author: Pociiií, J.

text:
    No. 9887.
    John D. Fisher vs. O. B. Steele, Auditor, and E. A. Burke, Treasurer, of the State of Louisiana.
    The State of Louisiana has the inherent right to regulate her finances and to use her revenue according to her own judgment, unless restrained by any contract obligation or verbal right created by the Legislature in favor of creditors, as to any portiou of the same.
    Any balance remaining to the credit of one or more of the separate funds created by law, after the satisfaction of all warrants drawn against the same, is the property of the State, with full power in the Legislature to apply the same to any lawful purpose under the constitution.
    Holders of warrants drawn against tho general fund of 1884 have no contract or vested right to any balances for taxes due in 1883 and previous years, which wore destined by Act 107 of 1884 to the gee eral fund of 1884, sufficient to defeat the legislative will, as expressed in Act 79 of 1886, ordering certain doscribed taxes for said years, to be placed to the credit of a special levee fund, and adopted before the collection of such taxes had been effected.
    Act LTo. 79 of 1886 is not a special or local law within the intendment of Article 48 of the State Constitution; hence, it is not affected by the omission of the uotice prescribed in that article.
    Levee districts are not corporations within tiie scope of the prohibition contained in Article 56 of the Constitution. They are State functionaries exercising delegated powers as parts of the government. An act of the Legislature authorizing one of the levee boards to build a levee in the State of Arkansas, if necessary, to protect a portion of the State from overflow is not violative of any article, prohibition or provision of the State Constitution.
    Act 79 of 1886 is not an appropriation of money within the meaning of the constitution, as it does not purport to draw auy money out of the treasury. It merely directs a transfer of a contemplated revenue, iron* a separate fund, to which it was destined, under a general act, to a special fund, and thus moves money within the treasury, but not out of it. A statute of Louisiana authorizing the construction of a levee within the State of Arkansas, with its consent, for the protection of Louisiana lands, is not am on able to the prohibition of the second paragraph of Section 10 oí’ Article Í of the Constitution of the United States, forbidding any State, without the consent of Congress, to enter into any agreement or compact with another State. It is an exorcise of no greater power than the requisition of the Governor of one Stale on the Governor of another, for the arrest of a fugitive from justice.
    APPEAL from tlie Seventeenth District Court, Parish of East Baton Rouge. Burgess, J.

      Kennard, Howe and Prentiss for Plaintiff and Appellee.

      H. P. Wells for Defendants and Appellants.
   The opinion of the Court was delivered by

Pociiií, J.

Plaintiff has sued out an injunction to restrain the State Auditor and Treasurer from executing Act No. 79 of 1886, of the Legislature of Louisiana, entitled, “An act authorizing the tax due by the Vicksburg, Shreveport and Pacific Railroad Company to the State, for the years 1880, 1881, 1882 and 1883, tobe placed to the credit of the Tensas Basin Levee District and Fifth Levee District, for levee purposes, and authorizing the parishes of Ouachita, Richland and Madison to appropriate money to said district for the same purpose.”

1-Iis contention is that the taxes contemplated in the act should have been placed to the credit of the general fund of the year 1884, against which he holds warrants, aggregating the sum of $25,000, drawn by the Auditor on the Treasurer, duly issued, for the expense and purpose of maintaining the government of the State and the public institutions thereof.

That, as all the Auditor’s warrants payable out of the general fund of 1883, and of previous years, had been paid or otherwise settled, the holders of warrants payable out of the general fund of the year 1884 had acquired a vested right to the taxes referred to in said Act 79 of 1886, under the provisions of the last paragraph in Section 5 of Act No. 107 of 3884, which reads: “The several funds herein provided for shall be continuous funds, and the State Treasurer shall, without legislative action, transfer any and all balances remaining in the treasury to the credit of the separate funds, after providing for the payment of all warrants drawn against said funds, for any ye^r, to the credit of the same funds for each succeeding year,” * * and that under the enactment just quoted, the warrant-holders aforesaid were vested with rights amounting to a contract in the premises.

lie, therefore, charges said Act No. 79 of 1886 to be unconstitutional, null and void, for the following reasons:

1st. Because it impairs the obligations of the contract created by and between tbe State and himself as a warrant-holder as aforesaid.

2d. Because it divests, without compensation, his vested rights acquired under the provision of Act 107 of 1884, hereinabove quoted.

3d. Because it is a local and special law, passed without the notice required by Article 48 of the Constitution.

4th. Because it grants the funds of the State to a corporation, in violation of Article 56 of the Constitution.

5th. Because it applies taxes collected under the authority of the State to the construction of levees in the State of Arkansas, in violation of Articles 204, 213, 214,215 and 216 of the Constitution.

6th. Because it is an appropriation made within five days of the final adjournment of the session of the Legislature, and (if otherwise valid) it violates Article 55 of the Constitution.

7th. Because it undertakes to use funds of the State upon some agreement or compact between the States of Arkansas and Louisiana, in violation of the second paragraph of Section 10 of Article 1 of the Constitution of the United States.

The defendants made a nominal defense, but the serious contest is made by the two levee districts intended to be the beneficiaries of tbe act, who, by intervention, pleaded a general denial, and set up the special plea that plaintiff has shown no intent to present tbe issues tendered in his petition, for the reason that he has no right to, or lien, or privilege on the tax w’hich is the subject of the controversy.

From an admission in the record, it appears that the amount of taxes paid by tbe railroad company for the years 1880, 1881, 1882 and 1883 amount to $9687.62, and that tlie portion of tbe same which would have gone to the general fund of 1884, in the absence of Act 79 of 1886, amounts to $5198.34.

The District Judge pronounced the act to be unconstitutional as violative of article 55 of the State constitution and perpetuated the injunction in so far as the amount which would have gone to the General Fund is concerned. Intervenors have appealed.

Our study of the case has led us to a different conclusion from that of the District Judge, and we hold that his judgment is erroneous. •

Iu our disposition of the numerous constitutional objections levelled by plaintiff against the Statute under discussion, we have been guided by the rule that the attempt of a private individual to control any portion of the finances of the State, and so restrain tbe proper officers from the performance of a plain and unequivocal duty in their administration of funds of the State, by invoking the aid of the judicial power to that end, aud to annul and avoid as unconstitutional an act of the Legislature imposing the duty, and regulating the mode of disposing of such funds, involves' the exercise of a formidable, but delicate power, which courts will be slow to assume, and will never attempt to exercise in doubtful cases.

In treating of a kindred subject, Chief Justice Marshall, as the organ of the court, in the ease of Fletcher vs. Peck, 6 Cranch. 128, used the following cautious language: “The question whether a law be void for its repugnancy to the constitution is, at all times a question of much delicacy, which ought to be seldom, if ever, to be decided in the affirmative,in doubtful cases, * * * It is noton slight imjdications and vague conjectures that the Legislature is to be pronounced to have transceuded its powers, aud its acts to be considered as void. The opposition between the constitution and the law should be such that the Judge feels a clear and strong conviction of the incompatibility with each other.”

Judge Cooley wrote on the same subject as follows: “ The statute is assumed to be valid until some one complains whose rights it invades. Prima fade, and on the face of the act itself, nothing will generally appear to show that the act is not valid; audit is only when some person attempts to resist its operation, and calls in the aid of the judicial power to pronounce it void as to him, his property or his rights, that the objection of unconstitutionality can be presented and sustained. Respect for the Legislature, therefore, concurs with well established principles of law in the conclusion that such an act is not void but voidable only ; audit follows, as a necessary legal inference from this position that this ground of avoidance can be taken advantage of by those only who have a right to question the validity of Ihe act, and not by a stranger.” Cooley Constitutional Limitation, 4th Ed., p. 199.

