author: Spoffokd, J. Mr. Justice Voorhies and Mr. Justice Lea Buchanan, J.,

text:
    The State of Louisiana, on the relation of John M. Bell, v. Joseph Hufty.
    The address for the removal of Hufty from the office of Sheriff of the parish of Orleans was presented to the Governor, and approved by him. His official approval and signature consummated the removal.
    Article 97 of the Constitution is in these words : “ All civil officers, except the Governor and Judges of the Supreme and Inferior courts, shall be removable by an address of a majority of both Houses, except those the removal of whom has been otherwise provided by this Constitution.” Accurately speaking, the Constitution itself nowhere else provides a mode of removing Sheriffs.

      Article 89 allows the impeachment and the prosecution of Sheriffs. But the power of impeachment, or prosecution for misdemeanor in office, which, in case of conviction, involves a removal from office as an incident, and the power of removal without impeachment, or prosecution, are concurrent powers, both of which are clearly recognized by the Constitution, and neither of which excludes the other
    The theory of our representative Governments is, that offices are created, not for individual emolument, but for the public good. And the object of the Constitution was to provide not only for the punishment of official delinquents, which would involve the dismissal from office, but also a mode of removing civil officers, against whom no accusation of crime could be made, or sustained, whenever the public good should require such removal.
    It would be rebellion in a Judge to say-that a plain and unqualified grant of power, given by the Constitution to a particular department of the government, was null because he thought it was against common right.
    It is hardly tenable to say that a man can have a “ vested right ” to any public office under our form of government. Certainly it canuot be said of a Sheriff, when, in the language of the 80th Article of the Constitution, the very tenure of the office is, that he shall hold it “ for the term of two years, unless sooner removed.”
    The power of removing an officer upon address of the two Ilauses is not a judicial power, but is essentially administrative, and therefore not within the prohibition of Article 2 of the Constitution, which provides that “no one of these departments, [legislative, executive and judiciary] nor any person holding office in one of them, shall exercise power properly belonging to either of the others.” But even if this power of removal did somewhat partake of a judicial character, its exercise would not, on that account, be void, for it is protected by the concluding words of the same Article 2: tl No one of these departments, nor any person holding office in one of them, shall exercise power properly belonging to either of the others, except in the mstcvnces hereinafter expressly directed or permitted.^

    The verdict of the jury in favor of Rufty ^ in the contested election between Bell and Rufty was not a bar to the removal of Rufty by the Legislature. The question before the court was: Shall Rufty receive a commission ? The question before the Legislature was: Shall Ruft/y be removed from office? In the one case there were two parties, each urging that he could count the greater number of votes in his favor. In the other case there were no parties, but a mere act of administration. -The judgment in favor of Ruft/y has been enforced. Rufty has been placed in possession of the sheriffalty.
    The reasons assigned in the preamble to the address for the removal of Rufty, whatever they may be, cannot vitiate the act of removal, which act was within the constitutional competency of the Legislature, uncontrolled by any superior power. With their reasons, whether good, bad, or indifferent, the judiciary have nothing to do.
    While the Legislature has power to remove a Sheriff by address, proprio mot/u, without any accusation preferred by memorial against him, yet Article 97 of the Constitution does not authorize the Legislature to hear evidence upon, and decide judicially, the legality or validity of an election of Sheriff. Buchanan, J., dissenting.
    Unless the reasons assigned by the Legislature exhibit an unconstitutional exercise of power, they could not be examined judicially. Buchanan, J., dissenting.
    The exercise of judicial power by the Legislature is unconstitutional, except in the instances expressly directed or permitted in the Constitution. Buchanan, J., dissenting.
    The identical specifications upon which the relator had contested the election of Rufty before a tribunal, the decision of which was final, are the very grounds set forth in the address for the removal of Rufty. The address is thus an interference with the legal course of proceedings of the regularly constituted judiciary of the State, and an appellate jurisdiction claimed and exercised by the Legislature. Buchanan, J., dissenting.
    XJL PPEAL from the Sixth District Court of New Orleans, Ootton J.
    XJL Benjamin, Bradford & Finney, for the relator. Durant & Hornor and Price & Day, for defendant and appellant.
   Spoffokd, J.

The present relator, John M. Bell, having produced a commission as Sheriff of the parish of Orleans, vice Joseph Hufty, removed, and having given the bond and taken the oath prescribed by law, was, some days since, recognized by this court as its executive officer.

In so recognizing him, this court acted upon the presumption that all things had been rightly done; there was no eontestatio litis, and the showing made expa/i'te was apparently regular upon its face.

We did not, and do not, regard that action on our part as decisive of the present issue. For the first time we have a controversy touching this matter presented before us according to the forms of law, upon a devolutive appeal from the decision of a tribunal having original jurisdiction, which this court has not. .

The defendant has appealed from a judgment of the Sixth District Court of New Orleans, ordering him to surrender to the relator all the papers and other effects belonging to the office of the Sheriff of the parish of Orleans.

There is no dispute as to the power of the Governor to appoint a Sheriff in case the office becomes vacant from any cause during a term. Const., Art. 80. There is no dispute as to the fact that the relator, Bell, has been so appointed with the advice and consent of the Senate, and that he is duly qualified to fill the office.

. Then the sole question is, was there a vacancy when the relator was appointed? If there was, the judgment of the District Court is right; if there was not, it was wrong.

The defendant, Sufty, is admitted to have been the legal Sheriff of the parish of Orleans until the 21st day of February, 1856, when it is alleged that he was removed from office by the following address of a majority of both Houses of the General Assembly :

“An Address removing from office Joseph Sufty,- Sheriff of the parish of Orleans.

“ Whereas, freedom of suffrage and the inviolability of the ballot-box are the only basis of republican government; and whereas, the great palladium of American-liberty has been overthrown and trampelled under foot at the late general election held in New Orleans on the 5th November, 1855, whereby the free expression of the popular will has been illegally suppressed by partisan Commissioners of Elections, who arrogated to themselves the power to disfranchise legal voters, and by bands of lawless men who not only drove peaceful citizens from the polls by intimidation, violence and bloodshed, but even after the polls had been closed, destroyed more than thirteen hundred legal votes which had been received during the election by the Commissioners, to the truth of which outrages the whole population of New Orleans bear witness; and whereas, the late Governor of this State has urged the Legislature to “ crush the evil at once, and before it' has taken root, and by the most pointed and energetic means;” and whereas, the Legislature is constituted by the organic law the grand inquest of the State, for the protection of the elective franchise from tumult, violence and other improper practice, and to vindicate the constitutional rights of the people rising above andinot the subject-matter of ordinary judicial investigation, but totally independend'ent of and not to be confounded with individual claims to office; and whereas,, the 97th Article of the Constitution declares that “ all civil officers, except the Governor and Judges of the Supreme and inferior courts, shall be removable by an address of a majority of both Houses, except those the removal of whom has been otherwise provided for by this Constitution;” and'whereas, a Sheriff is a- civil officer, whose removal is not otherwise'provided for by the Constitution ; and whereas, it has been indubitably established to the satisfaction of this Legislature that the constitutional, rights of the citizens of New Orleans have been grossly violated in the later election for Sheriff of the parish of Orleans;

Therefore, be it resolved by the Se'nate and House of Representatives, of. the State of Louisiana in General Assembly convened, a majority of the members of both Houses concurring in this address, that Joseph, Hufty, commissioned as Sheriff of the parish of Orleans, be and he is hereby removed from the office of Sheriff of the parish of Orleans.

Be it further resolved, that this address be presented to the Governor of this State in compliance with the Constitution thereof, and that the same take effect from and after its passage.

(Signed,) William W. Pugh,

Speaker of the House of Representatives.

(Signed,) 0. H. Mouton,

Lieutenant Governor and President of the Senate.

Approved, February 21st, 1856,

(Signed,) Robert 0. Wicklihpe,

Governor of the State of Louisiana.”

If this address, thus approved, effected a removal of Joseph Hufty from the office of Sheriff, there is an end of the case.

The objection of form, upon the ground that the address purports itself to remove the defendant from office, whereas the Article 97 of the Constitution requires the Executive to intervene upon the request of the Legislature, appears to be untenable. The address was presented to the Governor, and approved by him. His official approval and signature consummated the act. Constitution, Art. 54.

The constitutionality of this Act of removal being then the only matter of inquiry necessary to the determination of this cause, we proceed to its investigation in the following order:

1st. Has the power of removing a Sheriff by means of an address of a majority of the members of both Houses been expressly conferred by the Constitution in any case ?

2d. If it has, are there any restraints or limitations laid down elsewhere in the Constitution, which rendered the exercise of the power, in this particular case, null and void ?

