him irreparable injury, he is as much entitled to an appeal, as is ,the plaintiff, from an order dissolving an injunct'on which he has obtained. But the appeal will do the defendant, in such a case, no good, since the injunction which inflicts the injury is not thereby suspended. And if he can obtain no other remedy, he must do without, although his opponent in the case would have a complete and adequate remedy, if similarly threatened.

A further question which is entitled to consideration is this: The Code of Practice provides a remedy by appeal for a case of threatened irreparable injury, and it has been left to the courts to determine when a- injury may be irreparable; this court having had occasion not unfrequently, to differ with the lower courts upon that subject. In White and Trudeau vs. Cazenave, 14 Ann., 57, it was held that the question must be determined “by the facts and circumstances of each case;” and, for the purposes of the case before it, the court said:

“The Article 566 of the Code of Practice allows an appeal where an order may work an irreparable injury; and it appears to us that an order which necessarily compels a party, in order to protect his rights, to institute another suit for the same cause of action is covered by this article.”

See also, Eltringham vs. Clark and Pringle, 49th Ann., 340; De la Croix vs. Villere, 11 Ann., 39.

From this point of view, it may well be said that, where affairs of great public magnitude and interest, which are being acted upon by the constituted governmental authority of a large city, are tied up, at the instance of a single citizen, or two citizens, claiming to act in the interest of the public at large, and by virtue, merely, of their ownership of property assessed at $2,000, the resulting injury may be irreparable.

But, even suposing that it is not absolutely irreparable, or not irreparable in the sense in which that word is used in the Code of Practice,' but that, nevertheless, it is serious. That it may turn out that the proceeding is an unwarrantable interference with public officers in the discharge of functions assigned to them by law and involving the exercise of legislative discretion over which the courts luxe no control. If, in such a ease, there is no remedy by appeal, ought not a remedy to be found in the grant of authority conferred upoi this court; or are the operations-of the city government to be stop! ed, irremediably, by any citizen who may differ with the city oihejals as to the expediency of an ordinance, or may make more serious charges against its action, without inquiry into the merits of <.h charges, or as to the responsibility of the citizens by whom they are made?

As has already been stated, this count has frequently held that a mandamus will lie to compel the granting of an appeal from an order dissolving an injunction on bond, and that, in such cases, it will look into the question of irreparable injury, and review the conclusions of the lower court thereon.

White and Trufant vs. Cazenave, 14 Ann., 57; State ex rel Dardenne vs. Judge, 28th Ann., 889; Beebe vs. Guinault, 29th Ann., 795.

“In State ex rel. Violett vs. Judge,” 46th Ann., 78, where the question was presented, it was said: “The fact stated by the judge, in his answer, that an order dissolving an injunction on bond is granted by a district judge in the exercise of a judicial discretion conferred on him by law, does not withdraw that order absolutely from being made the subject of review by this court.” * * * The plaintiff has the legal right to apply for a suspensive appeal from the order and on such an inquiry, (this court has necessarily to determine whether the judge’s discretion, which only extends, legally, to cases wherein the dissolution of the injunction would not work irreparable injury to the plaintiff, has been legally applied or not. If we find it has not, we grant relief, otherwise relator .takes nothing by his application to us; as has been said several times by this court, each case must stand 'or fall upon its own special circumtsance.”

In State ex rel. Lehmann vs. Judge, 46th Ann., 163, it is said in the syllabus:

“The powers of the Supreme Count, under Article 90 of the Constitution, are not confined to writs of certiorari, prohibition, mandamus, quo warranto, but extend to other remedial writs.”. And in the body of the opinion, we find the following:
“We think the rights of all parties are fairly guarded and protected iii this State under the discretionary powers of the district judges over' such questions, supplemented, as they are, by the supervisory control over inferior tribunals, which has been given to this court.”

In State ex rel. Oil Mill vs. Judge, 50 Ann., 766, this court said: “The whole issue before us on this application, is whether or not the conclusions of the district judge, that the act prohibited by the injunction which issued in this ease was not of a character to work irreparable injury to the plaintiffs at whose instance it was issued, and was, therefore, subject to be dissolved on bond, were well founded or not ? If they were, then his action in ordering the bonding of the injunction and in refusing to grant a suspensive appeal ¡therefrom must stand as against relators application.”

And in State ex rel. Moyse Bros. vs. Judge, 50th Ann., 492, where the District Court had issued a mandamus directing a justice of the peace to enjoin the consummation of a sale under execution, it was held that the proceeding was regular, and would not be interfered with.

In State ex rel. Murray vs. Judge, 86th Ann., 578, being an application for a mandamus to compel a District Court to grant an injunction, the judge a quo for answer and for cause why the writ should not issue, said:

“That he has declined the relief asked, after hearing the parties on a rule nisi; and that there is no suggestion in the petition that any process or writ has been applied for, or issued, by the defendants, for ¡the execution of the judgment, nor that they propose any action, except the general statement that they threatened to execute said judgment, without indication when it was to be done, or that any aation was contemplated except through the court; that if he has erred in the exercise of the discretion vested in him, his error can be revised on appeal only.”

Chief Justice Bermudez, as the organ of the court, referring to the Code of Practice, and disposing of the propositions presented by the return of the respondent judge, dealt with ¡the subject as follows:

“We find it distinctly stated that the object of the writ of mandamus is to prevent a denial of justice; thait the writ should therefore be issued when the law has assigned no relief by the ordinary means, and where justice and reason require that some mode should exist of redressing a wrong or an abuse of any nature whatever. It arises, says the Code, at the discretion of the court, even where a party has other means of relief, if the.slowness of ordinary legal forms is likely to produce such .delay that the administration of justice may suffer from it. In cases like the present one, in which an injunction was refused in limine, after hearing on a rule nisi, it has been held that an-appeal lies, but it has never been decided that such an appeal, even if allowed as a suspensive one, would operate as the desired injunction would have done, had it been granted. Indeed it is hard, not to say impossible, to conceive how a suspensive appeal from a decree refusing an injunction can produce the effect of preventing the act which the injunction sought would have prevented, had it been allowed. * * * So that, if there be a remedy it is not an adequate one, and if a party entitled to an injunction is refused the same, he remains with a right but without a remedy, at the mercy of a district judge, unless this court can interfere and relieve him from the effect of a denial of justice. Where a clear case for an injunction is presented, it is the duty of the judge to grant the relief, líe has, tiren, no more discretion to exorcise than when a seasonable apirlication is made and a proper bond tendered for an appeal, is an appealable case. In such a case, it is manifest that justice and reason require that some mode should exist of redressing at once the wrong or the abuse of power on the part of the district judge, even if there be other methods of relief, or the slowness of ordinary legal forms would produce such a delay that the administration of justice may suffer from it.
' And so, in State ex rel. Gaynor vs. Judge, 38th Ann., 923, Mr. Justice Watkins, being the organ of the court, refers to the writ of mandamus, as being a writ, the object of which is “to prevent a denial of justice * * * and should therefore be issued in all eases where the law has assigned no relief by the ordinary means, and where justice and reason require that some mode should exist of redressing a wrong, or an abuse of any nature whatsoever.”

