author: Blanchard, J.

text:
    No. 13,485.
    Breaux-Renoudet Cypress Lumber Company vs. H. H. Shadel et al.
    Syllabus.
    1. A vendee purchasing immovable property in an act of sale reciting “with no warranty whatsoever of title”, it, with other circumstances here shown, suffices to put him on enquiry as to the title he is acquiring.
    -2. 1-Ie who is thus put on enquiry and does not avail himself of the means and facilities at hand to inform himself of the true facts, can claim no greater consideration than can they whq knew the true facts and yet acted to their peril.
    :3. Under the circumstances here disclosed it is held the vendees could not have believed themselves the true owners. In the absence of such belief they can be regarded in no other light than as intruders on the land.
    -4. Being such they can neither claim to be paid the expenses incurred in deadening trees on the land, nor the trees which they felled, or their value.
    APPEAL from the Nineteenth Judicial District, Parish of Iberia— Voorhies, J.

      Foster & Broussard for Plaintiff, Appellant.

      Walter J. Burke & Bro. for Defendants, Appellees.
   The opinion of the court was delivered by

Blanchard, J.

Plaintiff company claims the ownership of certain swamp lands, together with all the timber thereon, whether standing or felled, green or deadened. Among the several tracts of land described” by legal subdivisions is the N. W. 1-4 of section 4, township 12 south, range 8 east.

Defendants are sued as having entered upon the lands, claiming ownership and deadening, trailing, cutting and removing trees and! timber therefrom.

Writs of sequestration and injunction were invoked, the first to seize the timber severed from the soil, the second to prevent further depredations upon the land.

Against the demand, defendants interposed the plea of the general issue, and a claim of title to the N. W. 1-4 of section 4, above referred to. They assert no claim of ownership to the other lands described1 in plaintiff’s petition.

Their contention is that under their title to the land in Section 4, they entered upon the same for the purpose of cutting and removing timber, did cut a number of trees, and deadened and trailed a number of others preparatory to cutting and removing. ,

The trees thus cut they were prevented from removing by the writs v. hich issued herein, and the allegation is made that plaintiff company subsequently floated the same out. and used them for their own purposes.

It is also averred that plaintiff cut and removed without compensation to them (defendants) the trees which had been deadened and trailed, but not cut when the writs issued.

They prayed for rejection of plaintiff’s demand, for dissolution of the writs with damages, to be decreed the owner of the timber cut by them ^and removed by plaintiff, and for judgment against plaintiff for $1,500.00 the value thereof, and for further judgment against plaintiff for $250.00 expenses incurred on account of work done in the deadening and trailing of trees afterwards cut and removed by plaintiff.

The judgment below confirmed plaintiff’s title to all the land claimed and perpetuated the writs of sequestration and injunction.

It sustained defendants’ demand in reeonvention to the extent of awarding them a decree against plaintiff for $251.35 for work done in deadening and trailing trees upon the land awarded plaintiff.

From that part of the judgment last described plaintiff appeals.

Defendants have not appealed from the judgment rejecting their demand of ownership to the land in Section 4; neither have they joined in the appeal by answer filed here, asking amendment of the judgment of 'the court a qua in any respect.

The only question before us, then, is as to the correctness of the moneyed judgment in favor of defendant.

■ Its proper solution depends upon whether or not defendants are entitled to be considered possessors in good faith of the land upon which they deadened and trailed the frees, for the expense of which the award is made.

The work was done upon the land embraced in Section 4 aforesaid. This, as we have seen, defendants set up title to. Their claim of title is predicated upon an act of sale, dated May 19, 1891, from one Florian Toffier to them. A reference to this act shows that Toffier conveyed to them an undivided half interest only in and to the N. W. 1-4 of section 1, T. 12 S., R. 8 E., together with a like interest in other lands.

It seems, from references made in the act, that one Joseph St. Martin claimed the ownership of the other undivided half interest. That is to say, the act recites that Toffier and St. Martin acquired the land in Section 4 by a patent from the State issued in their joint names in January. 1889. This patent is in evidence.

St. Martin, as to whatever interest he had, never conveyed the same to defendants.

Defendants, then, as a basis for their entry upon the land in Section 4 and cutting and removing timber therefrom, never had anything beyond an act of conveyance of an undivided half interest in and to the same. Not only that, but this act of conveyance of the undivided half interest expressly excluded warranty of title. The words used were: — “With no warranty whatsoever of title.”

In State ex rel. Hake vs. Judge, 52 La. Ann. 105, this court held that “an owner in indivisión of timber lands has no right to cut the timber of such land without the consent of his co-owner, and if he attempt to do so, may be stopped by injunction, for the act is in the •nature of a trespass, and such injunction is not one which may be dissolved on bond.”

Defendants did not aver or show any consent of their co-owner, St. Martin — supposing the title claimed by these parties through the State be good — to' cut the timber from the land.

As to St. Martin, then, who does not figure in any way in the case, they might be held to be trespassers.

But St. Martin is making no complaint and this is referred to merely to show that a title to 'lands held in indivisión with another, taken by itself, is an unsafe foundation to predicate the theory of good faith upon when a charge of trespass or intrusion upon lands for the purpose of cutting timber is made.

At the time the State issued its patent to Toffier and St. Martin for the N. W. 1-4 of Section 4, it had no title to convey and therefore conveyed none. This quarter section had never been approved to the State by the Secretary of the Interior.

On the contrary, the title to the same, at that time and for more than thirty years previous, was in Joseph Loreau and his transferrees. Loreau had located upon it in the year 1847 Internal Improvement Warrant No. 112. By sanctioning and approving this location the United States vested title in Loreau.

Thereafter the land ceased to be part of the public domain, and when, later, ignoring Loreau’s location, the State selected the quarter section under the swamp land grants, the Department at Washington rejected the selection.

In 1875 Joseph Loreau, having died, an act of partition between his widow, Jrma Boutte Loreau, and his only heir, J. A. Loreau, was executed, by which the latter acquired in full ownership the quarter section in question.

In 1879 he sold it to L. Dugas; in January 1891 Dugas sold it to M. L. Broussard; and in 1895 Broussard sold to the plaintiff.-

These sales were by public act and were all duly and seasonably recorded in the conveyance records of the parish where the land is situated.

They thus exhibited upon the public record a perfect chain of title adverse to that under and through which defendants claim.

The object of the registry laws is to make apparent the ownership of property, and wherever such ownership appears on the public records, by proper titles, that object is attained. Notice is thereby given and no careful person can he deceived. Stockton vs. Briscoe, 1 La. Ann. 249; 6 La. Ann. 773.

When, therefore, Florian Toffier, in May 1891, sold or pretended to sell to defendants an undivided half interest in the land with an express exclusion of warranty of title, it was, we think, under the facts of this case, sufficient to put defendants on inquiry as to the title, and they are to be considered as having' bought at their risk and peril. Cannon vs. White, 16 La. Ann. 85; Moore vs. Pontalba, 13 La. 571; Duplissis vs. White, 6 La. Ann. 514.

Having thus purchased and having' gone upon the land under these doubtful circumstances, defendants can not claim to be possessors in good faith.

Good faith is “an honest intention to abstain from taking any unconscientious advantage of another, even through the forms and technicalities of the law, together with an absence of all information or belief of facts which would render the transaction unconscientious.” A. & E. Ency. of Law, Vol. 8, p. 1361.

It can not be claimed for defendants that in making the purchase from Toffier there was an absence of all information or belief as to the facts. Toffier virtually told them of the doubtfulness of his title. He put them on guard. C. C. 508, 3451, 3452, 503; McGill vs. McGill, 4 La. Ann. 262.

If they did not proceed to inform themselves they were wilfully blind. Millaudon vs. Police Jury, 8 N. S. 132. Those who are thus put on inquiry, and will not avail themselves of the means and facilities at hand to inform themselves of the true facts, can claim no greater consideration than can they who knew the true facts and yet acted to their peril.

Under the circumstances here disclosed defendants could not have believed themselves the true owners.

Louquefs Digest — Possession II (b) No. 2, p. 561.

In the absence of such belief they can be regarded in no other light than as intruders on the land. Being such they can neither claim to be paid the expenses they incurred in deadening the trees, nor the trees which they felled, or their value. C. C. 502.

The expenses which they incurred were not such as were necessary for the preservation of the thing, and it may well be that the true owner may have preferred that the primitive forest should remain.

It is, therefore, ordered and decreed that so much of the judgment of the District Court as awards defendants the sum of two hundred and fifty-seven and 35-100 dollars on their demand in reconvention be reversed and annulled,- and that in other respects the said judgment remain undisturbed — costs of both courts to be borne by defendants.

Breaux, J., recused on account of interest.

