text:
    No. 10,749.
    The State ex rel. C. D. Otis vs. O. C. Mouton, Judge of the Twenty-fifth Judicial District Court.
    A writ of certiorw'i will not be made peremptory,after judgment where the accused has failed to reserve any bill of exception and has neglected to file any plea in bar or to make any motion in arrest of judgment; the offence being substantially charged in the language of the statute, and the information not wanting in substantial averments to make it absolutely null.
    The illegalities were, cured by the neglect^to plead them, and by the consequent sanction of the defendant.
    ^PPLIOATION for Certiorari.

      Henry C. Castellanos for the Relator.
    Respondent in person.
   The opinion of the court was delivered by

Breaux, J.

The relator was charged with slander. Having been arraigned, he was tried on the 18th day of November, 1890, found guilty, and sentenced to be imprisoned in 'the parish jail during a period of three months and to pay a fine of $75 and all costs, and in default of payment to be imprisoned six months additional.' He filed no special pleas, no motion to quash, or in arrest of 'judgment.

He was tried by a jury.

He applies for a writ of certiorari, and assigns as error patent on the face of the record that the information is null because it does not state the time of the alleged slander with legal certainty.

Because “malice is not alleged nor the words used by the relator; the averment as to that ingredient of the offence being a conclusion of the pleader.”

The relator further alleges that the information does not set forth any act of publication nor the words “of and concerning” whom the words were used.

. The respondent judge answers substantially that the relator cannot invoke the supervisory powers of this court, as he has virtually abandoned the pleas he now presents; that he took the chances of an acquittal, without regard to any plea, except that of “not guilty,” and met with an unfavorable verdict, from which he can not be relieved by a writ of certiorari.

The offence is described as follows in the information:

“That one C. D. Otis, at the parish aforesaid, on the 22d day of February, 1890, and at other times during the year 1890, did, without probable cause, defame and slander one Jules G. Laurent, a person •of good repute, and did then and there give currency to slanderous and defamatory words against the said Jules G. Laurent; the wrongful and unlawful act of having committed wilful and corrupt perjury with the intention of bringing the said Laurent into public contempt, and of subjecting him to ridicule and injury.”

This information was filed under Act 118 of 1888, making the slandering and defamation of any person of good repute by imputing to such person the commission of any crime a misdemeanor:

Having failed to present by motion to quash or motion in arrest of judgment the defences now urged, the question presents itself as to whether they can be brought up by writ of certiorari under the supervisory powers of the court.

The decisions prior to the Constitution of 1879 required some action on the part of the accused by way of demurrer, motion to quash or motion in arrest, to give- him the right to avail himself, on appeal, of defects apparent on the face of the information in an assignment of errors. State vs. Bass, 11 An. 862; State vs. Arthur, 10 An. 265; State vs. Benjamin, 7 An. 48.

These decisions would not of themselves be held sufficient to maintain a principle, changed by subsequent laws, and will be considered authority on the subject presented only to the extent that later decisions corroborate their correctness under present laws.

In the case of the State vs. Tony Taylor, 37 An. 40, it was decided that errors of form should be presented by motion to quash the indictment; while errors of substance should be pleaded by motion in arrest of judgment.

The defences in matters of form and of substance were limited to these pleas.

In the case of the State vs. Romano, 37 An. 99, the court held that “ the appeal having been brought up without an assignment of errors, without a bill of exception, without a plea in bar, and without a motion in arrest of judgment, the court will not review questions of law that have not been decided by the court ” a qua.

The relator contends that the reference to “the assignment of errors ” in this case, and not made in the Tony Taylor case, enlarges the doctrine of defences by assignment of errors (and therefore also by writ of certiorari) irrespective of bills of exception, pleas in bar, and motions in arrest of judgment.

Possibly it does, but not to the extent asserted by relator.

Por even in that case the court holds: “ It is unquestionably powerless to review a question of law which has not been submitted to or passed upon by the court ” a qua.

But we will not limit our inquiry, when the powers of the court under Article 90 of the Constitution are invoked, to the authorities applying to assignment of errors, and the questions that must be submitted to the court a qua, in order to enable the pleader to have questions reviewed on appeal.

We will extend our examination further and determine whether the information sufficiently indicated the substance of the- offence to place the accused on his defence.

To maintain his application for a writ of certiorari, the relato^ must establish that the information is wanting in substantial averments of the offence, and is not susceptible of being cured by the sanction of the accused.

The time, name and the offence charged are alleged; also the crime imputed to the person stated as having been slandered. It is urged, in the first place, that the word “malice” is not alleged in the information. To this it is sufficient answer that it is not in the statute denouncing the offence.

The words “maliciously” “and such like” “'are unnecessary if they are not to be found in the very definition of the offence, either at common law or in the purview of a statute; and at common law it seldom happens that one of the expressions may not be supplied by an equivalent one.” Wharton, Yol. 1, p. 403, 7th B.

If there was any necessity to supply that word, it was supplied by the words of the statute.

It is next charged that the offence as set forth was merely the conclusion of the pleader.

The crime imputed to have been committed by the person alleged to have been slandered is charged, not in technical terms, it is true, but nevertheless the relator was placed on his defence.

The evidence was admitted without objection.

He might have required greater specification of the offence, but he did not avail himself of that right.

On his application for a writ of certiorari, we will not cure his omission or neglect in not requiring more ample definition.

With reference to these and the other grounds urged in the application, we will add that at this time, in the proceedings, we can but decide that an information substantially couched in the terms of the statute (although the offence is not as clearly set forth as should have been), charging that the relator did slander and defame, is not so illegal as to make it legal for the court to interpose its supervisory control.

The mandate of certiorari issues when the proceedings are null, or have not been sanctioned by the party complaining of them. O. P. 864.

Not an illegality is found but what was cured by the sanction of the defendant.

The laudable zeal of counsel in behalf of his client has prompted us to carefully consider every proposition, and to closely examine the authorities bearing on the issues presented.

We find our conclusion expressed in the last sentence of the Romano ease, a case in pari materia: “It is too clear for further argument that the defence comes too late, and that it can not be considered.”

Prayer for a writ of certiorari is denied, and relator’s application is dismissed.


source: Caselaw Access Project

author: Bermudez, O. J.

license: Public Domain

text:
    No. 10,735.
    The State of Louisiana vs. Honoré Manceaux.
    It is not enough for an accused who moves lor a continuance on the ground o£ the absence of a material witness duly subpcened, to swear that he was afflicted before the occurrence with a disease which left as a trace a temporary aberration of mind, rendering him irresponsible.
    Necessarily, he must have had lucid intervals, since the aberration was temporary.
    He should have set forth the fact that at the time of the commission of the act he was insane and ii’responsible, exclusively to the knowledge of the absent and wanted witness.
    APPEAL from the Twenty-fifth District Court, Parish of Lafayette. Mouton, J.

      Walter H. Rogers, Attorney General, for the State, Appellee.

      L. L. Bourges and A. & C. Fontelieu for Defendant and Appellant.
   The opinion of the court was delivered by

Bermudez, O. J.

The accused was prosecuted and convicted of larceny. From a judgment sentencing him to hard labor he appeals.

He contends that the motion for a continuance, which he made, when the case was called, to procure an absent witness, duly subpoenaed, should have been allowed.

He claims that he was afflicted with brain fever before the commission of the act charged, and that he has continued so to be; that in consequence he had temporary aberration of mind, during which he is entirely irresponsible, and was and is insane.

He applied for a subpoena for the doctor who attended him, and, on a previous calling of the case, moved for a continuance on the ground of the absence of the witness, which was granted.

He subsequently moved for another subpoena; and when the case fixed again was called, the doctor not being present, he moved for a continuance, based on his affidavit that a subpoena had duly issued and been served; that the witness was material, etc.

The District Judge refused the continuance on the grounds that the affidavit does not state that at the time of the commission of the crime the defendant was insane; that the motion was made for delay, it being the third made for the same purpose.

Granting that the defendant was temporarily insane, it does not necessarily follow that, at the moment that he stole the cow, he was in such a state of temporary aberration of mind that he was irresponsible. Necessarily, he must have had lucid intervals.

