author: Breaux, J.

text:
    No. 11,648.
    William G. Vincent vs. Mrs. Camilla M. Phillips.
    The parties to the suit in the lower court are parties to the appeal, and, therefore, the motion to dismiss the appeal, in so far as relates to that ground, is dismissed.
    The case itself is not dismissed, but remanded, in order that the third person, who has petitioned for an appeal, may prove the amount of the indebtedness of the defendant, and whether the succession, represented by the defendant, is solvent or insolvent.

      APPEAL from the Fourteenth Judicial District Court for the Parish of Pointe Ooupee. Talbot, J.

      Wm. W. Leake and Branch IC. Miller for Plaintiff, Appellee.

      Dinkelspiel & Hart and Yoist & Claiborne for Metropolitan Bank, Appellant.
    Opinion handed down, January 2, 1895.
   The opinion of the court was delivered by

Breaux, J.

The appellant, the Metropolitan Bank, a third person, alleging that it is the holder and owner of two promissory notes — one for one thousand nine hundred and fifty dollars, and the other for two thousand and sixty-two dollars and eighty-five cents— complains of a judgment rendered in favor of the plaintiff against the defendant, dissolving an act of sale for the non-payment of the price, and placing him in possession of the property, and urges that the effect of the judgment reduces the succession, its debtor, to insolvency. The appeal was taken by petition and citation, and plaintiff and defendant were made parties.

The appellant interposes an assignment of errors, covering a number of assignments.

The plaintiff moves to dismiss the appeal on the grounds:

That all the parties to the judgment appealed from have not been cited, or made parties.

That the appellant does not allege or show a direct pecuniary interest in an amount sufficient to give jurisdiction to this court.

The only parties to the judgment are the plaintiff and the defendant.

As between these two (the plaintiff and the defendant) the plaintiff was decreed to pay the amount of six hundred dollars to the electric light company.

The electric light company is not a party to the record in any respect whatever, and has never consented to this decree.

The record does not disclose that that company is a party to the suit, interested in maintaining the judgment appealed from.

The second ground, denying in effect, at least), appellant’s pecuniary interest, is more serious.

The claim has not been established in the court below.

Although the exception does not contain a denial direct of indebtedness, it js so worded that the indebtedness is an issue in so far, at least, as relates to jurisdiction.

The appellant is also confronted with the objection that there is no proof of record that'the estate of Marshall P. Phillips is insolvent.

The right of appeal is based on the amount of the notes alleged, and on the fact that the succession is insolvent.

Without proof of these allegations the appellaut has no interest enabling him to sustain his appeal.

The appellant, to have his grounds of assignment decided, must show that he has a pecuniary interest, and that he has been aggrieved by the judgment.

The case must be remanded to ascertain whether the Metropolitan Bank has an interest in the matter in dispute.

The two questions to be tried by the court below are: the amount of the indebtedness of the legal representative of the succession of Marshall P. Phillips to the Metropolitan Bank, and whether his succession is solvent or insolvent.

It is therefore ordered, adjudged and decreed that the case be remanded to try and decide the two issues, defendant’s indebtedness and the insolvency of the succession of Marshall P. Phillips.

The costs to await the final determination of the appeal.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 11,841.
    W. S. Barnes for Thomas L. Barnes vs. Shreveport City Railroad Company.
    Under three years of age a child is prima facie incapable of contributory fault.
    Although a child may be in a public highway through the fault or negligence of its parents, and so he improperly there, yet if he be injured through the negligence of the defendant he is not precluded from his redress. If the defendant knows that such a person is in the highway, he is bound to a proportionate degree of watchfulness — to the utmost circumspection. And what would be but ordinary neglect in regard to one whom he had supposed to he a person of full age and capacity, would be gross neglect as to a child, or one known to be incapable of escaping danger.

      It is the duty of the driver of a street car, not only to see that the railroad track is clear, but also to exercise constant watchfulness and care for persons who may be approaching the track.
    It is a correct charge to a jury to say that a car driver “ can be justly charged with negligence only when he fails to observe or do something he ought to have seen or done, and would have noticed or done with ordinary vigilance; when he fails to be prepared for something visible, or, at least, of probable occurrence, or that might be reasonably expected to happen.”
    A PPEAL from the First Judicial District Court for the Parish of Caddo. Land, J.

      T. F. Bell and E. H. Randolph for Plaintiff, Appellee:
    A child under three years of age can not be guilty of contributory negligence. 42 An. 831; 43 An. 68; Harris, Damages by Corporations, Yol. 1, p. 544.
    Nor can the negligence of the parent be imputed to the child in a suit by the child. Id.

    Parents are not obliged to restrain their children within doors at their peril. Id.

    A person traveling on or crossing a street’railway track is not a trespasser. Thompson on Negligence, Vol. 1, p. 396.
    The failure of the defendant railroad company to introduce the testimony of its employees, who were on the train at the time of the accident, if within reach of the court, raises a presumption ofp negligence against the company. Thompson on Negligence, Yol. 1, p. 514; 35 An. 694; 38 An. 777; 41 An. 866.

      Wise & Herndon for Defendants, Appellants,
    cite: 36 An. 750; 37 An. 288.
    Argued and submitted, June 8, 1895.
    Opinion handed down, June 21, 1895.
    Rehearing refused, June 29, 1895.
   The opinion of the court was delivered by

Watkins, J.

This suit is for the recovery of ten thousand dollars damages against the defendant for injuries* sustained by the plaintiff’s infant child of three years of age, it being run over by one of defendants’ street cars, which was operated by electricity, and its arm so broken and crushed that it had to be amputated, leaving it in a permanently crippled condition.

The statement of the petition is that the accident occurred at the intersection of Texas and Crocket streets, in the city of Shreveport, defendants’ car being at the time operated on Texas street in carrying passengers. That at the time of the occurrence plaintiff’s child was standing at or near the railroad track, where there is a curve or turn, thus being in a position in which the motorman operating the car could have easily seen it had he been at his proper place and carefully attending to his duties. That the accident was occasioned by the gross carelessness and negligence on the part of the railroad company, its servants, agents and employees. That the injury inflicted upon the child caused it great pain and suffering, and resulte I in its being maimed and disfigured for life.

The defendants’ answer is a general denial, couple! with the plea of contributory negligence on the part of the child and its parents.

The cause was tried by a jury, who rendered a verdict in favor of the plaintiff for three thousand dollars, and from the judgment of the court thereon based, the defendant has appealed. In this court the plaintiff and appellee filed an answer to the appeal and demands an amendment of the decree so as to award him the full amount claimed in his petition.

The testimony of all the witnesses concurs as to the following established facts, viz.: That the accident happened in open daylight, while the car was slowly moving down grade of its own weight and momentum, the electric current having been cut off; that the track and car were in apparently good order, and the motorman in charge of the car was a sober, prudent and experienced employee; that not one of the several passengers who were in the car at the time either saw or knew of the happening of the accident.

One witness states that as he was entering the car he saw the car strike the child, but that he did not notice what the motorman was doing at the time. Another witness states that as he came to the car, he saw it just as it was checking up, and just then the little boy rolled out from under it.

A physician from the Charity Hospital testifies that he was a passenger on the car on the morning of the occurrence, and the substance of his statement is as follows:

That he was sitting near the fare-box when a passenger came in and spoke to him, handing a quarter of a dollar to the motorman to make change so he could deposit his fare in the fare-box. Heard the passenger ask the motorman for change, and saw the motorman give him the change. That just as he gave him the change witness observed the motorman apply the brak > in. a rather excited manner; and soon afterwards all the passengers became excited and stood up —the witness among the number. That just about that time he heard a little child scream, and looking out of the window he saw a little fellow holding his arm in his hand. That he ran out quickly and caught hold of the arm to prevent a hemorrhage. That upon learning whose child it was he directed that he be at once carried home; and that he went there also, and applied a bandage on the broken limb, and just as speedily as possible telephoned to the hospital for his instruments and amputated it. That he amputated it just about the junction of the upper and middle third, just above the elbow. That the arm was crushed above the elbow, and there was no such thing as saving the arm — amputation being absolutely necessary.

Another witness corroborates the physician’s statement with reference to the motorman giving a passenger change about the moment of the occurrence. He heard the cry of alarm made by some passengers, and saw the motorman catch hold of his brake “ as quickly as possible ” and try to stop the car, “ but it was alittle too late to stop the car.” He states that there was no conductor on the car; and defendant’s cars are not provided with conductors — the double duty being, by the company’s regulations, imposed on the motorman of handling the car and making change for the passengers. He says that when the car is in motion, the motorman’s post of duty is on the front platform of the car, and that he occupies a position so he can look on either side.

That the ear is provided with a brake on the front platform, so that he can arrest the speed of the car; and also with an apparatus so that he can cut off and turn on the electric current at will. He says that, at the place where the accident occurred, there is a switch, and the car passes slightly down-grade from the switch to the main line; and that in thus passing off of the switch it is customary for the motorman to slow up by cutting off the current and permitting the ear to run down of its own momentum.

Another witness who had a seat in the car by the side of the physician who testified, gives much the same relation of facts as the latter did. He speaks of the passenger who came in and walked up to the motorman to get change to pay his fare. He states that “the motorman turned around to make the change for him about the time (the car) was going out of the switch.” That it had gone probably fifteen or twenty feet (while) he was making change; and he turned partially around so as to make the change for the passenger. That immediately after haying received his change, the passenger made some remark and the motorman commenced turning his brake to stop the car.

Another witness, standing at a blacksmith shop near the switch, saw the car just as it came in contact with the child and push him over. He ran to the child immediately and picked him up and carried him into his father’s house, which was near by.