I. Article 97 of the Constitution is in these words: “All civil officers, except the Governor and Judge of the Supreme and inferior courts, shall be removable by an address of a majority of both Houses, except those the removal of whom has been otherwise provided by this Constitution.”

It is conceded that the Sheriff is a civil officer, and that the power of remov. ing him by address is expressly granted under this Article, unless he comes within the last exception, to wit: those officers, the removal of whom has been otherwise provided by this Constitution.

Accurately speaking, the Constitution itself nowhere else provides a mode of removing Sheriffs.

. But it is contended that Article 89, under the title of “Impeachment,” (title 5,) brings Sheriffs within the exception to Article 97 by declaring that “the Legislature shall provide by law for the trial, punishment and removal from office of all other officers of the State” [i. e. except those enumerated in the preceding Articles] “by impeachment or otherwise.”

The power of impeachment or prosecution for misdemeanor in office, which in case of conviction involves a removal from office as an incident, and the power of removal without impeachment or prosecution, are concurrent powers, both of which are clearly recognized by the Constitution, and neither of which excludes the other.

The theory of our representative government is, that offices are created, not for individual emolument, but for the public good. And the object of the Constitution was to provide not only for the punishment of official delinquents, which would involve their dismissal from office, but also a mode of removing civil officers against whom no accusation of crime could be made or sustained, whenever the public good should require such removal.

The Governor alone seems to have been exempted from the possibility of removal without impeachment or prosecution and trial for crime.

Thus, “the Judges of all courts shall be liable to impeachment, but for any reasonable cause, which shall not be sufficient ground for impeachment, the Governor shall remove any of them on the address of three-fourths of the members present of each House of the General Assembly. In every such case, the cause or causes for which such removal may be required shall be stated at length in thé address, and inserted in the journal of each House.” Constitution, Art. 73.

Clerks of the inferior courts are put upon a peculiar footing. “The Judges of the several inferior courts shall have power to remove the Clerks thereof for a breach of good behavior, subject in all cases to an appeal to the Supremo Court.” Constitution, Art. 77.

But as a breach of good behavior may not amount to a crime, Clerks of courts would also seem to be embraced in the purview of Article 89, which commands the Legislature to provide by law for the trial, punishment and removal from office, by indictment or otherwise, of all officers of the State, except the Governor,' Lieutenant Governor, Attorney General, Secretary of State, State Treasurer, Judges of the Supreme Court,"and all Judges of the inferior courts, save Justices of the Peace; the “ trial, punishment and removal from office” of those officers, by way of impeachment, having been provided for in the preceding Articles 85, 86, 87 and 88.

The Commissioners of the Board of Public Works also fall within the scope of Article 89, for whose trial, punishment and removal from office, by indictment or otherwise, the Legislature is bound to provide, although a special mode of removing them is provided by the Constitution itself in Article 133 : “The Commissioners may be removed by the concurrent vote of a majority of all the members elected to each House of the General Assembly; but the cause of the removal shall be entered on the journal of each House.”

The last clause in Article 97: “Except those the removal of whom has been otherwise provided by this Constitution,” seems, therefore, to refer to Clerks of the inferior courts and to Commissioners of Public Works, and, perhaps, might also be held to embrace members of the General Assembly, each House of which is empowered by Article 21 to expel a member with the concurrence of two-thirds. All other civil officers (saving also the Governor and Judges of the Supreme and inferior courts) “shall be removable by an address of a majority of both Houses.”

The construction contended for by the appellant, if carried out, would nullify and make surplusage of the whole Article 97. If the removal of all other officers is provided by Article 89, much more is the removal of the Governor; Lieutenant Governor, Attorney General, Secretary of State, State Treasurer and Supreme and inferior Judges provided in Articles 85, 86 and 87, under the same title of impeachment. Judgment in cases of impeachment extends to^ removal from office, and perpetual disqualification therefor.' Constitution, Art. 87. And between Articles 86 and 89 a possible removal of all officers of the State by impeachment or trial and punishment in a proceeding analogous thereto, (by indictment or otherwise,) has been provided for, so that, according to this view, nothing remains for Article 97 to operate upon; the saving clause takes every officer in the State out of its scope; the grant of power in the body of the Article is wholly withdrawn by the proviso. It is impossible thus to violate the plainest canons of interpretation.

The Act of March loth, 1855, (p. 370) relied upon by the appellant, fully recognizes the'two-distinct but co-existing modes of removal indicated so clearly in the Constitution Itself. That Act is entitled “an Act to determine the manner and regulate ’the proceedings in impeachments.” It provides only for cases where there is personal accusation of some offence against the officer himself. Even then, in section-3, it provides that if the House shall deem it expedient, after the preliminary investigation, it may abandon the impeachment and fall back upon the alternative-and .milder course, of removal by address. Conviction under impeachment forever disables the convict from holding office; a simple removal ¡by address entailsmo-such disability. An impeachment implies a personal and ignominious punishment for guilt; a removal by address need not imply any criminality.on the party-removed; it merely asserts that his interests must yield to 'the public weal.

We, therefore, conclude that the-Constitution in express terms conferred upon a majority of both Houses the power of removing the Sheriff, by an address presented to the 'Governor, upon his approval thereof.

II. The-second branch Of <our inquiry-then is, are there any restraints or limitations laid down elsewhere in the Constitution which rendered the exercise of the power of removal by address, imthis instance, null and void?

We say '“elsewhere in the Constitution',” because, if the power is expressly granted, we disclaim the right'to limit or- control it by considerations outside of the Constitution. We are not .the makers but the expounders merely of the paramount law. We. cannot add one jot or tittle to its terms. We cannot, by glosses and interpretations, subtract one particle from its substance. It would be rebellion in,-a. Judge to say that-a plain, and unqualified grant of power given by the Constitution to.a ¡particular department of the government was null, be-cause he:-thoughtit was against “ common right.” And it would be an assumption of -sovereign authority for the Judge to say: “ I will construe, qualify and ,pare away this unqualified grant of .power, so as to make it consort with my .ideas of common right:”

.Fixing our eyes, then, on Article .9.7 of the Constitution, as the source and •measure of the legislative ¡power in this.instance, we find it to be untrammeled iby.any conditions or reservations. It says simply that the class of officers to '.which -the Sheriff belongs “ shall be removable by an address of a majority of (the.members of both Houses.”

¡Looking at provisions for the removal of other officers, we find each qualified ün a way peculiar to itself.

- -“.For any reasonable cause, which shall not be sufficient ground for impeachment, the-Governor shall remov.e-.any of-them, [the Judges of all courts] on the address of three-fourths of the members present of each House of the General Assembly. In -.every such case, the cause or causes for which such removal may be required, shall be stated at length in the address and inserted in the journal of each House.’” .Constitution, Art. ,73.

' Clerks of the several inferior courts may be removable by the Judges thereof, “ for breach of good behavior; subject in all cases to an appeal to the Supreme Court.” Constitution, Art. 77.

Commissioners of Public Works “may be removed by the concurrent vote of a majority of all the members elected to each House of the General Assembly ; but the cause of the removal shall be entered on the journal of each House.” Constitution, Art. 133.

When we consider how carefully every word is weighed in framing the fundamental law of a sovereign State, the omission in Article 97 of all these various qualifications affixed to the power of removal in other cases, becomes significant of a purpose. It leads us to the conclusion that the makers of the Constitution intended to leave the power of removing the civil officers embraced in Article 97 absolutely to the prudence of a majority'of both Houses of the General Assembly, unless the exercise of the power in a particular case should come in conflict with a positive inhibition contained elsewhere in the same instrument.

Article 105 : “ No ex post facto law, nor any law impairing the obligation of contracts shall be passed, nor vested rights be divested, unless for purposes of public utility, and for adequate compensation previously made.” It has been contended for the appellant that such an inhibition is found in

It is hardly tenable to say that a man can have a “vested right” to any public office under our form of government. Certainly it cannot be said of a Sheriff, when, in the language of the 80th Article of the Constitution, the very tenure of his office is, that he shall hold it “for the term of two years, unless sooner removed.”

Again, it was said that an implied restraint upon the power of removal by address is to be found in Article 103 of the Constitution: “Prosecutions shall be by indictment or information. The accused shall have a speedy public trial by an impartial jury of the vicinage; he shall not be compelled to give evidence against himself; he shall have the right of being heard by himself or counsel; he shall have the right of meeting the witnesses face to face, and shall have compulsory process for obtaining witnesses in his favor.” But here was no prosecution. No accusation was made against the defendant. No accusation was necessary. The argument that the Act was void because the defendant had no hearing and no notice, confounds the unrestricted power of removal by address under Article 97 with the distinct but concurrent power of removal which results from a successful impeachment or prosecution for misdemeanor, when the party accused must have a trial, pursuant to the Articles under the head of impeachment. This distinction, founded in reason, and recognized both by the Constitution and laws, has already been developed.