That principio is suggestive of a grave doubt of the right of plaintiff in this case to assail the constitutionality of the statute under discussion, beyond the first two grounds contained in Lis petition, which present the averments that the act impairs the obligation of his alleged contract, and divests his vested rights to the proceeds of the taxes. Eor it appears to our minds, as a, proposition, not even susceptible of controversy, that the State of Louisiana has the right, of every sovereign, to regulate her public, revenue, and apply her own funds as her own judgment may suggest, unless by contract or l>y previous legislation, she has subjected any portion thereof to a legal preference in favor of a creditor or contracting party. But giving the benefit of tlic'doubt to plaintiff wo shall now proceed to consider his numerous objections.

1st. As the warrants which lie holds were issued “for the expense and purpose of maintaining the government of the State and the public institutions thereof” it is evident that the obligation of the State to pay his warrants does not spring from a contract. To this he does not even pretend; he sets up the provision of act 107 of 1884 as tho source of his contract.

But the language of the enactment will not hear such a construction, The direction therein contained for the future guidance of the Treasurer, is to “ transfer any and all balances remaining in the Treasury to the credit of the separate funds after providing- for the payment of all warrants drawn against said funds, for any year, to the credit of tho same funds for each succeeding year;” but the taxes due by tlie Railroad Company for the years 1880, 1881, 1882 and 1883, and which were paid only on the 26th of July, 1886, never remained in the Treasury as a balano.e to the credit of any fund whatever. Before the payment thereof, by act 79, approved on the 8th of July, 1886, and before the funds became liable to the effect of the general direction contained in the provision now under discussion, the Treasurer was directed to place them to the credit of another, aud a special fund, nor could those funds have been contemplated by the law-maker in the provision of the act 107, 1884, for, at that time, the tax was resisted by tlic company as shown by litigation pending in this court, and subsequently in the Supreme. Court of the United States, of which facts we must take judicial cognizance. Dennis vs. Railroad Company, 34. Ann. 954.

An argument by the State to enhance tlie rights of claimants to a general fund of any year by adding thereto unclaimed balances in said fund for previous years cannot be construed as a contract affecting a fund not then available and which it could not be conjectnred would reach the Treasury with any certainty or in auy given year.

Nor can it be envoked as a contract by a holder of warrants which had not yet been issued at the date of the legislation which is held up as a contract. Act 107 was adopted on July 10, 1884, and tho sample warrant filed in this case bears the date of October 21, 1884.

2d. We are at as groat a loss to conceive of the, grounds' on which plaintiff rests his alleged vested rights to the taxes in question for the payment of his warrants.

It is undeniable that the balances which may at any time remain in the Treasury to the credit of any of the separate funds created by law, are the lawful property of the State of Louisiana, with full power to dispose thereof as any private individual has a right to do with his unencumbered property.

Now, what is the legal meaning' and effect of a legislative direction to transfer such balances to the same funds of the ensuing year ?

It surely cannot amount to anything more than an act of gratuity on the part of the State in favor of the holders of warrants against the particular fund for the year to which the surplus is thus transferred.

What power or authority can be invoked to hold the State to the full gratuity, if she subsequently desires to decrease it to any extent, and to compel her to give the whole “ pound of flesh” as denominated in the bond1?”

A fortiori will no one be heard to claim, under such legislation, any vested right to a fund which had then no existence, and which therefore could not have been included in an appropriation for the benefit of any one.

3d. It is difficult to understand how a statute directing the transfer of certain moneys from one fund to another in the treasury, can be amenable to the objection that it is a local or special law; and to thus subject it to the provisions of Article 48 of the Constitution which requires previous notice by the publication of the intention to apply therefor. As this objection has not been argued by plaintiff’s counsel, we are left to the inference that the ground may be intended to apply to the acts creating the two levee districts which are the beneficiaries of the act in question. In that event, the argument is met by Article 46, which provides that: “The General Assembly shall not pass any local or special law on the following specified objects : * * *

Creating corporations, or amending, renewing, extending or explaining the charter thereof; provided, this shall not apply # * * to the organization of levee districts and parishes.” But the question is no longer an open one, since the decision recently made by this Court in the case of the Planting Company vs. Green Tax Col., in which plaintiff’s counsel herein successfully maintained the reverse of their present contention on this point.

4th. Plaintiff’s counsel have not favored us with an argument in support of this fourth objection, and it is doubtless, because they shrank from the task of attempting to prove, that a “ levee district” created by the State as one of its functionaries, charged with the duty of providing for the general welfare of the people by protecting them from inundation, could, by any reasoning, be considered as an association or corporation, distinct from, and independent of, the State within the intendment of the prohibition contained in Article 56 of the Constitution, when it says: “The funds, credit, property, or things of value of the State, or of any political corporation thereof, shall not be loaned, pledged or granted to or for any person or persons, association or corporation, public or private.”

The funds thus applied in these two acts do not cease to be moneys of the State, but the use thereof is merely directed to a designated object, which is in itself a State function.

5. Plaintiff’s counsel are also silent on this objection, which is levelled at the right of the State to build levees in the State of Arkansas. The object of the levee which the act authorizes the board to build in Arkansas, is expressed to be for the protection of said district from overflow. The object is, therefore, within the logical and reasonable purpose contemplated by the Constitution in the system of levees which it has provided for in Articles 204, 213,214, 215 and 216.

It is passing strange that the very articles which the Legislature manifestly intended to carry out by this measure are invoked by plaintiff as obstacles to the enactment.

6th. This objection, which invokes the nullity of the act because it is an appropriation of money made within the last few days of the session, is the ground which the District Judge sustained. It must have appeared ominous to plaintiff to have seen the District Court rest its judgment on the weakest ground of his pleadings. As an argument, it is answered by the text of the act, which reads : “ All the State taxes due by the Vicksburg, Shreveport and Texas Pacific Railroad Company, in and for the parishes of Ouachita, Richland and Madison, for the years 1880, 1881, 1882 and 1883, shall, when paid into the treasury of the State, be at once placed to the credit of the Tensas Basin Levee District, * * to be used in the manner now provided by law, in constructing, repairing and maintaining any and all levees in the State of Arkansas (said State consenting), that will protect said district from overflow.” What portion of that language can be construed as an appropriation of money, we are at a loss to appreciate.

The real object of the act is to provide additional means for the purposes of the works to be made by the State, through that levee district, towards the preservation of the property of its people, and to that end, certain taxes therein described, are designated as a special levee fund in addition to resources previously provided for to the credit of the board charged with the performance of that duty. The act merely directs that certain funds, when they reach the Treasury, shall be placed to the credit of a special fund, instead of being distributed ratably among the four separate funds created by law, and designated as the “ General Fund,” the “Current School Fund,” the “Interest Fund,” and the “General Engineer Fund.” It partakes more of the nature of an act creating a revenue for a special purpose than one appropriating any portion of an existing revenue. It is therefore immaterial whether the act was passed and signed within the time specified in article 55 of the Constitution.

7th. The seventh objection invokes the second paragraph of section 10 of article 1 of the Constitution of the United States, which reads: “No State shall, without the consent of Congress, * * e enter into any agreement or compact with another State, or with a foreign power, or engage in war unless actually invaded, or in such imminent danger as will not admit of delay.”

On reading that objection in connection with the constitutional prohibition just quoted, the mind would naturally expect a charge that the State of Louisiana was projecting a treaty of alliance with the State of Arkansas, or contemplating some joint scheme of commercial or industrial enterprise, or perhaps conspiring for the establishment of a, new confederacy; but great is the relief when the mind is informed that the purpose which plaintiff resists with such a powerful shield, is merely to build a piece of levee in the State of Arkansas if necessary, and if that State does not object, or consents.

It is indeed too clear for argument that such a transaction is no more a prohibited compact between two States than is contained in the requisition of our Governor for, and the consent of another to, the capture and arrest of a fugitive from justice.