Another witness, who was driving his cart, states that he was in the rear of the car, about thirty feet distant, and a little to the left of it, driving in the same direction in which the car was moving, and saw the accident. Saw the car just as it was checking up, a”d the little boy rolling out from under it.

The passenger who was obtaining change from the motorman for the purpose of paying his fare, states that he was standing at the front door when the accident occurred. He says that while the motorman was engaged in making change for him the little boy was standing outside of the railroad track — possibly at a distance of three to six feet. That when the car was within three feet of the child, he took a notion to run across the track to the other children who were on the opposite side, and came in collision with the car.

There were five or six children playing on the track before the car had reached the point where the accident happened; but they had moved on upon the approach of the car, separating from the little fellow who was run over. That, as he observed the movement of the little boy, he caught at the brake, and the motorman caught it at that instant and checked the car. That he thinks the motorman saw the child just aboutthe time he started, but he did not have sufficient time to stop the car — it was too late.

The foregoing is a fair summary of all the testimony which was adduced on the trial in favor of the plaintiff, and nothing to the contrary was developed by the witnesses for the defendant.

It is a noteworthy fact that the motorman, White, who was operating the car which inflicted the injury, was neither summoned nor interrogated as a witness for the defendant, notwithstanding he was known to have been in the adjoining parish at the time of the trial, he being no longer in the service of the company.

Following a general rule which has ever been in favor with this court, we feel at liberty to presume that if he had been produced as a witness by the defendant, his evidence would have been averse to its pretensions.

Having been the motorman who had charge of the car, and through whose carelessness and negligence the accident and injury happened, it was defendants’ duty to have placed him on the stand and purged him of his fault, if indeed he could have done so, and as he was neither produced nor interrogated, all the legal presumptions are unfavorable to his testimony.

Imprimis we may dispose of the defendant’s charge of contributory negligence, in respect to the child, by observing that it was only three years old and incapable, per se, of contributory fault; and in respect to that of the parents there is no proof of contributory fault of any kind. Westerfield vs. Levis Bros., 43 An. 63.

Mr. Thompson states the rule thus pertinently, viz.:

1 ‘ Although a child of tender years may be in the highway through the fault or negligence of its parents, and so be improperly there, yec if he be injured through the negligence of the defendant, he is not precluded from his redress. If the defendant knows that such a person is in the highway, he is bound to a proportionate degree of watchfulness, to the utmost circumspection, and what would be but ordinary neglect in'regard to one whom he supposed to be a person of full age and capacity, would be gross neglect as to a child, or one known to be incapable of escaping danger.” 2 Thompson on Negligence, 1129.

The same author says:

“ It is the duty of the driver of street cars not only to see that the railroad track is clear, but also to exercise a constant watchfulness for persons who maybe approaching the track.” 1 Thompson on Negligence, 398.

But in even clearer and more cogent terms Mr. Beach states the rule thus:

“If, however, he” (the engineer or driver) “sees a child of tender years upon the track, or any person known to him to be, or from his own experience giving him good reason to believe that he is insane, or badly intoxicated, or otherwise insensible to danger, or unable to avoid it, he has no right to presume that he will get out of the way, but should act on the belief that he might not, or would not, and should therefore take means to stop his train in time.” Beach on Contributory Negligence, 395.

Defendant invokes the rule as announced in Gallagher vs. Railroad Company, 37 An. 288, to the effect that “ a car driver can be justly charged with negligence only when he fails to observe or do something he ought to have seen or done, and would notice or do with ordinary vigilance; when he fails to be prepared for something visible, or at least of probable occurrence, or that might be reasonably expected of him.

“ If the accident happened from a sudden and unanticipated act, which is the result of the thoughtless impulse of a child, of which human forethought could not be prescient, no liability attaches to the driver or to his employer.”

The rule thus formulated is undeniably correct, and does not differ from the rule we have quoted from Thompson and Beach. But is this one such a case? Evidently not. For instead of the motorman of defendant’s car being on the lookout while his car was slowly descending the switch to the main track, propelled by its own momentum, he was engaged in making change for a passenger; and, in consequence of his attention having been thus diverted, he failed to observe the perilous situation of the child in time to arrest the progress of the car, and prevent the happening of the untoward event. It seems quite apparent to us that if the motorman had postponed making change for the passenger until his car had passed off the switch, he could, and most likely would, have seen the child, and averted the accident.

The judge a quo, in his charge to the jury, very correctly said:

“ A railway company is bound to keep a proper lookout, especially in populous localities, for objects on its tracks ahead of a moving train, and if' a child is seen thereon it should bring its train to a stop; and upon its failure to do so, it is chargeable with actionable negligence.

The same rule applies to an electric car company, and in case of children of tender age, the proper inquiry is, whether the person in charge of the motor car failed to observe, or do something which he ought to have seen or done, and which he would have seen or done with ordinary vigilance.”

This charge, in our view, is in strict keeping with the rule that is announced by authors and jurists, and that the jury were evidently mindful of the judge’s instructions in rendering a verdict in favor of the plaintiff. We think a case of damages is made out by the law and the evidence, but our opinion is that the allowance made by the jury is not enough, and that it should be increased to five thousand dollars.

It is therefore ordered that the amount of damages be increased to five thousand dollars, and as thus amended the judgment be affirmed.

Nicholls, O. J., absent.


text:
    No. 11,803.
    State of Louisiana vs. Butler Johnson et als.

      ■Order for Subpcena to Issue. — Tlie order of the trial judge for a subpcena to issue to summon a witness is not a conclusive step in the case which prevents him, before the return of the summons, from ruling for cause sufficient that the accused must make affidavit of the materiality of the evidence in order to delay the trial at the calling of the case for trial.

      'Continuance. — The refusal of a continuance by a trial judge, is in general, not reviewable.

      Corroborating a Witness. — Where an attempt is directly made to impeach a witness on his cross-examination, he may be corroborated although not impeached by extraneous evidence.

      Confessions. — The confession was admissible against the accused, by whom it was made.
    It does not necessarily follow, because an accused is under arrest, that his confession is not free and voluntary.
    Instructions must go to the jury that confessions affect only the accused who con - fessed.
    After the alleged crime had been committed, statements against co-defendants are not admissible.
    The accused is entitled to his exculpatory with inculpatory statements before the jury. All the statements are admissible, and the jury act upon such part as to them seems true, and reject the rest.

      Examination of a Witness Who Does Not Bemember. — A witness who states that he does not remember whether he made certain statements to persons named, may yet be impeached by proof that he did make the statements as charged, which he affected not to recall.
    The motion for new trial, reiterating grounds set forth in the bills of exception, overruled.

      The effect of the confession not having been restricted to the accused, by whom made, the verdict and judgment of the court is affirmed as to B<3. Clifton, the accused who confessed, and avoided and reversed as to the others; the case as to these is remanded for a new trial.
    APPEAL from the Fourth Judicial District Court for the Parish of Grant. Wear, J.

      M. J. Cunningham, Attorney General, and R. E. Milling, District Attorney, for State, Appellee.

      Henry Bernstein and John A. Williams, for Defendants, Appellants.
    Argued and submitted, May 11, 1895.
    Opinion handed down, May 20, 1895.
    Rehearing refused, June 3, 1895, as to Clifton, June 29, 1895, as to the State.
   The opinion of the court was delivered by

Breaux, J.

Butler Johnson, George Milligan and Edward Clifton were charged with robbery and convicted.

The last named was sentenced to the penitentiary during three years, the others five years.

They appeal from the verdict and sentence, and rely upon six bills of exception.

They interposed a motion for a new trial on the’ground that the verdict was contrary to the law and the evidence.

The accused complain of the refusal of the trial judge to grant them a continuance on account of the absence of a witness.

Order to Summon a Witness in Another Parish.

The motion for a continuance was preceded by an application for a subpoena on the 21st of March, to the sheriff of another parish, to summon the witness for the trial fixed on the 27th day of March, 1895. The case was continued and tried on the 2d day of April.

The defendants urge that having granted the order for the subpoena, the District Judge should not have forced them to make affidavit for a continuance before giving time for the return of the subpoena.

The trial judge’s statement is that at the time of the application for an order to summon the witnesses he informed counsel that granting the order would not necessarily entitle the accused to a continuance, and that he understood counsel to state that the case would not be delayed. He then signed the order to summon the witnesses, but that counsel said that he was misunderstood by the trial judge. The latter admits that he, possibly, misunderstood counsel. It was none the less, he states, with' him the controlling reason in granting the order.

With reference to the other ground contained in this bill, that relating to a continuance, he states that as the sole purpose in seeking the testimony of the witness was to impeach the character of one of the witnesses for the State; he refused the continuance.

On the 28th day of March the sheriff of the parish of Ouachita, to whom the subpoena had been sent to summon the witness, mailed a postal card, informing the Clerk of Court of Grant that as he had not received any instructions as to the witness, whether white or colored, his employment and other needful information; he had been unable to find him. This postal card was received on the 1st of April. Upon this state of facts, no cause suggests itself to justify us in annulling the verdict of the jury and remanding the case for another trial.

The delay that intervened between the issuance of the subpoena and the day of the trial, the failure to furnish instructions to assist the sheriff to whom it was addressed, and the reasons assigned by the trial judge sustain the correctness of the ruling under which the accused was compelled to make an affidavit for a continuance.

The Refusal to Postpone Trial.

With reference bo the continuance, which was refused, applied for on account of the absence of the witness for whom a summons had issued, we do not think that the ruling gives ground for reversal on appeal.

The testimony sought was for the purpose of discrediting a witness for the State, by proving that his reputation for truth and veracity was bad.