And finally, in State ex rel. Lafitte vs. Judge, 51st Ann., 1768, being an application for a mandamus, to compel the respondent judge to grant an injunction, this court, referring to the ease of Bank vs. Webre, 44 Ann., 1083, and Chatard vs. City, 10 Ann., 752, said: “We affirm anew the doctrine of those decisions, it being always understood that the discretion 'so to be exercised by the lower judge is subject to review by this court in case of abuse of such discretion.” The whole question then resolves itself into this.. No one denies that this court may make orders and render decrees which will necessarily control the. discretion of the judges presiding in the inferior courts, but it is said that this can not be done by means of the writ of mandamus. Where, however, a ease is presented requiring the interposition of this court in the exercise of its power of control and general supervision, and no other adequate remedy suggests itself, the mandamus, as defined by our law, seems to be the appropriate writ to be used.

In the cases to which we have been referred; that of the Steamship and Lottery Company, in the 23rd Annual, was decided before the adoption of the Constitution of 1879; whilst in the others, in which it was held that a mandamus would not lie to compel the dissolution of an injunction on bond, it did not appear, as far as we can see, that the parties were left entirely without remedy, or that such serious consequences were possible, as in a case such as .this, where organized governmental authority is arrested in its action, with reference to a matter of public concern, which is still subject to legislative consideration and has not yet reached such definite shape as ito threaten injury to the individuals who complain, or to the public at large, whom they are undertaking to represent, and where the dissolution of the injunction can therefore work them no injury.

Blanchard, <7., dissents, filing written reasons.


source: Caselaw Access Project

author: Blanchard, J.

license: Public Domain

text:
    No. 13,140.
    Mrs. Selima Poche vs. New Orleans Home Investment Company, Limited. Southern Athletic Club, Intervenor and Third Opponent.
    Syllabus.
    1. A vendor can not maintain a suit in reconvention without having first tendered the return of the price. He can not retain the price and claim the restoration of the property. A party demanding the rescission of a contract must return or offer to return the consideration received by him.
    2. Where the Board of Directors of a corporation, after full knowledge of the facts of the sale having been communicated to it, agreed to receive payment of interest on the note it held representing part of the purchase price, and extended the note, it ratified the sale as made. Thereafter it was estopped to seek avoidance of the sale because the President of the corporation, in the terms thereof, exceeded his authority. *
    APPEAL from the Civil District Court, Parish of Orleans.— King, J.

      William J. Waguespach and John T. Whitaker for Plaintiff, Appellee.

      Ernest T. Florance for Defendant, Appellee.

      Parleerson & Tobin for Intervenor and Third Opponent, Appellant.
   The opinion of the court was delivered by

Blanchard, J.

The Southern Athletic Club owned certain squares of ground in the City of New Orleans. It instructed its president to dispose of the same by sale for $12,000 — $6,000 cash, balance payable in six months’ time. Ilis efforts to sell resulted in the execution of an act of sale of the property -to the Home Investment Company, Limited, for $12,000, represented by two notes, each for $6,000, drawn to the order of the purchaser and by it endorsed, payable at six and twelve months, with eight per cent, interest from their date, and secured by mortgage and vendor’s lien on the property sold.

Mrs. Selima Boche immediately bought the twelve months note, paying therefor $6,000, and the same passed into her possession.

This $6,000, together with the six months’ note, was handed by the notary to the president of the Athletic Club, who, in turn, delivered same to the Club, with a report of the transaction. It seems, however, the Club was not appraised at that time that the sale was an all-credit one — that there was another note out besides the one, due at six months, delivered to it.

The Club pledged the note and borrowed $4,500 upon it. This money, and the $6,000 in cash it received, it used in settlement of its debts.

When the six months note fell due, the maker could not pay it. The Club’s president at that time, successor to the one who had effected the sale, was informed by the maker of the existence of the other note secured by the same mortgage. He examined the act of sale and found this was so. He reported the situation to the Club’s Board of Directors. This was the first information given the Club of the second outstanding note.

The Club did not repudiate the sale and demand the return of the property, making tender of the money and note it had received. On the contrary, it agreed to receive payment -of interest due upon the note and to extend the latter. This was done.

Again it fell due and was not paid, and a second time interest was collected on it by the Club and the note again extended. These payments of interest were made by the Home Investment Company and the extension granted to it.

When the Company found it could not meet the note, it offered through its officials-to cancel the sale and restore the property. This offer was made to the Club’s president. It was not accepted. Instead, the' Club accepted payment of the interest due -on the note it held and extended the same. It did this with full knowledge -of the terms of the act of sale.

When the twelve months note held by Mrs. Poche matured, it was not paid.

Whereupon, she proceeded via exeeutiva to foreclose the mortgage. The property was seized, advertised for sale and sold -at public outcry, without benefit of -appraisement in accordance with the terms of the mortgage.

It was adjudicated to Mrs. Poche, as the highest bidder, for the sum -of $3,000. But before final act of sale conveying the property to her could be executed by the sheriff, the Southern Athletic, Club appeared in the case by third opposition and arrested further proceedings by injunction.

In its petition the Club sets up that the act of sale made by its president in March, 1896, to the Home Investment Company, Limited, was null and void, because its president exceeded ids authority in the making of the same, and his act was thus ultra vires and not binding upon -it.

The particular in which it is represented the president exceeded his authority was in the matter of the terms of the sale; that whereas he had been authorized to sell the property for $12,000, one-half cash, the remainder on six months’ time, he had sold it for $12,000 on terms of six and twelve months, represented by two notes of $6,000 each.

It is averred that the actual terms of the sale were not known to the Club, nor communicated to'it; that, on the contrary, the information it had received was that the sale had been made for $6,000 cash and one note of $6,000 due at six months secured by mortgage and vendor’s lien.

It is set forth that Mrs. Poche knew, at the time of the sale, its terms were not in accord with che instructions given the president of the Club, and it is charged that she, herself, was in truth and fact, the true purchaser of the property, and that the Home Investment Company was merely an interposed party. ■

It is alleged that a sale of the property in accordance with the terms which the Club had authorized would have been an advantageous one to the Club, but that the sale actually consummated causes the Club great loss and damage.

