author: Wyly, J. Wyi.y, J.

text:
    No. 5147.
    State of Louisiana v. Widow J. C de St. Romes.
    Authority to correct the errors of assessment complained of in this case is solely confided to the State Board of Assessors in the city of IsTew Orleans and to the Auditor. It was theréíore useless for the court a qua to hear testimony upon a point on which it was without authority to decide, to wit: the errors of the assessment, and the testimony offered was properly rejected. Besides, it was not alleged in the answer that the defend: ant sought to correct the errors complained of by making application to the State Board of Assessors according to law.
    The constitutionality of that provision, making the decision of said board of assessors final as to “the valuations in the assessment rolls,” was not raised in this case. The constitutionality of a law will not be considered where an issue to that effect has not been raised.
    Appeal from the Superior District Court, parish of Orleans. Ha/wIcins, J.

      A. P. Field, Attorney G-eneral, for plaintiff and appellee. Fellows & Mills, Victor de St. Homes, L. F. Simonds, for defendant and appellant.
   Wyly, J.

The defendant resists the collection of State taxes on her property for the year 1871 on several grounds. The constitutional objections have all been decided adversely to her in the recent decisions of this court, and the discussion thereof will not be reopened. She also contends that the assessment of her property is erroneous, both in regard to the description and the valuation thereof; and she took a bill of exceptions to the ruling of the court in refusing to receive testimony going to show that she had in due time opposed the assessment as made, giving in her opposition the correct description and valuation of her property; that said opposition was disregarded; also that she offered to prove by witnesses the value of her property. The testimony was rejected on the ground that the court could not go behind or correct the assessment.

Authority to correct the errors complained of is solely confided to the State Board of Assessors in the city of New Orleans and the Auditor. Act No. 42 of the acts of 1871, sections 45 and 50. It was therefore useless for the court to hear testimony upon a point under the statute it was without authority to decide. The defendant also contends that there is no proof in the record to establish the demand of the plaintiff. There being no note of evidence in the record, the presumption is the judge below did his duty, and had sufficient proof before Mm to authorize Ms decree.

There is error, however, in the judgment allowing the penalty of twenty-five per cent, from fifteenth December, 1871, because until fifteenth December, 1872, the defendant did not become a delinquent taxpayer for the taxes of 1871.

It is therefore ordered that the judgment herein'in favor of the plaintiff be amended by allowing the penalty of twenty-five per cent. to run only from fifteenth December, 1872, and as amended that it be affirmed, appellee paying costs of appeal.

On Rehearing.

Wyi.y, J.

It is not alleged in the answer that the defendant sought to correct the errors complained of in the assessment of her property, by making application to the State Board of Assessors, pursuant to sections 45 and 50 of act No. 42 of the acts of 1871. Furthermore, the constitutionality of that provision of said sections, making the decision of said board of assessors “final as to the valuations in said assessment rolls,” was not raised in this case. The constitutionality of a law will not be considered where an issue to that effect has not been raised in the case.

Rehearing refused.


source: Caselaw Access Project

author: Morgan, J.

license: Public Domain

text:
    No. 3863.
    Batt & Michel v. The City of New Orleans et al.
    Where plaintiffs alleged that the first adjudication of a certain market vested in them the title to collect the revenues of said market, and that when, in defiance of this adjudication, the controller of the city of Hew Orleans sold it anew, and received §2500 more than their bid, this sum of §2500 belonged to them:
    Held — That by the terms of the sale, the city authorities had reserved the right to reject any or all bids. The second adjudication was a rejection of the first bid, and as this second adjudication was ratified by the council, it follows that the plaintiffs’ claim for the difference between the first and second adjudications can not be maintained.
    Appeal from tbe Fifth District Court, parish of Orleans. Léaumont, J.

      F. Bermudez, O. F. Claiborne, A. L. Tissot, for plaintiffs and appellees. A. O. Lewis and B. It. Forman, for defendants and appellants.
   Morgan, J.

The city, on the fourteenth December, 1867, authorized the controller to adjudicate or cause to be adjudicated, to the highest bidder, the collection of the revenues of the public markets. The adjudication was to be made by public auction.

Plaintiffs allege that one of the markets was adjudicated to them for $54,800, but that the controller disregarded the adjudication, and instructed his deputy to cry the market anew, which was done. At the second crying it was adjudicated to J. Grevenig for $57,300. They claim from the city the difference between $54,800, the amount of their bid, and $57,300 — that is to say, $2500. They say that the first adjudication vested the title to collect the revenues of the market in them, and that when, in defiance of this adjudication, the controller sold it again, and received $2500 more than their bid, this $2500 belonged to them, and the district judge gave them a judgment for it. There is some conflict of testimony with regard to the facts connected with the adjudication. But this conflict we do not consider it material to state at length and analyze for the purpose of discovering whether there was an adjudication or not. It may be assumed that there was. But by the terms of the sale the city authorities reserved the right to reject any or all bids. The second adjudication was a rejection of the first bid, and as this second adjudication was ratified by the council, we think it follows that the plaintiffs’ claim for the difference between the first and second adjudications can not be maintained.

It is therefore ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed, and that there be judgment in favor of defendants with costs in'both courts.


author: Lddeling, C. J. Wyly, J.,

text:
    No. 4829.
    Mrs. Josephine Decuir v. John G. Benson.

    Tho act of the Legislature of Louisiana, Uo. 38 of the session of 1§69, is not in conflict with article 1, section 8, of the constitution of the United States, nor is it in conflict with article 14, section 1, of said constitution. Act bfo. 38 docs not undertake to regulate commerce. The first section of act 38 forbids tliose engaged in the business of common carriers of passengors irom discriminating against the passengers on account of race and color. That is the substance of the section so far as applicable to this ease. It was enacted solely to protect the newly enfranchised citizens of the United States within the limits of Louisiana, from the effects of prejudice against thorn. It was not in any man-, ner to affect the commercial interests of any State or foreign nation, or of the citizens thereof. .
    The above mentioned act, bTo. 38 of the session of 1809, does not violate section 1 of article 14 of the constitution of tho United. States. No one is deprived of life, liberty, or property, without duo process of law by said statute. Tho position that, because one’s property can not be taken without due process of law, therefore a common carrier can conduct his business as lie pleases, without reference to the rights of tho public, is so illogical that it is only necessary to state it to expose its fallacy.
    In truth the right of the plaintiff to sue tho defendant for damages would bo the same, whether act !Uo. 38 existed or not. But the act is in perfect accordance with tho constitution of the United States.
    That.tho common carrier may make reasonable rules and regulations for the government of the passengers on board bis boat or vessel is admitted, but it can not be pretended that a regulation, which is founded on prejudice and which is in violation of law is reasonable.
    APPEAL from tlie Fifth District Court, parish of Orleans.

      Cullom, J. JE. If. Washington,. B. It.' Bnaer, for plaintiff and appellee.

      Bentinck Bgan, for defendant and appellant.

      Carried by writ of error to the Supreme Court of the United States.

   Lddeling, C. J.

The plaintiff alleges that in July, 1872, being in the city of New Orleans, and desiring to go to her plantation, in the parish of Poin'te Coupee, she went on board the steamboat Governor-Alien, a packet engaged in the business of common carrier of passengers, and plying between New Orleans and Vicksburg, and that she was refused a berth in the cabin and denied the right to take her meals at the table with the other passengers; and that she was forced to remain in a small compartment in the rear of the boat, without the common convenience granted to other passengers, solely on the ground that she is a colored person. She alleges that she is well educated, resided in Paris, Prance, several years, and that the treatment above mentioned is not only a gross infraction of her rights under the constitution and laws of the United States and of this State, but was also an indignity to her personally, which shocked her feelings and caused her mental pain, shame and mortification. She prays for $25,000 actual damages and $50,000 exemplary damages.

The defendant filed an exception, in which he pleaded want of jurisdiction in the State court ratione materia, as, he alleges, “ the matters set up are admiralty matters, over which the United States Court alone has jurisdiction.” This plea was overruled, and the other parts of the exception were referred to the merits. In his answer the defendant reiterates the objections urged in his exception. They are as follows r

First — A general denial.