Although he was a stranger in the community, and even if he was a “ tramp,” as alleged by the accused, it does seem to us that reasonable time was allowed to procure the presence of the witness.

In an early case in our jurisprudence it was decided that a “ continuance will not be granted on defendant’s affidavit, however strong, if there exist suspicious circumstances, not accounted for, and of such character as to warrant the inference that the application is made for delay merely.” Territory vs. Nugent, 1 M. 109.

More recently it was decided “that it is in the discretion of the court, even where the materiality of the expected evidence is set forth in the affidavit, to refuse a continuance if it should appear that the defendant’s sole object is delay.” State vs. White, 7 An. 531.

In matter of continuance, the District Judge is entrusted with broad discretion, and his refusal to grant it is seldom reviewable. State vs. Long, 4 An. 441; State vs. Fulford, 33 An. 679; State vs. Fisher, Ib. 1344.

Proper Foundation to Impeach Witness Not Laid.

This brings us to a consideration of the bill of exceptions to the refusal of the court to permit the defendants to ask a witness, W. B. Teagle, if State witness Day had not made contradictory statements relative to a pistol of which he testified he had been robbed.

The court states that the testimony was not admitted for the reason that the defendant did not lay a proper foundation by asking the witness if he had made the contradictory statement.

The foundation is generally held necessary in case of verbal statements. There was no error in the ruling excluding the testimony. State vs. Johnson, 35 An. 871; Greenleaf, Sec. 462.

Upon Cross-Examination an Attempt was Made to Impeach Witness — Corroboration Permissible.

The third bill of exception relates to the statements of the prosecuting witness, made some fifteen or twenty minutes after the crime had been committed, and near the place it was committed.

In the matter of ruling on this point, the trial judge states that on cross-examination of this prosecuting witness, Day, the defendant attempted to show that he had been in the habit of going to places and pretending that he, Day, had been robbed, that he might excite some feeling and get contributions from a sympathetic public;. that it was with him a game for money, thereby impeaching the testimony, and that, moreover, he admitted the testimony as part of the res gestee.

It is urged, on the part of the defence, that the court could not admit the evidence in anticipation of an attack upon the veracity of the witness, and that the fact of asking the witness impeaching questions would not be such attack within the contemplation of the law.

A party has the right to introduce evidence in corroboration of a witness who has been impeached or contradicted on his own cross - examination, and although he has not been impeached by extraneous evidence. Law of Witnesses, Rapeljé, Sec. 217, p. 360; Starkie on Ev. 160, 5th Edition.

We pass the question of res gestee without comment, as we think the testimony was admissible upon the ground decided.

Surprise Occasioned by Inconsistency of Witness. — Party Calling, Not at His Mercy.

The fourth bill of exception sets forth defendant’s complaint to a ruling permitting the prosecuting officer to ask a witness for the State whether or not he had made different statements out of court to certain persons named.

The trial judge says, in support of his ruling:

“If the District Attorney was taken by surprise, as he evidently was, he not only had the right to ask the questions, but to introduce proof of these statements.”

It is a well-settled rule that one calling a witness is not absolutely bound Dy his testimony.

Here there was surprise, and there was in consequence no error in permitting the prosecuting officer, at any time during his examination, to ask witness if he had not stated the facts differently. A line of examination permissible only in case the witness, by his conduct or utterances, has grossly mislead the party by whom he was called.

The following authorities and text writers sustain the ruling: State vs. Simon, 37 An. 569; State vs. Clark, 38 An. 105; Whart. Cr. Ev., Secs. 482, 883, 484; 1 Green. Ev., Secs. 449, 462.

Confessions Affect Only the Party Making Them.

The defendants, in their fifth bill of exception, complain of the trial judge’s ruling permitting the prosecuting officer to prove that one of the accused, Clifton, had made a confession.

The grounds of complaint are, that the confession was not free and voluntary; that it was not made in the presence of the other accused; that it was some time after the alleged crime had been committed; that it was not a confession, but, on the contrary, a positive denial of guilt; and, lastly, that it was not admissible to prove an independent or extraneous fact.

The accused was under arrest when he chose to make statements regarding the crime charged, but he was not in any manner threatened, nor were promises of any kind made to him or the least influence exerted.

The mere fact that an accused is under arrest is not cause to exclude statements admitting his guilt.

The objections urged by the other accused that the alleged confession was made after the crime had been committed, presents greater difficulty. The purpose of the conspiracy having been accomplished, the statements then and there made were not admissible against co - defendants. When the common enterprise is at an end no confession was admissible against any but himself. State vs. Jackson, 29 An. 354; State vs. Buchanan, 25 An. 89; 2 Bishop C. P., par. 230; Wharton Crim. Ev., par. 699.

The record does not disclose that the trial judge instructed the jury that the declarations in question were not admissible against the other defendants.

Under instruction of the court to the jury that the evidence was admissible only against the accused, who had made the statements, the testimony was admissible.

Without that instruction and without limiting it at all, it was error to admit the confession against all the defendants. As a confession against Clifton, it was admissible.

“ As this testimony was not used against her, under the instructions of the District Judge, she can not complain. She urges that it had an effect on the jury. But we must presume that the jury followed the instructions of the court.” State vs. Harris & Nellum, 27 An. 572, 573.

Here no such instruction was given to the jury, and the case will have to be remanded for new trial as to Johnson and Milligan.

With regard to the confession of Clifton, the following is supported by a number of decisions:

“The defendant is entitled to have all he said on the one occasion, the exculpatory with the inculpatory statements produced before the jury; yet they may believe and act upon such part as to them seems true, and reject the rest.” Bishop on O. P., par. 1241.

Separate and subsequent assertions of innocence are not admissible i but exculpatory statements made in a confession may go to the jury with those statements proving guilt.

We do not think that the accused, Clifton, has any ground of complaint before this court. As a question of fact, the jury considered the exculpatory and inculpatory evidence, and found him guilty.

Having had the benefit of the former, he can not urge its admission as evidence of an error of the trial judge.

A Witness Who Does Not Remember — Question Propounded to Impeach.

The sixth and last bill of exception sets forth that the court erred in permitting the prosecuting officer to propound impeaching questions to one of defendant’s witnesses, without, the defendant urges, having previously laid a proper basis.

In answer to these questions, the witness stated that he did not remember having related certain facts mentioned to him to persons named by the prosecuting officer.

As the witness did not positively deny that he had made such statements, it is urged that he could not be impeached.

In an English case, Crowley vs. Page, Parke B. observed: Evidence is admissible to prove that the witness did say what is imputed (although he says he does not recollect), always supposing the statement to be relevant to the matter at issued. If such were not the rule, a witness who says he did not remember could never be contradicted.

Mr. Rapaljé, in his work on the Law of Witnesses, Par. 204, commends that ruling:

“It is true, the proof of the statement imputed to the witness, which he says he does not remember to have made, is not admissible as a contradictory statement, for until further inquiry be made, there is no apparent contradiction, but still it seems the evidence should be admitted, for the imputed statement, when proved, may be such as to amount to a direct contradiction of the witness, and may also possibly convince the jury that the witness did not speak the truth in saying he did not remember making the statement. If the rulewere otherwise, it might happen that under the pretence of not remembering, a witness who has made a false statement, and who knows it to be false, would escape contradiction and exposure.”

If the testimony was negative, or did not prove anything at all, as in case of State vs. Chevallier, 36 An. 81, and the question was propounded only to delay and embarrass the trial, it should not be permitted.

If, however, the witness does not recollect, proof of the statement should be admitted, when it is equivalent to a contradiction.

The motionffor a new trial sets forth no grounds not heretofore passed upon in deciding points brought up in the bills of exception. It is therefore overruled.

It is therefore ordered, adjudged and decreed that the verdict, sentence and judgment of the court a qua is affirmed in so far as relates to Ed. Clifton.

It is ordered and decreed that, in so far as relates to Butler Johnson and George Milligan, the verdict, sentence and judgment are annulled, avoided and reversed, and the case as to these, Butler Johnson and George Milligan, is remanded to the District Court for a new trial, in accordance with the views herein expressed.


author: McEnery, J.

text:
    No. 11,754.
    Dwyer Bros. vs. Administrators of the Tulane Educational Fund.
    Where there is an acknowledged inability on the part of the defendant to execute the contract, the putting of him in default is not necessary as a prerequisite to a suit for damages for a violation of the contract.
    Under a clainffor damages under Art. 1934, O. C„ the damage must be the natural and proximate result of the wrong. It must not be remote or consequential, but the natural consequence. Vague and indefinite results, remote and consequential, etc., and thus uncertain, are not embraced in the compensation given by damages.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Omer Villeré for Plaintiffs, Appellees:
    Cites 8 La. 519; 7 M. 218; 2 An. 589; 18 L. 510; 15 An. 247; 39 An. 589; O. N. 1146; 9 La. 174; 9 R. 377; 42 An. 230; 3 R. 357; 36 An. 425; O. O. 1933, 1926, 1930, 1934; 16 Laurent, 305, 314, 320; 4 Marcadé, Sec. 515; 1 Larombiére, 522; 10 Duranton, 447; 24 Demolombe, Secs. 530, 543, 545, 539; 4 Aubry and Rau. 95.

      Harry H. Hall for Defendants, Appellants:
    Cites O. O. 1933, 1911, 1912; Laurent, Vol. 16, p. 320; 6 N. S. 229; 2 R. 493; 10 R. 524; 6 R. 450; 9 R. 500; 8 R. 161; 2 R. 162; 7 La. 193; 18 La. 88; 8 La. 98; 14 La. 81; 11 An. 301; 13 La. 229; 1 La. 98; 5 La. 416; 36 An. 1126; 37 An. 661; 37 An. 492; 20 An. 291; 37 An. 835; 3 An. 285, 109; 6 An. 293, 491; 17 An. 240; 28 An. 778; 13 An. 564; 29 An. 287; 4 An. 243.
    Argued and submitted, April 23, 1895.
    Opinion handed down, May 6, 1895.
    Rehearing refused, June 29, 1895.
   The opinion of the court was delivered by

McEnery, J.