This results from the circumstance that the Club is made to appear as transferror to Mrs. Poche, for value before maturity, of one of the notes, and thus becomes postponed to her in right of payment out of the proceeds of the property.

It is further set up that the time at which the property was forced upon the market meant its sacrifice, and the whole proceeding was, in effect, a scheme concocted between Mrs. Poche and the Home Investment Company to practically confiscate the property, to the great loss of the Olub, but to the profit and advantage of herself and the Investment Company.

The prayer of the petition is that the sheriff be restrained from making title to Mrs. Poche, that the sale of March 27, 1896, to the Home Investment Company be annulled and that the ownership of the property in question be decreed to be in the. Southern Athletic Club.

To this petition Mrs. Poche tendered an exception of no cause of action, and as a further exception pleaded estoppel in this, to-wit: That the plaintiff (the Athletic Club) has held since March, 1896, continuously in its possession as owner thereof, one of the notes given for the purchase price of the property; that when the note matured it accepted payment of interest and renewed same; that when it matured a second time it again accepted payment of interest and again renewed the note; and that when these successive renewals were granted, the Club was in full information of the facts as to the terms of the sale.

The Home Investment Company pleaded, as peremptory exception of no cause of action shown, that plaintiff does not allege it has returned the price of the sale, or offered so to do, but, on the contrary, retains the purchase price, and that until the Club shall have alleged such return or tender of the price, none of the issues raised in its petition of third opposition can be enquired into.

The trial court ordered the exceptions referred to the merits, and, later, answers were filed, Mrs. Poche likewise pleading want of tender of the purchase price.

Judgment was adverse to the third opponent and this appeal followed.

This judgment was correct and must be affirmed. Piad the evidence established that Mrs. Poche was the real purchaser of the Club property at the sale consummated in March, 1896, a different conclusion might have been reached.

Rut it is, we think, satisfactorily showm she was not only not the purchaser, but that she had nothing to do wdth the sale -and purchase beyond supplying the money to take up the second of the two notes. This she did merely as an investment. She took the long term note because it was the better of the two as an investment.

Her son, Joseph Poche, who figured as the party who negotiated the sale between the Athletic Club and the Investment Company, was not her agent and did not act for her.

The petition of third opposition' is really a suit in revendioation. Before bringing the suit the plaintiff did not return the price of the sale which it had received. Neither did it offer to do so. Nor has it done so since.

The proposition is well settled that a-vendor can not maintain a suit in revendioation without having first tendered the return of the price. líe can not retain the price and claim the restoration of the property which was sold. A party demanding the rescission of a contract must return or offer to return the consideration received by -him.

George vs. Knox, 23 La. Ann. 355; Heirs of Castle vs. Floyd, 38 La. Ann. 583; Weldon vs. City Bank, 2 R. 180; Latham vs. Hickey, 21 La. Ann. 426; Lee vs. Taylor, 21 La. Ann. 514; Bend. vs. Cash, 32 La. Ann. 121; Davidson vs. Davidson, 28 La. Ann. 269; Dupleix vs. Dupleix, 26 La. Ann. 218.

“This right of withdrawal or rescission * * * is predicated upon an obligation upon the rescinding party to restore what he has received under the ultra vires contract, and to put tbe other party in statu quo, as nearly as may be.”

Thompson’s Law of Corporations, Vol. 5, §6003.

But, further, when the Athletic Club, after the full knowledge of the facts of the sale having been brought home to it, agreed to receive payment of interest on the note it held and extend that note, it ratified the sale as made. C. O. 2272; Bonneau vs. Poydras, 2. R. 2.

Thereafter it was estopped to seek avoidance of the sale because its president, in the terms thereof, exceeded his authority.

Thompson’s law of Cor., Vol. 14, §§5298, 5299, 5300, 5301, 5303, 5304, 5313.

If the Club desired or intended to repudiate the sale of its property as thus made, it should have announced its purpose so to do and taken action to that end within a reasonable time after the facts of the case were made known to its Board of Directors.

See 35 La. Ann. 1161 ; 24 La. Ann. 460; 18 La. Ann. 517; 36 La. Ann. 621; 16 La. 51; 11 La. 286.

It is, therefore, ordered and decreed that the judgment appealed from be affirmed at the costs of appellant.


author: Breaux, J.

text:
    No. 13,350.
    Board of Commissioners for the Buras Levee District vs. Joseph Mialegvich.
    Syllabus.
    1. The title of the act is sufficiently comprehensive to indicate its purpose, and the act looks to the one purpose of protecting the levee district from overflow.
    2. The strips of land along the Mississippi river, near its mouth, including the submerged lands on either side within the jurisdiction of the State, are alluvial lands, subject to overflow.
    3. The oyster beds on the submerged lands are subject to overflow by waters of the Mississippi, and for that reason are within the terms of the statute authorizing the imposition of taxes on the produce oí lands subject to overflow.
    4. Oysters are benefitted by the levees, as they would be killed by the fresh water in ease of crevasses, and, therefore, the “special assessment” to' main- , tain the levee system, in the Buras Levee District, is legal.

      5. While oysters are not the produce of lands, they are planted on these lands subject to overflow. These lands are the property of the State, and the State has the power to authorize a special assessment on tile produce of her land, without regard as to whether the property assessed is produced Dy cultivation of the land itself, or by malting beds thereon in which oysters are planted and grown.
    6. The statute must be enforced without imposing “special assessment” twice on the same property for the same purpose.
    APPEAL from the Twenty-Second Judicial District, Parish of Plaquemines. — Single, J.

      John Dymond, Jr., for Plaintiff, Appellee.

      A. E. & O. 8. Livaudais for Defendant, Appellant.
   The opinion of the court was delivered by

Breaux, J.

This is an action brought in the name of the State to compel the defendant to pay a “local assessment” on oysters gathered by him within the limits of the Buras Levee District.

The defendant is engaged in the culture of oysters, and in carrying them by water from the Buras Levee District to the City of New Orleans, to be sold. The Levee Board of that district adopted a resolution levying a “local assessment” upon the oysters planted and gathered within the limits of the district. They base their authority so to do upon the laws of this State, and more particularly upon Section 10 of Statute 18, of 1894; Statute 65 of 1894 and Statute 80 of 1898.

