author: Pochk, J.

text:
    No. 10,492.
    The State of Louisiana vs. Pierre Lubin.
    An objection, marte for tlie Urst time on appeal, that a pleading' made below had been presented too late, can not be considered by the appellate court, for the reason that the question therein involved had not been submitted to or decided by the trial judge.
    In a prosecution under See. 868, Revised Statutes, which provides for the punishlnent of “ any judge, justice of the peace, sheriff, coroner, constable or other civil officer," for oppression orextortioii undercolor of liis office, it is essential to charge and prove that the accused was an officer as designated in the statute.
    The omission in an indictment or information of such averment is a defect of substance, which is not waived by pleading to tlie indictment or cured by the verdict, lienee, tlie defect can bo set in a motion in arrest of judgment.
    APPEAL from the Twenty-sixth District Court, Parish of St. John the Baptist. Rost, J.

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

      Charles A. Baquie for Defendant and Appellant:
    1. Tlie Supreme Court will take no notice of points and objections raised by either party for the first time in his brief before this court, when such matters were not passed upon by tlie court a qua and form no part of the subject matter or questions of law brought up for review hy the appellant.
    2. A motion in arrest of judgment is seasonably made when filed on tlie third judicial day following' the trial.
    3. Documentary evidence offered by the State on the trial of the case on its merits, and entirely disconnected with the question of law raised in arrest and appealed to this court, should not be included in the transcript, and when so erroneously included by the clerk will he disregarded hy this court.

      1. The offence of oppression and extortion in office can only be committed by one of (lie public officers mentioned in R. S., Sec. 868, and in tlie Act Sio. 57 of 1888, acting in his official capacity, and that capacity must be alleged in tlie information. State vs. Anderson, 30 An. 557.
    5. The failure* io state what public office, if any, vas held by the accused at the time of the commission of the alleged offence, vitiates tlie information and all the proceedings had thmmiulor.
    6. This being an error of substance and not of form, the accused vas at liberty to urge it either in a motion to quash or an arrest of judgment. lie has chosen the latter. He has waived no legal right by pleading to the information, nor is the defect cured by the verdict. 32 An. 565, State vs. Palmer.
   The opinion of the court was delivered by

Pochk, J.

Defendant appeals from a conviction under an information charging that he had “ exacted and extorted under color of Ms office the sum of $3,” and from a sentence of afine of $301. His complaint is from the ruling of the trial judge in rejecting his motion in arrest of judgment, which was based on the omission of the pleader to state or mention in the information that the accused held any office at the time that he is charged with having extorted money under color of his office.

The judge held that'the defect of the information was one of form, and not of substance, and that, therefore, the objection came too late, after the jury had been empanelled.

On appeal, the State makes the point that the motion in arrest having been filed more than four days after conviction, was not presented within a reasonable time, and that, therefore, it should not be considered.

But as this is not one of the proceedings which takes place, or originates in this court, we have no other power to review it but under our appellate jurisdiction, and the record shows that the objection now urged was not made below, and that, therefore, no ruling was made thereon by the trial judge. Hence, we can not consider the point made here for the first time.

In the case of the State vs. Romano, 37 An. 98, this court took occasion to reaffirm the pre-existing rule on this question, and which was formulated thus: ‘ ‘ The appellate court can not consider and determine questions of law which were not submitted to and passed upon by the trial judge.” State vs. Arthur, 10 An. 265; State vs. Bass, 11 An. 862.

In the cases quoted by the Attorney General in support of the principle which he invokes, the point had been submitted to and disposed of by the trial judge, State vs. Fritz, 27 An. 360; State vs. Gotten, 36 An. 980.

On the merits of the motion in arrest, the question presented for solution is to determine whether the defect complained of is one of form or of substance.

The statute on which the prosecution is predicated reads:

“Any judge, justice of the peace, sheriff, coroner, constable or other civil officer who shall be guilty of oppression or extortion in the administration or under the color of his office, shall, on conviction, suffer fine or imprisonment, or both, at the discretion of the court.” R. S., Sec. 868.

From the plain language of the statute it is very clear that it is of the very essence of a prosecution thereunder that the accused must be charged and proved to hold one of the offices therein designated. Under that statute, it is too clear for argument that one who is not a “ judge, justice of the peace, sheriff, coroner, constable or other civil officer” can not be guilty of oppression or extortion under the color of his office. Now, in the information under discussion, the District Attorney used the following language: ‘ ‘ That one Pierre Lubin, late of the parish of St. John the Baptist, on or about the 17th day of August, in the year of our Lord 1889, with force and arms, in the parish aforesaid, and within the jurisdiction, etc., * * * did unlawfully exact and extort, under the color of his office, the sum of $3.”

The information is throughout entirely reticent as to what office, if any, the accused held at the time that he exacted and extorted money.

It is thus'very apparent that the information lacked an essential ingredient, without which no crime was charged and no conviction could be legally obtained.

We are clear in the conviction that the omission was not of the kind which is cured by joinder of issue and by verdict.

The omitted averment is a matter of substance; hence, we hold that it was not waived by pleading to the information or cured by the verdict. State vs. Palmer, 32 An. 565; State vs. Durbin, 20 An. 408; State vs. Edson, 10 An. 229; State vs. Stiles, 5 An. 324.

We therefore conclude that the information was essentially and iatally defective, and that the motion in arrest of judgment should have prevailed.

It is therefore ordered that the verdict and sentence appealed from be annulled and set aside, that the information presented in this case be quashed, and that the defendant be discharged.

Judgment reversed.


source: Caselaw Access Project

author: Fenner, J.

license: Public Domain

text:
    No. 10,493.
    The State of Louisiana vs. Andrew May.
    On ati indictment for rape a verdict of “ guilty of an assault -with intent to commit rape,” is authorized by See. 1053, R. R., and is responsive to tlio charge, its meaning and effect being to find the defendant not guilty of rape, but guilty of the attempt.
    A PPEAL from the the Baptist. Twenty-sixth District Court, Parish of St. John Rost, J.

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

      Chas. A. Baquie for defendant and Appellant.
   The opinion of the court was delivered by

Fenner, J.

Defendant was indicted for rape and the verdict of the jury was “ guilty of an assault with intent to commit rape.” Such verdict is authorized by See. 1053, Revised Statutes, which provides that when a person is indicted for any crime or misdemeanor, “the jury shall be at liberty to return as their verdict that the defendant is not guiity of the crime or misdemeanor charged, but is guilty of an attempt to commit the same,” etc.

The defendant complains, on motion in arrest, that the verdict is not responsive to the charge, and does not comply with the statute in that it does not pass upon his innocence or guilt of the crime charged.

This is a quibble; the meaning and effect of the verdict are to find the accused not guilty of the crime charged.

Mr. Wharton lays it down as a fundamental rule that “a verdict of guilty on one count, saying nothing as to other counts, is equivalent to a verdict of not gidlty as to such other counts.” 3 Wh. Cr. L., Sec. 3180.

The same principle clearly applies to this case.


author: Watkins, J.

text:
    No. 10,483.
    The State of Louisiana vs. Felix Richard.
    1. In case appellant desires this court to review the ruling of a judge below, on a motion to quash a venire, ho must append the evidence on which he. relies, to a bill of exceptions, and bring' it up with the record.
    2. Error lies only to matters of record, and only such may be. assigned as error, here.
    3. An objection urged to the power and constitutional authority of a judge to appoint an attorney at law to act in the place of a district attorney, can not bo examined unless the record discloses a state of facts justifying the belief that such appointee participated in the trial.
    A PPEAL from the Twenty-first District Court, Parish of Iberia. ..XT. Mouton, J.

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

      Albert and Charles Fontelieu and E. Simon for Defendant and Appellant.
   The opinion of the court was delivered by

Watkins, J.

Appellant was convicted of grand larceny, and sentenced to imprisonment at hard labor in the penitentiary. He complained of the judge’s refusal to quash the venire from which the grand jury was drawn, and of his appointment of an attorney at law to take the place of the District Attorney. The former ruling, his counsel assigns as error in this Court, and the illegality of the said appointment is made the ground of a motion in arrest of judgment in the lower court.

I.

The appellant’s complaint of the venire is, that it was drawn by less than a quorum of the jury commissioners, and is, therefore, defective, the grand jury drawn therefrom illegal, and the indictment bad.

The motion to quash alleges that W. L. Brown, Jr., one of the jury coftimissioners who participated in the drawing of the venire, was disqualified and incompetent to act, because he was, at the time, holding and exercising the office of school director, and was an acting and duly qualified member of the parish school board, and having accepted said office, and qualified as such school director subsequently to his appointment and qualification as jury commissioner, he is conclusively presumed to have abandoned the latter, and became disqualified to- exercise the functions thereof.

Hence, his act in assisting to draw the venire was illegal, and the venire was defective because it was drawn by only two qualified and competent jury commissioners, and two is less than a quorum — the jury commission consisting of five members. See. 3, Act 44 of 1877.

On trial the motion was overruled, but no bill of exceptions was reserved to the judge’s ruling. Confessedly, the record of the proceedings of the jury commission shows that there were three members participating in the drawing of the venire, and it necessarily follows that the onus probandi was on appellant to show by evidence de hors the record, the disqualification of Brown. This he attempted to discharge, and there is some evidence in the transcript on that subject. But it is not in our power to review it, as it is unaccompanied by a bill of exceptions taken to the judge’s ruling. The assignment of errors filed in this court is unavailing.

“Error lies only to matters of record.” Whar. Cr. Pld. and Prac., Sec. 777; State vs. Trotwell, 5 An. 24; State vs. Taylor, 11 An. 430; State vs. Jackson, 12 An. 679.

In State vs. White, 37 An. 173, it was said that “ evidence was heard, and the court overruled the motion to quash. No bill of exceptions was taken to the ruling of the court. We can not notice the evidence found in the record, the same not being embodied in a bill of exceptions.” State vs. Nelson, 32 An. 842.