The plaintiffs, who are wholesale dealers in miscel - laneous articles of merchandise, conducted their business at No. 52 Canal, 71 Common street and 12 Magazine. These several places were connected and open, affording a continuous floor space.

The plaintiffs are, as the record shows, enterprising merchants, whose business increased with almost unprecedented rapidity. They needed more room and better accommodations to meet the increase of their business. They, therefore, entered into a contract with the defendant corporation on the 12th of March, 1892, to build for them at Nos. 10 and 12 Magazine street a four-story building, which was to be finished and ready for the occupancy of plaintiffs’ business on the first of October, 1892, and to rent the same to plaintiff, who were to pay them seven thousand two hundred dollars for the first year, and eight thousand dollars for the fifth and last year of the lease; the rent increasing two hundred dollars each year. The building was not completed at the time agreed upon, and the plaintiffs occupied it only in January. No. 12 Magazine was the property of the defendant corporation. Plaintiff vacated it for the purpose of its being torn down, preparatory to the building of the structure agreed upon between the parties. The plaintiffs still continued to occupy 52 Canal and 71 Common, and they also obtained from the defendant corporation, free of rent, the use and occupancy of part of No. 23 Magazine, using about three-fourths of the building.

In anticipation of occupying the building, and a large increase of sales, the plaintiffs ordered more goods than they had usually purchased when occupying their former places of business. For imported goods the orders were placed as early as March, and for domestic goods, in June and July, the delivery of the goods being so arranged as to arrive about the time plaintiffs did their largest and most profitable business, in the fall of the year.

Foreign and domestic orders, to certain extents, were countermanded when plaintiffs ascertained that they could not get possession of the new building on the 1st October.

By reason of the failure of the defendant corporation to deliver to the plaintiffs the new building, they brought this suit for damages against the defendant corporation for the sum of thirteen thousand nine hundred and seventy-nine dollars and eighty-eight cents, the items composing this amount being for gas bills, extra labor, meals, etc., extra night work by the plaintiffs, A. J. and W. H. Dwyer, and loss of profits.

The plaintiffs were met, at the inception of the suit, by an exception that the suit was one for a passive violation of a contract, and that as a condition precedent, and a prerequisite to the institution of such suit, there must have been a legal putting in default by a special demand for compliance, which the acceptors averred had not been done.

The exception was overruled. Reserving the same, defendants answered with a general denial, and specially averred that they were prevented by causes over which they had no control from completing the building by the specified time; that to prevent injury to plaintiffs by the unavoidable delay in delivering the new buildings to them, the defendants authorized the plaintiffs to renew the lease they had held on 52 Oanal and 71 Oommon streets, for the months they occupied said buildings, and assumed the entire lease after January 1, 1895, and paid to plaintiffs the excess of the lease over that which they had been paying for said premises, and that they gave them 23 Magazine street free from rent, and in thus accommodating them they were provided with better facilities than they ever had for handling and displaying goods, and that, therefore, they suffered no injury by the delay in the delivery of the building. And they also specially deny any legal obligation to pay for anticipated profits from the 1st October, 1892, to 1st January, 1893.

There was judgment for the plaintiffs in the sum of five thousand five hundred and forty-three dollars and thirty cents, with legal interest from December 12, 1893.

The defendant corporation appealed.

Defendants’ answer and the testimony in the record shows that they acknowledged their inability to complete the building by the 1st October, 1892. A putting in default under such circumstances would be a vain, an idle and a useless ceremony. Non-performance by the defendants of their contract justifies the suit against them. Allen, West & Bush vs. Steers, 39 An. 587.

There was no fortuitous or irresistible force which prevented the defendants from completing the building; they are, therefore, liable for damages for the inexecution of the contract. O. O. 1933. The testimony shows, however, that the defendants acted in good faith, and not for self-interest, and were guilty of no fraud. They are, therefore, liable only for such damages as were contemplated or may be reasonably supposed to have entered into the contemplation of the parties at the time of the contract. O. O. 1934, Sec. 1.

The general rule is that damages are. the amount of the loss the creditor has sustained, or of the gain of which he has been deprived. Id., Sec. 2.

The loss which the creditor has suffered, and the gain of which he has been deprived, must be the natural and proximate cause of the wrong. 2 Greenleaf, par. 256; Sedgwick Damages, 362. It has been otherwise expressed as the direct, necessary, or legal and natural consequence. It must not be remote or consequential, but the natural consequence. Every man is expected to foresee the usual and natural consequences of his acts, and for them he is to be held responsible and accountable, but not for consequences that could not be foreseen. Pothier Obligations, Damages; Doriocourt vs. Lacroix, 29 An. 287; Massie vs. Baily, 33 An. 485; Vidalat vs. New Orleans, 43 An. 1121; 17 Pic. 78; 3 Texas, 324; 13 Ala. N. S. 490; 28 Me. 361; 2 Wis. 427; 1 Sneed, 518; 4 Blackf. 277; United States vs. Behan, 110 U. S., 338.

The damage must be the proximate consequence. Vague and indefinite results, remote and consequential, and thus uncertain, are not embraced in the compensation given by damages. It can not be ■certainly known that they are attributable to the wrong, or whether they are not connected with other causes. Id.; 4 Jones N. C. 163.

In Schleider vs. Dielman, 44 An. 471, referring to Art. 1934, C. C.’ this court said: “In this connection, the question to be determined is, whether the unearned profits of a transaction properly enter into a calculation of the loss which the creditor has sustained, and the profit of which he has been deprived, in the sense of that article.

The decisions based on that article have invariably placed a strict interpretation on its provisions, the court generally awarding only such damages as will fully indemnify the creditor, and disallowing speculative profits, confining them to the immediate and direct consequences of the breach of contract.

In the case under consideration, the contract had no reference to any article of merchandise which was to be delivered on a certain day, nor had it any relation to the character or the amount of business, the number of employees, or the hours of labor to be performed by theni. All these matters were not incidents of the contracts, and necessarily, for a breach of it, could not have been within the contemplation of the parties. It was not one of those contracts alluded to in the United States vs. Behan, 110 U. S. 338, where the damages would be the profits realized by performing the whole contract. The only damage the plaintiffs would be entitled to here is the amount they necessarily expended by reason of the failure of defendant to deliver the building to them on the 1st of October, 1892.

The claim for damage is generally based on the assertion that if the plaintiffs had occupied the building at the time agreed upon they would not have suffered any loss; that is, they would have had no gas bill to pay, no extra labor to employ, no extra meals to serve, and that they would have had in stock merchandise to fill orders which they were compelled to decline for want of the necessary material on hand. All these items of damage are so uncertain, resting upon so many contingencies attending a large commercial business, that they can not be solely attributed to the violation of the contract, and may in part, at least, find their source in other causes. There is too much of an element of uncertainty about them. Eor instance, the plaintiffs used gas before they made the contract, and the amount depended upon the rush of business and the necessity of night work, and the condition of the weather. That they used less gas in the new building they now occupy is certain. In the future, if plaintiffs’ business meets with the phenominal increase-which has attended it, the gas bills may largely exceed those they paid in October to January 1, 1892, in their former place of business. We are not informed as to the amount of difference. And the same may be said of extra labor. They employed it before the contract was entered into. The necessities of their business demanded it, and also the service of extra meals to their employees. It is certain that the defendants are not responsible for the gratuity, the Christmas-present of nine hundred dollars to plaintiffs’ employees. Nor are they responsible for the individual labor of the employees in their business, although performed at night, and, as they say, would have been unnecessary in the new building. The motor placed in the elevator of the buildings formerly occupied by plaintiffs can form no item for damage, as it’was, we think, a matter of personal convenience to themselves, and to facilitate access to upper floors.

The loss of profits is narrowed down to the gain which would have been made by plaintiffs in the sale of twenty-three thousand eight hundred and one dollars and fifteen cents of goods which they did not have in stock, the profit on which, had they been sold, would have been three thousand, one hundred and sixty-three dollars and sixty-five cents. These goods had been ordered, and countermanded when it became evident that the new building would not be ready on 1st October. It is admitted orders to the above amount were received, and not filled because the goods were not on hand. This was a matter for the business discretion of plaintiffs, resting in their discretion and judgment. Had they seen fit to do so, they could have continued the order and stored the goods at the expense of defendants. It is sufficient to say that they did not sell the goods, for the reason they did not have them in stock. All the items of damage above referred to were not, and could not have been, in the contemplation of the parties when the contract was entered into, and they are not the immediate and proximate consequence of the violation of the contract.

We find only one item to which the plaintiffs are entitled to damage. It was evident in the contemplation of the plaintiffs to have more room for the transaction of their business, and this the defendants agreed to furnish. Goods were ordered in anticipation of the additional room the plaintiffs expected to have at their disposal. When they reached here they did not have the room to accommo - date them and rented a warehouse in which to store them, for which they paid seventy-four dollars and fifty cents.