Second — That the steamer Governor Allen was on the twentieth July, 1872, and had been some years before, enrolled and licensed under the laws of the United States to pursue the coasting trade, and was in the month of July, 1872, actually engaged in commerce and navigation between the ports of New Orleans and Vicksburg, in the State of Mississippi, and that the 13th article of the Constitution of the State of Louisiana, and the act No. 38 of 1869, of said State, so far as they attempted to regulate steamboats, are in conflict with article 1, section 8, of the constitution of the United States, giving Congress exclusive power to regulate commerce among the several States, and are consequently null and void.

Third — That he has by law a right to regulate and prescribe rules for the accommodation of passengers on the steamer Governor Allen; that the boat is private property, and does not belong to the public, and any law attempting to prevent him from regulating said steamboat to the best advantage, and for the interest of her owner, would be in violation of article 14, section 1, of the amendment to the constitution of the United States, prohibiting any State from depriving any person of his property without due process of law.

Fourth — That there is now and always has been a well known regulation on tli© steamer Governor Allen, as well as all other boats engaged in commerce and navigation between the port of New Orleans and the various ports and places on the Mississippi and tributary rivers; that colored persons are not placed in the same cabin as white persons, or allowed to eat at the same table With them; that this regulation is reasonable, usual and customary, and is made for the protection of their business, and was well known to the plaintiff in this cause in July, 1872, and had been known to her for many years previous.

Fifth — That the steamer Governor Allen has a cabin called the Bureau for exclusive accommodation of colored persons; provided with state rooms and all the conveniences of the cabin appropriated for the exclusive use of white persons; that plaintiff was tendered a state room in said bureau cabin appropriated for thq exclusive use of colored persons, according to the well known rules and regulations of the boat; and instead of accepting it, took a seat iu the recess of the boat in the rear of the ladies’ cabin, where she 'was offered a stretcher, which she declined.

Sixth — That she was distinctly informed before she came on the boat by the cleric to a person who applied to him on her behalf that she could not be accommodated in the cabin for white persons, but would be put in the bureau or cabin for colored persons, and that she came on the boat with that understanding and without complaint, and only paid $5 — the amount charged in said cabin — and that the other passengers are charged §7 to Hermitage Landing.

There was judgment in favor of the plaintiff for one thousand dollars, and the defendant has appealed.

We think the exception to the jurisdiction of the court was properly overruled. See 20 An. 432, and 22 How. 244.

The evidence sustains the material allegations of the petition. The defendant himself, a witness in the case, states: “I would not have given her a room if they had not all been taken.” He had previously stated that he did not know if there was a vacant room — that he thought there were unoccupied berths in some of the rooms. When asked if the reason for refusing to give her a berth in the cabin was on account of her being a colored person, he answered : tl Yes, sir, as being contrary to the rules of the boat.”

Two constitutional questions are presented for solution : Is the act of 1869, No. 38, in conflict with article 1, section 8 of the constitution of the United States? Is it in conflict with article 14, section 1, of said constitution ?

It is insisted that act No. 38, of the General Assembly passed in 1869, violates article 1, section 8, of the constitution of the United States, because it undertakes to regulate commerce.

This is a mistake. The act does not make any regulation of commerce. The act was passed to carry into effect the provisions of article 13 of the State constitution, which declares that “ all persons shall enjoy equal rights and privileges upon any conveyance of a public character; and all places of business or public resort, or for which a license is required by either State, parish or municipal authority, shall be deemed places of a public character, and shall be open to the accommodation and patronage of all persons without distinction or discrimination on account of race or color.” The act contains five sections. The first and fourth alone are applicable to this case.

The first section provides “that all persons engaged within this State in the business of common carriers of passengers shall have the right to refuse to admit any person to any railroad cars, street ears, steamboats or other water crafts, stage coaches, omnibuses or other vehicle, or to expel any person therefrom after admission, when such person shall, on demand, refuse or neglect to pay the customary fare, or when such person shall be of infamous character, or shall be guilty, after admission to the conveyance of the carrier, of gross, vulgar or disorderly conduct, or who shall commit any act tending to injure the business of the carrier, prescribed for the management of his business after such rules and regulations shall have been made known ; provided, said rules and regulations make no discrimination on account of race or color; and shall have the right to refuse any person admission to such conveyance when there is not room or suitable accommodations j and except in cases above enumerated, all persons engaged in the business of common carriers of passengers are forbidden to refuse admission to their conveyance, or to expel therefrom any person whomsoever.”

The fourth section provides that for a violation of any of the provisions of the first and second sections of this act, the party injured shall have the right of action to recover any damages, exemplary as well as actual, which he may sustain, before any court of competent jurisdiction.”

The first section forbids those engaged in the business of common carriers of passengers from discriminating against the passengers on account of race or color, and that is the substance of the section so far as it is applicable to this case. It was enacted solely to protect the newly enfranchised citizens of the United States, within the limits of Louisiana, from the effects of prejudice against them. It does not, in auy manner, affect the commercial interest of any State or foreign nation or of the citizens thereof.

The objection that the act No. 38 violates section 1 of article 14 is utterly untenable. No one is deprived of life, liberty or property, without due process of law by said statute. The position that because one’s property can not be taken without due'process of law, therefore a common carrier can conduct his business as he chooses, without reference to the rights of the public, is so illogical that it is only necessary to state it to expose its fallacy. The rights and responsibilities of the common carrier may be briefly stated thus: He is bound to take the goods of all who offer, if he be the carrier of goods, and the persons of all who offer, if he be a carrier of passengers; to take due care and to make due transport and due delivery of them. He has a lien on the goods which he carries, and on the baggage of the passengers for his compensation.

He is liable for all loss or injury to the goods under his charge, unless it happens from the act of God or from, the public enemy.” Par- ■ sons’ Mercantile Law, 207.

If he be a common carrier of passengers he must receive all who offer, carry them over the whole route, demand only the usual compensation, and treat all alike, unless there be actual or sufficient reason for the distinction, such as the filthy appearance, dangerous condition, or misconduct of a passenger ; and for failure in any of these particulars he is responsible to the extent of^the damage occasioned thereby, including pain or injury to the feelings. Chamberlain v. Chandler, 3 Mason, 142; 5 La. Keene v. Lizardi, 431; Black v. Bannerman, 10 An. 1; 1 McLean 550; 3 McLean, 24 Parsons’ Mercantile Law, 207; 3 Kent ed. 1832, 160.

In Keene v. Lizardi, Judge Porter, as the organ of the court, quoted the following language of Judge Story, as expressing the ideas of the court on this subject. “In respect to passengers, the case of the master is one of peculiar responsibility and delicacy. The contract with him is not for mere ship room, and personal existence on board, but for reasonable food, comforts, necessaries and kindness. It is a stipulation not for toleration merely, but for respectful treatment, for the decency of demeanor, which constitutes the charm of social life, for that attention which mitigates evils without reluctance, and that promptitude which administers aid to distress. In respect to females it proceeds yet further ; it includes an implied stipulation against general obscenity, that immodesty of approach which borders on lasciviousness, and against that wanton disregard of the feelings, which aggravates every evil, and endeavors by the excitement of terrors and cool malignancy of conduct to inflict torture on susceptible minds.”

In truth the right of the plaintiff to sue the defendant for damages would be the same, whether act No. 38 existed or not; but the act is in perfect; accord with the constitution of the United States.

“ All persons born or naturalized in tbe United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, etc.” -Fourteenth amendment of the constitution of the United States.

It is settled, in this State at least, that colored persons now have all the civil and political rights which white persons enjoy. See succession of Caballero and Hoss & Elder v. Hart et al. 25 An.

Mrs. Decuir was denied the right to go into the ladies’ cabin. She was compelled to remain in a small compartment back of the ladies’ cabin, or to go into the “ colored bureau,” and to take her meals there also. If she had been a white lady, it will not be denied that she would have had just cause for complaint. Under the constitution and laws of the United States and of this State, she was entitled to the same rights and privileges, while upon the defendant’s boat, which were possessed and exercised by white persons. In a recent case, Chief Justice Beck, of Iowa, held the following language, which we adopt: “These rights and privileges rest upon the equality of all before the law, the very foundation principle of our government, If the negro must submit to different treatment, to accommodations inferior to those given to the white ¿nan, w.hen transported by public carriers, he is deprived of the benefits of this very equality. His contract would not secure him the same privileges and the. same rights that a like contract made with the same party, by his white fellow, citizen, would bestow upon the latter.” Cager v. Northwestern Union Packet Company, American Law Register for March, 1874.