Finally, it was urged that the address in this case was an usurpation by the Legislature of a judicial power, and therefore within the prohibition of Article 2 of the Constitution. The power of removing an officer upon address of the two Houses is not a judicial power, but is essentially administrative. As we have seen, this proceeding, having for its end the public welfare and not the punishment of an individual, is not at all in the nature of an impeachment, which requires a trial, and of which, in case - of conviction, the removal from office is a mere consequence, making a necessary part, but only a part, of the sentence.

Even if there were something of a judicial character in the proceeding, it would not be void on that account, because the Constitution itself has vested unqualified power over this subject in the legislative department, and the case would come within the saving clause of Article 2: “No one of these departments, \_i. e. the legislative, executive and judiciary,] nor any person holding office in one of them, shall exercise power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.'''

We therefore find no other Article of the Constitution which so modifies Article 97 as to render the exercise of the removing power in this particular case null and void.

But as it has been pressed with much earnestness that the verdict and judgment in favor of the defendant, Hufty, when the present relator, Bell, contested his election in the First District Court of New Orleans, before any commission had been issued, formed a peremptory bar to action of the Legislature in this matter, we remark :

1st. There is no element of the res judicata in that judgment which could bar the power of removal under Article 97.

The question in one case was, shall Mr. Hufty receive a commission ? in the other, shall he be removed from office ?

There were two contending parties in one case, each urging that he could count the greater number of votes in his favor; in the other there were no parties, the act being an act of administration intrusted by the Constitution, without qualification or control, to a particular department of the government.

2d. The judgment in the case contested between Bell and Hufty is not disturbed, but has had its full force and effect. That judgment declared the defendant the Sheriff elect. It was no more and no higher evidence of title to the office than the return of the proper officer in his favor would have been in case there had been no contest. The judgment was final, just as the return would have been if not contested within the legal delay. No appeal lay from it. No new trial could be granted. No second suit could be instituted by Bell contesting the election of Hufty. The judgment secured to the defendant the commission and station of Sheriff of the parish of Orleans- for two years, “unless sooner removed.” No verdict and no judgment could expunge that condition from the tenure of his office,.for it was-inserted' in his-commission by the Constitution itself. The defendant,, therefore, has had the fruits of his judgment; he has been Sheriff of the parish.of Orleans; until removed he reaped its emoluments, and his right to do so, and the binding force of his official acts until his successor was qualified, can never be questioned, for the judgment of the First District Court is unreversed and irreversible.

3d. There are reasons assigned for the act of removal,-in the preamble to the address, other than those pleaded in the controversy between Bell and Hufty upon the legal inquisition into the state of the vote.

4th. If the Act of removal was within the constitutional competency of the Legislature, uncontrolled by a superior power, as we have found it to be, the reasons assigned by the preamble to the address could not, in any case, vitiate the Act, so as to authorize the judiciary to annul it. The independent and coordinate department of the government to which this whole business has been exclusively confined is composed of men who, like ourselves, act under the sanction of official oaths, and who render their account, not to us, but to their constituents, the people. When they do an act within their constitutional sphere, we, as Judges, have no right to say whether the reasons they give for it are good, bad or indifferent, much less to veto the Act because we find the reasons for it open to criticism. As well might it be said that another department of the government might set aside the final judgments of this court, because the reasons assigned for such judgments are lacking in solidity. To the people alone are the two Houses responsible for the purity of their motives, the sufficiency of their reasons, and the wisdom of their conduct in this matter.

We, therefore, pass in silence what was said at bar, on the one side, as to the hardship of removing an officer for no alleged fault of his, and without a hearing, and on the other, as to the necessity of teaching all men to revere the sanctity of the ballot-box and the freedom of the elective franchise, which are the life of republican institutions. These arguments touch a question of expediency only; they were doubtless considered in the legislative halls before the measure was adopted, and may be considered again in popular assemblies where legislators give an account of their stewardship; but they cannot with propriety be permitted to disturb the deliberations of this tribunal, removed, as it is and ever should be, from the arena of political strife.

Mr. Justice Voorhies and Mr. Justice Lea

concurring in this opinion, and Mr. Chief Justice Merrick concurring in the decree for separate reasons: It is, therefore, ordered and decreed that the judgment of the District Court be affirmed, with costs.

Merrick, C. J. However desirable the mature consideration of constitutional questions may be in ordinary cases, we have thought that on account of the important public interests which are suspended during this litiga-. tion, that the case ought to be disposed of at the earliest moment practicable.

It may be against common right that any person should be deprived, without fault on his part, and without being heard, of the office to which he has been elected. But so far as it concerns the address of the Legislature removing Mr. Sufty, it is probably in the same form it would have assumed if charges had been preferred against him, and he had, as is usual in other cases, been heard' upon the floor of the house. We are not therefore permitted to infer anything unconstitutional on account of the mere form of the proceeding. On the contrary, we are bound to presume that the proceedings are regular; for the members of the two houses are the sole judges of the regularity of the proceedings before them, except in those particulars only, which are prescribed by the Constitution, and we have no more right to question, the reasons or causes, or successive steps in their proceedings, than they would have to review the proceedings, orders and decrees of this court.

Neither do I consider that we have the right to determine whether the motives which have influenced the Legislature, are or are not sufficient to justify the address. The exclusive control of this matter has been, by the Constitution, vested in the Legislature, as to all offices not otherwise expressly provided for in that instrument.

The members of the two houses alone are the judges of the grounds and causes of the removal, and as this power has been confided by the people to their representatives, it would seem that they are responsible alone to the people for its'exercise or abuse.

But it is said that the Constitution commands the Legislature to provide by law for the trial, punishment and removal from office, by indictment or otherwise, of all other officers, except the Governor, Lieutenant-Governor, Attorney General, Secretary of State, State Treasurer and the Judges of the Supreme and District Courts; and the Legislature having obeyed the injunction of the Constitution in this particular, are themselves obliged to follow the law which they have enacted.

The argument is conclusive, if Article eighty-nine of the Constitution applies to the same class of cases as Article ninety-seven. But I find Article eighty-nine under the title of Impeachments, and the provisions in it became important, because several offices were omitted from Article eighty-six, (providing for impeachments,) such as Auditor of State, Superintendent of Public Education, Commissioners of the Board of Public Works, Sheriffs, Recorders, Justices of the Peace, Notaries, &c. As these important officers were not required by the Constitution to be impeached before the Senate, it was left to the Legislature and made its duty to provide by law the manner in which they should be tried. I am therefore inclined to think that Article eighty-nine applies only to such offences committed by the inferior officers, as would, in the officers enumerated by Article eighty-six of the Constitution, give rise to an impeachment before the Senate. But when we compare Articles seventy-three ninety-seven and one hundred and thirty-three, with eighty-six and eighty-nine, wo find the former provide for another class of cases, (viz,) the removal of officers for causes not affording sufficient grounds for an impeachment. In the case of Judges, the cause must be stated in the address-and inserted in the journals of the Senate and House of Representatives. In all other cases, (the Governor alone excepted,) a bare majority of the members of both houses have the power to remove, and it does not appear to be important that the cause should be stated in the address or inserted in the journals of the House or Senate, with the exception of the Commissioners of the Board of Public Works, who, although subject to removal by a bare majority of the members elected, must have the causes of their removal inserted in the journals of the two houses.

The object of these provisions is doubtless to enable the Legislature to remove men from office who, from infirmities or other causes, have become incapable of discharging the duties of their office. Debates in Convention of 1845, p. 671.

The Constitution looks rather to the qualification of the incumbent than other grounds of removal, and an exercise of this power upon purely party considerations, would be as much an abuse of power as would be the like reasons for the judgments of this court. But should the members of the Legislature so far forget the duties imposed upon them by the Constitution and their office, as to be governed by such motives, 1 know of no power save public opinion and the ballot-box by which their acts are to be revised.

Again I do not consider the re-enactment of the statute of 1826 by the Legislature in 1855, a compliance with the injunctions of (he Constitution of 1852. Bullard & Curry Dig-., p. 470. This old statute, which has been re-enacted, provides the mode by which any one may lay before the Legislature the grounds for an impeachment or removal by address of any officer subject to impeachment before the Senate. But as Justices of the Peace cannot be impeached in this manner, the Legislature has not yet, in my opinion, obeyed the injunction required by Article eighty-nine, which was, without doubt, mandatory as to all officers not subject to impeachment before the Senate, under the Constitution. I do not-therefore think that the Act of 1855 excludes the other mode of pi'oceeding, even on the grounds urged by defendant’s counsel.