It is therefore ordered, adjudged and decreed that the judgment appealed from be avoided so as to reduce the judgment against defendants to seventy-four dollars and thirty cents, the appellees to pay costs of appeal.


text:
    No. 11,648.
    William G. Vincent vs. Mrs. Camilla M. Phillips.
    The appellant's claim is for more than $2000.
    He, in addition, pleads for the nullity of the sale of valuable property of the succession. The probability that in the settlement of the succession the appellant's proportion of the assets will be less than the minimum jurisdictional amount of this court is not cause for dismissal of the appeal.
    The value of the property, the sale of which the appellant seeks to annul, is the test of jurisdiction. Katz &Barnettvs. Grill, 43 An. 1041.
    A tutrix administering a succession, without opposion, has authority to stand in judgment in a suit to dissolve a sale by the resolutory condition. Bryan vs Atchison, 2 An. 462.
    It devolves upon the creditors to protect their rights by intervening in the suit, and they have no cause of complaint of the tutrix, defendant, for not notifying them. Tertrou vs. Comeau, 28 An. 633.
    Under the terms, of the contract, by the failure to pay one of the instalments the other instalments not matured became due and exigible. The action was, therefore, not premature.
    The exercise of the resolutory condition retroacts and places matters as if the sale had never existed. The plaintiff, vendor of the property, is entitled to the revenue made by the defendant debtor during the time the latter owned the plantation.
    The creditor, on the other hand, must return the amounts of purchase price received, with interest.
    The crop of 1894 was received by the plaintiff, creditor. Its value can not be charged to the debtor, it having been received in kind by the creditor. To that extent the judgment appealed from is amended.
    Under the prayer for general relief the date from which interest begins to run may be considered as alleged.
    The judgment of the District Court fixed the value of the improvements made by the vendee on the place, as shown by the testimony.
    A PPEAL from the Fourteenth Judicial District Court for the Parish of Pointe Coupée. Talbot, J.

      William W. Leake and Branch K. Miller for Plaintiff, Appellee.

      Dinkelspiel & Hart and Yoist & Claiborne for Metropolitan Savings and Pledge Bank, Appellant.
    Argued and submitted on briefs.
    Opinion handed down, June 3, 1895.
    Rehearing refused, June 29, 1895.
    On Motion to Dismiss the Appeal.
   The opinion of the court was deliverd by

Breaux, J.

This case was remanded in order to ascertain whether or not the succession was insolvent and the appellant had an appeal-able interest. Ante p. 1216.

It was proved that the succession is insolvent, and that the appellant is a creditor in an amount within the jurisdiction of this court.

Before this court the appellee, William G. Vincent, urges that the appeal should be dismissed for the reason that the appealable interest of the Metropolitan Bank, appellant, is below the minimum jurisdictional amount of this court.

Taking the inventory of the assets of the succession as a basis of total active, and deducting from that total the amount of the acknowledged debts of the succession (including appellant’s), the appellee argues that the amount to be paid plaintiffs, in any contingency, will be considerably less than two thousand dollars, although his claim is for a larger amount.

The amount of appellant’s claim being within this court’s jurisdiction, we think that the inventory is not conclusive evidence of the value of the property, and that the debts may be considerably reduced in course of the settlement of the succession. The jurisdiction is determined by the amount of the claim and not by the amount not yet determined, for distribution. Morever, the court has jurisdiction of appellant’s demand to annul the sale, presenting issues entirely within the jurisdietion'ot this court.

The property was appraised for forty-five thousand dollars.

The nullity sued for for, if decreed, will be in tbe interest of the creditors. Katz & Barnett vs. Gill, 43 An. 1041.

On the Merits.

The Metropolitan Bank, not originally a party to the suit below, has taken this appeal as a creditor of the late Marshall P. Phillips, averring that it is aggrieved by the judgment herein in favor of the plaintiff.

The appellant assigns for error—

First — That the widow, who had qualified as tutrix of her minor children, is without capacity to stand in judgment without notice to the creditors or opportunity to be heard.

Second — That the defendant did not defend the suit in the District Court.

Third — That the succession being insolvent, an administrator should have been appointed.

Fourth — That there was no evidence establishing that plaintiff had remained in possession of the notes executed by the vendee.

Fifth — That the action was premature, the extention of time not having expired.

Sixth — That plaintiff was not entitled to the revenue, nor to the rents.

Seventh — That he was not entitled to the revenues for the year 1894, nor to the crop of that year, which was on the premises at the time the judgment was rendered.

Eighth — That the plaintiff was not entitled to interest or rents or revenues, and the judgment was ultra petitem.

Ninth — That the succession is not given proper credit for improvements.

Tenth — That no tender was made.

The first ground assigned, that the widow as tutrix administering her husband’s succession was without capacity to stand in judgment, is not sustained by the authorities.

In Bryan vs. Atchison, 2 An. 462, a well-considered case, the defense was that a tutrix can not stand in judgment in an action for the sale of property of the minors, and that a sale, under a judgment obtained in such a case, will not be binding on the heirs or creditors.

The defence in that case failed, and the court held that a tutor may, as such, administer the succession.

Regarding the alleged want of notice by the tutrix to the creditors of a pending suit, made part of' defendant’s first assignment of errors:

The plaintiff creditor and Che defendant tutrix were not in duty bound to notify the creditors of the succession of a suit for the resolution of the sale. It devolved upon the latter to intervene and protect their claims. It has been decided that a judgment decreeing the sale of succession property to pay debts is valid, although not preceded by notice to the creditors. There is no rule of law under which an exception should be 'made and the legal representative of the succession (or the creditor suing) required to notify the creditors of a suit for a resolution of the sale.

The Metropolitan Bank, in general terms, complains that the defendant did not defend the suit, and that it was a consent decree.

There is a contestatio litis on the face of the papers. The estate was opened, an inventory was made, and the tutrix qualified some time prior to the suit. The action was brought, the original papers were served, and the usual delays intervened from the day of service to that of judgment.

The Metropolitan Bank had ample time, in its own defence, to urge the grounds it contends the defendants should have urged.

The assignment of errors also sets forth that the succession was insolvent, and that there was a consequent necessity for the appointment of the administrator.

The succession was insolvent.

But the creditors had it in their power to prevent the tutrix from administering as tutrix.

We do not wish to be understood as limiting the right which every creditor may have to insist upon the appointment of an administrator of an estate in cases where their interests require such an appointment. The creditor who does not object to the administration of the tutrix is not in a position to successfully complain of her acts of administration, on the ground that having applied for the administration she should have brought her administration as tutrix to a close. As she had not yet qualified, and as the creditor had not urged the least objection, it is too late on appeal to assail her acts on the ground that the mere application for administration was repugnant to her acts as tutrix administering the affairs of the succession.

It is also alleged in the assignment that the mortgage notes did not remain untransferred in plaintiff’s possession.

Under the pleadings, we do not'think it was incumbent on plaintiff to prove that he had not at any time transferred the notes, originally issued to him as payee.

The cited case, Bank vs. Cage et al., 40 An. 140, has no bearing upon the issues, for the reason that the transfer of the note was established, and the fact was manifest that it had been subsequently-transferred back to the original holder.

The issue was presented and the evidence admitted.

The onus does not rest on the vendor, who sues for a resolution of the sale, of proving that he never, at any time, parted with his notes, in the absence of any plea on the subject on the part of the defendant.

The alleged prematurity of the suit is not supported by the facts. The debt was due to plaintiff when the suit was brought.

We think that the notes had matured on their face. Moreover, the plainiiff stipulated in the deed giving an extension, that if the debtor defaulted in making any payment, the whole debt would mature.

The Metropolitan Bank urges as one of its grounds, that the plaintiff was not entitled to the revenues made by the defendant during the time he owned the plantation.

The resolutory condition operates a revocation of the obligation, -It even retroacts and places matters as if the sale had never existed; in prseteritum tempus ex tune. All things must be- replaced in the same state as if the obligation had never existed. The creditor must return the property and the fruits.

“ The effect of the resolutory condition is retroactive and puts the parties in the same position of having never contracted.” O. O. 2045. The consequence of which is that the acquirer of property under that condition, will, on resolution, owe its fruits from the day of the contract, and the other party the principal and the interests of the sums received. Mechanic’s Society, 31 An. 635; Detepus vs. Shallus, 15 La. 372.

The bank urges that in no event the plaintiff is entitled to the revenue for the year 1894. There is force in this objection. The plaintiff, under the judgment resolving the sale, became the owner in July, 1894. The evidence taken in that month showed the net revenue that would be made on the crop at the end of the year. At the end of the year it was the property of plaintiff. The defendant and the late debtor of the plaintiff did not receive any part of the proceeds. They can not be charged with that which they have not received. The sum of five thousand dollars, allowed in the judgment for the crop of 1894, must, therefore, be deducted from plaintiff’s total credit under the terms of the judgment.

The bank assigns, as another error, that the judgment allowing interest is ultra petitem, and that plaintiff is not entitled to interest on the revenue. With reference to the interest claimed in the supplemental petition, which we think was at issue, plaintiff claims legal interest without alleging a date.

Under the prayer for general relief the • date may, in effect, be considered alleged. Leverich vs. Walden, 1 Rob. 469. Moreover, if the interest be due on the claim it is a legal consequence of the claim for the amount of the fruits. D’Aquin vs. Coiron, 8 N. S. 622.

The case upon this point may be sui generis. It does none the less seem fair and equitable that, as the plaintiff must pay interest on the sums for which he must account, the defendant should also pay interest on the sums for which she must acount.

Regarding the Interests on the Fruits.

The plaintiff having been held to account for legal interest on the price collected, the District Court held the defendant bound for interest on the amounts received for crops.

It is an equivalent in principle, needful to place matters, between vendor and vendee, as if the sale had never existed.

When the interest is a legal consequence of the debt or obligation, without any stipulation, as demand for the principal is a demand of both principal and interest, the one necessarily follows the others.” Duke of Richmond vs. Milne’s Executor, 17 La. 331.