Not only should he have so distinctly set forth, but also that the fact is exclusively to the knowledge of the absent physician.

Judgment affirmed.


author: Bebmubez, O. J.

text:
    No. 10,648.
    Edwin Telle vs. Jos. D. Taylor.
    Agency to acquire real estate must be shown by written evidence.
    APPEAL from the Civil District Court for the Parish of Orleans. Bilis, J.

      W. S. Parkerson, for Plaintiff and Appellant,
    cited: 35 An. 561; 33 An. 1035; 24 An, 209; 15 An. 483; 10 Rob. 1S3; 14 An. 44; 42 An. 160.

      J. Q. A. Pell owes and J. B. Rosser, Jr., for Defendant and Appellee :
    When a party interrogated on facts and articles in relation to a verbal contract to transfer real estate denies the contract, his answer can not be contradicted by parol evidence, nor is parol evidence admissible to prove such a contract. 4 An. 103; 4 La.-374; 15 An. 539; 26 An. 251.
    An agreement to purchase a tract of land taking the title in his own name, and to transfer it to plaintiff, can not be proved by parol. 4 An. 103; lOEob. 466; 30 An. 898; 32 An. 365.
    l’arol evidence is inadmissible to establish a verbal agreement to transfer real property, although a fraudulent refusal to comply with the agreement be alleged, and although theremay be a want of good faith, a species of fraud, in not performing his promise.
    When the allegation of simulation and fraud comes from one of the parties to a contract, he is bound to establish it by some written evidence, where the right to compel the transfer and conveyance of real property is assumed as a consequence of a verbal agreement. 4 La. 167; 2 La. 596; 10 Eob. 466.
   The opinion of the court was delivered by

Bebmubez, O. J.

This is an action for the recovery of real estate, in the name of defendant, to which plaintiff claims title.

The substantial averment is that one Benton had agreed to buy the property for his account, to defendant’s knowledge; that defendant was the agent and trustee of Benton, and, through a conspiracy between them, acquired the land and holds it in his name for Benton.

Taylor filed exceptions, which were overruled. These were followed by a general denial.

Benton was not made a party, and made no appearance.

From an adverse judgment plaintiff appeals.

Interrogatories on facts and articles were propounded to establish the facts charged, but the answers of the defendant admitted no circumstance from which liability is inferrible.

Oral testimony was offered, but, on objection, it was rejected and bills were reserved.

A writing purporting to show an agreement between counsel for plaintiff and Benton, to pay for the running of lines by an engineer, so as to divide the property in dispute, is in the record.

There was some proof administered tending to show matters which have little or no reference to the land in question, and which maybe deemed irrelevant.

The rulings of the District Court are correct.

Parol testimony could not.be received to prove the agreement between plaintiff and Benton. Agency to purchase real estate must be established in writing.

Oral pi’oof could not have been admitted against Benton, had he been made a party; still less can it be where he is not connected with the suit, and the only defendant is apparently a third person.

The agreement to have the lines run proves nothing of the kind.

The answers of the defendant to the interrogatories were not negatived in writing, and could not be by testimony.

It is useless to refer to authorities.

Judgment affirmed.


author: Eenner, J.

text:
    No. 10,649.
    The State of Louisiana vs. B. Schlemmer.
    1. The legitimate exercise of the police power is not subject to restraint by constitutional provisions for the general protection of rights of individual life, liberty and property.
    2. A city ordinance having for its object the prevention of the use of unwholesome well water in the making of bread for public distribution and consumption may validly require, as a means to that end, the filling up of wells on premises where such bread is made.

      3. Legislation which affects alike all persons pursuing the same business under the same conditions is not such class legislation as is prohibited by the Constitution of the United States or of the State.
    APPEAL from the Second Recorder’s Court of the City of New Orleans. Dreux, J.

      T. MoC. Hyman, Assistant City Attorney, and Oarleton Hunt, City Attorney, for Plaintiff and Appellee.

      Her & Duvigneaud for Defendant and Appellant.
   The opinion of the court was delivered by

Eenner, J.

Defendant appeals from a conviction and sentence on a charge of violating a city ordinance containing the following provisions:

1. That it is hereby made unlawful to excavate or sink a well on any premises used as a bakery or bakeshop within the city limits.

2. That upon any such premises where a well now exists, it shall be the duty of the owner of the property to cause same to be immediately filled up to the surface of the ground.”

Defendant admits that he owns premises which he uses as a bakery, and that he has thereon a well eighteen feet deep, the water of which he uses in making up the bread which he sells to his customers ; that he had been duly notified by the proper authority to fill the well and had refused to do so.

The sole issue is as to the legality and constitutionality of the ordinance, which he assails cn two grounds: first, that it operates a taking of property without due process of law and without adequate compensation, in violation of the Constitutions of the State and of the United States; second, that it is class legislation, discriminating, without reason, against a particular class of citizens.

I.

The proposed suppression of the well on defendant’s premises is not an exercise of the right of eminent domain by taking private property for public use without just compensation or due process of law within the purview of the constitutional provisions above referred to. It is a distinct exercise of the police power, as to which we have heretofore said: “It is ■universally admitted that, however broadly these principles may be expressed, there exists, ex necessitate rei, in every government, the power to impose restrictions upon individual rights of life, liberty and property, which it is not within the meaning or intent of such provisions to prohibit or restrain. * * * So universal and long-continued has been this construction of constitutional inhibitions against governmental deprivation of life, liberty and property of citizens, that it may now be considered as written into ever Constitution.” State ex rel. Walker vs. Judge, 39 An. 138.

If, then, the ordinance under consideration is a proper and lawful exercise of the police power, the constitutional inhibitions invoked have no application thereto; if it is not such an exercise of that power, there is no other ground on which it can stand for a moment.

The Legislature has delegated to the city of New Orleans very extensive police powers, as appears from the following section of the charter, Act 20 of 1882:

“ Sac. Y. The Council shall have power, and it shall be their duty, to pass such ordinances and to see to their faithful execution as may be necessary and proper: * * * (2) To maintain its (the city's) cleanliness and health and to this end: * * * (b) provide for the inspection and cleanliness of all vaults, privies, yards, markets, cemeteries; (c) to regulate the location of and inspection and cleaning of dairies, stables, cattle yards, landings and pens, slaughter houses, soap, glue, tallow and leather factories, depositories for hides, and all places or business likely to be or become detrimental to health, and adopt such ordinances and regulations as shall be' necessary or expedient for the protection of health and to prevent the spread of disease, and to maintain a good sanitary condition in the streets, public places and buildings and on all private premises. * * * (d) To suppress all nuisances; (e) to prevent the sale of adulterated or decayed food, and to punish the same.”

The motive and object of the ordinance in question are very patent, and. suggest themselves, at first blush, to the most casual reader. They are to prevent the use of well water in the making of bread by bakers who make bread for sale to the public; and, as a means to that end, to prevent the construction or maintenance of such wells on premises used for such purpose.

The evidence of medical and scientific experts found in this record makes it very clear that water from wells in this city is absolutely unfit for potable or cooking purposes; that it is impure, highly polluted with fecal and other foul matters, full of germs of disease, and that its use in the baking of bread is dangerous to health.

The primary purpose of the act, therefore, viz: the prevention of the use of such water for such purpose by persons who make bread for public distribution and consumption, falls within the clearest and most essential foundation of the police power, the preservation of the public health.

It is not, perhaps, for us to say whether the means adopted to accomplish this purpose are the best and most efficient, and the least injurious to private interests. These are matters of legislative determination. It is sufficient, for judicial satisfaction, if the means, are appropriate to the end, will operate toward its accomplishment, so intended in good faith, and are not unwarrantably and unnecessarily oppressive.

We think the means here adopted exhibited all these features.