Watkins, J., takes -no part — absent on account of illness.

Rehearing refused.


source: Caselaw Access Project

author: Blanci-iard, J.

license: Public Domain

text:
    No. 13,526.
    Jean Lafitte vs. City of New Orleans.
    Syllabus.
    1. Where a vendee buys lots or, squares of ground according to a subdivision, he becomes committed to the streets forming part of the subdivision and cannot be heard to dispute their existence.
    2. He cannot take the position the streets are not physically laid off, and it makes no difference that they had not been actually opened to use.
    3. It is for the city authorities to say when they should be opened, and no prescriptive right to keep them from being opened can arise in his favor.
    4. The dedication having taken place, the city authorities exercised but a proper police power when directing and enforcing their opening.
    5. Plaintiff could not acquire such possession of land thus dedicated for streets as entitles him to maintain a possessory action when disturbed in his occupancy by the city officials charged with the duty of opening the streets.
    6. If the officials were to lay out and open the streets on wrong lines, or were to impinge on his rightful limits in so doing, he would have a complaint and a right of action to enforce the proper lines. But until that contingency arises his rights are not invaded and he is without cause of action.
    APPEAL from the Civil District Court, Parish of Orleans— St. Paul, J.

      A. B. Philips and Albert Voorhies for Plaintiff, Appellant.

      James J. McLoughlin, Assistant City Attorney, and Samuel L. Gilmore, City Attorney, for Defendant, Appellee.
   The opinion of the court was delivered by

Blanci-iard, J.

This cause was before the court a year ago on the question of plaintiffs right to a preliminary injunction to restrain the defendant from opening Bruxelles street. Considering the answer then submitted by the city and tihe showing made not sufficient, an order was entered directing an injunction to issue pendente lite. See State ex rel. Lafitte vs. Judge, 51 La. Ann. 1768.

The case now comes up on its merits. The judgment below affirmed the city’s right to open the street as she was proceeding to do, and dissolved the injunction. Plaintiff appeals.

It appears from the record that plaintiff purchased in July 1897, at public sale (by auction) a number of squares and parts of squares in an outlying section of the City of New Orleans and within its corporate limits.

The various pieces of property he thus bought were all conveyed to-him in one deed, but each square or part of square was separately-described.

Among the squares and parts of squares thus purchased were those numbered 2132, 2133, 2293 and 2294 on .the official plan of the City of New Orleans.

In his title deed it is recited that square No. 2132, the half of which he purchases (the particular half being described), is bounded by Bruxelles, Pleasure and Harmony streets, and Paris avenue.

It is recited that square No. 2133, nearly the whole of which he purchases, is bounded by Pleasure, Bruxelles, Harmony and Warsaw streets.

It is recited that square No. 2293, only a small part of which he purchases, is bounded by Bruxelles, Pleasure, Warsaw and Richelieu, or White, streets.

And it is further recited that square No. 2294 is hounded by Paris avenue, Pleasure, Bruxelles and Richelieu, or White, streets. He buys "all of this square, save a small triangle forming the corner of Richelieu; and Bruxelles streets.

In his petition plaintiff avers his ownership of squares Nos. 2133 and 2294 on the plan of the city of New Orleans, and his ownership of one-half each of the squares Nos. 2293 and 2132 on said city plan.

He alleges that the said squares, the ownership of which in whole or in part he claims, are bounded by Paris avenue, Warsaw, Harmony and' Richelieu streets.

That is true. The four squares formed into a solid block would be bounded, as the map shows, by Paris avenue, Warsaw, Harmony and' Richelieu streets. But he did not buy them as a solid block. He bought each square separately as bounded by certain streets named, and the very map; tó which' both his petition and his deed refer, shows that •squares Nos. 2132 and 2133 are opposite each other, that squares No. 2293 and 2294 are opposite each other, and that between them runsc Bruxelles street.

Thus, squares 2132 and 2294 are bounded on one side' by Paris avenue, on the other by Bruxelles street; squares 2133 and 2293 are bounded on one side by Bruxelles street, on the other by Warsaw street.

Between squares 2132 and 2294, and between squares 2133 and 2293-runs a street called Pleasant street.

Long before plaintiff purchased,, the land forming these and other squares in that part of the city had been subdivided into lots, blocks, squares and streets, and the streets bordering the several squares had been dedicated tothe public.

In Land vs. Smith, 44 La. Ann. 931, it was held that where an owner of land within the corporate limits of a town or -city had subdivided the same into lots, blocks and streets, a sale of lots bounded by streéts thus laid out was a dedication of the streets to public use, and that the plan or map by which property'is thus sold binds both vendor and vendee. A sale of lots with reference to a plat showing a subdivision, defining streets, squares, etc., or describing lots as bounded by streets, will amount to an immediate and irrevocable dedication of the latter binding upon both vendor and vendee. Dillon on Municipal Corporations, 3rd Ed. Vol. 2, § 640; Scheen vs. Stothart, 29 La. Ann. 630.

Hence, when the plaintiff bought according to the subdivision in question he became committed to the streets forming part of the subdivision and can not be heard to dispute their existence.

He can not take the position that the ¡streets are not physically laid off, and it makes no difference that they had not been actually opened to use. It was for the city authorities to say when they should bq opened, and no prescriptive right to keep them from being opened could arise in favor of plaintiff. Ice Co. vs. City, 43 La. Ann. 217; Alexandria vs. O’Shee, 51 La. Ann. 720; Dillon on Mun. Cor., 3rd Ed., Vol. 2, § 670; Scheen vs. Stothart, 29 La. Ann. 630; Secs. 14 and 15, Act 45 of 1896.

He had no right to fence up the streets, and if he found them fenced when he took possession that gave him no right to keep them fenced. So long as the city did not act his fences might remain, but merely on sufferance.

When the city authorities decided to act and open the streets he must submit and remove his fences so that the streets might come into use by the public.

The plan of the subdivision showed the streets, their place of location,. width,, etc., and the dedication having- taken place, the city authorities .exercised but a proper police power when directing- and enforcing their opening. Daublin vs. Mayer, 1 M. 100 (184); Dillon on Mun. Cor., 3rd Ed., Vol. 2, § 680; Scheen vs. Stothart, 29 La. Ann. 630; Henderson vs. Mayor, 3 La. 563.

The plaintiff has no cause of complaint — he gets and holds all the land he bought, and the public acquires the possession and use of the streets dedicated by the owner at the time the subdivision was made.

■ The plaintiff could not acquire such possession of land thus dedicated for streets as entitles him to maintain a possessory'action when disturbed -in his occupancy by the city officials charged with the duty of opening- the streets. See Jefferson Ry. Co. vs. Esterle, 13 Bush (By.) 667.

If the officials were to lay out and open the streets on wrong lines, or were to impinge on his rightful limits in doing so, he would have a complaint and a right of action to enforce the proper lines.

But until that contingency arises his rights are not invaded and he is without cause of action.

There is no pretense that the proposed opening of the streets is-on wrong lines. It is not true that'the officials are about to enter upon his property. It is public property — streets of the city — they are entering upon, and plaintiff’s case falls as soon as a dedication is shown.

In opening streets thus dedicated the officials had the right to cut and remove fences and other obstructions found upon the public property. The evidence shows that after allowing plaintiff the full dimensions of his squares and parts of squares, there is still full measure for all the streets shown on the plan of subdivision, including Bruxelles street.

The court d qua lias decided the case correctly and this judgment is, accordingly, affirmed with costs.

Rehearing- refused.


text:
    No. 13,532.
    George Schenck et al. vs. Jacob Schenck et als.
    Syllabus.
    1. Whether or not a Sunday advertisement of a judicial sale is legally sufficient must be determined by tlie codal and statutory provisions of the law of Louisiana.

      2. As to immovable property, the only requirement is that the advertisement must appear once a week for the full term of thirty days. The law does not say thirty judicial days. If it did, then Sundays and legal holidays would have to be excluded. Where the law has made no exception it is not the province of the court to supply one.
    3. The law is' fulfilled when the advertisement appears “once a week” during the publication period. Sunday is a day of the week — the first day of the week. Its' appearance, then, on Sunday is an appearance during the week of which "Sunday is the first day.
    IN RE. George Schenck Applying for Certiorari, or Writ of Review, to the Court of Appeals, Parish of Orleans, State of Louisiana.

      Dart and Kernun (Barritóla and Lucros of Counsel) for Petitioner.

      A. J. Lewis for Herman Bremmermann, Adjudicatee, Respondent.
   The opinion of the court was delivered by

Blanchard, J.

The question here presented is, whether a judicial advertisement of property, ordered by a decree of court to be sold to effect a partition, made or appearing in a newspaper published on Sunday, is a legal advertisement.