We conclude that the statute under discussion has successfully withstood all of plaintiff’s attacks, which are manifestly more formidable in their number than in (heir intrinsic strength.

It is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed; that, the preliminary injunction issued herein be dissolved, and that plaintiff’s action be dismissed at his costs in both courts.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 9915.
    Excelsior Planting and Manufacturing Company vs. T. K. Green, Tax Collector, et als.
    Act No. 44 of 1886 does not violate Art. 29 'of the Constitution, that “Every law shall embrace but one object, which shall be expressed in the title.” The act. embraces but one broad and comprehensive object, and its various provisions embrace means for its accomplishment, appropriate and referrable to the object, and all of which are expressed in the title.
    The act does not violate Art. 48 of the Constitution, prohibiting local or special laws, without previous published notice having been given of the intention to apply for them. This law is removed from the operation of Art. 48 by Arts. 213 and 214 of the Constitution, the first of which provides that “ a levee system shall he maintained in the State,” and the other authorizes the establishment of levee districts, etc. Tlie power granted by Art. 213 is ancillary to the duty imposed by Art. 214. The power and duty so expressly conferred by these articles passed to the Legislature untrammelled by the restrictions of Art, 48, affirming 33 Ann. 568: 35 Ann. 4P2; 35 Ann. 1142.
    The power conferred by Art. 214 of the Constitution to levy a tax of five mills on all the property of the district, was not exclusive of the power of local assessments for the same purpose. The intention was to grant a nowand additional power, which, but for such express grant, would have been prohibited by other articles of the Constitution, not to destroy powers already possessed.
    Arts. 35. 43. 53 and 55 of the Constitution have no application, because this is not an appropriation or a revenve bill within the meaning of those articles.
    Arts. 44 and 56 do not apply, because this act does not “ contract or authorize the contracting of any debt or liability on behalf of the State and the bonds authorized are for the benefit of the levee district corporation itself, and not for any other persou • oi corporation, as intended by Art. 56.
    The assessments levied by the act are not violative of Arts. 203. 209, 214 and 242, on the subject of taxation, affirming, after discussion, former decisions, holding that “local assessments for public works, levied, not on taxable property generally for common public benefit, but only on^particular property specially benefited by the works as an equivalent for the direct benefit conferred, although an exercise of the taxing power-are not considered as taxes within tlic scope and meaning of constitutional restrictions on the general power of taxation.”
    Although the legislative power to levy local assessments is thus recognized, yet it does not follow that every exaction maybe, supported by simply calling it a local assessment. Three elements must concur to make a valid local assessment: 1st. The work must be public, and of a character to confer special benefit on the district assessed, as distinct from the general benefit to the State at large. 2d. The assessment must bo supported by benefits, actually or presumptively received by the persons or property subjected to it. 3d. The contribution must not manifestly exceed the benefit conferred.
    Any pretended assessment wanting in these elements would cease to be taxation, and become a taking of property without process of law and without, adequate compensa tion.
    When, however, the Legislature, in the ,’exercise of legislative power, has levied local assessments which are not clearly wanting in the foregoing elements, it is not the province of the judiciary to annul and set them aside.
    Local assessments are, as a general rule, levied on land alone; hut this is only because laud is the kind ot property which is usually benefited : but there exists no such constitutional or'other restriction on the legislative power; and when particular personal property has enjoyed a benefit from the works to which it owes its existence and preservation, nothing prevents the Legislature from assessing it.
    Under this act the cotton is assessed, not simply as a bale of cotton, but as a bale of cotton which has been produced on lands protected by the levees, and has, during the period of . its cultivation and growth, enjoyed the benefit of its protection. 3STo one dealing with such cotton can be prejudiced, because all are advised by the law, from the moment when the cotton is planted, that, when it reaches the condition of a ginned bale, it must pay this tax.
    The provisions of the fourteenth amendment to the Constitution of the United States and of Arts. 6 and 156 of the State Constitution on the subject of taxing property, without due process of law, or without adequate compensation previously made, do not apply (o local assessments, but only to exactions made under the right of eminent domain.
    "We have no jurisdiction over the recon ven tional demand.
    APPEAL from the Ninth District Court, Parish of Concordia. Young, J,

      Plcm & Luce, Conner & Conner, and F. L. Mason for Plaintiff and Appellant.

      Steele, Carrel & L)agg and Kemiard, Howe & Prentiss, for Defendants and Appellees.
   The opinion of the Court was delivered by

Fenner, J.

The objects of this action are to enjoin the execution of the provisions of the act of the General Assembly, No. 44 of 1886, and to have said act decreed to be unconstitutional, null and void.

The general objects of the act referred to are to establish a levee District composed of certain territory therein defined; to create for said district a body corporate styled The Board of Commissioners for the Fifth Louisiana Levee District;” and to vest.said board with various powers and duties therein enumerated, having in view the principal purposes of “the construction and maintenance of levees, and to establish a comprehensive levee system *■ * * for the purpose of permanently securing the entire district from destructive floods,” and of providing the necessary revenues for carrying out said objects.

The constitutional objections urged are numerous, aud we shall consider them separately.

I.

It is claimed that the title of the act does not comply with the requirements of Art. 29 of the Constitution which provides that every law shall embrace but one object and that shall be expressed in its title.” The title is very long and very specific and certainly expi^sses and covers every provision embraced in the law. Indeed tlie complaint is, not that the title fails to express the object of the law, but that the law itself embraces more than one object. Hence the decisions relied on by plaintiff’s counsel in the Irwin case, 33 Ann. 63, and State vs. Baum, 33 Ann. 982, have no application. In those cases we were concerned exclusively with the sufficiency of the titles; and finding that the laws contained provisions of a character not expressed or suggested in the titles, we decreed their nullity. Language used to distinguish the provisions expressed, from those not expressed, in the title, as being “distiuct and separate,” is not to be interpreted as meaning that they were so separate and distinct that they could not have been embraced in the same law if they had been properly expressed in its title.

We have, heretofore, held that a law is not invalidated because it contains “ sevei-al particular objects, all of which are properly referable to, and subdivisions of, a single general object.” State vs. Henderson, 32 Ann. 781; Weise vs. Thibaut, 34 Ann. 556. (Reported by syllabus only; see opinion.)

Cooley lays down the proper principle governing the application of this constitutional requirement: “ The general purpose of such provisions is accomplished when the law has but one general object which is fairly indicated by its title. To require every end and means necessary or convenient for the accomplishment of the general object, to be provided for by a separate act relating to that alone, would not only be unreasonable but would actually render legislation impossible.” Cooley Const. Lim., p. 143.

The proper application of the foregoing principles renders the objections to statute under this head so untenable and futile that we really feel it unnecessary to particularize them The law has one broad and comprehensive object fully expressed in its title, and its various provisions only embrace means for its accomplishment, appropriate and referable to the object itself. Under plaintiff’s theory the Legislature, to effectuate this object, would have been obliged to pass a dozen separate acts, each of which, standing alone, would have been meaningless.

II. '

The next objection urged is that the act violates Art. 48 of the Constitution which provides that “no local or special law shall be passed on any subject not enumerated in Art. 46, unless notice of the intention to apply therefor shall have been published, etc., at least thirty days prior to the introduction into the General Assembly of such bill.”

Waiving the question as to whether this is a local or special law, it is removed from the operation of Art. 48 by Arts. 213 and 214, the first of which provides that “ a levee system shall he maintained in the State,” and the last declares “ the Genet al Assembly may divide the State into levee districts, and provide for the appointment or election of levee commissioners in said districts, who shall, in the method and manner to he provided by law, have a supervision of the erection, repairs and maintenance of the levees in said districts,- to that effect it may levy a tax, not to exceed five mills, on the taxable property situated within the alluvial portions of said districts subject to overflow.”