If bakers, who either do not believe well water to be injurious, or who do not care whether it is injurious or not, have wells upon their premises, they are likely to use it. Such is the actual case of .defendant. He has the well, and he uses the water in making his bread. There is no other way of preventing its use so efficient as to suppress the well. Leave the well, and nothing less than the constant pressure of a guard could secure any certainty of its non-use. Fill up the well, and it is very certain he will not use its water any more. True, he may possibly get equally objectionable water from wells on other premises; but that may be more inconvenient or troublesome than to find a more wholesome water supply. At all events, the filling of the well has a tendency, and is, indeed, likely, to accomplish the purpose, and is one means appropriate thereto, and without which it certainly could not be securely accomplished. Far from being unwarranted or unnecessary, it is absolutely essential in order to carry out the end designed.

II.

The objection that this is class legislation has no force.

As said by the Supreme Court of the United States, “the discriminations, which are open to objection, are those where persons engaged in the same business are subjected to different restrictions, or are held entitled to different privileges under the same conditions. It is only then that the discrimination can be said to impair that equal right which all can claim in the enforcement of the law.” Soon Hing vs. Crowley, 113 U. S. 703.

And again: “Class legislation, discriminating against some and favoring others, is prohibited; but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operations it affects alike all persons similarly situated, is not within the amendment.” Barbier vs. Connolly, 113 U. S. 27; Railway Co. vs. Beckwith, 129 U. S. 26.

The ordinance, in this case, covers all persons engaged in the same business with defendant and similarly situated.

_ Judgment affirmed.


author: Fenner, J.

text:
    No. 10,681.
    The State of Louisiana vs. James Jackson.
    1. The maintenance o£ a challenge for cause by the Stale, even if erroneous, affords no ground for relief in absence of suggestion that the State’s peremptory challenges were exhausted.
    2. Exemption from jury duty is a personal privilege, and nota disqualification and the overruling of the plea is matter of complaint for the juror, not for defendant.
    3. Where the juror objected to did not servo, but was peremptorily challenged by defendant, whose peremptory challenges were never exhausted, error in the ruling would afford no ground for relief.
    PPEAL from the Eighth District Court, Parish of Bast Carroll. Montgomery, J.

      Walter H. Rogers, Attorney General, for the State, Appellee.

      E. J. Delany for Defendant and Appellant.
   The opinion of the court was delivered by

Fenner, J.

The record presents two bills of exception to rulings of the judge in the empaneling of the jury which tried the cause.

The first bill was taken to a ruling sustaining a challenge for cause, by the State of a juror, on the ground of scruples against capital punishment. The juror first stated that he had scruples against capital punishment; then, in answer to question by counsel for accused, said that if the evidence showed such a state of facts as to justify hanging, he would render a verdict which would carry with it that penalty; then, in answer to question by the court as to whether he had scruples against capital punishment, said he was opposed to hanging. The ease being capital, we think these statements evince a condition of mind rendering his competency so doubtful that we should be disinclined to disturb the ruling of the judge. But even if there was error, it does not follow that there was injury to accused. If the challenge for cause had been overruled, the State might still have challenged him peremptorily; and nothing on the bill or in the record suggest that the State had exhausted or ever did exhaust her peremptory challenges.

The second bill is to a ruling of the court refusing an exemption from jury service pleaded by a juror. This bill has no merit for two reasons:

1. It is well settled that exemption from jury duty is a personal privilege, and in no sense a disqualification. If the juror had not urged his exemption, his service on the jury would not have vitiated the verdict; and the overruling of his plea, even if erroneous, would be a matter of complaint for the juror, not for defendant. State vs. Morning Star, 23 An. 8; State vs. Guidry, 28 An. 630; Thompson & Merriam, Juries, Sec. 40.

2. In this case the juror did not serve, but was peremptorily challenged by accused; and the bill shows that the latter’s peremptory challenges were never exhausted. Under our repeated rulings this circumstance deprives accused of any claim to relief. State vs. Simmons, 38 An. 41; State vs. Creech, Id. 480.

Suggestion is made of error on the face of the record in this, that the verdict, though written, was not signed by the foreman, and the jury was not polled. This is frivolous. The verdict need not be written, and, if written, need not be signed. State vs. Avery; Mannings’ Unrep. Cases, 258; State vs. Simon, 37 An. 569; State vs. Smith, 33 An. 1416.

If defendant desired the jury to be polled, he should have demanded it at the time.

Judgment affirmed.


text:
    No. 10,726.
    The State ex rel. J. M. Gillespie vs. The Judge of the Ninth Judicial District Court.
    Application for certiorari and prohibition denied for reasons appearing in opinion in ease of Goldman vs. Gillespie. No. 10,703 of our docket.
    y^PPLIOATION for Prohibition and Certiorari.

      Walter H. Rogers, Attorney General, for the Relator.

      F. P. PocM, Thos. P. Clinton and CL J.- Boatner for the Respondent.
   The opinion of the court was delivered by

Fenner, J.

Our decision in the case of Goldman vs.' Gillespie,. No. 10,703 of our docket, leaves this application no ground of support.

It is therefore ordered that the relief prayed for be denied.


author: Watkins, J.

text:
    No. 10,651.
    C. H. Parker, Tax Collector, vs. The Sun Insurance Company.
    1. A proceeding by rule, under Section 54 of Act 85 of 1888, by the Tax Collector against an insurance company, or corporation to compel it to surrender certificates or shares of its stock holders which had been assessed for taxes, for sale1 by the Tax Collector, is not illegal and void, on the ground that the statute is in conflict with Article 210 of the Constitution prohibiting the collection of taxes by suit.
    2. The failure of the Assessor to deduct from an assessment against the shares of stock holders of an insurance company, the value of certain State and city bonds, which are owned by the corporation, and are exempt from State taxa tion, docs not render such assessment void, because they are not “exempt property” in the sense of the statute and the Constitution.
    3. The statute being thus construed, docs not give it the effect of violating the 203d Article of the Constitution, which requires that taxation shall be equal and uniform.
    4. Such a construction of the statute does not give it the effect of violating the-contract clause of the United States Constitution.
    5. Shares of stock in a corporation, evidenced by certificate, are incorporealriglits in the funds and assets of the corporation, and same can bo seized, either by taking possession of the certificates themselves, or hy seizing the interest of the-share holder in the assets and property of the corporation, by giving notice to-the proper oflieer thereof. The inability oí the Tax Collector to seize the corporeal evidence of the right does not prevent the creditor from seizing the right itself, by notifying the keeper of the subject matter of the right. Certificates of shares of stock are not negotiable, and can not bo sold to the prejudice of such a seizure.
    PPEAL from the Civil District Court for the Parish of Orleans. Monroe, J.

      Wynne Rogers, for Plaintiff and Appellant,
    cited: 41 An. 436; 41 An. 440; 41 An. 181; 9 Wall. 362; 41 An. 1137.

      Leovy & Blair and Farrar, Jonas &• Kruttschnitt for Defendant and Appellee:
    1. A corporation cun not by any fiction of law be said to have possession of the shares of its capital stock so as to ho able to produce them for sale by the Tax Collector.
    As to nature of ownership of stock, see Delaware Railroad Tax Case, IK Wall. 22S; Cook on Stock and Stock Holders (2d Kd.), p. 617.
    2. A corporation may indeed represent its share holders for purposes of assessment, as is decided, and oven for purposes of payment of taxes, as is intimated in Planters' C. Oil Co. vs. Assessor, etc., 41 An. 1137; but it has boon repeatedly held that it does not represent the share holders in suits to subject the stock to seizure and sale for taxes. IVaseca Co. Bank vs. McKenna, 32 Minn. 468 (21 . N. W. B. 556); Banners Nat. Bank vs Cook, 32 N. J. Law 347; Cook on Stock and Stock Holders (2d. Ed.), note at p. 632, et saq.