The defendant charges that the resolution is illegal, discriminative, unjust, oppressive, and unconstitutional; that the laws in question, under which the Levee Board claim authority, in so far as they relate to “local assessments” on oysters, are unconstitutional, -as they are violative of Article 214 of the Constitution of 1879, and Article 239 of the Constitution of 1898. The “special assessment” imposed a “forced contribution” of twenty-five cents per bale of cotton, ten cents per barrel of sugar, seven and one-half cents per barrel of syrup, five cents per barrel of molasses, two and one-half cents per sack rough rice, one-half cent on each and every bushel of oysters and other esculents, and two and one-half cents- per barrel of oranges, produced in this district, upon lands subject to taxation under the provisions of the above acts. In 1898, under authority granted by Act 80, of 1898, Section 10, the said Board, by resolution, increased the local assessment on oysters to two and one-half cents per barrel of oysters gathered from the waters of the district.

It appears that some time after the “Buras Levee District” was organized, the taxpayers on the east bank of the Mississippi, in the Parish of Plaquemines, representing the territory on the opposite side of the river to the Buras Levee District, petitioned the Legislature toi organize their section into the Grand Prairie Levee District. Their petition, among other things, sets out that they are in need of levees for the protection of their oyster beds, that being their principal industry and one which was exposed to ruin by the crevasses. The Legislature, thus petitioned, organized the Grand Prairie Levee District, and authorized the levy of similar taxes to those levied by the Buras Levee Board, and the defendant calls attention to the following extract from the law: “Said produce, with the exception of oysters, being produced in said district upon lands subject to taxation under the provisions of this act.” (Italics ours).

The evidence of plaintiff consists of the petition to which we have just referred; of the’ testimony of witnesses, and a printed’ copy of a report on the oyster beds of Louisiana by the United States Fish Commission to which no objection was offered by the defendant. The oyster region is referred to in the Act 110 of 1892 as embracing the heads of the rivers, bayous, lakes, and inlets, bordering on the Gulf of Mexico, within the jurisdiction of the State. They are subject to lease, but not to sale, and a large portion is occupied under lease from the State to the lessees under the authority of the act just cited. The evidence shows that before the Buras Levee District was created there were many crevasses within its limits, and, in consequence, a great deal of loss was incurred, but since the creation of the “Levee Board,” the land owners have not suffered from crevasses and consequent overflows. It is also shown by the record that the assessments collected have been expended for building and repairing the levees. One of the witnesses, who is president of the police jury, said, among other things, and he is not contradicted: “I am sure if we have a crevasse in our district it would destroy the oyster industry in the district.” This witness also testified that the special assessment on oysters is lower than it is on the other products grown within the limits of the district. The raising of cattle, farming, and the oyster industry are the principal industries.

The judge of the District Court decided that the law authorizing the levy of “special assessment on oysters gathered from the waters of the Buras Levee District is not unconstitutional.”

From this judgment the defendant appeals.

Plaintiff and defendant join in asking that the questions presented, on appeal, be decided on the merits. From the foregoing it appears, as relates to the authority under which the assessment is claimed, that plaintiff’s claim is based on acts of the Legislature and ordinances of the Board of the “Buras Levee District.” At bar, the act of the Legislature was attacked chiefly on the ground that the title was not sufficiently indicative of the purpose of the law. We have not discovered that this attack is well founded. The title is quite lengthy and is comprehensive enough to cover the purpose of the law. The law and the title look to the one purpose, that of maintaining the levees of the district. The defendant also asserts that the lands in the district, upon which the oysters are grown, are not alluvial lands. The “Buras Levee District” is part of the delta of the Mississippi river. It is bounded in front by that stream and the strips of land on either side have but little depth, only about a mile in several places. • As relates to defendant’s denial, that the oyster beds are on alluvial lands, we can only say in answer; that the Mississippi is always given credit for having filled with its alluvion the estuary through which it flows in south Louisiana. Its currents, charged with sand, brought about the elevation of the land near the sea and near its mouth. The western profile of the alluvial region embraces the largest portion of the southern part of the State. The first lines of the alluvial region have been traced at some points as extending as far west as the mounds or remarkable elevations along the Vermillion Bay, viz.: Belle Isle; Cote Blanche; Grand Cote, or Weeks; Marsh, now Avery Island; and Orange, now Jefferson Island, and thereafter extending along the southern lines of the Cote Gelee hills to the Atehafalaya, and from there to the Mississippi river. We will not follow the lines on the opposite side of the Mississippi, although they are equally as well, if not better, defined on that side. It is true that the alluvial within the indicated limits is not the work of a single period, nor the effect of one cause. The sea may have contributed its share, as made to appear by the accumulation of white sands and shells in certain places. Small streams and dead plants have aided in the formation. The river, however, has always been considered the great and controlling agent before whose force the sea has always been forced to recede, and for that reason' the lands within these limits have always been declared to be alluvial. It follows that the delta proper and the “litoral” on the Gulf of Mexico are the work of the great Father of Waters, to whom the name of the Great Father of Alluvial has also been given. Within the limits of the oyster beds, near its mouth, there may be layers of white sands on the alluvial, brought there by the action of the sea water, but the great body of the land in which it lays is river alluvial and not marine alluvial. It was brought there by the currents of the river, and not by the action of the waves pf the sea.

Defendant’s next contention, in the order in which they are presented, is that if these lands are alluvial, they are not subject to overflow. The distinction which defendant invokes does not impress us as sufficiently marked to sustain his defense. The difference between lands within the alluvial region subject to overflow, and lands always submerged is not taken account of in legislating for the common interest of'both. The interests of their owners are equally subserved by the levees. It happens that the oysters on the submerged lands are as much protected by the levees as are the plants that are cultivated on lands protected from overflow by these levees. The law in this respect is literally complied with, for, without the levees, the oysters would be subject to overflow and destruction from the fresh water of the Mississippi. The lands and reefs, on which are the oyster beds, are subject to overflow, and are, therefore, within .the terms of Article 214 of the Constitution, authorizing a tax on lands within the alluvial portions of the State, subject to overflow. Thd defendant has failed to discover that the oysters are benefitted by the levees, and for that reason contends-that local assessment, which should be imposed only to the extent that the contributor of the tax is benefitted, is not legal. All the evidence shows that the oyster industry is benefitted by the levee system of the district. It is well known that they can not live in fresh water, and much less in water of the river which will mix with that of the sea in case of a crevasse. The oyster is a neat, clean, marine animal. The muddy residuent of the river water would smother and kill it in a short time. The course of the water, if there were crevasses, would be immediately across the strips of lands to the oyster beds, which it would completely destroy. The mixing of the waters of the. sea and those of the river has the effect of destroying oysters. It is evident from the above, we think, that the protection given to the oyster beds is no less than that given to agriculture and other industries in the district.