It has been admitted in argument that the address removing Mr. Sufty was voted upon considerations not at all personal to him; that it was not pretended that he had committed any act which was a ground of removal on his part.

On this state of facts, it is argued by defendant’s counsel, that it is against common right that a man should be deprived of his office without any fault on his part and without an opportunity of being heard in defence.

It is undoubtedly repugnant to all our notions of correct administration of justice, to deprive a citizen of the smallest right without a hearing, and much more to take from him an important office. But that is not the question before us : it is one of power. lias the Legislature the power to remove one of this class of officers without a hearing? As liable as such a power may be to abuse in the hands of mere partizans, I think it is -vested in the two houses as to all officers, except the Governor, the Judges and perhaps the Commissioners of the Board of Public Works.

An impeachment requires a process by which a party is brought to trial. And perhaps in those cases where the Constitution requires a cause to be assigned for removal, it pre-supposes a hearing upon that cause in order to ascertain whether it is real or imaginary.

But where it is not necessary, under the Constitution,! to assign any cause for the act, I am not prepared to say that any other mode of hearing is absolutely required than the usual channels of information upon which the orlmary legislation and action of the two houses are based.

The important questions presented by this case, although illustrated >/ masterly arguments on both sides, are not free from diffiulty, an.l it is not without hesitation that I arrive at the conclusion that "the )u Igment ol tne lower court should be affirmed.

Buchanan, J.,

dissenting. This record presents to my mind, a case of unconstitutional assumption of power on the part of' the legislative department of the State government.

The first article of the State Constitution declares: “The powers of the government of the State of Louisiana, shall be divided into three distinct departments, and each of them be confided to a separate body of magistracy, to wit, those which are legislative to one, those which are executive to another, and those which are judicial to another.”

Article 2. “No one of these departments, nor any person holding office in one of them, shall exercise power properly belonging to either of the others, except in the instances hereinafter expressly directed or permitted.”

Article 3. “ The legislative power of the State shall be vested into two distinct branches, the one to be styled the House of Representatives, the other the Senate, and both the General Assembly of the State of Louisiana.”

Article 61. “ The judiciary power shall be vested in a Supreme Court, in such inferior courts as the Legislature may from time to time order and establish, and in Justices of the Peace.”

The Legislature has carried into effect this last article of the Constitution, by establishing courts with various attributes of jurisdiction; to one of which courts so established, the First District Court of New Orleans, it has given authority, by an Act approved 15th of March, 1855, to hear and determine contests of elections of Sheriff in the parish of Orleans. “The Judge,” says the Act, section 41, “shall proceed without delay to examine, the grounds of contestation ; and may, on the application of either party, ordo); a jury to try the issue, and its decision thereon shall be final.” And by section 45: “The issue thus formed, shall be proceeded with summarily before court and .jury. The trial shall be conducted and submitted to the jury according to the laws by which other jury trials are governed. A majority only of the jurors shall be required to return a verdict. The jury shall have power to determine by their verdict, which of the parties is entitled to the office; or to refer the same again to the people. The court shall have no power to grant a new trial, as in other cases, and no appeal shall be allowed.”

Section 46. “ The judgment rendered upon the finding of the jury shall be final; and on certifying the same to the Governor, a commission shall be issued by him in favor of the person in whose favor the verdict may be.”

On the 5th of November, 1855, an election of Sheriff W'as held in the parish of Orleans, Joseph Evfty and John If. Bell, being the candidates; and the former being returned elected, the latter contested his election by a petition presented to the First District Court of New Orleans, with the formalities prescribed by the Act of 1855. This contest was tried by a jury, which'rendered a verdict in favor of Evfty, by a majority of seven to five; and judgment was therefore rendered by the court, “ that Joseph Evfty is declared to be the Sheriff elect of the parish of Orleans, and is entitled to enter upon the discharge of the duties of Sheriff, upon complying with the formalities prescribed by law.

Upon this judgment being certified to the Governor, he issued a commission of Sheriff to Evfty, dated December 81, 1855.

The grounds upon which Bell contested the election of Svfty, were eleven in number, being specifications of illegal acts and decisions of the commissioners of election in refusing to receive legal votes; and acts of violence in destroying the ballot boxes and scattering the votes, committed by bands of lawless men, at the polls.

We have seen that the special tribunal created by law for the trial of such an issue, a judicial tribunal, composed of a Judge and jury, did judicially investigate and decide upon all the facts of illegality and violence alleged to have taken place at the election of Sheriff in the parish of Orleans, on the 5th of November, 1855, and that its decision in the premises is, by law, final and without appeal.

In the language of the second article of the Constitution, the power of deciding the question of the legality and validity of Sufty's election as Sheriff, the question raised by the opposing candidate, Bell, assisted by twenty voters, was a power properly belonging to the judicial department of the government. This proposition is beyond all question. It follows, therefore, of necessity, that neither of the other departments of the government (legislative or executive) could constitutionally exercise that power, unless the direction or permission to do so, can be found in the Constitution itself. A careful scrutiny of that instrument in all its articles, has failed to show me any thing indicating such a direction or permission. I am clear that the 97th Article neither directs nor permits anything of the sort. I admit that that article authorizes the removal of a Sheriff by an address of a majority of the members of both Houses, for the Sheriff is certainly a civil officer, and I do not understand the Act No. 304 (page 370) of the Session Acts of 1855, as having imposed any restraint upon the action of the General Assembly, ¶ropi'io motu, in the way of address. The provisions of that Act seem to be intended for the case of accusations preferred by individuals against public officers, in the form of a memorial addressed to the Legislature; which accusations, after the observance of certain rules of proceeding in the Act set forth, may result in an impeachment or in an address, as the Legislature shall determine.

The Act was undoubtedly intended to carry out the articles of the Constitution on the subject of impeachments, and the removal of public officers from office generally. But I do not find in it, any provision to the effect, that every address for the removal of an officer, must be preceded by those formalities which are therein indicated as essential to be pursued upon a memorial presented to the Legislature, and containing accusations against a public officer.

But while I make the admission that the Legislature has power to remove a Sheriff by address, proprio motu, without any accusation preferred by memorial against the-officer removed, yet I repeat that the Article 97 does not authorize the Legislature to hear evidence upon, and decide judicially, the legality or validity of an 'election of Sheriff. And this is what the Legislature has done in the case at bar.

At the risk of appearing tedious, I 'will repeat the whole of the preamble, which constitutes what may properly be called “ The Address,” being introductory to the resolution for the removal of Hufty, and containing the reasons justificatory of such removal.

“ Whereas, freedom of suffrage and the inviolability of the ballot box are the only' basis of republican government; and whereas, this great palladium of American liberty has been overthrown and trampled under foot at the late general election held in New Orleans, on the 5th of November, 1855, whereby the free expression of the popular will has been illegally suppressed by partizan Commissioners of Election, who arrogated to themselves the power to disfranchise legal voters, and by bands of lawless men, who not only drove peaceful citizens from the polls, by intimidation, violence and bloodshed, but even, after the polls had been closed, destroyed more than thirteen hundred legal votes which had been received during the election by the Commissioners, to-the truth of which outrages the' whole population of New' Orleans bear witness ; and whereas, these facts have been brought to the knowledge of the Legislature by judicial investigations, and by executive communications; and whereas, the late Governor of this State has urged the Legislature to ‘ crush the evil at once, and before it has taken root, by the most pointed and energetic means’; and w'hereas the Legislature is constituted by the organic law the grand inquest of the State, for the protection of the elective franchise from tumult, violence and other improper practice, and .to vindicate the constitutional rights of the people, rising above and not the subject-matter of ordinary judicial investigation, but totally independent of, and not to be confounded with, individual claims to office; and whereas, the 97th Article of the Constitution declares, that 1 all civil officers, except the Governor and Judges of the Supreme and Inferior Courts, shall be removable by an address of a majority of the members of both Houses, except those, the removal of whom has been otherwise provided by this Constitution1'; and whereas, a Sheriff is a civil officer, whose removal is not otherwise provided for by the Constitution; and whereas, it has been indubitably established to the satisfaction of this Legislature, that the constitutional rights of the citizens of New Orleans have been' grossly violated in the late election for Sheriff of the parish of Orleans : Be it Resolved,” &c.