    3. Absurd results of plaintiff’s theory demonstrated.
    4. Second defence considered and shown not to be inconsistent with any of the matters necessarily involved and actually decided in the ShreveporfcBank ease.
    5. The bonds owned by defendant are exempt from any and all taxation. Act No. 3 of 1860; State ex rol. DaPonte vs. Board, 85 An. 650. This exemption applies to indirect as well as direct taxation.
    6. Taxation of the shares of stock of a corporation without deduction of the value of its bonds, while not the same thing as taxjng the bonds directly to the corporation, is nevertheless an indirect taxation of the bonds themselves. Van Allen vs. Assessors, 3 Wall. 589; Shreveport Bank Case (on rehearing), 35 An. 190; Cooley on Taxation, pp. 166, 167.
    7. The ease at bar and the Shreveport Bank ease distinguished.
   The opinion of the court was delivered by

Watkins, J.

In pursuance of the provisions of Section 54 of Act 85 of 1888, the State Tax Collector of the first district of the City of New Orleans proceeded by rule against the Sun Insurance Company, to compel it -to surrender certain personal property of its share holders, which had been assessed' for State taxes in 1889, and which property consisted of shares of stock of said corporation.

The collector demands the surrender of the shares of stock of said corporation, or so much thereof as may be necessary to realize, at public sale, the amount of the taxes due thereon, with interest, penalties, cost and attorney’s fees.

In the alternative he demands of the corporation the amount of money due under said assessment, it being §2863.40.

He founds his rights to make this demand, against the insurance company, and to enforce against the shares of its stock holders the tax in question, on the 27th Section of Act 85 of 1888, same being the general revenue law of that year.

The defendant in rule resists the demands of the Tax Collector on several grounds.

It first tendered a plea of no cause of action as a peremptory exception,’ which is to the effect that Section 27 and other provisions of Act 85 of 1888 are null and void, because they are in conflict with the 210th Article of the Constitution, forbidding the collection of taxes by suit; and the sense of which is averred to be, that any other mode of collecting taxes than by seizure and sale of the property assessed, is prohibited, and the same having been overruled, it filed an answer.

The following points, substantially, are therein set out, viz:

1. A denial of any taxes being due by the corporation for the shareholders, “by reason of the fact that under the provisions of Section 27 of Act 85 of 1888 the said share holders were entitled to have the pro rata of all property owned by the defendant at the time of the assessment, and exempted from taxation, deducted from the amount of taxes assessed against each share; that said deduction must be made before the aggregate amount of taxes due could be legally ascertained; that the Board of Assessors was duly advised and informed of the amount of the exempted property, but failed to make any deduction on account of same, whereby the assessment of taxes against the defendant company was rendered illegal.”

The exempt property, the value of which the corporation claims should be deducted, is specified as State and city bonds of the value of $485,124.08.

And tiie averment is made that the exempt property is worth more than the company’s shares of stock, and that a proper deduction thereof from the assessment, would reduce it to nothing, and annihilate it completely.

2. It is alleged that if the value of this exempt property should not be deducted in estimating the amount of taxes due on the shares of the company’s stock, then said Section 27 of Act 85 of 1888 is unconstitutional and void, because it contravenes the 203d Article of the Constitution, which provides that taxation shall be equal and uniform throughout the territorial limits of the authority levying the tax— the alleged effect of such'a construction of the act being, to make discriminations against corporations in favor of moneyed capital in the hands of individuals who are engaged in making loans of money on interest, as corporations are — and, as an instance of such want of uniformity in the operation of said statute, reference is made to the national banking associations created under certain acts of Congress, with whom defendant comes in competition in such business.

Therefore, the charge is made “ that a law which either does not tax the shares of stock of national • banking associations at all, or permits the deduction of the v. lue of non-taxable securities as ' aforesaid, while taxing the shares of all other corporations, without permitting any such deductions, lacks uniformity and equality, and is thus violative of Article 203 of the Constitution of the State.”

3. That if said Section 27 of Act 85 of 1888 contemplates and requires that the value of the aforementioned bonds shall not be deducted from an assessment of the shares of stock of the defendant, then said section is violative of Article 1, Section 10, of the Constitution of the United States, same being an impairmentof the contracts under which said bonds were issued, and of the laws of this State, and of the decisions of the Supreme Court thereof, having the force and effect of contracts, on the faith of which said bonds were issued to and held by the corporation. And the defendant specifies ActNo. 3 of 1860, which exempts consolidated bonds of the City of New Orleans from any and all taxation; and the opinion of this court in State ex rel. D.a Ponte vs. Board of Assessors, 35 An. 651, wherein it is alleged to have been announced that it is the settled policy of the State that bonds of the City of New Orleans were and should remain wora-taxable. And it is further averred that not deducting from the assessment of the stock holders the value of the aforesaid bonds, was and is an actual though indirect taxation of the bonds themselves, “and a violation of good faith, impairing the obligation of the contract of loan, and therefore unconstitutional and void,’” there existing “the same want of power in the State to thus indirectly tax its bonds as to tax them directly.”

I.

As we announced in the beginning of this opinion, the Tax Collector has proceeded by rule in pursuance of Section 54 of Act 85 of 1888, but he founds his right to proceed against the insurance company on Section 27 of that act. The former directs the collector’s method of procedure in the collection of taxes in a certain contingency, i. a., against property so situated that he “ can not lay hands upon it;” and the latter directs the method of assessing companies and corporations. Hence, it is the former alone that must be considered now.

The right of the Tax Collector to thus proceed by rule was questioned and decided in State vs. Meyer, 42 An. 486. In that case the same question of unconstitutionality was raised and decided adversely to the contention of the present defendant. In the course of that well considered opinion wo said:

“The legislative department has determined that such is not and could not be the meaning of the Constitution. While adhering to the constitutional method of collecting taxes without suit and by direct expropriation of property, it has provided this as an appropriate remedy to enable the collector to reach the property in order that he may exercise the right and perform the duty conferred and imposed by the Constitution and laws of the State.”

In the immediately succeeding case of Meyer vs. Tax Collector, 42 An. 441, a similar exposition was given of the section of the statute under consideration, the court expressing its opinion in the following terse and well-chosen words, viz; “We understand the General Assembly as meaning and as saying in these acts, that the proceeding directed by the Constitution is the first, the essential and the exclusive one to be pursued in the collection of taxes, so long as it is possible or practicable to pursue it; but that, if the debtor, by his act, has made it impossible for the State to reach the property assessed, as by concealing it, he is not by such means to escape the payment of his taxes, and practically to nullify the fundamental requirements of the Constitution — ‘ that taxation shall be equal and uniform,’ and that ‘ all property shall be taxed,’ which necessarily mean that taxes shall be paid; and when he has thus placed it out of the power of the Tax Collector to collect his taxes in the mode required, he can not take advantage of his own wrong; and the Legislature may provide other means to enforce their payment. (Italics ours.)

In our opinions, we correctly held that, “under exceptional circumstances, the Legislature had constitutional power to provide other means to enforce the-payment of taxes, and properly held that the method of procedure directed in Section 64 j of Act 85 of 1888, is constitutional and valid.

II.

The sole ground on which the defendant charges nullity of the assessment is that there was no pro rata deduction made thereon of the value of certain State and city bonds; and that if such deduction had been made there would have been no assessment at all, against the defendant’s share holders.

The record shows, as matter of fact, that the aggregate assessment of the shares of stock of the insurance company was $458,126.08, from which was deducted the value of certain real estate and other property of the corporation, whereby it was reduced to $445,520. It further shows that at date of assessment the corporation owned bonds of the State of Louisiana and of the Oity of New Orleans of the par value of $444,120, and of the market value of $458,124.08, the latter valuation being the exact amount of the assessment. Hence, if the defendant’s contention be correct, there could have been no valid assessment at all.

The question, therefore, is whether State and city bonds constitute and are entitled to be considered as “exempt property” in the sense of Section 27 of Act 85 of 1888.

This question was examined and exhaustively considered in Bank of Shreveport vs. Board of Reviewers, 41 An. 181, and decided adversely to the contention of the defendant. That was a suit by a national bank to compel the Board of Reviewers to reduce its assessment, because it had not deducted therefrom the par value of certain securities which the bank alleged to be exempt from taxation, and which consisted of certain United States and State bonds.