Another objection to the assessment is that oysters are not the produce of alluvial lands, and that if they are they are not the produce of lands which are subject to taxation, for the reason that they are cultivated on land belonging to the State. We may, without deep research, find marked analogy between the cultivation of ’the oyster and that of crops. Their beds are on submerged lands, and they require as much, or nearly as much, care and cultivation as crops. It is true that the fisherman need know nothing of the labors of the plow, and the cultivation of the ground, but his work is among the oyster beds laid very near the shore and his oysters, if not produced directly by the land, are very much aided by the favorable "situation in which they are placed, that is, in the territory protected by the levees, as before stated. We agree with counsel that they are not the produce of the land in the sense that plants are by it given life, but we are, as we take it, justified in holding that from the very fact that these lands are owned by the State, and as such, not subject to taxation, gives rise to the right specially to assess them. Being the property of the State, she may well impose the condition that those who occupy them shall pay an assessment tax for public improvement. The defendant is not in the position of a fisherman.who occupies and owns'land. He can not prevent the State from imposing such condition, in so far as he is concerned, and such assessment on her own lands, as may be deemed to the interest of all concerned.

By the way of objection to the demand made by plaintiff something was said about a dual assessment under the law and the ordinance.

Oysters are fished and gathered, at stated seasons, from the reefs on the gulf coast, and transferred by the oystermen to beds or parks upon which they grow to a large size and improve in flavor. The fisherman owes only one assessment, under the ordinance, wherever the oysters may be gathered or cultivated within the limits of the district. We understand that only one assessment is made, and, unquestionably, only- one assessment can be collected under the laws relating to it.

Defendant complains of the failure to observe the article of the Constitution regarding the limit of taxation. That objection has been passed upon and this court has held, in repeated decisions, that this limit is not to be considered as controlling in matter of special assessment for direct benefit conferred on property under the articles of the Constitution, cited supra.

The intention is to grant a new and additional power which, but for such grant, would have been prohibited by other articles of the Constitution.

The cultivation of the oyster is destined to become one of the most valuable industrial resources of the State, and to that end it must be subject to certain regulations; it must be protected and fostered. This can not be done without financial support. Taxation and special assessment having these ends in view are not to be declared unconstitutional or illegal, unless it is evident that the law-making power has not observed the constitutional 'limits, or that some illegality, or irregularity has arisen in enforcing the law. As we have'found neither to be the case here, it therefore only remains for us to affirm the judgment of the lower court.

For the reasons assigned the judgment of the lower court is affirmed.


text:
    No. 12,866.
    Mrs. Antoinette Thorman, Administratrix, vs. Theodore Broderick.
    Syllabus.
    1. The Supreme Court of the United States having affirmed the judgment of the Supreme Court of Wisconsin, effect must be given thereto.
    2. A person whose domicile was in Wisconsin died, leaving property there and here. There was a will in Wisconsin, which was probated and an executor appointed. Among his personal effects found in Wisconsin were two promissory notes executed by a party living in Louisiana and secured by mortgage on property here. The Wisconsin executor collected the notes, the maker thereof voluntarily paying same to him. But before their collection, a Louisiana administratrix of the dead man’s succession, appointed here where the succession had also been opened, brought suit on the notes though never in possession of the same. Held : The court of the testator’s domicile being seized of jurisdiction of his estate, real and personal, found there, the Wisconsin executor had the legal right to collect the notes and his acquittance therefor protects the debtor against the demand of the Louisiana administratrix.
    APPEAL from the Civil District Court, Parish of Orleans.— King, J.

      E. Howard McCaleb for Plaintiff, Appellee.
    Buck, Walshe & Buck and Dart & Kernan for Defendant, Appellant.
    Supplemental Opinion.
   The opinion of the court was delivered by

Blanchard, J.

The original opinion was handed down in June, 1899. See 51 La. Ann. 1747.

In February, 1900, the Supreme Court of the United States decided finally the cause pending before it on writ of error to the Supreme Court of Wisconsin, referred to in the opinion.

The cause, in the Supreme Court of the United States, had taken the title of “Antoinette Thorman, Plaintiff in Error, vs. Andrew J. Frame and Magdalena Fabacher and Joseph Fabacher, Minors, by D. S. Tullar, their Guardian ad litem,.'”

The judgment of the Wisconsin Supreme Court was affirmed.

A copy of the opinion and decree- of the Supreme Court of the United States having been filed here, the cause, -as pending before this court, was submitted for final determination.

The result of the litigation in the courts of the State of Wisconsin and in the Supreme Court of the United States is to establish judicially that Joseph Fabacher was at the time of his death, March 3, 1897, domiciled'in the County of Waukesha, State of Wisconsin; that being a resident thereof, he had the legal right, under the law of Wisconsin, to dispose by will of his property, real and personal, situated in that jurisdiction as he had done; and that the Court -of Wisconsin which admitted his will to probate and recognized and confirmed Andrew -I. Frame of that State as executor thereof, is seized of jurisdiction of the estate, real and personal, of the testator found there at the time of his death.

' Among- the effects constituting- his personal estate in Wisconsin at the time of his death, were- the two notes made the basis of plaintiff’s action herein.

It follows t-hat the Wisconsin executor had the legal right to collect, as he has done, the notes from, the defendant Broderick, and to give the latter full acquittance therefor.

This being so, it follows, further, that he can not be made to pay the notes a second time to the plaintiff herein, and that the latter has no cause of action against him thereon.

For these reasons, it is ordered, adjudged and decreed that the judgment appealed from be avoided and reversed, and'that plaintiff’s demand be rejected at -the costs of the appellee.


text:
    No. 13,351.
    Mrs. Florence Mendelsohn, Wife of Solomon Reinach, Authorized, Etc., vs. William G. Armstrong.
    Syllabus.
    1. Mere reference to a prior act in matter of description in a deed conveying property is. not necessarily notice of want of authority of the vendor, or of the vendor’s vendor, by whom the original deed was signed.
    2. Third persons are not bound by recitals in deeds which are not material to the matter in hand, and which are of no importance in passing a sale. The defect was not apparent, and could not have been ascertained by careful examination of the act under which the owner claimed ownership.
    3. The nullity was at best a relative nullity which was susceptible of ratification. A presumption of ratification results from silence and inaction during the time fixed for prescription. The rights of third persons can not be undone long after they have been acquired in good faith. The third person's have gone into possession of and improved the property, and have paid the taxes without objection from any one. Original owners wno, in the face of regularly recorded titles, some of them showing inventories made of the property and sales at public auction could not, after the lapse of nineteen years, set aside conveyance under which the property is now held in good faith.