Had the venire shown upon its face, that less than a quorum of the jury commissioners had participated in drawing it, a question of law would have been raised upon the record, and the overruling of a motion to quash it, on that ground, could have been assigned as error here, and we would have had jurisdiction to decide it; but as thevenire appears to have been signed by a quorum of the commissioners and the question of the legality of the act of one of them is matter in pais, and dependent on proof, a bill of exceptions should have. been reserved and the evidence annexed thereto. Without such a bill of exceptions the evidence is improperly in the record, and can not be examined and considered. State vs. Nelson, ante. State vs. Seiley, 4 An. 143.

The motion in arrest of judgment assigns that the trial judge had no legal right or constitutional power to appoint an attorney at law to act in the place and. stead of the District Attorney; and, if he had, the record shows that the one he appointed was not qualified according to law, by subscribing the requisite oath of office. It further alleges that “any law or statute which conferred such authority upon said court is unconstitutional, null and void, and in violation of Article 124 of the Constitution.”

As a matter of fact, the minutes show that the District Attorney had procured from the' Governor, a leave of absence for a period of sixty days, and upon same being filed in court, the judge appointed an attorney at law in his stead “to attend to all cases and matters * * in which the State may be interested, or in any wise concerned. * * Whereupon in open court * * said attorney was duly sworn and qualified as District Attorney appointed as aforesaid,” etc.

This order was made on the 20th of March, 1889, and on that day the court was adjourned until the 14th of November, 1889. It further appears that the case was taken up for trial on the 17th of October, 1889, and at once disposed of; but it does not appear that the District Attorney was absent at the time, or that the attorney appointed was present, or took any part in the trial.

It is therefore apparent that the appellant has no interest in the question.

It is, however, not improper to observe that all of the questions of law raised on the motion in arrest have just been decided in State vs. Johnson.

There is no merit in this appeal.

Judgment affirmed.


text:
    No. 10,494.
    State of Louisiana vs. John Cook.
    X. Under tin indictment charging the offence of inflicting a wound less than mayhem, under Act 17 of INKS, amending Revised Statutes, Section 791, it was the duty of the trial judge to give the jury instruction as to the true meaning and significance of tlic word maliciously as it occurs in that statute, and in this re•spect nothing moro was required.

      2.When two or more crimes result from a single act, only one indictment will lie, butthe different offences may he separately charged in distinct and different counts in the same indictment.
    APPEAL from the Twentieth District Court, Parish of. Assumption. Guión, J.

      Walter H. Rogers, Attorney General, and L. I. Gaillouet, District Attorney, for the State, Appellee:
    1.Separate counts for shooting with intent to murder, and for inflicting a wound less than mayhem, with a dangerous weapon, may he joined in one indictment. . 37 An. 382; 35 An. 33; 4 An. 434.
    2.When two counts are properly joined in one indictment, the jury may render a general verdict on all. 40 An. 730; Wh. Cr. Pr., Sec. 736.
    3.Motions for new trial arc addressed to the discretion of the trial court, and the Supreme Court will not reverse its ruling denying them in the absence of the showing of an abuse of that discretion to the injury of accused. 33 An. 310, 679, 1344; 35 An. 76; 38 An. 479 ; 36 An. 341.
    4.A motion in arrest can be entertained only for errors apparent on the face of the record. 38 An. 18; 37 An. 172; 63 An. 96,158,177, 185, 976; 35 An. 24; 8 It. 313.
    5.TCven when the errors have merit otherwise they will not be noticed on a motion in arrest when not apparent on the face of the record. 37 An. 172.
    6.A motion in arrest is not the proper proceeding to reach a variance said to exist between the allegation and proof in an information. 35. An. 106.
    7.On a general verdict of guilty on two counts of the same indictment, charging different offences, punishable with different penalties, but both offences growing out of Uie same transaction, the judge not only may, but, perhaps, should, sentence for the higher offence only. 3 K W. It. 348; 29 An. 119; Wh. Cr. PI., Secs. 292, 757, 907, 911. _

      W. E. Howell for Defendants and Appellant:
    1. Sections 791 and 794 of the Kevisod Statutes denounce two separate and distinct offences, and Sec. 794 is not a lower grade of the offence described in See. 791. 35 An. 729; 38 An. 682.
    2. Under an indictment for shooting with intent to murder, a verdict of shooting and wounding with a dangerous weapon, and inflicting a wound less than mayhem, is not responsive. Same authorities.
    3.When but one single act is charged, from which but one wound is inflicted, all the result of but one shot, a verdict of (1) shooting with intent to murder; (2) inflicting a wound less than mayhem, is bad. 29 An. 119; Wh. Or. PI. Pr., Secs. 910, 911.
    4.No one single act can entail a breach of more than one criminal statule.unless the other statutes charged to have been violated arc but lessor grades of the same offence, when the judge can perhaps sentence under the higher grade of offence. But when the defendant is charged with a breach of two separate and distinct statutes, for the breach of each there being separate and distinct penalties attached, both charged to have boon so violated by the firing of one single shot which inflicts but one single one on one single man, no general verdict of guilty is responsive. Nor can defendant be twice put in jeopardy for the same offence nor twice punished; nor can the judge remedy the matter by passing sentence under the first count charging the higher offence. 35 An. 729,. 38 An. 682, Const, of la., Art. 5; 32 An. 812.

      5. Every man charged with a felony in this State is entitled to be tried by a jury. Const. Art. 6.
   The opinion of the court was delivered by

Watkins, J.

This appeal presents for consideration three questions : (1) The refusal of the trial judge to give the jury a requested special charge; (2) his declination to grant a new trial; (3) his overruling a motion in arrest of judgment.

The indictment charges in one count that the accused, wilfully, feloniously and of his malice aforethought, did shoot and wound one Allen Warren, with a dangerous weapon, with intent to kill and murder him; and, in another count, it charges that the accused, in and upon the said Allen Warren, feloniously, wilfully and maliciously, did inflict a wound less than mayhem, with a dangerous weapon.

Upon the trial, the jury pronounced a verdict of guilty, in general terms, and the judge sentenced the accused to imprisonment at hard labor in the penitentiary for four years, and from that sentence and decree he appeals.

I.

Counsel requested the court to charge the jury as folows, viz :

“That in order to And the accused guilty under the second count of the indictment, maiice must have been proved beyond a reasonable doubt, and the word malice, as used in Sec. 794 of the Revised Statutes as amended by Act No. 17 of the General Assembly of 1888, must be understood and interpreted by the same definition as is set forth by the law writers of approved authority, under the head of murder; and unless such malice is proven as would have made the offence murder, had death ensued, the accused can not be convicted.’r

This charge the judge declined to give in terms, but in lieu thereof he gave the jury the following instructions, viz:

“That the accused could not be convicted under the second count of the indictment unless (the jury) should find, beyond all reasonable doubt, that Allen Warren had been shot and wounded by the accused, and that the accused had acted wilfully and maliciously in so doing. That by the word ‘maliciously’ was meant with evil intent and design, and with the intent to injure, and not accidentally or lawfully. That it was not necessary that (the jury) should find, in order to convict, that had death ensued, the accused would have been guilty .of murder.”

Act 17 of 1888 amends Sec. 794 of the Revised Statutes by making it read thus: “Whoever shall ‘ wilfully and maliciously,’ with a dangerous weapon, s * * inflict a wound less than mayhem,” etc. The amendment consists in the addition of the words ‘ wilfully and maliciously” to the original statute. The indictment, in its second count, distinctly charges a wounding less than mayhem, in the words of the amendment. It is therefore quite apparent that the charge given to the jury was pertinent and appropriate.

The question, in regard to which the judge was required by the law to give the jury instruction, was the meaning and true significance of the word “maliciously,” as it occurs in the act under which the indictment was found, and to this question his charge was responsive.

It was his duty to do that, and it was not his duty to do more. We think he properly refused to charge that, unless such malice is proven as would have made the offence murder (in case death had ensued), the accused can not be convicted; because that would, in all probability, have been a misleading instruction, as there was no murder, or of an attempt to murder, or of an intent to murder, raised by this count of the indictment, or the law. For it has been frequently held that a judge should refuse to charge an abstract proposition of law which has no bearing on the case upon trial, whether that proposition be correct or incorrect. State vs Riculfi and McClung, 35 An. 770; State vs. Garic, 35 An. 970; State vs. Hamilton, 35 An. 1043; State vs. Ford, 37 An. 443; State vs. Labuzan, 37 An. 489; State vs. Daly, 37 An. 576; State vs. Durr, 39 An. 751.

II.

The second bill of exceptions appertains to the judge’s refusing to grant the accused a new trial, which was based solely on the ground that the verdict of the jury was contrary to law and evidence.

It is elementary that we have no jurisdiction to review the facts on which the verdict depends. State vs. Nelson, 32 An. 845; State vs. Seiley, 41 An. 143.

If the verdict is contrary to law, the errors complained of should be set out fully and distinctly in the motion, so that the lower judge may be advised of what they are alleged to be, and in order that we may judge of the correctness and propriety of his ruling thereon.

Hence we have often held that we could not examine and pass upon the ruling of a judge in refusing to grant a new trial, when the only ground assigned was that the verdict of the jury was “ contrary to law and evidence.”

III.

The third bill of exceptions is grounded upon the refusal of the judge to sustain a motion in arrest of judgment.

The motion is somewdiat involved in its verbiage and somewhat difficult of analysis, but the purport of it is: that the indictment in one count, charges the accused with shooting with intent to murder, and in a second count, it charges him with inflicting a wound less than mayhem; that these two offences are charged to have been committed upon one and the same person, and upon the same day; and that said charges are the result or consequences of one act.