The defendant relies also upon the fact that, by regulation and the established course of business on steamboats, colored persons were not received as cabin passengers, and not allowed the use of the cabins; that they have the right to make regulations for the comtort and convenience of the passengers, and that said regulation was reasonable.

That the common carrier may make reasonable rules and regulations for the government of the passengers on board his boat or vessel is admitted, but it can not be pretended that a regulation, which is founded on prejudice and which is in violation of law, is reasonable.

The appellee has not asked for an increase of the judgment.

It is therefore ordered and adjudged that the judgment of the district court be affirmed, with costs of appeal.

Wyly, J.,

dissenting. Article IS of the constitution provides that “ all persons shall enjoy equal rights and privileges upon any conveyance of a public character.” * * * * *

Act No. 38, of the acts of 18G9, an act to carry said article into effect, provides in substance that, for certain causes, (such as improper conduct, infamous character, or refusal to pay the fare), all persons engaged in the business of common carriers shall have the right to refuse to admit passengers or to expel them from their steamboats or other water crafts, railroad cars or other vehicles; provided, they make no distinction on account of race or color. And for violating this provision, the party injured shall have the right to recover any damage, exemplary as well as actual, which he may sustain.

Assuming that the meaning of this legislation is that no colored person shall be excluded from the cabin and table of a steamboat, usually occupied by white passengers, and, if so excluded, he shall have the right to recover damages ou account thereof, the question is, were these enactments obligatory ou the steamboat Governor Allen, engaged in carrying passengers aud freight between New Orleans and Yicksburg, Louisiana and Mississippi?

Was the steamboat Governor Allen, engaged in commerce between the States under a license issued by the Uuited States, bound to observe this local or State legislation regulating the entertainment of passengers, requiring them to set at the same table aud occupy the same cabin ?

This legislation being in force, could the Governor Allen provide for her passengers two cabins aud tables affording equal accommodations, one exclusively for white passengers and. the other exclusively for colored passengers, aud having so provided assign each passenger to his proper place? ^

■ I speak not now of the right resulting from a contract, express or implied, between the passenger and the boat; because if the'boat contract to carry a colored passenger in the white cabin, and fails to do so, it will be responsible for a breach of that contract.

Such a contract would depend for its existence in no manner upon the legislation to which I have referred.

The inquiry is, has the State of Louisiana authority to make it unlawful for a steamboat engaged in commerce between the States, to provide separate cabins and accommodations for the white and colored passengers?

In my opinion she can not do so, without encroaching upon the power conferred by the constitution of the United States upon Congress, to regulate commerce among the States.

If Louisiana can require the passengers to be mixed, and make it unlawful for the whites to be assigned to one cabin and the colored to another, why may not Mississippi require.the white and the colored passengers to have separate apartments and make it a penal offense for them to be mixed in the same cabin 1

If one State has jurisdiction on the subject, why has not the other?

If each have jurisdiction, each can pass just such laws as it deems necessary in the premises. Now what would be the consequence of such a state of affairs ? The result would be that the boat could carry no passengers. If it should carry passengers mixed in the same cabin, conformably to the laws of Louisiana, it would incur the penalty prescribed by Mississippi for mixing white and colored passengers.

If the States have authority to pass conflicting laws, which in effect would prohibit the transportation of passengers on steamboats from one State to the other, why may they not enact' similar laws in regard to freight ?

And if they can legislate upon the subject of passengers and the subject of freight, passing on steamboats between the States, are they not in effect regulating commerce among the States, in contravention of the constitution of the United States?

It was to prevent this very conflict of authority between the States, that the founders of our government wisely provided that Congress alone should have power to regulate commerce among the several States.

I can not regard the constitutional provision and the statute of this State, as applied by the majority of the court in this case, otherwise than as enactments of a State to regulate commerce between the States, in contravention of the constitution of the United States. They are in no sense enactments springing from the exercise of police power, because the police power of a State can not extend beyond its own limits. It can not be brought into activity to regulate commerce between the States, to prescribe how freight shall be carried or passengers accommodated upon steamboats running from one State to-another.

Having shown, as I think, conclusively, that the enactments of Louisiana, as applied in this case by the majority of the court, contravene the constitution of the United States, I think I may safely affirm that it was not unlawful for the Governor Allen to have two separate cabins and tables, one for the white and the other for the colored passengers, affording like accommodations to each; and in assigning each passenger to his proper place the captain or clerk committed no illegal act.

If there was no law prohibiting the universal custom of steamboats in this trade from having separate cabins for the white and colored passengers, that custom surely was not an unlawful custom.

I entirely agree with our learned brother below, that every custom must yield to positive law; and it was useless for the defendant to prove a custom contravening a prohibitory law.

But the precise question is, was the custom, which the defendant-proved by overwhelming evidence to be universal among all the boats navigating the lower Mississippi, an unlawful custom; was it a custom in contravention of a prohibitory law 9

Laying out of view the enactments of Louisiana, which, I think, I have fully shown have no application to boats like the Governor Allen, engaged in commerce between the States, I boldly assert that the custom in question was not unlawful, that it contravened no prohibitory law.

Now let us examine the testimony of the witnesses in regard to the custom or regulation to which I have referred.

Thomas P. Leathers, a witness, says: I have been engaged in steamboating for the last thirty-six years; my principal trade has been between New Orleans and Vicksburg, Mississippi; have been running boats there for the last thirty-three years as master; I am now master of the steamer Natchez, a weekly packet between New Orleans and Vicksburg; was on the steamer Governor Allen when Mr. Washington came on board and applied for a passage for some person — -did not see who; heard the clerk of the boat tell him that if she was a colored person she could only be accommodated in the colored cabin ; think this was in July, 1872; the Allen was then running in place of my boat, the Natchez, carrying the mail; heard nothing more; this was Saturday evening before the boat backed out from the wharf; witness went with the boat to Carrollton; witness is familiar with the custom and regulation of steamboats carrying colored persons; it is usual to-have a colored cabin tor their accommodation, separate and distinct from all others; this custom is well kqown among all persons traveling upon the river, both white and black; it is a reasonable regulation, and prevails among all boats coming to this port; the colored passengers on my boat are accommodated as well as the white, and are provided with the same bill of fare, but distinct and separate apartments ; the rule on my boat is to keep the officers in a separate cabin; the waiters have a separate one; the ladies have a separate one; the gentlemen have a separate one; the ladies’ servants have a separate one, and the colored passengers another; each one is separate and distinct from the others, and have separate tables; the steamboat Governor Allen is regulated the same way my boat is regulated. This regulation and custom among steamboats coming to this port of keeping'the white and colored cabin passengers separate, has prevailed ever since I have been steamboatmg; I have never heard of any other; this regulation is made for the accommodation of the whole traveling community, because there are a large majority of white people who do not wish to be mixed up with the colored people, and the colored people do not wish to be mixed up with the white people; it would be impossible to run a steamboat without tins regulation; it is just as essential as to keep the gentlemen and ladies’ cabin separate; I think the colored travel in my trade is between a fourth and fifth of the whole, that is, the white persons traveling are about four-fifths of the whole, or hear that; about one-half that travel is for pleasure; if I did not have rules and regulations for my boat, and accommodation of my passengers, I do not think I would have any, either white or colored; the white passengers are charged about twenty-five per cent, more than the colored, though they get the same accommodation ; Lieutenant Governor Dunn was a passenger on my boat j ust before his death; I gave him a state room in the colored cabin, where he preferred to be, as he asked for it; I have also had senator Revels travel on my boat, and he informed me that the separate cabin was the only way to give satisfaction to the white and colored race; that they must be kept separate; he was always accommodated in the colored cabin; I have also frequently had other colored members of the legislature, of both Louisiana and Mississippi, and always put them in the colored cabin, and never heard of any complaint from them on that score.