The Court of Appeals held it was not. This court, deeming the case of the. character and importance justifying its being brought here, granted, its writ of review and the case is before us on the issue stated.

The immediate litigation had its origin in a rule taken on Henry Bremmermann to enforce compliance on his part with the bid he made for the property when it was offered at auction. He was the last and highest bidder and it was adjudicated to him.

He refused to accept title on the ground of alleged insufficiency.

Various defences were raised by him in the District Court, including, the one based on the Sunday advertisement. That tribunal decided them all against him. Whereupon he prosecuted an appeal to the-Court of Appeals, with the result that, while holding against him on all the other grounds set. up, the court considered his defense as to the want of legal sufficiency of the advertisement good, and reversed the judgment of the District Court.

, The writ of review was granted only as to this branch of the case. It was the only one presented in the .petition applying for the writ, and the only one argued in the brief of the applicant.

. If is considered, therefore, that the-ease is presently before us only on the question heretofore stated.

■’Whether or not & Sunday advertisement of a judicial sale is legally sufficient must be determined by the codal and statutory provisions of tHe law of Louisiana.

The record shows auctioneers in the past have regarded it as sufficient. The practice and usage with them has been to advertise in the Sunday issue of the newspapers just as in the issue'of any other day of the week, making no distinction in days, and holding all advertisements, whether on Sunday, or Monday, or other days, equally efficacious. Many titles to real property in the State would be found to rest in part for security on advertisements appearing in public journals issued on the first day of the week.

Immovables require thirty days’ advertisement. C. C. 1167, 1339. Their sale can b.e made only thirty days after the first notice.' C. P. 670. And Sundays are always included in this computation of the time.

The rule laid down in McDonough vs. Gravier, 9 La. 532, was that immovable property must be advertised for thirty days excluding the day when the advertisement commenced and the day of sale, so that thirty clear days must elapse between. All days, therefore, between the date of the first advertisement and the sale are counted, Sundays as well as other days.

C. C. 1117 says: “For those advertisements for which the term of thirty days is fixed, it suffices if they are published in the newspapers * * * once a weelc during that time.” (Italics ours.)

' Sundays are ‘to be included in the thirty day period unless expressly excluded. See "State Ex Rel. Pharmaceutical Association vs. Michel, Secretary of State, 52 La. Ann. 942.

The law-maker has not excluded Sundays therefrom. If he had, the advertisement on that 'day would be insufficient. The only requirement is that the advertisement must appear once a weelc for the term of thirty days.

If then, Sunday is to be counted as one of the thirty days, why may not the appearance of the advertisement on one or more Sundays during that time, as was the case here, suffice? Such would seem to be'the common sense of the proposition.

Suppose no newspaper appeared on any other day — that the only paper published in the parish where the property to be sold is situated, was a Sunday paper. What then?

’ The requirement of law is that judicial sales of immovable property must be preceded by advertisement in a newspaper for a term of thirty ■days. To fulfill this requirement, if a newspaper is published in the parish, the advertisement must be inserted therein once a week during that time If the newspaper be a Sunday issue only, then, ex necessitate rei, the advertisement can appear only on Sunday. Would it be an illegal advertisement % Surely not.

The' law does not say thirty judicial days. If it did, then Sundays and legal holidays would have to be excluded. But where the law has made no exception it is not the province of the court to supply one.

We have a “Sunday law” in Louisiana prohibiting the exercise of secular avocations on that day. Certain exceptions are enumerated, among them newspapers. They may appear on that day as on any other. Act 18 of 1886.

The publication, then, of a newspaper on Sunday is recognized by the law as proper and legal. At least, a Sunday newspaper is not an unlawful publication, and no statute of the State warrants us in declaring that a judicial advertisement appearing in such publication on Sunday 'is illegal and invalid.

To make such advertisement on Sunday unlawful the law must expressly so declare. It has not done so.

In holding as above, we express no opinion concerning the wisdom .and propriety of such advertisements on Sundays. That is a field which this court properly leaves to others. See Hastings vs. Columbus, 42 Ohio State Reps. 593.

Certain cases in other jurisdictions have been cited as sustaining a •contrary view to that taken herein. But they are found to rest upon the terms and construction of local statutes, or else to be differentiated from the instant case in that the notice published stood in the place of process of court.

Thus, Shaw vs. Williams, 87 Ind. 158, held the publication of notice •of sheriff’s sale in a Sunday newspaper to be void.' But that was because the same was forbidden by the Indiana statute.

The case of Sawyer vs. Cargile, 72 Ga. 290, which held that the publication of notice of a marshal’s sale for taxes in a newspaper on Sunday was not legal, appears to have been based on a statute of that State and on decisions of the courts there, construing the statute to prohibit •such publication on Sunday.

In Scammon vs. Chicago, 40 Ill. 146, where it was held that in publishing a notice required by law to be published six days, when one of the six days upon which the notice appeared in print was Sunday, the same could not be counted, it appears that under the statute which there obtained, the notice stood in pldce of process. The proceeding was one in rem against certain lots of ground in the City of Chicago to make them amenable for an assessment for street paving.

The “process phase” of the question cannot be claimed for the advertisement we are here considering.

This kind of judicial advertisement is to be differentiated from those where the notice published is intended to operate as a citation to all persons concerned, as for instance the publication of notice of the filing of a tableau, or an account, by a succession representative.

In the latter cases the publication is the method devised and ordered by the law for calling upon all parties having an' interest — citing them — to appear and make opposition, if any they have, or take proceedings necessary to protect their rights in the premises.

In the former case — the one at bar — due process of law was had in the suit for partition of the immovable property owned in common. There was a judgment decreeing the property not susceptible of division in kind and ordering it sold to effect partition. The law requiring that in such ease the sale must be preceded by thirty days’ advertisement, the sheriff proceeded to advertise it and did advertise it for that period. It is clear the only purpose this advertisement could subserve, or was intended by the law to subserve, was to give publicity, .to let the general public know this sale would take place at a given time and place, and inviting the presence of competitive bidders — all with the end in view ¿of realizing to those concerned as large a price as possible for the property offered.

See State ex rel. Elliott vs. Halliday, 35 Neb. 333.

This notice to the public — the widespread advertisement of the property for sale — was as fully effected, indeed more so, by the publication of the 'same in the Sunday issue of the paper, as in an issue on a day other than Sunday.

The sheriff or auctioneer may not actually auction off the property on Sunday. He must not advertise it to be sold on Sunday. Special laws prohibit this. But the newspaper, to which the advertisement is-given for publication' once a week during thirty days, fulfills the law when it causes the same to appear in its regular issue on any day of the-week. ■ • -

- The law says simply that the advertisement suffices if it appear “once-a week” during the publication period. C. C. 1117.

Sunday is a day of the week — the first day of the week. Its appearance, then, on Sunday is an appearance during the week of which Sunday is the first day. As the law is written so must it be observed and, enforced.

Eor these reasons, it is ordered and decreed that so much of the judgment of the Honorable Court of Appeals as holds void the notices of sale published on Sundays be set aside, and such publications are now adjudged and decreed to have been sufficient in law and valid judicial advertisements.

It is further ordered, .etc., that this cause be remanded to the Court of' Appeals with instructions to revise its judgment in accordance with the views of this opinion and decree — costs of both courts to be borne by defendant in rule.

Rehearing refused.


text:
    No. 13,244.
    B. A. Madden vs. I. B. Jacobs & Co. et als.
    Syllabus.
    Plaintiff having been engaged for ’a year as clerk, the destruction by Are of the business house and stock of goods of ,tlie defendants, and the subsequent dissolution of the Arm and its retirement from business, did not, in the absence of a reservation of the right of discharge for these reasons, absolve defendants from the obligation contracted with him to retain his services at -tfie salary stipulated; through the remainder of the year.
    IN RE B. A. Madden Applying for Certiorari, or Writ of Review, to the Court of Appeals, First Circuit, State of Louisiana.

      ■Dorman & Reynolds for Petitioner.

      J. C. Theus for Respondents.
   The opinion of the court was delivered by

Blanchard, J.

Plaintiff was employed by defendants as a clerk in their mercantile establishment for one year at a salary of $55.00 per month during that time.

The contract period was the year 1898, beginning January 1st and; ending December 31st.

On January 22nd of that year the house in which defendants did ■business, together with their stock of goods and fixtures, was destroyed by fire.

Following- this defendants ceased to do business — did not resume or reopen.

Then, in the early part of March, the firm was dissolved, and at that time, or just following the dissolution, plaintiff was notified! his services were no longer required.

A settlement was made with him up to the time of his discharge, but we do not find that this was accepted by him in full settlement of his claims under his contract.