      ^ PPEAL from the Civil District Court, Parish of Orleans — Ellis,

      Farrar & Lemle and D. J. Dowers for Plaintiff, Appellee.

      Johnston Armstrong for Defendant, Appellant.
   The opinion of the court was delivered by

Breaux, J.

This is an action brought by plaintiff against the defendant to compel him to accept the title which plaintiff tenders to him for his signature and acceptance. There is no disagreement -between the parties as to the facts. Only questions of law are before us for decision.

The record discloses the following state of facts. The appellant, Armstrong, who was defendant in the lower court, was a bidder at auction for the property in question to the amount of two thousand two hundred and fifty dollars. It was adjudicated to him at that price. The following is the- chain of title under which plaintiff claims. She bought the property from Eugene Gaudinse by notarial act. Her vendor, Gaudinse, bought it from E. A. Hubeau, as shown by notarial deed. The vendor Hubeau, the day before the sale to Eugene Gaudinse, had acquired the property from Joseph A. Gaudinse, so that Hubeau was the owner of the .property only one day. Joseph A. Gaudinse, when he sold to Hubeau, was owner of the property under a sale to him from Eugene Gaudinse, made in 1888. The latter bought the property at an auction sale of the succession of William J. Castell, in 1881. A counter letter was executed by James J. Woulfe in favor of William J. Castell, in 1882. There is also a sale from Mrs. Ellen Maguire to James J. Woulfe, passed before a notary public, in 1881. All the deeds and the counter letter were duly registered. The appellant, Armstrong, avers that the sale from Mrs. Ellen Maguire et al. to James J. Woulfe is defective for the reason that this latter read with the counter letter, discloses that Castell was a purchaser from himself, as agent, and that, in consequence, the sale was void; that on examination of the act of sale to him, it appears that the title of William J. Castell rests upon the counter letter executed by James J. Woulfe in favor of William J. Castell, dated in 1886, in which Woulfe declares that William J. Castell is the owner of the property as purchaser from Mary Maguire and Joseph Maguire by a pretended sale before Villere, notary, in June, 1881.

The defendant having refused to take title, this action was instituted. In the first deed attacked by plaintiff, dated June 30th, 1881, Oastell appears and discloses that as the agent and attorney in fact of Ellen Maguire and Joseph Maguire, as per power of attorney annexed to an act of sale to J. Mullan, passed before him on the 25th of June, 1881, he caused the property in question to be offered for sale at public .auction by Iloey, an auctioneer, and that it was regularly adjudicated to Woulfe for one hundred and twenty-five dollars. The counter letter proves that this Woulfe was an interposed person, and that Oastell was the purchaser under the former’s name. In the deed by Gabriel Villere, public administrator, to Eugene Gaudinse, it is declared that this officer sold this property in pursuance of an order of court duly given in matter of the succession of W. S. Oastell, and the' lots in question were acquired in the name of Woulfe from Ellen Maguire per act passed before Villere, notary, in June, 1881, but that, as appears by the counter letter before mentioned, it was really acquired for Oastell. The deed subsequent in date, under which Eugene Gaudinse sold this property to Joseph Gaudinse contains the usual warranty clause, and in subsequent sales no mention is made of the first deed which plaintiff attacks as illegal, as before mentioned. The judgment in the lower court was for plaintiff, from which the defendant appeals.

The good faith of Eugene Gaudinse is impugned, and it is earnestly argued by plaintiff’s counsel that he was aware of the act of Oastell, at whose succession sale the property'was sold to Gaudinse, for the reason that there is some reference in the deed to the prior title. This reference does not prove any wrong on the part of Oastell, as it could only have served to indicate that by consulting other prior deeds, years ago, he, Oastell, had done that which no faithful agent would do, that is, dispose of the property of his principal to his own interest. We do not think that the failure of the defendant to have discovered this unprincipled act should be held to conclude him, if it afterwards appears that he was in good faith in buying the property. In matter of these sales, the vendee who pays the price, goes into possession, improves the property and pays the taxes, is presumed to be in good faith until the contrary is shown. If there is nothing to show knowledge of a fact, not apparent, or which down right negligence alone could have overlooked, it should not be concluded that one was not sincere in his purchase or sought to take advantage. Fraud will not be presumed. O. C., 1848, 3481, 3482. The plaintiff was a third person'who dealt with the vendor on the faith of a recorded title. Regarding this recital, inserted in all probability by the officer for the purpose of identification, which is not notice of any particular act or fact, we think that jurisprudence has firmly settled that general terms in the deed are not necessarily binding, and that the terms of the deed cover that concerning which the parties wished to contract. Incidental declarations in the deed are not significant upon it as appears on the face of the papers. While the eonclusiveness of the former act, the effect of which the defendant seriously apprehends extends to every interest of the former vendor, Castell, it does not affect the interest of an innocent third person such as the defendant here or one of the authors of his title who bought more than ten years previous to the adjudication recently made to the defendant. It must be borne in mind that defendant is tendered a title different from that which Castell obtained by resorting to a public auction of the property.

We return to the consideration of the recital in the deed of Villere, public administrator, to Eugene Gaudinse, in 1887, chiefly to refer to, and to cite decisions in point. We have already said in substance, that we do not consider the recitals more than mere recitals of description, and on that subject we cite Hill vs. Spangenberg, 4th A., 555; New Orleans vs. Sheppard, 10 A., 268; Sanderson vs. Ralston, 20th A., 312; Heirs of Dohan vs. Murdock, 40th Ann., 376. In the decision cited first, the court said: “The recital in the notarial act was immaterial, and may have been, in reality, the act of the notary”. In the case cited second, the court said: “They are not material to the matter in hand and may not have received attention.” Reference is made to the force and effect of such descriptive recitations as being- “of secondary importance”, and again it is referred to in that light in the last case cited. It is referred to in Layman vs. Vicknair, 47th Ann., 679, as a “mere ipse dixit of the notary public which may or may not be true”. The recitals in the deed before us and now being considered, are taken as entirely true, but not such as to place at a disadvantage the purchaser at a subsequent sale more than ten years afterwards.

We do not think that the case of Heirs of Dohan vs. Murdock, 41st Ann., 494, is in point, for the reason, that in that case “.the defect in Dohan’s title to the property in suit was apparent, and could be ascertained by an inspection of the act under which he claimed ownership.” The case here is different; the deflect was not apparent and could not have been ascertained, by an inspection of the act under which he claimed ownership. This act between Gaudinse and the public administrator must be considered as a complete executed contract. Such completed contracts, when they are capable of being ratified, are considered as' being ratified in case of the failure to claim, and silence during the prescriptive period. Vaunham vs. Christine, 3 A., 330.