It is said, that the Supreme Court has nothing to do with the reasons contained in the address for-the removal of Hufty; that for the decision of this issue, it suffices, that- the -'Legislature has a constitutional right to remove a Sheriff by an address of a-majority of both Houses; that as well might it be contended, a decree of the Supreme-Court, in a matter within its jurisdiction, is invalid, because the reasons given by the court for its decree, may happen to contain bad logic or bad law. But with all deference to those who entertain such an opinion, and professing what I truly feel, a profound respect for the legislative branch of the government, yet I cannot forget that it is the peculiar province of this tribunal, to-expound in the last resort, those rules of action apd acts of administration which; 'are contained in the statutes promulgated as the expression of legislative will in - the State of Louisiana; to determine if, at any time, the consistency -of such- enactments with the State Constitution be drawn into question, whether in-truth they are in contradiction; and in case they be, to pronounce that the statute must yield to the Constitution, as the paramount law.

The Supreme Court of the United States, in. a case in 3d Dallas, to which I will have occasion again to refer, have said, that the State courts are the proper tribunals to decide, whether laws contrary. to the State Constitution are void.

In the present case, the-unconstitutional! ty of the address removing the defendant from office, is expressly pleaded; and is in fact the only matter at issue. To determine this plea, weomust needs examine the address itself. And as this is the first occasion-of-the exercise of the power of removal of an officer, by address, under this Constitution, we are without precedents to guide us in the-construction of the-article-of the-Constitution, in virtue of which the removal is said to have been -made,-and'which is copied into the address. The first thing that strikes me in Article 97, is that the address and the removal are simultaneous. The words used are, “shall be removable by an address.” It is not, as in the Article 73, the -Governor, who is to remove upon an address of the Legislature,; but the General. Assembly itself removes the officer. The removal is strictly an Act of the Legislature, under this article. And it is plain, that the Legislature have, in the case before us, taken this view of the article. ¡Eor the address, after the preamble copied above, proceeds to remove Svfty from office by resolution. -By a second resolution, indeed, it is directed that the address be-presented to the-Governor. But this, I understand to have been done in compliance with-Article 5i of the Constitution, which requires that'" every order, resolution or vote,-to which the concurrence of both Houses may bcmeccssary, except on aiquestion -of adjournment, shall be presented to the'Govern or, and before it shall take effect, be approved by him, or being disapproved, shall be repassed by two-thirds of the members elected to each House-of the Gen eral-Assembly.”

The^address under the Article -97- of the Constitution is, therefore, neither more nor less, than an ordinary Act of the Legislature; and the form of an Act of Assembly, which is the one adopted on this occasion is, in my opinion, the-correct form of an application of the Article 97 of the Constitution. Why, then, has tho-peculiar appellation of address” been used by the framers of our Constitution in this article ? Here, again, I think the Legislature has correctly interpreted the meaning of the article. The order, resolution or vote, for the removal of an officer, is something more than “sievolo, sic jubeo ; sit pro ratione voluntas.” It is a solemn manifesto by the Legislature to its constituents, of the causes which have moved it to take the extraordinary step of abridging the term of office of one who has seemed worthy to his fellow citizens, of being selected to discharge the duties and receive the emoluments of a post of honor and profit in their service ; a declaration of motives, which it must be presumed the Legislature will never bé either afraid or ashamed to make, which is in thorough consonance with the spirit of our institutions, and which is due as well to that portion of the people who have given their votes at the election of the officer, as it is to the officer removed himself. Let us not be told, that because, in this country, a man has no property in an office, it is, therefore, unnecessary to give any reason for depriving him of it. I should be loth to admit that any man, by accepting office under our government, has degraded himself so far below the level of his fellow citizens, that when disgraced by the infliction of a penalty which implies dishonor, or impoverished by the sudden withdrawal of an income upon which he had good reason to calculate for some time to come, he shall have no right to be informed in what he has sinned, or in what respect ho has been found wanting.

Such is not the meaning- of the 97th Article of the Constitution; neither is such the interpretation which the Legislature have given to it on this occasion. Their act is truh' an “ address” — a declaration to the world of the motives of their proceedings.

We know, then, from the most authentic source, what were the reasons for defendant’s removal from office by the Legislature. And I agree that, unless those reasons exhibited an unconstitutional assumption of power, they could not bo the object of examination before this court. The exercise of judicial power by the Legislature, is unconstitutional, except in the instances expressly directed or permitted in the Constitution.

Have the Legislature exercised judicial power in this instance?

The address sets forth the rejection of legal votes by the Commissioners of Election, and the destruction of the votes which' were received, by bands of lawless men. These were the identical specifications on which the relator had already contested the election, before a tribunal whose decision, by a statute yet unrepealed, was final. I find in this, ah interference with the legal course of proceedings of the regularly constituted judiciary of the State, and an appellate jurisdiction claimed and exercised by the Legislature.

That the jurisdiction thus exercised, is judicial in its character, evidently appears from the statement of the address, that the facts stated “ have been brought'to the knowledge of the" Legislature by judicial, investigations.” That the power exercised was a judicial power, is furthermore formally enunciated in the declaration of the address, that the Legislature is constituted by the organic law the grand inquest of the State, for the protection of the elective franchise from tumult, violence and other improper practice. The French text of the address is still more expressive — Q-rande Oour A'Ehqucte” ; and as the Article 129 of the Constitution requires the laws to be promulgated in the Erench as well as the English language, the-French text is not to bo left out of view, in ascertaining what is the meaning of "the Legislature.

Is it then true, that the Constitution has made the Legislature a grand inquest, or Court of Enquiry, for the protection of the elective franchise from tumult, violence, and other improper practice ? Not so. The 98d Article of the Constitution says: “The privilege of free suffrage shall be supported by laws regulating elections, and prohibiting, under adequate penalties, all undue influence therein, from power, bribery, tumult, or other improper practice.” This Article of the Constitution has been executed by the adoption of the Act relative to elections, approved 15th of March, 1855, (Session Acts, p. 408,)and of the Act relative to Crimes and Offences, approved 14th of March, 1855. Session Acts, p. 130. Proceedings under both these statutes, are carried on before the ordinary judicial tribunals of the State. The 74th section of the Act relative to Crimes and Offences, punishes violence and riots at elections, and I do not understand our predecessors as having decided, in the cases of Rice v. Dubvys, and Borgstede v. Glarlr, in 5th Annual, as is contended by the counsel for the relator, that the verdict of the jury in a contested election under the Act of 1840, (from which the Act of'1855 is copied,) was not final in regard to the validity and legality of the election.

The learned counsel of the relator, has also referred to two decisions of the Supreme Court of the United States, The Baltimore and Susquehannah Railroad v. Nesbit & Goodwin, 10 How., 395, and Calder v. Bull, 3 Dallas, 386, in support of the constitutionality of a review b}r the Legislature of a State of a judgment rendered by the courts of the State. But an enunciation of those decisions will show tnat they constitute no authority in the present case. In that from 10 Howard, indeed, the only point presented by the plaintiff in error was, that the statute of Maryland complained of, divested vested rights and impaired the obligation of a contract. The court indulged, it is true, in some remark, arguendo, upon the distributions of powers, legislative, executive and judicial, in the Constitutions of the several States, as a matter not to be inquired of except by the State authorities; but it concludes those remarks by declaring that “no such inquiry regularly arises upon this record” ; and the unqualified proposition stated by the reporter in his head notes of the case, “ the States have a right to direct a rehearing of cases decided in their own courts,” does not appear warranted by anything in the decision.

As to the case from 3d Dallas, which is a very remarkable case, as being the leading one upon the definition of the phrase “ expost faeto law” in the Constitution of the United States, it was certainly decided therein, that an Act of the Legislature of Connecticut, granting a new trial upon a judgment of a Court of Probate of that State, refusing probate of a will, was in conformity to the Constitution of that State, which was then (in 1798) nothing more than a royal charter of Charles the Second of England. The following is the language of Mr. Justice Iridell upon this subject: “From the best information to be collected relative to the Constitution of Connecticut, it appears that the Legislature of that State has been in the uniform, uninterrupted habit of exercising a general superintending power over its courts of law, by granting new trials. It may, indeed, appear strange to some of us, that in any form, there should exist a power to grant, with regard to suits depending or adjudged, new rights of trial, new privileges of proceedings, not previously recognized and regulated by positive institutions; but such is the established usage of Connecticut, and it is obviously consistent with the general superintending power of her Legislature.”