The assignment of error that the succession is not given proper credit for improvements is not sustained by the facts.

The amount proved by the evidence was allowed in the judgment. The District Judge who heard the witnesses thought the estimate placed on the value of the property correct. After reading and conr sidering the testimony on that point, we conceive of no reason to amend the judgment in so far as relates to credit for improvements.

And, lastly, the appellant bank urges that no tender was made. Tender was not an issue in the court below. We do not think it proper to decide that the plaintiff did not offer to return the price and interest; an omission not established by evidence in the lower court. The cases cited are cases in which tender was required by an issue of some sort.

A third person on appeal is without right to have a judgment annulled, for want of tender, on no issue of tender previously raised. Moreover a real tender is unnecessary when the offer to pay is refused.

Defendant’s pleas in her answer were, at least, equivalent to a refusal to accept any tender. She not only did not plead want of tender, but tendered a defence entirely inconsistent with any willingness on her part to accept any amount if tendered.

It is therefore ordered, adjudged and decreed that the judgment appealed from be amended by deducting five thousand dollars from the amount heretofore allowed to the plaintiff, leaving him indebted to the succession of Marshall P. Phillips in the sum of five thousand and fifty-six dollars, instead of fifty-six dollars, as heretofore decreed by the Distrist Oourt (also whatever interest may have been charged on the said five thousand dollars in the judgment appealed from). In all other respects the judgment is affirmed.

The plaintiff and appellee to pay to the Metropolitan Bank its costs in both courts.


author: Nicholls, C. J.

text:
    No. 11,791.
    The State of Louisiana ex rel. Town of Mansfield vs. Police Jury of De Soto Parish.

      It was not in contemplation of the framers of the Constitution in declaring in Art. 202 of that instrument, that the taxing power may be exercised by the General Assembly for State purposes, and by parishes and municipal corporations, under authority granted to them by the General Assembly for parish and municipal purposes, that the General Assembly should authorize or direct the parochial authorities to exercise their taxing power for municipal purposes; on the contrary, it was intended that the taxing power of the State, that of the parishes and that of the municipal corporations, should be kept separate and distinct.
    An act of the General Assembly directing parish authorities to turn over to the towns situated within' their borders a portion of the licenses levied, and imposed by them for parish purposes, is unconstitutional.
    APPEAL from the Ninth Judicial District Oourt for the Parish of De Soto. Hall, J.

      Elam & Elam for the Relators, Appellants:
    The title of Act No. 165 of 1894, in all respects covers the body of the act, and neither the title nor the body of the act embrace more than one general object, viz.: that of “ giving to incorporated cities and towns the right to demand and receive from the police juries of their respective parishes the licenses collected annually by the parishes from said cities and towns, less the criminal, public school and other expenses paid out on account of said cities and towns, the taxes paid on property in said cities and towns to be first exhausted in paying the enumerated expenses.” New Orleans Taxpayers Association et al. vs City of New Orleans, 35 An. 570; 33 An. 782; 35 An. 1141; 38 An. 620.
    Article 56 of the Constitution of 1879 does not contain any prohibition to the effect that the funds, credit or property of the State shall not be loaned, pledged or granted to any political corporation. In fact the article itself clearly intends to make the distinction between a political and a public corporation.
    “ The taxing power may be exercised by the General Assembly for State purposes, and by the parishes and municipal corporations under authority granted to them by the General Assembly for parish and municipal purposes.” Art. 202, Const. 1879.
    Act No. 165 of 1894 does not levy any'tax, but is merely the appropriation of a tax already levied and collected.
    “The control, administration and disposition of the funds of the State, and the appropriation thereof to the payment of debts, are powers appertaining exclusively to the legislative department.” 42 An. 927.
    If the court should hold that Act 165 levies any tax, then such a tax is levied for a public purpose,^and as such is within the scope of legislative authority.
    “ Under the Constitution of some of the States the Legislature can not impose a tax for corporate purposes, having power only under proper enabling acts, to submit the matter to local officers, or to the people of the municipality, where the purpose is not one constituting a municipal obligation to the general government.” Am. and Eng. Ency., Vol. 25, p. 81; Will County vst People, 110 111. 511; Ibid, 82; Steve vs. Hennepin Co., 33 Minn. 355; Ibid, 82.
    Primarily the Legislature determines what is a public use, “ and when it has declared what may be so regarded, courts will no^ interfere, except in clear cases of abuse or usurpation of authority. What is for the public good, and what are public purposes are for the Legislature to say, and it has a large discretion in determining these questions which will pot be controlled by the courts, unless under the exceptions above noted and such like.” 38 An. 292; 26 An. 661; Cooley Const. Lim. 608, 609; State vs. Shakespeare (41 An.); Cooley Const. Lim. 195; 19 Wis. 624; 88 Amer. Dec. 711; 50 Pa. St. 150; 210. St. 14; 8 Am. Rep. 24; 41 Cal. 173; 22 Mo. 384; 28 Ark. 317; 5 Abb. (N. Y.) Oas. 489; 13 N. Y. 149; 85 Pa. St. 170; 27 Am. Dec. 733; 65 Pa. St. 456; 52 Pa. St. 432; 3 Paige (N.Y.), 73; 22 Am. Dec. 679, Am. and Eng. Ency., Yol. 25, p. 90; 32 Conn. 128; 21-Pa. St. 174; 59 Am. Dec. 759; 25 Pa. St. 128; 65 Pa. St. 146; 3 Am. Rep. 615; 9 B. Mon. (Ky.) 344; 20 Wall. (U. S.) 665; 33 Mich. 164; 50 Vt. 178; 46 N. H. 415; 38 An. 292; 57 Tex. 635; 45 Tex. 299; 63 Barb. (N. Y.) 437; 18 N. J. Eq. 519; 90 Am. Dec. 634; 64 N. Y. 91; 21 Am. Rep. 586; 62 111. 628; 14 Am. Rep. 99; 8 Bush. (Ky.) 508; 8 Am. Dec. 480; 24 Wend. (N. Y.) 65.

      Farrar, Jonas & Kruttschnitt, John O. Ryan, John Dymond, Jr., Robert Montgomery, O. F. Garland, T. O. Armstrong, 8. T. Bird and W. H. McLendon as amici curise, on same side:
    It is an elementary principle of law that a governmental body should not exercise the power of taxation to an extent notoriously in excess of its needs.
    Each governmental subdivision should bear its proportion of the general governmental expense.
    Act 165 of 1894 does not conflict with Art. 29 of the Constitution. It embraces but one object, to-wit: That the parishes shall not collect from the municipalities, in future, funds in excess of the parish governmental expenses contracted on account of the municipalities, and to this end to require the parishes to return to the incorporated towns any surplus of licenses collected by the parishes- from within the towns, after the .governmental ex - penses of the parish, contracted on account of the town, have been first paid out of the revenues collected by the parishes from within the towns. 32 An. 779; 34 An. 556; 39 An. 455; 46 An. 1031; Cooley’s Constitutional Limitations, 143.

      Courts will look to the journals of a convention to ascertain the sense in which which a word was used by the convention in constitutional provision. 5 Sneed, 482; 43 An. 959; Sutherland’s Satutory Construction, Sec. 300.
    Where the word municipal appears in an ordinance then under consideration by a constitutional convention and the word is subsequently omitted from that part of the constitutional article as finally adopted, the courts will hold that it was the intention of the convention to exclude it from the legislation about to be enforced. 43 An. 961.
    Public, as the word appears in Art. 56 of the Constitution, means of a public character. The context of the article shows that the convention considered the municipalites and parishes political corporations.
    Act 165 of 1894 does not conflict with Art. 56 in the inhibition under consideration as to the granting of public funds, because that provision does not affect, as grantees, such political corporations as municipalities. Fisher vs. Auditor, 39 An. 452.
    Courts will not hold laws unconstitutional and declare the acts of the Legislature void where any doubts exist. The opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of the incompatibility with each other. Nor will a constitutional prohibition be extended or enlarged by construction. 39 An. 452; 6 Oranch, 128; 45 An. 935.
    Great respect is entertained by the courts for legislative conclusions, Cooley’s Constitutional Limitations, 4 Ed., 199.
    The funds which the municipalities are to receive under the provisions of Act 165 of 1894 are virtually the town’s own funds, being collected from within its limits, in excess of the parish needs, and, being the town’s own funds, are not affected by Art. 56. Planting Company vs. Tax Collector, 39 An. 459; 45 An. 1235.
    The revenues of parishes and municipalities, whether taxes or licenses, are subject to legislative control. Tiedeman’s Municipal Corporations, Chap. 2, Sec. 12.
    In all matters, not prohibited by the Constitution, the General Assembly is supreme. 46 An. 844.
    Act 165 of 1894 does not conflict with Art. 202 of the Constitution, because it does not require parishes to levy taxes for anything but parish purposes. It requires that the parishes shall not levy licenses which, with the taxes, shall be in excess of the needs of the parishes arising from or on account of the towns. The parish keeps whatever excess of taxes there may be.
    Nor does the act conflict with Art. 204 of the Oonstitution, for the funds, whether they may be used and expended by the parishes or municipalities, are used and expended for governmental purposes. Both of these political subdivisions are component parts of the State, exercising powers delegated to them by the State.
    It is respectfully submitted that the controlling idea pervading Act 165 of 1894 should prevail when the test of Art. 202 of our Constitution is applied to it, and, for the reasons we have given, the act should be declared constitutional.
    Where there are no vested rights or bonded indebtedness involved, parish revenues arising out of the exercise of the taxing power under the granted authority of the General Assembly are subject to legislative control. This control of the alimony is specially recognized in Art. 202 of the Oonstitution, and is in accord with our American system of government. 42 An. 98; Tiedeman’s Municipal Corporations, Chap. 1, Sec. 12; Dillon’s Municipal Corporations, Chap. 1, Sec. 88, et seq.