• In April following he brought the present action claiming his year’s wages, $6(30.00, less $130.00 received by him on account thereof.

He averred his discharge without just cause or complaint and that he had at all times held himself ready to perform the services stipulated for in his contract.

The firm having been dissolved, no answer on its behalf was filed. One of the members thereof, I. B. Jacobs, sued also in his individual ■capacity, alone makes defense. The other partner filed no appearance.

Judgment favorable to plaintiff having been rendered by the district judge, defendant Jacobs prosecuted an appeal to the Court of Appeals.

That tribunal reversed this judgment and rejected plaintiff’s demand.

■ This court, considering the “case one calling for the exercise of its ■discretionary power of review, issued its writ and the cause is now before us under the operation thereof.

The question presented by the issues tendered is whether the destruction by fire of the business house and stock of goods of the defendants, ■and the subsequent dissolution of their firm, absolved them from the obligation contracted with the plantiff to restain him in their employ, -at the salary stipulated, through the remainder of the year.

The contract between the parties was not reduced to writing, but it is not pretended that defendants reserved the right to cancel the agreement in the event a fire occurred destroying their business house and ■stock of goods, or in the event a dissolution of the firm should occur, or if for any cause the business should cease to be conducted.

It was a plain and simple contract of hire. They stipulated to engage his services for a year at a stipend agreed upon.

Before the year was out a fire occurred, the firm dissolved and the business in which defendants were engaged ceased to be carried on.

Did the happening of these things give defendants the right to cancel the contract? We must hold not, in the absence of a reservation of such right. Hotchkiss vs. Gretna Ginnery, 36 La. Ann. 517.

C. C. 2749 seems to answer the question propounded. “If, without any serious ground of complaint, a man should send away a laborer whose services he has hired for a certain time, before that time has. expired, he shall be bound to pay to such laborer the whole of the salaries which he would have been entitled to receive had the full term of his services arrived.”

Repeated adjudications by this court in the past have affirmed and enforced the principle here announced. 1 R. 319; 16 La. 360; 12 La. Ann. 697; 5 R. 91; 11 R. 290; 23 La. Ann. 495; 26 La. Ann. 369; 22 La. Ann. 112.

Plaintiff was not discharged because of “any serious ground of complaint” against him. Nothing of the kind is set up in the defense. He was discharged because the firm went out of business and no longer had need of his services. This was not sufficient. Hotchkiss vs. Gretna Ginnery, 36 La. Ann. 518; Sherburne vs. Orleans Cotton Press, 15 La. 360.

The dissolution and going out of business by the firm was not necessarily the result of the burning of their house and stock of goods. Nothing is more common in business life than for a business concern to rise “phoenix-like” from its ashes, and, building another house or securing another location, continue business.

The burning of the house and goods was not necessarily the destruction of the business. Another house is generally easy to secure and other goods may be had by means of money and credit.

It is not shown that the fire' forced suspension of business and dissolution, though we are not to be understood as expressing the opinion that had the same been shown it would have relieved defendants.

For aught we know defendants might have continued business had they chosen to. The dissolution of the firm and its retirement from business may have been purely voluntary.

It does not appear that defendants even sustained a loss by fire.

Insurance policies usually protect wholly or partially against such loss. The record is barren of information on these points.

The case is,, we think, with the plaintiff, and, accordingly, it is ordered and decreed that the judgment of the Court of Appeals be set aside, and that the judgment of the District Court stand as the proper adjudication and determination of the issues presented, costs of all the courts to be borne by defendants.

Rehearing refused.


text:
    No. 13,258.
    Widow and Heirs of Paul Koerber vs. The Orleans Levee Board, The City of New Orleans, Alonzo C. Bell, Otto Thoman and William G. Mitchell, in Solido.
    Syllabus.
    The Mississippi river in 1897 menaced the city of New Orleans with inundation. The protection levee at the upper line of the city, running from the river bank to the swamp, required strengthening and raising. The fast rising waters created an emergency and to meet it prompt action by the Levee Board was necessary. There was no time to take out regular expropriation proceedings and so the officials entered upon plaintiffs’ vacant lots bordering the levee and excavated from the same earth needed to raise and strengthen the levee at and near that point. A suit for damages followed and pending it the Levee Board caused the lots to be refilled. Held, the circumstances warranted the entry upon the property and the takifig of the earth for the purpose named; but the Board owed it to plaintiffs to refill the lots plus rather than minus. The refilling is found to be scant, and for this deficiency plaintiff is entitled to recover, as also for damage to the property by reason of restricted ingress to and egress from it, occasioned by works of defendant Board.
    A PPEAL from the Civil District Court, Parish' of Orleans— .ft. Ellis, J.

      Guslave V. Soniat and Olearle W. Besancon for Plaintiffs, Appellants.

      Bernard MhOlosleey for Defendants, Appellees.
   The opinion of the court was delivered by

Blanchard, J.

This case was before the court at a former term. See 51 La. Ann. 523, where a statement of the case and essential facts are given.

The opinion and decree then handed, down negatived the demand for ■damages growing out of the arrest of one of the plaintiffs and for the alleged trespass on their property. Also the contention that the case is one where exemplary damages should be awarded.

But expression was given to the belief that the judgment appealed from, which was in favor of the defendants, failed to mete out exact justice between the parties.

It was said that while it was considered plaintiffs’ property had been legally taken, this had been done “somewhat harshly,” and that it was the duty of the defendants, who practically represent the State, “to have saved plaintiffs thoroughly harmless under the circumstances.”

It was deemed advisable, in the interest of justice, to remand the cause, to the end of its consideration anew in the trial court on the questions, (1) as to whether when the refilling of the lots by defendants took place the work of replacement had been sufficient; (2) the extent to which the property had been damaged, if at all, by reason of restricted access to the same as the result of changes affected in one or more of the streets bordering thereon.

True, the latter of the two propositions had not been specifically set up as ground for damages in the declaration filed, but evidence touching same was received without objection, and the court, in its former opinion, thought it an issue in the ease sufficiently so to justify its inclusion in the grounds for remanding.

We are satisfied that plaintiffs take an extreme view of the injury inflicted on their property.

In iSDI, when the occurrence which gave rise to this suit took place, the Mississippi river was very high, the danger line had been reached and passed by the rise of the waters and a great flood was threatened.

The levee on the line between the Parishes of Orleans and Jefferson, running from the river back to the swamp, was depended on to protect the City of New Orleans from inundation should a break occur in the line of levees above the city and 'in its vicinity.

The protection levee was not deemed strong enough and it was determined to strengthen it and raise it. The fast rising waters created an emergency, and to meet it promp action by the Levee Board was necessary.

There was no time to take out regular expropriation proceedings, and so the officials entered upon plaintiffs’ vacant lots and excavated from the same earth needed to raise and strengthen the levee at and near that point.

Plaintiffs protested and then brought suit. While the suit was pending, and following the subsidence of the waters, defendant Levee Board caused the lots to be refilled. In other words, it replaced the earth taken from the lots with other earth.

The contention of plaintiffs is that this refilling was scant. ' The evidence satisfies us this is so.

Even the engineer of the Board, called as a witness, admits this. He says: — “I am prepared to swear to the best of my opinion and from information I was able to obtain at the time, that they (the lots) are filled as before within an inch or two.”

The Levee Board, under the circumstances, owed it to plaintiffs to refill the lots plus rather than minus.

Instead of leaving the filling scant an inch or two, it were better to have filled an inch or two higher than was the level of the ground before the entry was made.

Had this been done plaintiffs would have had no just complaint on this score. As it is they have a cause of grievance, and the. rule de minimis can be allowed no application under the circumstances.

Certain of the witnesses called by plaintiffs testify the ground is lower now by eight or nine inches than it was before the entry. But we are satisfied this is an extreme statement.

It is largely a matter of opinion and estimate, for the levels at the time of the excavation were not taken. The Levee Board was at fault in not having this done.

We are also of the opinion that some damage to the property is shown by restricted ingress to and egress from it, occasioned by works of the defendant Board.

But in saying this we are to be understood as limiting its application to this particular property because of the peculiar circumstances surrounding plaintiffs’ case.

Without going into a discussion of the evidence adduced, on the one hand in support of, on the other against, the claim for indemnification, we have arrived ut the conclusion that plaintiffs should have judgment for some amount, and giving due weight to the estimates and opinions of the witnesses, and taking into consideration the value of the property, which is about $1,000.00, we think $250.00 will suffice as adequate compensation all told.