Prom these remarks, it will be seen that the difference between the Constitution of 'Connecticut in 1798, and that of Louisiana in 1856, is simply this : that the former sanctioned the reversal of a judgment of a judicial tribunal by the Legislature, and the latter prohibits such a reversal. Por the same reason, therefore, that the statute of Connecticut was held to be valid, the address for the removal of the defendant should, in my judgment, be held to be void and of no effect.


source: Caselaw Access Project

author: Vooruies, J.

license: Public Domain

text:
    C. D. Stewart v. James Clark and Owners of Steamer Natchez No. 2.
    Plaintiff enclosed an account against defendants to P. & H., .{partner^,) with instructions to take all necessary steps for the collection of the same. P. made an affidavit for and obtained a sequestration, which was set aside, and plaintiff appealed. J3y the* Court: The authority conferred on the agents was that of taking all necessary steps for the collection of the plaintiff’s debt. Either of the partners was competent to act for the plaintiff in the matter. The affidavit points to the necessity which existed for the sequestration as a necessary step for the collection of the debt. The plaintiff was not present. Under the statute of 1828, his agent was authorized to make affidavit and give bond.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      Olvilton & Perkins, for plaintiff Marks, for defendants and appellants.
   Vooruies, J.

The plaintiff brought this suit to recover the price of 145 cords of vvood sold and delivered to the defendants^ the master and owners of the steamer Natchez No. 2, at the rate of $2 50 per cord. He also claimed a privilege on the steamer and caused her to be sequestered.

The defendants in their answer admitted the purchase of the alleged amount of wood, but averred that the price agreed upon between the parties was$l 75, and not $2 50 per cord as claimed by the plaintiff.

The court below gave judgment in favor of the plaintiff for the amount claimed by him, but ordered the sequestration to be set aside, on the ground that the authority of the plaintiff’s agent was insufficient to bind him on the bond. From which judgment defendants appealed.

In this court the appellees have prayed for the amendment of the judgment in their favor, by reinstating the sequestration of the steamer.

There is no error in the judgment to the prejudice of the appellants.

In relation to the sequestration, it is shown that the plaintiff enclosed his account to the firm of Payne & PEarrison, with instructions to take all necessary steps for the collection of the same; that J. A. Payne, one of the partners of that firm, made an affidavit in which he declared, among other things, that they were the agents of plaintiff, who was absent; that he had good reason to apprehend the said boat would be removed out of the limits of the State before plaintiff could have the benefit of his privilege on the same for the satisfaction of his debt.

We think the Judge a quo erred in setting aside the sequestration. The authority conferred on the agents was that of taking all necessary steps for the collection of the plaintiff’s debt. Either of the partners was competent to act for the plaintiff in the matter. The affidavit points to the necessity which existed for the sequestration as a necessary step for the collection of the 'debt. The plaintiff was not present. Under the statute of 1828, his agent was authorized to make affidavit and give bond. Session Acts of 1828, p. 150, §4; 14 L. R., 92.

It is therefore ordered and decreed, that the judgment of the court below be amended in favor of the appellee; that, said appellee recover of the defendants James Olarh and Oharles Morgan, in solido, the sum of three hundred and sixty-two dollars and fifty cents, with legal interest from the 26th of December, 1853, till paid; and further, that the sequestration be reinstated, and that said steamer Natchez No. 2 be sold according to law, to satisfy this judgment, the costs of both courts to be borne by the defendants and appellants.


author: Spofford, J.

text:
    Solon Humphreys & Co. v. Captain Switzer and Owners of Steamer D. S. Stacy.
    In an action against a common carrier, alleging non-delivery of goods, the plaintiff must give some evidence in support of the allegation.
    APPEAL ’ from the Fourth District Court of New Orleans, Reynolds, J.
    ’ Hunton & Bradford, for plaintiffs. Wolfe & Singleion and Olarlce <& Bayne, for defendants and appellants.
   Spofford, J.

The plaintiffs sued the defendants as common carriers for the non-delivery and loss of certain packages of sugar shipped on board the defendants’ steamer at New Orleans, to be delivered to the plaintiffs or their assigns at the port of St. Louis, the dangers of the navigation and fire alone excepted.

Tlie only answer was a general denial.

The only evidence offered below was the bill of lading, proof of its signature by the agent of the steamboat, and the shippers’ invoice.

There was judgment against the defendants for the amount claimed, and, without asking a now trial, they appealed.

They now, for the first time it would seem, make the objection that the plaintiffs offered no evidence tending to show a non-delivery of the goods.

The authorities are clear and concurrent to the effect that it was incumbent on the plaintiffs to make some such showing.

The declaration against a carrier of goods, says Greenleaf, “ involves three points of Fact, which the plaintiff must establish upon the general issue: namely, the contract, the delivery of the goods, and the defendant’s breach of promise or duty.” 2 Green. Ed., § 20S. Again: “If the loss or non-delivery of the goods is alleged, the plaintiff must give some evidence in support of the allegation, notwithstanding its negative character!” Ib., § 213. The cases of Tucker v. Cracklin, 2 Stark. R., 385; Griffith v. Lee, 1 C. & P., 110, and Day v. Ridly, 1 Washb., 48, are referred to in support of this doctrine.

The same doctrine is announced by Angelí in his treatise upon the law of Carriers, § 470.

In the case of Day v. Ridly, 16 Vermont R., p. 48, (1 Wash., cited by Greenleaf,) it was held that “ in an action against common carriers, the burden, of proof is on the plaintiffs to show that the property'did not reach its destination ; but, where the plaintiffs proved that the defendants’ boat, in which the property was stowed, was' capsized and .the property damaged, and a portion of the proporty carried by the defendants to a place out of their course, it was held sufficient to throw the burden of proof on the defendants to account for the property.” 4 U. S. Dig., p. 248, No. 166.

In Illinois it was held, that “ if, in an action against a common carrier, the plaintiff alleges that the article sent was not delivered, he must prove the allegation ; but slight evidence will change the burden of proof.” Woodbury v. Frink, 14 Ill. R., 279; 14 U. S. Dig., p. 70, No. 73.

So in California: “ In an action against a common carrier for the loss of goods, it is necessary to prove that the goods were not delivered.” Ringgold v. Haven, 1 Cal. R., 108; 14 U. S. Dig., p. 70, No. 77.

We are not aware that there is anything in our law which modifies this rule of evidence as it prevails in other commercial States.

As it is said the point was not brought to the notice of the court a qua, we will remand the cause for further evidence.

It is, therefore, ordered that the judgment of the District Court be reversed and the cause remanded for a new trial, the costs of this appeal to be borne by the plaintiffs and appellees.

       In Conerey v. the same defendants, and Chateau, Harrison, & Vallé v. same, similar judgments were rendered for like reasons.


author: Voorhies, J.

text:
    Lewis B. Horne v. Charlls Belcher and Chas. Belcher & Brother.
    The makers of a note caused it to be sequestered, and prayed for its restitution, &c., on the ground of error and fraud. The sequestration was afterward set aside, and a judgment on the note obtained.against them. Pending this litigation, the makers of the note became insolvent, and after execution against them returned milla "bona, this suit against the sureties on the sequestration bond was brought. Held: Plaintiff could not have maintained an action on the note pending the litigation for its restitution, the sequestration being merely a conservatory act.
    The sequestration had the effect not only of suspending the payment of the note, but of placing it beyond the reach of commerce.
    APPEAL from the Fourth District Court of New Orleans, Reynolds, J.

      H. B. Ogden, for plaintiff. Wolfe & Singleton, for defendants and appellants.
   Voorhies, J.

This is an action against the sureties on a sequestration bond. On the 22d of October, 1851, Witter <& Brother, commercial partners, made their promissory note for the sum of $1,500 in favor of the plaintiff, payable thirty days after date, the consideration of which purported to have grown out of certain transactions which had taken place between the parties through the agency of one S. B. Gonrey, a bill broker. That note was extinguished at maturity by the payment of $1,000, and a new note given by Witter & Brother for the sum-of $510, payable thirty days after date. Witter & Brother after-wards brought suit against the plaintiff for the restitution of the note and money thus given in payment by them, on the ground of error and fraud. The note was sequestered, and the bond given therefor forms the subject of the present suit. The result of that suit being favorable to the plaintiff, he thereupon brought suit upon the note against Witter & Brother, and recovered judgment against them for the amount thereof. A writ of fieri facias was issued on said judgment and returned nulla bona. The plaintiff alleges that Witter & Brother caused the note to be seguestered on the eve of its maturity, for the purpose of preventing its collection ; that they took an appeal from a judgment setting aside the sequestration on the 23d of February, 1852, which judgment was affirmed on 'the 17th of May following; that they were solvent at the date of the sequestration; that he could have collected said note had he not been prevented from doing -so by the sequestration; and that in the meantime they fraudulently 'conveyed away all their property, and became insolvent, whereby he lost his debt. lie therefore prays that the defendants be de -reed to pa \ him /in solido the amount of said note, interest, and the costs incurred in the suit’thereon against Witter & Brother, and also the sum of $100 expended by him for counsel fees in the defence of the sequestration suit.