The power thus expressly conferred by Art. 214 is ancillary to the duty imposed by the previous Art. 213, and it passed to the Legislature untrammelled by the restrictions contained in Art. 48.

The Constitution imposed upon the General Assembly the duly to maintain “ a levee system,” and, as an aid in the furtherance of such duty, it conferred the.power to establish “levee districts.”

We are bound to presume that, in passing this statute, the General Assembly has concluded that, for the efficient performance of its duty to maintain a “ levee system,” it was essential to exercise this power of establishing a “levee district.”

We' have held in three cases that where the Constitution has, in express terms, conferred on tiie General Assembly the duty, or even the power, to adopt legislation oil a particular subject, even though local in character, such duty and power are not subject to the restrictions imposed by Art. 48. Taxpayers vs. City, 33 Ann. 568; Davidson vs. Houston, 35 Ann. 492; State vs. Dalon, 35 Ann. 1142.

We can add nothing to the reasoning presented in those cases, and content ourselves with referring to them.

III.

It is claimed, however, that the act violates Art. 214 itself, which has just been quoted, because the last .clause thereof authorizing the levy of a “tax, not to exceed five mills, on the taxable property-situated within the alltivial portion of said districts subject to overflow,” is a provision of the means for the exercise of the prior power granted, which is restrictive and impliedly prohibitive of a resort to any other means, and that this prohibition is violated because the act, after authorizing the levy of the five mili tax, proceeds to authorize the collection of certain local contributions or assessments on particular property benefited by the levees.

We consider the reasoning of plaintiff’s counsel on this subject entirely fallacious. They assimilate this provision to the clause of the Constitution authorizing the General Assembly to exempt from taxation property actually used for church, school or charitable purposes,” and to another clause fixing the salary of the judges of this Court at $5000 per mmum. It has been held that no other property than that enumerated can be exempt from taxation; and we should, of course, hold that no greater salary than $5000 could be conferred upon the judges. We carry the analogy to its fullest extent when we say that, under Art. 214, the power granted to levy the five mill tax would be exclusive and prohibitive of any levying of any greater tax; but the analogy entirely fails when the effort is made to extend the prohibition to the provision of other means than taxes. It is obvious that the object of the last clause of Art. 214 was not to exelude'the power of local assessment, but simply to confer the power of taxation. It was necessary for the latter purpose, because, without it, such power could not have been exercised, being in violation of other constitutional provisions on the subject of taxation. ,But the power of local assessment (if it exists at all, which will be considered hereafter) existed entirely independent of this and all other provisions on the subject of taxation. To hold that the power of local assessment was taken away, because the power of taxation was conferred,would be to reverse the purpose of the article, and to convert what was evidently intended as the grant of a new and additional power into a destruction of power already possessed.

No sound rule of interpretation supports such a construction and we sustain the legislative interpretation which has rejected it.

IV.

The objections that the act violates Arts. 85, 58, 55, 43, 44 and 56, may be disposed of in globo.

As to the first four articles, they have no application, because it is evident that this is not an appropriation or revenue bill within the meaning of those articles.

As to Arts. 44 and 56, they are equally inapplicable, because the act does not contract, or authorize the contracting of, any debt or liability on behalf of the .State;” and it does not loan, pledge or grant the funds, or credit, or property of the State, or of any political corporation thereof to or for any person or persons, association or corporation, public or private.” The, bonds authorized to be issued by the corporation are issued for its own exclusive purposes and benefit.

As to the grant to the corporation of certain lands of the State, we need not now disouss its constitutionality, because it does not affect the issues in this case, and even if that part of Section 11 were unconstitutional (which we do not decide) the rest of the act might well stand without it. The same remarks apply to the exemption of said granted lands from taxation.

V.

Section 9 of the Act authorizes the board to levy, annually, a local assessment or forced contribution of five cents on each and every acre of land within the district;” and Section 10 provides: “that in case the said board shall deem the funds heretofore provided for, inadequate to locate, repair and construct levees so as to prevent disastrous floods, the said board shall have authority to levy a special assessment or forced contribution, nbt to exceed fifty cents per bale on each and every bale of cotton produced in the district upon lands subject to taxation under the provisions of this Act.”

The contributions levied under the foregoing provisions are the main subjects of controversy. They are assailed as violative of Articles 203, 209, 214 and 242 of the State Constitution,

It is not necessary to quote these articles. It is sufficient to say that they all contain certain directions, regulations and limitations which the framers of the organic law have ordained as controlling the exercise of the power of taxation by the State and its subordinate political corporations.

It is self-evident, that if the contributions here involved are embraced within the scope and meaning of the words “taxes,” aud “taxation,” as employed in those articles, they would unquestionably violate both their letter and spirit.

But in a recent case, very analogous to the instant one, we have held, after the most careful consideration, that local assessments for public works, levied, not on taxable property generally for mere common public benefit, but oidy on particular property specially benefited by the works, as an equivalent for the direct benefit conferred, are not considered as taxes within the meaning of constitutional restrictions oil the power of taxation.” Charnock vs. Levee Dist. Co., 38 Ann. 323.

In so holding, we followed a long line of precedents in the jurisprudence of this and of other States, approved by the standard text writers. 11 Mart. 324, 9 Rob. 333; 2 Ann. 330; 4 Ann. 2; 11 Ann. 220, 370; 14 Ann. 998; 20 Ann. 499; 21 Ann. 51; 32 Ann. 888; 33 Ann. 276; 34 Ann. 362; 36 Ann. 670, 38; Burroughs on Taxation, Chap. 22; Cooley on Taxation, Chap. 20; and numerous authorities from other States cited by those authors.

We have considered attentively the respectful but vigorous assault made on the correctness of our opinion holding that this principle is applicable under the peculiar provisions of the present Constitution.

Our minds have been open to conviction, and, to paraphrase the nervous language of Chief Justice Black, if satisfied we had stumbled, we should, by no means, feel compelled to stumble again every time we came to the place where we stumbled before.

But on the most careful reconsideration of the question uuder all the additional light thrown upon it by the arguments of counsel and by their researches into the proceedings of the Convention, as recorded in its journal, we remain fully convinced of the correctness of our former decision.

The journal of its proceedings shows that the Convention absolutely refused to embody in the. Constitution any regulation whatever of the power of local assessment; and amongst the propositions offered and rejected, was the following :

“'Art. —. No specific tax or assessment for local improvements shall be levied or collected if the tax or assessment shall exceed the amout of the benefit conferred on the property.” Official Journal, Conv. of 1879, pp. 201, 209, 261, 325

It is impossible to resist the inference that the Convention, having the subject of local assessments repeatedly brought before it, knowing that, under uniform jurisprudence, that subject was held not within the grasp of general provisions on the. subject of taxation, and thus refusing to adopt any regulations whatever concerning it, determined to leave that-power, where it had always rested, in the hands of the Legislature, to he exercised according to its. discretion, limited only by other constitutional principles.

This is the conclusion reached by us in the Charnock case and we are bound to adhere to it.

VI.

We are next to consider whether, admitting the legislative power to levy local assessments, the particular contributions exacted under this act are local assessments properly so called; for, as Judge Cooley wisely says, “a man’s property is not to he taken from him with impunity, and without redress, by simply calling the appropriation an assessment, when it is not such in its elements.” Cooley on Taxation, p. 460. We must understand what are the principles underlying this and supporting this peculiar species of taxation, which is thus enfranchised from the constitutional restraints imposed upon the. ordinary-exercise of the taxing power.

We consider Cooley’s definition of these principles to bo clear and correct, viz : “Special assessments are made upon the assumption that a portion of the community is to be specially and peculiarly benefited in the enhancement of the value of the property peculiarly' situated as regards a contemplated expenditure of public finds; and, in addition to' the general levy', they demand that special contributions, in consideration of the special benefit, sliall be made by tbe persons receiving it.” Cooley Taxation, p. 416.