He complains that the indictment charges two separate and distinct offences, under two separate and distinct statutes — Secs. 791 and 794 of the Revised Statutes — and, for the breach of each of ■which, there is a separate and distinct penalty attached; and no judgment can be rendered thereunder, because, if any crime was committed at all, it resulted from one single act, and was the breach of one single statute, and could not and does not constitute a breach of two separate statutes. It is further to the effect that, if said verdict be carried into effect, he would, virtually, have been twice tried and punished for the commission of the same act, and his liberty would have been twice putin jeopardy, contrary to the provisions of Article 5 of the Constitution.

The sense of the motion is, that the record discloses an error in this, viz.: that the indictment, in two counts, charges two separate and distinct offences, as flowing from a single act, and that as the accused can not be twice tried for the same offence, it is obnoxious to the quoted constitutional provision.

In support of this proposition we are cited to the case State vs. Augustine, 29 An. 119. In that ease the court said: “The question presented by this appeal is whether, when a party steals a w^agon and a horse harnessed in it, and is indicted, tried, convicted and sentenced for the larceny of the wagon alone, he can be afterward prosecuted for the theft of the horse.”

“The horse and wagon being harnessed together, the taking of them was a single act, and constituted but one fact. We think, uider the circumstances, there was but one theft. To hold otherwise would be to permit an unlimited number of indictments to be predicated upon one single fact — one taking.”

After detailing the particulars, the court expresses the opinion “that where two or more crimes result from a single act or fact, but one indictment will lie.”

The court cites in support of its theory Sec. 1055 of the Revised Statutes, the sense of which is stated to be “that no person tried and acquitted of an offence can be tried for another and different offence arising from the same state of facts.”

We have quoted at length from that opinion for the purpose of showing that its full force may be considered, and the validity of the indictment under consideration maintained.

The effect of that opinion is, that when two or more crimes result from a single act, but one indictment will lie; or, as the defendant’s counsel puts it, the accused can not be tried twice, or his liberty be twice put in jeopardy; but it does not result therefrom that the two or more crimes which result from the same act can not be cumulatively charged in one indictment in several counts.

This question was definitely settled in State vs. Green, 37 An. 382, in which an indictment, containing two counts, charged the accused with two distinct offences, as arising out of one act, and which was founded upon the identical sections of the Revised Statutes under which the District Attorney framed the bill in the instant case.

In that case we said:

“It is too clear for argument- that both offences could grow out of the same act. Hence, it follows that they are kindred offences and belong to the same generic class, and jurisprudence has crystallized the rule that such offences may be charged in the same indictment, provided they be incorporated in separate counts.”

Oited in support of that opinion are: State vs. Malloy, 30 An. 61; State vs. Deposs, 31 An. 487; State vs. Johns, 32 An. 812; State vs. Gelkie, 35 An. 53.

In one of those cases — State vs. Johns — the accused was charged with two distinct offences as arising out of one single act under Secs. 791 and 794, Revised Statutes, and the indictment .was held to be vicious because it contained but one count.

But the counsel for the defendant insists that because there was but one verdict, and the judge imposed but one sentence, the indictment must be construed accordingly; but the validity of the indictment must be determined, as a matter of fact, from an examination of its provisions only.

It was within the discretion of the judge to sentence the accused under each of the two charges, as he was authorized to have done under a general verdict of guilty. Such was the course pursued by the District Judge in State vs. Robinson, 40 An. 780, and we approved his action.

We have taken the pains to examine this question with special care for the purpose of showing that our jurisprudence is plain and free from doubt, and that the indictment is valid and consistent therewith.

Judgment affirmed.


author: McEneby, J.

text:
    No. 10,463.
    Succession of Frederick Gast.
    When the return day for filing a transcript has becu extended, and the transcript is filed after tile expiration of the extension, the appeal will be dismissed, as the appellant is not entitled to the three days of grace which follow the return (lay.
    APPEAL from the Oivil District Ocurt for the Parish of Orleans. King, J.

      Gus A. Breaux for the Appellee.

      T. McMahon for the Appellant.
   On Motion to Dismiss.

The opinion of the court was delivered by

McEneby, J.

The appeal in this case was made returnable on the first Monday in November, 1889. On the 5th day of November, on the application of the appellant, a delay of thirty days was granted to file the appeal. The transcript of the appeal was filed on the 9th of December, 1889, after the expiration of the thirty days extension.

No days of grace are allowed when the time is extended for bringing up the appeal. Sue. of Quinn, 37 An. 391. 1

It is therefore ordered that the appeal be dismissed.


author: Bermudez, J.

text:
    No. 10,433.
    The State ex rel. Board of Directors of Public Schools of New Orleans vs. City of New Orleans.
    A municipal corporation, sued under an enactment deemed by it to be unconstitutional, the object of which is to compel it to increase an appropriation from its alimony, has the right to plead the uneonstitntionality of the act and to have the contention determined by the courts.
    It can not be called on to show cause why a relief sought against it should not be granted and when it appears, in response, be met with the objection, that it has no standing in court and can not be heard.

    In such cases, the courts will not refuse to listen to the defence; but will inquire and pass upon its merits.
    The supremacy of a Legislature over a city is not so absolute that it can not be restrained by the organic law. Limitations imposed by the Constitution upon its powers, can not be overleaped.
    The system of free public schools in Louisiana is a State institution, for the establishment, maintenance and support of which the State is required to provide by taxation, or otherwise.
    As a rule, the taxing powers may be exercised by the General Assembly for State purposes only, and by parishes and municipal corporations, binder authority granted them by the Legislature, for parish and municipal purposes alone; but, under express sanction of the Constitution, the General Assembly “ may” authorize parishes to levy a tax for the public schools therein, not exceeding the State tax and, with other parish taxes, not exceeding the limits of parish taxation, fixed by the Constitution.
    The Legislature can not force a parish to levy a tax for school purposes. It may authorize it to do so, and when it has done so, and the parish undertakes to raise it, the constitutional limits must be observed.
    To be valid, the levy of such a tax must find its authority in the organic law.
    The Legislature has therefore no authority to compel the City of New Orleans, which is the parish of Orleans, to make an appropriation to stand in place of the amount which a school tax, if specially levied, would have realized.
    The. Legislature can not transgress its powers, or invade those which are secured by tlio Constitution to the City of New Orleans. It can not do indirectly, that which it is incompetent to do directly.
    Although the first part of Sec. 71 of Act 81 of 1888 may be constitutional, the provisos which follow it and which require the City of New Orleans to appropriate no less than $250,000, for school purposes, are unconstitutional. They are therefore deemed unwritten and not binding on the city.
    APPEAL from the Civil District Court for the Parish of Orleans. Rightor, J.

      A. H. Wilson, F. B. Krnttsohnitt and C. F, Buck for the Relators and Appellants:
    Act 81 of 1888 of the Louisiana Legislature, “ in relation to free public schools, and to regulate education in the State of Louisiana,” etc., is constitutional and valid, and its .mandate, as contained in Sec. 11, requiring- the City of New Orleans to mate annually certain appropriation» for public education in this parish, should he enforced.

      All laws are presumed to be constitutional and effectual until clearly and affirmatively shown to be otherwise. “ Police Bill ” case (Vol. 6, Southern Reporter, p. 592); Cooley’s Const. Lim. (Ed. 1868), pp. 182-8-4; Fisher vs. Auditor, 89 An. 450; Fletcher vs. Peck, 6 Crunch 128.
    ‘Sec. 71 of said Act is mandatory in terms and intent, and deprives the City of New Orleans of any and all discretion in appropriations for school purposes.
    The City Budget, having been prepared and adopted in January, 1889, on an uncertain estimate of receipts, being mere guess work, and it being shown that up to April, 1889, the assessment rolls, tlib legitimate basis of estimate, had not been filed in tin*. Comptroller’s office, and, it being further shown that an appropriation has not been made in that budget for public schools, as required by law (Sec. 71), though seasonably demanded, such budget is not a legal budget quo ad relators, and the appropriations therein made are not final, and can be diverted on relators’ judicial demand, in order to conserve relators’rights in the premises, and such a so-called budget is not competent evidence that the city has disbursed its total revenue for that year.
    Municipal control of various matters of general public interest is within the scope of State supervision, which, when exercised through legislative action, must be accepted by the municipality. “Police Bill” case, Vol. 6, Southern Rep., p. 592.
    The legislative mandate to the School Board (relators) to pay its indebtedness to teachers is not a mandate to State, parish or municipality, and consequently is not repugnant to Art. 45 of the State Constitution, even though the School Board is ordered to pay such debt out of funds to be received from the city, it being evident that Art. 45 does not apply to corporations excepted therefrom.
    The School Board, as a distinct corporation created by law (Act 81 of 1888), has sole administration of its funds, without any right in the city to inquire into their destination or interfere in any manner with such administration.
    A general law “ in relation to free public schools and to regulate public education in the State of Louisiana,” etc., and establishing a general system, embraces therein all necessary details, which need not be enumerated in the title '¡provided, they are kindred and germane to the object. The payment of salaries to teachers for past, present or future services, is germane to the principal object.
    The title to the act need not be a detailed index of its contents. It suffices if the object be stated generally. Cooley’s Const. Jam., pp. 141-144, note 8, p. 144; State vs. llackett, 5 An. 91; State vs. Crowley, 88 An. 782; La. Board vs. Dupuy, 87 An. 188.
    If a general law repeals prior laws by reason of conflict therewith, or by effect of the formal repealing clause (Sec. 74), it is not necessary to detail laws repealed. A special law may be thus repealed, being included in the effect of such repeal. Such repeals need not bo stated in title.
    It will be observed that only a general law can be passed relative to public education. (Art. 46, Const.) Therefore such law must include the entire State and the parts thereof. If, in such necessarily general law a part thereof should apply to the Parish of Orleans and other parts to country parishes, because of tlie peculiar necessities and exigencies of the statu, quo existing in this parish, and elsewhere (e. g., revenue, health, registration and other general laws), such law or part thereof is not open to the objection that it is local and special, and the other objections incident thereto. A law, or part of law applying to Orleans parish, or any other subdivision of this State, is not local or special in the constitutional sense. State vs. Dolan, 85 An. 1142.