The defendants, after a vain attempt to obtain a new trial, took the present appeal from a judgment rendered against them on the verdict of a jury in favor of the plaintiff for the sum of $800.

It is urged by them, that the sequestration did not have the effect of suspending the plaintiffs’ right of action on ’the note against Witter & Brother ; that the note was in the hands of the -Sheriff, and he could, at any time, have obtained a sufficient description of it in order to sue them. We think it is clear, that the plaintiff could not maintain an action on the note pending the litigation for its restitution, the sequestration being merely a conservatory act. The object of the writ of sequestration, it is said by the appellants, was to prevent the payee from disposing of the note to some innocent third person, thereby depriving the makers of their legal defence to it. This may be conceded as true, but the result of that suit shows that there was no legal foundation for it; and it is of the injury flowing from this, that the plaintiff complains. The other position assumed by the appellants, that the plaintiff cannot recover, as he could have obtained, without delay, in reconvention, a judgment on the note against the makers, by praying for it in his answer to the sequestration suit, appears to us to be equally untenable. The sequestration had the effect not only of suspending the payment of the note, but of placing it beyond the reach of commerce. Had not this been done, we think it may not be considered improbable, from the usual punctuality prevailing in regard to negotiable paper among commercial houses, that the plaintiff would have realized the amount of his note at its maturity.

On the merits, we have carefully examined the evidence, and are not prepared to say that the verdict of the jury has not done justice between the parties.

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


text:
    Patrick H. Murphy v. The City of New Orleans.
    A police officer maybe entitled to a reward offered by the city, for detecting and bringing to conviction one charged with arson.
    The ordinance offering the reward was not intended to be temporary, and is still in force.
    APPEAL from the Sixth District Court of 'New Orleans, Cotton, J.

      Henderson, Jr., and Holland, for plaintiff. Livingston, City Attorney, for appellant.
   Voorhies, J.

This appeal is taken by the defendant from a judgment rendered in favor of the plaintiff for the sum of $500, allowed him as a reward under an ordinance of the city, approved the.28th of June, 1818, for detecting and bringing to conviction one W. H. Roberts, 'for the crime of arson.

The defence is placed on two grounds: 1st. That the plaintiff was a police officer, acting in the discharge of his duty, and was therefore not entitled to any compensation ; and 2d. That the ordinance was intended to be temporary I. It does not appear that the defendant was acting as a polic officer when Roberts was accused of the crime for which he was convicted and sentenced. But admitting that he did, nothing shows that it was incumbent on him as such to perform the act for which he claims the reward allowed under the ordinance. It is clear that this cannot be viewed as an agreement to compensate the plaintiff for services which he was bound to render as a police officer.'

II. We are of opinion the ordinance is still in force, and was not intended, when passed, to be temporary, as contended for by the defendant’s counsel. The fact of its being inserted in the Digest of the City Ordinances published in 1881, shows conclusively to our minds, that it has never been considered ¡ as a temporary ordinance. The case of Loving v. The City of Boston, 7 Met. 409, does not appear to us to be analogous to the present. There, the Mayor* who was probably authorized either by law or an ordinance, offered a reward! for the apprehension and conviction of any person committing the crime- off arson within the limits of the city. Upwards of four years afterwards,, a, fire broke out in Boston, and the plaintiff who had procured the conviction of the offender, claimed the reward. Under the publication thus made by ths Mayor, it was held that the plaintiff could not maintain the actipn. Hprp, the ordinance itself fixes the reward in such cases, and must havp its. effect until repealed.

It is therefore ordered and decreed, that the judgment. q£ the District Courts be affirmed, with costs.


text:
    A. D. Grieff & Co. v. Captain Switzer and Owners of Steamboat D. S. Stacy.
    The measure of the carrier’s liability is the market value of the goods at the port of destination.
    A PPEAL from the Fifth District Court of New Orleans, Augustin, J.

      A. Durant & Hornor, for plaintiffs. Wolfe <& Singleton and Glarlce & Bayne, for defendants and appellants.
   Spofford, J.

We find no error in the judgment to the prejudice of the defendants and appellants.

They contracted to carry fifty hogsheads of sugar for the plaintiffs from New Orleans to their consignees in St. Louis, (the dangers of the navigation and fire only excepted) at a freight of 40 cents per hundred pounds.

They delivered only eleven hogsheads in conformity with their contract.

This default being proved, it devolved upon them to show that the remaining thirty-nine hogsheads were lost by reason of one of the perils excepted by their bill of lading. Angelí on Carriers, § 472. This they have not attempted to do.

But they complain that the District Judge erred in assuming that the missing hogsheads weighed 1000 pounds each.

The plaintiffs, joining in the appeal, contend that the Judge erred to their prejudice in not allowing the weights as estimated at New Orleans, where they bought the sugar, just before the shipment, and in not awarding a sufficient sum for the value of the sugar at the port of destination.

The complaint of the appellees appears to be well founded. There is nothing to cast suspicion upon the fairness of the purchase by the plaintiffs from their vendors. Tt was in the usual course of business. They paid their money, at an unsuspicious time, for the sugar according to the weights, as certified to by a public weigher. His testimony is positive as to the portion of the sugar weighed by himself, and the evidence of the broker is satisfactory as to the size and general weight of the lot.

The measure of the carrier's liability is the market value of the commodity at the destined port. In this case the evidence satisfies us that the value of the article shipped was 5-J- cents per pound at the port of St. Louis at the time it should have been delivered.

From the total value of thirty-nine hogsheads sugar, weighing 1077 .8 pounds per hogshead, at cents per pound, should be deducted freight at 40 cents per 100 pounds to obtain the balance due the plaintiffs.

It is, therefore, ordered and decreed, that the judgment of the District Court be amended in favor of the plaintiffs, and it is adjudged and decreed that they recover of the defendants, in solido, the sum of two thousand and thirty-eight dollars and forty-nine cents, with five per cent, interest thereon from the 9th November, 1853, until paid, and costs in the court below, and that the privilege of the plaintiffs upon the steamboat D. S. Stacy for said sum be recognized and enforced; it is further ordered that the costs of this appeal be paid by the defendants and appellants.


author: Spoitord, J.

text:
    Dunn & Sackett v. Wm. B. McComb et al., owners of Steamboat Bella Donna.
    It is well settled in the jurisprudence of Louisiana that where a collision occurs, if both parties, by their own fault, contribute to the collision, the damages will not be apportioned as in admiralty, but neither party shall recover. But in determining the question of fault, we must look to the proximate and not to the remote cause of the injury.
    The flatboat of the plaintiffs being lawfully moored where she was sunk, the burden of proof is on the defendants to show that the accident could not have been avoided.
    APPEAL from the Sixth District Court of New Orleans, Gotton, J.

      Hamner & Hays, for plaintiffs. Wolfe & -Singleton, for defendants and appellants.
   Spoitord, J.

This action was brought by tbe owner of a flatboat loaded with produce, against the owners of the steamboat Bella Donna, to recover damages for the destruction of the'ir flatboat with its contents.

The flatboat was moored to the shore of the Mississippi river, opposite the town of Plaquemine. The Bella Donna, in effecting a landing at night, swung against the flatboat and sunk her.

The defence is two fold:

1st. Carelessness on tbe part of the plaintiffs.

2d. Inevitable accident.

It is well settled in our State jurisprudence, that where a collision of this kind occurs, if both parties by their own fault contribute to the collision, the damages will not be apportioned as in admiralty, but neither party shall recover.

But we understand that, in determining the question of fault,-we must look to the proximate and not to the remote caus>s of the injury.

In this case it is contended that the flatboat was moored out of her proper place, and that she was within the limits of the hsual steamboat landing at Plaquemine.

There are no ordinances nor fixed regulations at that place upon this subject.

The weight of evidence is with the plaintiffs upon this branch'of the case; although there is some conflict, it is established, we think.,, that the flatboat was not within the limits of the customary steamboat landing. The plaintiffs acted with reasonable caution in mooring the boat. Upon their arrival they made inquiry of people resident there, and were told they were in the right place.

It is true one witness says that when he went on board the flatboat to make a purchase, on the day of the collision, he advised a man on board to drop lower down, for fear of accidents.

Considering the advice the plaintiffs had previously received, and the absence of regulations at the port, we cannot consider the fact that they did not immediately drop lower down as proof of fault, contributing directly and proximately to the accident that evening.