John W. Cannon, states in substance, that he is master and owner of the steamer R. E. Lee, and owner of her and the steamer Katie; that ho has been steamboating as master and owner for the last thirty-six years, in nearly all trades out of New Orleans, and has been in the Yieksburg and bend trade for the last fifteen or eighteen years, except during the war, making about a trip a week; that he is familiar with the custom of carrying colored passengers; that they are always carried separate and apart from the white people; that they were carried in the “nursery’’ until the boats got what was called the colored cabin, under the ladies’ cabin; that this regulation in regard to carrying colored persons is well known; that they are never carried in any other way; that since the war he has had the Quitman, the Grey Eagle, the Governor Allen, the Belle Lee, the Pargoud, the Magenta, the R. E. Lee and the Katie — all first class boats, with the exception of the Grey Eagle, and she was a comfortable passenger boat; that this regulation of keeping the colored and white passengers separate is well known to the traveling community, and is for the protection of their business; that white people would not travel on a boat if they knew negroes were put in the same cabin with them or even that they had stayed in the same state rooms where the white people would have to sleep after them, the prejudice in the public mind being so strong; that the colored passengers are treated the same as the white; they have the same food and attention; get their meals at the same time and have servants to wait upon them; that the Governor Allen has a very comfortable bureau, and as good rooms as she has got above; there are some twelve or fourteen of them, and some very large ones ; that he has never known any boats to put-negroes in the cabin or at the white table; that they could not get along without observing this rule strictly; that the Lee generally carries from thirty to two hundred and thirty or three hundred passengers; has generally from seventy to eighty and one hundred; supposes about a third of them colored.

Captain John G. Benson, the defendant, states in substance, that he has been steamboating off and on since 1848, and for the last three or four years has been running in the New Orleans and Yicksburg trade; that the clerk of the boat came to him after the boat had backed out and said there was a woman on board of the boat disposed to make a little trouble if she could; that she was registered to get off at Hermitage Landing; that the passage of a white person to that landing was seven dollars and a colored person five; that there is a regulation on his boat to .keep the white and colored people separate, by having a cabin for the colored people separate from the white; that this is a regulation prevailing on the river; that the object of it is to protect a person in his business; that if a person-adopted any other, and allowed negroes to occupy rooms in the main cabin, he would not carry any other people; that this regulation is for the accommodation of the traveling public; that the average colored travel is from a fourth to a fifth of the white; that this regulation of keeping the colored people separate from the white is well known to the traveling community; that it has prevailed on the river since he has been on it; that he has a colored cabin on the steamer Governor Allen, called the “bureau,” where they get precisely the same attendance, food and accommodation as the white passengers, and are charged from a fourth to a fifth less.

A large number of witnesses were examined, and they all concur as to the universality of the regulation or custom prevailing on all the boats navigating the waters of the lower Mississippi, that white and colored passengers are accommodated in separate apirtments; and they state that this rule or custom was well known to the traveling public generally. This regulation was known to the plaintiff. Her counsel went to the clerk of the boat before the hour of departure to endeavor, in her case, to get him to vary from that custom, and to allow her to travel in the same cabin with the white passengers. This request was peremptorily refused. '

About the time, however, the boat was backing out, the plaintiff came aboard, and being refused accommodation in the white cabin she remained in the room known as the recess, in the rear of that cabin, during the trip, refusing to accept the accommodations tendered her in the colored cabin. Just before arriving at her place of destination (the Hermitage Landing) the plaintiff went to the office and settled her fare, paying five dollars, the usual charge for colored passengers, the rate for white passengers being seven dollars.

Now, the question is, when the plaintiff went aboard the “Governor Allen,” as a passenger, in July, 1872, what was the implied contract arising between her and the boat or the defendant, the captain 9 Was the implied contract the securing of a passage in the white or colored cabin 1 In my opinion the contract was made in reference to the custom of that boat and all others carrying white and colored passengers. Entering that boat as a colored passenger, in view of the well known regulation referred to, the plaintiff tacitly consented to take accommodation in the colored cabin. And the obligation of the defendant was to furnish her as good a room and as good fare in that apartment as he gave to any passenger on the boat.

Now, the complaint is not that the accommodation in the colored cabin was not as good as it was in the white cabin (and the proof is there was no difference in the comforts of the two apartments), but it is because there was a discrimination on account of color, and the plaintiff was denied entertainment in the same cabin with the white passengers.

The basis of plaintiff’s action is a breach of contract, and on account thereof she claims damages to the amount of seventy-five thousand dollars. But the difficulty in her case is, she had no contract for passage in the same cabin with the white passengers, and being excluded therefrom, there was no breach of contract on the part of the defendant, and consequently there is no ground either for the amount of damages claimed by her or for the amount of $1000, awarded by the court a qua.

If the clerk of the boat, when applied to by the counsel of the plaintiff, had consented to give the plaintiff accommodation in the white cabin, and afterwards refused to allow her to occupy the same, there would be a strong ease in favor of the plaintiff to claim damages for breach of contract; and the authorities relied on by plaintiff, with so much confidence, to wit: St. Armand v. Lizardi, 4 La. 244, and Keene v. Lizardi, 5 La. 431, and 6 La. 319, would be applicable. Those authorities and that of Chamberlain v. Chandler, 3 Mason, 142, are correct expositions of the law most eloquently expressed, in regard to the responsibility of owners for the breach of duty by their officers, showing that they are responsible even for the mental suffering occasioned by the injustice and disrespectful and brutal conduct of said officers.

I fully indorse what is said in those cases, believing that part of the contract between the passenger and the boat or its owners, is an implied stipulation for the good conduct and proper behavior of their officers. If there is a breach of contract in this respect or any other respect, damages may be claimed on account thereof.

If there be a breach of contract in the case at bar, of course the plaintiff can claim dainages. But if the custom or regulation in regard to the mode of carrying colored passengers to which I have referred, be not unlawful, on entering the boat as a passenger, the plaintiff impliedly accepted the defendant’s offer to carry colored passengers in pursuance of that regulation, and she impliedly consented to take accommodation in the colored cabin. The defendant held himself out as prepared to take colored passengers, subject to a certain regulation universally prevailing on all boats navigating the waters of the lower Mississippi 5 and when a colored passenger entered his boat, the Governor Allen,” the implied contract was that his passage should be in the colored cabin. When a white passenger entered it, the implied agreement was that he should be accommodated in the white cabin, and if denied accommodation in the colored cabin he could not claim damages for breach of contract. It was the duty of the defendant, however, to provide suitable accommodations, and to make'each cabin equally comfortable, and this he is shown to have done.

In conclusion, I maintain there was no breach of contract if the regulation of the boat was not unlawful, because that regulation formed part of the implied contract which arose between the plaintiff and defendant, in July, 1872, when she entered the boat as a passenger. Laying out of view the enactments of Louisiana, which are not applicable to boats engaged in commerce between the States, I find nothing in the common law, which is the law-of the United States, prohibiting boats from making regulations for the common benefit of all the passengers, from separating the white and the colored into different apartments, giving to each equal accommodations. This custom or regulation is proved to have existed at least for the last thirty years, and perhaps ever since the American people commenced to navigate the Mississippi river.

Congress, which alone has authority to regulate commerce among the several States, has not seen proper to enact a law making this custom or regulation unlawful, although the subject in the shape of the civil rights bill has been lately under its consideration. Until the lawgiver speaks, it is our duty to be silent. For this State to interpose its enactments, and for this court to apply them to a subject solely confided by the constitution of the United States to Congress, is a glaring usurpation of authority.

For the reasons stated, I deem it my duty to dissent in this case.

Rehearing refused.


author: Taliaferro, J. Howe, J., Wyly, J., Taliaferro, J.

text:
    No. 3513.
    C. S. Sauvinet v. Joseph A. Walker.

    This court is not aware of the existence of any constitutional provision making it imperative upon the Legislature to accord a trial by jury in all civil cases. It was competent for the law making power to provide that cases like the present one should he tried without the intervention of a jury. Therefore it had the right to prescribe, as it did in this class of cases, that issues of the sort here presented should be tried by a jury, if any party to the suit pray for it; and to provide, in the event the jury do not agree, or fail to render a verdict either for the plaintiff or defendant, that the case bo determined by the judge.
    APPEAL from the Eighth District Court parish of Orleans.