      The right of the Legislature to direct payment out of general or reserve funds, or otherwise, is indisputable, and this need not be mentioned in title if germane to object.
    Laws may be constitutional in whole or in part, and only the obnoxious portion be annulled, the rest remaining valid. Moore vs. City, 32 An. 748; St. Landry vs. Stout, 32 An. 1278; State vs. Dolan, 35 An. 1182; State vs. Crowley, 33 An. 783.

      Samuel L. Gilmore and Franeis B. Lee, Assistant City Attorneys, for the Respondent and Appellee:
    That portion Of Sec. 71 of Art. 81 of 1888, which refers to the unpaid balances due by the School Board for the years 1880, 1881, 1882, and 1884, is unconstitutional, because:
    1. It violates Art. 45 of the Constitution, which declares that no law shall be passed directing the payment by any municipality of any claim credited without express authority of law. Labatt vs. City, 38 An. 386.
    2. It violates Art. 47 of the Constitution, which declares that the General Assembly ’shall not indirectly enact special or local laws by the partial repeal of a general law.
    3. It violates Art. 48 of the Constitution, which requires that the intention to apply for the passage of a local or special law must be advertised before such laws arc passed. State vs. Dolan, 35 An. 1142.
    The entire Sec. 71 of Act 81 of 1888 is unconstitutional, because:
    1. It is local legislation, and, as such, violates Art. 46» of the Constitution, which prohibits the passage of local laws providing for the raising of money for school purposes. State vs. Dolan, 35 An. 1142; People vs. Supervisors, 4 Hand, 43 X. Y., 10; People vs. Hills, 35 X. Y., 449; People vs. O’Brien, 38 X. Y., 193; Bretz vs. Mayor, 3 Abbott’s Practice Reports, 478.
    2. It violates Art. 48 of the Constitution, in that intention to apply for its passage was never advertised.
    8. It violates Art. 29 of the Constitution, which requires that every law shall embrace but one object, and that expressed in its title, in that it has the effect of altering the city charter, and there is no indication of this in its title. State vs. I-Iaekett, 5 An. 93; Duverger vs. Salter, 5 An. 94; Bossier vs. Steele, 13 An. 434; Wisnor’s Curator vs. Mayor, 25 An. 598; Succession of Irwin, 33 An. 63; Swann vs. Gayle, 21 An. 480; Williams vs. Lodge, 38 An. 626.
    III.
    The entire Act 81 of 1888 is unconstitutional, because it has two objects expressed in its title. State vs. Harrison, 11 An. 722; Moore vs. Bossier, 32 An. 1016; Cooley’s Const. Lim., 1868 ed., 148.
    ■ IV.
    The city has a right to urge the unconstitutionality of an act when the act affects the corporation in its rights or property.

      The relator is wholly without cause of action in this case, because:
    1. It failed to furnish the Council with the statement of the attendance at schools and the cost of instruction, which, under Sec. 70 of Act 81 of 1888, is a condition precedent to the right of the School Board to demand any amount for school purposes.
    2. Section 71 of Act 81 of 1888 does not require the city to appropriate the sum of $250,000 or any specific sum for school purposes, but only requires the city to appropriate an amount, which, with the apportionment of thState tax and the poll tax, will be sufficient for the maintenance of schools during the year.
    s. The ciy budget for 1889, having been finally adopted and promulgated, before the institution of this suit, can not now be amended. Act 28 of 1879; Shotwell vs. City, 3(1 An. 910; State ex rel. Samory vs. City, 31 An. 171.
   The opinion of the court was delivered by

Bermudez, J.

This is a mandamus proceeding, the object of which is to compel the Oity of New Orleans to place the relator board on its budget of expenditures for 1889 for the sum of $250,000, which it has failed to do except to the extent of $180,000.

The petition is based on Sec. 71 of Act 81 of 1888, relative to public schools.

That section provides substantially that the Council of New Orleans, in making their annual budget of expenditures, shall include therein the amount de'emed necessary to meet the expenses of the schools, and keep in good repair school houses and grounds, as may* seem just and reasonable, provided it shall not exceed the statement of the School Board to be previously made, and shall not be less than $250,000, whereof $75,000 to be paid out of the reserve fund of 20 per cent, contributed by See. 66 of Act 20 of 1882, and Act 109 of 1886, from which certain claims against the board shall be paid gradually so as to be extingushed in 1895.

The section authorizes the board, if necessary, to enforce its provisions by mandamus.

There is a charge of failure and a prayer for relief.

The defences of the city are a general denial, and the constitutionality of the act on various grounds.

A number of persons claiming an interest intervened, joining the board, and were met by exceptions and answer by the city.

From a judgment dismissing the proceedings and the intervention, the relator and the intervenors have appealed.

The objections of the city to the constitutionality of the act may be summarized as follows:

1. It embraces two objects.

2. It attempts to amend the city charter in a prohibited manner.

3. It is a local or special enactment which was adopted without previous publication of intention, etc.

4. It requires the city to pay, through the Board of Directors, a debt which it does not owe.

5. It requires the city to make an appropriation for school purposes which the city can not be compelled to raise by a school tax.

Counter, the board and the intervenors retort that the City of New Orleans has no legal standing to charge the unconstitutionality of any law affecting her.

Touching this peremptory objection to the right of the city to stand in judgment which must be determined at the threshold, it might suffice to say that, however absolute and broad the powers of the General Assembly may be on the City of New Orleans, their supremacy may be confined within certain boundaries by the State organic law which can not be overleaped, and that when an attempt is made to transgess them the city has an undoubted right to interpose impediments, and to be heard; but it is better that the matter receive further attention.

The principle is well recognized that “where a demand is asserted against a municipality, though of a nature that the Legislature would have a right to require it to incur and discharge; yet, if its legal and equitable obligation is disputed, the corporation has a right to have the dispute settled by the courts and can not be bound by a legislative allowance of the claim.” Cooley on Const. Lim. 232-3.

Indeed, were it not so, the mouth of political organizations, representing the corporators, would remain absolutely muzzled. The corporations would have not only tamely to submit to and passively allow unconstitutional legislation to be executed, but would be constrained to carry it out themselves.

The books are full • of cases in which political corporations have been recognized the privilege of setting up the unconstitutionality of laws under which some -unwarrantable right against their revenue and property was sought to be enforced, and' which in the legality of such defences has been sanctioned.

When, therefore, the courts have said in cases of that category that such corporations can not resist legislation affecting them, they could mean and meant only constitutional and in no way unconstitutional legislation, for the glaring reason that to have meant and said the reverse would have been to have held that municipal corporations must, in all contingencies, accept and further unconstitutional legislation, which would be a monstrous proposition.

The ruling of this court in the recent case of the State ex rel. Nicholls vs. City, 41 An. 156, is no authority to prevent the City of New Orleans from being heard in the instant controversy.

It was a suit in which the Governor, entrusted with the execution of’ the laws, claimed that under the provisions of Act 68 of 1888, entitled “An act creating a Police Board for the City of New Orleans and defining its powers,” it was made the ministerial duty of the Mayor and Couneilmen of New Orleans to proceed to the election of six commissioners, who were with the Mayor, to constitute the Police Board; that they had declined to perform that duty, and that they should be compelled to do so.

The return of the defendants was a charge of unconstitutionality of the act sought to be enforced.

The issue was whether the defendants, the representatives of the corporation as its council, could resist the execution of the law on that plea. It did not involve the question whether the defendant had any legal standing to plead the unconstitutionality of the law, or whether the city’s revenue should or should not be appropriated for' the purposes of the Police Department.

The act contemplated a reorganization of the p’olice force by withdrawing from the Mayor and Council the appointing power and vesting it in a board created by the statute, and it prescribed, as a preliminary matter, that an election should be made by the Council of the commissioners, who, with the Mayor, were to constitute that board.

Although the court catechised the defendants by informing them that it was improper for them lightly to question the validity of the act, which was prima facie constitutional; that it was better that-they withold their resistance until after it had been judicially declared unconstitutional, and that by executing it, their responsibility was sheltered, it did not hold that they did not possess the! right of pleading its unconstitutionality, and that they would noP be heard.

Par from refusing to consider that defence, the court inquired into it and sustained the constitutionality of the act, ordering the defendants to proceed with the election.

Here the controverted question involves the right of the Legislature to dispose, without warrant, and in spite of constitutional inhibition, of a large portion of the city’s revenue for a specific purpose, injuriously, it is claimed,'to other superior purposes; in other words, the power of that body to divert a part of the alimony of the city for an object for which it would not be forced to provide, which is not one of the essential wants and necessities, of which, in amount, is larger than that which the city can consecrate to that end.

In support of her resistance the city invokes the organic law, which prevents the Legislature from so acting, and which has vested it with a discretion which can not be coerced-, and which she has reasonably exercised.

It would pass strange, indeed, if, after the defendants here have been commanded to show cause why the relief sought against them should not be granted, they could be met, when they appear in response, with the objection that they have no standing in judgment. 17 An. 251; 39 An. 11; 11 Wall. 267.

Pretermitting an examination of the constitutional objections affecting the form of the act, previously raised and before mentioned, we will now proceed to inquire and determine the last one which assails the substance of the act, as it may be valid in form, and yet invalid intrinsically.

It is elementary that a State, in the absence of constitutional prohibition, may delegate part of her political and administrative powers to municipal corporations within her borders, which then become State functionaries; and that whenever such delegation may take place, the State can confer on them certain rights, which .she may subsequently extend,' abridge or withdraw, as may seem just and advisable, but without impairing the obligation of contracts.