We can not add to the force of the argument or to the perspicuity of the reasoning displayed in the opinions expressed in the decision rendered in that case, and we will rest contented after citing a few pertinent paragraphs therefrom. Among other things we said: ■“The1 conclusion is therefore unavoidable, that the words,” i. e., all exempt property mentioned in the state, “mean all exempt property which does not form part of the capital of a bank represented by shares; and that it is a matter of no significance whether the capital was or not invested, or how it was invested, as the assessment complained of is neither of the bonds nor of the capital, but simply of the shares -by which that capital is represented.

“It is, nevertheless, insisted that the State bonds, in which part of the capital has been invested, are exempt from taxation by State authority, and that the amount invested in them should be deducted from the assessment of the shares. * * * Granting that State bonds are as much exempt as United States bonds, when not constituting in whole or in part the capital of a banking institution represented by shares, it is evident that when they constitute to any extent such capital, the shares which represent capital may be assessed at their market valu,e, without any deduction from the assessment, of the value of such bonds.

“Hence, it follows that neither the United States bonds nor the State bonds, in which the capital of the bank was invested, had to be deducted from the assessment put upon the shares.” (Italics ours.)

We said further: “It must be noted that nothing in that section, or in the entire act, indicates the slightest intention to subject either of these ceeurities to taxation, or even to provide for their exemption. The lawmaker knew full well that both subjects were beyond his reach. He knew that, under the paramount law of the land, United States bonds were not taxable; and that, under the decision of this court in State ex rel. Da Ponte vs. Board, 35 An. 657, State bonds were entitled to the same immunity.

“ What then did he mean to refer to ? ' The question is answered in the first section of the act, which levies a tax on the assessed valuation of all property situated within the State of Louisiana, except such as is expressly exempted from taxation by the Constitution.

“ Turning to Article 207 of the Constitution, which is the law of exemptions, it appears that these securities are not' therein enumerated ; hence, it follows that they are not in terms, or expressly exempted from taxation by the Constitution. It is, therefore, clear that they were not within the contemplation of the law giver, in the section under discussion, as an element of deduction from the par value of shares of stock in banks. To allow the deduction directed in this section was a pure gratuity on the part of the State. The Legislature had the undoubted power to simply assess the shares in banks, without reference to the property which might be owned by the banks, and which was actually assessed in their names, or which might be exsmpt under the Constitution. * By the very terms of the statute the capital itself is not taxed; hence, the securities which may represent it in the vaults of the bank are not taxed either. The true meaning of the statute, .as applied to this case, is to determine the taxable value of the shares by deducting such parts of the capita] stock of the bank as may be invested in property which is exempt from taxation by the Constitution.”

In our opinion, rendered on the application for a rehearing, the following is quoted from Mercantile Bank vs. New York, 121 U. S. 145, viz:

“ The tax on the shares is not a tax on the capital of the bank. The corporation is the legal owner of all the property of the bank, real and personal. * * * The interest of the share holder is a distinct, independent interest or property, held by the share holder, like any other property that may belong to him, and, of course, is-subject to taxation.”

Applying the principles announced in that ease, we said:

■ “ State bonds fall under the control of the same principles. It would be impossible to formulate any theory under which an exemption would attach to the shares, because the capital of the bank was invested in State bonds, which would not apply, in case the investment was in United States bonds.”

In Home Insurance Company vs. Board of Assessors, recently decided, 42 An. —, the same principles were announced, and Bank vs. Assessors was affirmed.

The views which were there so carefully and considerately expressed, we still adhere to and maintain; and they are perfectly conclusive against this contention of the defendant.

III.

But it is contended that if the claimed deduction is not made, then the section under consideration contravenes the 203d Article of the Constitution, which contains the equality and uniformity clause; defendant’s contention being that such a construction of the statute; results in a discrimination against corporations in favor of moneyed! capital in the hands of individuals who are employed in making loans on interest, as corporations are; and, as an illustration of such discrimination, the national banks are cited as coming in competition with the defendant.

The cited article declares that “ taxation shall be equal and uniform throughout the territorial limits of the authority levying the tax;” but we can perceive no inequality or want of uniformity in the taxation provided in Section 27 of Act 85 of 1888, for it declares ‘ ‘that no assessment shall hereafter be made under that name as the capital stock of any national bank, State bank, banking company, banking firm, or banking association; or of any corporation, company, firm or association whose capital stock is represented by shares; but the actual shares shall be assessed to the share holders who appear as such upon the books, regardless of any transfer not registered or entered upon the books,” etc.

National banks, .State banks, and all other banking firms, are placed upon a plane of perfect equality, and in that respect the statute is in perfect accord with the constitutional precept quoted. This section does not treat of individuals. They are treated of in Section 1 of that act; and it declares that “all rights, credits, bonds, stocks and securities of all kinds; promissory notes, open accounts, and other obligations; all cash on hand, * including cheeks payable on that day; * * * also all borrowed money or deposits in banks, or elsewhere. * * * All coins, United States and foreign, whether current or uncurrent; all currencies, bank notes, and other paper moneys; all moneys loaned at interest, all shares of stock in all banking, insurance, manufacturing and all other incorporated or non-incorporated companies chartered under the laws of Louisiana, or under the laws of any other State than Louisiana; and all other articles and things whatever possessing any money value”— are in terms subjected to annual ad valorem taxation. (Italics ours.)

It is difficult to perceive the foundation for the complaint of discrimination for want of uniformity or equality in the taxation provided for in the statute.

We think this charge is wholly groundless.

IV.

'The last ground of complaint is that if Section 27 of Act 85 of 1888 .contemplates and requires that the value of the defendant’s bonds shall not be deducted from the assessment of the shares of the defendant’s stock, then it is in contravention oí Article 1, Section 10, of the Constitution of the United States, same being an impairment of protected contracts, because the non-deduction of said exempt property from said assessment is, in .effect, an indirect taxation of the bonds themselves; and that it is just as much a violation of the Constitution as direct taxation is.

To establish this proposition, it is incumbent on the defendant to show that this failure to deduct the value of the State and city bonds of the corporation is, in effect, a tax upon them.

In the Bank case above cited, it was held that exempt property was such as did not form a part of the capital stock of the bank; that it was matter of no consequence how the capital stock of a corporation was invested, as the assessment was not of the- bonds or the capital, but simply of the shares of stock by which the capital was represented. It was held, that by the very terms of the statute the capital of a corporation is not taxed “ under that name,” and therefore the securities which may be in the vaults of the bank are not taxed.

In the case of Mercantile Bank vs. New York, 121 U. S. 145, the Supreme Court held that a tax on the shares of a bank is not a tax on the capital of the bank. That the corporation is the owner of all the property of the bank; and that the interest of the share holder is a distinct, independent interest or property held b3* the share holder, like any other property that belongs to him, and that it can be taxed.

It appears to us that those decisions are a full and complete answer to this contention of defendant. The failure to deduct the value of exempt bonds is not taxation of them directly or indirectly. The tax laid upon shares of stock in a corporation is a tax on the specific thing, and without reference to the values of the corporation, which are not specifically exempt under the letter of the Constitution. The value of its shares of stock does not depend upon the corporation’s ownership of exempt bonds. Its values could, with equal propriety, be invested in anything else equally valuable, without diminishing the market value of its shares of stock; hence, they have-an assessable valuable per se, and independent of the character of the values owned by the corporation. It follows as a logical and legal sequence that the legality of the assessment of shares of stock of a corporation does not depend upon a deduction being made of State and city bonds, held and owned by the corporation; and, therefore, the statute does nob violate the contract clause of the United States Constitution, nor impair the obligation of defendant’s protected contracts.

Y.

Having disposed of the constitutional questions involved in this case, we must- determine whether the Tax Collector can, by the mode of procedure herein adopted, reach the shares of stock of the defendant corporation, and subject them to the payment of the taxes assessed against them, or in default thereof, coerce their pay ment by the corporation.

The judge below held, as we have done, on the constitutional questions involved, but decided that it was impossible to make the rule absolute, “ for the reason that the defendant company has not that possession or control of the property which the mover asks to have ‘ delivered,’ which should be necessary, in order to enable it to comply with such a judgment.