      Dibble, J. Filleul, for plantiff aud appellee.

      A. A. Atocha, Honor & Benedict, for defendant and appellant.

      Carried by writ of error to the Supreme Court of the United States.

   Taliaferro, J.

This is an action brought under the fourth section of the act of the Legislature approved twenty-fourth of February, 1869, entitled “An Act to provide for carrying into effect the one hundred and thirty second article of the constitution of the State.”

The plaintiff alleges that on the twentieth of January, 1871, in company with two of his friends, he called at the coffeehouse of the defendant, arid asked of the person in attendance to he furnished with refreshments, kept and sold here by the defendant, a duly licensed coffeehouse keeper; that he offered to pay the usual and customary price of such refreshments, and conducted himself in an orderly and respectfu lmanner; that notwithstanding, the accommodations asked for were refused, and that he was ordered to leave the house; that tills refusal and ill treatment arose from no other cause or reason than that the petitioner is a man of color, and on that account not to be furnished with the accommodations extended in that establishment to others. The plaintiff avers that from the indignity so wantonly offered to him his feelings have been greatly outraged, and for the illegal and unwarranted act of the defendant the plaintiff prays damages in the sum of ten thousand dollars.

The answer is a general denial. The case was tried before a jury, hut there was a disagreement and no verdict rendered. The court thereupon, under the provisions of act No. 23 of the Statutes of 1871, rendered a judgment for one thousand dollars in favor of the plaintiff and the defendant appealed. There are numerous bills of exceptions found in the record, but their examination is not important in determining this case. Six of them relate to the formation of and the judge’s charge to the jury; the other two relate to the admission of testimony and are not important.

There was no evidence introduced on the .part of the defendant.

All the material allegations of the plaintiff we consider fully established. The plaintiff is shown to be a man of character and respectibility; that he has frequently held public office, and that he is now and was, at the time he was refused refreshments in the defendant’s coffeehouse or saloon, civil sheriff of the parisli of Orleans. It is clear that the refusal of the accommodations asked for was made solely on the ground that the plaintiff is a man of color. The defendant has therefore incurred the penalty of the act of 1869 — acts of 1869, p. 37.

We think the judgment of the lower court correct.

It is therefore ordered, adjudged and decreed that the judgment of the district court be affirmed with costs.

Howe, J.,

dissenting. The provision of the constitution and the statute under which this suit was brought should be enforced, so long as they are the law of this State. We can not treat them as dead letters; and the plaintiff has therefore a cause of action. But after hearing the dissenting opinion of Mr. Justice Wyly, I am inclined to agree with him that the damages are excessive.

Wyly, J.,

dissenting. I think the plaintiff had the right to be served at the barroom of the defendant; but I do not think the refusal ought to entitle him, a colored man, to greater damages than a white man ought tp recover, it being no greater wrong to refuse a colored man than, a white man. The question of color has nothing to do with the case. Nor is the position of the plaintiff of any consequence.

A citizen of the State has been refused entertainment at a public resort, and he claims exemplary damages under a statute highly penal in its character.

The jury could not agree upon a verdict, and under a special statute the district judge was authorized to dispose of the case. He imposed on the defendant §1000 exemplary damages, no actual damages being shown.

I think the penalty wholly disproportionate to the offense. If, instead of refusing the plaintiff a drink merely, the defendant had seized a chair and beaten him half to death with it, the damages would probably not have exceeded $250. Yet, is the right to enjoy the entertainment. of a drinking saloon of greater moment or more sacred than the right-of personal security from violence1?

Gravé offenders are rarely condemned to pay a larger penalty than §1000, as the law is now administered; and yet, without any evidence of the ability of the defendant to pay the penalty, he is condemned to pay one thousand dollars for merely refusing to sell a drink, not probably worth more than twenty-five cents, and where no actual damage has resulted from the refusal. As the statute is highly penal, as there is no proof of the circumstances of the defendant, and as the damages imposed by the district judge are, in my opinion, unreasonable and oppressive, I believe justice requires that this case should be remanded for new trial by a jury.

To vindicate Mr. Sauvinet’s civil rights it is not necessary to despoil the defendant or to impose on him a greater penalty than he can bear, the object of the law being to correct the abuse, not to bestow wealth upon the party injured, or to destroy the offender.

For these reasons I deem it my duty to dissent in this case.

On Application for a Rehearing.

Taliaferro, J.

In the application for a rehearing in this case, the question as to the constitutionality of the act of the Legislature under which the judgment against the defendant was rendered, is pressed upon the consideration of this court. We are not aware of the existence of any constitutional provision making it imperative upon the Legislature to accord a trial by jury in all civil cases. It was competent for the law-making power to provide that cases like the one before us should be tried without the intervention of a jury. Therefore it had the right to prescribe, as it did in this class of cases, that issues of the sort here presented should be tried by a jury, if any party to the suit pray for a jury; and to provide, in the event the jury do not agree, or fail to render a verdict either for the plaintiff or defendant, that the case be determined by the judge.

No facts appear on the record showing that the damages awarded are excessive.

The application for a rehearing is refued.

Rehearing refused.


author: Howell, J.

text:
    No. 4777.
    J. W. Cannon v. City of New Orleans.

    The second article of the city ordinance to regulate the levee dues and wharfage on ships and vessels arriving from sea, and on steamboats, flatboats, etc., arriving at the port of New Orleans, approved February 11, 1853, which provides, “that from and after the first of January, 1855, the levee dues on all steamboats which shall moor or Jand in any part of the port of New Orleans shall bo fixed as stated in said ordinance,” is not in. conflict with the provisions of the constitution of the United States.
    APPEAL from the Supciior District Court, parish of Orleans.

      Kcmlcins, -J. W, W. King, for plaintiff and appellant.

      G. S. Laeey, City Attorney, for defendant and appellee.

      Carried by writ of error to the Supreme Court of the United States, and reversed by that tribunal.

   Howell, J.

The plaintiff has appealed from a judgment against him in a suit brought by him as master and owner of the steamer Robert E. Lee, to injoin the city of New Orleans from levying on the said vessel certain charges called levee dues, and to recover the amount paid by said vessel within the twelve months preceding the institution of the suit, and certain alleged damages.

The claim of the city for the charges against the vessel is based on the second article of “an ordinance to regulate the levee dues and wharfage on ships and vessels arriving from sea, and on steamboats, flatboats, etc., arriving at the port of New Orleans,” approved February 11, 1853, and which provides “that from and after the first of January, 1853, the levee dues on all steamboats which shall moor or land in any part of the port of New Orleans shall be fixed as follows: Ten cents per ton, if notin port over five days, and five dollars per day after said five days shall have expired; provided, that boats arriving and departing more than once each week shall pay only seven cents per ton each trip, and boats arriving and departing more than twice each week shall pay only five cents per ton.”

It is contended by plaintiff that this .’dinance is in conflict with the provisions of the federal constitution, v.hich gives to Congress power to regulate commerce with foreign nations, among the several States, and .with the Indian tribes; which declares that no vessels bound to or from one State shall be obliged to enter, clear, or pay duties in another; that no State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws, and that no State shall, without the consent of Congress, lay aDy duty on tonnage; and also, in conflict , with the laws of Congress and of this State in relation to the admission of Louisiana into the Union.

The same points, supported by the same line of argument as in this, were presented in the the First Municipality v. Peas.. et al., 2 An. 540, and were decided adversely to the position tak , by the plaintiff in this case. It was there held that the authc y of the municipal corporation to impose a wharfage or charge .n vessels moored in the port of New Orleans, to defray the ex mses of the erection and maintenance of wharves and other work necessary for the loading and unloading of vessels, and to secure a cc enient access to them, is not inconsistent with any law of the ,te or United States, or any provision of the federal constitute , and that the courts will not undertake to fix any limit to the amount which the municipal authorities may exact for that purpose; the question of the extent to which this right may be exercised, being purely administrative.