The belief of one that the title is valid and regular, and that the person with whom he contracted had the capacity to sell is that which the law has characterized as showing good faith in the purchaser. Here the purchaser paid the price, went into possession, paid the taxes and improved the property. Thereafter, these many, years are indications of the full faith and credit placed in the public act under which he held. The one who has remained so long silent could not be permitted to condemn an act long after innocent third persons had acquired the property. The principle which we think is controlling in this case is sustained by the decision of Scott vs. Calvit, 2nd La., 69, in which it was decided that the conveyance by a parish judge of the property to himself which was sold under his order is referred to as not void but voidable.

In Mary Hicks vs. Ann Weems, 14th Ann., 639, the court decided that the purchase of property by the administrator of a succession of which he is the administrator is not an absolute nullity. In Oil Company vs. Marbury, 91st U. S., 587, the court said regarding a similar act: “The general doctrine, however, in regard to contracts of this class is not that they are void, but that they are voidable.” The opinion in Meibaum vs. Brennan, 49th Ann., 580, contains the last utterance of this court upon the subject, from which we extract the following: “Such title acquired in good faith, accompanied by possession as owner, suffices for the prescription of ten years”. Citing a number of decisions.

The third person, vendor here, is not claiming under the original title’ but under a prescriptive title dating back more than ten years and which title is of a date long subsequent to the Oastell act.

By reason of the law and the evidence being in favor of plaintiff, the judgment is affirmed.


text:
    No. 13,461.
    State of Louisiana vs. W. S. Frazier and Nick Radetich. In the Matter of the Forfeiture of the Bail Bond of Nick Radetich, Defendant.
    Syllabus.
    1. The law sanctions an amicable settlement of assault and battery and misdemeanor cases, and authorizes the prosecuting officer to enter a nolle prosequi. But there is no mandate to him to discontinue the prosecution on the demand of the party or parties who originated the same.
    2. If he think the ends of public justice may not suffer by reason thereof, he is empowered to acquiesce in the settlement made by the parties .concerned and discontinue the prosecution.
    3. On the other hand, if he think otherwise, and that the case is one where the party charged should be held answerable to the law, he has the discretion vested in him to decline the settlement made ex cathedra and proceed with the prosecution.
    4. The State is entitled to legal interest on the amount of forfeited bail bonds from the date, of the rendition of the judgment of forfeiture.
    APPEAL from the Criminal District Court, Parish of Orleans.— Baker, J.

      Milton J. Cunningham, Attorney General, and Robert H. M'arr, District Attorney, (Charles M. Cunningham, of Counsel) for Plaintiff, Appellee.

      Louis P. Paquet for N. Radetich, Surety, Appellant.
   The opinion of the court was delivered by

Blanchard, J.

Defendants, Frazier and Radetich, were prosecuted for libel. After his arrest Radetich was released on bail bond in the sum of $250.00, his uncle, Nicholas Radetich, becoming his surety.

lie faiied to appear for trial at the appointed time and the bond was duly forfeited.

Judgment of forfeiture was entered up against the principal and surety, and execution was issued, under which property of the surety was seized.

Whereupon the surety filed a petition for injunction to stay the sale, and for nullity of the judgment of forfeiture. Pending this proceeding, the District Attorney moved to set aside the forfeiture and a ruling to that effect was made by the court.

The case was then re-assigned for trial.

The day before the trial was to be had the prosecuting witness addressed a communication to the District Attorney informing him she did not wish to further prosecute Radetich and requested him to enter a nolle prosequi as to him upon.the payment of costs.

The District Attorney refused to grant this request, and, thereupon, a rule was taken upon him to show cause why the prosecution as to Radetich should not be abandoned, or a nolle prosequi entered.

The rule coming on for trial, this order was made: “The court overrules the motion herein to compel the District Attorney to enter a nolle prosequi in the case on the parties compromising their differences, on the ground that the entry of a nolle prosequi, either in a misdemeanor or felony, is something which is necessarily left to the exclusive discretion of the District Attorney.”

An exception to this ruling was reserved.

On the day fixed for the trial of the information charging the libel, the defendant Radetich was duly called and failing- to respond and to appear and stand his trial, and his surety being called to produce him and failing to do so, the District Attorney moved for forfeiture of the appearance bond.

This was objected to on behalf of the surety on the ground, that the prosecuting witness having compromised the case and having asked that the charge be withdrawn, the District Attorney could not prosecute further, nor forfeit the bond; that the case was practically at an end when the prosecuting witness withdrew the charge and asked that the prosecution cease.

This objection was overruled and judgment of forfeiture entered up against the principal and surety in solido in 'the sum of $250.00. An exception was .reserved.

Later, the surety presented a petition to the court reciting the facts and concluding with the allegation that the offense charged being a misdemeanor, it was lawful under Section 990 of R. S. for the prosecuting witness to compromise the ease and withdraw the charge upon the payment of the costs of prosecution, which costs, it was averred, were tendered; that it was the duty of the District Attorney to permit such withdrawal, or to enter a nolle qrosequi; and that his refusal to do so, and the forfeiture of the bail bond which followed, were arbitrary, unwarrantable and illegal acts, violative of the rights of the defendant Radetich and of his surety, and an infringement of the Fourteenth Amendment of the Constitution of the United States.

The prayer was that the forfeiture be set aside and declared a nullity, and that the charge of libel against Nick Radetich be dismissed, or a nolle prosequi entered.

The ruling on this application being adverse to the surety, the latter excepted, and then moved for an appeal to this court.

R. S. 990 reads: “In all cases of an assault and battery, and misdemeanors, when the parties compromise, and the prosecution is withdrawn, no charge shall be brought against the parish; the parties compromising shall pay all costs in such cases; it shall be lawful for the Attorney General, District Attorney, or District Attorney pro tempore, to enter a nolle prosequi."

The contention of counsel for the appellant is that the District Attorney must, in a misdemeanor prosecution, consent to the withdrawal of the charge when the same has been compromised by the parties and he is requested by the prosecuting witness to discontinue the prosecution. That is to say, in such case he is without discretion to refuse the nolle prosequi asked for.

The contention on behalf of the State is that though the parties do ccmpromise their differences out of which grew the prosecution, for the misdemeanor charged, and though the prosecuting witness does ask that the charge be withdrawn and the prosecution discontinued, it is, at last, left to the discretion of the officer prosecuting on behalf of the state whether or not this be done, wdiether or not a nolle prosequi be en'ered, and that, being left to his discretion, the courts will not in'erfere to coerce his action in the premises.