It is, therefore, ordered and decreed that the judgment appealed from be avoided and reversed, and it is now adjudged and decreed that plaintiffs do have and recover of the defendant, the Orleans Levee Board, the sum-of two hundred and fifty dollars, with legal interest from judicial demand, and all costs of suit.


text:
    No. 13,388.
    Tutorship of Minor Heirs of J. I. Kidd, Deceased. Succession of J. I. Kidd.
    Syllabus.
    In a letter written some years before bis death a father acknowledged receipt of certain property and funds which his father-in-law had donated to his wife, referring in the letter to an entry in a book kept by the father-in-law in which a memorandum of the donation was made. The notarial act of donation itself having been destroyed by fire, in the effort to prove its contents both the letter of the father and the entry in the book of the father-in-law, now deceased, are admissible in evidence, the identity of the book and proof of handwriting being first established.
    APPEAL from the Third Judicial District, Parish of Lincoln— Barlssdale, J.

      J. B. Holstead for Plaintiff, Appellee.
    .. Graham & Pearce for E. S. Kidd, Opponent, Appellant.

      Fred. W. Price for Minors, Appellees.
   The opinion of the court was delivered by

Blanchard, J.

This case is before the court for the second time. See 51 La. Ann. 1158, where the facts are stated.

In the opinion then handed down it whs held that the second community of acquets and gains was not alone before the court for settlement and partition of property, hut that the affairs of the succession of the dead husband were likewise before it for settlement, and that this involved the consideration and adjudication of all claims and counter claims between the parties in interest.

It was there further held that the.debt of the husband to the wife of a former marriage for paraphernal funds and property received and used by him during the marriage, transmitted to her son as heir of his dead mother, retains its separate, independent character and is not merged into the father’s tutorship liability for funds and property belonging to 'his ward; that there was no legal fiction justifying the assumption that the paraphernal debt had been paid by himself as bus-band over to himself as tutor; that when the minor reaches the age of majority he is not required to obtain the recognition and enforcement of such claim ■ through an action for an accounting; and that a claim of that character is not barred by the-prescription of four years, to which claims for amounts received by a tutor for his ward during the tutorship is subject.

The decree in the case at that hearing settled the matter of the amount due by the second community to the succession of the husband by increasing the same to the sum of $10,000.00; it maintained the prescription of four years as against any demand asserted by E. S. Kidd on account of moneys received by his father in his capacity as tutor; it recognized the right of the co-heirs and widow in community to a partition of property; it reversed the judgment of the District Court rejecting the demand of E. S. Kidd against his father’s succession for paraphernal funds and property received by the father during the first marriage and converted to his own use, and left that issue open for new trial in the court a gua¿ and remanded the cause for further proceedings according to law in respect to the matters thus left open.

By this decree, it will be seen, all matters at issue were finally adjudicated, save as to partition of the property, and save as to E. S. Kidd’s-claim to recover his mother’s paraphernal rights.

As to the partition, it was, in effect, ordered to be made, leaving to the District Court the determination as to whether it should be in kind or by licitation.

The judgment of that tribunal ordered the partition and directed that all the property, rights and credits pertaining to the Succession of J. I.. Kidd be sold at public auction to effect the same, and that from the proceeds of the sale there be first paid the court costs, $250.00 the amount of the recognized paraphernal claim of the second wife, and $10,000.00' the amount due the legal heirs of the deceased; and that the remainder of the proceeds be divided into two equal parts — one part to be paid to the second wife as widow in community, the other part to the legal heirs of the husband.

As to the paraphernal claim of the first wife, the demand of E. S. Kidd, her son and heir, therefor, was again rejected.

He appeals.

The second wife, as widow in community an,d as tutrix, to her minor children, by answer to the appeal, prays that the judgment be so amend•ed as to refuse partition of the property at this time, andi that if this be not done, then that a partition in kind be ordered. ■ •

To this a sufficient reply is that the right to the partition was adjudi-. Gated when the case was before this court the first time, and in directing the same to be made the judge a quo only carried out the instructions' given him. ITe evidently thought the evidence sustained the demand for partition by licitation, instead of in kind, and that the interest of all concerned would be best subserved by the sale of the property to effect the partition and to pay the claims and debts recognized, and in this we agree with him.

As to other amendments of the judgment prayed for, the subject matter of same formed issues which must be held to have been passed upon when the cause was first before this court and not having been reserved or left open by the decree then rendered, are considered closed.

This brings us to the consideration of the claim of the opponent, E. S. Kidd, based upon the paraphernal rights of his mother, the wife of the first marriage.

The payment of the $4,000.00 by the father, just prior to his death, to the opponent is not considered to have been a full and final settlement of the indebtedness the father owed the son on account of inheritance from, his mother, nor intended by the parties at the time as such full and final settlement.

With regard to this paraphernal debt, it was considered, in the former opinion of the court, that the evidence adduced in support of it was hardly sufficient to justify a judgment for an amount over and above the $4,000.00 paid by the father as above stated.

But a strong impression was left upon the mind of the court that a just claim for a larger sum existed in favor of the opponent, the which he had been unable to make out by a sufficiency of testimony on account of the unfortunate destruction by fire in 1878 of the public records of, Jackson parish.

Since it was necessary to remand the case anyhow on the question of,, partition presented, the court concluded, ini the interest of justice, to reverse the judgment of the District Court rejecting the paraphernal de-„ mand of opponent, and to leave that issue open for the administration of further proof and for decision anew in the trial court.

On the second trial certain additional and important evidence was offered. Some of it was received, some ruled out on objection made. ..

There were offered certain entries from a book kept by I. J, Sims, the. father of the first wife. These entries, in the handwriting of Mr. Sims, showed items of cash and property donated by him to his children. The book was sufficiently identified and his handwriting proven. .

Mr. Sims was, at the time the entries were made, an old man; his family of children were grown; his daughters were marrying off; his sons setting themselves up in business.

He evidently determined to make among them a distribution, partially so at least, of his property before he died.

Accordingly, in 1869, he donated to his daughter, Mrs. Sarah A. Allen, property and money of the aggregate value of $2,874.00; to his daughter, Miss Eliza P. Sims, the same amount in property and money; to his daughter, Mrs. Elizabeth Frances Allen, the same amount in property and money; and to his son, William E. Sims, the same amount in property and money.

A separate entry as to each donee is made in the book under the date of May 1, 1869, showing painstaking care, method and business precision.

• His aim, apparently, was to give to each daughter and son exactly the same amount to a cent. He himself fixed the value upon the land donated, upon the personal property given, and mentioned the kind of money given — so much in gold, so much in United States currency.

The year following these donations to the daughters and son mentioned, another daughter, Martha R. Sims, wedded J. I. Kidd.

To make her equal with her sisters and brothers mentioned, and following out his plan of partial distribution of his estate while living, Mr. Sims, on March 18th, 1871, entered in his book a statement that he had donated to her 680 acres of land, which he describes in the entry by legal subdivisions and values at $1,000.00; also that he had donated to her $1,000.00 in gold, $500.00 in United States currency, another $150.00 n in lieu of a horse,” ton head of cattle, valued at $65.00, 100 bushels of corn valued at $75.00, and 1200 pounds of pork valued at $84.00 — all of the aggregate value of $2,874.

This was the exact amount he had previously donated to each of his other children.

All these entries were offered in evidence on behalf of opponent to prove (1) That I. J. Sims, the common ancestor, had given the same amount to each of his children and to show uniformity of donation; (2) to eorrobrate, strengthen and verify the evidence of witnesses Smith and Allen as to donations made by said Sims to his children, and the statements of J. I. Kidd, in his letter to M. N. Smith, which had been offered and received in evidence, in which the latter acknowledged the receipt of the property and money as shown by the entry made by Mr. Sims in his book in 1871.

• Objection having been made, the entries were ruled out on the ground that they were unsworn statements, were not proved to be correct, and were ex yarte as to the tutrix and minors.

A bill was reserved and copies of the entries were annexed to same and thus brought up.

The letter referred to from J. I. Kidd to N¿ M. Smith bears the date of June 20, 1881, and in it Kidd acknowledges that he, or “us”, as hp expresses it (meaning himself and/his^first wife) had received $2,850.00 from I. J. Sims, his wife’s father. Efe used this language: “ Now, you will find at Mrs. Sims, in the book which I. J. Sims kept against us all, he gave us $2,850.00.,” etc.

Here was Kidd’s admission of the receipt of paraphernal property and funds of his wife, and the entries in the book kept'by Mr. Sims, to which the letter referred, were confirmatory thereof, and, as such, admissible in evidence.

There was testimony that notarial, acts of donation from Sims to his children, including-'one to Mrs. Martha R. Kidd, had been seen of record ¿n Jackson parish, where these people lived, but the destruction of the public records by fire prevented this higher order of proof, and left, as the next best evidence of the contents of these acts of donation, the entries in the book of Mr. Sims and the letter of Kidd to Smith. The existtence of the act of donation being established.and its destruction by the burning of the courthouse shown, it was competent to prove its contents .■aliunde.