“ It will be observed,” says the judge, ‘ ‘that the property assessed is the right of the share holders to participate in the property earned by the defendant corporation; and to divide among themselves the residue of the property left after the liquidation of the corporation, and the payment df its debts.

“ The evidences of this right,” says he, “ consisting of the stock certificates, are shown to be in the hands of the stock holders.

“What, then, has the defendant company in its possession or under its control, answering the description contained in the rule, which it could deliver to the plaintiff to be sold ? ”

This view is maintained in the brief of defendant’s counsel, on the ground that “in so far as the possession of -the stock is concerned, as well might it be said (that) the maker of a note is in possession of the debt evidenced by the note, merely because he owes it, as to say that the (corporation) is in possession of bhe shares of the stock, merely because it occupies a certain trust and quasi debtor relation to its share holder. Stock in a corporation, like all incorporeal rights, is supposed to follow the person of the owner, although we do not dispute the proposition that the stock may be given a situs, for the purpose of taxation, if the State deems it proper to do so; but the nature of the property is such that it can not possibly be viewed as being in the possession of the corporation wherever it may be located.” Brief, p. 9, et seq.

Of course it can not be correctly said that the maker of a promissory note is in possession of the debt evidenced by it, but it is a nonsequiter that the corporation is not the possessor of “ the right of the share holders ” which is evidenced by the certificates issued to them. For a promissory note is payable to bearer or order, and passes from hand to hand, by indorsement or manual delivery, at the option of the holder. It is controlled^ in its operations in market overt, by the principles of the law merchant. But shares of stock possess inherently only a restricted negotiability, and transfers of them can be effected only by assignment of them, as of other credits, or incorporeal rights. R. C. C., 2642, et seq.

To effectuate such a transfer, notice to the corporation is of the essence of it; and the only evidence of it is the appropriate entry thereof on the stock books of the corporation, which are kept for that purpose.

The law requires that every corporation in its charter shall fix the place of its domicil. R. S., Secs. 685, 740. That the property of a corporation “shall be assessed in the parish where the principal office or place for transacting the financial concerns of the company shall be,” etc. R. S., Sec. 734.

Thus, the situs of a corporation is fixed at the place where its financial transactions are conducted, and, necessarily, the stock holder quoad his shares of stock can have no other. But the converse of that’doctrine is true of a promissory note, for we have decided that ordinary “debts have their situs at the domicil of the creditor. Meyer vs. Pleasant, 41 An. 645; Barber Asphalt Paving Co. vs. City, 41 An. 1015.

The Legislature was evidently mindful of these provisions of law, and intended to conform the revenue law of 1888 to them, for the act says “that no assessment shall be hereafter made under that name as the capital stock of any national bank, etc., * * * but the actual shares shall be assessed to the share holders who appear as such upon the books, regardless of any transfer not registered or entered upon the books; and it shall be the duty of the president, or other officer, to furnish to the Assessor a complete list of those who are borne upon the books as share holders; and all taxes so assessed shall be paid by the bank, etc., * * * which shall be entitled to collect the amounts from the share holders or their transferees. * * * Such assessment shall be made where the bank is located, and not elsewhere, whether the share holders reside there or not," etc. Sec. 27 of Act 85 of 1888. (Italics are ours.)

From the text of the statute it is perfectly manifest that, first, it is “the actual shares which shall be assessed to the share holders; second, that the shares which are to be assessed are those of the stockholders who appear as such upon the books” of the corporation, “regardless of any transfer not registered upon the books” of the corporation; and, third, that the assessment of the shares is to be made upon “the list of those who are borne upon the books as share holders,” and which is furnished by the president, or other officer of the corporation, who is charged with the performance of that duty.

In this manner the assessment against the defendant’s share holders was made, and the manner of making the assessment is not complained of. In this respect it is unquestioned. The question therefore to be answered is: If the corporation has sufficient possession of the shares, notwithstanding the certificates evidencing the ownership of the respective share holders was not in its keeping or actual custody, to enable the Assessor to make a valid assessment of them at the situs of the corporation, is not that possession sufficient-to enable the Tax Collector to effect a valid seizure of them in the same manner?

• We think the legislative enactment has answered this question in. the affirmative, and that it was competent for it to do so. For if,, after the assessment had been thus made, no transfer of -the shares of stock can affect it prejudicially, how could such transfer affect a sale of it? Manifestly it could not.

It is a well recognized canon of construction that credits, incorporeal rights and things which are not susceptible of corporeal tradition, may be seized in the hands of the custodians thereof, if the instrument evidencing the debt or right be not negotiable.

This principle was applied in an early case, Harris vs. Bank of Mobile, 5 An. 588, to the precise question in hand, the court maintaining a seizure under fi. fa. of certain shares of stock of the defendant corporations. The court said:

“The shares in the corporations were the property to be seized,, being an undivided interest in their funds and assets. The officers of the corporations were the keepers and possessors of this undivided property for each and all the stock holders. The certificates of stock were the evidence of the ownership of that property in the hands of the holders, as the subscription and transfer books were the evidence of the ownership in the possession of the corporations; and the shares of the defendant,' E. B. Harris, incorporeal rights in the funds and assets of the corporations, in the possession of their officers. C. C. 466.

“The 647th Article of the Code-of Practice authorized the seizure of these rights. They might have been seized by taking possession of the certificates, as we infer from Article 2457 of the (Civil) Code, which declares that the tradition of incorporeal rights takes place by the delivery of the titles. But they might also be seized in the same manner as the share in a private partnership under Article 2794 of the Code, by seizing the interest of the partner in the assets, and notifying the firm.

“We think, therefore, that it was a valid seizure of the plaintiff’s stock, for the sheriff to declare to the cashier or keeper of the funds and assets of the corporation, that, by virtue of the execution in his hands, he seized the undivided interest of the defendant in the funds and assets of the corporations; or, what was the same thing, his shares of stock. This the sheriff did, and left a copy of the notice in the hands of the cashier of the bank, and secretary of the insurance company, and requested them to enter the seizure on the transfer book of the company.

“The counsel of the plaintiff,” so the court says, “contends that this was not a valid seizure of the stocks, because the sheriff did not take into his possession the certificates of the stocks then pledged to the Louisiana State Bank for a loan, and in possession of that corporation.” In reply the court said, after reviewing the various authorities cited by plaintiff’s counsel: “The .inability to seize the corporeal evidence of the right does not prevent the creditor from seizing the right itself by notifying the keeper of the subject matter of the right.

“ If the evidence of the right be negotiable, and is acquired without notice by an endorsee, even after seizure of the right, the seizure is ineffectual as to him; a principle adopted in favor of commerce. But if the evidence of the right be -raora-negotiable, the seizure of the debt or right of which it is the evidence, by notification to the debtor or keeper of the subject of this right, is valid against the subsequent assignee of the debt or right.

“ The certificates of the stocks in controversy were not negotiable, and could not be sold to the prejudice of the previous seizure of the stocks themselves. We conclude therefore that the seizure by the sheriff * * * was a valid seizure.”

We have examined C. P. 647 and R. C. O. 474, 2794, 2481 and 2828, as well as the decisions referred to in the opinion of the court, and consider that the court placed a correct interpretation upon them. Vide Cucullu vs. Insurance Company, 2 R. 571, and Brode vs. Insurance Company, 8 R. 244, as corroborative of the opinion quoted from.

It seems-clear to our minds that “the right” of a stock holder may be thus seized by the Tax Collector; that the plaintiff’s method of procedure is a legal and proper one; and that it is the obligation and duty of the defendant corporation to pay the taxes assessed against its share holders, or to submit to the Tax Collector the necessary list of stock holders, to enable him to make a seizure and sale of their shares of stock.