Three elements must concur, viz :

1st. The work must be public and of a character to confer special local benefits on tbe district within which the assessment is levied.

2d. The assessment must be supported by benefits actually or presumptively received by tlie persons or property' subjected to it.

Sd. The contribution must not manifestly exceed the benefit conferred.

Where these elements or any' of them are clearly wanting in contribution exacted under the name of a local or special assessment, the legislative action cannot be sustained. But the province of determining for what objects, in what districts, and on what persons or property, such assessments may be levied, is wisely' and, indeed, necessarily confided to the legislative department, and it is only' where the assessment is so manifestly unjust, oppressive and violative of the foregoing requirements as to give demonstration that they have been disregarded, that a court would be justified in overruling the legislative judgment. Indeed, Cooley says: “It is conceded that the legislative judgment that a certain district is or will be so far specially benefited by' an improvement as to justify a special assessment is conclusive, and that its determination as to what shall be the basis of the assessment is equally' conclusive. To invoke the intervention of a court for relief against the results of its conclusion is to give its judgment controlling effect over that of the Legislature, in a matter of the apportionment of a tax, which, by concession on all sides, is purely a matter of legislation. This is confessedly inadmissible in any case where the legislative- power has not been exceeded by an apportionment merely' colorable.” Cooley Taxation, p. 459.

Applying these principles to the instant case, there can be no question that tho object for which the assessments are levied, viz: The building of levees, is a public and proper one, and that the property within tíie district will he undoubtedly benefited.

It has been hold by this court, and is unquestionably true, that the main object of the public levee system in Louisiana is to protect arable lands from overflow and thus to enable crops to be piodueed upon them. Cash vs. Whitman, 13 Ann. 401, 38 Ann.

It is equally evident that such ojien and arable lands, by reason of the ability thus secured to make crops, derive greater benefit from levee protection than uncleared or uncultivated lands. It would have been conijieteiit, and clearly just, for the legislature to have imposed a greater contribution on the former than on the latter.

So, considering that the fairest measure of the additional benefit derived by the cultivated lauds would be the crops actually produced, that would likewise form the safest guide in apportioning the additional contribution.

Nor do we see any íeason why (lie crops themselves, thus protected aud saved might not lie subjected to assessment.

Now, it is a fact of which we may take judicial cognizance, that the principal agricultural product of the region comprised within the levee district is cotton, to which all other crops are subsidiary, aud which is, as a general thing, the marketable and money-producing crop.

The Legislature, doubtless, concluded that the cotton produced on land would be as reasonable and fair a measure of the extra benefit derived by such laud as any other, aud that this cotton, having been protected during the whole season of its growth by the levees, had enjoyed a benefit which formed a just basis for its assessment. In this the Legislature certainly acted within the range, of its power and in thorough conformity with the principles of special asssessmeut. The only question was how and when to apportion and collect the assessment on such cotton. The simplest and most practical method was evidently that adopted, t.o-wit: to apjiortion it on the ginned hale, which is the mercantile form to which all cotton is reduced for marketable purposos.

We can see no objection to this method.

The contention that this is a simple tax upon an article of personal j>roperty. which, at the moment it is taxed, has readied a condition in which it cannot possibly he benefited by levees, is entirely too narrow. The basis of the tax is not merely (hat the tiling is a bale of cotton, but that it is a hale of cotton which has been produced on land protected by tlie levees, and lias, during- tlie period of its cultivation and growth, enjoyed the benefits of such protection.

Every person who plants, cultivates, gathers or deals with this cotton, from first to last, knows, from this law, that when it passes to the stage of being ginned and baled, it is to pay the specified assessment as an equivalent for the protection it enjoyed during the period of its growth.

Thus the tax, in effect, attaches to the crop from the moment of planting the cotton and adheres until paid.

It is vain to say that a bale of cotton is personal property, and that local assessments can only be levied on real estate. There exists no such constitutional or other restriction on the legislative power. It is true, as Mr. Burroughs says, that “ as a general rule, the local assessment is solety upon land, and not on personal property.” Burroughs on Tax’n, p. 473.

But this is because, ordinarily, land is the kind of property which receives the benefit of such public improvements by increase of value.

Cooley says : “Personal property is not commonly thus assessed. The reason is manifest in the fact that special benefits generally accrue almost exclusively to lands.” He refers to many cases; however, in -which the assessment does embrace personal property as well as land. Cooley, Tax’n, p. 457.

When, as in the instant case, the particular personal property assessed has enjoyed a benefit from the works, to which it owes its existence and preservation, and when the Legislature has, in the exercise of its judgment, determined that it should contribute for such benefit, no principle or precedent can be found which would justify a court in overruling its decision.

VII.

The provisions of the 15th amendment to the Federal Constitution, and of articles 6 and 156 of the State Constitution prohibiting tlie taking of property “without due process of law” and the taking of private property “for public purposes without just and adequate compensation being first paid,” have no application to contributions levied under the taxing power, but only to exactions made in the exercise of the right' of eminent domain.

Cooley says: “that local assessments are an exercise of the taxing power, has over and over again been affirmed until the controversy must be regarded as closed;” quoting a large^ number of authorities. Cooley on Tax’n. 430.

We so held in the Charnock case, 38 Ann. 323;

It is well settled that the foregoing constitutional provisions have no application to local assessments possessing the elements essential to their validity, such as we have held these to be. If they were wanting in these elements, the case would be different; they would then “cease to he taxation and become a taking of private property for public use without just compensation.” Burroughs on Tax’n., p. 467.

We have thus disposed of all the constitutional objections to the law. In reaching our conclusions we have been guided by the following cardinal principles which, though elementary, cannot he too often repeated as fixing the proper relations between the judicial and legislative departments.of tire government:

1st. That tlie legislative department of the State possesses complete and sovereign legislative power except so far as restrained by limitations imposed thereon by the Constitutions of the State and of the United States.

2d. That whoever assails the validity of a legislative act passed in the exercise of legislative power, must point to the portions of the State or Federal Constitutions which, expressly or impliedly, prohibit the adoption of such an act.

3d. That the judiciary, recognizing the right and duly of the Legislature to construe and determine primarily its own power under the Constitution, will never overrule that determination unless clearly convinced of such radical inconsistency between the law aud Constitution that the two cannot be reconciled.

The presages of dire woes to result from the recognition of such power in the legislative department, kre uot, iu our opinion, foreshadowed by tiie prudent and equitable exactions imposed by the present law, which, we trust, will he abundantly repaid by the benefits received. We have, however, indicated, in the present opinion, conservative principles which control and restrain the power and would afford protection iu the improbable contingency that the Legislature should violate the trust that the people have reposed in its wisdom aud patriotism.

The learned judge a quo, in a forcible opinion, reached the same conclusions which we have announced, on every point except the validity of the assessment on cotton.

We are clearly without jurisdiction of the reconventional demand. It. is, therefore, ordered, adjudged and decreed that the judgment appealed from be amended by annulling that portion thereof which partially maintains the injunction, and by now decreeing that the injunction sued out herein he dissolved and plaintiff’s demand he rejected, plaintiff to pay costs of the lower court as of this appeal.


author: Pociié, J.

text:
    No. 9806.
    Succession of Charlotte Piffet.—On Rule of a Legatee for Possession.
    The executors of ;i will who deliver possession of an immovable to tho usufructuary under the will, legally lose seisin of the property, which does not revert, to the suooossion if the usufruct expires before tbe functions of tlie executors bave expired ¡ the usufruct then becomes incorporated with the ownership. Hence, in such a case the legatee of tho naked ownership of the immovable cannot demand delivery of his legacy of tho executors,
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      Fred. J). King for Plaintiff and Appellant.