We think these views correct, and strictly applicable to the case, now before us. The “levee dues” under consideration, are not a “duty on tonnage,” nor a regulation of a burden on commerce, nor a duty upon vessels plying between the States, within the contemplation of the constitution ot the United States, but charges as compensation for commercial facilities furnished by the city, and for which, by the common consent of mankind, compensation is paid. 9 R. 332; 9 Wheat. 235. The question of the right to impose such charges, whether under the name of wharfage or levee dues, being judicially determined, the manner and extent of its exercise are left to those to whom the management of the municipal affairs are intrusted, under their responsibility to those whom they represent. The aggregate of charges may, possibly, be largely in excess of the actual necessary expenses during one year, and the very next be insufficient to meet. This will result from the nature of the river banks, the action of the river current, the quality and nature of materials used, the fluctuations of commerce, and many other causes unforeseen and irregular in their operation, and all which show the impossibility of judicial control and regulation of the subject.

Being of opinion that the charges complained of are not in conflict with the provisions of any fundamental or statutory law of the country, and that the policy of their imposition belongs to the consideration of another department of government, it is unnecessary for us to inquire into the other points presented in this case. We think the conclusion of the court a qua correct.

Judgment affirmed.


author: Ludeling, C. J.

text:
    No. 5102.
    William L. McMillen v. Robert K. Anderson.

    Although “due process of law” generally implies and includes regular allegations, oppor. tunity to answer and a trial according to some settled course of judicial proceeding, yet this is not universally true It does not apply to proceedings to collect the public revenue.
    The revenue bill fixes the amounts of the license taxes due by retail merchants and retailers of spirituous liquors, and the act Ko. 47, of 1873 provides the manner in which taxes and licenses shall be collected from delinquent parties. This is sufficient. It is the mode provided by the legislator for enforcing a right of the sovereign and is cktc process of law.

    The judge a quo did not err in refusing to receive testimony in regard to the election of Governor Kellogg and the validity of his official acts, on the ground that the right ot an officer to a position which he holds can not be inquired into, or his action be declared null in a suit between third jmrties.
    APPEAL from the Thirteenth Judicial District Court, parish of Carroll.

      Hough, J. J. E. Leonard, for plaintiff and appellant. Hiram 11. Steele, District Attorney, and O. A. LeFranee for defendant and appellee.

       Carried by writ of error to the Supreme Court of the United States.

   Ludeling, C. J.

The plaintiff injoiued the defendant from selling his property, seized under act No. 47 of 1873, to pay licenses due by him as a retail merchant and a retail dealer in spirituous liquors.

There was judgment in favor of the defendant, and against the plaintiff, dissolving the injunction with damages, and the plaintiff has appealed.

From the record it appears that R. K. Anderson was discharging the duties of the office of tax collector in and for the parish of Carroll and State of Louisiana, under a commission issued in due form, in 1873; that having demanded payment of the licenses due by W. L. MeMillen as a retail merchant and retail dealer in spirituous liquors, he, in a letter to Anderson, refused to pay them to B. K. Anderson, on the grounds that the said Anderson was not legally authorized to collect them, as, he alleged, Governor Kellogg had no authority to appoint tax collectors, being himself a usurper; and he threatened Anderson with a suit for damages, if he trespassed upon his property by attempting to seize it. It further appears that the tax collector after-wards called upon the agent of W. L. MeMillen to point out property, who first refused and offered to make resistance to the officer, but after-wards he did point out property, which the collector seized and he appointed a keeper thereof. On the next day, the said agent of McMillen, with others aiding him, drove said keepers from the premises, and he then barricaded the windows and locked the doors. Whereupon the tax collector returned, and used force to effect an entrance into the building and again made a seizure of property to satisfy the taxes due by said MeMillen. It is urged that the action of the officer was harsh and oppressive, and in violation of article 9 of the constitution. We have failed to di***--* wherein the constitution has been violated by the defendant or the iaw of the State, under which he was acting. The only violator of law, in these proceedings, appears to have been the plaintiff or his agent, in resisting, by force, an officer in the discharge of his official duties.

The plaintiff further objects, that the defendant is attempting to take plaintiff’s property without due process of law.

Although “ due process of law ” generally implies and includes regular allegations, opportunity to answer and a trial according to some settled course of judicial proceeding, yet this is not universally true. It does not apply to proceedings to collect the public revenue. 11 Mich. 139; 18 How. 272 ; 2 Yerg. 260, 599 ; 4 Hill 146. The revenue bill fixes the amounts of the license taxes due by retail merchants and retailers of spirituous liquors, and the act No. 47, of 1873, provides the manner in which taxes and licenses shall be collected from delinquent parties. This is sufficient. It is the mode provided by the legislator for enforcing a right of the sovereign and is due process of law.

On the trial, bills of exceptions were taken to the rulings of the district judge refusing to receive testimony in regard to the election of Governor Kellogg, etc., on the grounds, that the right of an officer to a position which he holds can not be inquired into or his action be declared null, in a suit between third parties.

The ruling is corect, being in accord with the well settled jurisprudence of this State. 13 An. 403; 22 An. 33; 25 An. 263, 267.

The appeal is frivolous. It is therefore ordered and adjudged that the judgment appealed from be affirmed, and costs of appeal.


author: Howell, J. Wyly, J., Ludeling, C. J. Howell, J.

text:
    No. 4333.
    In the Matter of the Commissioners of the First Draining District, Praying for the Homologation of the Assessment Roll, etc.

    Tli© opponents to the homologation of tlie assessment roll presented by the commissioners of the Pirst Draining District err in basing their opposition on the ground that some of the lands upon which the assessment in controversy is established, were drained at their cost under the provisions of act 2To. 49 of 1839, and are by the thirteenth section thereof specially and forever exempted from any further assessment for draining. This section created no contract between the State and the opponents, by which their lands were exempted from the assessment under consideration.
    This assessment is not an extra tax within the contemplation of said thirteenth section, which made it the duty of the municipality of New Orleans to maintain the works erected by the draining company on the particular section drained, without over levying an extra tax on the lands so drained, but only out of the funds arising from the general tax imposed throughout the municipality.
    The act of 1861, 33b. 57, provided, as its title indicates, for the collection of the assessment for draining under the act of 1858 and the supplementary act of 1859, and it seems that the present proceedings wore instituted in accordance with the provisions of the act of 1861.
    The Legislature of 1871, in act 30, has legalized the assessments made by the three boards of commissioners under the said acts of 1858 and 1859, and other supplementary and amendatory acts, and authorized and directed the board of administrators of hTow Orleans to collect the balance due on said assessments, which the said administrators are now seeking to do.
    The State, in ordering the draining, is exercising sovereign power, and can of course direct or authorize the work to be done in such way, and compensation made in such terms, as its discretion may deem best, restrained only by the fundamental principles upon which the government is to be conducted; and nothing is found in those principles inhibiting the State from having the means provided for such a work in the way it is done in the present system of drainage in !Nbw Orleans. The existing laws clearly authorize the collection sought to be enforced, and no reason can be seen for judioial interference with the discretion of the State.
    APPEAL from the Seventh District Court, parish of Orleans.

      Oollens, J. Rufus Waples, for tb'e city of New Orleans and Board of Administrators, praying for homologation, etc., and appellants.

      W.

      O. Denegre, Hornor & Benedict, Trist & Olivier, Gilmore & 80ns, Gamphell, B. B. Blanc, Lea, Finney & Miller, Clarice, Bayne <& Benshaiv, and others, for opponents and appellees.

      C. S. Lacey, amicus curias.

       Carried by writ of error to the Supreme Court of the United States,, as far as the estate of Davidson is concerned.

   Howell, J.

As the constitutional questions raised in this proceeding have, in our opinion, been decided in the case of the Draining Company, 11 An. 370, we think it necessary to consider only the following grounds of opposition herein as argued before us :

First — That some of the lands, upon which this assessment is levied", were.drained at their cost under the provisions of act No. 49, of 1839, and are, by the thirteenth section thereof, specially and forever exempted from any further assessment for draining.

Second — That by act 165 of 1858, the assessments for draining any one section or district shall not exceed three hundred and fifty thousand dollars, which sum has already been nearly exhausted, and the present assessment is for $450,000 additional.