The judgment is erroneous, and must be reversed. It is therefore ordered and decreed that the judgment appealed from be reversed; and it is further ordered that plaintiff’s rule be made absolute, at the cost of defendant in both courts.


text:
    No. 10,682.
    The State of Louisiana vs. George Miller.
    1. A female under 12 years of age is incapable of yielding consent to sexual intercourse.
    2. While it is true that it is for tbe court to be satisfied of the competency and admissibility of evidence, and not for the jury, it is equally the right of an accused party to see to it that no incompetent or inadmissible testimony is adduced against him.
    3. The admissibility in evidence of a confession of tne accused must necessarily bo tried and determined by the judge before it can be given to the jury as evidence ; and in such a trial the accused has the right to participate, and, through counsel, cross-examine the .State witnesses by whom the confession is sought to be proved.
    PPEAL from the Fourteenth District Court, Parish of Vernon. Read, J.

      Walter H. Rogers, Attorney General, for the State, Appellee.

      Fournet & Pujo and W. G. McDonald for Defendant and Appellant.
   The opinion of the court was delivered by

Watkins, J.

The defendant prosecutes this appeal from a verdict and sentence to lifetime imprisonment under an indictment for rape, and he relies on three bills of exception reserved to the rulings of the trial judge during the progress of the trial, and one taken to his •charge to the jury.

I.

The three bills which were reserved during the progress of the trial appertain to the judge’s refusal to permit defendant’s counsel to cross-examine three witnesses of the State preliminary to their giving in evidence certain alleged confessions of the defendant, the object of defendant’s counsel, as stated in his bills of exception, being to ascertain whether or not the alleged confessions were freely and voluntarily made, as a condition precedent to their introduction as evidence.

The judge assigns as his reasons for refusing to permit defendant’s counsel to cross-examine State witnesses that “the court, and not the jury, nor the opposite party, is to be satisfied as to the competency of witnesses to testify, or the admissibility of such evidence. ' That the right of the opposite party to affect the weight of the evidence on the examination is not abridged in the least. The witness having testified that she heard the entire statement of the accused and remembered the substance of all of it, and that it was made by him voluntarily, without restraint or influence of any kind; and she stated the circumstances under which it was made.”

While it is no doubt true that it is for the court to be satisfied of the competency and admissibility of evidence, and not that of the jury, it is equally the right of an accused party to see that no incompetent or inadmissible testimony be adduced against him; and the fact that the trial judge feels satisfied of the competency or admissibility of certain proffered testimony can not exclude the right of the .accused to question it.

The competency and admissibility of testimony must necessarily be tried and determined before same is permitted to go to the jury as evidence. Recognizing this rule of law, 'the judge entertained the investigation of the question of the admissibility of the defendant’s alleged confession, and allowed questions to be put to the-"State’s witnesses tending to elicit the statements quoted; but when defendant’s counsel demanded the right to cross-examine these witnesses in the premises, his demand was refused for the reasons-assigned.

This was error of the judge.

Thus holding was virtually to decide that the determination of the admissibility of evidence is an ex parte proceeding, in which the accused has no concern whatever.

To say .that on the trial the defendant will have the right to offer other testimony for the purpose of disparaging the evidence adduced by witnesses for the State, in reference to the confession, is no answer to the objection that is pressed here. He had an undoubted right to participate in the trial of the preliminary issue — the admissibility of the alleged confessions vel non — before the evidence was permitted to go to the jury.

That right was distinctly recognized by us in State vs. Platte, 34 An. 1061. The question is formulated by the court thus:

“The first matter presented to our consideration is the ruling of' the judge a quo, refusing to hear evidence offered by the accused on the trial of the cause relating to the character of the alleged confession of the accused,” etc.; and of this ruling the court said:

“ It is elementary that the confession of an accused person is not admissible against him, unless it is a free and voluntary confession, and its character as such must be first shown as a prerequisite to its admission. When the State offers to make such proof, the issue as to the character of the confession is properly raised, and both sides have a right to be heard on this issue.

“ The inquiry on a question of such vital importance to an accused should be free and full, and it is not to be closed at the very instant that the State manages to eke out from the prosecuting witness that she, the witness, had made no threats or promises, and all opportunity denied to the other party to be heard. And the judge had no-right to conclude, as he says in the bill he did do, that the testimony offered by the accused could not be sufficient to overthrow the facts shown by the (State) witness.”

The trial judge in the instant case has fallen into a similar error. The accused had an undeniable right, by his counsel, to erossinterrogate the witnesses of the State in reference to the time, place .and circumstances of the alleged confessions, and to ascertain for himself whether same were voluntarily made. He can not be restricted to the sole right of attaching the confessions, once they are introduced in evidence, by other and countervailing proof.

This right was recognised and pursued in State vs. Collens, 37 An. 607.

To the same effect is State vs. Peters, 14 An. 521. 1 Greenleaf on Evidence, See. 219.

On this ground we think the case should be remanded for a new trial.

n.

The fourth bill of defendant was taken to the charge of the judge to the effect that “a girl under twelve years of age is incapable, under the law, of yielding consent to sexual connection.”

Having decided to remand the case, this question does not necessarily arise now, but we think it preferable that it should be determined, in order that the new trial may be facilitated.

The only case to which we have been referred as bearing on the question is that of State vs. Tilman, 30 An. 1240, in which our predecessors held that “ carnal intercourse with a female under twelve years of age amounts to the crime of rape.” The court announced that no statute of this State has declared that a female under twelve years of age is incapable of giving consent to sexual intercourse; but, upon the principles of the common law, and analogous provisions of our own, it thought a girl under twelve years of age was incapable of yielding such consent.

That opinion appears to be well reasoned, and the authorities cited pertinent, and we are not disposed to dissent from the views therein expressed. We therefore approve of the ruling of the trial judge in this respect.

It is therefore ordered and decreed that the verdict and judgment appealed from be annulled and set aside, and that the cause be remanded to court a qua, to be therein proceeded with according to law and the views herein expressed.


author: McEnery, J.

text:
    No. 10,679.
    The State ex rel. Jules and Donatien Broussard vs. L. A. LeBlanc, Justice of the Peace.
    The Supreme Court, in tlio exercise oí its supervisory jurisdiction, can not entertain a complaint against an inferior tribunal, which had unquestioned jurisdiction ratione materia of the cause, when it appears that the proceedings were regular, in accordance with law and practice.
    y^PPLICATION for Certiorari and Prohibition.

      L. L. Bourges for the Relator.
    The Respondent,in person.
   The opinion of the court was delivered by

McEnery, J.

This is an application for a writ of certiorari and prohibition.-

The relators were sued before the respondent justice of the peace under the provisions of Act No. 112 of 1880, for failure to perform road duty.

An exception was flled*to the jurisdiction of the magistrate’s court, which was overruled. The defendants pleaded to the merits, and there was judgment against them for $6.

This case was before us on appeal at the Opelousas term of this court. The appeal was dismissed; as there was no fine, forfeiture or penalty, the constitutionality of which was involved, imposed by a municipal corporation.

In the present proceeding the supervisory jurisdiction of this court over inferior tribunals is invoked to arrest the issuing of an execution on the judgment, on the ground that the proceedings of said justice of the peace were null and void and irregular, being in violation of Article 536, O. P.; and that said justice exceeded his jurisdiction, and that the Act No. 112 of 1880 is unconstitutional, as it violates Article 126 of the Constitution of 1879.

The act complained of conferred jurisdiction omthe justice of the peace to entertain the suit in which judgment was'rendered against relators. It is not alleged that the justice exceeded the jurisdiction conferred upon him by said act. The justice acted within the jurisdiction conferred by Act No. 112 of 1880. There was no irregularity in the proceedings, of such fatal character as to invite the supervisory jurisdiction of this court.

This court, in the exercise of its supervisory jurisdiction, will not, when the inferior court had jurisdiction of the suit, and the proceedings were regular, go behind them and review the judgment rendered by the inferior tribunal.

We axe without authority therefore to determine the constitutional question raised by relators.