      T. fíibnore & Sons for the Executor, Appellee.
   The opinion of the Court was delivered by

Pociié, J.

The last will of the deceased contained a special legacy of two x>icces of immovable property, on Bourbon street, in this city, in favor of Josexfh R. Meghill, subject to the usufruct thereof, for his lifetime, bequeathed to J. B. Piffet, the decedent’s husband. The will was x>robated, and in due course Piffet was placed in possession of the property, subject to his usufruct, and Piffet died in September, 1885.

A short time thereafter Meghill, the legatee for the naked ownership of that prox>erty, instituted these proceedings, to be put in possession thereof, on the ground that the usufruct established by the will in •favor of J. B. Piffet had ceased at his death. He made the executor a X»artv to his rule.

The latter made no opposition or appearance by pleadings. On the trial the relief prayed for by x>laintiff in rule was denied for the time being, and further consideration of the rule was postponed to the trial of the opposition of J. B. Piffet, now represented by.his heirs at law, claiming the marital fourth of tbe succession of Charlotte Piffet.

From that judgment Meghill has taken the present appeal.

The District Judge rests his judgment on the following considerations, that in view of the claim urged by tbe Piffet heirs for tho marital fourth, which, if sustained, would take x>recedence over the legacy iu favor of Meghill, i>laintiff in rule, and that by parting with X>ortions of tbe property of tbe succession the executors might eventually be without sufficient means to meet the x>a,yment. of said marital fourth, although many other legacies under a particular title had already been delivered, it was thought proper not to grant the relief prayed for at that stage of the succession. The record is not a condition to justify us in reviewing the reasons of the judge, as wo lind no issue to pass upon. It is true that the consideration adopted by the judge had been suggested, iu argument, by counsel for the heirs of Piffet.

But it appears that the Piffets filed no intervention or pleadings of auy kind. Now the executor, who did not join issue below, states here by brief that he has no interest iu the matter, as his seisin of the property terminated with the delivery thereof to the usufructuary; and that at the end of the usufruct the property cannot revert to the succession, but the possession is then legally joined to the naked ownership.

That proposition is undeniable in law, and hence the executor was not the proper party to be made a defendant in rule.

Article 1630 of the Civil Code provides : “ The delivery of legacies under a particular title must bo demanded of the testamentary executor, who has the seisin of the succession. If the testamentary executor has not the seisin, or if his functions have expired, the legatees must apply to the heirs.”

It is argued by appellant’s counsel that the executors have yet the seisin of the succession; that may be true as to certain portions thereof, but it surely cannot be, extended to a piece of property which is the object of a legacy under a particular title, and which under the will lias gone out of the control of the, executors.

It thus appears to our minds that when this rule was tried there was no issue joined or to be tried before the court, and that the rule should have been discharged for want of parties.

Since the death of Piffet the property in question must be in possession of some one, subject to the right of possession of the legatee of the naked ownership. It is not in the possession of the executors, and it is not intimated that it is in the possession of the succession of J. B. Piffet. The way may be opeu to the legatee, but if he is resisted he lias his proper recourse.

It is therefore, ordered that the judgment appealed from be annulled and set aside, and it is now ordered that the rule for possession by Meghill bo discharged at his costs in both courts, without prejudice to his right of taking possession of the property described in his rule; or of judicially claiming the same in a proper proceeding.


text:
    No. 9908.
    Ella D. Gallion et al. vs. James E. Keegan, Administrator.
    The petition in this case exhibits an action by a former minor arrived at the age of majority against the succession of a deceased tutor, to recover an amount «alleged to be duo by him in virtue of his gestión as tutor.
    As such, it stands in the same position as if the tutor were alive «and the action were directed against him.
    More than four years having ehapsed after the majority of plaintiff before the suit was brought, the plea of prescription of four years is sustained.
    APPEAL from the Eleventh District Court, Parish of Natchitoches. Pierson, J.

      W. B. Butlcmd for Plaintiff and Appellee.

      W. li. Jack for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

A careful scrutiny of the petition filed by plaintiff in this case, satisfies us that it is an action brought by her against the administrator of the succession of her former tutor to recover judgment for an amount due her by said tutor on account of property and funds received by him in that capacity and never accounted for.

Plaintiff was the sole heir of her father, Dewitt Iverson Ellzey, who died in I860. She avers that her grandfather, Wm. Ellze.y, caused her father’s succession to be opened, and was appointed and qualified as administrator thereof, and caused an inventory to be taken showing property to the value of $7,823 ; that, after the death of her mother, which occurred in 1862, her said grandfather “was duly appointed tutor to your petitioner, who was then a minor, and he qualified as such, and he caused an inventory to be taken of all the property belonging to her, which was worth its appraised value say $8,418.10, and that, as such tutor, he took possession of said property and held it under his own control until his death, which occurred about January, 1866.”

She then avers that Keegan was qualified as administrator of the succession of her said grandfather and,former tutor, and has been and still is acting as such administrator; tiiat “he refuses to pay her the balance due her by her former tutor, say $8,418.30, less a credit of $3,600 paid in 1867. * * She avers that she has demanded of said administrator the payment of this amount and that he refuses to pay the same, and she has also demanded that he allow the. said claim which he refuses to do, and that he. also refuses to file an account as administrator of said successions in which she might, force him to tabulate her said claim. She avers that she is now a major and has been long since emancipated by marriage, and has a right to be paid the balance due her by her former tutor out of his succession or estate which is in the hands of his said administrator, J. E. Keegan, but that she has failed to get him to do so after amicable demand, and he also refuses to tabulate her claim;” and she prays for judgment against him for the sum claimed.

The foregoing extracts sufficiently establish the true nature of the suit to be an action against the administrator of a deceased tutor to recover an amount due by him in virtue of his gestión.

It is, in no respect, different from what the action would have been if the tutor were alive and the actiou were directed against him.

Amongst numerous defences, the defendant pleads the prescription of four years under Art. 362 of the Civil Code, providing : “The action of the minor against his tutor, respecting the acts of the tutorship, is prescribed by four years, to begin from the. day of his majority.”

Plaintiff was born in December, 1858; became of age in December, 1879; and this action was only filed on November 8, 1884.

The evidence conclusively shows that the defendant administrator never received possession of any property belonging to the minor.

The inventory of the minor’s estate shows that it consisted of four items, viz : 1st., lands; 2d., slaves; 3d., two beds and bedding; 4th., certain notes and accounts appraised at $2,618.

It is shown that the plaintiff is in possession of the lands and furniture ; and the slaves, of course, were disposed of by emancipation.

Nothing remains to be accounted for but the notes and accounts. One of these notes was that of her grandmother, and on his death-bed her grandfather placed, in a sack, the amount thereof in gold, and gave it to her aunt to be kept for plaintiff, and it was actually paid over to her guardian subsequently appoiuted in the State of Mississippi, whither she afterwards removed.

Another payment on account of another note was made to the same guardian. What became of the remaining notes and accounts is not made certain, but the evidence makes it probable that they were collected in Confederate money during the war. It is shown that the defendant administrator never received or had anything to do with them.

It may be that the deceased tutor was bound to account for these credits and that, if he collected them in Confederate money, such receipt would not have discharged him.

But the plaintiff’s action respecting these “acts of the tutorship” conies too late and is clearly barred by Hie prescription pleaded. Cochran vs. Violet, 37 Ann. 223; Bedell vs. Calder, Id. 805.