      J. JP. Pierson and Lee & IAverman for Appellees:
    Public corporations have the right to plead the invalidity and unconstitutionality of legislative enactment divesting their alimony, and to have their contention determined by the courts. 42 An. 92.
    Legislative control over a parish is not so absolute that it may not be controlled and restrained by organic law. Legislative limitations imposed by constitutional provision can not be overleaped. Ibid.

    Parishes, cities are civil divisions coeval with the State, permanent elements of its frame of government, durable and indestructible, except by organic provision, and though in a great degree subject to legislative control, the State is but the aggregate of these bodies. 15 N. Y. 561.
    The city of New Orleans is a municipal corporation with inherent powers of existence for purposes of its creation, and can not be blotted out of life nor rights of its citizens diverted. 42 An. 100.
    Parishes or civil divisions of the State are the American system of complete decentralization in the vital idea that local affairs shal be managed by local authority, and general affairs only by central power. Cooley’s Const. Lim., 4 Ed. (1878), 228, 229.
    They possess two classes of powers and rights — public and private. In the one it is the State’s agent and subject to its control; in the other, it is the agent for the local inhabitants with the character of individuals, and not subject to absolute legislative control in its right to acquire and dispose of its property, sue and be sued, like private corporations or persons not sui juris, as minors and married women. It may own property which is not under legislative control while the parish exists. N. O., M. & O. R. R. vs. City of New Orleans, 26 An. 478.
    As to their civil, political or governmental powers in their character as governmental agencies, legislative control of parishes is supreme, except as limited by constitutional provision, but in their proprietary or private character they'are a distinct legal personality in their property and contract rights and regard quo ad hoc a private corporation. Dillon Mun. Corp., Sec. 39, p. 151, Ed. 1873. Admitting complete legislative control over parishes (except as limited by constitution), yet some limits exist as to this; some are expressly defined, others spring from usage, customs and maxims of our people, which are part of the State’s history, in view of the perpetuity of which all constitutions are framed, and of which people’s right thereto can not be deprived except by express renunciation. Oooley Const. Lim. 281, Ed. 1878.
    Local community has the right to fix their local burdens as to which legislative control must be limited to control only their civil, political and governmental powers. Cooley Const. Lim., 282.
    The four rules drawn from all the conflicting adjudications in different States on this subject, stated Ibid, 283, ef seq. See Dartmouth College vs. Woodward, 4 Wheat. 694; 26 An. 478.
    Under third rule no legislative power exists to compel contracts for local purposes, or to assume obligations, outside their governmental functions. These must be left to local discretion to determine in local interest. Legislature may authorize but can not compel action as to such local matters. Cooley Const. Lim., 284, 285, Note 1, p. 285.
    Act No. 165 of 1894 is invalid and unconstitutional on the grounds, and for reasons:
    It infringes Art. 29, Const. 1879, in that it embraces more than one object, and embraces objects not stated in its title. 38 An. 626 ; 33 An. 63; 21 An. 480; 5 An. 93; 25 An. 598; 13 An. 434.
    It infringes the taxing powers of the parishes conferred by Art. 202, “ for parish purposes,” by diverting such taxes to other persons and uses, in derogation of the parish’s power to tax “ for parish purposes.”
    It infringes organic prerogatives of the parishes by conversion of their alimony, and bestows it upon cities and towns not in aid of any declared public purpose or use. It imposes obligations upon parishes without consideration in relation to matters not within legislative control, but which belong exclusively to the local powers and authorities. Oole vs. LaGrange, 113 U. S. 6.
    Legislative enactment can not assume judicial function nor exercise judicial powers by determining the rights of parties. State ex rel. McCurdy vs. Tappan, 29 Wis. 664, and authorities there discussed. 9 Am. Rep. 622.

      “ It certainly must be admitted that by the principles of every free government, and by our Oonstitution in particular, it is not in the power of the Legislature to create a debt from one person to another, or from one corporation to another, without the consent, express or implied, of the party to be charged.” Oounty of Hampshire vs. Oounty of Franklin, 16 Mass. 76; Atkins vs. Town of Randolph, 31 Vt. 226; Taylor vs. Porter, 4 Hill, 143; State vs. Tappan, 9 Am. Rep. 622 (29 Wis. 664).
    It contravenes the prohibitions in Art. 56 of the Oonstitutton, in that the act aims to “ grant ” the “ funds ” of a political corporation — the parish — toa “public corporation” — the city or town — in violation of the constitutional prohibition. It is in violation also of the prohibition: “nor shall the State undertake to carry on the business of any such corporation,” in Art. 56.
    In parishes with cities and towns reaping the benefit flowing from the act, the uniformity and ratable equality of the taxing powers of the parish over its citizens are destroyed by lessening the burdens of parish taxation on such urban citizens whilst increasing those burdens on all other citizens.

      Argued and submitted, May 9, 1895.
    Opinion handed down, June 3, 1895.
    Rehearing refused, June 29, 1895.
    By Act No. 165 of 1894 of the General Assembly of Louisiana it is made the duty of the police jury, on the demand of the mayor, or any other person authorized by the council of any incorporated city or town in this State, made to the police juries of their respective parishes, at its first meeting of each year, to advise its collector and treasurer of such demand, and instruct them that all the taxes, licenses and other moneys collected by the parish on all properties, business, trades, professions and occupations, situated or carried on within said city or town, shall be kept separate from all other funds, and not paid out except as provided in said act.
    Section 4 of said act provides that the clerk of the District Court and the sheriff of the parish shall keep a record of the criminal expenses occurring through their respective offices, on account of said city or town so applying to the police jury as aforesaid.
    • That according to the provisions of said act the magistrates and constables in the city or town so applying to the police jury of their parish are required to keep a separate account of the criminal ex-penses occurring through their respective offices on account of said city or town, and that the clerk of the police jury is also required to keep a separate account of the amounts paid out by the police jury, and also a pro rata of expenses of the city or town for building, maintaining and repairing the jail and court house belonging to the parish, which pro rata is to be fixed by the police jury.
    That in obediance to said act, and with the intention of availing themselves of its provisions in their favor, the relators demanded, through O. O. Egan, a member of the town council of Mansfield, of the police jury of De Soto, at their first meeting on January V, 1895, that the several officers specified in said act should be required to keep a separate account of the licenses, taxes and other moneys collected by the parish, on all properties, business, trades, occupations and professions, situated or carried on in the town of Mansfield during the year 1895, and also to keep a record of the several expenses of said town, as provided in said act, but that the said police jury refused to comply with this demand. That by the provision of said act, after paying the criminal and other expenses enumerated therein, which are occasioned by the town of Mansfield, out of the taxes collected on said town, and paying the balance, if any, out of the licenses on said town, (hat they are entitled to the remainder of said licenses. That the amount which the town of Mansfield would receive from the licenses thus given them by said act would be-twelve hundred dollars.
    They ask for a mandamus, directing and commanding said police-jury to comply with the provisions of said Act No. 165, and directing them to require the collector and treasurer and other officers therein named, to keep a separate record of the taxes, licenses and other moneys collected in said town, and a record of the expenses of said town as is therein specified.
    The police jury, for answer, averred that Act No. 165 of 1894 could not be enforced for the reason (1) that the title to the act embraces more than one object; (2) because said act is in direct conflict with the Constitution of the State, as set forth in Arts. 56, 202 and 204 of said Constitution.
    The District Court was of the opinion that the act in'question was not violative of either Arts. 29 or 56 of the Constitution, but that it was contrary to the provisions of Art. 202. So holding, the prayer for the mandamus was refused, and judgment was rendered, setting aside the alternative writ, and discharging the defendants.
    Relators appealed.
   The opinion of the court was delivered by

Nicholls, C. J.

The act, the enforcement of which is asked in this proceeding, is entitled: “An act giving the right to incorporated cities or towns of the State, to demand from the police juries of their respective parishes, the licenses collected annually by the parishes from the cities and towns on all business, trades, professions and occupations carried on within said cities and towns, less the criminal expenses and the school expenses, and all other expenses paid out by the parishes, on account of said cities or towns, and providing that the taxes collected by the parishes on the properties situated in the cities and towns be first exhausted in paying these expenses, and providing how these expenses are to be ascertained.”

By the first section, it is enacted that the incorporated cities and towns of the State, through their mayor or any other person authorized by their council, shall have the right to demand and have paid over to them, by the police juries of their respective parishes, all the licenses collected annually by the parishes on all businesses, trades, professions and occupations carried on within said cities or towns, less the criminal and public school expenses, and all other expenses paid out by the parishes on account of the cities and towns.

The second section provides that each city or town taking advantage of the act shall be required to defray all expenses occurring from and growing out of the prosecution of crimes, offences and misdemeanors committed within its corporate limits, also all expenses for running, conducting and maintaining the public schools in its corporate limits, and all other expenses paid out by the parish on account of the cities or towns.

The third section provides that the city or town wishing to take advantage of the act, shall apply through its mayor, or any person authorized by its council for that purpose, to the police jury of the parish, at its first meeting of each year, and the police jury shall grant the demand, and shall, at that meeting, advise its collector and treasurer of the demand; instruct them that all taxes, licenses and other moneys collected by the parish on all properties, businesses, trades, professions, occupations, situated or carried on within said cities or towns, shall be kept separate from all other funds, and not paid out, except as provided in the act.