This privilege of delegation is essential in the very nature of things, as otherwise the local administration necessary for public good would be an impossibility, in consequence of the practical inability of the State general government to well provide by itself for the regulation of administrative matters on numerous important details in the different parts of -the State.

The organic law may, however, cheek the incidental rights of the Legislature, so that when constitutional restrictions have been imposed, the limitation is paramount and the Legislature is impotent.

Indeed, it is a question settled beyond the possibility of reasonable doubt, and which needs no reference to authorities to be verified, that the supremacy of the Legislature over a municipal corporation, in many respects, is restrainable by qualifications placed by the Constitution in terms or by fair implication.

It is as clear that a Legislature can no more transgress a State Constitution than that a convention can violate the Federal Constitution, than that a municipal corporation can override its charter or valid laws affecting it and the Federal or State Constitution.

It therefore follows that when restrictions have been placed by the higher law on the powers of the Legislature, or where the authority with which it is specially vested is clearly limited, the Legislature has no right to compel a municipal corporation to do that which the Constitution says the Legislature may authorize it to do, and if the Legislature undertakes to go beyond its power of authorization, its action is nugatory.

The fundamental questions upon which this authority turns are:

1. Whether the Legislature has stopped the City Council from discretion in the matter of school appropriations, and if it has done so,

2. Whether it has not transgressed the Constitution in requiring an outlay which it could not command.

I.

It is apparent that the Legislature has, in unmistakable language, industriously at first expressed its will that the City Council of New Orleans shall have a discretion in such matters; but it is evident that it subsequently circumscribed the exercise of that discretion, when it provided that the appropriation shall not exceed the amount set forth in the estimate of the board of directors to be submitted be-: fore the annual budget of expenditures is prepared, and shall not be less than $250,000.

It is, therefore, clear that the Legislature intended that the city authorities should not have a discretion to appropriate more than one sum and less than another, and that a breach of duty could be summarily provided against.

II.

Such being the case, the momentous question arises, whether the Legislature had authority to prescribe and command as it did in this case requiring an appropriation.

The City of New Orleans is a political organization, recognized and protected by the Constitution and by legislation under its provisions. It enjoys the privilege of a municipal corporation, possesses all the-inherent powers necessary for its existence and maintenance, for the' accomplishment of the purposes for which it was created. It is a, being which can not be blotted out of life. Its citizens have rights, which cannot be divested.

Although under an express constitutional provision, the Legislature' has authority to cancel its charter and remit its inhabitants to an other form of government (Art. 254), that body has no right to compel its representatives, by whatever name, under its actual or under an eventual form of government, to do that which parochial or municipal organizations can not be forced to do.

So that, if by the terms of the Constitution, or by fair implication from them, it appears that the Legislature can not compel the city to make any appropriation for school purposes, it irresistibly follows that the Legislature is not permitted to do so, either by special or general legislation, or by an amendment of the charter.

The system of public education in Louisiana is a State institution,. and as such, is placed under the control and protection of the State by the very terms of the Constitution.

Article 224 provides: “There shall be free public schools established by the General Assembly throughout the State, for the education of all the children of the State, between the ages of six and eighteen years, and the General Assembly shall provide for their establishment, maintenance and support, by taxation or otherwise.. And all moneys so raised, except the poll tax, shall be distributed to each parish, in proportion to the- number of children between the ages of six and eighteen years.”

Inasmuch, however, as the revenue or resources of the State, owing mostly to the restrictions imposed upon her taxing powers, may be inadequate to accomplish those purposes, the Constitution (Art. 229, last sentence) has required the Legislature to provide for the levy of a school tax.

The Article (229) reads: “The Legislature shall provide that every parish may levy a tax for the public schools therein, which shall not exceed the State tax; provided, that with such tax, the whole amount of parish taxes shall not exceed the limit of parish taxation fixed by the Constitution.”

In furtherance of that provision, the Legislature has adopted Act 81 of 1888, by which parochial authorities have been empowered in their discretion to raise such tax.

It is a remarkable circumstance that, had the Constitution not thus expressly provided, the Legislature could not have empowered parishes to assist the State in the establishment, maintenance and support of the public schools, which are a State institution; for Article 202 of the Constitution says: “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.”

In the case of State ex rel. School Board vs. Police Jury, 40 An. 750, identical in principle to the instant one, it was claimed, under Sec.* 54 of that act, that the police jury of a parish was bound to levy such tax; but the court found and held that the word “ may ” used in the text did not mean “ shall,” and that traced through the last sentence of the article (229) to Act No. 28 of 1877, Sec. 28, it simply meant: are authorized, determining therefore, that the language was permissive and not mandatory.

In that case it was said that a legislation touching public education, in order to be valid must find its authority in the organic law itself, because public education is a State institution to be fostered by the State.

The court consequently held that a legislation such as that before it, could not be and' was not peremptory, as otherwise it would, transcend the legislative power and thus be unconstitutional, concluding that police juries are clothed both by the Constitution and by said Act, with the discretionary or optional power of levying or not, a public school tax, as they might deem proper.

Indeed, were the police jury to exercise its discretion and to levy a tax, this mere fact would not of itself make the tax legal and obligatory ; for, under the very precautionary terms of the Constitution, it would be valid only if, with the whole amount of parish taxes, it did not exceed the limits of parish taxation fixed by the Constitution, and had the parish taxation already reached such limit, no such new tax could be at all levied.

It appears, by reference to Sec. 54 invoked in the case just mentioned, that the Oity of New Orleans was industriously excluded, no doubt, because there was to be, further on, in Sec. 71, some special legislation relative to it, and which is that relied on in this controversy.

The City of New Orleans represents the Parish of Orleans, which has a nominal existence only. The territory over which the charter of the city extends is that of the Parish of Orleans. The Parish of Orleans, independent of the Oity of New Orleans, has no practical or legal existence. It is not governed by a police jury, and is not represented by any parish officer. The parish is the city and the city is the parish.

In the second paragraph of Art. 225 of the Constitution, under the head of public education, the City of New Orleans is treated of and dealt with as if it was the Parish of Orleans, and in Sec. 54 of the Act under consideration, provision is made that towns not exempted under their charters from the payment of parish t^xes and subjected to the burden of taxation, as the parishes are, shall not pay the tax mentioned in the section; for the same is included in the taxes imposed by the parish in which the town is situated.

Now, if the Legislature has no right to require a parish to levy a tax for school purposes, and if the Oity of New Orleans is the Parish of Orleans, or the Parish of Orleans is the City of New Orleans, where is its authority to demand, in place of such tax, that a sum of at least §250,000, or any sum, be appropriated to school purposes?

Even if the city was not the parish, where would be the authority of the Legislature to divert from the alimony of the city, for school purposes, any sum, when, under See. 54, the city would be formally exempted from any contribution in the cause of education.

The city, however, was vested ■ with authority to appropriate a sufficient amount out of her revenue for school purposes by the the first part of Sec. 71 of Act 81 of 1888, which left it a discretion in the matter and which, exclusive of the provisos which follow, is constitutional; and the city did so, taking care that the amount appropriated, added to other sums appropriated for indisputable wants and necessities, should not aggregate more than the amount which the ten mills tax imposed by her would realize.

The city could not have imposed a special school' tax, which, added to other city taxes, would have exceeded the ten mills, which, under Article 209 of the Constitution, it was authorized to levy and the proceeds of which were to stand “for all purposes whatsoever

It appears from the record that the city council, in the exercise of the discretion with which it is vested by Sec. 64 of the charter of 1880, in the apportionment of the alimony of the city has prepared and adopted a budget of the expenditures of the city for 1889, in which provision has been made for all its essential wants and for the public schools, placing these on it for $155,000 to be paid„out of the general revenue, and $25,000 for repairs of school houses, etc., to be taken from the 20 per cent, reserve fund mentioned in See. 71, relied on by the relator, forming a total of $180,000, about one-eighth of the gross amount of expenditures figured upon therein as being $1,415,053.

Considering, therefore, that the provisos of Sec. 71 of Act 81 of 1888 are unconstitutional, not written and not binding on the city; it is ordered that the judgment appealed from be affirmed with costs.


author: Poché, J.

text:
    No. 10,407.
    Philip W. Sherwood vs. His Creditors.
    In insolvency proceedings to wind up tlie business of an insolvent commercial partnership, a partner in commendnm wlio claims to be a creditor of his partner, does not occupy a different and better position than a full or active partner; and hence he can not be allowed to enforce a pledge granted to liim by his co-partner on the latter’s former share of the partnership property.' His rights as a creditor of liis partner individually must be subordinated to those of creditors of the partnership.
    In liquidating an insolvent commercial partnership, the only difference between a partiier in commendtun and an activo partner, consists in tlie former’s immunity from liability for tlie debts of tlie concern beyond tlie sum wliicli lie lias agreed to furnish by his contract.
    PPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Frank N. Butler for Opponent and Appellant :
    1. A partner in commendtun may legally loan money to tlie person with whom he is so associated, and receive in pledge as security for such loan tlie property acquired with tlie money thus loaned, just as any third person could lawfully do. There is nothing to distinguish a partner in commendtun in sucli a transaction from any third person, since lie lias no control whatever in the management of the business, can not bind the concern by any act of his, and is not even considered a partner, except in that he has furnished a certain amount of money or property to bo omployod in the business on condition of receiving a share of the iirofits in the proportion determined by tlie contract, and of being liable to losses and expenses to the amount furnished, and no more. C. C., Arts. 2839 to 2811; B2 An. 639; ¡S3 An. 1815.