We find nothing in the receipts above referred to or in the cither receipts for suras paid plaintiff as one of the heirs of William and Esther Elzey, acknowledging' the claim herein set up or otherwise interrupting or suspending this prescription which only began to run after plaintiff’s majority and is only interrupted by acts after that date as held in the case first above quoted.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be now amended by reversing and annulling that part thereof which gave judgment in favor of plaintiff’s principal demand, as to which it is now decreed that the same be rejected; and as to the reconventional demand, said judgment is affirmed. Costs of the lower court on the principal demand to be paid by plaintiff, and those of the. reconventional demand by defendant, and costs of this appeal to be paid by plaintiff.


author: Watkins, J.

text:
    No. 9852.
    The State of Louisiana vs. Tobe Oliver.
    When tlie accused has been once tried upon a valid indictment, and an improper verdict has been rendered by the jury, from which he has been relieved by the court, upon a motion for new trial and one in arrest of judgment, such former trial does not operate a bar to a further prosecution of accused upon the same indictment, and cannot sustain the plea of “ twice in jeopardy.”
    Narrations of transactions in homicide trials are inadmissible as part of the ras gestas, unless they are admissions of the party charged. Comments and reciials of observers form no part of the res gestas. Statements made by them are hearsay. They should be examined as to what they saw.
    APPEAL from the Second District Court for the Parish of Webster. Drew, J.

      M. J. Oummigham, Attorney General, and J. A. Lowry, District Attorney, for the State, Appellee.

      D. W. Stewart and Watkins <& Watkins for Defendant and Appellant.
   The opinion of the Court was delivered by

Watkins, J.

This case was before us at Monroe in Juue last. 38 Ann. 632.

The accused was indicted and tiled under R. S., Sec. 791, on the ,pharge of wilfully, feloniously and of malice aforethought, shooting Frank Key, with intent, then and there, to kill and murder him, etc.

The jury found him guilty of “ shooting with attempt to Mil.”

On defendant’s motion in arrest of judgment, assigning that the one found by the jury was an illegal verdict, the trial judge arrested judgment, and set it aside and remanded the accused to await a new trial.

Claiming that the effect of the arrest, ol' judgment and setting the verdict aside was to terminate the prosecution under the indictment, the accused brought up the case, and we held the ruling of the trial judge correct, and remanded it for retrial.

r.

On the second trial, in the court below, the objection was urged that the accused cannot again he put upon trial under same indictment, because lis has been ouce in jeopardy, as he was once arraigned thereunder and tried by a jury, and said jury agreed to a verdict, and lie eanuot be placed twice in jeopardy.

This motion and objection .were, by the trial judge, overruled on the ground that the finding of the jury was equivalent to a mistrial, and because there is no such crime denounced by the statute of the State ” as the one of which he was found guilty.

In our former opinion we said : “ Defendant moved for a new trial on several grounds, and also filed amotion in arrest of judgment, on the ground that the verdict is not responsive to the indictment and the variance is fatal, and the accused should he finally discharged, as in effect, acquitted. The two motions were tried together, and judgment was rendered,” etc.

The constitutional provision relied upon is “ that no person nlia.ll he held to answer for a capital crime, unless on a presentment or indiclment by a grand jury; * * * nor shall any person he twice put in jeopardy of life or liberty for the same offense, except on his own application for a new trial, or when there is a mistrial, or a motion in arrest of judgment, is sustained.” Const., Art. 5.

All of its conditions have been fulfilled. The purport of our previous opinion is that the accused was not, in effect, acquitted, as was at that time contended. The former appeal was only entertained upon appellant’s theory, that the effect of the judgment, on motion in arrest, was to terminate the prosecution. Otherwise the appeal would have been dismissed.

'Die judge’s ruling was correct.

ri.

Another bill ivas reserved by the accused 1,o the admission of the declarations of Nancv Key to Allen Webb, as part of the res qestce.

The trial judge assigns the following reasons for admitting the evidence:

“The evidence shows that Allen Webb lived about one hundred or one hundred and fifty yards from the place of the shooting; heard the report of the gun, and the outcry of Nancy Key; and went immediately to the place in a run, making a very short space of time between the firing and the declaration, and what any one said at that time was a part of the res gestee."

The particular objection urged to the reception of the testimony offered on the part of the State, was, that Nancy Key was a third person — a mere observer — and not one of the participants in the transaction; and that her statements are hearsay.

This objection is supported by authority.

Dr. Wharton says: “' It is agreed on all sides that narrations of a transaction are inadmissible, unless admissions by the party charged, etc.” Wharton, Crim. Law, sec. 262.

Again: “ The distinguishing feature of declarations of this class is that they should be the necessary incident of the litigated a.ct. e *

“Under the rule before us, evidence in homicide trials has been received of the exclamations of the defendant at the time of the attack, etc. * * * But the comments and criticisms of observers cannot be introduced as res gestee.

Such persons must be called in court and examined as to what they saw. Their statements made at the time are hearsay. Sec. 263.

Roscoe’s Crim. Ev., p. 23: “In this case it is not the relation of third persons unconnected with the fact which is received, but the declarations of the parties to the facts themselves, or of others connected with them in the transaction, which are admitted for the purpose of illustrating its peculiar character and circumstances.”

Bishop announces the exception to the rule thus:

“ But while the declarations and actions of persons, neither on tried nor injured by defendant's acts, may be admissible to do so, such persons must be otherwise connected ivith the transactions them as mere loolcers-on." 1 Bishop Crim. Ev. Sec. 1087; 38 Ann. 66, State vs. Frank Moore.

The defendant’s objection to the declarations made by Nancy Key to Allen Webb, a witness for the State, should have been sustained and the evidence rejected. It may have exercised a prejudicial effect upon the minds of the jury and against the accused. He is entitled to a new trial.

It is therefore ordered, adjudged and decreed that the verdict of the jury be set aside, and the judgment and sentence thereon based be aunulled, and the cause remanded for further proceedings according' to law.


author: Bermudez, J.

text:
    No. 9666.
    Succession of J. B. Rhodes.
    Iu the absence of proof that the husband has invested his individual funds in the community, neither he, nor hid heirs can claim that the conjugal partnership is indebted for the same.
    An opposition which charges that a claim placed on the tableau was extinguished, is equivalent to a plea-in' compensation, which admits the debt and throws the burden of proof on the opponent.
    "When an account allows no interest on a claim and the account is not opposed to ask the same, the party in whose favor the item was tabulated cannot demand such interest, on appeal.
    This Court will not pass ou issue presented in argument only, and which were not formed by the pleadings below.
    A PPEAL from the Seventeenth District Court parish of East Baton jL JL Rouge. Burgess, J.

      K. A. Gross, for Opponent and Appellees.

      Bead db Qoodale and H. R. Sherburne, for the Administrator, Appellant.
   The opinion of the Court was delivered by

Bermudez, J.

The widow of Rhodes opposes, as tutrix of their minor children, the amount presented by the administratrix.

The opponent avers that the amount allowed the two daughters, by a first marriage of her deceased husband, is not due, for the reason that the community existing during that marriage is indebted to Ms estate in $13,917 invested therein, and which absorbs what residuary interest the deceased wife had therein.

The tutrix opposes, besides, items in favor of the clerk and the attorneys.

By the judgment appealed from, the amount allowed the children of the first marriage was reduced to $1590, as also the items in favor of the clerk and attorneys, and the account, thus amended, was homologated.

Tlie children claim that the item tabulated to them ought to have remained intact, and interest allowed them in addition. The tutrix, however, contends, in her answer to the appeal, that the whole sum should have been stricken out, as entirely extinguished by the indebtedness of the first community to the separate estate of Rhodes.

It is clear that, while admitting impliedly that the allowance to the children of the first marriage was once due, the opponent forcibly insists that the debt was extinguished.

The appropriate technical word, compensation, was not used in the opposition; but it is undeniable that the ground of resistance to l>ayment is that the debt was compensated,. That plea, like payment, imposes the burden of proof on the party urging it.