We do not find any sufficient foundation in the statutory law for the contention of the appellant, nor is there warrant for it in the jurisprudence of the State as established by the decided cases.

All that the section of the Revised Statutes quoted supra does is to sanction an amicable settlement of assault and battery and misdemeanor cases, and to authorize the prosecuting officer to enter a nolle prosequi. There is no mandate to him to discontinue the prosecution oil the demand of the party or parties who originated the same. All tumugh the section is plainly discernable .the intention that much is to be left to his discretion in such matters.

If, in his wisdom, having due regard to the responsible trust committed to his hands, he think the ends of public justice may not suffer by reason thereof, he is empowered to acquiesce in the settlement made by the parties- concerned and discontinue the prosecution. On the other hand, if he think otherwise, and that the case is one where the party charged with the offense should be held amenable to the law, he has the discretion vested in him to decline the settlement made ex cathedra and proceed with the prosecution.

The District Attorney is a quasi judicial officer. His first concern is the vindication of public justice. This includes the taking of proceedings for the arrest, trial, convicting and punishment of .those who infringe the laws, and it embraces, likewise, a care that no innocent person be made to suffer the penalty denounced against a crime he did not commit, or was not privy to. He is to stand indifferent between the accused and any private interest.

Were the District Attorney held obliged to discontinue the prosecution' of a misdemeanor whenever the complainant called upon him to do so, on the plea that the case had been compromised, it .would open the way to the use of the machinery of the law and the courts to further purely private purposes, and then, when the private end in view is attained, or as a means to do its attainment, call off the prosecution.

In Farrar vs. Steele, 31 La. Ann. 642, it was said: “This court has twice held that a District Attorney prosecuting on behalf of the State, may enter a nolle prosequi at his discretion, subject only to the right of defendant, after the trial has commenced and evidence given,. to insist on the trial. In this respect neither the court nor the accused has the right to control the attorney of the State”—citing State vs. Bugg, 6 R. 63, and State vs. Hornsby, 8 R. 583. See also State ex rel. District Attorney vs. Judge, 48 La. Ann. 134.

If “neither the court’nor the accused has the right to control the attorney of the State” in the matter of entering or not entering a nolle prosequi, surely neither has the surety of the absconding accused 'such right. Yet that is what is sought in this proceeding.

If, then, the District Attorney may not be coerced to discontinue the prosecution of this dismeanor, it was his right to proceed with its trial, and, in default of the appearance of the accused, to forfeit his bond.

We find no error in the judgment appealed from.

In answer to the appeal, the District Attorney prays an amendment of the judgment so as to allow the State legal interest from the date of its rendition until paid.

That the State is entitled to recover interest on a forfeited bond from the date of the judgment of forfeiture, was expressly so held in State vs. Sullivan, 12 La. Ann. 720.

It is, therefore, ordered and decreed that the judgment appealed from be so amended as to allow legal interest on the amount thereof from February 8, 1900, until paid, and as thus amended the said judgment be affirmed at the cost of the appellant.


text:
    No. 13,315.
    Mrs. Anna C. Wegmann vs. Peter Wegmann, Dative Tutor in Succession of Joseph Wegmann.
    Syllabus.
    Where no motion is made to dismiss an appeal, it will not be dismissed upon a suggestion, in the brief of the appellee, that appeals from two judgments should not be allowed by the same order, and that one bond should not be held to sustain both appeals; the parties in interest, and the general subject matter affected by both the judgments being the same.
    In directing the payment of alimony, from the revenues of minors, for their support, allowance should be made for the maintenance of the property from which said income is derived, and for such other expenses as are incidental and necessary, reserving to the parties in interest the right to apply for such other and further relief as occasion may require.
    APPEAL from tbe Civil District Court, Parish of Orleans.— Righior, J.

      E. H. McCaleb, Jr., for Mrs. Wegmann, Plaintiff in Rule, Appellee.

      James B. Rosser, Jr., for Peter'Wegmann, Dative Tutor, Defendant in Rule, Appellant.
   The opinion of the court was delivered by

Monroe, J.

As appears from the statement of this case, as reported (ante p. 947), two judgments were rendered in the court a qua, upon the same day; the one upon an opposition, filed by Peter Wegmann, dative tutor, to the final account of Mrs. A. C. Wegmann, who had been destituted of the administrative tutorship of her minor children; and the other, upon the rule, taken by the said Mrs. Wegmann, to require said dative tutor to pay over to her, from the income o.f the minors, of whom she retained the personal custody, a certain alimony, for their support.

From these two judgments, appeals were prayed for by the dative tutor, by means of one petition, and were allowed by one order, and one appeal bond was filed. A motion was made in this court to dismiss the appeal from the judgment on the opposition, and said appeal was dismissed because it was considered that the amount involved was less than $2,000.00. The matter is now before us on the appeal from the judgment on the rule for alimony, and it is argued, on behalf of the appellee, that said appeal should also be dismissed, on the ground that there was but one appeal, and that the only bond given was to sustain the appeal from the judgment on the opposition.

No motion has been made to dismiss this appeal, and we do not feel called upon to dismiss it for the reasons suggested in the brief filed by the counsel for the appellee.

Upon the Merits.

As we understand the testimony and admissions, the total income accruing to the. minors is $912.00 per annum, of which $756.00, or $63.00 per month, is derived from the rental of a number of tenements, which must -be kept repaired and insured, and on which the taxes are to be paid; and $156.00 per annum is derived as interest upon certain mortgage notes. In addition to which, there are a few hundred dollars belonging to the minors which had not been invested, and, in fact, had not come into possession of the dative tutor at the time the judgment for alimony was rendered. By that judgment, the dative tutor was directed to pay from the revenues of the minors, seventy dollars per month, or a total of $840.00 per annum, leaving but $72.00 per annum, with which to pay the expenses mentioned above, not in-eluding the commission of the dative tutor, and taking no account of possible loss from bad tenants, and other causes.

We think, that, under the circumstances, the amount allowed should be reduced to $60.00 per month, reserving to the parties in interest, the right to airply for such other and further relief as changed conditions may, from time to time, require.

It is, therefore, ordered, adjudged and decreed, that the judgment appealed from be amended by reducing the amount of alimony allowed for the support of the minors from $10.00 to $60.00 per month, reserving to the mother and natural tutrix, having the custody of the persons of said minors, and to the dative tutor, having the administration of their property, alike, the right to apply for such other and further relief in the premises, as may, from time to time, be required. It is further ordered, that, as thus amended, the judgment appealed from be affirmed, the costs of the appeal to be paid from the funds of the minors in the hands of the dative tutor.