Taking this letter, the entries in the book and the testimony of Allen and Smith, it is established with sufficient certainty to produce conviction that Mr. Sims did donate to his daughter, Mrs. Kidd, after her marriage, property and money to the value of $2,874.00, an,d, further, it is sufficiently established by the testimony of Allen and Smith — one the brother-in-law of Kidd, the other the attorney of both Kidd and-Sims— and by the letter of Kidd, that the husband received and used the money and personal property donated, and administered the reality.

Evidently the entry made by Mr. Sims in his book of what he had given to his daughter Mrs. Kidd was made after the act of donation itself had been formally executed, for whereas the entry bears date of March 18, 1871, we find that in December preceding Mrs. Kidd, authorized by her husband, sold and conveyed the same land described in the entry to W. E. Sims for $3,000.00 — $500.00 of which was cash, the remainder, $2,500.00, in one note of the purchaser.

..¡Here was a considerable increase in the value of the land. Mr. .Sims had estimated it in his entry of the donation at $1,000.00.- It was sold shortly afterwards for $3,000.00.

Of this $3,000.00, the $500.00 paid cash undoubtedly passed into the hands of the husband and- was used by him. The $2,500.00 note was made payable to the wife, or bearer. The act of sale recites this -note was payable “ the first of January, 1870.” This was a period of time nearly eleven months anterior to the passing of the act of sale, which bears the date of 8th of December, 1870. It is clear that the recital in the act as to the.maturity of the note is an error, and that its maturity was fixed at some time subsequent to the sale. But what time? . We cannot supply the 1st of January, 1871. That was only twenty-three days later than the date of the sale, and if the note had been given for so short a time it does not seem reasonable the parties would have been so particular as to stipulate the note should draw interest from date, which is the recital of the deed.

, Evidence aliunde the deed does not supply the date of the maturity of this note.

. The wife died August 25, 1871 — some eight months subsequent to the execution of the act of sale and note.

.. Was the $2'500.000 paid before her death? We find in the record no sufficient evidence of the fact. Did it pass into the hands of the father before he assumed the duties of tutorship of his minor son ?

Equally does the record fail on this point.

.In the letter of the father to N. M. Smith in 1881, he makes no mention of this $2,500.00, though he was undertaking to give, as best h© could from menrory, what he had received on account of his wife and from her estate. He mentions the property and money, $2,850.00, received by donation to his wife from her father, but is silent as to moneys subsequently received on account of the sale of the very land which went tq make up in part the donated amount of $2,850.00”, as he puts it, but which should be, according to tlie entry in Sims’ book, $2,874.00.

We cannot break through the uncertainty which here exists as to the disposition made of the $2,500.00 note, the time of its collection, etc., and hold the father’s estate responsible for it on this paraphernal demand of the son.

From the $2,874.00 shown to have been donated to the wife, must be deducted the $1,000.00 valuation of -land included in the donation and subsequently sold by the wife.

This leaves $1,874.00 with which the father is chargeable. To this must be added the $500.00 cash portion paid for the land by W. F. Sims. These two amounts aggregate $2,374.00, for which opponent is entitled to judgment against his father’s succession, with five per cent, interest per annum thereon from August 25, 1871, the date of the mother’s death, less the $4,000.00 paid him by his father on January 28, 1896.

Nothing for the board and tuition of the opponent, E. S. Kidd, should be deducted from the amount thus allowed, for the reason that J. I. Kidd received several thousand dollars belonging to the minor after the death of his mother and which fell under his administration asi tutor.

While the prescription of four years has, as formerly decreed, barred the opponent’s right of action as to matters involved in the tutorship, it is considered that whatever allowance, if any, the father or his succession may be entitled to on account of the board and tuition; of the minor, the same should be held applied as a credit on the tutorship funds of the minor rather than on his claim arising upon the paraphernal rights of his mother, which had accrued' against the husband prior to her death.

When the expenses for board and tuition were incurred the tutorship liability had not prescribed. Neither had it when, the year following the majority of the opponent, his father furnished him with $100.00 for the purpose of taking a course of study in Soule’s Commercial College. For the same reason the latter amount is not deducted from the paraphernal allowance herein made.

For the reasons assigned, it is ordered and decreed that so much of the judgment appealed from as rejects the demand of the opponent, based upon the paraphernal rights of his mother accruing against J. I. Kidd prior to her death, be avoided and reversed, and it is now adjudged and decreed that said oppo.nent do have and recover of and from the Succession of J. I. Kidd, to be paid by priority over all other claims, save the costs of court, and the $250.00 paraphernal allowance made to the wife of the second marriage, and concurrently with the latter, the sum of $2,374.00 with 5 per cent, per annum interest thereon from August 25th, 1871, less $4,000.00 paid January 28, 1896.

It is further ordered, etc., that in all other respects the judgment appealed from be affirmed — costs of both courts to be borne by the Succession of J. I. Kidd.


text:
    No. 13,609.
    State ex rel. C. W. Ball vs. W. A. Cain.
    Syllabus.
    1. The poll tax provided for and levied by Article 198 of the Constitution of 1898, the payment of which is made a prerequisite to the exercise of the right to vote, does not apply to any election occurring prior to the year, 1902.
    2. The poll tax of the years 1898 and 1899, levied by, legislative enactment under the Constitution of 1879, is held not to be the poll tax with which Article 198 of the Constitution of 1S9S deals.
    APPEAL from the Twenty-Fourth Judicial District, Parish of East Feliciana — Kilbourne, J.

      Walter Guión, Attorney General, and Ernest B. Kruttschnitt, for Relator, Appellee.

      Robert J. Perkins for Respondent, Appellant.
   The opinion of the' court was delivered by

Blanchard, J.

An election for Mayor of the town of Clinton in the Parish of East Feliciana was held, by direction of law, on the 4th day of June, 1,900.

There were two candidates — one the .relator, O. W. Ball; the other the respondent, W. A. Cain.

The relator received forty-seven votes; respondent forty-one votes.

Relator was declared duly elected Mayor for the term of one year, a commission as such issued to him and he qualified thereunder according to law.

The respondent, Cain, was the incumbent Mayor — he ‘having been elected to that office in June, 1899, for the term of one year.

A demand was made upon him for the office by the newly elected Mayor, but- he refused to vacate.

Whereupon the present action was brought, the object of which is to have judicially determined that the relator was elected Mayor, has qualified as such and is entitled to the office, with 'all of its powers, privileges and emoluments.

The allegation is made that the respondent usurps, intrudes into and unlawfully holds the office of Mayor of Clinton and refuses to surrender the same to the relator.

The defense is a denial of the usurpation and intrusion charged, and the averment that respondent holds the office lawfully by virtue of his election thereto in June, 1899, and is entitled to hold the same, and discharge the functions thereof, until his successor is duly elected and qualified.

The answer then admits that at the election held in June, 1900, for Mayor, whereat relator and respondent were the only candidates, relator received six more votes than did defendant. But it is represented that of the votes returned for the relator fifteen were east by persons who were not qualified voters.

They were not qualified voteSrs, is the contentioji, because of the fact that none of them had paid a poll tax for the years 1898 and 1899 prior to the 31st of December of each of said years as required by the Constitution.

Deducting from the poll these illegal votes, respondent claims that he received a majority of the legal votes cast and is, therefore, the duly elected Mayor of the town of Clinton and entitled to hold the office.

Judgment below was in favor of the-relator and this appeal' by' respondent followed.

The evidence discloses that of the votes polled for the relator at the said election for Mayor, fifteen were cast by persons who had not paid poll taxes for the years 1898 and 1899 previous to the 31st of December of said years respectively.

It further discloses that when the said fifteen votes were cast the exhibition of poll tax receipts was not exacted by the commissioners conducting the election.

There is thus presented squarely the question whether or not the payment of a poll tax is a prerequisite to the exercise of the right to-vote at an election held in the State of Louisiana at the present time.

Whilst the office over which this controversy arises is a small one, the question presented for adjudication is a very large one, since it involves the right or denial of suffrage to many voters at the. approaching presidential and congressional ■ elections in November of the present year, and, indeed, at the municipal elections occurring during the next two years.

Upon the proposition presented, the contention of the relator is that the exhibition of receipts for the payment of the poll tax for two years, «as a prerequisite, to the exercise of the right to vote, can not be demanded until the year 1902.

Per contra, the contention of the respondent is that under Article 198 of the .Constitution of 1898, receipts for poll taxes for the years 1898 and 1899 must be exhibited by all persons between the ages of 23 ¿mn GO, applying to vote, in every election held in the State from and after the date of the general State election of the year 1900, which was -April 17, 1900.