Apparently, the theory on which this defense rests is that it is enough to show that the husband inherited certain sums, and that, from this circumstance, must be deduced the fact, that the community was pro tanto benefited, and that he has remained a creditor for as much of the conjugal partnership ; but this is a fallacy.

The law demands substantial proof that the amounts were actually invested in the community by the lmsbaiul and the record is barren of all evidence that he has done so.

The real estate acquired during the first community and which was inventoried, as part of its assets, does not appear, either on the face of the titles, or otherwise, to have been paid for out of his separate funds. The price paid ought to have been traced back to the inheritance. This was essentia) to constitute him a creditor of the community. 6 R. 508; 10 R. 18; 11 Ann. 514, 297; 13 Ann. 379; 26 Ann. 605; 30 Ann. 277; 35 Ann. 296, 570. The adverse opinion in the Ealgoust case 6 Ann. 174, is no authority and must be considered as overruled.

The opponent has advanced in argument what might have ottered some sen on snees in reference to the absence of a previous liquidation of the rights of (he issue of the first marriage, as a condition precedent for recovery, but as those matters have not been put at issue by the pleadings they cannot be considered.

Interest cannot be allowed. The account did not propose to give any and it was not opposed by the children of the first marriage. They cannot be permitted to ask on appeal what they ought to have claimed below.

No error was shown in the finding of the district judge reducing the clerks and attorneys fees.

It is therefore ordered and decreed that the judgment, appealed from, as far as it reduced the clerks and attorneys fees, be affirmed, and that in other respects it be reversed; and it is now ordered and decreed that the opposition of the tutrix to the item in favor of Ella and Sarali Rhodes on the amount and tableau of distribution be dismissed with costs, those of appeal to be paid equally by the parties.


author: PochJs, J.

text:
    No. 9848.
    Elizabeth Machado vs. Vincent Bonet, Her Husband.
    The rule of our jurisprudence, which denies the interference of courts in suits for separation between spouses, in cases in which there are mutual wrongs, will not apply to the case of a wife who may be shown to be of a quarrelsome disposition, but whose husband is shown to have been guilty of cruel and outrageous excesses towards her, including the frequent infliction of blows on her, and an attempt to take her life.
    To condemn a woman to live under the authority of a brutal husband, whose excesses and cruelty render her life with him, absolutely unbearable, simply because such conduct has driven her to desparation, culminating in endless quarrels with him and in violent explosions, would he a denial ol' justice.
    APPEAL from tlie Civil District Court for the parish of Orleans, Monroe, J.

      B. <&<T. Skies ami tí. Duplcmtier for Plaintiff and Appellant.

      A. Billings for Defendant, and Appellee.
   The opinion of the Court, was delivered by

PochJs, J.

Plaintiff appeals from a judgment rejecting her demand for a decree of separation from bed and board from her husband, and for the custody of one of the children born of the marriage. Her complaint contains charges of cruel treatment and other causes, including blows and an attempt to take her life, against, the husband,

The defense consists mainly of counter-charges of faults and excesses on the part of the wife.

The testimony goes to some extent to prove mutual wrongs between the spouses, but they are not of the same nature, and we leave the record with the clear conviction that the faults proved against the wile ¡we the natural consequences and the inevitable outgrowth of the systematic, continuous and insupportable persecution which for years she received at the hands ef her brutal husband.

It is in proof that lie daily ill-treated and grossly insulted her, by applying vile epithets to her, ordering her to leave his house, in the presence of their children, of the servants and of visitors who happened to be in the house; that lie frequently struck her with his flat; that on two occasions he inflicted bodily harm on her person by means of things which he threw at her during his anger, and that on one occasion he shot at her with a pistol.

Her greatest wrongs, as shown by ihe record, consisted in retaliating vile epithets at him, and on one occasion during the pendency of a previous suit for separation in which she was non-suited owing to the withdrawal of her counsel, it appears that she broke and destroyed some furniture which officers of the law were about to seize and to remove from her premises at the instance of the husband.

Our examination of the evidence leaves no doubt on our minds as to her right to claim the protection of the law from the excesses of a man whose brutality has gone so far as to endanger her life. Thomas vs. Taillieu, 13 Ann. 127; Dillon vs. Dillon, 32 Ann. 643.

It is therefore ordered that the judgment appealed from be annulled, avoided and reversed, and it is now ordered, adjudged and decreed, that plaintiff do have and recover judgment against the defendant, her husband, decreeing a separation of bed and board between them, and granting to plaintiff the permanent custody of the daughter, Lena Bonet, issue of the marriage, and condemning the defendant to pay costs in both courts.


text:
    No. 9932.
    The State of Louisiana vs. George C. and Lucius E. Tisdale.
    Under sections 1049 and 1052 and others of the lievised Statutes, which are similar to the Victoria Statute of England on the same subject, the common law requirements as to the framing of indictments have been relaxed ; and it is sufficient to charge the dime in the words of the statute, without setting out the particular acts constituting the spe, cial offense charged in the indictment. State vs. McG-rau, 37 Ann. 292.
    APPEAL from the Twenty-seventh District Court, Parish of Rich-land. Williams, J.
    ilí. J. Cunningham, Attorney General, and P. H. Toler, District Attorney, for the State, Appellant.

      E. O. Montgomery for Defendant and Appellee.
   The opinion of the Court was delivered by

Fenner, J.

The indictment charges that accused did feloniously procure to be falsely made a promissory note,” (minutely describing the note), and feloniously did publish as true said promissory note, •* * * knowing the same to be false, with intent to defraud Yale & Bowling.”

Accused moved to quash the indictment “for the reason that no offense denounced by the laws of Louisiana is set forth therein, * * * said indictment fails to allege and specify wherein the note was falsely made, it not being alleged that defendants forged the signature to the note, or that they forged or altered any material part of said note, or that it purported to be a counterfeit or imitation of anything. That there is no allegation of an intent to defraud any person or body politic or corporate. That the charge against them is not set forth with the precision and clearness required by law to enable them to make their defense.”

Prom a judgment sustaining this motion, quashing the indictment, and discharging accused, the State prosecutes this appeal.

In the absence of any reasons assigned by the judge a quo in support of his ruling, and of any argument or brief from counsel for accused, we are left to form our conclusions on the face of the indictment and motion to quash.

Section 833, Revised Statutes declares: “ Whoever shall forge or conterfeit, or falsely make or alter, or shall procure, to be falsely made, altered, forged or counterfeited * ' any prommissory note * * or shall alter or publish as true, any such false, altered, forged or counterfeited promissory note * * ' knowing the same to be false, altered, etc., with intent to injure or defraud any person ° * on conviction shall be punished, etc.”

In what particular the indictment- herein, which follows the words of the statute, is defective, we are at a loss to perceive. The offense charged is distinctly denounced in the statute; the promissory note is described with needless particularity ; the intention to defraud particular named persons is set forth ; and we ñnd nothing in the motion to quash left unanswered by the indictment itself, except the objection that it “fails to allege and specify wherein the note was falsely made, it not being alleged that defendant forged the signature to the note, or that they forged or altered any material part of the note, or that it purported to be a counterfeit or imitation of anything.”

We had occasion, in a recent case, to consider objections of this kind urged to an indictment for forgery, and we then held that, under secs. 1049 and 1052 and others of our Revised Statutes, which are similar to the Victoria Statute, of England on the same subject, the. common law requirements as to the framing of indictments have been relaxed, and that it is sufficient to charge the crime in the words of the statute, without setting out the particular acts constituting Hi© special offense charged iu the indictment. State vs. McGran, 37 Ann. 292.

The same rule applies in this case, and, as we then said, it. was not necessary to ‘'charge in what respect or particular (he, writing has been forged, i. e. whether the name was forged' or a figure altered or inserted, or any other like act that constitutes forgery.”

It. is therefore ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and that the case he remanded to be proceeded with according to law.