The banks of rivers are free to the public, subject, of course, to suitable police regulations. “ The use of the banks of navigable rivers or streams is public; accordingly every one has a right freely to bring his vessels to land there, to make fast the same to the trees which are there planted, to unload his vessels, to deposit his goods, to dry his nets, and the like.” C. C. 446.

The flatboat of the plaintiffs having been lawfully moored at the spot where she was sunk, the burden of proof is on the defendants to show that the accident could not have been avoided.

An allegation was made in the answer that there was no light on the flatboat at the time of the accident, which happened in rather a dark night. This allegation is rebutted by the evidence. A lantern was displayed when the steamboat rounded to, and in season to have been observed if there had been a suitable watch on the steamboat.

Upon the second branch of the defence we think the respondents equally unsupported by the evidence. A strong wind was blowing towards the Plaque-mine shore, it is true; but we think there is not reason to suppose that the collision was inevitable had greater care been used by the offcers of the steamboat. Their total indifference to what had happened, after the damage was done, is some indication of recklessness.

There is no controversy as to the amount of damages, the District Judge having only allowed such as were actually proved.

The judgment is, therefore, affirmed, with costs.

Rehearing refused.

       Merrick, C.' J., took no part in this decision.


author: Spoffokd, J.

text:
    Margaret Forbes v. David B. Forbes.
    ffhe legal presumption is that a slave, bought by the plaintiff pending the community of acquests, is community property, and the unsupported declaration in the act of sale that the purchase money was given to the plaintiff by her father cannot conclude creditors who were not parties to the act.
    APPEAL from the Fifth District Court of New Orleans, Augustin, J.

      Mott & Jñ'azer, for plaintiff and appellant. Livingston and DeOlioiseul, for defendant.
   Spoffokd, J.

The ends of justice seem to require that this cause should be remanded for further evidence.

It is admitted of record that the appellants are creditors of the community of acquests and gains, formerly existing between the plaintiff and the defendant, in the sum of $1000, and it seems that the community is insolvent.

The legal presumption is that the slave bought by the plaintiff pending the community of acquests is community property. The unsupported declaration in the act of sale that the purchase money was given to her by her father cannot conclude the appellants, who were strangers to the act.

It is, therefore, ordered and decreed, that the judgment of the District Court be reversed, and that this cause be remanded for a new trial according to law, the costs of appeal to be paid by the plaintiff and appellee.


text:
    Bullitt, Miller & Co. v. Hewitt, Norton & Co.
    Plaintiffs sue to recover back the amount of a bill of exchange, which they had accepted and paid. By the Gonrt: Plaintiffs, having paid the bill to defendants, cannot recover, unless they have established their allegation that there was a material alteration in the bill, by which they were defrauded out of their money. A mere alteration is not enough. They must show that it was such a fraudulent alteration in the substance of their contract as, per se, to destroy the obligation resulting from it.
    APPEAL from the Second. District Court of New Orleans, Morgan, J.

      Miller and Elmore & King, for plaintiffs and appellants. Benjamin, Bradford <& Finney, for defendants.
   Spofford, J.

We do not think the defendants stand precisely in the position of Mitchell, from whom they received the bill accepted by the plaintiffs.

Mitchell owed the defendants an antecedent debt larger than the bill. He sent the hill to them, before its maturity, with instructions to collect and place proceeds to the credit of his account. Thenceforward they bad an interest in the bill under these instructions.

Their statement that they held it on account of Mitchell, and would be liable to him for failing to protect it, does not put them in the position of mere agents without an interest. They would certainly have been compelled to credit him with the amount of the hill should it be lost by their laches, even though they had taken it as collateral security.

But however it may be, the plaintiffs having paid the hill to the defendants, cannot recover, unless they have established the allegation that there was a material alteration in the bill, by which they were defrauded out of the money. A mere alteration is not enough. They must show that it was such a fraudulent alteration in the substance of this contract as, per se, to destroy the obligation resulting from it. It will not answer for them to bring in other considerations, such as that they were accommodation acceptors, acceptors for a special purpose, that they have been disappointed in receiving shipments to meet the bill, etc., and thus to cloud the real issue made by their pleadings.

They sue in repetition of money paid to the defendants in error, upon amounts, under their allegations, to a forged endorsement of a bill which they had accepted.

The want of consideration is, in our judgment, wholly irrelevant to this issue. The plaintiffs trusted Walker, the drawer, and Walker alone. They choose to accept his bill without funds in hand, upon the faith that he would reimburse them. They have paid the hill to the defendants, and it matters not if, by so doing, they have lost their money, unless they have lost it by a forgery, that is, by a material alteration made with intent to defraud, and which in fact did defraud them.

It appears to us that there was an absence both of a fraudulent intent and of a fraud in fact, in making the alleged alteration.

Walken' drew the hill to the order of himself, and it was so accepted. After the word “ myself” there was a blank space left, sufficient for the insertion of an ordinary name. ' t

Walker first negotiated the bill to a man named O. J. Wilson, by special endorsement. After a time, Wilson returned the hill to him, with his own endorsement in blank thereupon, the negotiation between them having assumed another form. Walker then, it seems, erased his own special endorsement to Wilson. Afterwards, having entered into a large contract with John S. Milchell, which obliged him to make certain advances, he negotiated this bill absolutely to Milchell. In so doing he wrote immediately over the unerased blank endorsement of C. J. Wilson the words: “Pay to the order of John S. Milchell.” Walker swears that this was done in good faith, for the purpose of effecting a transfer of the bill to Milchell, and that he supposed he had so transferred it. Whether from ignorance or inadvertence, he thus left the bill which he had transferred bona fide to Milchel without his own endorsement. Mitchell, then, to show the true meaning of the parties, inserted the name of “ C. J. Wilson” in the blank space after the word “ myself,” upon the face of the bill. This is what is charged by the plaintiff to be a forgery.

But it effected precisely what the parties, Walker and Mitchell intended to do, and what the former thought he had done. Where, then, was the fraud? The insertion of this-word fey Mitchell was incautious and improper, it may fee, but if its sole effect was to carry out the design and contract of Walker and Milchell, the only parties interested quoad hoc, we cannot see how BulliU, Miller & Co. have been defrauded or can complain of the act. It is only by mixing with this issue (which is the only issue in the case) matters connected with the consideration of the acceptance and that of its transfer, which are quite foreign to the issue, that a serious doubt can he raised as to the rights of the present parties.

Walker, as the drawer of the bill, is as much bound to the plaintiffs as if he had really endorsed it, as he intended to do.

If any liability were sought to be fastened on Wilson, as endorsee, a very different question would be presented.

But the plaintiffs have paid their acceptance in favor of Walker, or order, to the endorsees of a person to whom Walker really transferred it. We are not satisfied that they have made out a case for the recovery of money as paid in error upon a forged endorsement.

The judgment is, therefore, affirmed, with costs.


author: Merrick, O. J.

text:
    Samuel G. Laycock, Administrator, v. Thos. Green Davidson.
    Parol proof is inadmissable to prove a dation enpaiement, or an exchange of slaves by an admin» istrator. Code, 2415,^629,2637.
    APPEAL from the .District .Court, Sixth District, Parish of East Baton Rouge, Robertson, J.

      Seymour, for plaintiff. Lacy, for defendant.
   Merrick, O. J.

This ease was before the court in 18S4 on a question of j uris-diction. 0 An. 162.

The only question now presented is raised by a bill of exceptions taken by the plaintiff to the refusal of the District Judge to receive the testimony of Laycock, to show that a negro woman named “ Lucy and her children were .exchanged for the girl Sylvia, and that Davidson was consequently entitled to no credit upon the note sued on for the price of said Lucy and her children.”

The note sued on was made payable to W. H. George, deceased, and Laycock sues as his administrator.

The plaintiff contends that he is entitled to offer the testimony, because the object is not to show title, but simply to prove the payment of money; to prove that the thirteen hundred and fifty dollars, which W. II. George had agreed by his contract in writing to credit to the note when Davidson should make a valid title, was discharged by the exchange of Sylvia for Lucy and her children. There are two reasons why this testimony should not be received :

1st. There could be no dation en paiemenl or exchange recognized as between these parties, the administrator of George and the defendant, except by the production of an agreement in writing. O. 0 2415, 2629, 2637.

2d. The parol proof offered tended to contradict the written agreement of the intestate, the slaves having been in his possession and .sold as his property, and now being in the possession of the plaintiff by purchase at the probate sale.

As no complaint is made of the judgment of the lower court in any other particular, we discover no reason why the same should not be affirmed.

Judgment affirmed, the plaintiff and appellant to pay the costs of appeal.