The fourth section provides: “That the clerk of the District Court of the parish shall keep a record of the expenses occurring through his office to the parish on account of the city or town', and the sheriff of the parish shall keep a record of such expenses occurring through his office. The. president of the school board shall keep a record of the expenses for running, conducting and maintaining the public schools of the city or town.

The fifth section makes it the duty of the collector of the parish to present to the police jury, at its second meeting of the succeeding •year, a statement, certified to by the treasurer, of the amount of taxes, licenses and other moneys collected by him on all properties, business, trades, professions and occupations, situated or carried on within the limits of the city or town for the preceeding year, and the police jury shall order a warrant drawn on the treasurer of the parish in favor of the mayor of the city or town for the amount of the licenses collected by the parish as aforesaid, less the collector’s and treasurer’s percentage on same, which shall be the same as that of the State and parish, and less the amounts of criminal and public school expenses, and all other expenses paid out by the parish on account of said city or town for that year. It directs that the criminal expenses shall be based upon the statement of the clerk of the court, and of the sheriff, made in writing under oath, and that the public school expenses be based upon a statement made in writing under oath by the president of the school board of the parish. The section contains a proviso that all expenses of whatever nature paid out by the parish on account of the city or town taking advantage of this act shall be paid out of the taxes collected on properties situated in said city or town,, and if these amounts be not sufficient, then the license fund collected from city or town, or a sufficient amount thereof, is to be taken to make up the deficiency, and the balance of the licenses is to be paid over to the city or town, provided that any surplus remaining from the taxes, and other moneys other than licenses collected by the parish from the cities or towns shall be used by the parish as they deem proper.

The sixth section provides, that under the head of criminal expenses, under the act, shall be included the fees and charges of the magistrates and constables and other expenses growing out of and attending the prosecution before magistrates of crimes, offenses and misdemeanors, committed within the corporate limits of said city or town, and makes it the duty of the magistrates and constables to keep a separate account of the amounts paid out by the police jury for such services, and on account of all other expenses not before provided for, which should be paid out by the parish on account of the city or town. It also provides that under the head of criminal expenses, shall be included a pro rata of expenses of the cities and towns for building, maintaining and repairing the jails and courthouses belonging to the parish, the pro rata to be fixed by the police juries.

The seventh section declares that if the amounts collected by the parish from the city or town are not sufficient to pay the criminal, public school expenses, and other expenses of the city or town paid out by the parish, the parish would have the right to refuse to grant the city or town the privilege granted under the act for another year, and to. continue to so refuse, until it had been shown by the city or town, to the satisfaction of the police jury, that the taxes, licenses and other moneys-collected by the parish from the city or town on account of accumulation of property and moneys, or otherwise, are sufficient, provided that no parish shall have the right to refuse any city or town applying under the act, until, by an actual test under it of one year, it is shown that the expenses of the city or town to the parish are more than the taxes, licenses and other moneys collected by the parish from the city or town.

It will be seen from an examination of this act that the Legislature has attempted to provide for the opening of a credit and debit account between the towns and the parishes in the parishes in which there are incorporated towns. The towns are to be credited with all moneys arising from taxation upon properties within their limits, and also with the amount of all licenses imposed by the parish which are found to come from persons doing business within the different corporations, and they are to be debited with all amounts paid out by the parish on account of matters from which the towns are supposed to have been directly benefited, or for which they are supposed to be specially responsible.

The moneys standing to the credit of the towns are ordered to be separated from the balance of the moneys in the parish treasury, and the debits with which the towns are to be charged are directed to be ascertained by a complicated system of accounts to be kept by different State and parish officers, and reported to the police jury.

It will be observed that the statute does not contemplate that any portion of the taxes derived from the town properties should ever be turned over to the towns. They are to be applied primarily to the payment of the claims which the Legislature seems to have selected as those for which towns are peculiarly and equitably chargeable, and they are to be freed and to be made applicable for any purpose to which the police jury might see fit to turn them when it is found that there is a surplus over and above the payment of such claims. The moneys, however, drawn from licenses from "persons living within the towns are, under no circumstances, to be applied to general parish purposes, but they are to be held as a sort of reserve fund to make good any deficit which might be found to exist by reason of the taxes from the town being insufficient to meet ' the legal demand upon it from the separate tax fund. If no such deficit is found to exist, then the whole amount drawn from licenses paid by the townspeople is to be paid over to the town without designation as to the purposes for which it is to be subsequently used.

This case has been ably presented on both sides, but the arguments have taken a much wider range than the determination of the issue involved requires. We have to be controlled by the special provisions of our own Constitution, and reasoning drawn from the general relations which the State, the parishes and the cities bear to each other in other jurisdictions furnish us little assistance.

Article 202 of the Constitution declares that the taxing power may be exercised by the General Assembly for State purposes, and by parishes and municipal corporations, under authority granted to them by the General Assembly, for parish and municipal purposes.

Article 206 declares that the General Assembly may levy a license tax, and in such case shall graduate the amount of such tax to be collected from the persons pursuing the several trades, professions, vocations and callings. * * * No political corporation shall im - pose a greater license tax than is imposed by the General Assembly for State purposes.

The District Judge, in rendering his opinion, said: “The only question under this article (202) would seem to be whether the grant of power to the parishes and municipal corporations, for parish and municipal purposes means that they can exercise this power for each other and each for itself. Oan the parishes exercise the taxing power for municipal purposes and municipal corporations exercise it for parish purposes? Such, I think, was not the intention of the framers of the organic law. It is such an extraordinary proposition that each could be authorized by the General Assembly to exercise the taxing power for the benefit of the other, that such a conclusion could only be reached when supported by'a plain and unambiguous provision of the Oonstitntion. It seems to the court that the contrary is the plain meaning of the article above quoted, and that the Legislature is without warrant or right, under the Oonstitution, to require or authorize the police jury to exercise the taxing power for the use of municipal corporations of the parish as is evidently the purpose and effect oi this Act, No. 165, under discussion. The taxing power is a most important one, and should be guardedly kept within the Constitutional limitations, and perhaps one of the best protections, both to the public service on the one hand, and to the taxpayer on the on the other, is the rule firmly imbedded in our constitutions for many years, that the same power should impose the tax and control its expenditure.”

We agree in opinion with the District Judge that the framers of the Constitution intended to keep separate and distinct the taxing power of the State, that of the parishes and that of the municipal corporations; that they never intended, in declaring that this power should be exercised by the parishes and municipal corporations “ under authority granted to them by the General Assembly,” that this authority should extend to empowering either of them to do so for purposes other than those in which each was directly concerned. It is easy to see that through this act the taxing power of the towns could be supplemented by that of the parishes for town purposes.

But we fail to see the authority under and by which the General Assembly can, after the parishes, in the exercise within constitutional limits of their taxing power, have acted for parish purposes, step in and apply the moneys arising from this legal exercise of their rights to purposes other than those which, in the opinion of the parish authorities, made the levy of the taxes and the imposition of the licenses necessary — taxes and licenses which they never would have levied or imposed — if they were to be forcedly taken away from them under orders of the General Assembly. When the police jury exercises its authority to impose licenses through the parish, it necessarily does so by ordinances general in their character, necessarily taking in people within as well as without the towns — its purpose is to utilize the moneys for general parish purposes — and it is difficult to see by what authority it can be prevented from doing so by an arbitrary order from the Legislature that a particular portion of the fund should be devoted exclusively to the interests of one particular portion of the parish, and then only in a certain contingency, which not happen ing, the moneys are not to be held in the parish treasury for other parish purposes, nor to be returned to the parties who paid the licenses, but to be turned over to the towns, who in the meantime may have exercised their power of taxing and licensing their own inhabitants up to the full constitutional limit.

Oounsel for the parish say very pertinently: “The Legislature, under the Art. 202, is restricted to the power to authorize only. The article confers the taxing power on the parishes ‘ for parish purposes ’ just as effectually as it does the power in the Legislature for ‘State purposes,’ except only that the parish must exercise it under authority from the General Assembly. The Legislature is given no power itself to levy taxes for parish purposes, for that power is lodged by the article in the parish.

“It results that the parish must possess, in the power to tax, the same discretionary power over the subject as to the amount of the tax it will levy within the constitutional limit, and as to what are parish purposes, as that exercised by the Legislature in its power to tax for State purposes. Where the Legislature authorizes the parishes to exercise the taxing power to the full limit of the constitutional power conferred, then, necessarily, the exercise of that power in the parishes must reside in the parochial authorities exercising the parish power, to be exercised by them to meet the parish necessities of maintenance and sustenance. And these parochial authorities are only restricted in the exercise of the taxing power by constitutional limitations and legislative authorization, and within those limits it is solely a matter of parochial discretion to judge of the amount of the parish expenses and obligations- they are required to meet by the exercise of the taxing power, and also to judge of what are parish purposes which they are required to meet under their taxing powers. These prerogatives of discretion in the authoiity to which the State has delegaced the use of her taxing powers are inherent and necessary to the exercise of the power delegated.

“The immediate effect of the act is to take off the alimony provided for the support and subsistence of parochial institutions, to confer it upon towns and cities which are alike provided for, under Art. 202 of the Constitution; are endowed with the same powers of taxation for their purposes which are given to the parishes for parochial purposes. Alimony is apportioned to each class to be derived from the power, uniformly, equally and ratably to tax the citizens and property within the respective borders of each, under a system of fundamental principles inherent to American constitutional law, that local affairs shall be governed by the local authorities, and that the burdens of government shall be borne uniformily, equally and ratably throughout the territorial limits of the governing powers. We have been unable to reconcile the aims, objects or effects of Act No. 165 with the great underlying principles of our form of government or with the restriction or prohibition of the present Constitution.”

We are of the opinion that the judgment appealed from is correct, and it is hereby affirmed.