In other words, that so far as the general State election of the present year was concerned, the poll tax requirement of Article 198 of the Constitution had, by the express terms of the article, no application, but that at all elections thereafter, so long as this article remains as it is, the requirement does apply.

There is thus made necessary an interpretation of the article of the , Constitution aforesaid. What is its meaning and intent?

The article in full is as follows:

“No person less than sixty years of age shall be permitted to vote at any election in the State who shall not, in addition to the qualifications above prescribed, have paid on or before the 31st day of December, of •each year, for the two years preceding the year in which he offers to vote, a poll tax of one dollar per annum, to be used exclusively in aid of the public schools of the parish in which such tax shall be collected; which tax is hereby imposed on every male resident of this State between the ages of twenty-one and sixty years. Poll taxes shall be a lion only upon assessed property, and no process shall issue to enforce the collection of the same except against assessed property.
“Every person liable for such tax shall, before being allowed to vote, -exhibit to the conunissioners of election his poll tax receipt for two years, issued on the official form, or duplicates thereof; in the event of loss; or proof of payment of such poll taxes may be made by a certifieate of the tax collector, which shall be sent -to the commissioner of the several voting precincts, showing a list of those who have paid said two years’ poll taxes as above provided, and the dates of payment. It is hereby declared to be forgery, and punishable as such, for any tax ■collector or other person to antedate or alter a poll tax receipt. Any person who shall pay the poll tax of another or advance him money for that purpose, in order to influence his vote, shall be guilty of bribery and punished accordingly. The provisions of this section as to the payment of poll taxes shall not apply to persons who are deaf and dumb, or blind,, nor to persons under twenty-three years of age, who have paid all poll taxes assessed against them. This section shall not go into operation until after the general State election to be held in the year 1900, and the Legislature elected in the year 1908 shall have authority to repeal or modify the same.”

Whatever the meaning of this article, it is not couched in language so clear and precise as to leave it free from doubt. Were it otherwise, this suit would not be before us. Lawyers differ as to its meaning. Two constructions are possible, and the grounds of the two are so •equal in relative strength and force that no matter which construction may be adopted the argument by which it is sustained will, likely, not prove satisfactory or convincing to the adherents of the other.

But one of the two must be adopted and put in force, and to this court is assigned the duty, and in it is vested the authority, to do this.

But whatever may be its meaning the article is complete in itself. It is no mere direction to the Legislature. It requires no act of the General Assembly to carry it into operation, nor to give it force and •effect. It is self-acting. It is an executory mandate.

An analysis of its provisions shows that male residents of the State must, in addition to the qualifications for the exercise of the right of suffrage prescribed by other provisions of the Constitution, pay, on or before the 31st of December, of each year, for two years preceding the year in which they offer''to vote, a poll tax of one dollar per annum. 'There are excepted from the operation of this rule those who are sixty .years of age and over, those who are under twenty-three years of age, those who are deaf and dumb and those who are blind.. Those who are twenty-one years of age and under twenty-three years may vote, provided they have paid all poll taxes assessed against them between these ■ages.

The poll tax imposed by this article is the only poll tax the payment •of which is a prerequisite to the exercise of the elective franchise. The article, itself, levies the tax. ■ It is preclusive of all other poll tax requirements. That is to say, it can neither be added to, nor taken from, by subsequent legislative enactment prior to 1908, when by the Legislature elected in that year it may be modified or even repealed. It differs in so many respects from the poll tax levied on voters by laws antedating the Constitution of 1898, that it must be held the framers of the Constitution, without saying so precisely, intended it as sui .generis.

Observe the language of the Article — no person between the ages-mentioned shall be permitted to vote unless he pays "a poll tax of one dollar per annum;” not the poll tax of one dollar per annum. If the: word “the” had been used instead of the word “a,” in speaking of this-tax, it might be held that “the poll tax” referred to the tax of that character authorized by the then existing laws. But using the words-“a poll tax” shows the framers of the Constitution meant a tax of this kind independent of anything outside of the Constitution itself, whose-Article 198 was dealing with the subject.

Again: — “Every person liable for such tax shall, before being allowed, to vote, exhibit to the commissioners of election his poll tax receipt for two years,” etc. “Such..tas.” — meaning the one spoken of in'the preceding clause of the article as “a poll tax” — the constitutional poll tax. as contradistinguished from "the poll tax” of the- then existing laws.

First, then, distinguishing the poll tax of the Constitution of 1898-from the poll tax which had existed prior to the adoption of that Constitution, the next inquiry is, when did Article 198 go into operation ?

That it did not go into operation upon the adoption of the Constitution of 1898, on the 12th of May, of that year, is clear from the sentence-with which the article concludes, to-wit:—

“This section shall not go into operation until after the general State election to be held in the year 1900.’-’

There can be no doubt, we think, that the word “section” as here-used- meant “article” — that it was intended as meaning the whole-article. The article is not subdivided into sections. While there are-two paragraphs they are not designated as section 1 and section 2, or other like designation, as were the different parts of the preceding-article 19'T.

Observe, the language is not that the provisions of the article shall not apply until after the general State election of 1900. It is that the-article itself shall not go into operation until after that election. That is to say, it and-every part of'it was intended to lie dormant, and' directed to lie dormant, until the general State election of 1900 shall' have been held.

The words “shall not go into operation” have a broader meaning, a more' extended significance, than the words “shall not apply.”

If the latter had been used the meaning would simply have been that' the poll tax requirement of Article 198 was not to effect any election held between the time of the adoption of tha Constitution and the-holding of the general State election of 1900, inclusive of the latter; but that it should have effect as to all elections subsequent in.date to the general State election of 1900, and as to them the exhibit of two years poll tax receipts must be made or the person offering to vote could not be permitted that privilege.

When, however, the direction of the Constitution is that its Article 198 shall not go into operation until after such a time, the meaning of such language must be held to be that everything pertaining to the article, including the constitutional poll tax it imposes, was suspended until that time arrived, or until the happening of that, to-wit — the' general State election of 1900, which was to quicken it into life. •

This Article 198, then, went into operation only on the day following the general State election of the present year 1900.

This being so, it follows that the first poll tax it imposes, the prepayment of which is prescribed as a prerequisite1 to voting at an election, is that for the year 1900.

In order, then, to vote at any election held after December 81st, 1901, the poll tax receipts for 1900 and 1901, paid on or before December 31st, respectively, of those years, must be exhibited.

It follows, therefore, that the production of the tax receipts for the payment of poll taxes, as a prerequisite to the exercise of the right to vote, can not be demanded until 1902.

At any election held after the beginning of the year 1902, and during that year, the voter can and must produce his poll tax receipts of 1900 and 1901, showing the payment of the constitutional poll tax on or before the 31st of December of the years respectively, because the tax will then have been levied for two years preceding the election. But he can not now produce such receipts for the very good reason that no levy of this constitutional poll tax has yet matured.

It is this purely constitutional poll tax, levied by the Constitution itself, which must be paid as a prerequisite to voting, and not the poll tax of 1898 and 1899 levied by legislation enacted under the Constitution of 18Y9.

The poll tax of those years is held not to be the poll tax with which Article 198 of the Constitution of 1898 deals.

For these reasons, it is ordered and decreed that the judgment appealed from be affirmed with costs.


text:
    No. 13,473.
    State of Louisiana vs. Rosenstream, Weiss & Co.
    Syllabus.
    1. Where judicial interpretation oí a tax statute is necessary to determine whether or not the tax as demanded is imposed by law, the question of legality vel non of the tax is raised, and the appeal taken may be to this court only.
    2. It is competent for this court, acting on a case brought before it by its writ of review from the Court of Appeals, to pronounce void the judgment of the latter court lor want of jurisdiction. But this court declines to pass upon the merits of the case, coming before it in this irregular and roundabout way, when by proper action taken to bring it here on appeal from the court of the first instance, its adjudication upon the merits could have been had in the way provided by law.
    T N RE. C. IT. Parker, Tax Collector, Applying for Certiorari, or A Writ of Review, to the Court of Appeals, Parish of Orleans, State of Louisiana.

      F. II. McCaleb, Jr., (Benjamin Rice Forman of Counsel) for Petitioner.

      Dinlcelspiel & Ilari. for Respondents.
   The opinion of the court was delivered by

Blanchard, J.

This case involves a controversy as to the amount of license due by defendants to the State under Section 6 of Act 150 of 1890 for the several years named in the rule.

The question presented is whether defendants, who paid license as wholesale grocers for each of the years, are liable, under the provisions of the statute, for an additional license for selling liquors in quantities less than five gallons.