Third — That the money can not be collected in advance of the completion of the work.

I. Section 13 of the act invoked reads : That whenever any section c>f land shall have been drained and cleared by said draining company, it shall abandon the same to the municipality or municipalities in which the said section may be situated; and whereas, the said draining will have been effected entirely at the expense of the proprietors of said land, and will greatly contribute to the salubrity and drainage of the front part of the said city, the said municipality or municipalities shall thereafter maintain the leveés and ditches made by said draining company, and the machinery and other works erected by the same on the said sections, in good repair and in efficient condition, without ever laying an extra tax on the land so drained. If any of the said sections should extend into two municipalities, the steam engine and other machinery erected-thereon by the said draining company, shall be kept in repair and operation by the municipality within the limits of which it is established; but the other municipality shall contribute to the expenses thereby occasioned, in the same proportion, which the extent of the portion of said section lying within the limits, bears to the extent of the portion of the said'section embraced within the ‘boundaries of the municipality wherein the said engine or other machinery and building have been constructed, but each municipality shall maintain the ditches and levees made by said company within its own limits.”

It is contended by the opponents that this is a contract between them and the State, by which their lands, within a certain section drained by the said draining company, are exempted from the assessment now under consideration. We can not concur in this view, and we think the litigation in the case cited in 11 An. clearly shows that the draining of opponents’ lands by the then draining company was not done under a contract between the State and the opponents, or their authors. We are unable, moreover, to find in the above section the elements of a contract. The State, in providing for the draining of said lands, was exercising one of the highest powers of its sovereignty, without requiring the consent of the owners, but rather enforcing it in despite of their opinions and objections, and directed that when completed, the burden of maintaining and preserving the benefits thereof should be imposed upon the municipal government and not upon the owners of the lands most directly benefited. This was but justice. But there was nothing like a mutual agreement that, if the owners would pay the company for draining their lands, the said lands should never again be required to contribute to any draining that might be or become necessary.

Those lands having thus been drained and made valuable, were thereafter like the lands in the front and higher part of the city, and in common with them liable for maintaining the established drains and constructing any that might be elsewhere needed, for the common benefit. And this is what is now being sought by these proceedings; all ihe lands within the first draining dristrict, as it now exists, are uniformly assessed to effect the draining of all the low lands within its limits. It is not an extra tax within the contemplation of the said thirteenth section, which made it the duty of the municipality, in its corporate capacity, to maintain the levees and ditches made, and the machinery and other works erected by the draining company on the particular section, without ever laying an extra tax on the lands so drained. That is, the lands so drained were not to have an extra tax levied on them to maintain those works; but the said work, etc., were to be maintained out of the funds arising from the general tax imposed throughout the municipality — maintained at the public expense and not at the expense, or the increased, additional expense of the lands so drained. This we think is the fair, legitimate construction and purpose of the section under consideration, and renders it unnecessary to decide whether the legislature sought by it, and had the power to limit or restrict the legislative action and authority of future legislatures.

II. We do not consider the second objection well founded. The act of 1858 did limit the assessment in each of the three districts to three hundred and fifty thousand dollars; but the supplementary act No. 191, of 1859, authorized each of the three boards of commissioners to issue bonds to the amount of three hundred and fifty thousand dollars, and to levy an assessment to pay the interest and principal thereof, the amount of which assessment, demandable yearly, should not exceed in the aggregate more than one tentli of such assessment. The act of 1861, No. 57, provided, as its title indicates, for the collection of the assessment for draining under the act of 1858, and the supplementary act of 1859, and it seems that the present proceedings were instituted in accordance with the provisions of this act of 1861. It is stated by a witness in this case, who was a member of one of the boards of commissioners created by the act of 1858, that the boards thought they could go to the extent of seven hundred thousand dollars each. Whether they are correct or not in such opinion, the legis-' lature of 1871, in act No. 30, has legalized the assessments made by the said three boards of commissioners under the said acts of 1858 and' 1859, and other supplementary and amendatory acts, and authorized and directed the Board of Administrators of New Orleans to collect the balance due on said assessments, which the said administrators are seeking to do in this case, and are asking for the homologation of the assessment roll showing the assessments due by the persons and property assessed, in the First Draining District within the parish of Orleans, from the second to the tenth annual installment inclusive.

III. The judge below sustained the third objection, and held that the assessment can not be collected until the drainage is completed, •on the theory that the State or city, acting under authority from the State is but the negotiorum gestor or special agent of the parties for whom the work is to be done, and is entitled only to reimbursement for all disbursements actually made. In -this there is error. As we have already remarked, the State, in ordering the draining, is exercising sovereign power, and can, of course, direct or authorize the work to be done in such way and compensation, made on such terms as in its discretion may seem best, restrained only by the fundamental principles upon which the government is to be conducted, and we find nothing in them inhibiting the State from having the means provided for such a work, in the way it is done in the present system of drainage in the city of Mew Orleans. On this question we see no room for judicial interference with the discretion of the State, and we think the existing laws clearly authorize the collection sought herein to be enforced.

There are other grounds of opposition in the record, but they have not been urged before us, and we find nothing in them demanding attention. The proceeding, as to the property belonging to the succession of John Davidson, not being probate in its character and •object, is not in conflict with the constitution, giving exclusive probate jurisdiction to the Second District Court.

It is therefore ordered that the judgment appealed from be reversed, and that the oppositions herein be dismissed at the costs of the opponents respectively; and it is further ordered that the assessment roll herein, except that portion designated as “Book No. 2, B,’’ on said roll, be and is hereby approved and homologated, and this approval and homologation shall operate as a judgment against the property described as assessed in said roll, and also against the owner or owners thereof, with ten per cent, in addition to the amount assessed, to pay costs and counsel fees.

Wyly, J.,

dissenting. I dissent in this case and reserve the right, to' file my reasons therefor.

Ludeling, C. J.

In this case a rehearing is granted of our own motion, so as to enable us to correct an error in the decree in regard to the exception made in the decree relative to book B., without prejudice to the right of parties to ask for rehearing on the merits, within the legal delay, dating from the original decree.

Restricted rehearing granted exproprio motu.

Howell, J.

Our attention having been called to the fact that “Book No.- 2 B,’’ excepted from the operation of our decree herein, embraced the whole of the area that had been drained under the act of 1839, and was by said act exempted, as contended, from the present assessment— the principal question discussed in our former opinion — we, of our own motion, ordered a restricted rehearing, in order to make our decree conform to the views we expressed on the point, as the exception is in conflict with our conclusion, and was made without understanding, at the time, that this book contained the lands which were alleged to be exempt.

In granting this rehearing, for this limited purpose, we expressly reserved to all parties the right to apply for a rehearing upon the merits. No one, except the estate of Davidson, has applied for a rehearing.

The grounds upon which this application of the estate of Davidson is based, are the same upon which we expressed our opinion on the first hearing, and we are not convinced that we erred and can not grant a rehearing thereon.

As to the correction of our decree it follows as a matter of course.

It is therefore ordered that the rehearing asked for by the estate of Davidson be refused, and it is further ordered that our decree herein be amended by striking therefrom the phrase “ except that portion designated as ‘Book-No. 2, B; ’ ” that the said portion of the assessment roll be embraced in this judgment of homologation, and as thus amended the said decree remain undisturbed.

Rehearing refused on the merits.


author: Wyly, J.

text:
    No. 3111
    E. A. Switzer v. John Heinn and Mary Heinn, Owners of the Steamboat Frolic.

    This is a personal action against the owners of a steamboat, the vessel being seized to enforce a lion accorded by a State law, tinder the conservatory remedy of provisional seizure. It is not a proceeding in ran to enforce a maritime lion. Therefore there is no force in the objection that the State court was without jurisdiction.
    The State court, having once obtained lawful jurisdiction over the parties and subject matter, could not be subsequently divested thereof by the bankrupt court.
    Congress has not only not deprived other courts of jurisdiction over such casos, hut it has provided for their prosecution and defense in those courts by tbe assignee in bankruptcy* This principle applies not only to all ordinary actions to collect debt, but also to all proceedings to enforce a lien, so long as the amount due is in dispute or remains unascertained.
    APPEAL from the Fifth District Court; parish of Orleans.