      ;2. The partner in commenclam guarantees the creditors o£ the concern that the money or property fee puts into it shall be for their benefit; and when that is exhausted he is exonerated from any other payment. In no case is he liable to pay any sum beyond that which he has agreed to furnish by his contract. O. C., Art. 2842 ; 32 An. 660.
    3. One may pawn every corporeal and incorporeal thing susceptible of alienation. C. 0., Arts. 3154 and 3155.
    4. It is essential to the contract of pledge that the creditor be put in possession of the thing given in pledge, and that actual delivery be made to him, and that the thing pledged remains in the possession of thecreditor, or of a thirdperson, for his benefit. C. C., Arts. 3152 and 3162; 32 An. 1250; 33 An. 976; 38 An. 866; 21 Wallace 360; 2 Pickering 607.
    ,5. The pledge invests the creditor with the right of causing his debt to be satisfied, by privilege and in preference over the other creditors of his debtor, out of the product of the movable, corporeal or incorporeal, which has been thus pledged. C. C., Art. 3157.
    6. When by the terms of the act of pledge it is stipulated that in default of payment of the pledged debt at maturity, the pledgee should have a right, at his option, to sell, without appraisement, at public or private sale, the pledged property, without recourse to a court of justice, and apply the proceeds of the sale to the payment of said debts, it is lawful for the pledgee to pursue the course thus indicated in the act of pledge to realize his debt. C. C., Art. 3157; Act No. 9, approved February 28, 1872, amending and reenacting Art. 3165, Civil Code; 27 An. 472 ; 29 An. 259.
    "7. An injunction against a pledgee’s ex parte effort to sell the property pledged to him, in the manner authorized by the act of pledge, is unwarranted, and subjects the plaintiff in injunction and the surety upon his bond to such damages as may result to the pledgee by reason of such unlawful injunction.

      Rice & Armstrong for the Syndic, Appellee:
    l. A stranger can not hold a pledge on the undivided interest of a member in a commercial partnership to secure a debt due him by such individual member to the prejudice of the then or future creditors of the partnership. Still less can a partner, or a partner in commendam, who is hound to observe exact good faith toward the partnership creditors. C. C., Art. 2823; Sue. of Beer, 12 An. 698, 699; ' Montross vs. Byrd, 6 An. 522; Ulman & Co. vs. Briggs, Payne & Co., 32 An. 660.

      •2. A contract between partners, though one of them be a partner in commenclam, by which one of them is permitted to place the assets of the firm out of the reach of the creditors of the firm, is Void as to such creditors as in fraud of their rights. Bigelow on Frauds, p. 148.
    .3. Partnership assets are pledged first of all for the payment of partnership debts. C. C., Art. 2823; Sue. of Pilcher, 89 An. 362, 364; Carter Bros. & Co. vs. Galloway & Burns, 36 An. 473 and 730; Gueringer vs. His Creditors, 33 An. 1279, • 1282.
    4. The possession of the pledger is that of the pledgee himself, or of a third person appointed by the joint consent of pledger and pledgee. C. C., Arts. 3158 and 3162; Weems vs. licita Moss Company, 33 An. 976.
    .§. It is a palpable inconsistency that the active partner shall be in possession and control of all the assets of the partnership, and that the partner in commendam shall bo, at the s ime tipjje, in possession of part 02' all of those assets.

      ,'6. “ Legal proceedings” to enforce the payment of a debt, or the sale of property pledged for such payment, can be only through service of petition, citation or by executory process when the act of pledge imports confession of judgment. Code of Practice, Ai'ts. 732, 733, 734, 735, 146, 170, 178, 179; O. C. 3165.
   The opinion of the court was delivered by

Poché, J.

This appeal involves the discussion of the validity of a ■pledge granted by the insolvent to Francis Martin, his partner in eommendam, on all of the insolvent’s share in the partnership property, to secure an indebtedness of §5,000.

The contest is between the partner in eommendam, as a creditor of the insolvent individually and the creditors of the partnership.

The partner in eommendam prosecutes this appeal from a judgment which refused to recognize and enforce his rights of pledge.

The pertinent facts are as follows: A pre-existing partnership, carrying on the business of manufacturing doors, blinds, sash, etc., under the style and name of the “Enterprise Sash, Door and Blind Factory,” and composed of Alexander Smith, Francis Martin and Philip W. Sherwood, was dissolved in the early part of November, 1887, and Sherwood bought out Smith’s interest in the concern for ■§5,000 cash, which he paid with money loaned him by Martin.

Immediately thereafter, Sherwood executed an act of pledge of his two-third interest in the factory in favor of Martin to secure his indebtedness of $5,000 to the latter.

On the same day the two entered into a copartnership under an ■authentic act, with Martin as a partner in eommendam, to continue the same kind of business under the same style and name as heretofore. In the new business Sherwood contributed his undivided two-third interest in, and Martin his third of, the factory, with a stipulation of equal shares in profits and losses, limiting Martin’s losses to his contribution.

On the 19th of April, 1888, Sherwood made a surrender of the partnership assets, and a syndic was appointed on June 5, 1888.

Martin’s claim, under its terms and in accordance with the act of pledge, having matured, he obtained an ex parte order on June 12, 1888, for the sale of Sherwood’s interest in the concern, Which had been pledged to him.

Before a sale could be effected his proceeding was enjoined by the ..syndic on numerous grounds, one of which was that, as Martin was a partner, his pledge was of no effect toward the creditors of the partnership.

The syndic having thereafter proceeded to a sale of all the assets-of the concern, he presented an account on Avhieh he placed Martin as an ordinary creditor only.

By Avay of opposition Martin urged his rights of pledge on the proceeds of two-thirds of the partnership assets. Whereupon Shakspeare, Smith & Co., creditors of the partnership, opposed Martin’s right of being considered as a creditor of the partnership at all, on the ground that he was only a creditor of Sherwood individually.

The various oppositions and the injunction proceedings were consolidated and tried together, resulting in judgment by which the syndic’s injunction was perpetuated, Martin’s pledge Avas denied and rejected, in so far as it could affect the rights of the creditors of the partnership, his opposition dismissed, and the opposition of Shakespeare, Smith & Co. maintained.

From the foregoing statement of facts, tested under well settled principles of law and of jurisprudence, it is apparent that the judgment thus rendered is correct in every particular.

The fallacy of appellant’s contention consists in his assuming the attitude of a third party or of a stranger, in dealing with the insolvency proceedings of Philip W. Sherwood, for the purpose of winding up the business of the concern knoAvn as the “Enterprise Sash, Door and Blind Factory.”

. It is elementary in commercial laAV, as A\rell asunder the provisions of the Civil Code, that “the partnership property is liable to the creditors of the partnership in" preference to those -of the individual partner.” * * * Art. 2823.

And for such purposes, the partner in commendam is inno better position than an activé partner. As, a member of an insolvent partnership his only immunity consists in the restriction of hie'liability for the debts of the concern, to the amount which he had agreed to furnish by his contract. C. C. 2842.

A partnership Avith a partner in commendam may exist in every association known as partnerships, and it can not be treated as a separate division of partnerships. C. O. 2840.

Ulman & Co. vs. Briggs et al., 32 An. 630; Marshall vs. Lambette, 7 Reb. 471.

Hence it follows that in determining the rights of Martin in. and to the partnership assets as a creditor of Sherwood, he must be treated with the same measure which would be meted out to á simple commercial partner whose share in the concern is liable for partnership debts, and whose claims as a creditor of his partner must be subordinated to the claims of creditors of the partnership. Gueringer vs. Creditors, 83 An. 1279.

As soon as the partnership between Sherwood and Martin was. formed, their respective previous and individual interests or shares in the factory were vested in the ideal being known as the partnership, and no portion thereof could again become the property of the partners, but the residuum, after the payment of the partnership, debts. 89 An. 382, Succession of Pilcher.

Hence the District Judge was correct, not only in holding that the pledge set up by Martin on the previous interest or share of Sherwood in the concern could not be enforced to the detriment of the creditors of the partnership, but that, as he was. only a creditor of Sherwood, he had as such no right to participate in the distribution of the proceeds of the partnership-assets. His only recourse is on the residuum which might accrue to his debtor after the full liquidation of the partnership.

As he had no pledge which he could enforce adversely to the creditors of the concern, it: follows that he had. no legal right to wrench the property from the possession of the syndic for the purpose of effecting a sale of the same independently of the insolvency proceedings. Hence the injunction sued out to stay his proceeding, was properly perpetuated.

Judgment affirmed.


text:
    No. 10,459.
    Pittsburg and Southern Coal Company vs. Chas. B. Slack & Company.
    1. No disputed questions of law arise in lliis ease; the only issue is as .to the terms, of an oral contract sued on. 'The plaintiff parries the burden of proof; the evidence is contradictory; the judge a quo determined the issue of fact in f ivor of defendant.
    2. Contracts arise from the agreements of parties — not from tlieir disagreements;, and the evidence showing that for want of chair explanation, the parties misunderstood each other and really disagreed instead of agreeing, the obligation of the alleged contract can not be enforced.

      APPEAL from the Civil District Court for the Parish of Orleanas. Ellis, J.

      W. 8. Benedict for Plaintiff and Appellant.

      John M. Baldwin for Defendant and Appellee.
   The opinion of the court was delivered by

Fenner, J.

On August 17, 1888, the plaintiff and defendant ■entered into a contract concerning the sale of one boat and two' •barges of coal.

It is admitted that under the terms of the contract the sale of the two barges was only to take effect as a completed sale on Monday, August 20. But it is claimed on the part of plaintiff that the contract with reference to the boat was different, and that the sale of the boat was to take effect and did take effect on August 18. On the 19th of August, the boat and barges were all sunk and lost in a cyclone.

The plaintiff sets up no claim on account of the barges, assuming the burden of their loss; but brings this action to recover the price of the'boat of coal.

Defendant contends that there was but one contract covering the boat and the barges and identical in its terms as to both, and that the whole sale was to take effect, as completed, only on Monday, August 20.