The tax collector, construing the law to mean that defendants, because selling liquors in quantities less than five gallons, must pay an annual, retail license of $100 in addition to the annual license for the same amount which they pay for conducting the business of wholesale grocers, demanded its payment and being refused proceeded by rule to enforce its payment.

Defendants resist the imposition of this license tax, in effect, claiming that under the law they do not owe it.

Whether they owe it or not depends upon the construction to be-placed upon the statute heretofore referred to.

It is, therefore, clear that the case presents the question of the-legality of the tax thus sought to be imposed.

If the statute authorizes the tax collector to demand and collect the-same, the tax is legal; otherwise it is illegal.

Judicial interpretation of the statute is necessary to determine-this.

In such case the Constitution vests this court, and it alone, with appellate jurisdiction.

It was, therefore, error in the Court of Appeals for the Parish of Orleans to entertain jurisdiction and to proceed to determine the issue, presented.

The question of payment of an additional license tax, under an exactly similar license law, was determined in City vs. Clark & Meader, 42 La. Ann. 9, and this court took appellate jurisdiction irrespective of the amount involved.

In State vs. Sies, 30 La. Ann. 918, the question was, is defendant liable for a license of $85 as keeper of a coffee house, in addition to that of $15.00 which he had paid as a retail grocer. It was held, on the-motion to dismisss, that the determination of the question involved the legality of a tax and this court alone had jurisdiction of the appeal..

The legality of a tax is brought in question when the contention is that there is no law to authorize its imposition. Its illegality is determined when it is held there is no law for its imposition, or that it is-imposed in violation of law. The interpretation and construction of a tax law, with reference to whether or not the tax claimed under it. is due, necessarily brings in question the legality of the tax.

Gallis vs. Clayton, 33 La. Ann. 285; Adler, Goldman & Co. vs. Board, 37 La. Ann. 507; Canal Co. vs. Lugger Co., 37 La. Ann. 100; State ex rel. Scheff vs. Judge, 49 La. Ann. 1744; Ray vs. Scheff, 51 La. Ann. 86.

The appeal should have been directly from the District Court here. This is the only court that could entertain the appeal under the constitution.

We can not sanction the practice of a case coming to us for adjudication upon its merits through a tribunal not authorized to entertain the appeal.

. We sit to review the action of the Courts of Appeal in cases where we think proper to grant the writ of review, but the Supreme Court- is not an appellate tribunal for the Courts of Appeal.

The writ was granted in this case, and sitting in review of the action of the Court of Appeals upon it, we find its judgment void because it was, as to the cáse, an incompetent tribunal.

All we can do is to set aside this void judgment and give instruction to the court, from which our writ brought the case, to decline jurisdiction.

Any other course would be to permit a case, as to which an appeal would only lie here, to reach this court in a mode other than' by appeal, and without an appeal bond- — a prerequisite to all appeals except those taken by the State, or its political subdivisions to which the right of appeal is given by law without bond.

We hold it competent for this court, acting on a case brought before it by its writ of review, to pronounce void the judgment of the Court of Appeals for want of jurisdiction of that tribunal. But we decline to pass upon the merits of the case, coming before us in this irregular and round-about way, when by proper action taken to bring it here on .appeal from the court of the first instance, its adjudication upon the merits could have been had in the way provided by law.

After the appeal is dismissed from the Court of Appeals, if it still be timely, the case may be appealed in. the regular way to this tribunal. If now toó late to appeal here, the party cast in the District Court must’ .abide the consequence of his error.

It is, therefore, ordered and decreed that the judgment herein of the Court of Appeals be set aside, and that the case be remanded to that tribunal with instruction to decline jurisdiction and to dismiss the appeal.

Watkins, I. takes no part — absent on account of illness.

Monroe, I., takes no part, having decided the case in the lower court.

Rehearing refused.


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    No. 13,422.
    John Odom vs. Richard R. Schmidt.
    Syllabus.
    1. Masters and employers are answerable for the damage occasioned by their servants and employees in the exercise of the functions in which they are employed.

      2. It is negligence to drive into a vehicle while standing still on the side of the roadway, when there is ample room to pass without colliding with it.
    3. If there is not room to pass, it is the duty of the driver of the approaching vehicle to stop and call out to the driver of the other vehicle to move out of the way.
    APPEAL from the Civil District Court, Parish of Orleans — St. Paul, J.

      'William O. McLeod for Plaintiff, Appellee.

      Andrew J. Murphy for Defendant, Appellant.
   The opinion of the court was delivered by

Blanchard, J.

Plaintiff sues defendant for damages for personal im juries, claiming $4,500.00.

The case was tried without a jury.

From a judgment in favor of plaintiff for $300, defendant appeals. Plaintiff, by answer filed here, joins in the appeal and prays that the judgment in his favor be increased to the amount sued for.

The case may be stated thus:

Plaintiff was at the time of the accident 24 years old. He was in service as dining room servant and house boy, and he also attended to a horse- and surrey kept on the premises, belonging to the son of his employer, and drove the surrey when in use.

The day before Christmas, in the year 1897, the daughter of his employer had oceassion to visit the Poydras Market in the City of New Orleans for the. purpose of doing some marketing. She ordered the surrey and plaintiff drove her to the market. This was in the forenoon, The market was reached about 10 o’clock. The surrey was driven close to the curb of the street on the market side. The-young lady alighted and entered the market. Plaintiff with the surrey and horse remained there in waiting.

Between 10 and 12 o’clock, an hour or more after reaching the market, and while plaintiff was sitting on the front seat of the surrey, a float or large wagon, belonging to defendant, drawn by two mules, loaded with twenty-five barrels 6f flour and driven by a colored man named Andrew Bell, came along Poydras street, and in passing the surrey the hind wheel of the latter was struck by the hind wheel of the float, resulting in the surrey being overturned and the driver (plaintiff) being thrown out. ■

The surrey was more or less injured and was repaired at the expense of the owner of the float — defendant herein.

Plaintiff at the time claimed no serious injury to himself, but, later, did so and his petition charges he was severely bruised and lacerated and that he received injuries of an internal character, causing him great pain and from which he still suffers.

He avers it to be a fact that these injuries have impaired his efficiency in the service in which he was engaged, and he has reason to fear that they will lessen permanently his ability to earn a livelihood.

An exception of vagueness of allegation and one of no cause of action disclosed having been overruled, defendant answered with a general denial.

A plan of the surroundings where the accident occurred shows the width of the street at that part to be nineteen feet, measuring from the sidewalk across the street to the edge of the market space.

Poydras Market divides Poydras Street longtitudinally. That is to say, the market house is located on an enlargement of the street at that point — the roadway of the street running along either side of the market.

The accident in question occurred on the roadway on the uptown side of the market. The surrey was standing still at the time, me horse’s head towards the river.

The wheels on the left of the vehicle were within a foot of the curb of the market place.

The width of the surrey was four feet, five inches and of the float seven feet, three inches.

The combined width of the two vehicles was eleven feet, eight inches. If to this he added one foot, six inches, as the space the inner wheel of the surrey was distant from the curb (which is the contention of the driver of the float) the sum is thirteen feet, two inches. This deducted from the total width of the roadway of the street — nineteen feet — would still leave over five and a half feet as a margin.

Thus it is seen, that by careful driving on part of the driver of the float the accident would have téen avoided. That it was not avoided seems to be wholly due to the carelessness of this driver — defendant’s servant.

It was negligence to drive into the surrey standing still on the side of the roadway, when there, was ample room to pass. If there were not room to pass, it was the duty of the driver of the float to stop and call out to the driver of the surrey to move up out of the way.

We do not find that it was contributory negligence on part of plaintiff to sit in the surrey stationed close to the side of the roadway, when sufficient room was left for the safe and easy passage of other vehicles. Nor do we understand that contributory negligence is urged as a defense.

That plaintiff was injured by the carelessness of defendant’s driver is established beyond controversy.

The law is simple and easy of application. Masters and employers are answerable for the damage occasioned by their servants and overseers in the exercise of the functions in which they are employed: C. C. 2320.

As to the extent of plaintiff’s injuries some difficulty exists. No medical man who had knowledge of his case was put upon the stand. There should have been some testimony of this character and plaintiff is at fault that there was not. He was treated by a physician in private practice and also by some one of the medical staff of the Touro Infirmary. He should have called these gentlemen as witnesses.

As it is, the evidence leaves in doubt whether or not plaintiff is permanently injured. There is testimony, though, that he was not entirely recovered at the time of the trial some seventeen or eighteen months after the accident.

We incline to think the estimate of $300 of the judge a quo a little low and will increase it $i00.

It is, therefore, ordered and decreed that the judgment appealed from be amended by increasing the amount thereof to four hundred dollars and, as thus amended the said judgment is affirmed at the cost of the appellant.