It is therefore ordered that the rule granted herein be discharged, and the relief prayed for be denied. State ex rel. Wood & Bro. vs. Judge, 38 An. 921; 38 An. 377; State ex rel. Patton vs. Houston, Judge, 40 An. 393; State ex rel. Boncree vs. Judge, 42 An. —, recently decided.


author: McEnbrv, J. Breaux, J.

text:
    No. 10,669.
    The State ex rel. Alcide Boucree vs. Fred. D. King, Judge of Civil District Court for the Parish of Orleans.
    'Where tlie claim oí a minor lias been liquidated by a judgment, and a rule is taken against tlie tutor to compel liim to pay over said amount to said minor who lias attained his majority, the District Judge, having jurisdiction of tlie whole matter, is competent to entertain said rule. The proceedings under said rule being regular, a writ of certiorari will not issue, directed to the District Judge, avoiding tlie proceedings under tlie rule.
    Where the proceedings complained of have been prosecuted to judgment, and an appeal from the same perfected to the Court of Appeals, the District Court having lost jurisdiction, a writ of certiorari can not issue to liim, as the matter is no longer within tlie jurisdiction of the District Judge.
    ^PPLIOATION for Certiorari. .

      J. 8. & J- T. Whitaker for the Relator.
    The Respondent in person.
   The opinion of the court was delivered by

McEnbrv, J.

This is an application for a writ of certiorari to inquire into the validity of certain proceedings by rule before the judge of Division B, Civil District Court, parish of Orleans, in the matter of the succession of John and Lydia Henry.

The testamentary executor filed a final account, and there was judgment allowing the minor children $1000 on demand of tutor. There were two minor children, Emile and Lucy. Manuel Martinez was appointed their dative tutor.

On the 3d January, 1890, Lucy Henry, having attained her majority, took a rule on the executor and tutor to show cause why they should not pay her the sum of $500.

To this rule exceptions were filed by the executor and tutor, that the plaintiff could not proceed by rule in the premises, there being no liquidated claim in favor of Lucy Henry, and no account r endered or sought from said tutor.

These exceptions were overruled and the rule made absolute.

The defendants in rule applied for a new trial, which was refused, whereupon an order of appeal to the Court of Appeals was asked for and granted. The appeal is pending and undetermined.

It appears from the record that the claim of Lucy Henry had been previously liquidated by a judgment, and the proceedings complained of wére only in aid of the execution of this judgment.

The court had jurisdiction over the main action, and was competent to entertain against.relators the summary proceeding in aid of the execution of the judgment in- favor of the minor.

The District Judge had jurisdiction over the whole matter, and was vested with legal discretion to determine the merits of the rule against relator.

Our investigation is restricted to the regularity and validity of the proceedings as they appear on the face of the papers.

The proceedings assailed were conducted apparently in proper form before a competent court.

We are not permitted to go behind the proceedings and pass upon the intrinsic merits of the action complained of, but are confined to the extrinsic validity of the proceedings, thus avoiding the usurpation of an appellate jurisdiction not conferred by the Constitution.

From the answer of the respondent judge it appears that the relator had applied for and perfected an appeal to the Court of Appeals of the parish of Orleans, where he alleges said appeal is pending and undetermined.

He has therefore no longer jurisdiction of the ease, and even were ■it permissible under the statement of facts presented to issue the writ prayed for, it could have no effect to correct the errors complained •of, as the matter is not now within the jurisdiction of said Civil District Court.

It is therefore ordered that the rule granted herein be discharged and the relief prayed for by relator be denied.

On Application for a Rehearing.

Breaux, J.

. The irregularity complained of can not be noticed by this court.

An appeal is pending before the Court of Appeals, upon which •devolves the decision of the issues.

We did not, as alleged by the relator in his application for a rehearing, state that a 'suspensive appeal had been taken from the judgment on the rule.

We said that an appeal had been granted and perfected, and the District Court having ceased to have jurisdiction of the matter, and the Court of Appeals having acquired jurisdiction over it, the relator could not seek relief here.

It devolves upon the Court of Appeals to determine on the appeal whether the rule was or was not a proper proceeding, and we therefore declined to assume jurisdiction, and have left the relators to prosecute what remedy they may have before the court of their selection, and which has jurisdiction.

The want of citation, refusal of a hearing and other similar denials of justice, that the court did not have jurisdiction, or that the irregularity is absolutely fatal on the face of the papers, are necessary to enable a relator to invoke the exercise of the supervisory jurisdiction of this court. 40 An. 393.

The Court of Appeals being vested with jurisdiction, the petition for a certiorari does not set forth any of the causes, under the circumstances which make it legal to grant the writ applied for.

Rehearing refused.


text:
    No. 10,683.
    The State of Louisiana vs. L. P. McManus.
    Under Act 29 of 1886 conviction of infamous crime is no longer a disqualification of a witness in criminal cases. State vs. Mack, 41 An. 1079.
    PPEAL from the Fourteenth District Court, Parish of Vernon. Read, J.

      Walter H. Rogers, Attorney General, for the State, Appellee.

      Bournet & Pujo and Hampton Carver for Defendant and Appellant. -
   The opinion of the court was delivered by

McEnery, J.

The defendant was tried, convicted and sentenced to hard labor for perjury. He has appealed from the verdict and sentence.

There are many bills of exceptions in the record, one of which only deserves attention.

The defendant offered himself as a witness in his own behalf. His testimony was rejected on the ground that he had been convicted for an infamous crime and sentenced to hard labor.

In the case of the State vs. Mack, 41 An. 1080, we said:

“ The objection to the competency of a witness on the ground that he had been convicted and sentenced for grand larceny has no force since Act 29 of 1886, which provides that ‘the competent witness in all criminal matters shall be a person of proper understanding,’ with certain exceptions not germane to this point. This is the first statute passed on this subject in this State. Prior thereto the case was governed by the rules of the English common law as existing in 1805, which excluded convicted and sentenced felons. ■* * * But since the matter has been regulated by statute, no disqualification can be recognized outside thereof.”

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


author: MoEnery, J.

text:
    No. 10,689
    C. W. G. Rareshide vs. Enterprise Ginning Company.
    When tlie judge issues an order as prayed for in an intervention and tlaird opposition, he can not ex parte set asido the order first granted. The intervention and opposition should only ho dismissed upon a proper exception urged against it.
    PPBAL from the Civil District Court for the Parish of Orleans. Bightor, J.

      Omer Villeré for Plaintiff and Appellee.

      W. S. Benedict and H. O. Cage for Intervenor and Third Opponent and Appellant:
   The opinion of the court was delivered by

MoEnery, J.

The plaintiff in the above suit obtained an order of seizure and sale against the property of the defendant company.

Charles Hernandez filed an intervention by way of third opposition in said suit, claiming to be paid in preference to the seizing creditor.

The District Judge granted the order prayed for, directing the Civil Sheriff to hold in hi. hands the proceeds of the sale of the property until the final determination of the cause, and the citation of' plaintiff and defendant.

The District Judge rescinded the order granted in the following ex parte order:

“The Supreme Court of this State having decided in a final judgment in the suit between the same parties, being the case of D. T. Weil vs. Enterprise Ginning and Manufacturing Company, No. 25,135-of this court, and No.-of the Supreme Court, that the mortgage-securing the within mentioned note of Hernandez was extinct, and that the note of Rareshide is the first mortgage, it is ordered that-the foregoing order, signed on the 4th of August, 1880, be and is-hereby rescinded.

(Signed) “N. H. Rightor, Judge..

New Orleans, August 8, 1890."

The reason alleged for the rescinding of the order by counsel is that the judge had the records of his own court to inform him of the extinction of Hernandez’s mortgage. But the petition of intervention and third opposition contains all the requirements for the same, as directed by Art. 396 O. P. The judge was, therefore, without authority to refuse the filing of the petition, and, after it was filed and service made, he was without authority to dismiss the same without the filing of some objection to it.

“ If, for any cause, it should not be allowed, or the intervenor has no right to be heard upon his demand, his petition, as in other cases, should be dismissed upon a proper excéption urged against it by the party opposing it.” Ikerd vs. Postlewhaite, 36 An. 236; Sandel vs. Douglas, 25 An. 564; 15 An. 663; C. P. 394.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be annulled, avoided and reversed, and it is further ordered, adjudged and decreed, that the case be remanded and reinstated on the docket of the court below, and the case to be proceeded with according to law, appellee to pay costs of appeal.”