This presents a simple issue of facts, involving no question of law whatever. There is no question as to the completeness of the contract between the parties; the issue is as to the terms of the contract. If, as defendant contends, the contract was for a sale to take ■effect as such only on August 20, covering alike the boat and barges, plaintiff would admit that the loss of the boat fell on him, just as he ■ does admit that he must bear the loss of the barges. If, on the ■ other hand, the contract was that the Sale of the boat was to take ■effect on the 18th, the Civil Code would inform the defendant, unmistakably, that the “agreement for the object and the price thereof being complete,” the thing sold was at their risk, “although, the object had not been delivered or the price paid,” the seller not being in default for non-delivery. Rev. O. O. 1909, 2552, 2456, 2457, 2470.

There is no dispute about these elementary principles of law. The question involved in the ease is what were the terms of the contract, as matter of fact.

The dealings between the parties were verbal; their evidence on the subject is contradictory; and the plaintiff carries the burden of proving the case.

The learned judge a quo concluded that the plaintiff had failed and that the weight of the evidence was on the side of defendant.

After a careful study of the record we agree with him.

While we admit that the defendant’s agent intended to make an immediate sale of the boat of coal, to be perfect from the date of designation of the particular boat, we are equally convinced that the defendants did not so understand it. The boat and barges were included in the same contract, and if the plaintiff’s agent intended to make different terms as to the time, when the sale of the boat was to take effect from those as to the sale of the barges, it was bis duty to have stated the difference very clearly so that there should have been no room for misunderstanding. This, his own evidence satisfies us, he failed to do. It was not until the 18th, the day after the contract, when the agent called on the defendants and designated the particular boat and presented the papers for signature, that it was, for the first time, clearly presented to defendants that the agent, considered the sale of the boat as taking effect at that date.

The evidence is clear that at that time, the day before the loss„ the defendants asserted their understanding of their contract and1 repudiated that of the agent.

Contracts are founded on the agreements of parties — not on their-disagreements.

Judgment affirmed.


text:
    No. 10,354.
    Henry Brinkman vs. Mrs. Annie Huyghe.
    1. The trial of a cause haying been commenced, and a portion of the evidence taken, when the sitting judge was displaced by the appointment of liis successor, a question was raised by the defendant as to his right to require a trial de novo. Held, that the reintrodnction of the testimony that was adduced before the judge ex officio was all the defendant could require.

      2. The plaintiff being the adjudicator of certain property at a judicial sale to effect a partition thereof, amongst the heirs of a deceased person, and having received an authentic deed thereto, is the holder of a just and translative title, and entitled to a judgment in a petitory action against a naked possessor without title.
    ,B. The Second District Court of the Parish of Orleans had jurisdiction in 1878 to ■order a partition of property of it succession, between the widow and heirs of a deceased person, under administration therein.
    APPEAL from the Civil District Court for the Parish of Orleans. Ellis, J.

      Buck, Dinlcelspiel & Hart and Bayne, Denegre & Bayne for Plaintiff and Appellee.

      Alfred Goldthwaite for Defendant and Appellant.
   The opinion of the court was delivered by

Watkins, J.

This suit is the sequel of a protracted litigation between these parties which has been the subject of numerous adjudications by this court.

It is a petitory action in which the plaintiff claims the ownership ■of a piece of real estate and the buildings and improvements thereon, situated at the corner of First and Davidson streets in this city, by virtue of an act passed before Octave Morel, notary public, on. the 17th of June, 1878, in pursuance of an adjudication made by P. J. Spear, auctioneer, in the suit of Robert E. Huyghe vs. Alfred C. Huyghe, in the then Second District Court of the Parish of Orleans, in certain partition proceedings.

The defendant’s counsel first filed three exceptions: (1) No cause of action; (2) prematurity of action; (S) no jurisdiction. They having been overruled, he answered and plead the general issue.

On the trial there was judgment in favor of the plaintiff, decreeing him to have been the legal owner of the property in controversy since the 17th of June, 1878, with the improvements thereon, and that the property was acquired by him by the act of sale set out in the petition. It further decreed the defendant to surrender the possession and pay to the plaintiff the rents and revenues of the prop-erty at the rate of §30 per month for each and every month since November 2, 1378, until the delivery of possession, with interest.

Defendant has appealed.

I.

The brief of defendant’s counsel contains a concession which virtually disposes of the first two exceptions. It is as follows:

“The exceptions to the petition of no cause of action and prematurity of action had been filed under what was supposed to be the jurisprudence of the State at that time.

The partition suit in which Brinkman acquired title was an original suit in the late Second District Court for the Parish of Orleans. The eases of Boutté vs. Boutté, 30 An. 181, and Buddecke vs. Buddecke, 31 An. 572, were the latest expressions of this tribunal, and were relied upon by the pleader to sustain his exceptions. The case of Levy vs. Hitsche was not decided until May, 1888, after this case had been continued until December, 1888, in the court a qua.” Page 5.

The inference is that since the opinion was rendered in Levy vs. Hitsche, 40 An. 500, there can be no question as to the jurisdiction of the Second District Court of the Parish of Orleans, in the matter of the partition suit and proceedings through which plaintiff’s title was derived. Therefore, the exceptions were correctly overruled. It is perhaps worthy of observation, that the ground assigned in defendant’s motion, for the prematurity of this action is, that same was instituted before plaintiff had discharged the judgment she had obtained against him for the rents and revenues of the property during the period cf its occupancy.

Huyghe vs. Brinkman, 37 An. 240.

But Brinkman availed himself of a suggestion and reservation of this court made in that case, 38 An. 836, and enjoined the execution of that judgment, in order to obtain a stay of proceedings until his rights could be ascertained and determined. Mrs. Huyghe sought to arrest these injunction proceedings, by mandamus, but that relief was refused.

State ex rel. Huyghe vs. Judge, 39 An. 99.

All of these opinions clearly indicate that the right of the parties litigant, touching the title as well as the rents of the property, must find solution in this form of action.

II.

It appears from the record that the case was taken up for trial on the 26th of April, 1888, Judge Tissot presiding, and considerable testimony was taken. Again, on the 10th of May, 1888, the trial was: proceeded with, and additional testimony was taken before the same-judge. On the 11th of December, 1888, the case was again called for-trial, the same to be proceeded with as an open case, before Judge Ellis, he having, in the interim, superseded Judge Tissot.

At this juncture, and before proceeding with the trial, counsel for-the defendant objected to the trial, as of an open case, and insisted upon a trial de novo, because of the change in the personel of the: court; but this objection was overruled and counsel reserved a bill of exception.

The counsel for plaintiff then offered and filed in evidence anew the parol and documentary evidence that had been previously offered in evidence.

The argument pressed here, in support of the defendant’s right to a trial de novo is, that counsel had framed his answer with a view to the jurisprudence respecting the jurisdiction of the Second Court, as-it was prior to the decision of Levy vs. Hitsche, and that the fault, if fault there was in doing so, was in no wise attributable to the defendant personally, and as the case is one of great hardship, she ought not to suffer the consequences thereof.

The record shows that the defendant’s answer was filed on the 25th of November, 1887, some months prior to the decision of Levy vs. Hitsche, it is true, but the record fails to show that counsel demanded the right to a trial de novo for the purpose of reforming his pleadings,, or of supplementing his answer; nor did he tender any supplemental, answer disclosing any new or additional defence, or title to the property in the defendant.

A trial de novo did not imply any such thing necessarily.

The case counsel relies upon, Ealer vs. Freret, 11 An. 455, does not go to that extent. At the beginning of the trial before the retiring-judge, all the testimony had been introduced, evidence classed, and a portion of the argument heard.

When his successor commenced the hearing, plaintiff’s counsel opposed any further proceedings and demanded that the testimony should be offered anew.

This request was refused by the judge a quo, and this court held his ruling erroneous. But the spirit of that decision was complied with by plaintiff’s counsel, in offering anew, on the last trial, all the testimony that was offered and filed on the first. We think the judge properly overruled the defendant’s objection.

III.

On the merits, the sole question for us to determine is whether the plaintiff acquired a good and valid title to the property in dispute, by virtue of the adjudication at public auction in the partition proceedings above noted, on the 17th of June, 1878. The judge below thought he did, and so decided.

In Huyghe vs. Brinkman, 38 An. 836, the possessory action, on its second hearing in this court, the leading and important facts as appertaining to the source and character of the defendant’s possession of the property as owner, antecedent to his surrender thereof, under a prior decree of this court, are recited. They were extracted from the same record that is now before us. Those pertaining to Brink-man’s title are as follows, viz:

That he purchased the property at a partition sale made between the heirs of Robert Hpyghe, the former husband of the defendant, who continued in possession after his death. This sale and adjudication occurred on the 1st of June, 1878, and the partition proceedings are duly homologated notwithstanding. the defendant’s opposition thereto. Thereupon a formal title was executed in the presence of Octave Morel, notary, on the 17th of June, 1878, and delivered to the plaintiff as purchaser.

He then procured a writ of ejectment and dispossessed the defendant. Huyghe vs. Brinkman, 34 An. 831.

Subsequently Mrs. Huyghe was restored to possession by a decree of this court. Huyghe vs. Brinkman, 37 An. 240.

This title of the plaintiff, Brinkman, is perfect in form, and recites all the necessary elements of a valid sale, and he has shown to have paid a large portion of the price in cash, and to have executed notes for-the residue. It is, in form, an authentic act, and three of the heirs of the deceased signed it. It possesses all of the insignia of a just title in the sense of R. C. C. 3484, 3485, 3486.