      Lecmmoni, J. B. Bagan and B. Ar. WJdttemore, for plaintiff and appellee.

      B. T. Merriclc, itace & Foster, A. G. Brice, for defendant and appellant.

      Carried by writ of error to the Supreme Court of the United States.

   Wyly, J.

The plaintiff sued the defendants for his wages as captain of the steamboat Frolic and provisionally seized the vessel, which was afterwards released on bond.

The defendants were subsequently adjudged bankrupts, and their assignee was made party, contradictorily with whom this case was tried, and judgment rendered in favor of plaintiff for the amount of his claim, eight hundred and seventy dollars.

The assignee has appealed. This is a personal action against the owners, the vessel being seized to enforce the lien accorded by article 8204 R. C., under the conservatory remedy of provisional seizure. C. P. 285, 289.

It is not a proceeding in rem to enforce a maritime lien. Therefore there is no force in the objection that the State court was without jurisdiction. Lew v. Galceran, 11 Wall. 185.

It is contended, however, that the decree of bankruptcy divested the court of jurisdiction, and that it had no authority to proceed to trial and render judgment against the assignee; that the plaintiff should have gone into the bankrupt court to enforce his claim.

The State court having obtained lawful jurisdiction over the parties and subject matter could not be divested thereof by the bankrupt court.

“ Congress could, no doubt, have made an adjudication in bankruptcy operate proprio vigore to transfer all causes which should be pending-in other courts at the time of the filing of the petition and to which the bankrupt should be a party, from those tribunals into the court of bankruptcy. It has not, however, done so.

It not only has not deprived other courts of jurisdiction over such cases, but it has provided for their prosecution and defense in those courts by the assignee. This principle applies not only to all ordinary actions to collect debt, but also to all proceedings to enforce a lien so long as the amount due is in dispute or remains unascertained.” Bump’s Law and Practice of Bankruptcy, sixth edition, pages 187, 198, 199, and authorities there cited.

The demand oí the plaintiff is fully established by the evidence in the record.

Judgment affirmed.

Rehearing refused.


author: Taliaferro, J. Ludeling, C. J.

text:
    No. 3428.
    Kennett & Bell v. Uuion Insurance Company of New Orleans.

    The rules and regulations of the United States Board of Supervisors do not specify and particularize tlie short bends and points at which certain precautionary signals are to ho made hy steamers. In the absence of such specification by the hoard, it would seem then to become a matter within the judgment and discrimination of the navigators of the rivers, to determine the places where, hy the rules and regulations governing pilots, signals are to be given.
    A transcript of the proceedings before tbe United States inspectors, in relation to the sinking of the steamboat Texarkana, which gave rise to this suit, embracing the evidence taken on that occasion, was offered on the part of deiendants to prove rein ipsam. This was objected to by the plaintiff as res inter alios and irrelevant. The court a qua sustained the objection to that extent, but admitted it for the purpose only of contradicting the statements of witnesses. The court did not err. The action taken by the board of inspectors could not bind the plaintiff who was not a party to it.
    APPEAL from the Sixth District Court, parish of Orleans.

      Oooley, J. Olarlce, Bayne & Benshaw, for plaintiffs and appellees.

      J. B. Isley, Kennedy & Ohiqpclla, for defendant and appellant.

       Carried by writ of error to the Supreme Court of the United-States, and dismissed on motion by that tribunal.

   Taliaferro, J.

The defendants are sued for $10,000 on a policy of insurance taken with the company upon the hull, engines, furniture and appurtenances of the steamboat Texarkana, for one year from the seventeenth of December, 1869, to the seventeenth of December, 1870. It seems the boat insured sunk in Red river, about the first of September, 1870, from the effects of a collision that occurred between the Texarkana and the steamboat Era No. 9. Tbe boat and all her appurtenances were treated as a total loss, and abandoned to tbe insurers.

Tbe answer is a general denial. The plaintiff had judgment for the amount claimed and defendants have appealed.

This case turns entirely on questions of fact. It is urged in defense that the accident occuired from a violation of rule No. 6 of the rules and regulations adopted by tbe board of supervising inspectors in 1865, under tbe provisions of the twenty-ninth section of the act of Congress “for tile better security of the lives of passengers on board of vessels propelled in whole or in part by steam.”

The rule sixth is in these words: “When any steamer, whether ascending or descending is nearing a short bend or point, where from any cause a steamer approaching in an opposite direction can not be seen at a distance of six hundred yards of that bend or point, shall give a signal of one long sound of his steam whistle, as a notice to any steamer approaching; and if theTe should be any approaching steamer within hearing of such signal, it shall be the duty of the pilot thereof to answer such signal by one long sound of his steam whistle, when both boats shall be navigated with the proper precautions as required by the preceding rule.” *

. The defendants assume that at the place where the collision happened there is a short bend or point, where it is made the duty of pilots to sound their steam whistles as signals of the approach of boats according to the rule six; just quoted. This is required to be done at such short bends or points where a boat can not be seen at the distance of six hundred yards. The evidence is that neither of the pilots of these boats sounded his whistle until the boats were too near each other for the collision to be avoided, the regulations by law requiring that signals shall be given in approaching short bends and points in ample time to have the boats moving in their proper places so as to pass each other safely. Defendants hold that the loss of the insured boat was the result of the culpable neglect and want of skill in the pGot and managers of the Texarkana, as well as that of the other boat, and that they are not bound under the policy.

But the rules and regulations of the board of supervising inspectors do not specify and particularize the short bends and points at which these precautionary signals are to be made. In the absence of such specification by the board it would seem then to become a matter within the judgment and discrimination of the navigators of the rivers, to determine the places, where by the rules and regulations governing pilots, signals are to be given. Accordingly we find from the evidence that the point where the collision in this case occurred, never had been considered as a place coming within the requirements of rule No. six; and all the Red river pilots who testified in this case, and there were some half dozen or more of them, were unanimous in saying they never knew or heard of the steam whistle being used at the point in question as being required by rule six. A diagram of that part of the river where the accident happened is given in connection with the evidence of one of these pilots. It would clearly appear from this diagram and the general drift of the. testimony-that at the place where the collision took place, there is not a short bend or point “where, from any cause a steamer approaching in an opposite direction, cas not be seen at a distance of six hundred yards.” The diagram represents a gradual curve in the river, called technically by one or two of the witnesses a “kink.” It does not present an abrupt bend or turning of the river constituting “ a short bend or point.”

It appears that after this accident happened an investigation of the subject was made before the United States inspectors under the act of Congress. A transcript of the proceedings before the inspectors, embracing- the evidence taken was offered on the part of the defendants to prove rem ipsam. This was objected to by the plaintiff as res inter alios, and irrelevant. The court sustained the objection to that extent, but admitted it for the purpose only of contradicting the statements of witnesses. A bill of exceptions was .taken by the defendants. We think the ruling of the court correct.

The action taken by the board of inspectors could not bind the plaintiff, who was not a party to it. That portion of the testimony let iu, shows some discrepancy between the evidence given by Kountz, the pilot on duty aboard the Texarkana at the time of the collision, and that which he gave previously before the board of inspectors, but as against the mass of evidence introduced in court on the part of the plaintiff, it can have but little effect. We regard the evidence as establishing beyond doubt that at the time of the collision, the Texarkana was on the proper side of the river for an ascending boat to be, and that she was near the shore. This last fact is well established. The force with which she was struck threw her against the shore. Although the river at the place where the accident took place was narrow, there was room for the other boat to have passed without collision had she been further out in the stream.

We are of the opinion that the plaintiff’s case is made out. There are two other bills of exceptions taken by defendants, but it is not important to the decision of this case that we should pass upon them.

Judgment affirmed.

On Application por Rehearing.

Ludeling, C. J.

In this case an application for a rehearing is made on several grounds. We find there was error as to the failure of the court to allow the defendants a credit of two hundred dollars, the two per cent, on the amount ($10,000 insured), according to the policy. We now order that said credit be allowed, the appellee consenting thereto. The application for rehearing is refused.