The defendant, Mrs. Huyghe, was a party to those partition proceedings, and litigated her rights in the Second Court with the plaintiff by opposing their homologation and otherwise. «To those proceedings Brinkman was a stranger, and only became connected therewith as the adjudicatee of the property. The partition sale was made in pursuance of a judgment of the Second Court, and the decree of the same court homologating the partition proceedings, in terme, declares “that the act of partition passed before Octave Morel, notary public, on the 12th of July, 1878, be, and the same is hereby declared to be, as binding to all parties to this suit as if same had been signed by the defendant in the above rule, Mrs. Widow Annie Huyghe.”

All of the proceedings were taken and determined in the succession of Robert Huyghe, deceased, and contradictorily with and against his widow and heirs.

The Second District Court for the Parish of Orleans had undoubted jurisdiction of the succession of Hiryghe, and of the partition suit and sale, and its judgment and decisions therein rendered were valid, legal and binding.

Since the .decision of this court in Levy vs. Nitsche, 40 An. 500, this has not been an open question.

Our conclusion is that the plaintiff has a good and solid title to the property in dispute, and that the judgment appealed from is correct.

Judgment affirmed.


author: McBnery, J.

text:
    No. 10,462.
    Widow J. H. Tucker vs. Illinois Central Railroad Company.
    It is not necessary to serve notice on tlie owner oí a building in order to recover damages from injuries received from tlie falling of the same, as to its dangerous condition. lie is bound to know the qondition of his property. Ignorance of its condition can bo no excuse for any accident caused by its weakness.
    "Where a standard of duty is lixed, audits measure defined by law, its omission^ negligence per se. J

    There can h(5 no difference in principle whether a building lias been made unsafe by tlie agencies of lime, weather or the acts of trespassers, which was within the power of the owner to prevent. In any event, and jmder all these circumstances, it is the duty of the owner to keep his building in a safe condition.
    APPEAL from the Civil Listóct Court for the Parish of Orleans. Rightoi'j J.

      W. S. Benedict and D. B. H. Ghaffe for Plaintiff and Appellee:
    I. livery act whatever of man that causes damage to another, obliges him whose fault it happened to repair it; the right of this action shall survive the case of death in favor of the minor children or widow of tlie deceased, or either of them, and in default of these, in favor of the surviving father and mother, or either of them, for tlie space of one year from the death. The survivors above mentioned may also recover the damages sustained by them by the death of tlie parent or child, or lmshand or wife, as the ease may he. K. (\ 0., Art. 23ii>, as amended by Act 71 of 188*1, p. 9*1.

      •2. Every person is responsible for the damage lie occasions not merely by liis act, but by bis negligence, bis imprudence, or liis want oí skill. R. C. C.,Arfc. 2316.
    3. Every one is bound to keep liis buildings in repair, so that neither tlieir fall, nor that of any part of the materials composing them, may injure the neighbors or passengers, under the penalty of all losses and damages which may result from the neglect of the owner in that respect. R. O. 0., Art. 670; 14 An. 806.
    4. The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by a neglect to repair it, or when it is the result of a vice, in its original construction. R. O. O. 2322; O. N. 1386.
    f>. The law makes it the duty of the owner to keep his building in proper order, so that no one may be injured thereby; he is bound to know whether repairs are or are not necessary. No notice of the condition of the building is necessary. 38 An. 282, and the authorities there cited.
    6. When a building falls, the mere fact of its falling is prima facie evidence of negligence in the owner and gives rise to the maxim, lies ipsa loquiter. This doctrine is common alike to the common and the civil law. Yincent vs. Cook, 4 Hun. 331: Mullen vs. St.John, 57 N. Y. 567; Atareado, Yol. 5, p. 273; Daurent, Yol. 20, p. 61)5, ¡i. 642.
    7. If any one owns a building on or near a street, he is under a legal obligation to take care that it shall not fall into the street and injure persons.lawfully there. Sherman & Redfiold on Negligence, Vol. 2, Sec. 347, note 2.
    .8. Sir utcre. tuo at non alir-ntuu hvdas is a maxim supported by the jurisprudence to all countries, and such being the law, a failure so to do render’s the owner liable for the damages that may be suffered.
    1). If an owner of property pays no attention to-tlie same, and by his gross negleet allows persons to come upon his property and so depredate it as to cause its fall, such owner is responsible for the damages caused by said fall to a passenger lawfully on the highway; and ('specially is this so when the depredation has boon continuing for weeks. Such continued depredation makes an absolute necessity for repair. The fact that owner had employed a man to look after the property, who failed to do his duly, does not lessen the owner’s liability.

      Girault Farrar for Defendant and Appellant:
    1. The owner of a building is liable in damages for its fall, when such ruin and damages are caused by failure to repair it, or from a defect in the'original construction. C. C., Art. 2322; Jiarnes vs. Beirne, 38 An. 380; Burton vs. Davis, 15 An. 448; Howe vs. City, 12 An, 481.
    2. A defendant is ordinarily not liable except for such damages as result directly and naturally from his negligence.
    The proximate cause is the test in such cases, and where the damage is caused directly by the intervening act of a third person, not connected naturally and logically or directly with defendant or his alleged negligence, plaintiff can not recover, oven if defendant bo remotely negligent. 2 Thom, on Negligence, 1084; authorities in brief; “Mullen vs. St. John et ah, 57 N. Y. 567.
   The opinion of the court was delivered by

McBnery, J.

Mrs. Emma Freud, widow of J. H. Tucker, sued the defendant company for $25,000 damages, for the bodily suffering of her husband and her pecuniary loss in his death, caused by the falling of lumber sheds situated on property belonging to'defendant, in square bounded by Delord, Rampart, Euphrosine and Franklin streets in the City of New Orleans, on the 12th of September, 1887.

This suit was brought under the provisions of Art. 2315, R. C. C. The defence is a general denial. There was a verdict and judgment in favor of plaintiff for $7,500, from which the defendant appealed.

The facts are as follows:

The buildings on defendant’s lots were a series of sheds adjoining' each other, and running from Delord through to Euphrosine street. They were strong enough, and suitable for the purpose for which they had been erected, the storing of lumber. A shed awning extended over Delord street, for a distance of 100 feet. The defendant’s agent, O’Conner, who had control of the property, employed one Paland, to keep trespassers from the premises, who had been engaged in dismantling the sheds. These depredations had been going on for some two weeks prior to the falling of the sheds. There was no organized force by large bodies, but they were committed at such times as suited the convenience of the individual trespassers. The sheds were weakened by the continuous displacing of material, and in the afternoon of September 12, 1887, a greater portion of the sheds suddenly fell. The husband of plaintiff, J. H. Tucker, was found dead under the debris on the banquette on Delord street. He was in failing health, and had left his home but a short time prior to the accident for a walk.

The defendant concedes that if the buildings had fallen from a failure to comply with the provisions of Art. 2322 C. O., the liability of the company would be fixed without contributory negligence on the part of Tucker. But the company denies that the accident was caused by failure to comply with the provisions of said article of the Code, but affirms that it was caused by the unlawful acts of third persons, trespassers, who invaded the premises in swarms and literally pulled the sheds down on the afternoon of September 12, 1887. There is no evidence in the record that trespassers were present on this day in greater numbers than at any previous time.

There is no proof that there was any over-powering force. On the contrary, it is established that these depredations or trespasses were the effects of individual trespassers for the purpose of individual gain. Portions of the inclosures of the premises were down and passage ways were left open, and thus an opportunity, if not an invitation, was given by defendant for trespassing.

There is some controversy about notice having been given to the defendant company through its agent, O’Conner, as to the weakened condition of the shed caused by taking away material. But it was not necessary to serve any notice on the defendant company. It was bound to know the condition of its property. Ignorance of its condition resulting from complete lack of proper and prudent attention can be no excuse for any accident caused by its weakness. The law makes it the duty of the. owner of a buiiding to keep it in proper .order so that no one may be injured by it.

An inspection of the building would have disclosed the acts of the trespassers. Barnes vs. Beirn, 88 An. 280.

In this case the defendant’s standard of duty was fixed and its measure defined by law. It is the same under all circumstances and its omission is negligence per se. There can be no difference in principle whether the building has been made unsafe by the agencies of time, weather or trespass, which it was in the power of the owner to prevent. In any event, and under all these circumstances, it is the duty of the owner to keep his building in that condition of safety that no one will be injured by its fall.

The defendant company in its brief says:

“ The man in charge, supposed to be Mr. Paland, was among the killed, and of course it can not therefore be stated whether he took part in the demolition or invited or suffered the trespasses to do this outrageous act, or whether he tried to prevent it.

“If he was a party to 'the act, or a silent bystander, suffering it to be done without resistance, and if the plaintiff was not an actor in the proceedings, and was harmlessly walking by at the time without knowledge of the danger, then defendant is liable under the law. ’ ’

The defendant company did not exhaust its duties in the appointment, if one was made, of a party to watch the sheds. An efficient protection of the sheds was required, such as to prevent them from being put in a dangerous condition. The sheds in fact were practically abandoned to their fate.

There is no evidence to connect plaintiff’s husband with the trespassers. He was harmlessly walking on the banquette without knowledge of the danger. The owner must know the condition of his property and the company was aware of these trespassers and the effect they had to weaken the buildings. It was its duty to warn the public of danger.

There is, in our opinion, not the slighest doubt of the responsibility of the defendant company, but we think the amount of damages allowed by the jury is too large.

The husband of the plaintiff was in bad health. He was 53 years of age. He had been out of employment for one year. His occupation was that of steward on a steamboat during the boating season, and he earned from §75 to §80 per month when employed. His death was instantaneous, and therefore only actual damages are claimed for the pecuniary loss sustained by plaintiff.

Under these circumstances we think §2,500 will be a just and proper amount to allow for the pecuniary loss suffered by plaintiff in the death of her husband.

The judgment appealed from is therefore amended, so as to give' the plaintiff the sum of §2,500 as damages, and in all other respects it is affirmed, plaintiff to pay costs of appeal.